Media freedom and journalist safety in the UK Online Safety Act

ABSTRACT

In the digital era, journalists are targeted with online abuse including serious threats of violence. These censorship tactics are a direct threat to media freedom. Although the UK Government intended to tackle online abuse of journalists in the Online Safety Act 2023, provisions fit for that purpose never materialised. This paper reveals why that was the case and what can be done about it. It finds that there is ongoing tension in the press industry about press regulation, with implications for journalist safety; that the Government carved out special privileges for the press’ online content but did not similarly protect journalist digital safety; that journalist safety was largely ignored in Parliament; and that repeated Government disintegration and shifting policies stripped away provisions that could have been improved to better protect journalists. This paper concludes with suggestions for how journalist safety can be better protected in the OSA regime.

KEYWORDS:

• Media freedom
• content moderation and regulation
• journalist safety
• Online Safety Act
• online abuse

Acknowledgements

I am very grateful to David Erdos, Alison Young, Stephanie Palmer, and Gavin Phillipson for their generous feedback on earlier drafts of this paper and for their encouragement. I also wish to thank an anonymous reviewer for their comments, which have improved this paper. All errors remain, of course, with the author.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Digital, Culture, Media and Sport Committee 8th Report, The Draft Online Safety Bill and the legal but harmful debate Volume 1 Oral and Written Evidence (2021–22, HC 1039), Michelle Stanistreet Q192.

2 It was only in 2019 that a young journalist, Lyra McKee, was murdered while reporting in Northern Ireland.

3 Julie Posetti and Nabeelah Shabbir, ‘The Chilling: A Global Study of Online Violence against Women Journalists’ International Center for Journalists/UNESCO (2 Nov 2022) <https://www.icfj.org/sites/default/files/2023-02/ICFJ%20Unesco_TheChilling_OnlineViolence.pdf>. See also Julie Posetti, Diana Maynard and Kalina Bontcheva, ‘Maria Ressa: Fighting an Onslaught of Online Violence: A Big Data Analysis’ International Center for Journalists (20 March 2021) <https://www.icfj.org/sites/default/files/2021-03/Maria%20Ressa-%20Fighting%20an%20Onslaught%20of%20Online%20Violence_0.pdf>. Other online violence case studies of journalists are available, including studies of abuse targeting Carole Cadwalladr, Rana Ayyub, Ghada Oueiss and Carmen Aristegui: <https://www.icfj.org/our-work/online-violence-big-data-case-studies>.

4 Nobel Prize winning journalist Maria Ressa has spoken widely on the ‘weaponization of social media’ by the Duterte administration in the Philippines which made her a target of his regime.

5 The Chilling (n 3) 8 asserts that ‘Online violence against women journalists is one of the most serious contemporary threats to press freedom internationally’.

6 ibid.

7 Many scholars have written about media freedom as distinguished from freedom of expression. See, for example, Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act (Oxford University Press 2006) 20–33; Jan Oster, Media Freedom as a Fundamental Right (Cambridge University Press 2015) 51 and Jacob Rowbottom, Media Law (Hart 2018) 7–24 to list a few.

8 This paper therefore asserts a democratic conception of media freedom based on the instrumental good that journalists and the media provide to democratic society. This paper thus draws on the more recent works of Jan Oster, ibid 141, Damian Tambini, Media Freedom (Polity Press 2021) 141, Peter Coe, Media Freedom in the Age of Citizen Journalism (Elgar 2021) 119 and the earlier works of Eric Barendt, Freedom of Speech (Oxford University Press 2005) 419–26 and Judith Lichtenberg, ‘Foundation and Limits of Freedom of the Press’ (1987) 16 Philosophy & Public Affairs 329. Lord Justice Leveson, An Inquiry into the Culture, Practices, and Ethics of the Press (HC-780, 2012) 2012 vol 1, 63 also used this theoretical foundation (emphasising public participation and holding power to account): see Gavin Phillipson, ‘Leveson, the Public Interest and Press Freedom’ (2013) 5 JML 220, 229.

9 Yochai Benkler, Robert Faris and Hal Roberts, Network Propaganda (Oxford University Press 2018) 10, list an ‘aggressive editorial counteraction’ by the mainstream media as one of the best solutions to counteract disinformation and to educate the masses. See also Dame Francis Cairncross, The Cairncross Review: A Sustainable Future for Journalism (February 2019) discussing the importance of the sustainability of high-quality journalism.

10 As Oster (n 4) 94 notes, the ECtHR has held that ‘there are special obligations of the state to protect the media, especially to protect journalists from acts of violence as they exercise their journalistic work’ referring to Özgür Gündem v Turkey App no. 23144/93 (ECtHR, 16 March 2000). That case notably found that freedom of expression ‘may require positive measures of protection, even in the sphere of relations between individuals’ (para 43). See also Coe (n 5) 100, 120. The ECtHR in Dink v Turkey App nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09 (ECtHR,14 September 2010) para 137 came to a similar conclusion: ‘States are obliged to put in place an effective system of protection for authors and journalists as part of their broader obligation to create a favourable environment for participation in public debate … .’ (translation done by the author in Tarlach McGonagle, ‘Positive Obligations Concerning Freedom of Expression: Mere Potential or Real Power?’ in Onur Andreotti (ed) Journalism at Risk: Threats, Challenges and Perspectives (Council of Europe Publishing 2015) 9. I argue that in the digital era, these media freedom conceptions are equally as applicable. I am working on a more fulsome analysis of these issues in ongoing work.

11 See e.g. Tambini (n 5) 54–56, 138, 173–73 arguing for positive state intervention to protect media freedom.

12 The DCMS commissioned a guide for journalists to combat online abuse: Beth Grossman, ‘Combatting Online Harassment and Abuse: A Legal Guide for Journalists in England and Wales’ (Media Lawyers Association, June 2021). This Report, however, largely puts the responsibility for combatting online abuse on journalists.

