Graham Smith's blog on law, IT, the internet and online media
A thought experiment: suppose I wanted to transform the European Convention on Human Rights into a vehicle for state regulation of speech, how would I go about it? At first sight it should not be possible. Article 10 guarantees everyone the right of freedom of expression. Granted, Article 10 is not an absolute right: a state can legitimately interfere with someone’s Article 10 right if it first…
“A computer can never be held accountable Therefore a computer must never make a management decision” So went a famous internal IBM training manual in 1979. As a piece of management advice, it is impeccable. It would be foolish indeed to entrust a highly consequential decision entirely to a computer. And yes, in management terms a computer cannot be held accountable. It can’t be hauled up before a…
A few months ago I wrote about the ambitiously extraterritorial reach of the Law Commission’s proposed reform of the England and Wales law on strict liability contempt (or contempt by publication, as it would be re-named). I threatened to write about the platform liability aspects of the proposals at some future date. Here it is. It’s complicated. In summary, the most significant proposed change…
An internet jurisdiction retrospective The problem Since the dawn of the internet we have wrestled with the question of how best to reconcile national laws with the inherently cross-border medium of the internet. We are still at it, with resolution seemingly as far away as ever. The periodic eruptions of controversy when some nation state decides to assert its local laws in a way that others view…
Coined in 1740, ‘Britannia! rule the waves’ was a dawn-of-Empire exhortation to assert British naval power worldwide. Today, the Law Commission exhorts Britannia (or England and Wales, to be exact) to rule the internet worldwide: “ In our view, contempt laws should apply to all material that is accessible in England and Wales. ” ( Part 1 Report on Liability for Contempt of Court , November 2025…
The Online Safety Act Network (OSAN) recently published a 10-point plan to amend the Online Safety Act. The plan includes: “Insert a definition of safety by design into the Act to make clear to Ofcom and services what Parliament intended”. From a technical drafting perspective clarification might be welcome. The Act says that it “seeks to secure that regulated services are safe by design”. That…
The transatlantic free speech wars continue to rage. The US House Judiciary Committee was in action again last week , taking aim at the European Commission (who rejected its latest interim report as ‘ pure nonsense ’) and provoking EU civil society groups in the process. The US administration, for its part, fired off its most recent salvo shortly before Christmas last year, when US Secretary of…
A Parliamentary petition calling for repeal of the Online Safety Act has reached over 550,000 signatures and is due to be debated on 15 December. The demand for abolition is eye-catching, but inevitably lacks nuance. In any case it is tolerably clear that the petition is aimed not at the entire Act, but at its core: the set of regulatory safety duties imposed on platforms and search engines. Even…
The Information Commissioner’s Office has recently published its submission to Ofcom’s consultation on additional safety measures under the Online Safety Act. The consultation is the second instalment of Ofcom’s iterative approach to writing Codes of Practice for user-to-user and search service providers. The first round culminated in Codes of Practice that came into force in March 2025 (illegal…
At the end of May Ofcom circulated a set of FAQs to the attendees of a three day Online Safety Act Explained event that it ran in February 2025. The FAQs address a series of questions for which time did not permit of an answer at the event. Sadly (since these points are of interest to a wider public) Ofcom has not published them on its website. Perhaps it may yet do so, but in the meantime here is…
A blogpost headed “The Online Safety Act: A First Amendment for the UK” lacks nothing in shock value. The one thing that we might have thought supporters and critics alike were agreed upon is that the Act, whether for good or ill, does not – and is certainly not intended to – enact the US First Amendment. If anything, it is seen as an antidote to US free speech absolutism. We might even be tempted…
The outcome of Google’s complaint to the European Court of Human Rights in Google v Russia cannot be considered a surprise. The facts were so resoundingly against Russia that anything but a finding in Google’s favour would have had everyone reaching for the smelling salts. Russia, following its resignation from the Council of Europe, chose not to participate in the case. We therefore have to be…
Ofcom has published its long-expected consultation on additional measures that it recommends U2U platforms and search engines should implement to fulfil their duties under the Online Safety Act. The focus, this time, is almost entirely on proactive technology: automated systems intended to detect particular kinds of illegal content and content harmful to children, with a view to blocking or…
