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Question 1: This government has committed to annual transparency reporting. Beyond the measures set out in this White Paper, should the government do more to build a culture of transparency, trust and accountability across industry and, if so, what?

Supporting the right to artistic freedom

Supporting the right to artistic freedom of expression is an integral part of What Next?’s mission to create the best possible conditions for art and culture to thrive in this country.

Artistic use of ‘harmful’ content

Whilst we acknowledge that there is a need to manage online harms where illegal activity is taking place, and to safeguard children where necessary, we are concerned that the measures set out in the White Paper fail to recognise artists’ legal use of harmful content as a vital source of subject matter.  Our appendix lists just some of contemporary plays and other artworks. that use content that would potentially fall within the scope of the online harms, and that could be wrongly caught up in regulation, take down and possible penalties if the plans set out in the White Paper are taken up.

Complexity, ambiguity, nuance, satire

We are concerned that the White Paper has not attempted to accommodate the significant complexities relating to artistic expression and harmful content. Nuance, ambiguity, satire, irony and the creation of ‘harmful’ characters should all be explicitly considered, with measures and provision put in place to ensure that no artistic work is censored or discouraged due to the creation of a hostile environment to free expression.

Freedom for artists to push boundaries

In its current 10 year strategy, Arts Council England (ACE) states:

Art is about the discovery of the unknown and unimagined. Artists will innovate, and push boundaries.’ Further on ACE states that ‘we want to offer arts and cultural organisations the commitment and freedom that allows them to experiment and take risks.’  The proposals in the White Paper could create an environment in which artists do not feel free to push boundaries and take risks.

Fuelling a culture of caution

This question goes to the heart of our concerns that the existing proposals will create a culture of mistrust and lack of transparency. Decisions to censor work could be taken outside a framework of legal accountability: by companies, platforms or by the independent regulator: leading to increased censorship of artists and art.  The imposition of heavy fines on, and potential criminal action against, senior executives of companies could fuel a culture of over-caution, where perfectly legal artistic work exploring the harms within the scope of this White Paper, could be taken down to avoid getting caught up in the regulatory framework.

Double standards will undermine trust

Artists are skilled at pushing the boundaries of what is acceptable and legal, whilst remaining within the bounds of the law.  We are concerned that challenging, provocative yet perfectly legal artistic expression that is acceptable in the offline world, will fall foul of regulation online.  This could drastically limit what can be expressed by artists, many of who rely almost entirely on the internet to promote their work; it would also impact negatively on the debate that artwork naturally generates. We therefore urge the government to apply existing legislation, rather than creating any new law to ensure that the new regulation doesn’t outlaw legal expression.

Transparent, rights approach to build trust

Artists increasingly use the internet as their most important tool to access an audience, opportunity and livelihood. The internet opens up unprecedented reach for artists at all stages of their careers and brings into play, not only the rights of artists and audience to free expression and the free exchange of ideas without interference from the state, but also the economic rights of the artists. Unfortunately, the recommendations in this White Paper could render multiple platforms, currently available to artists, useless and could be in violation of multiple rights, if artistic content was to be removed.  To build trust with the arts and cultural sector, transparency reporting should ensure that companies are implementing regulations in a way that takes human rights, and in particular, rights to freedom of expression, cultural and economic rights, into account. 

Balance between safety and freedom

We believe that, in the bid to make the UK the safest place in the world to be online, the White Paper has lost a proportionate sense of balance and more work needs to be done to create a more nuanced and flexible solution.

Respecting rights and international law

We would like to draw attention to the international legal instruments that should be taken into account when drafting this legislation: The International Covenant on Economic, Social and Cultural Rightsarticle 15 (3) under which States ‘undertake to respect the freedom indispensable for…creative activity’ and in article 19 (2) of ICCPR, which states that ‘the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds “in the form of art’.

Existing guidance on rights-based approach

We are concerned that the current proposals don’t take a strong enough stance to protect and promote existing legislation and rights framework. We therefore promote the important role of the rights approach to regulation as put forward by David Kaye, U.N. Special Rapporteur on Freedom of Expression, in the first-ever U.N. report that examines the regulation of user-generated online content.  The Special Rapporteur examines the role of States and social media companies in providing an enabling environment for freedom of expression and access to information online.

