The Online Safety Bill states that platforms do not have any duties relating to content from recognised media outlets/recognised news publishers, and outlets’ websites are also exempt from the Bill’s scope. At present, the Clause 50 definition of ‘news-related material’ that ‘recognised news publishers’ must ‘have the principal purpose of producing’ is as follows:

(5) In this section—

“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;

Citing the evidence provided by PPA, the Joint Committee scrutinising the Bill recommended: ‘We are concerned that some consumer and business magazines, and academic journals, may not be covered by the Clause [50] exemptions. We recommend that the Department consult with the relevant industry bodies to see how the exemption might be amended to cover this off, without creating loopholes in the legislation.’

The Department has not consulted with PPA as per this recommendation, and this recommendation was not addressed in the Government’s response to the Joint Committee Report.

Recognising the value of specialist journalism

Focusing the exemption on publishers which principally focus on current affairs ignores the value of specialist publications, whose virtue lies in their deep analysis of select interests and industries. This expertise is reflected in the trust that UK citizens have in specialist publishers: Ofcom’s News Consumption in the UK 2020 Report shows the public consider magazine media to be more trustworthy and accurate than TV, print newspapers, radio, and social media, and are the most highly rated news medium for having ‘a range of opinions,’ ‘helping me make up my mind,’ and being ‘impartial.’

Indeed, there is an equivalence between specialist publications and regional and local news outlets in that they focus on the concerns of a specific community, whether based on interest or location. Specialist publishers are in danger of being penalised by virtue of their expert focuses, which is in fact a key element in garnering citizens’ trust in journalism. Digital platforms themselves take a broader view of what constitutes ‘news’. For example, Google News Showcase is open to all publishers as long as they meet the Google News Content Policies: verticals include sports, entertainment, technology, and science.

It should be noted that the BBC, and licence holders under the Broadcasting Act 1990 or 1996 which publish ‘news-related material’, are named as ‘recognised-news publishers’. There is no ‘principal purpose’ requirement for these broadcasters, as the Government has rightly recognised that reliable information is valuable even if ‘news-related material’ does not make up the majority of these broadcasters’ programming, and that trusted information on a broad range of topics is valuable. The same logic should be applied to independently regulated specialist publishers.

It is also significant that the ‘news-related material’ definition includes ‘gossip about celebrities, other public figures or other persons in the news’. This demonstrates that the definition, lifted from the Crime and Courts Act 2013, was originally written in order to encompass tabloid newspapers which publish a high volume of ‘gossip’, as such content was a key focus for the purposes of the 2013 Act. The Online Safety Bill’s Clause 50 definitions have an entirely different purpose to the 2013 Act, and copying the ‘new-related material’ definition without amendment fails to protect specialist journalism.

Furthermore, the dissemination of content online means that the future resilience of media lies in focusing on niche audiences and verticals. Its success lies in organizations that speak to very specific interests and the need for credible content on every topic. A failure to exempt specialist publishers from the scope of the Bill will therefore make the exemptions progressively less effective in protecting journalistic content over time.

A free press and media

In response to the Joint Committee’s recommendation that news publisher content should not be moderated, restricted or removed, the Government stated that such a measure could lead to ‘objectionable’ content being carried permanently. The Government added: ‘Narrowing the definition of ‘recognised news publisher’ to mitigate this presents a serious risk of undermining the government’s commitment to self regulation of the press and wider media freedom.’ However, the Clause 50 definitions would leave a significant number of IPSO regulated publishers unprotected, undermining the system of self-regulation which the Government states it is committed to by creating an inferior ‘tier’ of independently regulated publications.

We have heard concerns that a broadening of the definitions could lead to bad actors being covered by the Clause 50 definitions. However, the Bill already exempts bad actors such as proscribed organisations. Other Clause 50 requirements such as being subject to a standards code and having policies or procedures for handling and resolving complaints further mitigates this risk. Also, whilst Ofcom will not and should not draw up a list of ‘recognised news publishers’, the regulator’s oversight of the regime (with pre-existing expertise in media standards) will further negate the chance of bad actors being encompassed, as it will be able to provide guidance to platforms in its codes of practice.

PPA has also heard arguments that specialist publishers’ content will be protected on Category 1 platforms as the Clause 16 duties to protect journalistic content encompass all ‘journalism’, not just that from recognised media outlets. However, since the draft Bill says only that journalistic content is content ‘generated for the purposes of journalism’, identifying such content will be a highly subjective process. Silicon Valley tech giants will make the call as to what constitutes journalism: independently regulated UK publishers should not be left at the mercy of the tech giants (particularly as platforms are likely to rely on imprecise algorithms). A situation could arise whereby independently regulated specialist publishers would be wary to publish online what would be perfectly safe to publish in print.

Solutions

The Government has committed to enhanced protections for recognised media outlets. This is imperative, as at present there is no incentive for Category 2A and Category 2B platforms to not remove content. Further, the Clause 16 duty stating that Category 1 platforms’ systems and processes must ensure ‘that the free expression of journalistic content is taken into account’ will not prevent the arbitrary takedown of reliable content by indiscriminate and over-cautious algorithms .

Given that recognised media outlets will have enhanced protections, it is all the more imperative that ‘special interest news material’ is encompassed by the Clause 50 definitions, meaning specialist publishers focusing on interests or industries (often including current affairs information) are classified as recognised media outlets.

PPA would welcome the opportunity to discuss these necessary changes in greater detail, including amendments we have drawn up which would ensure the Clause 50 definitions recognise specialist publishers as an indispensable element of the UK’s media ecosystem.