124: Clause 49, page 47, line 6, at end insert—
“(2A) Subsection (2)(e) does not apply in respect of a regulated user-to-user service which is operated by an organisation which—(a) is a relevant publisher (within the meaning of section 41 of the Crime and Courts Act 2013), and(b) has an annual UK turnover in excess of £100 million.”Member’s explanatory statement
This amendment seeks to ensure the comment sections of the largest newspaper websites are subject to the Online Safety Bill’s regulatory regime.
My Lords, I shall speak to Amendment 124 but also to Amendments 126 and 227, all of which were tabled by my noble friend Lord McNally and supported by the noble Lord, Lord Lipsey. Sadly, they are both unable to do battle today, for health reasons, and I start by wishing them both a speedy recovery. I hope that I at least partly do justice to their intentions and to these amendments today.
These amendments are designed to address significant loopholes in the Bill which have been very clearly pointed out by Hacked Off, Impress—the press regulator—and the Press Recognition Panel. These loopholes risk enabling extremist publishers to take advantage of the overbroad “recognised news publisher” exemption and allow hatred and other online harms to spread on some of the most popular social media forums online—the newspaper comment sections. Amendment 124 would remove comment sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated content.
Some of the most harmful online content is in newspaper comment sections, which are in fact social media forums themselves and are read by millions of readers every day. Hacked Off has found examples of misogyny, explicit anti-Semitic language, Holocaust denial and more. Women in public life are also the target of misogyny in these comments sections. Professor Corinne Fowler, an academic who was criticised by some newspapers after contributing to a National Trust report, describing her experience, wrote that
“unregulated comments beneath articles, including the Telegraph and The Times as well as the Daily Mail and the Express … contained scores of suggestions about how to kill or injure me. Some were general ideas, such as hanging, but many were gender-specific, saying that I should be burnt at the stake like a witch … without me knowing, my son (then 12 years old) read these reader comments. He became afraid for my safety. The comments were easily accessible: he googled ‘Corinne Fowler National Trust’ and scrolled below the articles. No child should have to deal with hate speech directed at a parent”.
My Lords, I join the noble Lord in wishing the noble Lords, Lord McNally and Lord Lipsey, well. I hope they are watching us on the television—perhaps as a cure for insomnia at this time of night. I declare my interest as deputy chairman of the Telegraph Media Group and of the Regulatory Funding Company and note my other interests set out in the register. I must admit I was gripped by a sense of déjà vu when I saw these amendments on the Marshalled List, because I fear they risk catapulting us back into the debate over matters which were settled a decade ago in response to events which took place two decades or more ago.
Before coming on to the detail of some of the amendments that the noble Lord set out, I will make a few general points which relate principally to Amendments 126 and 227 but impinge on the whole group.
First, I do not believe that this Bill, which is about the enormous, unaccountable and unregulated platforms and the dangers they pose to the vulnerable, is the place to reopen the debate about press regulation. Later in the year there will be a media Bill, recently published in draft, which will contain provisions to repeal Section 40 of the Crime and Courts Act 2013. If noble Lords want to discuss the whole issue of the royal charter and punitive legislation against the press, I respectfully suggest that that is the time and place to do so.
Secondly, this Bill has widespread support. The vast majority of people agree with its aims, even if we have disagreements at the edges. If the Bill ceases to be the Online Safety Bill and becomes the state regulation of the press Bill, it will become enormously controversial not just here but internationally.
That is my third point: the enormous global ramifications of seeking to use novel online legislation to force state-backed regulation on the press. The Crime and Courts Act 2013 and the establishment of the royal charter were roundly condemned by international press freedom organisations worldwide—the very same press freedom organisations we all claim to support when talking about the safety of journalists or the way in which the press is controlled in authoritarian regimes. Those same organisations condemned it utterly and they would look on with incredulity and horror if this, the first brave piece of legislation in the world to tackle online safety, was corrupted in this way and in a manner which sent the wrong signals to undemocratic regimes worldwide that it is okay to censor the press in the name of making the platforms accountable.
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Amendment 127 also veers in the direction of extending statutory controls, because it is a subjective test, unlike the others in Clause 50, which would in effect require either the tech platforms or Ofcom to make value judgments about the timeliness of complaints handling, either by publishers or by IPSO. When it comes to media freedom, subjective tests in the hands of state regulators end up making bad law.
