My Lords, I put my name to Amendment 51, which is also in the name of the noble Lords, Lord Stevenson and Lord McNally. I have done so because I think Clause 15 is too broad and too vague. I declare an interest, having been a journalist for my entire career. I am currently a series producer of a series of programmes on Ukraine.
This clause allows journalism on the internet to be defined simply as the dissemination of information, which surely covers all posts on the internet. Anyone can claim that they are a journalist if that is the definition. My concern is that it will make a nonsense of the Bill if all content is covered as journalism.
I support the aims behind the clause to protect journalism in line with Article 10. However, I am also aware of the second part of Article 10, which warns that freedom of speech must be balanced by duties and responsibilities in a democratic society. This amendment aims to hone the definition of journalism to that which is in the public interest. In doing so, I hope it will respond to the demands of the second part of Article 10.
It has never been more important to create this definition of journalism in the public interest. We are seeing legacy journalism of newspapers and linear television being supplanted by digital journalism. Both legacy and new journalism need to be protected. This can be a single citizen journalist, or an organisation like Bellingcat, which draws on millions of digital datapoints to create astonishing digital journalism to prove things such as that Russian separatist fighters shot down flight MH17 over Ukraine.
The Government’s view is that the definition of “in the public interest” is too vague to be useful to tech platforms when they are systematically filtering through possible journalistic content that needs to be protected. I do not agree. The term “public interest” is well known to the courts from the Defamation Act 2013. The law covers the motivation of a journalist, but does not go on to define the content of journalism to prove that it is in the public interest.
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Surely what defines the public interest in journalism is proof that a process has been followed to ensure the accuracy and fairness of the information purveyed. A journalist using a public interest defence would show that they have checked the facts for accuracy by using authoritative or verifiable sources for their information. But, if the Government will not accept this definition and say that it is too hard to define “public interest”, the response should be to look at the laws that do that.
I ask the Committee to look at the public interest tests put forward by the Information Commissioner’s Office when deciding whether to grant a freedom of information request. They require the content to “promote public understanding” and safeguard the democratic process, uphold “standards of integrity”, ensure “justice and fair treatment” for all, and ensure the “best use” of public resources.
This is not an extensive list of the criteria that can be used to define “public interest”, so I also suggest that the Minister looks at the Public Interest Disclosure Act 1998, which aims to protect employees from unfair dismissal due to whistleblowing. It goes further in trying to define the disclosures that might be protected because they are in the public interest: a request should ensure that the information disclosed will reveal
“that a criminal offence has been committed, … that a person has failed … to comply with any … legal obligation to which he is subject, … that a miscarriage of justice has occurred, … that the health or safety of any individual has been … endangered”,
or
“that the environment has been … or is likely to be damaged”.
These definitions can be built on or worked through. Both Acts show that Parliament has successfully accepted the concept of the public interest defence and defined it, albeit in a limited way.
This amendment would ensure that category 1 services protect journalism in the public interest. This is not same as the powerful exemption offered to content provided by news publishers in Clause 50, which are defined by a clear set of criteria. Under Amendment 51, the journalism covered in Clause 15 would not have to belong to a regulator to qualify as being in the public interest; the author just has to prove that they have acted responsibly to deliver accurate and verifiable journalism. This would not stop disinformation appearing on the internet—which should be allowed to continue so that it can be refuted—but it would ensure that it does not benefit from the protection offered by Clause 15.
The Bill changes for ever the controversy about whether the platforms are publishers. Companies come in the scope of the Bill as publishers, and, as such, should have the ability to distinguish content that is accurate and fair public interest journalism and, as Clause 15(2) says, create a service
“using proportionate systems and processes designed to ensure that the importance of the free expression of journalistic content is taken into account”.
I am a great supporter of freedom of expression, and I am glad that the Bill contains protections for that. However, if category 1 companies will be asked to provide this protection, it has to be less vague and more defined. This amendment offers some way towards an answer.