Author: Sebastian Cuttill

It was expected that the Bill, which imposes a legal duty on online platforms to keep users safe, would finish its passage through the House of Commons on July 20 before going to the House of Lords.

However, the Bill will now not be allotted parliamentary time until September 6 at the earliest, which is the day after the UK parliament returns from recess. This has given rise to speculation that the Bill could be heavily amended or even scrapped entirely, with leadership candidates voicing concerns about the legislation.

Meanwhile, Damian Collins MP, the new Minister responsible for the Bill, reaffirmed the Government’s current position that specialist publications would not get the protections offered to general news publishers.

In response to a question from Press Gazette, the Minister said: “It is news providers, rather than specialist journals or magazines, that are within scope. We considered this during the joint committee on the bill actually, this matter has been discussed quite a lot.

“I think there needs to be a reasonably tight definition of what a news provider is in this case otherwise I think it could be extremely broad”.

This is an interesting development, given that the Joint Committee which scrutinised the Draft Bill, and which was chaired by Collins, specifically recommended that the Bill be amended to protect specialist publications.

The PPA looks forward to working with the new Minister and peers in the Lords to ensure that the landmark Bill will not restrict the UK public’s access to all forms of trusted, independently regulated journalism.

In a worrying move, this will allow for the free commercial use of content for the purposes of TDM, without an option for publishers to opt-out – as there is in the EU.

TDM means using computational techniques to analyse large amounts of information to identify patterns, trends and other useful information. TDM is used for training AI systems, amongst other uses. It also has uses in research, journalism, marketing, business analytics and by cultural heritage organisations.

PPA has argued that a greater promotion of existing licencing structures is the right course of action to encourage AI innovation. A full exception could encourage global companies to take advantage of the investments that UK publishers make in content at no cost, whilst reaping the commercial benefits. Further, no evidence was presented to Government consultation indicating that the licensing structures currently in place are acting as a barrier to innovation.

The Government states that publishers will be able to control and charge for access of their content, yet publishers will not be able to make additional charges for the ability to mine them. There is also a danger that organisations engaging in TDM will regard the exception as overriding the contextual protection normally required to access content.

PPA is working with allied organisations across the creative industries to make the case that existing licences provide fair and reasonable contractual protections for publishers. We will encourage the Government to work with rightsholders to promote the benefits and ease of application of the licensing structures, rather than making a change which could curtail investment in high quality content.

The proposals will be put into a Data Reform Bill, which is expected in the current parliamentary session. Here, PPA asks and answers the key questions about what the post-Brexit changes will mean for publishers:

What will it mean for the GDPR accountability regime?

The Government is proposing to replace the GDPR accountability regime with ‘privacy management programmes’ (PMPs), promising that organisations that are currently complaint with the UK GDPR will not need to ‘significantly change’ their approach if they do not wish to take advantage of the new regime’s additional flexibility.

The requirement for a data protection officer (DPOs) will be removed, with businesses having to appoint a designated senior individual overseeing the PMP. Organisations who wish to retain their DPO will be able to do so, as long as there is oversight from the senior individual.

Mandatory data protection impact assessments (DPIAs) and records of processing activities (ROPAs) will be removed. Businesses will continue to have to identify and manage risks, and document their processing, but in a proportionate manner. The government believes that this will give SMEs more flexibility.

What will it mean for cookie banners?

The Government intends to remove the need for websites to display cookie banners to UK residents. In the short term, businesses will be allowed to place cookies on a user’s device without explicit consent, but only for a small number of non-intrusive purposes.

In the future, the Government intends to move to an opt-out model of cookie consent. This means that cookies could be set without consent, but the website must give the user clear information about how to opt out.

Will the Government’s plans impact the data adequacy decision with the EU?

There have been fears that some of the Government’s proposals, particularly those which could result in an erosion of the ICO’s (the UK’s data protection regulator), could put the UK’s data adequacy agreement with the EU in jeopardy. The government believes it is perfectly possible and reasonable to expect the UK to maintain EU adequacy as it designs a future regime.

What happens next?

The Government is currently drafting the Data Reform Bill that will put these proposals in the law. PPA will be monitoring the development of the legislation closely to ensure that it does not result in unnecessary burdens for publishers, and ensure that the data adequacy agreement with the EU is retained.

The statement incorporates evidence gained from a consultation last year (which the PPA responded to) and makes recommendations for changes that the Government could make to the Charter Agreement, as well as proposals for alterations to Ofcom’s guidance on how the BBC can make changes to its services.

Ofcom acknowledged arguments made by the PPA and others, that the BBC’s immense digital presence is harming commercial publishers. BBC News Online encroaches on, and arguably duplicates content produced by commercial specialist media publishers, whilst the rapid growth of BBC Sounds demonstrates how the Corporation’s inbuilt advantages allow it to rapidly build capabilities, potentially ‘crowding out’ commercial competitors.