Finally, Amendment 227 seeks to extend Ofcom’s powers to include an assessment of whether the news publisher exemption is adversely impacting the online safety regime. That would again place a state regulator in the position of assessing whether independent voluntary self-regulation, of the sort envisaged by Leveson, complied with an online safety regime which was never intended to encompass press regulation. It is, in effect, the royal charter by the backdoor, trying to shoehorn a square peg into a round hole in a way which makes this legislation and the powers of the regulator even more complex and controversial.
At the end of the day, this should not be a press regulation Bill, and it is wrong to try to do that. It is a Bill about the responsibility of the vast unaccountable, unregulated platforms which disseminate so much dangerous and harmful content without anyone having recourse, as we have heard powerfully already this afternoon, and not a Bill about the publishers who produce verifiable, trusted journalism which is the lifeblood of a democracy. We confuse the two at our peril and at the cost of the free press, which I know all your Lordships hold dear.
My Lords, much of what I would have said has been said by the noble Lord, Lord Black, so I will make my contribution brief. Elegantly dressed up as these amendments were by the noble Lord on behalf of the noble Lords, Lord Lipsey and Lord McNally, to whom I also say get well soon, they are in fact intended to change the way the press is currently regulated. I declare my interest as chairman of IPSO, a post I have held since January 2020. IPSO regulates 95%, by circulation, of the printed press, and that includes online versions of newspapers.
Noble Lords will remember the Leveson inquiry, following the discovery of unacceptable press practices including phone hacking. Parliament’s response was to create the Press Recognition Panel and the concept of an approved regulator. It was not state regulation, but nor was it the status quo ante. Only one regulator has sought and attained approved status: Impress. The Press Recognition Panel was chaired by David Wolfe KC, who provided a quotation to the noble Lord. Impress is funded by the estate of Max Mosley. It does not regulate any of the main national newspapers, which have either, like the Guardian, elected for self-regulation, or, like most of the others, selected IPSO as their regulator. Now, clearly it would be unattractive for me to extol the virtues of IPSO, but to its critics I recommend reading the newly published independent external review, written by Sir Bill Jeffrey, former Permanent Secretary at the MoD. I think readers would generally be reassured by the report.
Section 40 of the Crime and Courts Act was intended as a stick—or was it a carrot—to drive newspapers into the arms of the approved regulator. Even when I had nothing to do with press regulation, I did not like that provision, which has hovered over the newspaper industry like the sword of Damocles. It has never been brought into effect, and I welcome the fact that the Government now intend to repeal Section 40 via the media Bill—although I accept, as the noble Lord, Lord Black, said, that there may be a debate about the proper scope of regulation, and indeed of Section 40, when that comes before Parliament.
My Lords, I speak in favour of Amendments 124, 126 and 227 to which my name is attached. I will reserve my comments mostly to the Bill’s loophole on newspaper comment sections.
These forums would qualify as social media platforms under the Bill’s definition were it not for a special exemption in Clause 49. They have been found to host some of the most appalling and despicable content online. I will paraphrase some examples so as not to subject the Committee to the specific language used, but they include anti-Semitic slurs in comments appearing under articles covering a violent attack on a synagogue; Holocaust denial; and speculation that Covid was created and spread by a secretive global cabal of powerful individuals who control the world’s leaders like puppets.
Some of the worst abuse is reserved for women in public life, which I and others in your Lordships’ House have personally experienced. In an article about a female leader, comments included that she should be struck down or executed by the SAS. Others commented graphically on her appearance and made disturbing sexual remarks. Another woman, Professor Fowler—who the noble Lord, Lord Clement-Jones, has already discussed —was described as having a sick mind and a mental disorder; one comment implied that a noose should be prepared for her. There are many more examples.
Comment sections are in too many cases badly regulated and dangerous places for members of the public. The exemption for them is unwarranted. Specifically, it protects any social media platform where users make comments in response to what the Bill describes as “provider content”. In this case, that means comments posted in response to articles published by the newspaper. This is materially no different from user exchanges of any other kind and should be covered just the same.
