Guidance

Fact sheet on enhanced protections for journalism within the Online Safety Bill

Published 23 August 2022

Summary

In recognition of the need to protect the invaluable role of a free press in our society and democracy, the government has made a number of amendments to the Online Safety Bill in relation to content published by a recognised news publisher. These amendments, added to the Bill in the House of Commons on 12 July 2022, will:

• Prevent platforms from arbitrarily removing news content by introducing a new ‘temporary must carry’ provision. Platforms will need to notify news publishers and offer a right of appeal before removing or moderating content;
• Clarify the explicit protections for ‘below the line’ comments on news publishers’ sites on the face of the Bill;
• Introduce a duty on Ofcom to undertake and publish a review of the impact of the Online Safety regulatory framework on availability of journalistic content and news publisher content, as well as a requirement on platforms to carry out and publish an assessment of the impact that policies to fulfil their safety duties will have on news publishers’ content. This will ensure that the framework does not have unintended consequences on access to news material.

Background

1. The Online Safety Bill introduces new rules for firms which host user-generated content, i.e. those which allow users to post their own content online or interact with each other, and for search engines, which will have tailored duties focussed on minimising the presentation of harmful search results to users.

2.Those platforms which fail to protect people will need to answer to Ofcom, the regulator, and could face fines of up to ten per cent of their revenues or, in the most serious cases, being blocked.

3.The Bill will defend freedom of expression and the invaluable role of a free press. Our online safety laws will usher in a new era of accountability for tech companies that will uphold free expression and pluralism online.

Existing protections for journalistic content within the Bill

4. A free press is one of the pillars of our democratic society. The new legislation has been designed to safeguard access to journalistic content.

5. The legislation contains safeguards for news publisher content and wider journalistic content when it is shared on in-scope social media platforms.

6. First, news publishers’ content will be exempted from platforms’ new online safety duties. Tech companies will be under no legal obligation to apply their new safety duties to it. This means platforms will not be incentivised to remove news publishers’ content as a result of a fear of sanction from Ofcom.The criteria against which an organisation qualifies as a publisher is set in the Bill. If an organisation meets these criteria, then its content will be exempt from the safety duties.

7. Secondly, legislation will also impose a duty on Category 1 companies to safeguard all journalistic content shared on their platform (including news publishers’ journalistic content). These platforms will need to have systems in place to ensure they take into account the importance of the free expression of journalistic content when operating their services. This means they will have to create a policy which counterbalances the importance of giving journalism free expression against other objectives which might otherwise lead to it being moderated, and implement this policy consistently. Among other measures, companies will need to create expedited routes of appeal for journalists, so that they can submit appeals if their content is moderated.

8. Finally, news publishers’ content on their websites is not in scope of online safety regulation, and the Bill also includes an explicit exemption for below-the-line comments. This applies to any comments on content published directly by a service provider.

‘Temporary must carry’ provision (New Clause 19^{[footnote 1]})

9. This new provision will require platforms to notify a recognised news publisher, as defined by section 50 of the Bill, and allow those news publishers to appeal before removing or moderating their content or taking action against their account. The aim of this amendment is to ensure that social media users’ access to news content is not unduly disrupted by content moderation arising from the provisions in the Online Safety Bill.

10. Following the appeal process required by these amendments, if the content published by the news publisher breaches a platform’s terms and conditions, platforms can still choose to remove or moderate that content or take action against their account.

11. In order to benefit from the protections, publishers will have to either hold a UK broadcasting licence, or meet the other objective criteria set out in section 50 of the Bill. Only companies that can be held legally liable for the content that they publish will be able to benefit from the protection. The criteria to define a recognised news publisher include that the publisher needs to:

• a. publish a registered UK address;
• b. have a standards code;
• c. have the publication of news-related material as its principal purpose;
• d. have material created by different people (i.e. to exclude individual bloggers);
• e. have editorial control.

12. To reduce the risk of bad actors benefitting from the protections, the definition explicitly excludes any entity which is a proscribed organisation under the Terrorism Act 2000, or any entity whose purpose is to support a proscribed organisation under that Act. We intend to make further amendments to ensure that entities that are subject to sanctions are also excluded.

13. The protections will also not apply to any content which amounts to a relevant offence as defined by the Bill, or to any content where the platform would incur criminal or civil liability in leaving it on the site. In the event that content crosses these thresholds, platforms will be able to remove it immediately. They will still be required to notify publishers, and offer a swift right of appeal, although only after the content has been removed.

Below the line comments (amendments 173, 177, 178, and others^{[footnote 2]})

14. As set out above, below the line comments are already exempt from the Bill under a general provision that excludes comments and reviews on ‘limited functionality services’ from the definition of “regulated user-generated content”. This includes recognised news publishers’ sites as well as user reviews on directly advertised products and services from the definition of “regulated user-generated content”.

15. These amendments will further strengthen these protections. Reflecting the government’s commitment to media freedom, the amendments remove the ability of the government to repeal this exemption via secondary legislation, where it applies to comments on news publishers’ sights. This means primary legislation would be needed to bring these comments into the scope of regulation.

16. This recognises that the need to safeguard media freedom outweighs the limited risks that may be posed in any comment sections. User comments are crucial for enabling reader engagement with the news and encouraging public debate, as well as for the sustainability of the news media.

Category 1 service provider impact assessment (amendments 167, 168)

17. We recognise that as the legislation comes into force, it will be necessary to ensure that Category 1 companies understand and take steps to mitigate any impact on the free expression of news publishers and journalistic content.

18. We have therefore introduced a requirement on Category 1 companies to assess the impact of their safety duties on how news publishers’ and journalistic content is treated when hosted on their service. This assessment will form part of the existing requirement on Category 1 companies to assess their impact on freedom of expression.

19. Category 1 companies must then demonstrate the steps they are taking to mitigate any impact. They will need to assess their impact on the free expression of news publishers and journalistic content both when deciding on, and after they have adopted, their safety policies.

20. This will help to mitigate the risk of platforms overly removing or moderating such content when complying with their new safety duties under the Bill.

Ofcom review of the Bill’s impact on news publisher and journalistic content (New Clause 20^{[footnote 3]})

21. We recognise that as legislation comes into force, it will also be necessary to ensure that these protections are effective in ensuring that the regulatory framework does not negatively impact access to news publisher and journalistic content.

22. Therefore, these government amendments require Ofcom to produce a report assessing the impact of the Online Safety Bill on the availability and treatment of news publisher content and journalistic content on Category 1 services. They must do this within two years after the relevant provisions in the Bill are commenced. The Secretary of State may also require Ofcom to produce and publish further reports no more than once every three years after this.

Annex - Text of New Clauses and Lists of Amendment Numbers

The text of the amendments that the numbers below refer to can be found in the July 2022 Notices of Amendments papers.

1) ‘Temporary must carry’ provision

New Clause 19

“Duties to protect news publisher content

(1) This section sets out the duties to protect news publisher content which apply in relation to Category 1 services.

(2) Subject to subsections (4), (5) and (8), a duty, in relation to a service, to take the steps set out in subsection (3) before—

` `- (a) taking action in relation to content present on the service that is news publisher content, or

` `- (b) taking action against a user who is a recognised news publisher.

(3) The steps referred to in subsection (2) are—

• (a) to give the recognised news publisher in question a notification which—

  • (i) specifies the action that the provider is considering taking,

  • (ii) gives reasons for that proposed action by reference to each relevant provision of the terms of service,

  • (iii) where the proposed action relates to news publisher content that is also journalistic content, explains how the provider took the importance of the free expression of journalistic content into account when deciding on the proposed action, and

  • (iv) specifies a reasonable period within which the recognised news publisher may make representations,

• (b) to consider any representations that are made, and

• (c) to notify the recognised news publisher of the decision and the reasons for it (addressing any representations made).

(4) If a provider of a service reasonably considers that the provider would incur criminal or civil liability in relation to news publisher content present on the service if it were not taken down swiftly, the provider may take down that content without having taken the steps set out in subsection (3).

(5) A provider of a service may also take down news publisher content present on the service without having taken the steps set out in subsection (3) if that content amounts to a relevant offence (see section {j52} and also subsection (10) of this section).

(6) Subject to subsection (8), if a provider takes action in relation to news publisher content or against a recognised news publisher without having taken the steps set out in subsection (3), a duty to take the steps set out in subsection (7).

(7) The steps referred to in subsection (6) are—

• (a) to swiftly notify the recognised news publisher in question of the action taken, giving the provider’s justification for not having first taken the steps set out in subsection (3),

• (b) to specify a reasonable period within which the recognised news publisher may request that the action is reversed, and

• (c) if a request is made as mentioned in paragraph (b)—*

  • (i) to consider the request and whether the steps set out in subsection (3) should have been taken prior to the action being taken,

  • (ii) if the provider concludes that those steps should have been taken, to swiftly reverse the action, and

  • (iii) to notify the recognised news publisher of the decision and the reasons for it (addressing any reasons accompanying the request for reversal of the action).

