Long before the Draft Online Safety Bill was published in May the press had been lobbying strenuously to ensure that the online versions of newspapers would not fall within its scope in any way whatsoever.
Their efforts cast a revealing light on the immense power over government wielded by the News Media Association (NMA) and the Society of Editors (SoE) as well as by the national papers which their members publish, and their campaign is thus worth examining in some detail.
The Online Harms White Paper
Press fears about some the possible ramifications of the proposed legislation had been raised by the publication in April 2019 of the Online Harms White Paper, which was the progenitor of the Draft Online Safety Bill. This argued that
“given the prevalence of illegal and harmful content online, and the level of public concern about online harms, not just in the UK but worldwide, we believe that the digital economy urgently needs a new regulatory framework to improve our citizens’ safety online”.
The government’s target is
“content or activity that harms individual users, particularly children, or threatens our way of life in the UK, either by undermining national security, or by undermining our shared rights, responsibilities and opportunities to foster integration”.
The new regulatory framework
“will set clear standards to help companies ensure safety of users while protecting freedom of expression, especially in the context of harmful content or activity that may not cross the criminal threshold but can be particularly damaging to children or other vulnerable users”.
To this end
“the government will establish a new statutory duty of care to make companies take more responsibility for the safety of their users and tackle harm caused by content or activity on their services. Compliance with this duty of care will be overseen and enforced by an independent regulator”, namely Ofcom.
Having campaigned against the online world ever since the World Wide Web came into being in the early 1990s, one might have expected papers such as the Mail and Telegraph to welcome this measure with open arms. Indeed, the origins of the online “duty of care” idea lie partly in a campaign by the Telegraph, and it was decades of anti-online stories in papers such as these which paved the way for this measure in the first place.
As John Naughton noted in the Observer as far back as 9 June 1996:
“To judge from British coverage of the subject, there are basically only three internet stories: ‘Cyberporn invades Britain’, ‘Police crack Internet sex pervert ring’ and ‘Net addicts lead sad virtual lives’”.
In this respect nothing has changed since – except that newspapers have established online editions. And there’s the rub.
Defensively scanning the White Paper for the slightest hint of a threat to their own self-regulatory autonomy, the press espied the following:
We propose that the regulatory framework should apply to companies that allow users to share or discover user-generated content or interact with each other online. These services are offered by a very wide range of companies of all sizes, including social media platforms, file hosting sites, public discussion forums, messaging services and search engines.
And this, they realised, could bring comments under online versions of newspaper articles within the ambit of the legislation.
The newspaper owners were also perturbed by the White Paper’s mention of fake news and disinformation. For example:
Inaccurate information, regardless of intent, can be harmful – for example the spread of inaccurate anti-vaccination messaging online poses a risk to public health. The government is particularly worried about disinformation (information which is created or disseminated with the deliberate intent to mislead; this could be to cause harm, or for personal, political or financial gain).
This would clearly have struck a nerve, as the NMA had already worked itself into a state of righteous indignation over the 2017 Digital, Culture, Media & Sport (DCMS) select committee inquiry into fake news, even though the DCMS had carefully constructed the terms of its enquiry precisely so as to exclude consideration of the national press.
Thus in its response to the inquiry, the NMA took the opportunity to mount one of its characteristically apoplectic attacks on those who have the temerity to criticise its members, complaining bitterly that:
The term ‘fake news is being hijacked by those hostile to the press. The debate over fake news is degenerating rapidly in ways that are fraught with danger, with the term being used to attack real news, typically with the aim of bullying the press, silencing dissent and shutting down debate.
Indeed, in its view:
Branding real news as ‘fake news’ is, right now, the more acute threat to democracy. Such calls are being used as a pretext for clamping down on press freedom, which would inhibit the ability of the press to perform its vital democratic task of keeping citizens informed and holding power to account.
Which might be a valid argument if the UK national press actually performed that task.
Inevitably, IPSO itself gave evidence to the fake news Inquiry, in which it argued that what “provides the basis for distinguishing journalistic material from fake news” is “oversight” and “demonstrable accountability” – in this instance, the good offices of IPSO itself. This is entirely predictable, but what is more interesting about IPSO’s evidence is its neuralgic reaction to the inquiry’s mention of “biased but legitimate commentary”. This it immediately spotted as containing a possible threat to the kind of journalism in which sections of the British national press specialise, journalism which has long been the subject of fierce criticism but which IPSO does its absolute utmost to protect. Thus it notes that:
The consultation suggests that bias, and other concerns relating to objectivity and the equal treatment of views, might be relevant factors in the identification of fake news. What may pejoratively be described as ‘biased’ by a critic might otherwise be positively described as campaigning journalism by a reader in agreement. The Editors’ Code of Practice, which is the basis for IPSO’s regulation of the majority of the newspaper and magazine industry, is clear that publications are free to editorialise and campaign; this only becomes problematic when it breaks down the boundaries between factual reporting, commentary and speculation, resulting in distortion.
However, the first clause of the Editors’ Code, which states that “the Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact”, is trampled underfoot daily and with complete impunity by significant sections of the national press.
Taking a swipe at the critics of the papers which it is supposed to regulate, IPSO claimed that “the production of fake news, along with the mislabelling of legitimate content as fake news, undermines trust in traditional journalism”. Ignoring the inconvenient fact that reputable study after study has shown that the British trust their papers far less than do the citizens of any other European country, IPSO warned the committee against trying to develop a definition of fake news that would include
“journalistic content that is simply controversial or contentious. Concepts such as bias, objectivity and balance, for example, should not form part of the definition of fake news”.
Thus the newspaper industry was already sensitised to possible new regulatory threats even before the online harms/safety measures were suggested. Part 2 of the post will discuss what happened next.
Julian Petley is Professor of Journalism in the College of Business, Arts and Social Sciences, Brunel University London. He is a member of the editorial board of the British Journalism Review and the principal editor of the Journal of British Cinema and Television.