We draw attention to the recommendation from U.N. Special Rapporteur, David Kaye’s, report on regulation of user-generated online content:

States should refrain from adopting models of regulation where government agencies, rather than judicial authorities, become the arbiters of lawful expression. They should avoid delegating responsibility to companies as adjudicators of content, which empowers corporate judgment over human rights values to the detriment of users.’

Transparency reporting

On transparency reporting, Kaye’s report recommends: ‘States should publish detailed transparency reports on all content-related requests issued to intermediaries and involve genuine public input in all regulatory considerations.’ The transparency reporting would, in the context of this report, aim to demonstrate how the regulator had not acted in violation of rights and international law.

Accountability and Artificial Intelligence

Given the massive volume of text and imagery that is uploaded every hour on larger platforms, the task of moderating content unavoidably falls to AI. There is a growing body of evidence of AI’s failure to effectively manage the legal, subtle, ironic, provocative and satirical language and images created by artists. There is also evidence of the in-built bias within many of the algorithms that are used to manage these processes.  Human accountability is needed to differentiate between the use of harmful subject matter to explore and expose difficult content, and harm itself. The White Paper should, at the earliest stage, take properly into account how regulation would be delivered – whether by DCMS, Big Tech, the Police, the proposed regulator, or other; and to ensure that there is capacity and associated resource to deliver an agreed, effective and proportionate level of regulation. 

Lack of clarity in the regulation could lead to lack of accountability

Attention needs to be paid to ensuring clarity, which is challenging given the complexity of the task. Rather than reinventing the wheel, the Bill could make use of the excellent work already done by UN Special Rapporteur, David Kaye – see below. We are extremely concerned that ‘harm is not defined within the Paper. We believe this ambiguity is a significant and highly problematic issue.

What protection for freedom of expression is set out by the white paper?

We welcome the report’s assurance that:

The regulator will also have an obligation to protect users’ rights online, particularly rights to privacy and freedom of expression. It will ensure that the new regulatory requirements do not lead to a disproportionately risk-averse response from companies that unduly limits freedom of expression, including by limiting participation in public debate. Its regulatory action will be required to be fair, reasonable and transparent.

However, we strongly believe that the statement needs to go further and would need to take full and explicit account of artistic expression that deals with harmful content. Some kind of ‘fair use’ style exemption that acknowledges the multiple legitimate, if provocative and challenging, ways that artists use ‘harmful’ content.


More time is needed to develop this policy and legislation to ensure that the proposals deliver on trust, transparency and accountability.

We recommend:

  • MORE TIME: for more careful and comprehensive navigation of the implications for artists, art, artistic expression and all related and ensuing debate and discussion pertaining to it
  • MORE CONSULTATION: to engage directly with artists and arts organisations to ensure that transparency, trust and accountability can be developed at this policy making stage. This would include the development of additional user-friendly consultation tools which young people and artists can engage with directly.
  • MORE BALANCE: to engage with those whose livelihoods and legal expression are at risk of being affected by the scope of the legislation; ensuring that penalties against excessive censorship are not unfairly applied. We would like to see a much more detailed rationale behind the need for any new legislation in this area, as we feel that the current provision would be adequate if properly interpreted and applied.
  • MORE CLARITY: a clearer and more precise definition of harm needs to be arrived at that targets harm in a proportionate and legal manner. We would also like further clarity on the capabilities and capacity of both Big Tech and the government in making these proposals a reality.
  • MORE ASSURANCE: that the government will adopt measures that will specifically protect artistic freedom and to ensure that the measures do not encourage disregard for freedom of expression
  • MORE EVIDENCE: to create clear evidence base for the need for regulations
  • MORE RIGHTS BASED APPROACH: to take a rights based approach to regulation as laid out in the UN Special Rapporteur’s report on regulations relating to user-generated online content.

What Next Submission to Online Harms Consultation

What Next? believes that the introduction of Covid-19 certification would have a significant impact on the cultural sector and could impact on our ability to deliver for years to come. Individuals could potentially have to use digital certification to join the workforce, or to participate in, or be an audience for culture. There are no timescales included in the Review, and so these mechanisms could be in place for several years.

The arts and cultural sector is not uniform. For every large building that relies on ticket sales, there is a small community project that works with people for whom a digital certification would be a barrier to their engagement. The economic ecology includes a mix of commercial, philanthropic and public funding in different quantities for different organisations. Similarly, the ‘re-opening’ narrative does not fit everyone, as many providers have continued working through Covid-19 (see appendix 1).

