The UK’s communications regulator, Ofcom, followed up with me following its decision to fine my pro bono client SaSu for Online Safety Act violations, a situation we addressed here on the blog in this post.
Not content to take the win of a voluntary geoblock of the UK by an unhappy American target, Ofcom followed up and ordered my client to update its terms of service to prohibit UK users from accessing the service.
For my client, which in my view has done quite enough on a voluntary basis, this was a bridge too far.
SaSu refused:
Excerpting from the letter:
…your letter maintains the £950,000 penalty notwithstanding that the steps Ofcom now describes as sufficient to remove UK access were available to be requested, and would have been implemented, and were eventually implementedby my client unprompted, at any point in the preceding nine months. My client cooperated with Ofcom not because it had to, but out of respect for the United Kingdom and its wishes. It did so under protest with regard to the United Kingdom’s legally incorrect claim that British censorship law overrides the First Amendment of the United States Constitution, a contention it continues to reject. Ofcom persists in claiming, falsely, that British law compels American conduct on American soil.
My client received, in exchange for its cooperation, threats of criminal enforcement action, an eventual £950,000 penalty notice, and, now, a request to compel my client to change its TOS. For this reason, I am unable to recommend that my client engage further with Ofcom. If Ofcom wants to order my client to change its TOS, Ofcom should use the MLAT procedure.
So, to answer your question, no, my client will not be updating its TOS. That is a gratuitous request that serves no function to protect UK users and seeks to compel speech from my client. My client has already comprehensively geoblocked the UK. It has done quite enough.
My client, which as far as I can tell was Ofcom’s first OSA enforcement target, is the canary in the proverbial coal mine. I draw attention to the fact that, per public reporting, at least 197 Ofcom enforcement notices have since entered the United States as part of your agency’s extraterritorial enforcement campaign, targeting companies large and small, practically all of which are less controversial than my client.
The Online Safety Act is a grave danger to American freedom of speech. My client reserves all rights, including without limitation its First Amendment rights.
Thus ends Ofcom’s first-ever enforcement proceeding under the OSA, with an American refusal to give up their rights or consent to the payment of a foreign fine without domesticating it in the United States. These assertions of rights are something about which Ofcom, as a practical matter, can do very little.
Ofcom Pivots To Big Tech
Right on cue, Ofcom began reporting its point of view on the shakedown exercise it commenced against the big boys (YouTube, TikTok, Roblox, Meta, etc.) back in March. It had demanded that these companies make design changes to their products, changes not, strictly speaking, required by the Online Safety Act, to make their products “safer.”
The deadline for responses was in April:
Per reporting, Snap, Roblox, and Meta made enough changes to their services to appease the UK, for now:
And, per reporting, TikTok and YouTube did not:
This was accompanied by a push, also today (quelle coïncidence!) from the (for now) DSIT Minister, Liz Kendall MP, stating that a consultation on whether to legislate for those same “safety” measures – including a U16 social media ban – is going to end next Tuesday and that, whatever the outcome of that consultation will be, the Government wishes to legislate by the end of the year.
Gee, I wonder what conclusions the government is going to reach from their consultation. Anyone want to create a market on Polymarket to guess?
I note she called out X and Grok specifically. I wasn’t aware that X or Grok had been subject to a final determination of wrongdoing by a judicial fact-finder. How can you, fairly, promise to go after a company for violations of your censorship codes before an independent tribunal has made a decision?
I don’t get the sense that Big Tech and its lawyers possess the required degree of cynicism about the prospects for a fair and impartial hearing in the UK about their product design choices.
If the SaSu and 4chan enforcement cases show anything, they show that the UK’s censorship enforcement machine – even if notionally apolitical – is, in practice, anything but.
The UK wants to be the world’s Internet censor. They’re not going to stop until America stops them. Proceed accordingly.