13 National Union of Journalists, ‘NUJ Safety Report 2020: NUJ Members’ Safety Survey’ (November 2022) <https://www.nuj.org.uk/resource/nuj-safety-report-2020.html>.

14 The Government has recognised the need to protect the digital safety of journalists. DCMS & Home Office, National Action Plan for the Safety of Journalists (9 March 2021) <https://www.gov.uk/government/publications/national-action-plan-for-the-safety-of-journalists/national-action-plan-for-the-safety-of-journalists#next-steps>. See also DCMS, National Action Plan for the Safety of Journalists, Call for Evidence Report (3 Nov 2021) <https://www.gov.uk/government/consultations/safety-of-journalists-call-for-evidence/public-feedback/call-for-evidence-report> (it launched another survey in March 2022 but as of October 2023 has not published those findings (see National Action Plan for the Safety of Journalists, Written Update (Jan 2023) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1128442/Written_Update_-_January_2023.pdf>).

15 ibid.

16 ibid.

17 Online Safety Act 2023.

18 One of Musk's first upheavals included mass layoffs on the Trust & Safety team. See also BBC journalist Marianna Spring's Tweet ‘When Elon Musk tweeted about a BBC Panorama investigation, it unleashed a torrent of abuse against me from trolls. It proved what I’d revealed about the site struggling to protect users. Here's what it's like being at the centre of a Twitter troll storm’ (31 March 2023).

19 Platforms already ‘censor’ online content including news articles. This issue was raised as a concern by DMG (who complained about platform bias against its content) but was also raised by GMG and the News Media Association: DMG Media para 5; GMG (near end of submission); News Media Association 2.1.10-14 in Joint Committee on the Draft Online Safety Bill 1st Report, Draft Online Safety Bill Volume 2 Oral and Written Evidence (2021–22, HL 129, HC 609).

20 With the lapse of the Licensing Act in 1694: see Tom O’Malley and Clive Soley, Regulating the Press (Pluto Press 2000) 20.

21 As outlined below, the DCMS, Internet Safety Strategy (Green Paper, Oct 2017) 51 and DCMS and Home Department, Online Harms (White Paper, CP 57, April 2019) 12–21, 23, 25, 31, 47–75 both noted the importance of protecting journalists and other public figures from online harms.

22 DCMS, Draft Online Safety Bill (Cm, CP 405, May 2021) s 41(5).

23 Kemi Badenoch, Conservative MP, stated this on Twitter (13 July 2022).

24 OSA s 15 ‘user empowerment duties’, s 16 ‘interpretation’ (n 17).

25 ibid s 9 ‘illegal content risk assessment duties’, s 10 ‘safety duties about illegal content’ for user-to-user services; s 26 ‘illegal content risk assessment duties’, s 27 ‘safety duties about illegal content’ for search services. Section 59 defines ‘illegal content’. Schedule 7 ss 3–11 lists ‘priority offences’ which include Offences against the Person Act 1861 (threats to kill), offences under the Public Order Act 1986, s 4, 4A, 5 (including harassment, alarm and distress) and Protection from Harassment Act 1997 (s 2 harassment, s 2A stalking, s 4 putting people in fear of violence, s 4A stalking involving fear of violence or serious alarm and distress), Crime and Disorder Act 1998 (s 31 racially or religiously aggravated public order offences, s 32 racially or religiously aggravated harassment), as well as similar offences in Northern Ireland and Scotland. Those listed here include offences most relevant for tackling harms against journalists, but many other priority offences are enumerated in Schedule 7.

26 For example, Chris Philp while undersecretary championed the ‘legal but harmful’ provisions throughout his tenure and made many promises on behalf of Government that abuse against public figures, specifically politicians, would be dealt with in these provisions: HC Deb 27 January 2022, vol 707, cols 1126–27 (Chris Philp); HC Deb 19 April 2022, vol 712, cols 93–95, 97 (Nadine Dorries as Culture Secretary). But when Damian Collins and then Paul Scully took over the role in quick succession those provisions were scrapped. See text in ‘legal but harmful circus’ sub-heading (n 194)–(n 208) below.

27 See notes 102, 119 and accompanying text below.

28 See notes 101, 123–31 and accompanying text below.

29 OSA s 55(2)(g) exempting ‘news publisher content’ from the definition of ‘regulated user-generated content’ (n 17).

30 ibid s 18 ‘Duties to protect news publisher content’; s 56 ‘Recognised news publisher’.

31 ibid s 19 ‘Duties to protect journalistic content’.

32 ibid Schedule 1, s 4 ‘limited functionality services’.

33 ibid s 32 (search services) s 21 (Category 1 platforms).

34 It is widely reported that Keir Starmer and Rishi Sunak attended Murdoch's 2023 annual summer party, for example.

35 They were Chris Philp, Damian Collins, and Paul Scully.

36 See n (26).

37 Draft OSB (n 22).

38 Outside the scope of this Paper, but which will be addressed in subsequent work, there are also very legitimate concerns about how to define journalism in the digital era and whether journalists and the press should receive special protections over the public's speech at all.

39 These could include systems designs solutions, some of which are canvassed in the latter section of this Paper. See Nicolas Suzor and others, ‘Human Rights by Design: The Responsibilities of Social Media Platforms to Address Gender-Based Violence Online’ (2019) 11 Policy & Internet 84 and Evelyn Douek, ‘Content Moderation as Systems Thinking’ (2022) 136 Harv L Rev 526.

