A draft of the White Paper was leaked to the Mail on Sunday, 24 March 2019, which noted specifically that “the new rules will target any site that allows users to share or discover user-generated content or interact with each other online” and argued that this would mean that newspaper websites would be forced to sign up to the regulator.
It also reported that Theresa May had been warned that the measures which it proposed amounted to “press regulation by the back door” and that “Ministers have been warned the new rules risk dragging journalists and the public into a chilling regulatory framework”. Press Gazette, 26 March 2019, reported that SoE executive director Ian Murray had written to Culture Secretary Jeremy Wright MP raising these concerns, as well as the fake news scare:
While no one would argue that some measures do need to be taken to protect against serious threats from online harm, there are concerns such regulation if too broad would restrict areas that were never intended to be regulated. An attempt to crack down on disinformation – so-called fake news – would be a case in point. Who will decide what is fake news? While we appreciate that the press and media as a whole are not the target of any new regulation in this area, there is a great deal of experience of those who wish to restrict the freedom of the media using laws never intended for that end.
Wright responded on 10 April, and his reply was also sent to IPSO and the NMA. He stated that:
where the online services which fall within the remit of the proposed measure are already well regulated, as IPSO and IMPRESS do regarding their members’ moderated comment sections, we will not duplicate those efforts. Journalistic or editorial content will not be affected by the regulatory framework … We are clear that the regulator will not be responsible for policing truth and accuracy online.
Exactly the same points were reiterated by the DCMS Minister Lord Ashton in a debate in the Lords on 30 April.
The SoE and IPSO on the offensive
However, the press was very far from mollified. Thus in its submission to the consultation, the SoE stated that:
There must be a clear and stated total exemption from the proposed laws and regulations/regulator for recognised media, their digital output, their digital presence on social media and other platforms and legitimate comment on their websites on any and all topics of discussion.
Consideration be given to scrapping altogether the intent to regulate content considered as disinformation – fake news – and priority given to combatting illegal online content.
IPSO inevitably followed the same line that it had taken in its response to the fake news consultation, arguing that:
Inaccuracy in journalistic content should be considered differently from disinformation and fake news. The IPSO mark, and IPSO membership more broadly, demonstrates that publishers have pledged to take care in relation to avoiding inaccurate and misleading content and when they do get things wrong they will correct their content and explain this to their readers/consumers.
Regarding the matter of comment sections, IPSO noted:
User-generated comments that are pre-moderated before being published online are considered to have gone through a process of editorial control, and therefore would generally fall under the terms of the Editors’ Code.
Most online publications regulated by IPSO do not pre-moderate user-generated comments. However, if problematic comments have been brought to a publication’s attention and remain online, they are then considered to have gone through a process of editorial control and are within our remit. Internet users can inform the publication of problematic user-generated comments via the ‘report’ icon. IPSO can then consider complaints about user-generated material, after they have been reviewed or moderated by the publication.
However, even a cursory glance at some of the comments sections in papers such as the Telegraph, Mail, Sun and Express reveals disturbing parallels with similar sections on the websites of Stormfront and the English Defence League, and it is extremely difficult to believe that such comments have not been drawn to publishers’ attention, thus casting considerable doubt on IPSO’s claims. See, for example, here and here.
IPSO also returned to its earlier concern that new legislation must not in any way interfere with the ability of newspaper websites to publish precisely the kinds of material which many have argued are indeed harmful, such as hate speech, and thus most in need of effective regulation, but which the press is absolutely determined to retain, for reasons which are both economic and ideological. Thus its submission notes:
We note that references to protection of freedom of expression within the White Paper tend to be from the perspective of a user of the internet. Freedom of expression must also take into account publishers’ and journalists’ freedom of expression and freedom to publish material that will shock or offend, including freedom to campaign and be partisan. The public’s right to know is also an important consideration here, as freedom of expression is about the right to receive, just as much as to impart, information.
The NMA issues its orders
However, the strongest response by far came from the NMA, which ran to a furious and declamatory seventeen pages, much of it written in bold (although not in green ink). It argues that “the White Paper presents a grave threat to press freedom’ and that ‘news publishers will be put in double jeopardy of new restrictions”. Directly,
“because the user generated content on their own sites will entail the application of the new statutory duty of care to publishers and bring them under direct control of the new statutory regulator”.
