Wednesday, 16 June 2021

Carved out or carved up? The draft Online Safety Bill and the press

When he announced the Online Harms White Paper in April 2019 the then Culture Secretary, Jeremy Wright QC, was at pains to reassure the press that the proposed regulatory regime would not impinge on press freedom. He wrote in a letter to the Society of Editors:

“where these services 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.”

The last sentence, at any rate, always seemed like an impossible promise to fulfil. The government’s subsequent attempts to live up to it have resulted in some of the more inscrutable elements of the draft Online Safety Bill. 

Carve-out for news publisher content

It is true that ‘news publisher content’ is carved out of the safety duties that would be imposed on user to user and search services.  The exemption is intended to address the problem that a news publisher’s feed on, for instance, a social media site would constitute user generated content. As such, without an exemption it would be directly affected by the social media platform’s own duty of care and indirectly regulated by Ofcom.

However, a promise not to affect journalistic or editorial content goes further than that. First, the commitment is not limited to broadcasters or newspapers regulated by IPSO or IMPRESS.  Second, as we shall see, a regulatory framework may still have an indirect effect on content even if the content is carved out of the framework.

Furthermore, even trying to exclude direct effect gives rise to a problem. If you want to carve out the press, how do you do so without giving the government (or Ofcom) power to decide who does and does not qualify as the press? If a state organ draws that line, isn’t the resulting official list in itself an exercise in press regulation? We shall see how the draft Bill has tried to solve this conundrum.

Beneath the surface of the draft Bill lurks a foundational challenge. Its underlying premise is that speech is potentially dangerous, and those that facilitate it must take precautionary steps to mitigate the danger. That is the antithesis of the traditional principle that, within boundaries set by clear and precise laws, we are free to speak as we wish. The mainstream press may comfort themselves that this novel approach to speech is (for the moment) being applied only to the evil internet and to the unedited individual speech of social media users; but it is an unwelcome concept to see take root if you have spent centuries arguing that freedom of expression is not a fundamental risk, but a fundamental right.

Even the most voluble press advocates of imposing a duty of care on internet platforms have offered what seems a slightly muted welcome to these aspects of the draft Bill. Lord Black, in the House of Lords on 18 May 2021, (after declaring his interest as deputy chairman of the Telegraph Media Group) said:

“The draft Bill includes a robust and comprehensive exemption for news publishers from its framework of statutory regulation … . That is absolutely right. During pre-legislative scrutiny of the Bill, we must ensure that this exemption is both watertight and practical so that news publishers are not subject to any form of statutory control, and that there is no scope for the platforms to censor legitimate content.”

One might ask what constitutes ‘legitimate’ content and who - if not the platforms – would decide. Ofcom? At any rate the draft Bill will disappoint anyone hoping for a duty of care regime that could not have any effect at all on news publisher content. It is difficult to see how things could be otherwise, the former Culture Secretary’s promise notwithstanding.

The draft Bill

Now we can embark on a tour of the draft Bill’s attempts to square the circle of delivering on the former Secretary of State’s promise. First, a diagram.


Got that? Probably not.

So let us conduct a point by point examination of how the draft Bill tries to exclude the press from its regulatory ambit, and consider how far it succeeds. The News Media Association’s submission to the White Paper consultation, to which I will refer, contained a list of what the NMA thought the legislation should do in order to carve out the press. Unsurprisingly, the draft Bill falls short.

But first, a note on terminology: it is easy to slip into using ‘platforms’ to describe those organisations in scope. We immediately think of Facebook, Twitter, YouTube, TikTok, Instagram and the rest. But it is not only about them: the government estimates that 24,000 companies and organisations will be in scope. That is everyone from the largest players to an MP’s discussion app, via Mumsnet and the local sports club discussion forum. So, in an effort not to lose sight of who is in scope, I shall adopt the dismally anodyne ‘U2U provider’.

Moderated comments sections

The first limb of the Secretary of State’s commitment was to avoid duplicating existing regulation of moderated comments sections on newspapers’ own websites. That has been achieved not by a press-specific exemption, but through the draft Bill’s general exclusion of low risk ‘limited functionality’ services. This provision exempts services in which users are able to communicate only in the following ways: posting comments or reviews relating to content produced or published by the provider of the service (or by a person acting on behalf of the provider), and in various specified related ways (such as ‘like’ or ‘dislike’ buttons).