The Government have previously argued that there should be a distinction between newspaper comment sections and other platforms, in that other platforms allow for virality because posts that are liked and retweeted do better than the others. But this is exactly the same for many modern comment sections. Lots of these include functionality to upvote certain comments, which can then rise to the top of the comment section on that article.
My Lords, while considering this group of amendments, a comment by Index on Censorship came to mind. Critical of aspects of the Bill, it worried out loud about whether this legislation
“will reverse the famous maxim ‘publish and be damned’, to become, ‘consider the consequences of all speech, or be damned’”.
In that context, I am very grateful—relieved at least— that the freedom of the press is given due regard and protections in the Bill. Freedom of the press is one practical form in which freedom of expression exists and is invaluable in a democracy. It is so crucial that it has been at the centre of democratic struggles in this very Parliament for more than five centuries—ever since the first printing press meant that the masses could gain access to the written word. It fuelled the pamphleteers of the English Civil War. It made a hero of MP John Wilkes in the 18th century, his victory giving the press freedom to report on the goings-on of the great and the good, to muckrake and to dig the dirt; long may that continue.
So I welcome that news publishers’ content on their own websites is not in scope of the legislation; that if platforms take down or restrict access to trusted news sources, they will face significant sanctions; that platforms must notify news publishers if they want to take down their content and, if the publisher disputes that, the platform must not remove it until the dispute is resolved; and that Ofcom must also review the efficacy of how well the platforms are protecting news.
I say “Hurrah!” to all that. If only the Bill treated all content with such a liberal and proportionate approach, I would not be standing up and speaking quite so much. But on the press specifically, I strongly oppose Amendments 124 and 126—as well as Amendment 127, now that it has been explained and I understand it; I did not quite before. Amendment 124 would mean that the comment section of the largest newspaper websites were subject to the regulation in the Bill.
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What is more, one likely outcome of this amendment is that newspapers could shut down their comments sections. The cost of investing in proactive scanning or child safety technology would be prohibitively expensive, and I think that would be a great loss. Whenever a newspaper article is published and, maybe because it is controversial, the newspaper decides not to have a comments section, all over social media people say, “That’s not fair, I wanted to say something on it”, and they just comment on social media.
I am especially opposed to Amendment 126, which would mean that only those news publishers that would qualify for recognised news-publisher status would have to be a member of an approved regulator. We have to be clear what is meant by approved here: it means state approved. It would be the return of state licensing of the press and wipe out all those hard-won gains dating back from Milton’s Areopagiticaand John Lilburne and the Levellers’ sacrifices for press freedom. I just do not want to throw those away; it would leave publishers in an impossible position of choosing between submitting to state-backed regulation or leaving their media content open to censure or censorship by tech giants, or Ofcom.
I think it is an attempt at coercing or bullying these papers into what is a Hacked Off-inspired, Leveson-style regulation system by the back door that has been rejected by the vast majority of the print media, as has been explained. It will remove vital protections for press freedom built into the Bill and allow anyone who refused to be blackmailed into state licensing and statutory content regulation, or thrown under the bus, and it would effectively greenlight Silicon Valley censorship of UK journalism.
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Amendment 126 would have the effect of incentivising newspapers to sign up to an independent regulator. It would expand the definition of a “recognised news publisher” to incorporate any entity that is a member of an approved regulator, while excluding publishers that are not members of such a regulator, unless they are broadcasters and regulated by Ofcom. Recognised news publishers enjoy wide exemptions in the Bill. Their content is not only protected from being taken down by platforms, but a new provision will require platforms to actively consult media publishers before removing their content. As a result, news publishers will enjoy greater free speech rights under the Bill than private citizens.
The criteria to qualify as a “recognised news publisher” is different for broadcasters and other media. For broadcasters, outlets must be regulated by Ofcom. For non-broadcast media, outlets need only meet a list of vague criteria: have a standards code, which could say anything; have a complaints process, which could also say anything; have a UK office; have staff; and not be a sanctioned title. As a result, a host of extremist and disinformation publishing websites may qualify immediately, or with minor administrative changes, for this rather generous exemption. For example, conspiracy theorist and racist David Icke’s website could qualify with minor administrative changes. He would be free to propagate his dangerous and, in many cases, anti-Semitic conspiracies on social media. Heritage and Destiny, an openly racist website, would likewise be able to qualify with minor changes and spread racial hatred on social media. Infowars could open up a UK office, qualify and spread harmful content on social media.