40 See Henry McDonald, ‘Twitter and Facebook to act over online abuse of Lyra McKee's friend’ The Guardian (27 June 2019) <https://www.theguardian.com/society/2019/jun/27/twitter-facebook-act-online-abuse-lyra-mckee-friend>.

41 ibid.

42 ibid.

43 ibid.

44 See NUJ Safety Report (n 13) and National Action Plan (n 14). See also Alana Barton and Hannah Storm, ‘Violence and Harassment against Women in the News Media: A Global Picture’ International Women's Media Foundation (2014) 14–15: <https://www.iwmf.org/wp-content/uploads/2018/06/Violence-and-Harassment-against-Women-in-the-News-Media.pdf> and Michelle Ferrier, ‘Attacks and Harassment: The Impact on Female Journalists and their Reporting’ Trollbusters and IWMF (Sept 2018) <https://www.iwmf.org/wp-content/uploads/2018/09/Attacks-and-Harassment.pdf>.

45 David Batty, ‘Bomb Threats Made on Twitter to Female Journalists’ The Guardian (1 April 2013) <https://www.theguardian.com/technology/2013/jul/31/bomb-threats-twitter-journalists>.

46 The Chilling (n 3) 11.

47 Caroline Criado-Perez, ‘“Women that Talk too much Need to Get Raped”: What Men Are Really Saying When They Abuse Women Online’ in Dunja Mijatović (ed) New Challenges to Freedom of Expression: Countering Online Abuse of Female Journalists (OSCE 2016) 13. See also Silvio Waisbord, ‘Mob Censorship: Online Harassment of US Journalists in Times of Digital Hate and Populism’ (2020) 8 Digital Journalism 1030; OSCE, ‘Legal Responses to Online Harassment and Abuse of Journalists: Perspectives from Finland, France and Ireland’ OSCE Representative on Freedom of the Media (2019) <https://www.osce.org/files/f/documents/1/6/413552.pdf>.

48 NUJ (n 1) paras 6, 10.

49 ibid para 33.

50 See NUJ Evidence in Appendix 2 of House of Lords Digital and Communications Committee, Free for all? Freedom of Expression in the Digital Age (2021, HL 54).

51 NUJ Safety Report (n 13).

52 Eliza McPhee, ‘Leigh Sales Calls Out Sick Left-wing Trolls for Bombarding Female ABC Stars with Hideous Sexual Insults Every Day – As Her High-profile Breakfast TV Colleague Is Forced Underground’ MailOnline (14 Sept 2021) <https://www.dailymail.co.uk/news/article-9988177/Leigh-Sales-slams-trolls-abusing-ABC-journalists-Lisa-Millar-forced-Twitter.html>.

53 NUJ Safety Report (n 13) 15.

54 Becky Gardiner and others, ‘The Dark Side of Guardian Comments’ The Guardian (12 April 2016) <https://www.theguardian.com/technology/2016/apr/12/the-dark-side-of-guardian-comments>.

55 See Law Commission, Modernising Communications Offences: A Final Report (Law Comm No 399, 2021) para 4.8 (comments out of IPSO's scope).

56 The Chilling (n 3) 12.

57 NUJ Safety Report (n 13).

58 The Chilling (n 3) 57, 162.

59 E.g. Offences against the Person Act 1861, s 16; Protection from Harassment Act 1997, ss 2, 2A, 4, 4A; Public Order Act 1986, ss 4, 4A, 5; Crime and Disorder Act 1998, ss 31, 31; Criminal Law (Consolidation) (Scotland) Act 1995 s 50A; Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) ss 38–39; Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)) art 8–9.

60 The Chilling (n 3) 14.

61 See Helen Pidd, ‘Barrow Journalist Hounded Out of Cumbria for Reporting Court Case’ The Guardian (29 May 2020) <https://www.theguardian.com/uk-news/2020/may/29/barrow-journalist-hounded-out-of-cumbria-for-reporting-court-case>.

62 Marianna Spring (n 1) Q 146.

63 ibid Q 135.

64 See Big Data Analysis Case Studies (n 3).

65 Rana Rahimpour, ‘Rape, Death and Arrest Threats Reality for Rana Rahimpour as BBC Submits UN Complaint’ inews.co.uk (23 March 2022) <https://inews.co.uk/opinion/rape-death-and-arrest-threats-reality-for-rana-rahimpour-in-iran-as-bbc-prepares-to-submit-complaint-to-un-1532326>.

66 Margaux Ewen, ‘We Must Do More to Address the Online Harassment of Women Journalists’ Freedom House (3 Nov 2023) <https://freedomhouse.org/article/we-must-do-more-address-online-harassment-women-journalists> commenting on the 2021 Report finding that the Malta Government had created a climate of ‘impunity’ which led to Daphne's assassination.

67 Big Data Analysis Case Study, Maria Ressa (n 3).

68 Maria Ressa (n 19) Q 193–194.

69 UN GA Resolution A/C.3/72/L.35/Rev.1 (2017) and UN GA A/RES/74/157 (2019).

70 Irene Khan, ‘Reinforcing Media Freedom and the Safety of Journalists in the Digital Age’ UNHRC, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (20 April 2022) UN Doc A/HRC/50/29 118–12.

71 Council of Europe, ‘Defending Press Freedom in Times of Tension and Conflict’ Annual Report by the partner organisations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists (2022) <https://rm.coe.int/platform-protection-of-journalists-annual-report-2022/1680a64fe1> pages 57–60.

72 See NUJ Safety Report (n 13) and Pidd (n 61).

73 NUJ (n 19) para 11.

74 NUJ Safety Report (n 13); Rhys Evans, ‘The Challenges of Making News for a Multinational State – A View from the UK’ Reuters (14 Feb 2022) <https://reutersinstitute.politics.ox.ac.uk/challenges-making-news-multinational-state-view-uk>.

