Written evidence submitted by Hacked Off
Digital, Culture, Media and Sport Sub-committee on Online Harms and Disinformation Call for Evidence:
Online safety and online harms
Response of the Hacked Off Campaign
September 3rd 2021
- Hacked Off campaigns for press accountability and media freedom. Our response to this Call for Evidence addresses the fifth question only:
Are there any contested inclusions, tensions or contradictions in the draft Bill that need to be more carefully considered before the final Bill is put to Parliament?
- In our view, the bill contains contradictions and flaws which make it unfit for purpose.
- Firstly, the bill it provides an exemption for the social media accounts of some news publishers, and search results listing their websites and those which republish their content, which:
- Relies on a flawed definition of a news publisher, which would inadvertently risk exempting publishers of egregiously harmful and dangerous content from the effects of the bill, and,
- Would create a regulatory “double standard” between the free speech of citizens on technology platforms and that of newspaper publishers.
- Secondly, the bill exempts all newspaper publisher comment forums, where some of the most egregious cases of online harm appear (“the Comment Forum Exemption”).
- The submission below sets out the problems with the bill in more detail, and is followed by three appendices setting out the evidence:
Appendix A: Examples of harmful publishers likely to be included in the bill’s proposed exemption for news publishers.
Appendix B: Examples of standards-abiding publishers which would be deprived of the publisher exemption, as drafted in the bill.
Appendix C: Examples of content which may be deemed harmful under the new regulatory regime, but which would be exempt from it because it appeared on a newspaper comment forum.
The News Publisher Content Exemption
- This exemption is listed alongside other exemptions for regulated content in subclause 39(2) and is defined in subclauses 39(8 – 10) as content published by, or originating with, a “recognised news publisher”. The intention of this exemption is to shield broadcasters and traditional newspaper publishers from actions that providers of search services and user to user services are otherwise compelled to take to protect the public from online harms under the regulatory regime proposed in the bill.
- Clause 40 defines a “recognised news publisher” as a broadcaster, or a publisher which meets the following criteria:
(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,
(e) has a registered office or other business address in the United Kingdom,
(f) is the person with legal responsibility for material published by it in the United Kingdom, and
(i) the entity’s name, the address mentioned in paragraph (e) and the entity’s registered number (if any), and
(ii) the name and address of any person who controls the entity (including, where such a person is an entity, the address of that person’s registered or principal office and that person’s
registered number (if any)).
- This definition provides no proper protection for the public for a number of reasons.
- First, by clause 40(c) the publisher must have a “standards code”, but the clause does not specify any requirements that a “standards code” must meet. The only stipulation (subclause 40(5))) is that the code is published by an “independent regulator” (which is also undefined) or by the publisher itself. This means that the code could contain literally anything; it could incentivise misconduct, for example, instead of outlawing it.
- Second, by clause 40(d) the publisher must have “policies and procedures for handling and resolving complaints”, but there is nothing further specifying what policies & procedures are sufficient. If the rationale for the exemption is to protect news publishers having their content twice regulated, then the bill must require that any regulation already in effect is sufficiently robust. A vague requirement to “have policies and procedures” provides no protection whatever: such policies & procedures may be entirely unfit for purpose. They may be unwritten, amendable at the convenience of the publisher, or dictated and controlled by the publisher itself to ensure that no complaint can ever be successful.
- The effect of the way these criteria are drafted in clause 40 is that websites and outlets which specialise in disinformation (“fake news”) and other hateful, harmful or abusive material may qualify, and thus benefit from an exemption from the regulatory effects of the bill. Some examples are set out in Appendix A. They include “Heritage and Destiny”, a website and magazine which promotes antisemitism and other racist beliefs. It should be unacceptable for the hateful content of such outlets to benefit from an exemption in the bill, yet this is what the bill currently proposes.
- Indeed, under the current terms of this definition, Heritage and Destiny would be able to freely publish a recent article which claimed that people of colour are of a weaker temperament than white people. Racist material of this type should be within the scope of the harms of the bill, yet under this definition they are likely to be exempt when posted by Heritage and Destiny if it is within the definition of “news publisher”.
