The UK’s Online Safety Act is coming for Americans

The UK’s Online Safety Act is supposed to protect children and minors from online dangers, while leaving adults free to look at what they please. It does neither. Naturally curious and rebellious, young people are by far the most skilled in defeating its restrictions. Meanwhile, adults are blocked from viewing more and more material – not just pornography, but also politically contentious content – unless they provide highly personal data to verify their age. (If you don’t believe this, try accessing the right-wing video site Bitchute from the UK. All of its content has been blocked for UK users.)

Now, it turns out, the Online Safety Act could have implications well beyond Britain. Earlier this year, Ofcom – the regulator that enforces the law – started sending impertinent legal letters to US websites with no connection to the UK, except for the fact that some UK residents use them. Kiwi Farms, Gab Social and 4chan received peremptory demands to file lots of compliance paperwork in London and agree to obey UK law.

Now you may not like these sites, and Ofcom certainly doesn’t. Much of their content comes from a sad crew of hate-mongers, white supremacists, suicide obsessives, right-wing nutjobs and two-bit pornographers. Much of it would have the police breaking down your door if you published it in Britain. But their owners rightly told Ofcom that what they published is protected under the US First Amendment, and that Americans don’t appreciate foreign bureaucrats telling them what they can and can’t say in their own country. Essentially, they told Ofcom to go swivel.

At this point, the sensible thing would have been for Ofcom to admit defeat and back off. But instead it doubled down. With Ruritanian pomposity, it told 4chan that it had fined it £20,000 – ‘with daily penalties thereafter’ – for breaching the Online Safety Act.

Patience then snapped across the Atlantic. In August, Kiwi Farms and 4chan filed a suit in a Washington federal court seeking declarations that Ofcom had no business ordering them about, and an injunction to prevent it from hassling them. In September, there was a comic interlude when Ofcom refused to even open the door to the man who had come to its London office to serve the complaint. It had to be left with a security guard instead. Unfortunately for Ofcom, it remains validly served, and it is a pretty foregone conclusion that, in the end, the censorious, meddlesome quango will be left with a judgement against it in a US court.

Ofcom now needs to tread very carefully. In American eyes, Ofcom is an arm of the UK government, and any further attempt to pressure Kiwi Farms or 4chan will be seen as tantamount to Keir Starmer claiming the right to interfere with the constitutional rights of US citizens. To avoid a showdown, the government must now tell Ofcom that it’s on a hiding to nothing, and ask chief executive Melanie Dawes to stop wasting our hard-earned tax money paying expensive American lawyers to fight a lost cause.

The problem isn’t just that it leaves Ofcom looking silly. The potential harm to Brand UK goes deeper, too. For one thing, Britain already has a terrible reputation stateside for backsliding on free speech.

The US State Department recently produced a damning report saying that state censorship in the UK is violating Britons’ human rights. It highlighted the police’s aggressive response to social-media posts after the Southport attack, damning the crackdown as an ‘especially grievous example of government censorship’. It also cited the prosecution of anti-abortion campaigners for silent prayer. Ofcom’s recent antics in coming for US citizens are even more egregious in American eyes.

As respected US website reclaimthenet.org put it, this whole affair starkly demonstrates two competing visions of the internet: ‘One based on the US constitutional tradition of free speech and open access, and another that embraces government-mandated safety regimes that can be weaponised to silence speech on a global scale.’

It could get worse. Owing to a combination of wounded pride and a desperate desire to be seen by Britain’s lanyard class to be doing something, Ofcom may well choose the nuclear option of telling UK service providers to block large numbers of US and other foreign sites. This would lead to the creation of a kind of Great British Firewall, not dissimilar to the Great Firewall of China.

Needless to say, this would not go down well in the US. Does the British government really want to be seen by our closest ally as an authoritarian regime? The government needs to pull the plug on the Online Safety Act before any more damage is done.

Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.