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The UK government is threatening Elon Musk’s X with the nuclear option under the country’s online safety laws: a ban. The social media platform is under pressure from ministers after it allowed the Grok AI tool, which is integrated within the app, to generate indecent images of unsuspecting women and children.
The government has said it will support the media regulator Ofcom, which has launched an investigation into X, if it decides to push ahead with a ban. But is such a move likely?
Can X be banned under UK law?
The Online Safety Act (OSA) contains a provision that allows Ofcom to seek a court order imposing “business disruption measures” on a website or app that is in breach of the legislation. These measures are in effect a block on the recipient operating in the UK. This is because they include ordering an internet service provider to block access to a platform or requiring payment providers or advertisers to withdraw their services from that business. These measures are a de facto ban on the platform that is on the receiving end of them.
Ofcom is focusing on whether X has breached the act in the following ways: failing to assess the risk of people seeing illegal content on the platform; not taking appropriate steps to prevent users from viewing illegal content such as intimate image abuse and child sexual abuse material; not taking down illegal material quickly; not protecting users from breaches of privacy law; failing to assess the risk X may pose to children; and not using effective age checking for pornography.
Has Ofcom indicated it will ban X if it is found in breach of the OSA?
In its statement confirming an investigation, Ofcom was clear that such a scenario would be an option of last resort if it finds X in breach, saying such a move was reserved for “serious cases of ongoing non-compliance”.
Its words were less gung-ho than the government’s because if the watchdog doesn’t follow procedure under the OSA correctly, it faces the threat of X seeking a judicial review – a court process where a judge rules whether a decision made by a public body was lawful. Banning X because the government of the day says it should be banned is not a legal basis for pulling the plug.
Ofcom said it must follow due process as part of its investigation. “As the UK’s independent online safety enforcement agency, it’s important we make sure our investigations are legally robust and fairly decided,” it said.
Ofcom’s own guidance also makes clear this is not workaday punishment under the act and such measures are not a “matter of routine”. “We acknowledge that business disruption measures are a significant regulatory intervention and therefore we are unlikely to find it appropriate to apply to the courts for business disruption measures as a matter of routine where we have identified failures, or likely failures, to comply with enforceable requirements,” Ofcom said.
The regulator can force companies to take specific steps to comply with the OSA or to remedy harms caused by breaching the legislation. It can also impose fines of £18m or 10% of worldwide revenue, whichever is larger. X’s revenues are not public but according to estimates from the market research company eMarketer it was expected to make $2.3bn in advertising turnover last year, which would equate to a fine of more than $200m.
And of course Ofcom has to decide whether the OSA has been breached in the first place. It will look at evidence of whether the law has been broken. If it decides there has been a breach, it will issue a provisional decision to the company, which will then be given an opportunity to respond before Ofcom makes its final decision.
How long will the investigation take?
This is Ofcom’s most consequential investigation yet so it will not want to make mistakes in haste. But it has launched a formal inquiry very quickly, indicating an awareness of the public and political concern about the deluge of AI-made intimate images on X since Christmas.
Lorna Woods, a professor of internet law at the University of Essex, said Ofcom could bring forward business disruption measures quickly. “At one end of the scale you have a typical Ofcom investigation, which could take six to nine months. But at the other end Ofcom could take an expedited approach and decide there has been a breach quite quickly – and can seek to implement business disruption measures rapidly,” she said.
Ofcom would have to decide that such is the seriousness of the breach, and X’s failure to remedy it, that it has to take the option of last resort.
