Insofar as a political organization like Ofcom is even capable of admitting defeat, it did so in the 4chan enforcement today.
In testimony before the Commons Digital, Culture, Media, and Sport Committee, Ofcom admitted it knows its jurisdiction ends where a foreign court’s jurisdiction begins.
“If foreign courts decide to… try and get in our way, there will be a point at which we have to accept that we won’t be able to recover that money.”
– Dame Melanie Dawes, Chief Executive, Ofcom
Guido Fawkes characterizes this admission thus: “Ofcom Admits Defeat.”
Guido is right. American courts have, by now, provided their preliminary view on the likelihood of Ofcom’s enforcement powers being successful in U.S. courts – the obiter dicta in 4chan v. Ofcom, the opinion in the case we filed against Ofcom in the federal District Court for the District of Columbia a little over a year ago.
Those dicta made it awfully clear that Ofcom can expect a very chilly reception in an American courtroom if it ever tries to enforce its fines in the United States. By way of reminder, the Court in 4chan said:
Because Plaintiffs represent that they have “no presence, infrastructure, or operations abroad,” Pls.’ Opp’n at 5; Compl. paras. 20, 24, that likely means enforcing any judgment in the United States. At that point, Plaintiffs could avail themselves of the protection of American courts.
Unless Ofcom is prepared to sail a British invasion fleet here and land ground troops, enforcement would indeed have to proceed through American courts. Which presents the following problem for Ofcom:
American courts generally decline to enforce foreign judgments that violate the United States Constitution, if indeed Plaintiffs are correct in their constitutional claims. See, e.g., Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C. 1995) (refusing to enforce a British judgment because it contravened the First Amendment and was therefore “repugnant to the public policies of the State of Maryland and the United States”)[.]
Suffice it to say, 4chan’s constitutional arguments are correct.
The Court then added, gratuitously and sua sponte as this was not an issue which was actually briefed by either party in the case,
Finally, at the risk of gilding the lily, to the extent any foreign judgment against Plaintiffs were penal in nature, Plaintiffs may find a receptive audience before American courts regardless of the judgment’s compatibility with the United States Constitution. That is because American courts are not necessarily required to enforce foreign penal judgments[.]
Thus ends that case, for all practical purposes. It would be a gift – to 4chan – if Ofcom decided to show up in an American court after this.
What will happen next is that Ofcom is going to go back to Parliament to ask for the authority to obtain “interim business disruption measures” – i.e., more or less unilateral censorship powers to block foreign websites in the UK before starting an enforcement process, rather than after. These powers were explicitly rejected by Parliament the last time around and have even now been repudiated by Nadine Dorries, the former MP who introduced the Bill, having seen what a mess Ofcom has made of it. These powers will also be easily defeated through the use of a VPN.
They may also seek to block 4chan. My client has already priced that in and it is a price worth paying, as this will constitute the UK censoring its own people and ISPs, rather than censoring my client. The UK has the sovereign right to do that. My client has the constitutional right to decline to assist the UK in that terrible work.
The UK thus continues its authoritarian backsliding. Sorting out their own country is, ultimately, a matter for the British, and opposing the grant of new powers for Ofcom – an agency manifestly unable to wield power very well, seeing as they were foiled by a handful of American solos working for free – on domestic policy grounds is a task for the growing UK free speech movement to take up, with urgency.
I wish them luck in that important work. In the meantime, we Americans have plenty more work to do on this side of the pond to protect our border and prevent the British, Australian, Russian, and other foreign censorship regimes from crossing it.
Ofcom has targeted 200-ish American platforms with censorship orders; only four of those sites, all of which are my clients, refused, and only one is 4chan. The First Amendment remains very much under direct, sustained assault from foreign censorship agencies. We have a long way to go until our fight with the foreign censors is done.