In its statement, Ofcom cited PPA’s calls for greater regulatory scrutiny of competition impacts in the podcast sector, and more formal processes for the BBC to garner views of changes to its service in the early stages of development. Whilst the regulator is proposing changes to the Charter Agreement that would allow some BBC change to be approved more quickly, the regulator proposes to balance this with effective stakeholder engagement and requirements for the Corporation to provide more detailed information about future changes, improving scrutiny.

PPA is in the process of feeding into the Mid-Term Charter Review, and will respond to a more detailed consultation on changes of Ofcom wishes to make to its regulation of changes to the BBC’s public services when it is published in the Autumn.

As the PPA has reported, the Government majority in the Public Bill Committee (an ad hoc parliamentary body that scrutinises legislation) rejected a PPA-backed amendment to give specialist media titles the same protections as newspapers in the Online Safety Bill.

In its roundup on Tuesday, Press Gazette reports: "The definition of a news publisher used by the government means a title such as Inside Housing, which won awards for its investigation into the causes of the Grenfell fire, would not have the protection given to titles such as The Sun and Mail Online."

A PPA spokesperson told Press Gazette: “Independently regulated specialist publishers offer a wide range of public interest journalism on a wide range of topics, yet are at risk of being penalised in the Online Safety Bill precisely because of their expert focus on key sectors and interests.

“The dissemination of content online is seeing more and more UK citizens seek out sources of news and information that speak to very specific interests – this means that a failure to protect specialist publishers in the bill will make the press and media protections progressively less effective over time.”

SNP Shadow Secretary of State for Digital, Culture, Media and Sport John Nicolson MP argued that ‘special interest news material’ – consisting of news or information about a particular pastime, hobby, trade, business, industry or profession – should be given equal protection to the content produced by current affairs-focused national newspapers. The amendment was also backed by Labour Shadow Minister Alex Davies-Jones.

Conservative Minister for Digital, Culture, Media and Sport Chris Philp responded to Nicolson’s arguments, stating that freedom of expression concerns may be less relevant to specialist titles, and that ‘below the line’ comments on specialist publishers’ websites would still be protected in the Bill.

The amendment was not taken forward by the Committee – despite cross-party support from Labour and the SNP, the Conservative majority on the Committee makes Ministerial support practically essential.

The PPA was disappointed to hear Philp’s opposition to the amendment, as it is clear that specialist media publishers produce expert public interest content on a range of topics.

Further, the trusted content on a range of topics produced by independently regulated PPA members will be key in combating the broad range of harms that the Bill seeks to address. Indeed, Philp’s Conservative colleague and former Cabinet Minister John Whittingdale has raised the issue twice in the House of Commons.

This follows a recommendation by the Joint Committee of MPs and peers following scrutiny of the Draft Bill that stated: ‘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 of, without creating loopholes in the legislation.’

The PPA submitted a response to the CMA’s most recent consultation on its investigation, focusing on Apple and Google’s role in competition between app developers, and specifically publisher apps.

In its summary of the Final Report, the CMA notes: ‘Apple and Google’s control of their app stores puts them in a key position to set the rules for competition between app developers whilst also directly competing with their own apps. They unilaterally determine: what apps are allowed; how they are ranked and discovered; and set commission rates and many other rules.’ Areas of relevance to publisher apps include:

• self-preferencing of Apple/Google apps or services in a way that harms competition and consumers

• restrictions on access to hardware and software functionality

• pre-installation and default-setting of certain apps

• app discovery through the App Store and Play Store

• collection and use by Apple and Google of commercially sensitive information and other data from app developers

The CMA makes clear that the evidence from the Market Study further demonstrates the need for the government’s proposed new pro-competition regulatory regime, which would empower the Digital Markets Unit (DMU).

The regulator notes that ‘many of the concerns we have regarding Apple and Google’s hold over their mobile ecosystems could not be addressed through quick or easy fixes’, making the new regime’s tailored powers essential.

However, the CMA has decided to consult on a Market Investigation Reference (an in-depth probe using its existing powers) into mobile browsers and cloud gaming, with the regulator citing submissions including the PPA’s as explanation of its decision.

Although the discrete areas in the focus of the probe are not central to publishers’ concerns, it is positive that the regulator is showing a willingness to use its existing powers before the DMU is given statutory backing.

The amendment, also backed by Nicolson’s parliamentary colleague Kirsty Blackman MP, would give ‘special interest news material’ – consisting of news or information about a particular pastime, hobby, trade, business, industry or profession – equal protections to the content published by national newspapers.

Nicolson has been MP for the Ochil and South Perthshire constituency since 2019, having previously represented East Dunbartonshire from 2015 to 2017. Before entering parliament, he worked as a reporter for a range of high-profile BBC news and current affairs shows, and has written for a wide range of magazine and newspaper titles.

The amendment will be considered by the Public Bill Committee, which is scrutinising the Bill line-by-line. This follows a recommendation by the Joint Committee of MPs and peers following scrutiny of the Draft Bill that stated: ‘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 of, without creating loopholes in the legislation.’ The issue has also been raised in the House of Commons chamber.

PPA welcomes the tabling of this much needed amendment to a landmark piece of legislation, and will continue to emphasise the essential need for specialist media protections to the Government and parliamentarians of all parties.