Toward A Safer Internet: Laws, Limits And The Fight To Enforce Them

A global trend is emerging — governments are doing more to proactively implement online safety regimes. The United Kingdom's Online Safety Act (OSA) has led by example, with the European Union's Digital Services Act (DSA) and New York's Stop Hiding Hate Act echoing that momentum, each using different tools with a shared ambition to protect users online. However, the real test is extraterritorial — can duties imposed on digital platforms translate across borders into tangible outcomes?

The United Kingdom's Approach — The Online Safety Act (OSA)

The OSA applies to online services with user-to-user functionalities or search engine functionalities that have "links to the UK."It sets out a framework of duties to protect users from illegal harms and protect children from harmful content through detailing risk assessments, safety measures, and adequate complaints and reporting tools. Additional duties are also imposed on "categorised services"with (depending on the criteria) more than 34 million or 7 million monthly users in the United Kingdom. It is estimated that over 100,000 sites are in scope of the OSA, and noncompliance may result in fines of up to £18 million or 10 percent of global turnover, as well as access restrictions and criminal sanctions.

The European Union's Framework — The Digital Services Act (DSA)

The DSA applies across the European Union to a tiered set of intermediary service providers — including hosting providers, marketplaces, online platforms and designated, very large online platforms/services that have more than 45 million users per month in the European Union annually. The DSA imposes core safe-harbour principles while requiring due diligence, transparency reporting, risk assessments and mitigation measures proportionate to the service's size, reach and risk profile. The DSA also focuses on the use of reporting tools and trusted community flaggers to identify and remove harmful content. Breaches under the DSA may result in fines of 6 percent of global turnover.

New York's Strategy — Stop Hiding Hate Act

The New York Stop Hiding Hate Act governs platforms operating in New York with more than $100 million in gross annual revenue. It requires social media platforms to outline their content moderation policies and provide users with avenues to report violations of the policy. Content moderation is the key theme across the Western hemisphere to protect users online. Failure to comply with requirements in New York can result in penalties of up to $15,000 per violation per day.

Accountability Meets Geography: Practicalities of Enforcement

There is a clear global movement to regulate online platforms for the protection of users and place larger online platforms under greater scrutiny, but implementation across borders is difficult and often contested. The Office of Communications (Ofcom), the United Kingdom's regulator, is currently in dispute with 4chan, an internet forum provider, over compliance with the OSA — but what jurisdiction does Ofcom actually have over a US-based company with no presence in the United Kingdom? This case illustrates the uncertainties of the OSA's extraterritorial scope beyond service restrictions in the United Kingdom and criminal penalties.

Geo-blocking UK users from access may not be a fool-proof method, as recent developments indicate that geo-blocking alone may fall short of statutory duties when services remain accessible through circumvention tools (such as the use of VPNs) and mirror sites. The stakes are high; success of these global safety regimes will need them to reach beyond borders and meaningfully shape the global internet for the protection of users.

* Amelie Hitchings, a trainee in our London office, contributed to this article.