75 The Chilling (n 3).

76 See, e.g. Bridget A Harris, ‘Technology and Violence Against Women’ in S Walklate, K Fitz-Gibbon, J Maher and J McCulloch (eds) The Emerald Handbook of Feminism, Criminology and Social Change (Emerald Publishing Limited 2020) 317.

77 The Chilling (n 3).

78 In addition to Data protection regulations: see Information Commissioner's Office, ‘Social Net, Working and Online Forums – When Does the DPA Apply?’ (June 2013) <https://ico.org.uk/media/for-organisations/documents/1600/social-networking-and-online-forums-dpa-guidance.pdf> and the Council Direction (EU) 2010/13/EU Audiovisual Services Media Directive [2010] OJ L 095.

79 Council Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) [2022] OJ L 277/1.

80 Online Safety Act 2021, No. 76, 2021 (commenced 23 January 2022) (Australia).

81 Network Enforcement Act (1 Sept 2017) Bundesgesetzblatt, Teil I (Germany).

82 OSA mandates Ofcom produce certain Codes (ss 41–51) and Guidance (ss 52–54) (n 17).

83 Green Paper (n 21).

84 DCMS, Government Response to the Internet Safety Strategy Green Paper (Government Response to Green Paper, May 2018).

85 White Paper (n 21).

86 DCMS and Home Department, Initial Consultation Response to Online Harms White Paper (Feb 2020) <https://www.gov.uk/government/consultations/online-harms-white-paper/public-feedback/online-harms-white-paper-initial-consultation-response>.

87 DCMS and Home Department, Online Harms White Paper: Full Government Response to the Consultation (Cm, CP 354, Dec 2020).

88 Draft OSB (n 22).

89 Freedom of Expression in the Digital Age (n 55).

90 Joint Committee on the Draft Online Safety Bill 1st Report, Draft Online Safety Bill Volume 1 Report (2021–22, HL 129, HC 609); DCMS Committee 8th Report, The Draft Online Safety Bill and the legal but harmful debate Volume 1 Report (2021–22, HC 1039).

91 DCMS, Government Response to the Report of the Joint Committee on the Draft Online Safety Bill (Cm, CP 640, 17 March 2022); DCMS Committee, The Draft Online Safety Bill and the Legal but Harmful Debate: Government Response to the Committee's Eighth Report, House of Commons Paper (2021–22, HC 1221); DCMS, Government Response to the House of Lords Communications Committee's Report on Freedom of Expression in the Digital Age (2021) <https://committees.parliament.uk/publications/7704/documents/80449/default/>.

92 March 17, 2022 (carried over until May 11, 2022), June 29, 2022, December 9, 2022, December 20, 2022, and January 18.

93 White Paper (n 21) 12–21, 23, 31.

94 Green Paper (n 21) 51.

95 White Paper (n 21) 25, 74–75.

96 ibid 24 citing IFJ, ‘IFJ Global Survey Shows Massive Impact of Online Abuse of Women Journalists’ (23 Nov 2018) <https://www.ifj.org/media-centre/news/detail/article/ifj-global-survey-shows-massive-impact-of-online-abuse-on-women-journalists.html>.

97 White Paper 25 (n 21) referring to Gardiner (n 59).

98 ibid 71.

99 I requested access to certain evidence but was denied: Letter from Department for Science, Innovation & Technology to author (2 Nov 2023). Some evidence was, however, available via press websites.

100 News Media Association, ‘Consultation on the Online Harms White Paper Response of the News Media Association’ (1 July 2019) <https://newsmediauk.org/wp-content/uploads/2022/10/Online_Harms_White_Paper_News_Media_Association_Response_1_July_2019_sr.pdf> 1–2, 10–14.

101 NUJ, ‘NUJ Submission to the Online Harms White Paper’ (June 2019) <https://www.nuj.org.uk/resource/nuj-submission-to-the-online-harms-white-paper.html> 5–6.

102 News Media Association (n 100) 10.

103 ibid 5.

104 Initial Response (n 86) ch 2, para 14, Executive Summary para 2; ch 1 paras 1–9; ch 3 para 5.

105 Full Response (n 87) Part 2, Box 9 ‘Anonymous Abuse’, ch 2 para 4.

106 ibid Joint Ministerial Statement paras 22–23; Part 1, para 1.10.

107 ibid para 1.10.

108 Impress, Lexie Kirkconnell-Kawana (n 1).

109 Full Response (n 87) Part 1.

110 ibid para 1.11, 4.1.

111 ibid Joint Ministerial Statement para 23.

112 Draft OSB s 41(5) (n 22).

113 ibid s 46.

114 See for example the ‘The X Rules’ <https://help.twitter.com/en/rules-and-policies/x-rules> and ‘Facebook Community Standards’ <https://transparency.fb.com/en-gb/policies/community-standards/>.

115 Draft OSB, ss 15, 24 (n 22).

116 OSA, Schedule 1, s 4 (n 17).

117 OSA s 55(2)(g) exempts ‘news publisher content’ from the definition of ‘regulated user-generated content’ and ‘news publisher content’ is defined in s 55 (8–10). OSA s 57 excludes ‘recognised news publisher’ content from search services’ safety duties (n 17).

118 See OSB Deb 14 June 2022, col 361–62 (Alex Davies-Jones) and Public Bill Committee Written Evidence, Session 2022–23 (June 2, 2022) (Professor Corinne Fowler).

119 DMG Media para 5; GMG (near end of submission); News Media Association 2.1.10–14; Peter Wright, Alison Gow & Matt Rogerson Q 143, Joint Committee (n 19).

120 OSA s 19 (n 17).

121 ibid s 18; the content of ‘recognised news publishers’ was also included in a provision protecting ‘content of democratic importance’ (s 17).

