Report from Law Commentary
In Brief – Federal Judge Rudolph Contreras in Washington, DC, has dismissed a lawsuit brought by internet platform companies 4chan and Kiwi Farms against Britain’s media regulator Ofcom, determining that the foreign government agency was protected by sovereign immunity in US courts. The ruling comes as Ofcom pursues 4chan over alleged violations of the UK’s Online Safety Act (OSA), which requires digital platforms with users in the UK, regardless of where the platforms are based, to take steps to protect children and vulnerable people from illegal content. Ofcom has imposed £520,000 in penalties on 4chan for failing to abide by the law’s mandates, including failing to adequately check the age of users. The two US-based internet platforms, who have no operations in the UK, sued Ofcom in US federal court alleging that the regulator’s actions interfered with their constitutional rights and business operations. Contreras did not decide whether Ofcom’s actions violate the First Amendment or whether its penalties can ultimately be enforced against the companies, noting that those questions could return to an American court if the regulator wins a judgement in the UK and attempts to collect it in the United States. “Put simply, plaintiffs’ suit fails because they seek to use American courts as a sword against Ofcom rather than as a shield to protect themselves,” Contreras wrote.
Context – 4chan is a platform long known for hosting objectionable and pornographic content. The platform has portrayed OSA enforcement as an example of what the Trump Administration calls efforts by foreign powers to impose censorship and mocked Ofcom with cartoons and insults in keeping with its online culture. Animated hamsters aside, legal fights over the extraterritorial jurisdiction of digital platform laws are certain to emerge more often if national regulators start to enforce proliferating online regulations on small, truly-remote digital firms. Those who prefer that regulators exercise authority within their borders should hope Ofcom simply uses their OSA authority to order internet providers in the UK to block the platforms. Much cleaner.