The recent decision of the Australian Administrative Review Tribunal in X Corp and Elston v eSafety Commissioner illustrates the complexities that can arise when the law tasks a regulator or platform to adjudge an online post. The decision grapples with a dilemma that is familiar, albeit under a very different legislative regime, from the UK’s Online Safety Act 2023. It is also features in the…
As part of a broader campaign targeting knife crime the Home Office has published its consultation response on a new procedure for authorised police officers to issue takedown notices to online platforms (also now to include search engines). These would require 48-hour removal of specified illegal weapons content items, on pain of civil penalty sanctions. The government has also tabled…
This is my submission to the Ministry of Justice Call for Evidence on computer evidence in criminal proceedings. Some takeaways from 24 pages of rather dense legal analysis: The evidential presumption of reliability (properly so called) is a different animal from informal assumptions about the reliability of computers. They are related, and the latter may influence attitudes to e.g. the threshold…
Policymakers sometimes comfort themselves that if no-one is completely satisfied, they have probably got it about right. On that basis, Ofcom’s implementation of the Online Safety Act’s illegality duties must be near-perfection: the Secretary of State (DSIT) administering a sharp nudge with his draft Statement of Strategic Priorities , while simultaneously under fire for accepting Ofcom’s advice…
Proponents of a duty of care for online platforms have long dwelt on the theme of safety by design. It has come to the fore again recently with the government’s publication of a draft Statement of Strategic Priorities (SSP) for Ofcom under the Online Safety Act. Safety by Design is named as one of five key areas. Ofcom is required to have regard to the final version of the SSP in carrying out its…
This is sixth and final instalment in a series of reflections on Ofcom’s Illegal Harms consultation under the Online Safety Act 2023 . Ofcom is due to publish the final version of its Illegal Harms Codes of Practice and Guidance in December. The interaction between data protection law and the Online Safety Act’s illegal content duties attracted almost no attention during the passage of the Bill…
Assiduous readers of this blog will know of my fondness for working through concrete examples to illustrate how, once they come into force (now likely to be in Spring next year), platform illegal content duties under the UK Online Safety Act 2023 (OSA) might pan out in practice. A recurring theme has been that making judgements about the legality or illegality of user content, as platforms are…
This is Part 5 of a series of reflections on Ofcom’s Illegal Harms Consultation under the Online Safety Act (OSA). Ofcom’s consultation (which closed in February 2024) ran to a mammoth 1728 pages, plus an additional 77 pages in its recent further consultation on torture and animal cruelty. The results of its consultation are expected in December. For readers not fully conversant with the OSA, the…
Part 4 of a short series of reflections on Ofcom’s Illegal Harms consultation under the Online Safety Act 2023 (OSA). A significant proportion of the consultation’s discussion of Ofcom's proposed Code of Practice recommendations — especially those involving proactive monitoring and detection of illegal content — is taken up with enumerating and evaluating safeguards to accompany each recommended…
Part 3 of a short series of reflections on Ofcom’s Illegal Harms consultation under the Online Safety Act 2023 (OSA). This post analyses the illegality duties created by the OSA. That is not as simple as one might hope. The intrepid reader has to hack their way through a thicket of separately defined, subtly differing, duties. Meanwhile they must try to cope with a proliferation of competing…
This is Part 2 of a short series of reflections on Ofcom's Illegal Harms Consultation under the Online Safety Act 2023 (OSA). Ofcom are currently in the process of considering submissions following closure of the consultation in February 2o24. The very title of the Ofcom consultation — Illegal Harms — prompts questions about the illegality duties. Are they about illegal content? Are they about…
Shortly after the Online Safety Act (OSA) gained Royal Assent in October 2023, Ofcom issued a 1728 page consultation on Illegal Harms . This was the first step in Ofcom's lengthy journey towards implementing and giving concrete substance to the various duties that the Act will place on user-to-user (U2U) service providers and search engines. The output of the Illegal Harms process (one of several…
As legal and policy topics go, cross-border internet jurisdiction is evocative of a remote but restless volcano: smouldering away mostly unnoticed by public and lawyers alike, only to burst spectacularly into life at odd intervals. The latest eruption has occurred in Australia, where last month the Australian eSafety Commissioner launched legal proceedings for an injunction against X Corp…