Big tech accountability? Read how we got here in  The Closing of the Net 

 TL;DR The UK government's Online Safety Bill creates a double standard for freedom of expression that protects large media empires and leaves ordinary citizens exposed. It grants special treatment to the large news publishers and broadcasters, who get a carve out from the measures in the Bill so that headlines like the notorious "Enemies of the People" get special protection from the automated content moderation systems. They even get a VIP lane to complain. Foreign disinformation channels would also benefit from this carve-out, including Russia Today. Content posted by ordinary British people could be arbitrarily taken down.

The  Online Safety Bill [1] contains provisions to carve out a space for the UK print and broadcast media, giving their content special safeguards against removal - safeguards that ordinary citizens will not benefit from. It threatens to create a system of arbitrary restrictions that censor the speech of ordinary British citizens and privileges the wealthy media barons.

Media companies have sought to get their own in-house websites out of scope of the Bill, but this is not the main point here. Their big ask was to be protected from the automated content moderation processes that will have to be operated by social media platforms in order to comply with the Bill's complex and draconian requirements.

Notably, this request came from the Daily Mail, a UK tabloid newspaper that also has a large online operation with an international audience. It is the newspaper that wrote the infamous 'Enemies of the People' headline. It has lobbied since 2014 to get this Bill, and I was reliably informed at the time that it could be sitting outside the door when government was briefing industry on new proposals.

The Daily Mail argued that it does not want to have to edit its content in line with the terms and conditions of the global platforms [2]. It said this would represent a constraint on its freedom of expression – a fair point, notwithstanding that this constraint will apply to everyone else as well.

However, they got their wish, and Clauses 6 and 16 carve out journalistic content. It means that posts uploaded by UK media organisations will get special treatment with regard to content moderation decisions taken by the large social media platforms. Technically the requirement will apply to those identified as Category 1 services in the Bill - these will be defined by Ministers after the Bill is passed. [See Online Safety Bill: Ministers to get unprecedented powers over speech ]

The carve-out kicks in where content is identified for a restriction. The platforms will be put under pressure to justify any restrictions on UK media accounts, and operate a dedicated VIP complaints line where media can speak to a human being and seek redress. This is significant because other users will not get this facility.

To qualify for the exemption, the content must either be uploaded by the media organisation directly, or, if uploaded by another user, it must be the whole text of an article (or a complete recording of a news broadcast) or a link to it, but not a snapshot or excerpt.

The media carve-out appears in the bill as 'journalistic content' under the heading of 'Freedom of expression etc'(sic). This is a bit cheeky as freedom of expression is a right that applies to us all. [see Online Safety Bill - Freedom to interfere? ] It is not a special right for the mainstream media, and for that reason, this whole provision is problematic.

Implementing the carve-out will not be as straightforward as it might appear. "Journalistic content " [Clause 16(8)] is first of all defined as content uploaded by a 'recognised news publisher' [Clause 49(9)] which meets a range of conditions [Clause 50] including that it is registered either with Ofcom (broadcasters) or complies with a press standards code (print media and some online media), has an editorial function in its organisation and has a physical address in the UK. This would include some smaller independent news organisations, but implicitly it excludes bloggers and independent news websites that have not registered with the relevant regulatory body.

However, Clause 16(8) adds a catch-all provision: journalistic content is 'content that is generated for the purpose of journalism'. It's typical of the circular descriptions all through this Bill. The content also has to be 'UK-linked', which is defined as UK users are a target market or the content 'is likely to be of interest to a significant number of UK users'. [Clause 16(9)].

In this sense, it forces the content moderators to look, not only at the content uploaded onto the service, but to decide on a case by case basis who uploaded it and where it comes from, and make a determination as to whether it was 'generated for the purposes of journalism'.