This exemption as drafted has problems, since technically (even if not contractually) a user is able to post anything to a non-proactively moderated free text review section. That could comments on comments – a degree of freedom which of itself appears to be disqualifying - even if the intended purpose is that the facility should be used only for reviewing the provider’s own content.

As for the protection that the exemption tangentially offers to comments sections on press websites, it is notable that it can be repealed or amended by secondary legislation, if the Secretary of State considers that to be appropriate because of the risk of physical or psychological harm to individuals in the UK presented by a service of the description in question.

News publisher content – what is it?

News publisher content present on a service is exempted from the service provider’s safety duties. There are two primary categories of news publisher content: that generated by UK-regulated broadcasters and that generated by other recognised news publishers. The latter have to meet a number of qualifying conditions, both administrative and substantive.

Administrative conditions

Administratively, a putative recognised news publisher must:

    (a)   Be an entity (i.e. an incorporated or unincorporated body or association of persons or an organisation)  

    (b) have a registered office or other business address in the UK

    (c) be the person with legal responsibility for material published by it in the UK

    (d) publish (by any means including broadcasting) the name address, and registered number    (if any) of the entity; and publish the name and address (and where relevant, registered or principal office and registered number) of any person who controls the entity (control meaning the same as in the Broadcasting Act).

Failure to meet any of these conditions would be fatal to an argument that the entity’s output qualified as news publisher content.

Organisations proscribed under the Terrorism Act 2000, or the purpose of which is to support a proscribed organisation, are expressly excluded from the news publisher exemption.

Substantive conditions

Substantively, the entity must:

    (a) Have as its principal purpose the publication of news-related material, such material being created by different persons and being subject to editorial control.

    (b) Publish such material in the course of a business (whether or not carried on with a view to profit)

    (c) Be subject to a standards code (one published either by an independent regulator or by the entity itself)

    (d) Have policies and procedures for handling and resolving complaints.

Again, failure to meet any of these conditions would be fatal.

‘News-related material’ has the same definition as in the Crime and Courts Act 2003:

    (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.

News-related material is ‘subject to editorial control’ if there is a person (whether or not the publisher of the material) who has editorial or equivalent responsibility for the material, including responsibility for how it is presented and the decision to publish it.

Reposted news publisher material

The draft Bill also contains limited exemptions for news publisher content reposted by other users. To qualify, the material must be uploaded to or shared on the service by a user of the service, and:

    (a) Reproduce in full an article or written item originally published by a recognised news publisher (but not be a screenshot or photograph of that article or item or of part of it);

    (b) Be a recording of an item originally broadcast by a recognised news publisher (but not be an excerpt of such a recording); or

    (c) Be a link to a full article or written item originally published, or to a full recording of an item originally broadcast, by a recognised news publisher.

What isn’t exempted?

What news-related content would fall outside the exemptions from the U2U provider’s safety duties? Some of the most relevant are:

  • The user reposting exemption does not apply to quotations, snippets, excerpts, screenshots and the like.
  • Content from non-UK news publishers will not be exempt unless they are able to jump through the administrative and substantive hoops described above.  The requirement to have a registered office or other business address in the UK would itself seem likely to exclude the vast majority of non-UK news providers.
  • Individual journalist accounts. Many well known broadcast and news journalists have their own Twitter or other social media accounts and make use of them prolifically to report on current news. These are outside the primary exemption, since an individual journalist is not a recognised news publisher. (Some of what individual journalists do would, of course, fall within the re-posting exemption.) The NMA argued that the exemption must apply to “the news publishers, corporately and individually to all their workforce and contributors”.

One opaque aspect of the exemption is what is meant by content “generated” by a recognised news publisher. If a newspaper publishes a story incorporating an embedded link to a TikTok video (as the Daily Mail did recently with the video from a migrant boat crossing the Channel), is the link part of the content generated by the news publisher? If so, is it anomalous that the story – including the embedded video - on the news publisher’s own site, subsequently posted to (say) Twitter, is exempt from Twitter’s safety duty, yet the same video originally posted on TikTok is still within scope of TikTok’s safety duty?

The example of amateur video uploaded from a migrant boat brings us neatly to the topic of citizen journalism. Citizen journalism is within scope of U2U providers’ safety duties and, for ordinary U2U providers, enjoys no special status over and above any other user generated content. 

Large players (Category 1 providers) will have a variety of freedom of expression duties imposed on them, applicable to UK-linked news publisher content or journalistic content, as well some duties in respect of so-called content of democratic importance. The duties will include, for instance, an obligation to specify in terms and conditions by what method journalistic content is to be identified. Since the draft Bill says only that journalistic content is content ‘generated for the purposes of journalism’, identifying such content looks like a tall order.

