The Bypass Strategy: Platforms, the Online Safety Act, and Future of Online Speech

23 Pages Posted: 9 May 2024

See all articles by Ellen Judson

Ellen Judson

affiliation not provided to SSRN

Beatriz Kira

University of Sussex - School of Law, Politics and Sociology; University College London - Department of Political Science

Jeffrey W. Howard

University College London - Department of Political Science

Date Written: May 9, 2024

Abstract

In this paper we argue that the Online Safety Act 2023 and Ofcom’s guidance incentivise online platforms to adopt a “bypass strategy”, where they create and enforce content moderation rules that are broader than existing criminal law to bypass judgements of illegal content. This strategy aims to avoid complex legal interpretations of criminal intent and potential defences that are typical of criminal adjudication but would be unfeasible considering the volume of content on social media platforms and incompatible with the use of automated moderation tools. We argue, however, that the bypass strategy, driven by the Act’s focus on illegal content and by the lack of clarity in Ofcom’s proposed guidance, poses a significant threat to users’ freedom of expression and incentivises overremoval of legitimate speech. We offer insights that could help Ofcom to improve its guidance on how platforms should interpret such duties on moderating content and might mitigate this risk within the constraints of the Act.

Keywords: Online Safety Act, social media, freedom of expression, Ofcom

Suggested Citation

Judson, Ellen and Kira, Beatriz and Howard, Jeffrey W., The Bypass Strategy: Platforms, the Online Safety Act, and Future of Online Speech (May 9, 2024). Available at SSRN: https://ssrn.com/abstract=4822405 or http://dx.doi.org/10.2139/ssrn.4822405

Ellen Judson

affiliation not provided to SSRN

Beatriz Kira (Contact Author)

University of Sussex - School of Law, Politics and Sociology ( email )

Freeman Building G41 , Falmer
Falmer
Brighton, BN1 9QE
United Kingdom

University College London - Department of Political Science ( email )

29/30 Tavistock Square
London, WC1H 9QU
United Kingdom

Jeffrey W. Howard

University College London - Department of Political Science ( email )

29/30 Tavistock Square
London, WC1H 9QU
United Kingdom

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