The Bypass Strategy: platforms, the Online Safety Act and future of online speech

In this paper, we argue that the Online Safety Act 2023 and Ofcom’s guidance incentivise online platforms to adopt a ‘Bypass Strategy’, where they create and enforce content moderation rules that are broader than existing criminal law to bypass judgements of illegal content. This strategy aims to avoid complex legal interpretations of criminal intent and potential defences but would be unfeasible considering the volume of content on social media platforms and incompatible with automated moderation tools. We argue, however, that the Bypass Strategy, driven by the Act’s focus on illegal content and by the lack of clarity in Ofcom’s proposed guidance, poses a significant threat to users’ freedom of expression and incentivises overremoval of legitimate speech. We offer insights that could help Ofcom to improve its guidance on how platforms should interpret such duties on moderating content and might mitigate this risk within the constraints of the Act.