122 ibid, Government exempted ‘recognised news publishers’ from liability from the ‘false communication’ offence (s 179); amended the ‘recognised news publisher’ definition to permit publishers to clip or edit their content; added provisions requiring platforms and Ofcom to report on the impacts that the regimes have on news publisher and journalistic content (s 158) and provisions requiring Ofcom to take into account adverse impact on the availability of journalistic content on the service and confidentiality in journalistic sources in issuing information notices (s 124(2)(k)(i)(ii)). I aim to address these exemptions and provisions in subsequent work, but I preliminarily note that these provisions may not actually protect the press’ content or high-quality journalism.

123 Lords Committee Appendix 2 Evidence (n 55): NUJ; S J Atherton; Rachel Coldicutt OBE; Reset; Ruth Smeeth, Index on Censorship & former MP Q 41–42; Dr Sharath Srinivasan Q 65; Dr Fiona Vera-Gray, Q 73; Seyi Akiwowo, Glitch Q 88; Renate Künast MP Q 150; Gill Phillips, GMG Q 156 (briefly noting abuse of a Jewish writer in the comments section of social media); Dr Nicholas Hoggard Q 162; Robert Colvile, Director, Centre for Policy Studies & columnist for The Sunday Times (noting that women colleagues receive far worse abuse than he does) Q 200.

124 Joint Committee Evidence: NUJ; The Publishers Association; SumOfUs; Gina Miller; Dame Margaret Hodge MP; Maria Ressa Q 194; Nina Jankowicz Q 53 (n 19).

125 DCMS Committee Evidence: NUJ; Marianna Spring; Michelle Stanistreet; Kirkconnell-Kawana, Impress Q 182, 193–194; Seyi Akiwowo, Glitch, Q 122; Cordelia Tucker O'Sullivan, Refuge, Q 125; Rt Hon Maria Miller MP, Q 126 (n 1).

126 The Publishers Association, Joint Committee (n 19).

127 Michelle Stanistreet Q 189, DCMS Committee (n 1).

128 Nina Jankowicz Q 55 and Maria Ressa Q 193, Joint Committee (n 19).

129 SumofUs, Joint Committee (n 19); Marianna Spring Q 144–145, DCMS Committee (n 1); Michelle Stanistreet Qs 189, 191, DCMS Committee (n 1). See also Pidd (n 61).

130 See NUJ Evidence, DCMS Committee (n 1), Joint Committee (n 19) and Lords Committee (n 55).

131 Professor Corinne Fowler & Antisemitism Policy Trust, PBC (n 118); PBC Deb (OSB) 24 May 2022, col 107 (Kyle Taylor, Fair Vote).

132 See notes 123–125; See also Local Government Association Evidence to Joint Committee (n 19) and PBC (n 118).

133 The Publishers Association, Joint Committee (n 19).

134 BBC, Joint Committee (n 19); Public Service Broadcasters (BBC, Channel 4, and Channel 5) PBC (n 118).

135 Channel 4, Joint Committee (n 19).

136 Public Service Broadcasters (n 134).

137 DMG, DCMS Committee (n 1), Joint Committee (n 19), Lords Committee (n 55), PBC (n 118).

138 GMG, DCMS Committee (n 1), Joint Committee (n 19), Lords Committee (n 55).

139 ITV, Joint Committee (n 19) was one of the few Press entities that advocated for the OSA to prevent platforms from publishing online harms. See also: ITV, DCMS Committee (n 1); Joint Submission of BT, Channel 4, COBA, ITV, NBC Universal, TalkTalk, Virgin Media O2, and Warner Media, Joint Committee (n 19).

140 News Media Association, Lords Committee (n 55); News Media Association, DCMS Committee (n 1); News Media Association, Joint Committee (n 19); News Media Association, PBC (n 118).

141 Professional Publishers Association, Joint Committee (n 19).

142 Sky, Joint Committee (n 19), PBC (n 118).

143 Joint Submission of BT and others (n 139).

144 Peter Wright, DMG, Joint Committee (n 19); Peter Wright & Lizzie Greene, Lords Committee Qs 153–159 (n 55).

145 Matt Rogerson, GMG, Joint Committee (n 19); PBC Deb (OSB) 26 May 2022, col 164-172 (PBC) (Matt Rogerson); Matt Rogerson & Gill Phillips, Qs 153 – 159, Lords Committee (n 55).

146 PBC Deb (OSB) 26 May 2022, col 164–172 (Owen Meredith).

147 Alison Gow, Society of Editors, Joint Committee (n 19).

148 Chartered Institute of Journalists, Lords Committee (n 55).

149 Independent Media Association, DCMS Committee (n 1); Independent Media Association, PBC (n 118); Independent Media Association, Lords Committee (n 19).

150 Hacked Off, DCMS Committee (n 1), Joint Committee (n 19), PBC (n 118).

151 Impress, DCMS Committee (n 1), Joint Committee, (n 19). Lexie Kirkconnell-Kawana, Impress, DCMS Committee (n 1).

152 GMG, Lords Committee (n 55).

153 DCMS Written Evidence: Facebook; Twitter (n 1). DCMS Oral Evidence: Elizabeth Kanter, TikTok; Iain Bundred, YouTube; Niamh McDade, Twitter; Richard Earley, Meta (n 1). Joint Committee Written Evidence: Facebook (Meta); Google UK (Youtube); Reddit; Snap Inc.; TikTok; Twitter; Wikimedia Foundation UK (n 19). Oral Evidence: Theo Bertram, TikTok; Leslie Miller, Youtube; Markham C Erickson, Google; Nick Pickles, Twitter (n 19). Lords Committee Written Evidence: Facebook; Google; techUK; Twitter (n 55). Oral Evidence: Richard Early, Facebook Qs 207–21; Katy Minshall, Twitter Qs 207–213; Google, Katie O’Donovan Qs 234–242; Snap Inc, Henry Turnbull Qs 243–251; Tik Tok, Elizabeth Kanter Qs 243–251 (n 55). PBC Written Evidence: Facebook (Meta); Wikimedia; Twitter; Google UK; Mid-Sized Platform Group (n 118). Oral Evidence: PBC Deb (OSB) 24 May 2022 (Ben Bradley, TikTok; Katy Minshall, Twitter; Richard Earley, Meta; Katie O’Donovan, Google UK; Lulu Freemont, techUK) (n 118).