- Websites in the tradition of “lads mags” may also be able to claim an exemption. These websites publish some news-related material alongside images of women. The exemption would apply to the publisher, not the content, so the Twitter accounts of these sites would be free to publish semi-naked and suggestive images of women (which may be found to be harmful to children, under the terms of the bill), with impunity. An example is set out in Appendix A (“Man On”).
- There is another category of publishers which do not meet the criteria now but could do so with minor administrative changes. These are US-based publishers, who could nominate a UK-based entity with legal responsibility for the publication, adopt a “standards code” and “complaints policies”. There are a number of examples of explicit US hate websites who could qualify for the exemption. Three examples are listed in Appendix A.
- Another problem with this exemption is that, while in some ways it is too broad, in others it is too narrow. For example, the requirements to have a “registered office” or “business address” would exclude many blog outlets, as would the requirement for content to be produced by different persons. This would adversely affect hundreds if not thousands of publishers. See Appendix B for some examples of publishers which are independently regulated – to a significantly higher standard than many national newspapers – yet would be cut out of this definition for reasons connected to the manner of their establishment (because they don’t have a postal address or are produced by a single writer). This is unfair and irrational.
- More fundamentally, the News Publisher Content Exemption would create two tiers of regulation: the freedom of expression of ordinary citizens would be more restricted than that of news publishers.
- One intended effect of the regime set out in the bill is that regulated services would act to address user-posted harmful content on their services. This would necessarily restrict users’ ability to exercise their freedom of expression on the platform (where doing so harms others).
- Waiving service providers’ regulatory responsibilities in respect of content published by those which meet the criteria for “recognised news publishers” would, therefore, have the effect of subjecting most users to greater restrictions on their freedom of speech than those publishers.
- This would leave content posted by publishers (who often have social media accounts with large number of followers) less regulated than citizen-posted content. This is wrong. Citizens’ rights to freedom of expression are of no lesser value than those of news publishers. Further, given the reach of the largest publishers, if there is to be variation in how citizens and publishers are treated, it is publishers which are capable of greater harm and should therefore face more robust regulation of content.
- One argument the Government relied on in its defence of the various exemptions and areas of special treatment for newspaper publishers in the bill is that these titles are already regulated (so that the content they post is already more strictly controlled than that of ordinary citizens). But as set out above, the definition of a “recognised news publisher” makes no requirement whatever for publishers to be regulated in any form. All manner of unregulated, fringe and extreme websites could bring themselves within the definition of “news publishers” while many well-regulated publishers do not fit within it.
- The two-tiered system of regulation under the bill, therefore, would allow extreme publishers like Heritage and Destiny to publish racist content, while citizens posting the same content would see it (rightly) taken down.
- Equally, this would also cause citizens to be treated differently to popular publishers. After the terrorist attack in New Zealand in March 2019, popular news publishers including MailOnline and the Daily Mirror published video footage of the attack recorded by the killer. The MailOnline went further and published the killer’s manifesto. Both the video (recorded by the killer) and the manifesto were articles of extremist propaganda, and Twitter, Facebook and YouTube rightly took action to have them removed from their platforms (not quickly enough, but action was taken). Yet, it is likely that this content was made available to a far larger audience by the news publishers. If this were to happen again, the Online Safety Bill regime would rightly cause citizens’ posts of this content to be addressed, but not those of news publishers’.
A fair definition for a “recognised news publisher”
- If newspapers are to be exempted from these provisions, a suitable definition of news publishers would need to be:
- Sufficiently inclusive to cover all journalistic enterprises, and,
- Sufficiently exclusive to ensure only titles regulated at least to the standards of the bill are able to benefit from this exemption.
A definition which does not meet those criteria would suffer from the unacceptable flaws described above.
- There is only one legally established mechanism capable of verifying the effectiveness of regulatory bodies for news publishers. This is the definition of an “Approved regulator”, which is defined in section 42 of the Crime & Courts Act 2013 as a regulator which has passed an independent audit under the regime recommended in the Leveson Report.
