A battle over the United Kingdom's Online Safety Act (OSA) heated up Monday as UK regulator Ofcom fined the notorious image-hosting board 4chan about $26,000 for failing to provide a risk assessment detailing the potential harms of illegal content hosted on its forum.
In a press release provided to Ars, Ofcom said 4chan refused to respond to two requests for information that the regulator considered "routine." The first asked for the risk assessment and the second for 4chan's "qualifying worldwide revenue."
4chan was anticipating the Monday fine, noting in a lawsuit—which was jointly filed with the online trolling forum Kiwi Farms in August and seeks to permanently enjoin Ofcom from enforcing OSA—that Ofcom had made it clear that because 4chan ignored Ofcom's emails, the fine was coming.
Now, 4chan has 60 days to hand over the information Ofcom requested while risking incurring about $130 in additional daily penalties.
If 4chan continues to ignore Ofcom, the forum could be blocked in the UK. And 4chan could face even bigger fines totaling about $23 million or 10 percent of 4chan’s worldwide turnover, whichever is higher. 4chan also faces potential arrest and/or "imprisonment for a term of up to two years," the lawsuit said.
It seems likely that 4chan won't engage with Ofcom, arguing in the lawsuit that Ofcom is seeking to "control" the Internet, which is "predominantly an American innovation." A lawyer for 4chan, Ronald Coleman, previously told the BBC that Ofcom's enforcement of OSA threatened "the free speech rights of every American."
UK’s “lifeline” is unconstitutional, 4chan says
Specifically, 4chan opposes the OSA's risk assessment requirement. Forecasting the risk posed if users encounter various forms of disfavored content would allow the UK to overstep and censor "speech and content published and distributed in the United States and which is protected by the Free Speech clause of the First Amendment of the US Constitution," 4chan and Kiwi Farms argued.
The risk assessments also seem to unconstitutionally compel speech, they argued, forcing them to share information and "potentially incriminate themselves on demand." That conflicts with 4chan and Kiwi Farms' Fourth Amendment rights, as well as "the right against self-incrimination and the due process clause of the Fifth Amendment of the US Constitution," the suit says.
Additionally, "the First Amendment protects Plaintiffs’ right to permit anonymous use of their platforms," 4chan and Kiwi Farms argued, opposing Ofcom's requirements to verify ages of users. (This may be their weakest argument as the US increasingly moves to embrace age gates.)
4chan is hoping a US district court will intervene and ban enforcement of the OSA, arguing that the US must act now to protect all US companies. Failing to act now could be a slippery slope, as the UK is supposedly targeting "the most well-known, but small and, financially speaking, defenseless platforms" in the US before mounting attacks to censor "larger American companies," 4chan and Kiwi Farms argued.
Ofcom has until November 25 to respond to the lawsuit and has maintained that the OSA is not a censorship law.
On Monday, Britain’s technology secretary, Liz Kendall, called OSA a "lifeline" meant to protect people across the UK "from the darkest corners of the Internet," the Record reported.
"Services can no longer ignore illegal content, like encouraging self-harm or suicide, circulating online which can devastate young lives and leaves families shattered," Kendall said. "This fine is a clear warning to those who fail to remove illegal content or protect children from harmful material."
Whether 4chan and Kiwi Farms can win their fight to create a carveout in the OSA for American companies remains unclear, but the Federal Trade Commission agrees that the UK law is an overreach. In August, FTC Chair Andrew Ferguson warned US tech companies against complying with the OSA, claiming that censoring Americans to comply with UK law is a violation of the FTC Act, the Record reported.
"American consumers do not reasonably expect to be censored to appease a foreign power and may be deceived by such actions," Ferguson told tech executives in a letter.
Another lawyer backing 4chan, Preston Byrne, seemed to echo Ferguson, telling the BBC, "American citizens do not surrender our constitutional rights just because Ofcom sends us an e-mail."
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