“as newspaper publishers’ own trusted journalism disseminated by social media will be subject to the new regime, through policing by the tech companies in the course of their own fulfilment of the duty of care upon them”.
(“Trusted” in this context occurs eleven times in the document, even though, demonstrably, much of the journalism to which it refers is no such thing).
What the NMA clearly feared is that tech companies might block material that originated in online versions of its members’ publications because, as a result of operating the compliance systems advocated by the White Paper, including algorithms, commercial fact checker services and moderators, the companies might decide that it is harmful in the terms of the new online safety regulations. Such a possibility would, of course, seriously jeopardise online newspaper publishers’ reliance on sensational stories that act as clickbait. But the NMA understandably skirts this issue and instead complains about the over-mightiness of the online companies, and, entirely typically, wraps up an argument which is really about profit in the language of press freedom. Thus it states that:
The dominance of the tech companies in search and social media entails that they now play a very significant and unavoidable role in the dissemination of news publishers’ trusted [sic] content online and the audience which it attracts – as well as the advertising revenue which funds that trusted journalism.
In its view:
The White Paper’s proposed regime will increase and legitimize the tech companies’ powers and controls over the public’s discovery and access to news publishers’ content and their controls over the dissemination of national, regional and local news publishers’ online content through Facebook, Twitter and other platforms, or the tech companies provisions of news feeds to Facebook users, traffic to its websites and search rankings. This will put at risk news publishers’ journalism, its audience and the advertising revenues that fund that journalism. The White Paper proposals would therefore create disproportionate and unnecessary restrictions on press freedom.
The possibility that material originally generated by online newspapers but then disseminated elsewhere online might indeed be harmful under the online safety regulations is, of course, never considered. Inevitably the good offices of IPSO (mentioned 42 times in the course of this diatribe) are once again summoned in order to argue that nothing in newspapers regulated by it could possibly be classed as harmful. In the course of the seemingly endless encomia to this body we are told that it is “a well-established industry wide regulator, commended by Government” and that it
already provides an effective system for user generated content … It holds newspapers, print and online, to account for their actions, protects individual rights and upholds high standards of journalism. The Editors’ Code of Practice upheld by IPSO requires members to observe restrictions and standards above and beyond the law … The requirements which publishers are contractually bound to fulfil include swift complaints procedures applicable to such user generated content, with recourse to IPSO investigation and adjudication, IPSO monitoring and enforcement of press standards, including the return and publication of annual statements on how they follow the Editors’ Code and handle complaints. It can investigate and sanction serious standards failings, with fines up to £1 million.
The NMA, whose document is remarkably intemperate and authoritarian in tone (not to mention wearyingly insistent and repetitious), all but orders the government to exempt the press entirely from the online harms arrangements. (The words ‘exemption’, ‘exemptions’ and ‘exempt’ occur no less than 52 times in total). Thus it portentously proposes:
“The solution: complete, comprehensive, robust exemption for news publishers and their content however disseminated, on the face of any Bill and relevant legislation, in pursuance of Government press freedom assurances”.
It then thunders that:
It is imperative that news publishers – all NMA members – and their content are wholly exempt from the proposed regime. Exemption must be complete – both robust and comprehensive. Exemption must not only apply to the news publishers, corporately and individually to all their workforce and contributors and in respect of all their online publications, services, website content, but exemption must cover all news publishers’ content that is disseminated online, broadcast, print or any other means, including by third parties especially the tech companies through social media and search. Such exemptions must be all encompassing and enduring, without any potential loophole that could be exploited to induce regulatory action, or legal claim, or state repression, or over cautious censorship by third party distributors.
It adds, rather more mildly, that:
The NMA is very happy to participate in detailed discussions with the DCMS and Home Office as necessary and keep it informed of industry developments as appropriate, in order to ensure that robust comprehensive exemptions for news publishers, their companies, their staff and their content are secured, properly framed in all relevant legislative measures and implemented alongside any White Paper proposal.
And, as we shall see, when we come to the Draft Online Safety Bill, they got their way handsomely – namely the exemption of the most powerful news outlets in the country from rules applied to almost every other major website. Thus we are faced with the prospect of a two-tier system in which the journalism most in need of regulation once again escapes it, and online publications that are frequently highly critical of that journalism, such as BuzzFeed News, Byline Times and HuffPost, would fall within its scope.
Part 1 of this post was published on 6 July 2021, Part 3 will be published on 8 July 2021
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.