US Companies Take Ofcom to Court Over “Unlawful” Censorship Under Online Safety Act
The implementation of the latest phase of the UK’s Online Safety Act (OSA) last month is already impacting on US tech firms, with X imposing age-restrictions on content relating to the grooming gangs in order to comply with its so-called child protection provisions. Elsewhere, tensions have been rising, with President Donald Trump needling Sir Keir Starmer over free speech on his recent visit, and a delegation of US lawmakers led by Republication Representative Jim Jordan blasting the state of UK free speech earlier this month. A State Department human-rights report has likewise warned of “serious restrictions” on free speech in Britain in the past year.
Now US firms and free-speech activists are taking the fight to Ofcom, the communications regulator, directly. Lawyers for 4chan, the anonymous image-board site, and Kiwi Farms, a “website and discussion forum that focuses on Internet culture”, have today filed a lawsuit against Ofcom in US federal court, the first of its kind.
As part of its enforcement regime for the new OSA rules, Ofcom has been issuing escalating compliance notices to the two sites over the past few months regarding their regulation of speech for UK users. But for a notice to be served by a foreign power against a US company, typically it would have to go through the Mutual Legal Assistance Treaty (MLAT) to be valid, passing through both the US State Department and the Department of Justice.
The lawsuit, by Preston Byrne on behalf of 4chan and Ronald Coleman on behalf of Kiwi Farms, alleges that the notices served against both 4chan and Kiwi Farms were served unlawfully, not having gone through the MLAT. “Ofcom,” Byrne explained to me earlier this month, “is the international equivalent of a stalker-y ex – they’ve been told to stop, it’s unlawful for them to continue, and now we need the courts to intervene.”
It also alleges that the content of those notices, requesting that the sites comply with OSA provisions and threatening fines if they did not, were unconstitutional in the United States on the grounds of the First, Fourth and Fifth Amendments and other parts of US law and public policy. These free-speech rights are very jealously guarded by US citizens and taken seriously by US courts – so it is quite possible that the sites will win.
“American citizens do not surrender our constitutional rights just because Ofcom sends us an e-mail,” Byrne said today. “In the face of these foreign demands, our clients have bravely chosen to assert their constitutional rights.”
Coleman said: “With this action, our clients defend the free speech rights of every American. Foreign interference of the type seen in this case is precisely what the First Amendment is meant to protect against.” He added: “We have asked the Court to confirm that Ofcom has no authority to impose or enforce unconstitutional UK laws on American soil.”
An Ofcom spokesperson told the Telegraph: “We are aware of this lawsuit. Under the Online Safety Act, any service that has links with the UK now has duties to protect UK users, no matter where in the world it is based. The Act does not, however, require them to protect users based anywhere else in the world.”
The significance of all this, as Byrne laid out on the Sceptic earlier this month, goes well beyond just these two US firms. Ofcom’s enforcement mechanisms are largely untested, and hitherto all such internet regulation has largely been abided by voluntarily by US firms. Government Ministers have even suggested recently that following the latest stage of the OSA, some firms were policing speech on their platforms too zealously in order to undermine its credibility.
But US firms like X don’t love having to shell out for content regulation operations or risking fines if they fail to. So the key question is what will happen if they simply stop playing ball. After all, if small firms take the fight to Ofcom in US federal court and win, it raises the possibility of larger ones following suit.
At that point the battle between Ofcom and US tech firms may become a game of chicken. A firm like X already has a close relationship with the Trump administration and an owner, Elon Musk, interested in free speech. Should it refuse to comply, Ofcom would face having to follow through on its threats and eventually the world’s most influential social media platform could end up inaccessible in the UK.
Some deranged censorship enthusiasts might see that as a win, but it would be a dark day for the birthplace of parliamentary democracy – and a major spanner in the works of the special relationship.
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What defines “the UK now has duties to protect UK users,”, what does that even mean? It is a totally subjective concept, undefined, and you cannot legally enforce anything without a definition.
It’s all nonsense
I for one would like to unsubscribe from their “protection” (racket).
You can! Just register name, address, passport number, credit card details, a couple of utility bills etc. Then you put in a PIN number and access any site you want. I’m sure they won’t be tracking your browsing habits.