The self-regulatory body for news publishers, IMPRESS, suggested that the text of Clause 16 leaves open loopholes for bad actors to exploit. [3]

UK government thinking was explained by Secretary of State, Nadine Dorries, giving evidence to UK Parliament's Joint Committee on the Draft Online Safety Bill on 4 November 2021. She said that the responsibility " would be on the platforms to make an assessment as to whether the person posting as a citizen journalist actually was." [4] This is deeply problematic. It gives absolute discretion to the platforms to make determinations about who is or is not a journalist, or whether a publication is journalistic, and on that basis to accord special privileges - or not.

Moreover, it begs the question - how will the online platforms know what is a journalistic publication and what is not? The Minister for Tech and the Digital Economy, Chris Philp, [5] , said that the test 'applies applies to the content they are writing, not the identity of the person'. However, this does little to add clarity and is more likely to cause confusion.

Mr Philp added that the judgment the platforms will have to make is 'not so much about the identity of the individual, and whether they are a journalist, a citizen journalist or neither of those, but whether the content itself meets the test of being journalistic. There is clearly an element of subjectivity and judgment in that, and they [the platforms - Ed] will have to look at each bit of content and make that determination'. In essence, the Minister is suggesting that the online platforms take arbitrary decisions about whose content can be safeguarded and whose can be summarily removed. His words do not help either platforms or journalists understand what will or will not be addressed. But this is a government well known for not understanding its own laws.

It this raises the prospect of content moderators sitting in India, or in Silicon Valley, or maybe even Ireland, deciding whether the content is produced for the purposes of journalism, and whether it is "likely to be of interest to a significant number of UK users'. The moderators may be looking at the content themselves, or they may be coding algorithms. Either way, one has to question how they will take these decisions, and possible impact when people from outside the UK, with variable knowledge of UK politics and culture, are making judgements over the free speech of British citizens. 

And finally, Clause 16 raises an interesting anomaly. Ofcom licenced broadcasters will benefit from the media carve-out. The list of licenced channels [5]  includes a number of non-UK broadcasters including Al Jazeera English, Bloomberg News (with a US address) and the Russian broadcaster,  RT. [6]

Since I first wrote this,  RT's licence has been revoked by Ofcom as part of a raft of sanctions against Russia over its war crimes in Ukraine. However,  it's still worth posing the question. Does this meet with the Bill's aim to keep UK Internet users safe? Would the free speech of a channel  funded by a hostile State, get preferential treatment over the free speech of British citizens?
I will leave it there.

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Photo – Chris Philp giving evidence at the 4 November session of the Joint Committee on the Draft Online Safety Bill. Screen shot taken by me from the Parliamentlive.tv website -

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Iptegrity is made available free of charge under a Creative Commons licence. You may cite my work, with attribution. If you reference the material in this article, kindly cite the author as Dr Monica Horten, and link back to Iptegrity.com. You will also find my book for purchase via Amazon.

About me: I've been analysing analysing digital policy for over 14 years. Way back then, I identified the way that issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing. For many years before began my academic research, I was a telecoms journalist and an early adopter of the Internet, writing for the Financial Times and Daily Telegraph, among others. 

Please get in touch if you'd like to know more about my current research.

If you liked this article, you may also like my book The Closing of the Net which discusses the backstory to the Online Safety Bill. It introduces the notion of structural power in the context of Internet communications. Available in Kindle and Paperback from only £15.99!

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[1] Online Safety Bill as introduced to the House of Commons on 17 March 2022 

[2] Written evidence submitted by DMG Media OSB0133  Paragraph 4.

[3] Written evidence submitted by IMPRESS (OSB0092)

[3]  Draft Online Safety Bill (Joint Committee) Oral Evidence transcript 4 November 2021 Nadine Dorries Q282 

[4]  Draft Online Safety Bill (Joint Committee) Oral Evidence transcript 4 November 2021 Chris Philp Q282 

[5]  Ofcom TV broadcast licencees 

[6] Ofcom RT licence 

 

 

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Iptegrity.com is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing. I am on the Advisory Council of the Open Rights Group.  I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. For more, see About Iptegrity

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