Content Moderation, the UK Online Safety Act, and the European Convention on Human Rights

The Online Safety Act 2023 (OSA) aims to protect citizens from online harms while also upholding freedom of expression. The task of this article is to confront the deep tension that those dual goals provoke through the lens of the European Convention on Human Rights (ECHR) by asking: to what extent does the OSA protect fundamental rights and to what extent might it infringe on freedom of expression? And will Ofcom's regulation of platforms, based on the authority delegated to it in the OSA, ensure that the right balance between competing fundamental rights is struck? First, it argues that the OSA implements a "quasi-criminal law" framework that is unlikely to meet the state's positive obligations to protect citizens from online harms. As a "public authority" Ofcom is thus placed in considerable difficulty as it must ensure that its regulation is compatible with the ECHR, but lacks a clear legislative mandate to enable it to do so. Second, Ofcom must ensure that its regulation is compatible with the state's negative obligation to not incompatibly interfere with freedom of expression; however, Ofcom has focused on outlining procedural protections for freedom of expression but has largely avoided outlining substantive protections. This article ultimately provides a framework for evaluating the OSA's ECHR compatibility. That framework concerns: (i) the underlying criminal law, (ii) Ofcom's interpretation of "illegal content" and "risks of harm", (iii) collateral censorship, (iv) platform penalties to users and accounts, (v) Ofcom's interpretation of error rates, and (vi) platform design, including: functionalities, proactive technologies, and content recommender systems. It identifies the key dilemmas that Ofcom faces in protecting the fundamental rights of citizens to the extent the OSA demands while also ensuring that freedom of expression is not unjustifiably infringed. It then makes recommendations on how Ofcom can improve its regulation and pinpoints areas where the OSA may require amendment.