- Outside of that system there are a variety of other complaints-handling processes adopted by various publishers which may meet the criteria for a “recognised news publisher” in Clause 40. These include the processes adopted by newspapers such as the Financial Times and the Guardian (which are not subject to any external scrutiny) or the notoriously inadequate complaints handling procedures of IPSO. None have been independently verified as effective and, therefore, no reasonable definition is capable of separating those among them which are more effective than others.
- Any definition of a news publisher for whose content an exemption from these provisions would be appropriate must then rely on the auditing system referred to in the Crime and Courts Act 2013. One such regulator exists, IMPRESS.
- Exempting only independently regulated publishers would ensure that any title, big or small, written by a team of professional writers or a single volunteer, could benefit from the exemption. If an exemption is required it should be available only to publications which are effectively and independently regulated.
The effect on unregulated publishers would be proper and proportionate
- Some of the large newspaper groups have insisted that they will not be independently regulated under any circumstances. If this exemption were to be limited to independently regulated titles only, some of these newspapers’ content would be indirectly affected by the regime. But even should that be the case, the effect on these newspapers would be proper and proportionate.
- The Bill does not extend to newspaper-published content on their own websites or paper editions; it is limited to the way in which service providers manage content on their services. The impact of losing this exemption for those publishers would, therefore, have no impact on newspapers’ ability to publish content on their own platforms.
- The only possible impact for news publishers which are not independently regulated would be felt if content published by a newspaper was posted on a social media platform or appeared in search results and was sufficiently harmful to the public to be in breach of the standards agreed under the new regime. In this case, the service provider might act to address that posting or search result. The newspaper would remain free to publish the content on its own website and in its paper edition, both of which would be beyond the scope of Ofcom’s regulatory powers and responsibilities.
- If the newspaper wished to contest a service provider’s decision to take action against content on the provider’s platform, the publisher would benefit from the fast-track appeal process for journalistic content (clause 14), which (in contrast to the exemptions) is open to all journalists; citizens or publisher-employed. Any decision to remove a posting would also be subject to various protections on information of democratic importance and freedom of expression set out in clauses 12 and 13. Equally, if the content was of no democratic importance and was harmful to the public, it is reasonable that it would be dealt with like any such content posted by a member of the public.
- This exemption is irrational and fails to protect the public from an important category of potential harm. The case for having it at all is weak. If it is to remain, it should be restricted to independently regulated publications.
The Comment Forum Exemption
- Clause 2(1) of the Bill defines user-to-user services as online forums in which users will encounter content posted by other users. Newspaper publishers’ comment forums fall within that definition.
- However, comment forum content is made exempt by Clause 39(2)(d). This specifically exempts “comments and reviews on provider content”. This is defined in Clause 39(5) as:
content present on the service consisting of comments on, or reviews of, content produced and published on the service by the provider of the service or by a person acting on behalf of the provider (together with any further comments on such comments or reviews)
Comment forum content contains online harms
- So far as it covers national newspaper publishers this exemption cannot be justified. The comment forums of the largest newspaper websites contain harmful content, including antisemitism and other forms of racism, personal abuse and conspiracy theory disinformation. The harmful content which appears on comment forums – which are social media forums themselves, where users encounter one another’s content and respond to it – is very similar to that which appears on other social media forums like Facebook and Twitter.
- Many examples are listed in Appendix C. They include:
- Antisemitic abuse such as, “The Talmudic religion wants to enslave you”, and allegations that Jewish people control the media, the banks, and similar.
- Other racist abuse, such as “The ch*nks are savages, communist liars… a plague of locust” (asterisk added)
- Personal abuse, including misogynistic abuse such as, about a female academic, “She must have such a lonely and bitter life to be so full of hate. That and being so unattractive”, “swivel-eyed mad w0man”, “Isn’t assassination allowed”, “A face a dog wouldn’t lick” and “Disgusting Dog”.
