Three-D Issue 30: DCMS “Fake News” Report: time for a new approach?

Unfortunately the Fake News report was leaked by Dominic Cummings in a cynical attempt to personalise, delegitimise, and thus derail an important policy discussion. What Cummings does not relate in his blog is that the report is highly critical of him personally. Cummings is being investigated by the Parliamentary authorities for refusing to appear before the committee and his protests should be seen in this light.

The spat could in time draw in others involved in the Referendum campaign, such as Michael Gove, who was on the board that signed off spending and propaganda for Vote Leave. It is becoming more serious as criminal charges are likely to be involved. But whilst allegations of illegal campaigning and foreign interference are serious and must be dealt with, there is a danger that the deeper policy issues will be cancelled out by shrill personal attacks.

The policy recommendations in the new report are a mixture of encouragement of self-regulation, calls for changes in social media liability arrangements, funding for more research and civil society work, and support for transparency in targeted campaigning. These are all very welcome recommendations, but the devil, as always, resides in the detail. For example the report calls for changes to liability of social media companies in order to protect people from “illegal and harmful” content, but does not answer the tough questions about what is harmful? who decides? and what can they do about it? The report doesn’t offer a clear view on whether there is any overlap between categories of harmful content and its proposed categories of disinformation and misinformation. The report calls for social media to have an obligation to monitor content, which would clearly breach the E-Commerce directive but be possible post-Brexit. If regulation is to be proposed, questions of who will decide what is harmful, and what should be done about it will need to be addressed.

The report welcomes expected recommendations from Ofcom on Internet regulation. But Ofcom has in the past tried to avoid regulation of Internet content, and is likely to be particularly reluctant to begin to engage with regulation of sensitive political speech online. As a statutory regulator it is not in a position to exercise the wide judgement and discretion to offer a solution to these wide societal issues and is likely to pass the policy buck back to Parliament.

And the fundamental questions of how to make regulation work are not answered here. In the past the problem has often been not lack of rules, but an inability to enforce rules in the era of online global reach of news content. The report cites ongoing work of the Atlantic Council as an attempt to coordinate US-EU standard setting, and includes their recommendations with endorsement, but these are recommendations for ongoing cooperation in policy-making and cooperation rather than international legal standards and enforcement. As such they are welcome but much more work will be needed before the ‘Atlantic Charter’ called for by Collins’ Committee could be be agreed by an isolationist USA.

We now need two separate inquiries.

The fuzziness of the recommendations is to be expected. The Inquiry morphed from an investigation of ‘fake news’ into one about democracy itself following the Cambridge Analytica revelations. It has done a really fantastic job of interrogating witnesses whilst they attended, and marshaling evidence. But it is now patently obvious that a parliamentary inquiry of this type is insufficient, in terms of its powers and resources, to deal with the type of problems it has uncovered.

Banks and Cummings have laughed in the face of the Committee because the Committee does not have the authority to compel witnesses. It is now clear that a full judicial inquiry with the powers to compel witnesses is necessary to investigate the full extent of Russian interference with domestic UK politics, and specific issues such as where Aaron Banks’s money comes from. We now have reports from the Information Commissioner’s Office and from the Electoral Commission on the Referendum campaign. But they operate within their own limited remits and are not empowered to deal with the fundamental issues that indirect Russian funding in particular has raised. Only a full judicial Inquiry can pull together the existing, and extract new evidence necessary to get to the bottom of the allegations.

Separately from this, we need a systematic, evidence-based review of the fundamental shifts in the UK media system, such as the rise of social media, and the implications for democratic communication. Whilst the Digital Charter will allegedly cover some of this from the point of view of individual harms, more subjective assessment of harm to democracy cannot be carried out by central government, because it requires buy-in and trust from all the political players and wider civil society, and neither can it be carried out by an independent regulator that does not have a remit to carry out such a review. The United Kingdom has over many years developed a good model for such wide scale policy review in the form of the various Royal Commissions on the press (since 1949) and on the future of the BBC since (1926). Such commissions are transparent, have a clear terms of reference, enjoy the support and buy-in of the major parties and the ability to make recommendations to Parliament that are not captured by single political parties. Parliament does have the policy levers to deal with these issues, in a combination of data protection, competition and media regulation, but without a high level and far reaching policy review it will be condemned to tinker at the edges.

So these two recommendations should be at the centre of the Committee’s final report, and publication of that report should be brought forward as a matter of urgency. It’s time to stop the buck passing and have a serious discussion about building institutions that can get us out of this mess.

Posted by Einar Thorsen