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On Monday, as Andy Burnham walked into Downing Street to take his place as prime minister, Ofcom put out a short statement regarding its year-long battle with a suicide forum that campaigners say is linked to at least 130 deaths in the UK.
In May, the media and communications regulator fined the website’s US-based operator £950,000 for failing to protect British users from illegal pro-suicide content. But the operator refused to pay. Ofcom said on Monday that “all possible legal routes under the Act have now been exhausted”. The regulator will keep monitoring the site and pursue the unpaid fine, but further action would affect the site’s users in other countries, which is beyond British jurisdiction. It was the waving of a white flag. Ofcom was saying clearly: we don’t have the power to shut this harmful website down.
“Ofcom has reached the limit of the law,” said Adele Walton, a journalist and campaigner whose sister killed herself after engaging with the forum, “and in doing so it has told the whole country that the law cannot cope… Will our new prime minister be the one to act?”
The forum is not the only site defying the regulator. Notorious US messaging board 4chan, which attracted 2 million UK users in June and has been linked to the QAnon conspiracy movement, was fined £520,000 in March for failing to keep children away from pornography among other offences. Earlier this month the deadline to pay the fine passed. The website’s lawyer, Preston Byrne, told me the site will pay “when pigs fly”, and that Ofcom’s demands fell outside American jurisdiction. Ofcom has said it is trying to recover the money abroad.
“Any government that is serious about online safety – which Starmer’s government was not – has to urgently change Ofcom’s powers to make them work,” says Beeban Kidron, the crossbench peer who helped shape the Online Safety Act through parliament.
The suicide forum was the first site Ofcom investigated under the Act, and it has fought a war of attrition. Under pressure from Ofcom’s enforcement action, the operator geoblocked UK users in July last year, but initially left messaging on the website’s landing page that told users how to get around the ban. Another version of the site was also reachable under a different address.
4chan fought the regulator more openly. Last August, the website and another US forum, Kiwi Farms, sued Ofcom in a US federal court, arguing its demands violated the constitutional right to free speech and amounted to “egregious violations of Americans’ civil rights”. Ofcom has since asked the court to throw out the case for lack of jurisdiction.
Andy Burrows, chief executive of the Molly Rose Foundation, an online safety charity set up after the suicide of 14-year-old Molly Russell, said the regulator is “not trying all the powers at its disposal”. He also told me he knows of at least two UK deaths linked to the pro-suicide forum since Ofcom’s investigation began.
But it seems clear that this all goes beyond the regulator. “I have criticised Ofcom for being slow and overly process-driven, but these issues arise from the design of the enforcement regime rather than from the regulator itself,” Baroness Kidron says.
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The Online Safety Act exists on the assumption that a company wanting to operate in Britain would also want to obey British law. “That assumption holds for companies with a significant UK business or user base,” Baroness Kidron said. “It does not work for companies – particularly, though not exclusively, those trading in pornography or other harmful content – that can simply walk away from the UK market by geo-blocking the UK or operate without a formal HQ anywhere.”
Baroness Kidron wants the next government to rewrite the rules. Let ordinary people take platforms to court directly, rather than waiting on the regulator. Set up a dedicated online-safety commissioner, as Australia has, for people who at present have nowhere to turn. Make fines against the tech giants automatic and steep, so that stalling costs a company more than complying. And, above all, let senior executives face criminal charges when they recklessly fail to protect users, putting their own liberty, not just company money, at stake.
Otherwise the standoff risks becoming a culture war as much as a legal one. The Trump administration has frequently cast the Online Safety Act as an assault on American speech. Byrne, the 4chan lawyer, who has answered each of the regulator’s decisions with an AI-generated picture of a hamster, describes the whole affair as a “sovereignty fight”.
Ofcom’s new chair, Ian Cheshire, who arrives from the retailer Kingfisher and broadcaster Channel 4, told MPs that he would take on the “tech bros”. But Ofcom was built to regulate television, radio and telecommunications. The Online Safety Act gave it the far larger task of policing the internet as it reaches into Britain. Whether Ofcom is the right body for that task – or whether it has been given anything like the powers it needs – is now a question for Burnham’s government.
Photograph by Dan Kitwood/Getty Images