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Ofcom chief says some online safety fines may go unrecovered

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Ofcom chief says some online safety fines may go unrecovered

The post is an opinion piece by a lawyer who represents 4chan and three other platforms in disputes with Ofcom, the UK regulator that enforces the Online Safety Act. The author is not named in the text. The piece reacts to testimony given the same day by Dame Melanie Dawes, Ofcom's Chief Executive, to the Commons Digital, Culture, Media, and Sport Committee.

Dawes said: "We won’t be able to recover every single fine on online safety. If foreign courts decide to try and get in our way, there will be a point at which we have to accept that we won’t be able to recover that money." Guido Fawkes headlined this "Ofcom Admits Defeat." The author agrees and says Ofcom has admitted that its jurisdiction ends where a foreign court's begins. Note that Dawes's statement is conditional and, in the quoted passage, names neither 4chan nor the United States. "Defeat" is the characterisation of the author and of Guido Fawkes, not of Ofcom.

The author ties the testimony to 4chan v. Ofcom, the case he and a colleague filed in the federal District Court for the District of Columbia a little over a year ago. The author says the court ruled against 4chan on the sovereign immunity motion. The only remedy 4chan sought, a declaration of the parties' rights, was one the court could not give because of that immunity. But the author says the court's opinion contained obiter dicta that amount to a warning to Ofcom. As quoted, the court said that because the plaintiffs have no presence, infrastructure or operations abroad, enforcing any judgment would likely happen in the United States, where they could rely on American courts. It added that American courts generally decline to enforce foreign judgments that violate the US Constitution, if the plaintiffs are right in their constitutional claims, citing Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C. 1995), where a British judgment was not enforced because it contravened the First Amendment. The court also said, in the author's words "gratuitously and sua sponte", that American courts are not necessarily required to enforce foreign penal judgments. The author reads the message as "your writ doesn’t run here", says 4chan's constitutional arguments are correct, and concludes that Ofcom cannot enforce the Online Safety Act in America. He argues it would be suicidal for Ofcom to sue in a US court, since that would waive sovereign immunity and risk an adverse merits ruling, and says that will never happen for 4chan and likely not for other American targets.

The author does not treat this as the end. He says Ofcom has targeted about 200 American platforms with censorship orders (his figure), and only four refused, all of them his clients, one of them 4chan. He calls for permanent US law reform: the GRANITE Act (H.R. 10174 / S. 5478), described as a foreign censorship shield before both House and Senate, and the HOMEFRONT Act (H.R. 10309). He says either would strip sovereign immunity from foreign censors and let Americans targeted by their orders sue those agencies in federal court.

He also predicts what comes next: Ofcom will go back to Parliament and ask for authority to obtain "interim business disruption measures", which he describes as more or less unilateral powers to block foreign websites in the UK before an enforcement process starts rather than after. He says Parliament explicitly rejected these powers the first time and that Nadine Dorries, the former MP who introduced the Bill, has now repudiated them. He expects VPNs to defeat them. Ofcom may also try to block 4chan; he says his client has priced that in, since it would mean the UK acting against its own people and ISPs rather than against 4chan. He closes by urging the UK free speech movement to oppose new powers for Ofcom.

Key facts

  • Dame Melanie Dawes, Ofcom's Chief Executive, told the Commons Digital, Culture, Media, and Sport Committee that Ofcom won't be able to recover every online safety fine if foreign courts get in the way.
  • The post's author, a lawyer for 4chan, reads this as an admission of defeat and ties it to dicta in 4chan v. Ofcom (D.D.C.), where the court suggested American courts would likely decline to enforce judgments that violate the US Constitution.
  • The court ruled against 4chan on sovereign immunity, so the dicta came without the declaration of rights 4chan had asked for.
  • The author says Ofcom has targeted about 200 American platforms and only four, all his clients, refused; he predicts Ofcom will ask Parliament for "interim business disruption measures".
  • He backs the GRANITE Act (H.R. 10174 / S. 5478) and the HOMEFRONT Act (H.R. 10309), which he says would strip foreign censors of sovereign immunity in US federal court.

Why it matters

The story is about the limits of a national online-safety regime against sites that sit abroad. Ofcom's chief executive acknowledged in testimony that some fines may not be recovered if foreign courts intervene. The post argues the US court has already signalled how such enforcement would fare in America. The author also predicts the fight will move to Parliament, where Ofcom would seek powers to block foreign sites before enforcement begins, and to Congress, where two bills would let targets sue foreign regulators.

Who it affects

Ofcom and the Online Safety Act regime it enforces; American platforms that receive Ofcom orders, of which the author says there are about 200, with four refusing; 4chan and the author's other clients; UK internet users and ISPs if blocking measures are expanded; and US lawmakers considering the GRANITE and HOMEFRONT Acts.

How to use it

Treat it as an advocate's reading of one day's testimony, and check the pieces separately: the Dawes quote, the court's wording in 4chan v. Ofcom, and the author's predictions. Things to watch, according to the post: whether Ofcom asks Parliament for "interim business disruption measures", and whether the GRANITE Act (H.R. 10174 / S. 5478) or the HOMEFRONT Act (H.R. 10309) advances.

How solid is it

This is a one-sided opinion post by a lawyer for 4chan, who describes his own clients and case. The Dawes quote is given in full and is conditional. The court passages are quoted by the author, who adds that they are dicta and that the court ruled against 4chan on sovereign immunity. "Defeat" is the characterisation of the author and of Guido Fawkes. The predictions about Ofcom's next steps and the bills' effects are the author's own.

Risks and caveats

The source does not say Ofcom has formally abandoned any fine or enforcement action. Dawes did not mention 4chan or the United States specifically in the quoted passage. The source does not say whether the court dismissed 4chan v. Ofcom or whether an appeal is pending, beyond the lost sovereign immunity motion. The size of any fine against 4chan or the other platforms is not stated. No Ofcom or UK government response to the author's claims is given, and no timescale is given for Ofcom's request to Parliament or for the two US bills.

“We won’t be able to recover every single fine on online safety. If foreign courts decide to try and get in our way, there will be a point at which we have to accept that we won’t be able to recover that money.”

— Dame Melanie Dawes, Chief Executive, Ofcom