Ofcom — driven by the letter of British law that they are bound to follow, but still Ofcom — are quietly making Britain look (a) very silly and (b) as if we haven’t yet shucked-off the American Revolution, let alone colonialism.
What’s Happened Now?
Preston Byrne, lawyer for 4Chan, has published the (apparently full) correspondence between himself and Ofcom from the past few months, the smoking gun of which is the Ofcom Confirmation Decision, where Ofcom notes: (to summarise)
The Act explicitly grants Ofcom the legal authority to regulate online safety for individuals in the United Kingdom, and this expressly includes conducting investigations into, and imposing penalties for, non-compliance by providers of online services with their duties under the Act. […] The Act expressly anticipates that it will have extra-territorial effect, stating at section 204(1) of the Act […] This does not mean that the Act extends to all use of in-scope services globally. […] “The duties extend only to the design, operation and use of the service in the UK and, for duties expressed to apply in relation to ‘users’, as it affects the UK users of the service”
My lived experience of Ofcom people makes me believe that this is a reflection of what they actually think they can and should be doing — I would love to be generous and suggest that this boilerplate reflects them politely throwing parliament under a bus for passing such a prima-facie dreadfully drafted and over-reaching law as the Online Safety Act… but I’m not convinced that Ofcom don’t actually believe some form of “we can do this! we are the little regulator who can bring law to the internet!” — hoping that smooth patter and soft power will provide them with outsize leverage.
Oh, and… having declared British jurisdictional powers to enforce against an American company in America thereby flouting American law, they then demand that American law protects them from counter-lawsuits, not to mention also claiming that 4Chan does not have jurisdiction over Ofcom:
What happens next?
Alas, global politics are a very big pond, and Ofcom (and Britain in general) is a much smaller fish than it likes to imagine.
As I have written previously, this will not end well: I cannot imagine the US judiciary nor administration supporting so flagrant a flouting of US sovereignty, although Britain will be spinning hard to minimise the noise in the media.
However: when eventually / having been proven not to be able to enforce against 4Chan and the Global Internet, the minds behind the Online Safety Act will start to press for a Great Firewall of Britain to protect our children from these profane and insufficiently regulated websites — which is curious if you think about it for a moment.
It’s not as if 4Chan is stealing across our borders in the dead of night to infect delicate British childrens’ minds with shitposting, porn and badly-drawn cartoons of frogs. From my perspective more damage has been wrought to British culture by the Disneyification of Winnie-the-Pooh (big fan of EH Shephard here) than by 4Chan.
And of course once/if the Great British Firewall (“White Cliffs of Cyber?”) is built, then we’ll be rediscovering that:
The kids already know how to use VPNs to circumvent firewalls
The Streisand Effect dictates that more kids will have gone to look at 4Chan because the Government is trying to stop them
The impotent child-protection (and national security) interests will be demanding even more loudly that digital identity be required to even look at the pot of filth that is the internet
Investing in regulation rather than education will have made everything much, much worse
The way we protect British kids from the Internet is to make better and more capable Britons, rather than to try and kidproof the entire internet.
The least bad thing that Ofcom and the Government could do is to quietly let the matter drop whilst focusing on education.
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