4chan may seem an unlikely flashpoint for a transatlantic legal standoff. And yet, the anonymous message board — infamous for its unfiltered blend of internet subculture, pornography and a seemingly endless stream of conspiracy theories accusing practically every prominent Democrat (at least since President Andrew Johnson placed a $100,000 bounty on Confederate leader Jefferson Davis in 1865) of being a cannibalistic paedophile — is now at the centre of a high-stakes dispute between a British regulator and a US court.
Earlier this year, Ofcom launched an investigation into 4chan under powers granted by the UK’s Online Safety Act (OSA), the sweeping legislation that tasks the communications regulator with holding tech platforms accountable for illegal content and material harmful to children. Although 4chan has no physical presence in Britain, it’s accessible here and therefore falls within the Act’s scope, as any platform that may cause nebulously-defined “harm” to UK users is required to comply.
Ofcom’s immediate concern was the site’s failure to complete a mandatory illegal-content risk assessment, a cornerstone obligation under the new regime. When 4chan declined to respond, the regulator issued a provisional notice of contravention, threatened a £20,000 fine with daily penalties until compliance was demonstrated and warned of possible further enforcement action.
In response, 4chan and fellow libertarian message board Kiwi Farms filed suit in a US federal court, seeking a declaration that Ofcom lacks jurisdiction and describing the enforcement effort as an attempt to “censor Americans’ free speech” in violation of the First Amendment.
At its core, the dispute is a clash of regulatory philosophies
“Parliament does not have that authority,” the complaint argues. “That issue was settled, decisively, 243 years ago in a war that the UK’s armies lost and are not in any position to relitigate.” Whether Ofcom’s woke, technocratic leaders will recognise that as a put-down or a compliment about British demilitarisation is unclear.
At its core, the dispute is a clash of regulatory philosophies. The OSA, underpinned by a fussy, paternalistic and faintly neurotic form of safetyism, imposes a statutory duty of care on digital platforms. In practice, this underwrites Ofcom’s euphemistically titled “safety by design” regime — translation: if we’re in any doubt, they’ll have to cut it out — which requires services to assess the risks posed by their systems and implement “proportionate” measures to reduce users’ exposure to illegal content.
That alone is enough to raise the hackles of America’s digital frontiersmen — because some of the content classed as “priority illegal content” or “illegal content” under the Act includes speech and conduct that is protected by the First Amendment of the US Constitution.
But there’s another source of friction too. The Act also empowers Ofcom to require age verification for what’s supposed to be a narrow class of high-risk material: pornography, and discussions of suicide, self-harm and eating disorders. That sounds unobjectionable, until you consider how blunt algorithmic moderation is when it comes to pre-categorising content. The result is a crude system trying to impose binary age-based filters on material shot through with ingenuity, subtlety and context-specific rhetoric.
Some X users, for example, have complained that they were unable to view Goya’s Saturn Devouring His Son, read quotes from the Roman historian Livy on the general Aulus Cornelius Cossus or watch clips of Katie Lam MP discussing grooming gangs in the House of Commons without first submitting to ID checks to prove they’re over 18.
The suit is alive to this risk — and to the fact that age verification inevitably strips away anonymity. As 4chan and Kiwi Farms point out, their platforms allow users to speak anonymously or pseudonymously, which is sometimes desirable for political speech that’s legally protected in the US but increasingly suspect under Ofcom’s safety-by-design model. Small wonder, then, that the complaint goes on to suggest: “Ofcom’s conception of ‘keeping users safe’ is keeping them ‘safe’ from encountering points of view of which Ofcom disapproves.”
Ofcom’s enforcement options include not only financial penalties but also “business disruption orders” that carry more than a faint whiff of demonetisation: court-authorised measures that compel third parties — payment processors, ad servers, app stores, ISPs — to restrict access to a non-compliant service in the UK. Again, these powers can be deployed even where the platform itself has no UK-based assets or personnel.
Whether those measures are enforceable beyond the UK is another question, and one this case may soon test. Ofcom appears confident that it can continue treating US-based platforms as “publishers” of user-generated content. But Section 230 of the US Communications Decency Act 1996 says otherwise, granting “interactive computer services” like 4chan broad immunity from liability.
Beyond the legal technicalities lie the political realities of a botched country that’s long since gone in the teeth, attempting to dictate terms to a global superpower with — as 4Chan would no doubt be quick to point out — an extremely powerful air force, a navy, and 800 overseas military bases. 4Chan may not be everyone’s cup of tea, but we should probably get used to this type of transatlantic friction. The OSA’s extraterritorial scope and Ofcom’s quasi-evangelical won’t-someone-please-just-think-about-the-children zeal put it on a collision course with the kind of gun-toting, tobacco-spitting, hard-drinking, shoot-from-the-hip constitutionalism currently enjoying a revival on Capitol Hill.
