The press lobbying described in Part 2 continued . Dire warnings about the effects of the measures proposed in the White Paper have continued to appear in papers such as the Mail.

For example on 14 December 2020, the paper warned that:

There is widespread concern that when news is accessed via social media or search, internet giants will try to protect themselves from draconian penalties by setting their algorithms to censor content which is controversial but legitimate, such as criticism of government handling of the Covid crisis. Critics also say commercial organisations should not have the power to decide what news the public can read in social media news feeds, if it comes from legitimate news organisations.

However, an article by John Whittingdale, Minister of State for Media and Data, in the same day’s paper reassured readers that:

Safeguards will be built into the new laws to make sure companies cannot censor controversial viewpoints without good reason. If people feel they’ve been unfairly treated, they will be able to appeal.

News publishers are the bedrock of democracy. They share accurate, sourced and trusted information. These laws will not put that at risk. News sites such as Mail Online will be exempt from the rules so they can continue to carry out their work. The robust debate found in the reader comments below news stories will also not be affected by our plans. 

There will also be protection to ensure that content from reputable news providers can be shared on social media.

The government responds

At the same time, the government response to the White Paper was published. This noted  that as a result of the consultation “there were calls to exclude journalistic content from scope, to protect freedom of expression and avoid negatively affecting the public’s ability to access information or undermining quality news media”. This is putting it remarkably mildly, and the response showed that the newspaper industry’s intense lobbying had indeed achieved its desired effect. Thus the response announced that:

Freedom of expression is at the heart of the regulatory framework and there will be strong safeguards to ensure that media freedom is upheld. Content and articles produced and published by news services on their own sites do not constitute user-generated content and so are out of scope. The government recognises the importance of below-the-line comments for enabling reader engagement with the news. User comments below articles on news publishers’ sites will be explicitly exempted from scope.

And because “media stakeholders have raised concerns that regulation may result in increased takedowns of journalistic content”, with the possibility of  “journalistic content being removed for vague reasons, with limited opportunities for appeal”, the government was keen to reassure them that “in order to protect media freedom, legislation will include robust protections for journalistic content shared on in-scope services”.

Further evidence of the success of the press lobbying is provided by crucial sections of the Draft Online Safety Bill itself, which was published in May 2021. Thus section 39 (2) exempts from the proposed legislation “comments and reviews on provider content”, which captures comment sections,  and “news publisher content”.

And although search engines are covered by the new measure, section 18 (2) specifically exempts any search results from a newspaper from being negatively affected by the search engine’s new duties to protect the public. Thus the “duty of care” with which search services, like other online services covered by the draft measure must comply, does not extend to

(a) content present on the website of a recognised news publisher; or (b) content, that may be encountered via search results, that (i) reproduces in full an article or written item that was originally published by a recognised news publisher (and is not a screenshot or photograph of that article or item or of part of it);  (ii) is a recording of an item originally broadcast by a recognised news publisher (and is not an excerpt of such a recording); or (iii) is a link to a full article or written item originally published by a recognised news publisher, or to a full recording of an item originally broadcast by a recognised news publisher.

Much depends here on the definition of a “recognised news publisher”, but according to the criteria set out in section 40 (2), Britain’s national newspapers very clearly fit the bill. Thus such a publisher

(a) has as its principal purpose the publication of news-related material, and such material – (i) is created by different persons, and (ii) is subject to editorial control, (b) publishes such material in the course of a business (whether or not carried on with a view to profit), (c) is subject to a standards code, (d) has policies and procedures for handling and resolving complaints.

“News-related” material is defined sufficiently broadly to encompass the kind of dubiously journalistic articles that characterise much of the national press in the UK, section 40 (5) stating that:

“‘News-related material’ means material consisting of— (a) news or information about current affairs, (b) opinion about matters relating to the news or current affairs, or (c) gossip about celebrities, other public figures or other persons in the news”.

And the requirements for a “standards code” and “policies and procedures for handling and resolving complaints” are obviously satisfied by the existence of IPSO.

Section 14 of the proposed legislation is devoted specifically to the manner in which Category 1 organisations (that is, those whose activities fall within its scope) must provide protections for journalistic content emanating from news providers who fall outside its ambit. As the Impact Assessment puts it:

Providers will have a duty to set policies for protecting such content which they must enforce consistently and transparently. Effective transparency reporting will help ensure content removal is well-founded, as the decisions platforms make on content removal and user appeals on content removal will have greater visibility.

This will ensure that providers can be held to account for the removal of journalistic content, including with respect to automated moderation tools”.

An unworkable measure

As noted earlier, the proposed legislation threatens to create a two-tier system of online regulation. Intensive press lobbying, and government acquiescence to it, have led to a potential measure which would almost certainly prove to be quite unworkable and also open to serious challenge by those aggrieved by its double standards – not least, albeit for different reasons, the tech companies and campaigners against the debased journalistic standards of the UK national press.

The latter will most certainly argue that if something is judged to be “harmful” or “unsafe” by the standards laid down by the legislation, then it is so wherever it appears. For example, whether or not speech is deemed to be hate speech is determined not by its location, nor by who has uttered it, but by the very words that are used. The argument advanced by Brian Cathcart when the government was still considering an Online Harms Bill is equally applicable to its later incarnation, namely the Draft Online Safety Bill:

Exempting the Mail, the Sun and others from online harm legislation not only makes no sense, it is the equivalent of licensing them to publish hate speech and even encouraging them to do so, since they stand to profit … Imagine now that the haters on Twitter and Facebook were forced off those platforms by online harms legislation. Where would they go? One likely destination is the comment streams – extra activity and clicks that would bring extra revenue to the news publishers … The Government’s plans for online harms legislation have a huge hole in them, a hole that is likely to benefit their cronies in the corporate press while actually encouraging hate speech towards people whom editors – and their ministerial friends – dislike.

Much has been made of the utter inappropriateness of Paul Dacre as the proposed new chair of Ofcom, mainly on the grounds that he loathes the BBC, which it now regulates. But few appear to have grasped that an Online Safety Act would give Dacre immense power over an equally hated enemy – namely the online tech companies against whom he has remorselessly inveighed ever since they first came into being.

The suggestion in the Telegraph, 27 May 2021, that the government had decided to re-run the appointments process because of lobbying against Dacre by tech companies was almost certainly designed to deflect attention away from the awkward fact that the appointments panel had unanimously found Dacre to be un-appointable. But, in the circumstances, who would blame them if they had indeed lobbied – and done so vigorously?

Part 1 of this post was published on 6 July 2021 and Part 2  on July 2021

Part 1 of this post was published on 6 July 2021 and Part 2 was published on 7 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.