ON 12th MAY 2021, the Government finally published its long-awaited (draft) Online Safety Bill. The bill promises to introduce new protections for the public from hate, abuse, and other harmful content online. It proposes making OfCom the regulator responsible for the enforcement of new duties for search engines and social media platforms.
Much legislation affecting the media from the last decade bears the hallmarks of press lobbying, with newspaper publishers afforded special treatment – at the expense of the public. The Online Safety Bill is no different.
So how has the public been thrown under a bus to satisfy the interests of wealthy and powerful newspaper publishers this time? Let us count the ways.
Social media platforms will be regulated… unless they are run by newspapers.
The Government’s definition of social media platforms – and it appears to be a reasonable definition – are “user-to-user services”; platforms upon which a user will post a message, or some other form of content, which will then be encountered by another user (c. 2(1)). This happens when, for example, someone on Twitter writes a Tweet, and someone else on Twitter then reads it. That makes Twitter a social media platform, to be regulated by the new laws.
These kinds of exchanges happen across the internet, and newspaper comment sections are a clear example of a platform upon which such activity takes place. Users leave comments, and other users encounter those comments; sometimes interacting by replying or “upvoting”. These platforms fit naturally into the Government’s definition of social media platforms, and why wouldn’t they? They are hotbeds of user interactions and, indeed, many of the same harms the bill claims to seek to address.
But later the draft bill sets out a list of exemptions for content which will not be covered by the new regulatory requirements (c. 39(2)). Emails are not covered. Neither are texts, private calls or advertisements.
And neither are “comments and reviews on provider content”. This captures all comments under newspaper articles, which are considered, for the purposes of the bill, “provider content”.
In other words, newspaper comment sections are exempt. And the anti-Semitism, racism, conspiracy theories and all manner of other harmful information present on these platforms are, therefore, exempt too. The bill later clarifies (c. 39(5)) that comments upon comments on newspaper stories are also exempt.
This is a perverse and dangerous approach for several reasons. As referred to above, press comment sections are rife with disinformation, abuse, and the most extreme forms of racism – which the Government would continue to expose to the public. This approach is also inconsistent, and unlikely to solve the problem of online abuse, with one rule for Twitter-users and another for newspaper website comment section users – which are read by 7m+ people every day, and are harder to monitor (for comparison, only 15m Brits reportedly use Twitter).
It also blunts the Government’s apparent efforts to shut down extremist harmful content across the web. There are many examples of extremist websites where people freely post comments and engage with content published by the website-operator, and which therefore appear to be protected by the Government’s plans. The current proposals may clamp down on the fringe extremists of Twitter (and rightly so), but have nothing to say about the professionalised, organised and well-funded extremism of forums whose raison d’etre is the spread of racism, hate and other harms.
And, it appears, this loophole is put in place simply to keep the Government’s pals in the press happy. Certainly, no reasonable alternative explanation has been put forward.
So what are those regulatory requirements in the bill which are such a threat to the freedom of the national press?
Assuming newspapers would face the strongest form of regulation under the new regime (there is a tiered approach (see Sch. 4)), they would be required to assess the risk of users encountering illegal content, such as terrorism content (c.7), as well as other content which may be harmful (c.8) – and act to mitigate these risks (c.9-11). They would have a duty to uphold the importance of users’ rights to lawful freedom of expression (c.12), to protect content of democratic importance (c.13) and journalistic content (c.14), to offer a complaints process (c.15), and to keep records of how they are meeting these responsibilities (c.16).
Guidance on meeting these duties will be set out in the form of codes of practice (Ch.5).
On what basis could the Government, or the industry, possibly argue that these requirements are inappropriate? Perhaps they would claim comment sections are not at risk of hosting harmful content. But if harmful material does not exist on newspaper comment sections (it does), why would newspapers object to these new provisions? And where, here, in these nuanced and moderate proposals, is the threat to the freedom of the press which apparently warranted an exemption (and if there is a threat to freedom of expression, why should the public suffer it and not the newspaper industry)?
The reality, of course, is that there is no threat to journalism or free expression in these proposals. But newspapers know that their comment sections are vulnerable to racism, hate and extremism. And rather than comply with this modest regulation to protect the public and their readers, they would sooner protect their profit margins and the advertising revenue these lawless forums bring in.
The one argument for comment section-immunity put forward by the Government to date is that the press complaints-handler “IPSO” is regulating them already. But IPSO has proven itself incapable of effective regulation of editorial content, let alone social content. IPSO is controlled by the industry, takes 6 months+ to process complaints, and the strongest sanction it can award is an adjudication or correction. In summary, it is no better (and quite a lot worse in some ways) than the self-regulatory mechanisms of the tech social media platforms which already exist.
The whole point of this legislation is that platforms should be taking action to mitigate the risks of harmful content appearing and acting quickly to remove content when it appears. IPSO’s record on both of these areas is appalling, while the standards code it uses doesn’t even cover harm like racist abuse, where it is targeted at a group.
If the benchmark the Government has in mind for social media regulation is that platforms must publish smallprint adjudications six months after harm has been committed, and do nothing about abuse targeted at groups of people based on their ethnicity or religion, then that is simply not good enough. If it is anything more than that (and the draft bill proposes that it is), then IPSO is manifestly inadequate for the job.
