Ricki-Lee Gerbrandt

email: r.gerbrandt@ucl.ac.uk

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 balance competing fundamental rights? And will Ofcom’s regulation ensure that such balance works? Although regulation is still in its early stages, this is the first scholarly article that tackles these complex issues through a human rights lens. First, it argues that the OSA implements a quasi-criminal law framework that will not likely meet the state’s positive obligations to protect citizens from online harm. 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 decree 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; to do so, Ofcom has focused on regulating procedural protections for freedom of expression, but has largely avoided regulating substantive protections for freedom of expression. This article provides a framework that 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 key recommendations on how Ofcom can improve its regulation and pinpoints areas where the OSA may require amendment.