This article was originally published by INFORRM, and is republished here with permission and thanks.By Julian Petley

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.

Fake news

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 that 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 inquiry 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 fakenews, 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 Two

“Press regulation by the back door”

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 the direct control of the new statutory regulator”. And indirectly, “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 italready 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 £1million. Except, of course, IPSO has never fined a single publication in its existence, and its record on upholding press standards is nothing short of abysmal (see here and here).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 Three

The lobbying continued, however. 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 that 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's 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