- Harmful disinformation, including comments to the effect that COVID was designed by a global elite, that Bill Gates started the pandemic to control the population, and similar.
- Harmful content posted on newspaper comment forums often has the potential to have a far higher reach. For example, the MailOnline reaches almost 25m people/month. The total number of UK users on Twitter is estimated to be just 17.55m.
- Removing this exemption would have no effect on editorial content. The exemption exclusively covers content published by users (commenters).
IPSO and IMPRESS do not deal with this content appropriately
- The press complaints-handler IPSO and regulator IMPRESS have argued that they are dealing with this content. But the auditing system referred to in the Crime and Courts Act 2013 does not cover regulation of User Generated Content (“UGC”), meaning there are no guarantees that audited regulators such as IMPRESS are regulating UGC appropriately. In fact, neither of the popular complaints-handlers (neither IMPRESS nor IPSO) have appropriate systems in place to regulate UGC.
- One important virtue of the regime set out in the Bill is that it would require service providers to take pre-emptive action to prevent harms from being committed. This is described by the Government as “safety by design”. In contrast, the “IPSO” system requires a complaint to be made about content, and a 30-day period, before the body will even consider the complaint. It will also not consider complaints about content which has not been moderated. The IMPRESS system is not substantively different in this respect.
- One example referred to above is a post on an IPSO-member website which repeated a well-known antisemitic conspiracy theory alleging that Jewish people control society. Under IPSO, that comment might sit on the newspaper’s platform for a week before anyone reports it. Another 30 days may go by while the publisher refuses to take it down before IPSO get involved. An IPSO complaint can, then, take up to a year or more to process.
- IPSO’s record on UGC speaks for itself. Some of the examples set out in Appendix C show that content was left posted for some time before action was taken. The examples cited in a 2020 Hacked Off report show harmful comments remained accessible for months, in many cases. If the provisions of the bill do not address this kind of UGC then it will remain possible for seriously harmful content of the kind described in this submission to be posted and accessible to millions of readers.
- A further problem, specific to IPSO, is that this body relies on the “Editors’ Code” – a standards code written by newspaper editors. This code contains no provision concerning group discrimination. This is why it is possible for newspaper columns to refer to migrants as “cockroaches” and similar; no complaint can be made against any content which is discriminatory against a group of people (for example, migrants, Muslims, Jewish people, people with disabilities, and so on). If hateful content directed against a group of people is to be identified as a “harm”, then IPSO will be unable to address it in comment forums at all.
- Finally, as well as IPSO, IMPRESS also relies on the standards code it uses for editorial content to regulate UGC. Unlike IPSO, IMPRESS’ code includes group discrimination and is approved by an independent board. But both codes are designed to regulate editorial content, not UGC. They therefore set inappropriate thresholds. For example, both have a reasonably strong accuracy clause which, although poorly enforced by IPSO in practice, should in theory outlaw even fairly minor inaccuracies in publishers. That is appropriate for newspapers, but not for citizens posting UGC, for which a more appropriate threshold might require an inaccuracy to also be capable of causing harm. In theory, therefore, the codes could require publishers to take action against even minor inaccuracies in comment forums (albeit, on a slow timescale as set out above). This would impact on citizens’ freedom of expression to a degree which would be incompatible with the principles of the bill.
- In summary, neither IPSO nor IMPRESS is dealing with comment forums effectively or in a manner consistent with the principles and approach of the Bill. The effect is felt by hundreds, if not thousands, of people who are affected by hate, harmful disinformation and abuse in comment forums every year. There is no good reason to leave comment forum regulation to complaints-handlers which are designed to cover editorial content, and lack the expertise required to cover comment forums. Additionally, many publishers are not a member of either popular body. Instead, national newspaper commenting forums should be covered by the new regime which has been specifically drafted to deal with these forms of content.
Protecting blogs and small publishers
- The requirements of compliance with the bill will not be burdensome for larger organisations but may be unduly so for smaller publishers which allow comments if this exemption were limited. The potential for commenting forums of smaller outlets to cause harm is lower than national outlets, given their reduced reach.
