Online Safety Bill: Regulated press exempt from new communications laws

Regulated media to be exempt from new offences making online disinformation illegal

Online Safety Bill disinformation

New criminal offences to combat offensive communications such as harmful Covid-19 disinformation will have a built-in exemption for the press as part of the Online Safety Bill, the Government has said.

The Government said none of the three new offences, covering harm, falsehoods and threats, will apply to “regulated media such as print and online journalism, TV, radio and film”.

The Law Commission reviewed the criminal law relating to abusive and offensive online communications and said the current legislation, in the Malicious Communications Act 1988 and the Communications Act 2003, was not fit for purpose following the rise of smartphones and social media.

For example, abusive messages posted publicly online “may slip through the net because they have no intended recipient” while the current laws are “sufficiently broad in scope that they could constitute a disproportionate interference in the right to freedom of expression”.

Instead the Commission recommended three new criminal offences, which have been accepted by ministers and will be added to the Online Safety Bill.

They include a person sending a message they know is false “with the intention to cause non-trivial emotional, psychological or physical harm”. This could include disinformation about fake Covid-19 cures but would not include misinformation – meaning the person would have to know what they are sending is false. If they genuinely believe it to be true, they could not be prosecuted.

The Government said: “For example, if an individual posted on social media encouraging people to inject antiseptic to cure themselves of coronavirus, a court would have to prove that the individual knew this was not true before posting it.”

In addition “genuinely threatening” messages, including threats to kill, rape or cause serious physical or financial harm, will be better legislated against. The Government said it would “offer better protection for public figures such as MPs, celebrities or footballers who receive extremely harmful messages threatening their safety”. This is likely to mean abusive messages targeting journalists are also better covered.

[Read more: How journalists can hit back at online abuse as C4’s Cathy Newman reveals ‘totally dehumanising’ attacks]

The Digital, Culture, Media and Sport Committee last month claimed the draft Online Safety Bill was a “missed opportunity” to properly solve an array of online issues, including the abuse faced by journalists online.

The third new offence will cover messages “sent to cause harm without a reasonable excuse”. Currently they must fit into categories such as “grossly offensive,” “obscene” or “indecent” to be prosecuted.

The Government said this offence would have “exemptions for communication which contributes to a matter of public interest”.

Chris Philp, minister for tech and the digital economy, announced the exemption for the press to MPs on Friday.

In a written statement, he said: “Whilst we do not expect the new offences will capture communication made by the media, including this press exemption demonstrates the Government’s commitment to upholding media freedom.”

Philp added that messages that people find offensive, such as a view they do not like or agree with, will not be outlawed as the threshold of harm will mean they must cause “serious distress”.

In addition, someone cannot be found guilty of the harm-based or false communications offence if they have a reasonable excuse, such as if something was or was intended as a contribution to the public interest.

News Media Association legal director Sayra Tekin said the group, which represents UK national and regional news brands, made the case to the Law Commission for a “much-needed press exemption” and was “very pleased” this had been accepted by the Government.

“A strong, robust and workable press exemption is necessary to ensure that journalists can continue to carry out their vital role effectively when these new offences come into force,” she said.

“Making the internet safer is a laudable objective. We are pleased that ministers have achieved this while firmly safeguarding journalistic freedoms – a balance critical to maintain for a functioning democracy.”

Society of Editors executive director Dawn Alford also welcomed the exemption, saying: “While the Society wholeheartedly supports the government’s efforts to make the internet a safer place, it is essential that the Online Safety Bill includes broad and workable protections to ensure that the media can continue to fulfil its vital work in the public interest.”

Although the press exemption has been made clear for the new communications offences targeting individuals, the industry has been pushing for clearer exceptions in the primary parts of the Online Safety Bill aimed at regulating tech giants.

The draft bill states that social media giants will have a statutory duty to safeguard UK users’ ability to access journalism on their platforms, but the Joint Committee on the draft Online Safety Bill has said the exemption should be “strengthened” to say it “should not be moderated, restricted or removed unless it is content the publication of which clearly constitutes a criminal offence, or which has been found to be unlawful by order of a court within the appropriate jurisdiction”.

Last month editors and MPs again warned the bill needs to “properly account” for journalistic work as it risks letting tech giants use automated algorithms to accidentally take down reporting.

Other new additions to the Online Safety Bill announced on Friday include revenge porn, hate crime, fraud, the sale of illegal drugs or weapons, the promotion or facilitation of suicide, people smuggling and sexual exploitation.

Tech giants will be told they must proactively prevent people from being exposed to such content, potentially with automated or human content moderation, whereas before the bill said only that they must take it down after it had been reported by users.

Ofcom will be the online regulator under the new legislation and will be able to fine websites up to 10% of their annual global turnover or block them from being available in the UK.

Culture and Digital Secretary Nadine Dorries said: “This Government said it would legislate to make the UK the safest place in the world to be online while enshrining free speech, and that’s exactly what we are going to do.”

Picture: Shutterstock/r.classen

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