Online Harms: NMA Restates Call For ‘Robust And Comprehensive’ Exemption

In a submission to the Law Commission, which is looking at reforms to the law as part of the Government’s work on online harms, the NMA restated its welcome for the Government’s response to the online harms consultation in December which confirmed an exemption for news media.

Following NMA lobbying, the Government said that content and articles published on news media websites and on social media platforms will be out of scope of the new regime and that below-the-line comments on articles on news publishers’ sites will be “explicitly exempted” from it.

The NMA is pleased that the Law Commission’s proposals, which would see the creation of a series of new offences to tackle online harms, expressly aim to accommodate Article 10 freedom of expression.

The NMA, therefore, welcomes the opportunity to discuss the issues it has flagged in more detail with the Law Commission in order to ensure this aim is achieved.

But, responding to the Law Commission’s consultation, the NMA has also expressed concern with the way in which the exemption is framed, and in particular that it only extends to editorial material not to all published content. It is imperative for any exemption to encompass both, the NMA said.

Most concerning, the NMA added, is the express inclusion of comments to a newspaper article on a news publishers’ website being caught within the offence which would have a “chilling effect on public discussion.”

“Consequently, user generated comments, as recognised in the Full Government Response, must be protected by any exemption for the same reasons that editorial content has been carved out from criminalisation,” the NMA added.

Furthermore, as drafted, the Law Commission’s proposed carveout fails to cover journalists posting references to the content their articles on a social media sites and, similarly, journalists' requests for responses while researching which could include content which might be considered distressing.

For any carve out to be effective, the scope of “news media” must be defined sufficiently broadly to prevent over-criminalisation. If it is restricted to the regulated press, it leaves vulnerable freelance journalists who are not associated with the recognised publication, thus limiting press plurality, the NMA added.

Raising a further concern, the NMA said that, it was imperative to expressly extend any news media carveout to all the proposed offences otherwise news publishers could inadvertently be caught within the ambit of the criminal law.

“Though the structure and language of the remaining offences proposed in the Consultation Paper do not ostensibly seems applicable to news publishers, it is nonetheless very likely that the offence will capture online news articles communicated to an online audience unless there is an express carveout in each case,” the NMA said.

The NMA said: “It is imperative that news publishers, all NMA members, and their content are wholly exempt from the proposed regime. Exemption must be both robust and comprehensive. Exemption must not only apply to the news publishers – corporately and individually to all their workforce and contributors and in respect of all their online publications, services, website content – but must also cover all news publishers’ content that is disseminated online, broadcast, print or any other means, including by third parties, especially the tech companies through social media and searches.

“Such exemptions must be all encompassing and enduring, without any potential loophole that could be exploited to induce regulatory action, or legal claim, or state repression, or over cautious censorship by third party distributors.”