The journalistic content provisions are likely to run into criticism from opposing ends: on the one hand that some users will rely on them as a smokescreen to protect what is in reality non-journalistic material; and that on the other hand, the concept is too vague to be of real use, so in practice hands the decision on how to categorise to Ofcom. 

What is the significance of news publisher content being exempted?

The news publisher content exemption means that U2U providers do not have a safety duty for news publisher content. In other words, they are not obliged to include news publisher content in the various steps that they are required to take to fulfil their safety duties.

That does not mean that news publisher content could not be affected as a by-product of U2U providers' attempts to discharge their safety duties over other user content. U2U providers not being required proactively to monitor and inhibit news publisher content doesn’t mean that such content couldn’t be caught up in a provider’s efforts to do that for user generated content generally.

Lord Black spoke of precluding any scope for platforms to censor legitimate content. The closest the draft Bill’s general provisions come is the duty 'to have regard to the importance of freedom of expression’. For Category 1 providers the focus is additionally on dedicated, expedited complaints procedures and transparency of terms and conditions. 

The Impact Assessment concludes, under Freedom of Expression, that the regulatory model’s focus on transparency and user reporting and redress should lead to “some improvements” in users’ ability to appeal content removal and get this reinstated, “with a positive impact on freedom of expression”.

The Policy Risks table annexed to the Impact Assessment goes into more detail:

Risk

Mitigation

Regulation disproportionately impacts on freedom of expression, by incentivising or requiring content takedown.

The approach has built in appropriate safeguards to ensure protections for freedom of expression, including:

● Differentiated approach of legal/illegal content, e.g. not requiring takedown of legal but harmful content

● Safeguards for journalistic content

● Effective transparency reporting

● Proportionate enforcement sanctions to avoid incentivising takedowns

● User redress mechanisms will enable challenge to takedown

● Super-complaints will allow organisations to lodge complaints where they may be concerned about disproportionate impacts

● Regulator has a duty to consider freedom of expression

 

The Impact Assessment summarises the government’s final policy position thus:

“There will … be strong safeguards in place to ensure media freedom is upheld. Content and articles published by news media on their own sites will not be considered user generated content and thus will be out of regulatory scope.

Legislation will also include robust protections for journalistic content on in-scope services. Firstly, the legislation will provide a clear exemption for news publishers’ content. This means platforms will not have any new legal duties for these publishers’ content as a result of our legislation. Secondly, the legislation will oblige Category 1 companies to put in place safeguards for all journalistic content shared on their platforms. The safeguards will ensure that platforms consider the importance of journalism when undertaking content moderation, and can be held to account for the removal of journalistic content, including with respect to automated moderation tools.”

At the moment it is anyone’s guess what the various duties would mean when crystallised into practical requirements – a vice ingrained throughout the draft Bill. We will know only when Ofcom, however many years down the line, produces its series of safety Codes of Practice for the various different kinds of U2U service. A U2U provider would (unless it decides to take the brave route of claiming compliance with the safety duties in ways other than those set out in a Code of Practice) have to comply with whatever the applicable Code of Practice may say about freedom of expression.

If Ofcom were to go down the route of suggesting in a Code of Practice that news publisher content should be walled off from being indirectly affected by implementation of the providers’ safety duties, how could that be achieved? The spectre of an Ofcom-approved list of news publisher content providers rears its head again.

Even if there were such a list, how would such content be identified and separated out in practice? The NMA consultation submission suggested a system of ‘kite marking’. IT engineers could still be trying to build tagging systems to make that work in ten years’ time.

The government’s draft Online Safety Bill announcement claimed that the measures required of ordinary and large providers would “remove the risk that online companies adopt restrictive measures or over-remove content in their efforts to meet their new online safety duties.” (emphasis added)

This bold statement – in contrast with the more modest claim in the Impact Assessment - shows every sign of being another unfulfillable promise, whether for news publisher content or user-generated content generally.

Lord Black said in the Lords debate:

“We have the opportunity with this legislation to lead the world in ensuring proper regulation of news content on the internet, and to show how that can be reconciled with protecting free speech and freedom of expression. It is an opportunity we should seize.”

It can be no real surprise that a solution to squaring that circle is as elusive now as when the Secretary of State wrote to the Society of Editors two years ago. It has every prospect of remaining so.



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