154 GMG, Lords Committee (n 55).

155 DMG, ibid.

156 ibid Q 147.

157 ibid.

158 Hacked Off, Ev 1433 paras 44–45 and Ev 517, Joint Committee (n 19). See also PBC Deb (OSB) 24 May 2022, col 101 (Demos); PBC Deb (OSB) 26 May 2022, col 131 (Antisemitism Policy Trust).

159 ibid; NUJ paras 38–40, DCMS Committee (n 1), Joint Committee (n 19).

160 Impress, Lexie Kirkconnell-Kawana Qs 182, 184, 193, 194, DCMS Committee (n 1).

161 See also Matthew d’Ancona Q 135, DCMS Committee (n 1) and Robert Colvile, Lords Committee (n 55) mentioning abuse in comments sections.

162 See Gardiner (n 59).

163 See MailOnline's House Rules at <https://www.dailymail.co.uk/home/article-1388145/House-Rules.html> but see, for example, Mark Nicol, ‘Need a Leg-up, ma'am? Troops in King Charles's Mounted Ceremonial Battery Mock Female CO Struggling in the Saddle for Ceremony Amid Dissent in the Ranks’ MailOnline (January 31, 2023) <https://www.dailymail.co.uk/news/article-11672685/Troops-mock-female-struggling-saddle-ceremony-amid-dissent-ranks.html#reader-comments> which contained inevitable misogynistic comments including, ‘She should get back to the barracks and iron the lads bed sheets. That's a good little girl.’ IPSO acknowledges on its website that unmoderated comments are not within IPSO's remit and a specific breach of the Editor's Code must be alleged: <https://www.ipso.co.uk/complain/our-complaints-process/reader-comments-and-user-generated-content/>.

164 The Lords Report (n 55) did not address journalist safety at all: see paras 128–138, 176–178. The Lords did not mention online abuse of journalists in debates on the Report: House of Lords Freedom of Expression (Communications and Digital Committee Report) Deb 27 October 2022, col 1608–42.

165 See BBC & Public Service Broadcasters (n 134).

166 See Marianna Spring & Rana Rahimpour (discussed above) and abuse of Sarah Smith in Rhys Evans, ‘The Challenges of Making News for a Multinational State – A View from the UK’ Reuters (14 Feb 2022) <https://reutersinstitute.politics.ox.ac.uk/challenges-making-news-multinational-state-view-uk>.

167 The Chilling (n 3) 26.

168 DCMS, ‘Fact Sheet on Enhanced Protections for Journalism within the Online Safety Bill’ (23 Aug 2022) <https://www.gov.uk/government/publications/fact-sheet-on-enhanced-protections-for-journalism-within-the-online-safety-bill/fact-sheet-on-enhanced-protections-for-journalism-within-the-online-safety-bill> para 4.

169 OSA s 18 (n 17).

170 ibid s 19.

171 ibid, the OSA prohibits the Secretary of State from removing the exemptions: s 220(3) (exemption for recognised news publisher content from the definition of regulated user-generated content) and s 220(10) (below-the-line comments on a news publisher websites).

172 DCMS Fact Sheet (n 168) para 16.

173 Law Commission (n 60) para 4.3 ‘harmful communications’ offence which was not implemented in the OSA.

174 PBC Deb (OSB) 14 June 2022, col 359 (Alex Davies-Jones).

175 ibid col 359 (Kirsty Blackman).

176 ibid col 360–363 (Alex Davies-Jones).

177 HL Deb 23 May 2023 vol 830, cols 840 (Lords Clement Jones, Lipsey, McNally); HL Deb 12 July 2023 vol 831, Cols 1776–78 (Lord Lipsey).

178 HL Deb 23 May 2023 vol 830, col 842 (Lord Faulks) and col 844 (Lord Black). See also HL Deb 12 July 2023 vol 831, Col 1780–82 for similar discussion.

179 PBC Deb (OSB) 14 June 2022, col 363–64 (Chris Philp).

180 HL Deb 1 Feb 2023, vol 827, cols 738–39 (Baroness Kennedy); HL Deb 22 June 2023 vol 831, col 419 (Baroness Bennett).

181 HC Deb 16 December 2021, vol 705, col 1186; HC Deb 13 January 2022, vol 706, cols 724 & 728; HC Deb 27 January 2022, vol 707, cols 1125–1126; HC Deb 19 April 2022, vol 712, col 107; HC Deb 5 December 2022, vol 724, col 87; HC Deb 17 January 2023, vol 726, col 281.

182 HC Deb 27 January 2022, vol 707, col 1125.

183 HC Deb 12 July 2022, vol 718, col 187, 191, 197–198, 205–206.

184 HC Deb 19 April 2022, vol 712, cols 94–97.

185 ibid col 93. See also The Scottish Parliament (Hybrid Meeting of the Parliament) (23 Feb 2022) 10–11.

186 ibid (Mark Francois).

