The Joint Committee Report on the Online Safety Bill: Incoherent on the media

By Nathan Sparkes

This week, the Joint Committee scrutinising the Online Safety bill published its report.  Now it is for the Government to respond with a final bill, which will be put before Parliament.

Areas of significant weakness in the draft bill include newspaper comment sections and content produced by unregulated news publishers.  These are presently areas where harms thrive, and there is no meaningful accountability.

Yet they are all exempt under the draft bill.  This allows any unregulated, irresponsible publisher (including some extremist websites) to commit harms online with impunity.  It also means that newspaper comment sections receive a special exemption, on no reasonable basis whatsoever.

Regrettably, the Committee’s proposals fail to properly address these weaknesses.

The Committee’s recommendation on news publisher content begins,

We recommend that the news publisher content exemption is strengthened to include a requirement that news publisher content should not be moderated, restricted or removed unless it is content the publication of which clearly constitutes a criminal offence, or which has been found to be unlawful by order of a court within the appropriate jurisdiction.

This is a proposal to give news publishers a “super exemption” from the regulatory responsibilities of social media platforms.  In the draft bill, news publisher content is outside platforms’ responsibilities.  The Committee is proposing that a positive requirement not to remove news publisher content is included in the bill.

Strengthening this exemption in this way is only right if it is carefully restricted to those publishers who are otherwise regulated, under the news publisher definition.  Otherwise, it will exacerbate the problems with the weaknesses of that definition.  If this recommendation is reflected in the bill, without changes to that definition, this proposal could actively prevent social media platforms from removing harmful and dangerous content (unless criminal).

This is obviously wrong.  It is also heavy-handed interference in the freedom of social media companies to manage their own platforms as they please, without addressing any particular “harm”.  Platforms will be statutorily required to provide a platform for news publishers: an unwarranted and bizarre way to interfere in how a private company may behave.

The reasonable response is to tighten up that definition.

Yet where the Committee comments on the definition, all they say is that,

“We recommend that the Government look at how bad actors can be excluded

from the concept [definition] of news publisher. We suggest that they may wish to exclude those that have been repeatedly found to be in breach of the Ofcom Broadcasting Code, or are publications owned by foreign Governments.”

Who are “bad actors”?  Surely, they are any publisher not independently regulated.  That is the only reasonable way of determining whether a news publisher is independently accountable.  But the Committee do not set this out; leaving open the possibility that all manner of unregulated publishers from across the internet will be able to benefit – including those which promote hatred, racism, misogyny or conspiracy theories.

The sentence which follows suggests that publishers who breach the Ofcom Broadcasting Code (which is applied to broadcasters) are excluded from the exemption.  On the logic of the bill and the Committee’s Report, what ought to follow is that print/online news publishers which breach the standards code to which they are subject to should also, similarly, be excluded.

The bill’s news publisher definition, weak and irrational as it is, even relies upon publishers’ compliance with a “code”.  Why not propose that publishers with a record of breaching that code forgo the exemption?

Popular newsbrands including the MailOnline, Mirror, The Times, Telegraph and The Sun all have records of multiple breaches of the Editors’ Code every year.  And are likely responsible for many further breaches, unrecorded by their own complaints-handler “IPSO”.

The Report is silent on this, suggesting a different standard should be applied to online/print media.  Or rather, no real standard at all.

The Report then recommends,

Ofcom should also examine the use of new or existing registers of publishers.

This is a proposal for a form of state licencing of news publishers.  The silence of national newspapers, who have rallied against such a concept for decades (disingenuously linking it with proposals for independent regulation), is extraordinary.  Perhaps the position is different here because the licencing would afford national newspapers unwarranted, special treatment.

Finally, the Report proposes,

We are concerned that some consumer and business magazines, and academic journals, may not be covered by the Clause 40 exemptions. We recommend that the Department consult with the relevant industry bodies to see how the exemption might be amended to cover this of, without creating loopholes in the legislation.

This point only serves to further highlight the absurdity of attempting to forge a definition of a responsible news publisher which does not rely on regulated status.

No recommendations appear to address harmful content in newspaper comment sections, despite its prevalence.

We still don’t have a final bill, and it’s a long way to go before anything becomes law.  It’s critical that as the legislation progresses, these problems are addressed.

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