Search engines required to protect the public from everything… except the press.
Things get better for millionaire newspaper owners as the bill goes on.
Social media platforms are not the only services covered by the new laws. Search engines will also be covered (“Providers of search services”, Ch. 3).
Their duties appear to be even less onerous than those of social media platforms, with illegal content covered by their new responsibilities but not harmful content (which is otherwise legal) – except where content may be harmful to children.
The definition of a search engine would not, in any case, apply to newspapers. As set out above the largest national newspapers are social media platforms (despite being effectively exempted from this status in the bill), but they are not search engines.
But the Government have gone to extraordinary lengths to prevent the press from being affected, even tangentially: a provision is put in place that specifically exempts any search results from a newspaper from being affected by the search engine’s new duties to protect the public (c. 18(2)).
The Government is saying that Google must take steps to address the public’s exposure, while using their services to illegal material, or material harmful to children, unless that material first appeared on the website of a newspaper. In which case, anything goes.
That is absurd: what possible justification could there be for waiving regulation of search results which are illegal or harmful to children purely based on the fact it was first published by “a newspaper”? It is extraordinary that the Government are prepared to put children’s safety at risk in this way – and for no good reason whatsoever.
And the problems get worse. Perhaps the Government had a hard time ensuring that every newspaper on the Minister’s speed dial got the exemption they wanted. Because the definition for a “newspaper” appears to be dangerously broad.
A newspaper is described in the bill (alongside broadcast media) as a “recognised news publisher” (c.40).
While the broadcast media can be defined as a broadcast licence-holder (plus the BBC etc), newspapers must meet a series of vague criteria to qualify (c.40(2)). These are that the organisation principally publishes news, is put together by a team overseen by an editor, operates as a business of some form, has a standards code, has a complaints process, has an office, has legal responsibility for what it publishes in the UK, and makes publicly available the names and addresses of the organisation and the person running it.
That might apply to any number of organisations. It may apply to a website set up for the purpose, for example, of spreading extremist conspiracy theories. Many harmful organisations which already qualify might exist online.
The only exception is for “news publishers” which are proscribed under the Terrorism Act. This leaves a huge range of harmful and dangerous publishers which might qualify.
Of course, if the Government were uncorrupted by its relationship with newspaper owners but was still (for some reason) desperate to exempt newspaper publishers, it could have said only newspapers which are independently regulated will benefit from the exemption.
The UK has a system for independent regulation, set out in the Royal Charter for the self-regulation of the press, which is cited in other statute. Publishers joining such a regulator demonstrate, in doing so, a genuine commitment to both press ethics and press freedom.
Why didn’t the Government just use membership of such a regulator as the criteria? Perhaps, because none of the big national titles have joined an independent regulator. Because they fear accountability. And, perhaps, because an exemption for the press which does not include the Government’s friends defeats their objective.
Everyone’s social media content will be regulated… except newspapers’.
Another press favour in this bill is the promise that, while every other citizen will find that what they post on the likes of Twitter and Facebook is effectively subject to new regulation (and rightly so), newspapers get a free pass. In other words, unregulated newspaper content will be immune from social media companies’ duties to protect the public (c. 39(2)(g); 39(8-10)).
If you are the editor of a newspaper (or, conceivably, an extremist publication, as set out above) you will, in effect, enjoy greater to access to freedom of speech on social media than if you are not.
In 2019, after the tragic mass shootings in mosques in New Zealand, video footage of the incident taken by the killer himself was circulated on social media websites and the website of the Daily Mail. That was exactly the killer’s intent: for the footage he recorded to travel around the world – possibly inspiring others with his hateful and violent message.
Twitter, Facebook and YouTube worked hard to have the video shutdown from their platforms – not hard enough, perhaps, and the new regime should have something to say about this. But with this exemption in place, Facebook, Twitter and YouTube would be required to remove such content posted by citizens, but not posted by the MailOnline. That’s a double-standard, it’s inconsistent, and needlessly exposes the public to harmful material.
This exemption also relies on the flimsy definition of news publisher previously referred to. So in fact, it may be possible for any extremist website which meets those weak “recognised news publisher” criteria to publish such a clip to social media and be protected in doing so.
Five years… for this?
This legislation was first promised five years ago. The Government have had the opportunity to put together something of real substance. In their desperation to please big newspaper publishers, they have delivered a mess.
The proposals turn a blind eye to online abuse on some of the most popular social media platforms (i.e. those operated by newspapers) and risk creating a double-standard between what citizens and the press can say online, while the whole regime is undermined by a poorly-drafted newspaper exemption which could greenlight extremist enterprises to do as they please without redress.
The Government has bent and twisted this regulatory regime so far around the interests of the press that it has broken. By going so far out of their way to accommodate the press, they have caused the whole proposed system to become unworkable.
They could tear it up and start again. Or, with a couple of simple amendments, take out the bizarre and unjustified press exemptions, and they may have a workable system. It will come down to whether the Government continue to side with the industry, or begin to stand up for the interests of the public.