187 PBC Deb (OSB) 7 June 2022, col 270 (Alex Davies-Jones), cols 273–74 (Kim Leadbeater and Kirsty Blackman).

188 PBC Deb (OSB) 13 Dec 2022, col 35–36 (Charlotte Nichols); PBC Deb (OSB) 7 June 2022, col 271–274 (Kim Leadbeater).

189 HL Deb 1 Feb 2023, vol 827, col 694 (Baroness Merron); cols 701–702 (Baroness Anderson of Stoke-on-Trent); cols 738–39 (Baroness Kennedy) col 752 (Baroness Foster); HL Deb 19 May 2023 vol 830, Col 194–95 (Baroness Kidron); HL Deb 19 May 2023 vol 830, col 204 (Baroness Merron); Cf HL Deb 22 June 2023 vol 831, cols 418–419 (Baroness Fox warns against criminalising).

190 Labour sought provisions to protect people taking part in elections but those were rejected by Government: PBC Deb (OSB) 7 June 2022, col 271–274 (Kim Leadbeater).

191 HL Deb 1 Feb 2023, vol 827, cols 701–702 (Baroness Anderson).

192 HL Deb 1 Feb 2023, vol 827, cols 731 (Baroness Grey-Thompson).

193 See HC Deb 27 January 2022, vol 707, cols 1127; HC Deb 19 April 2022, vol 712, cols 93–95, 97; HL Deb 22 June 2023 vol 831, col 423 (Lord Parkinson).

194 JC Report (n 90) paras 152–155. The DCMS Committee expressly cited the evidence of journalists and the NUJ but did not make a specific recommendation regarding journalist safety: DCMS Report (n 90) paras 14–15.

195 Freedom of Expression in the Digital Age (n 55).

196 HC Deb 19 April 2022, vol 712, cols 116–17; HC Deb 12 July 2022, vol 718, col 160, 164, 180; PBC Deb (OSB) 7 June 2022, col 265 (Chris Philp); PBC Deb (OSB) 9 June 2022, col 300 (Chris Philp). See also PBC Deb (OSB) 13 Dec 2022, col 31 (Damian Collins) who acknowledged this even after Government scrapped them. The provisions focused on transparency: HC Deb 19 April 2022, vol 712, cols 99, 112, 135; HC Deb 12 July 2022, vol 718, col 160.

197 Chris Philp, ‘Online Safety Bill Poses No Threat to Free Speech’ The Times (24 May 2022).

198 PBC Deb (OSB) 13 Dec 2022, col 33–34 (Damian Collins).

199 The change was announced 5 December 2022 (the second day of Third Reading) and again 17 January 2023 in the House of Commons.

200 HC Deb 5 December 2022, vol 724, cols 31, 31, 87 (Kirsty Blackman and Alex Davies-Jones). Labour tabled amendments to set minimum standards for platforms’ terms and include safety duties for adults, but those were rejected by Government: HC Deb 17 January 2023, vol 726, col 274, 288–290. See also HC Deb 17 January 2023, vol 726, col 315, PBC Deb (OSB) 13 Dec 2022, col 30–32 (Alex Davies-Jones).

201 PBC Written Evidence (n 118): HOPE not hate; Carnegie UK; Full Fact.

202 HL Deb 1 Feb 2023, vol 827, cols 704 (Baroness Hollins); HL Deb 1 Feb 2023, vol 827, cols 763–64, 769 (Lord Clement-Jones). Deb 9 May 2023 vol 829, col 1752–52 (Baroness Stowell); HL Deb 1 Feb 2023, vol 827, Col 1501, HL Deb 9 May 2023 vol 829, col 1681–1691 (Lord McNally).

203 OSA ss 12 (10)–(12) (n 17).

204 OSA s 16 (n 17). Despite Government's assurances: PBC Deb (OSB) Deb 13 Dec 2022, col 36 (Damian Collins).

205 Julie Posetti, ‘Fighting Back Against Prolific Online Harassment: Maria Ressa’ in Larry Kilman (ed) An Attack on One is an Attack on All: Successful Initiatives To Protect Journalists and Combat Impunity (UNESCO, 2017) <https://unesdoc.unesco.org/ark:/48223/pf0000259399>.

206 The Chilling (n 3) 21.

207 OSA s 64 (n 17).

208 See note 198.

209 See note 25.

210 OSA Schedule 7 (n 17).

211 ibid s 181.

212 Law Commission (n 60) para 2.56.

213 HL Deb 22 June 2023 vol 831, col 413–415; HL Deb 6 July 2023 vol 831, col 1331–33 (Baroness Kennedy).

214 Posetti, Fighting Back (n 205).

215 Nina Jankowicz, Joint Committee (n 19); HL Deb 19 May 2023 vol 830, col 201 (Baroness Gohir); HL Deb 1 Feb 2023, vol 827, cols 738–39 (Baroness Kennedy); HL Deb 19 May 2023 vol 830, col 190–91 (Baroness Morgan).

216 This was campaigned for by Baroness Kennedy vigorously (HL Deb 22 June 2023 vol 831, col 413–415; HL Deb 6 July 2023 vol 831, col 1331–33). See also HL Deb 19 May 2023 vol 830, col 190–91 (Baroness Morgan); HL Deb 19 May 2023 vol 830, col 201 (Baroness Gohir); HL Deb 22 June 2023 vol 831, col 413–415, HL Deb 6 July 2023 vol 831, col 1331–33, HL Deb 1 Feb 2023, vol 827, cols 738–39 (Baroness Kennedy); HL Deb 22 June 2023 vol 831, col 420 (Baroness Merron). Cf HL Deb 6 July 2023 vol 831, Cols 1581–86 where Baroness Fox and Lord Moylan sought to remove the ‘threatening’ and ‘harassment’ Public Order Act offences from the Bill entirely, and HL Deb 1 Feb 2023, vol 827, col 703 where Lord Frost intoned that Government isn't responsible for addressing online abuse of public figures.