(8) If a recognised news publisher has been banned from using a service (and the ban is still in force), the provider of the service may take action in relation to news publisher content present on the service which was generated or originally published or broadcast by the recognised news publisher without complying with the duties set out in this section.

(9) For the purposes of subsection (2)(a), a provider is not to be regarded as taking action in relation to news publisher content in the following circumstances—

• (a) a provider takes action in relation to content which is not news publisher content, that action affects related news publisher content, the grounds for the action only relate to the content which is not news publisher content, and it is not technically feasible for the action only to relate to the content which is not news publisher content;

• (b) a provider takes action against a user, and that action affects news publisher content that has been uploaded to or shared on the service by the user.

(10) Section (Providers’ judgements about the status of content) (providers’ judgements about the status of content) applies in relation to judgements by providers about whether news publisher content amounts to a relevant offence as it applies in relation to judgements about whether content is illegal content.

(11) OFCOM’s guidance under section (Guidance about illegal content judgements) (guidance about illegal content judgements) must include guidance about the matters dealt with in section (Providers’ judgements about the status of content) as that section applies by reason of subsection (10).

(12) Any provision of the terms of service has effect subject to this section.

(13) In this section—

• (a) references to “news publisher content” are to content that is news publisher content in relation to the service in question;

• (b) references to “taking action” in relation to content are to—

  • (i) taking down content,

  • (ii) restricting users’ access to content, or

  • (iii) taking other action in relation to content (for example, adding warning labels to content);

• (c) references to “taking action” against a person are to giving a warning to a person, or suspending or banning a person from using a service, or in any way restricting a person’s ability to use a service.

(14) Taking any step set out in subsection (3) or (7) does not count as “taking action” for the purposes of this section.

(15) See—

section 16 for the meaning of “journalistic content”;

section 49 for the meaning of “news publisher content”;

section 50 for the meaning of “recognised news publisher”.

The policy was also implemented through amendments 57, 69, 72, 73, 74, 78, 82, 83, 84, 90, 91, 98, 100, 101, 105

2) Below the line comments

The policy was implemented through amendments 173, 177, 178, 179, 181, 182, 183, 184, and 185.

3) Category 1 service provider impact assessment

The policy was implemented through amendments 167 and 168.

4) Ofcom review of the Bill’s impact on news publisher and journalistic content

New clause 20

“OFCOM’s reports about news publisher content and journalistic content

(1) OFCOM must produce and publish a report assessing the impact of the regulatory framework provided for in this Act on the availability and treatment of news publisher content and journalistic content on Category 1 services (and in this section, references to a report are to a report described in this subsection).

(2) Unless the Secretary of State requires the production of a further report (see subsection (6)), the requirement in subsection (1) is met by producing and publishing one report within the period of two years beginning with the day on which sections (Duties to protect news publisher content) and 16 come into force (or if those sections come into force on different days, the period of two years beginning with the later of those days).

(3) A report must, in particular, consider how effective the duties to protect such content set out in sections (Duties to protect news publisher content) and 16 are at protecting it.

(4) In preparing a report, OFCOM must consult—

• (a) persons who represent recognised news publishers,

• (b) persons who appear to OFCOM to represent creators of journalistic content,

• (c) persons who appear to OFCOM to represent providers of Category 1 services, and

• (d) such other persons as OFCOM consider appropriate.

(5) OFCOM must send a copy of a report to the Secretary of State, and the Secretary of State must lay it before Parliament.

(6) The Secretary of State may require OFCOM to produce and publish a further report if the Secretary of State considers that the regulatory framework provided for in this Act is, or may be, having a detrimental effect on the availability and treatment of news publisher content or journalistic content on Category 1 services.

(7) But such a requirement may not be imposed—

• (a) within the period of three years beginning with the date on which the first report is published, or

• (b) more frequently than once every three years.

(8) For further provision about reports under this section, see section 138.

(9) In this section— “journalistic content” has the meaning given by section 16; “news publisher content” has the meaning given by section 49; “recognised news publisher” has the meaning given by section 50.

(10) For the meaning of “Category 1 service”, see section 82 (register of categories or services).”

The policy was also implemented through amendments 165, 175, 176 and 186.

1. Implemented by NC19 and other consequential amendments which are listed in the annex to this fact sheet ↩

2. A full list of the amendments which implement this change is in the annex to this fact sheet ↩

3. implemented by NC20 and other consequential amendments which are listed in the annex ↩