Edit. Bank details as well, natch.
Hence their desperate attempts to define what ‘Islamophobia’ means. They’ve got he word for it, but they haven’t yet decided what it means. Whatever it is, it will be illegal.
I don’t want “online protection.” As a relatively grown up person I consider myself perfectly capable of looking after myself on’t web.
Thank you very much HMG now F. off.
But it’s for the kiddies – the ones whose lives they stole during CoVid and the ones brutalised by Pakistani rape gangs whom they ignored and still do.
Now “suddenly” they “care”. Bah! Humbug.
Its interesting the use of language “to protect UK” well there doesm’t seem much interest in protecting the borders of the UK, or protecting Women and Children from predators who this Government are actively encouraging to come here illegaly, there doesn’t seem to be protection for the ittle girls raped and tortured by groups of mostly Pakistani men across the country. What Ofcom means when it talks abour protection, is the protection of UK politicians from criticism of its policies and what it is inflicting on the British people.
We all know the answer is , protect from whatever we think is wrong……which is as scary as all hell .
Terms like “protecting users” are deliberately vague and elastic. Effective they can mean whatever the government wants them to mean.
This is a classic, textbook leftist strategy.
The communist countries had similar laws with terms like “counterrevolutionary activities”, “anti-government propaganda”, etc. This could mean anything. A joke could be considered unlawful.
This strategy is also increasingly used to censor debate. “Harmful misinformation” is another term that the government loves. You thought the Covid vaccines had potentially harmful side affects? Well, that was harmful misinformation, my friend!
i don’t need the UK Government to protect me from anything, Thankyou.
Quite. The WWW has been with us now for at least 30 years undoubtedly with plenty of porn content, so what suddenly happened to make it a crisis?
The possibility that children can see porn on the Internet is not evidence of whether or how often this occurs or what its effect. Since many children who have allegedly been exposed to the horrors of the Internet are now normal, functioning adults – what’s the problem?
Rather than protecting our children from rape gangs, the political filth want to distract us and introduce censorship for the real reason, to stop us learning about their lies and doing something about it.
“…and an owner, Elon Musk, interested in free speech. “
I just can’t believe people still believe this.
Maybe I am wrong. Maybe he wants to change. Maybe he has changed. Time will tell.
By their deeds shall ye know them.
He seems to be interested in more free speech than the previous owners of Twitter
That does not mean he is a completely fair and blameless individual or that we have or should have complete faith in him – we are not that stupid
Yes but first they will have to go through due legal US process to find them guilty of felony under US law. I’d be delighted to see the loathsome WEFer Dawes and her team fearing leaving the UK under threat of arrest.
The Americans should just issue international arrest warrants for all employees and board members of Ofcom. When they’re all in Federal prison they won’t be able to do any harm.
What an excellent idea, they certainly deserve it for stupidity, let alone the attempt to square the circle.
Terrific. Issue arrest warrants for the board members of Ofcom, that should screw their holiday plans handsomely.
Ofcom were the state’s censors who made the CV19eightyfour payop work in the UK by silencing the press. See bottom of P.1 and top P.2 on their PDF
https://www.ofcom.org.uk/siteassets/resources/documents/about-ofcom/bulletins/broadcast-bulletins/2020/issue-399/note-to-broadcasters-coronavirus.pdf
There is a similar process going on in Australia with the local eKaren wanting to introduce censorship (via age verification) which would apply world-wide. Looks like the Big Dog is getting involved, though, which should scatter all the hens.
Seems to me as if the UK wants to build China’s giant censorship firewall, but without the hassle of doing any of the technical work, which basically means getting online content providers to do it for them under threat of fines.
In case people don’t quite understand how things work, this is exactly what has been done with banks and financial “misbehaviour”. Instead of chasing each individual for not declaring income or making money from illicit activities, government have got banks to do it for them by threatening them with huge fines if they don’t monitor their clients and weed out any financial misbehaviour.
And, as usual, it is the law abiding who have to jump through hoops while those who ‘break the law’ find ways around it.
Maybe UK firms should do the same.