- The appropriate approach, therefore, would be retain the exemption for smaller publishers’ forums but ensure the larger titles’ forums are subject to the regime. This could be achieved by designating national newspaper publishers as category 1 services, and specifying within the exemption that it does not apply to entities so designated.
- Newspaper comment forums host harmful content similar to that found on Twitter and Facebook – and with a potentially greater reach. Neither IPSO nor IMPRESS has a system for dealing with UGC which is equivalent in effectiveness, approach or objective to the regime set out in the bill. The burdens of the regime would be minor for large publishers, where comment forum harm causes the most damage. Such entities should be subject to the regime.
Publishers which may be eligible to claim an exemption as a “recognised news publisher”
The following publishers may be able to claim their content is exempt from the bill’s effects on social media platforms, by meeting the bill’s criteria for news publishers.
Heritage and Destiny
This is a racist news website and magazine promoting “racial nationalism”.
It recently published a tribute to the Holocaust denier Henry Hafenmayer, and an article suggesting England men’s black football players should not be picked to take penalties because people of colour do not perform “well under pressure”.
Provided it can show it has a complaints process & standards code (which could constitute anything, according to the bill), it would likely gain an exemption.
Examples of recent content which may be exempt:
Henry Hafenmayer – champion of German freedom – dies aged 48
Two very different wings of the anti-Islam movement
Did ‘racism’ win on penalties?
This is a news website promoting harmful and dangerous conspiracy theories (some of which have racist themes).
Examples of recent content which may be exempt:
“How they are killing you and calling it Covid”
“Fascist Israeli government bars unjabbed or untested teachers & healthcare workers from workplaces (Israelis – your country is not controlled by Jews but by a Sabbatian cult posing as Jews. Sabbatians hate Jews. Play that across current events and it all makes sense)”
“60% Of Those Older Than 50 Who ‘Die From Covid’ Are Double Vaxxed (They die from the fake vaccine NOT ‘Covid’!)”
This website claims that “Our aim is to be your go-to home for news, interviews and features”. In practice however, presently at least, it appears to exclusively publish pictures of women in underwear.
One requirement among the criteria for a news publisher is that the publisher principally publishes news-related material but adds that this may include “gossip”. There is no further guidance on how this is defined, which may allow websites such as these, which specialise in soft-core pornography, to be exempt.
Examples of recent content which may be exempt:
“Emma Glover needs your help – and she’s gone topless to say thanks”
“It’s Coming Home: Our girls’ booby message of support for England!”
“Joey Fisher is brilliant in blue for booby new shoot”
Many similarly harmful websites also exist in the US. The criteria for the exemption in the bill include requirements that the outlet has a UK address, but any publisher could create one and establish itself as having a UK-based element to help them qualify.
The following outlets are examples of those which are at risk of becoming exempt, by making the necessary administrative changes to meet these criteria:
National Vanguard, an antisemitic hate website.
Evil News, a conspiracy theory website.
InfoWars, a conspiracy theory website
Standards-abiding publishers which may fall short of the definition to qualify for the news publisher exemption
These publishers are independently regulated and are therefore subject to a form of regulation more stringent than most national newspapers, and, of course, the various extremist outlets referred to in appendix A. However, the criteria to benefit from the exemption includes that the publisher has a registered business address and that an address is published on its website. These three outlets are examples of those which do not meet all of these criteria and may therefore be deprived of this exemption.
The terms of the exemption are likely to specifically discriminate against local publishers.
Online harms committed in national newspaper comment forums
The below lists some of the examples of different kinds of harmful content found in newspaper comment forums.
Comments found after reviewing The Sun’s coverage of the Halles terrorist attack on a synagogue, 10th October 2019.
Under Sun coverage of the rapper Wiley’s Twitter ban, after he published antisemitic tweets, 25th July 2020. These comments remained accessible on The Sun’s website for at least 5 days.
Other forms of racism
Under Sun coverage of wet markets in Asia:
Under Sun coverage of activities at a Wuhan laboratory: