Daniel Lü

On March 17, 2026, the First-tier Tribunal (General Regulatory Chamber) dismissed an appeal by David Babbs, lead consultant for Clean Up the Internet, who had sought records of Ofcom’s meetings with Meta, X/Twitter, Google/YouTube, and ByteDance/TikTok about the Illegal Content Codes of Practice under the Online Safety Act 2023 (OSA). The Tribunal upheld Ofcom’s refusal to disclose any of those records, relying on section 44 of the Freedom of Information Act 2000 (FOIA) as applied through section 393 of the Communications Act 2003 (the 2003 Act). The decision is defensible as a matter of pure textualism. It is nonetheless deeply troubling. The Tribunal’s reasoning applies a 2003 provision to a regulatory context that Parliament in 2003 could not have foreseen and did not design that provision to address. When the OSA 2023 extended s.393 to cover Ofcom’s new online safety powers, it locked in that provision as a permanent shield over Ofcom’s engagement with the largest and most powerful private actors in the world, with no public interest override and no route to challenge within the Tribunal system. That outcome was not anticipated by the Blair government, is not justifiable as a matter of regulatory principle, and should be corrected by Parliament either by repealing or fundamentally reforming s.393.

When a foreign regulatory body, acting through a legally binding enforcement decision, compels an American platform to alter its editorial practices in a way that would be unconstitutional if demanded by a domestic agency, United States federal courts are presently unable to hear the platform’s challenge. The Foreign Sovereign Immunities Act of 1976 (FSIA) provides presumptive immunity to foreign states and their agencies, and no existing exception reaches regulatory conduct that deliberately targets American speech, American platforms, and American audiences. This Article argues for a targeted amendment to the FSIA that would create a new exception for foreign regulatory bodies that issue content‑moderation orders with documented extraterritorial effect on constitutionally protected American expression. The argument proceeds by structural analogy to the terrorism exception at 28 U.S.C. section 1605A, which Congress enacted to strip immunity from state sponsors of terrorism on the theory that a foreign sovereign forfeits judicial protection when it turns its sovereign machinery against American persons in ways that violate fundamental norms. The same forfeiture logic applies to foreign regulators who deliberately target constitutionally protected American speech. The Article takes the United Kingdom’s Office of Communications (Ofcom) as its primary illustration, examines the FSIA’s existing exceptions to show why none applies to foreign regulatory censorship, develops the constitutional stakes under recent First Amendment doctrine governing editorial compulsion, and proposes a version of the Guaranteeing Rights Against Novel International Tyranny and Extortion (GRANITE) Act as a properly calibrated statutory remedy.

March 5, 2026. Ofcom has confirmed it is referring 4chan to a final enforcement decision under the Online Safety Act. The target is a Delaware company that runs an entirely anonymous imageboard from the United States, with no offices, staff, servers, or assets in Britain. The demand: install age-verification systems and content filters so that British children cannot access the site or face daily fines levied from London on an American platform. This case is not an outlier. It is the clearest real-world demonstration of what the new generation of “online safety” laws requires: private companies must build automated filters that decide, in advance, which legal speech is too harmful for minors to see. The question the regulators never quite answer is simple: what exactly does the filter catch?

Suppose we have a game with three players, each secretly choosing a specific number from a countably infinite set of natural numbers. In the first phase, each player tries to guess another player’s number: α guesses β, β guesses γ, and γ guesses α. When a player’s number is correctly guessed, they are eliminated, and the remaining players advance to the second phase. The game is then played under the rules of misère: the eliminator in the first round starts second, and the first player whose number is correctly guessed wins.