Online Safety Bill

Lord Clement-Jones Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

Moved by

[Lord Clement-Jones]

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.

[Lord Clement-Jones (LD)]

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”.

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.

[Lord Black of Brentwood (Con)]

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.

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.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his responses to the number of different issues that he has been asked about after he sat down, so to speak, which I think have been taken on board. I thank the noble Baronesses, Lady Gohir and Lady Grey-Thompson, and the noble Lord, Lord Allan, for their support for these amendments.

It is also a pleasure to see the noble Lord, Lord Black, who has clearly been lured out at this late hour—perhaps not so unwillingly; it gives him a chance to rehearse some of the arguments for the media Bill coming down the track. Along with the noble Lord, Lord Faulks, I am sure he will enjoy the media Bill when it comes. I had many happy hours sitting next door to the noble Lord, Lord Black, on the Joint Committee on the draft Bill, on which I may say that we agreed on most things.

But the fact is that one person’s strong exemptions is another person’s special privileges, and that very much applies in these circumstances as regards what I think the noble Baroness, Lady Fox, would call the mainstream media. I enjoyed what the noble Baroness had to say, because she came round to some kind of agreement at the end on what we might call mainstream media exceptionalism, which is a fair description. There is an element of cakeism about the way that the mainstream media seem to want to have it.

The Minister talked about low-risk services, and I think that was the reason why we had these questions asked about risk assessment. How does the Minister know that these below-the-line comments sections are low-risk unless a risk assessment has been made? We heard from the noble Baronesses, Lady Grey-Thompson and Lady Gohir, about the content of some of those comments sections. That does not sound low-risk to me at all, and I think that is the basis of their support for the amendments. When the Minister says it is not proportionate to regulate these comments sections, he is assuming they are low-risk services without much evidence. He threw a small bone by saying that sites can be held liable for illegal content, but that is a relatively small bone in those circumstances.

I took some comfort from the way that the noble Baroness, Lady Stowell, talked about the need for constant evaluation. Perish the thought, but we may well need an online safety Bill number 2; I just hope it is not too soon and that we have time for a little evaluation of how this Bill operates. That is why I am pretty keen that we should get this Bill into the best possible shape.

I thought what the noble Lord, Lord Knight, had to say about post-legislative scrutiny was very apposite, but the hour is late so I will not go through too many other aspects of this. This has been a good debate. I hope the media Bill is not déjà vu all over again, but we will see what happens when we get to it. In the meantime, I beg leave to withdraw the amendment.

Amendment 124 withdrawn.