217 OSA s 192 (n 17).

218 ibid s 192(6).

219 ibid s 193 ‘Ofcom guidance about illegal content judgments’.

220 ibid Part 10 ‘Communications Offences’. These cyber offences were recommended by the Law Commission (n 60) HC Deb 19 April 2022, vol 712, col 98.

221 OSA s 179 (n 17). Notably ‘recognised news publishers’ are exempt from the commission of this offence (s 180(1).

222 See Carly Nyst and Nick Monaco, ‘State Sponsored Trolling: How Governments Are Deploying Disinformation as Part of Broader Digital Harassment Campaigns’, Institute for the Future (2018) <https://legacy.iftf.org/statesponsoredtrolling/>

223 OSA s 32 (search services) s 21 (Category 1 platforms) (n 17).

224 Law Commission (n 60) para 1.32.

225 ibid para 5.69, 5.90, 5.12; See Protection from Harassment Act 1997, s 7(3A).

226 See Diana Rieger and others, ‘Assessing the Extent and Types of Hate Speech in Fringe Communities: A Case Study of Alt-Right Communities on 8chan, 4chan, and Reddit’ (Oct–Dec 2021) Social Media + Society. See also HC Deb 19 April 2022, vol 712, cols 94, 107, 114, 131.

227 HC Deb 17 January 2023, vol 726, col 274, 288–290 (Labour tabled amendments).

228 Maria Ressa in ‘Fighting an Onslaught of Online Violence’ (n 3) 12.

229 Government even admitted that some abuse public figures endure may not obviously be criminal, stating that the platform (and Ofcom and the judiciary) would have to conduct a ‘balancing exercise’: PBC Deb (OSB) 7 June 2022, col 273–276 (Chris Philp).

230 See Green Paper (n 21) and White Paper (n 21).

231 See NUJ (n 101), Professor Fowler (n 118), Alex-Davies Jones MP (n 118), Lords Committee Evidence (n 123), Joint Committee Evidence (n 19), DCSM Committee Evidence (n 125), Parliamentary debates (n 181)–(n 189). There are of course a few men who also raised abuse as an issue, for example, Robert Coleville noting that women journalists endure or abuse than he does (n 123) and male parliamentarians raising abuse they endured, e.g. (n 182).

232 For example, after the ‘legal but harmful’ provisions were dropped, the Government routinely rejected amendments that would require platforms to complete risk assessment of harms to adults, covering, harassment, misogyny, antisemitism and so forth: PBC Deb (OSB) 7 June 2022, col 259; PBC Deb (OSB) 28 June 2022, col 685 (Alex Davies-Jones). HL Deb 9 May 2023 vol 829, col 1752–52 (Baroness Stowell); HL Deb 1 Feb 2023, vol 827, Col 1501 (Lord McNally); HL Deb 1 Feb 2023, vol 827, cols 763–64. And although the House of Lords eventually agreed to include a provision requiring Ofcom to produce guidance (not a code) on harms to women and girls, this does not specifically consider journalists: HL Deb 12 July 2023 vol 831, col 1763–64.

233 And not an ‘instrument of censorship’. I mention recent criticisms of Pakistan's Broadcasting regulator as an example of regulator intervention that is arguably problematic: Raksha Kumar, ‘As Pakistan approaches a crucial election, its media watchdog bans critical voices from TV’ Reuters (3 Oct 2023) <https://reutersinstitute.politics.ox.ac.uk/news/pakistan-approaches-crucial-election-its-media-watchdog-bans-critical-voices-tv>.

234 Kate Klonick, ‘The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression’ (2020) 129 Yale Law Journal 2418.

235 See National Action Plan (n 14).

236 ibid.

237 The NUJ was the main entity that fought for journalist safety in the OSA and was the only one to recommended specific provisions in the OSA to help tackle abuse against journalists. It is therefore puzzling that the Government reportedly initially excluded the NUJ and it had to fight for a seat to be there. IFJ, ‘Online abuse: “It is about silencing any woman who dares to speak out and to have an opinion”, NUJ General Secretary Michelle Stanistreet’ (23 Nov 2022) <https://www.ifj.org/media-centre/news/detail/category/vaw/article/nuj-general-secretary-michelle-stanistreet-online-abuse-it-is-about-silencing-any-woman-who-dares-to-speak-out>.

238 E.g. Those it has made with regards to the National Action Plan (n 14).

239 Douek (n 39).

240 These suggested measures are targeted to the OSA's legislative framework but others could also be implemented, including broader policy measures. I would like to acknowledge the thoughtful recommendations in The Chilling (n 3) 235–37, 241–43 which many of the recommendations are based on.

241 See note 232 regarding guidance on harms to women and girls.

242 The Chilling (n 3) 241–43.

243 ibid. Diana Maynard is currently managing a research team developing a computational model to predict and track abuse against journalists. See Julie Posetti, Diana Maynard and Nabeelah Shabbir, ‘Guidelines for monitoring online violence against female journalists’ (3 Oct 2023) OSCE <https://www.osce.org/representative-on-freedom-of-media/554098>.

244 The Chilling (n 3) 242.

Additional information

Notes on contributors

Ricki-Lee Gerbrandt

Ricki-Lee Gerbrandt, BA (Hon), J.D., LL.M. (Harvard) is currently completing her PhD at the University of Cambridge, Faculty of Law. She previously worked in private practice as a barrister in Canada litigating media, technology, and constitutional issues, including SLAPP suits, online defamation, publication bans, and cases concerning freedom of expression, privacy, harassment, and intellectual property. She has acted for national broadcasters, social media and telecommunications companies, governments, public officials, and journalists. Her research interests include international and comparative freedom of expression, media law, and constitutional law.