This amendment would replace that vague list of criteria with the simple requirement that, to access the exemption, non-broadcast media publishers must be in a PRP-approved independent regulator. The effect would be that extremists and harmful publishers would not be able to access the exemption. All publishers would have the same free speech rights as everyone else, unless they are otherwise regulated under the charter system or Ofcom in the case of broadcasters.
Amendment 227 requires Ofcom’s reporting on the impact of the regulatory regime on the availability and treatment of news publishers and journalistic content to also cover what impact the news publisher exemption and journalistic content duty have on the regime’s efficacy. The Bill requires Ofcom to publish a report on whether the new regime will harm freedom of the press. This is despite the fact the Bill already goes to extraordinary lengths to protect the interests of the press. This very modest amendment would require Ofcom’s report to also query whether the news publisher exemption is undermining the regulatory regime.
Impress, which is the UK’s only press regulator approved by the Press Recognition Panel under royal charter, says that the Bill leaves the public vulnerable and exposed to online harms and therefore falls short of the Government’s aim of making the UK the safest place to be online. It has summarised the three ways in which the current Bill is in danger of undermining its principal function—to protect the public from online harms—which could be resolved by these amendments.
First, the Bill creates an uneven playing field. A poor definition of what constitutes a news publisher threatens to undermine the public protection benefits of the Bill. Secondly, the Bill misses an opportunity to fight misinformation or disinformation. The Bill undermines industry standards and fails to distinguish journalism from fake news. Thirdly, the Bill could be easily used as a cover to spread serious harms. The Bill’s current journalism exemptions create dangerous loopholes which could easily be exploited to spread misinformation and disinformation. Publishers should be required to demonstrate compliance and oversight in relation to their published code of conduct and complaints policy.
If we needed any more persuasion, a letter to me from David Wolfe KC, the chair of the PRP, provides an additional twist:
“I am writing to draw your attention to the Bill’s potential impact on the regulation of the press and news publishers in the UK. Specifically, to Clause 50 of the Bill, which explains the circumstances in which news publishers are taken out of the proposed Ofcom regulatory regime … it does not specify any minimum standards and does not specify who is to assess publishers. The practical implication, though, is that Ofcom—whose board are appointed by the Secretary of State … and which operates under their direct oversight—will not only set the minimum requirements but also undertake the assessment. Paradoxically, the possibility of political interference, which Lord Leveson and the Royal Charter set out to avoid (in the Royal Charter and PRP framework) might now be directly introduced for all UK news publishers”.
That means that the national press, which has avoided regulation, is coming under the regulation of Ofcom. I will be very interested to hear what a number of noble Lords might have to say on that subject.
Taken together, these amendments would address serious flaws in the Bill, and I very much hope that the Government’s response will be to reflect on them. I beg to move.
I was going to make a few comments about IPSO, which the noble Lord raised, but I see that the noble Lord, Lord Faulks, is in his place and I am sure he will make them much more effectively than I would.
The other general point is that this group of amendments flies in the face of the most fundamental Leveson recommendation. In his report, he stressed that it was essential that the system of self-regulation remained voluntary. What these proposals do is the antithesis of that. In effect, they hold a gun to the head of the industry and say, “Either you join a state-approved regulator, or you’re subject to the statutory control of Ofcom”. There is no voluntary element in that at all because either route ends up in a form of state regulation. That is Hobson’s choice.
Finally, as I have said to this House before, and I hoped I would never have to say again, the vast majority of the press will not under any circumstances join a regulator which is authorised by a state body and underpinned by the threat of legislation. Even Sir Brian Leveson said that he recognised that this was a matter of principle. That principle is that the press cannot be free if it is subject to any form of statutory control, however craftily concealed. That position has existed for many centuries and is threatened by the amendments. The reason for that is that if Amendment 126, and some of the others, went through, none of the major publishers at national, regional and local level, nor magazines, would be exempt from the terms of the Bill and would become subject to the statutory control of Ofcom—something that Ofcom has always made clear that it wants nothing to do with—and the prospect of unlimited penal sanctions. That is the end of a free press, by any definition.
I will very briefly discuss a few specifics. Amendment 124 seeks to bring the comments sections of basically all national newspaper websites within the Bill’s statutory regime. These are already regulated by IPSO, unless the noble Lord, Lord Faulks, corrects me, and they come under its jurisdiction as soon as a complaint is made to the publishers, even if they are not moderated. Unlike social media, which is entirely different in its reach and impact, editors are legally responsible for what appears on their websites, which is why in most cases there are strong content moderation procedures in place. That is why comments sections rightly fall within the limited functionality exemption in the Bill, because there is such limited scope for harm. The impact of Amendment 124 would be to introduce confusing and complex double regulation of comments sections on websites, to the detriment of the public who wish to engage in legitimate debate.
As I understand these amendments, regulation of the largest websites would prospectively be the subject of the Online Safety Bill’s regulatory regime. I echo comments already made that this extraordinarily significant Bill is not primarily directed at press regulation at all. It is intended by these amendments that for newspapers to qualify for the recognised news publisher status, they would have to be a member of an approved regulator. This is plainly an attempt to dismantle the current system of press regulation.
It seems something of an irony that newspapers that are regulated by IPSO or even self-regulated have accountability, however imperfect, whereas, pending the passing of the Bill, internet platforms are wholly unregulated—yet it is sought to pass off some of the regulation of newspapers to Ofcom. Is Ofcom ready, willing or even equipped to replicate the complaints system that currently obtains? I think Ofcom would have quite enough to do. Is its horizon-scanning model even appropriate for press complaints? It is very early days to increase the scope of Ofcom’s rule. The Government have promised a review of the regulatory framework in two or three years; I suppose then it might be possible to assess whether Ofcom’s role should change or be enlarged. Until then, it seems inappropriate to do so.
I suggest that the current system of press regulation should not be the subject of further statutory provision at this juncture, or indeed at all. There have been some deplorable press practices in the past, but the traditional printed press in this country, albeit a much-reduced animal with diminished circulation and advertising revenues, nevertheless has some real strengths. A free, vigorous and challenging press is part of a functioning democracy. We should be very wary of giving a Government, of whatever colour and by whatever means, greater power to control it.
There are estimated to be around 15 million people on Twitter in the UK—I am one of them—but more than twice that number read newspaper websites every month. These comment sections are social media platforms with the same power, reach and capacity to cause harm as the US giants. We should not treat them any differently on account of the fact that they are based out of Fleet Street rather than Silicon Valley.
There are some concerns that the Bill’s requirements would put an undue burden on small organisations running comment sections, so this amendment would apply only to organisations with an annual turnover in excess of £100 million. This would ensure that only the largest titles, which can surely afford it, are required to regulate their comment sections. Amendment 124 would close the comment section loophole, and I urge the Government to act on it.
It is a great shame that, due to the lateness of the hour, my noble friend Lady Hollins is unable to be here. She would strongly support Amendment 126 on several points but specifically wanted to talk about how the exemption creates double standards between how the public and news publishers are treated, and puts platforms and Ofcom in an impossible situation over whether newspapers meet vague criteria to access exemptions.
I also support Amendments 126 and 227, which would help protect the public from extremist and other dangerous websites by preventing them accessing the separate media exemption. In all these matters, we must not let overbroad exemptions and loopholes undermine what good work this Bill could do.
It is important to note—as has been explained—that user comments are already regulated by IPSO, the Independent Press Standards Organisation, and that individual publishers have strong content moderation system policies and the editor is ultimately liable for comments. That is the key issue here. This is about protecting editorial independence from state interference. Amendment 124 does the opposite. That amendment would also restrict the ability of UK citizens to discuss and engage with publishers’ content.
It is part of a lively and vital public square to be free to debate and discuss articles in newspapers. We have heard some pretty graphic and grim descriptions from the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Clement-Jones, about those comments; but for me, ironically, the comment section in newspapers is a form of accountability of the press to readers and the audience. Although the descriptions were grim, much of that section is intelligent, well-informed and interesting feedback. I will talk a little about hate afterwards.