This is a complex issue which does not lend itself to a binary or unified position; what will enable one organisation will actively, negatively affect another. It is essential that those making the decisions on ways forward hear the nuanced views of our sector and understand the different and competing demands of different arts and cultural organisations and individuals: looking through an equality, rights and ethical lens as much as the critical economic one.

The economic need of many in the cultural and creative industries is not in dispute. It has been well documented, and many venues have made, and continue to make staff redundancies and reductions to their offer, which make a return to their previous operating models look extremely uncertain.

This economic lens cannot be under-weighted in making plans for the future. It concerns the return to work to the 40% of the sector which has been made redundant, and to the thousands of freelancers who have lost or reduced livelihoods as a result of COVID-19.

We believe that there is strong evidence that an economic recovery supported solely by certification, and without other measures, would be at the cost of the diversity of audiences, workforce and participants, and diversity of the arts and cultural content that is created.

We have heard strong evidence that the impact on diversity would significantly prevent organisations from delivering effectively against their charitable missions, and against their funding conditions: from trusts and foundations, from local authorities, from Arts Council England and other Arms-Length Bodies, and from their recent Cultural Recovery Fund grants. It would impact on their ability to deliver against community wellbeing and cultural strategies and to the Arts Council’s forthcoming Let’s Create strategy. Those organisations which are charities could find themselves in contravention of their agreements with the Charity Commission.

We believe that there is an opportunity within this consultation, and more widely, for the government and the cultural sector to reframe the questions that are being asked of us, and to ask: ‘What resources, tools and approaches do we need to deliver sustainable, equitable, inclusive arts and culture over the next year?’.

We believe that the structure of this certification consultation risks reducing the complex decisions and processes that will be required to the introduction of a single measure.

The cultural sector’s transition through and beyond the Covid-19 pandemic must be rooted in our duty of care: to our workforce, to our audiences and participants and to our wider communities. The sole introduction of certification does not reflect the critical need to build trust and relationships at every stage of that transition: whether it is reopening a building, reconvening a youth group, or delivering a festival. To build trust we must collectively acknowledge our shared and different experiences of the last year, and slowly re-engage with one another: recognising that some of our practices will be irreversibly changed – and sometimes for the better. This inclusive approach will have potential costs; from supporting the mental health of staff, to hiring clinical colleagues to administer regular tests.

Over the last year, many people have expressed their intention and their belief in ‘building back better’. They have publicly acknowledged systemic inequality, and the barriers that exist for many individuals in society in accessing the arts and culture. We believe that this intention will be actively undermined if certification is the sole mechanism used to transition through Covid-19.

The 7 Inclusive Principles document gives cultural organisations and individuals the tools to approach Covid-19 recovery and delivery through the lens of Disability and relevant Equality Legislation and supports the industry to make decisions inclusively, to go beyond compliance and celebrate diversity. These principles should be central to any Covid-19 transition strategy and apply in all possible future contexts.

Evidence from our sector academics at Indigo Ltd and The Audience Agency clearly shows that certification is not the key to an immediate return to ‘full houses’ in the next few months. Instead, we will need to follow the strategies above, and this may mean that the cultural sector continues to need to be economically supported for a short period. We believe that a relatively small further investment now will protect and build on that which has already supported the sector through the pandemic, and will, in the longer term, support a much more effective financial recovery.

What we want:

  • It is essential that government and any cultural organisations understand their responsibilities under the Equality Act. We are calling for evidence of transparent and clear ethical oversight from government and our sector on these issues: Equality Impact Assessment. We want Equality Impact Assessment to be mandatory for anyone putting certification in place, and for this to have taken place as part of the Review.
  • As is articulated in the ethical consideration section of this paper, this policy represents a ‘rights paradox’; where upholding the rights of one group will actively remove them from another. If certification was introduced, every organisation must articulate what they are actively doing to support equality of access for the group that they are excluding.
  • A slow, financially-supported, considered recovery for our sector – based on care, people, place and community. This should be built around questions of inclusion: ‘How can we open safely and inclusively for everyone?’

FINAL What Next- COVID 19 Certfication Consultation 290321

Seven Inclusive Principles for Arts & Cultural Organisations working safely through COVID-19 (1)

Campaigning cultural organisations We Shall Not Be Removed, Ramps on the Moon, Attitude is Everything, Paraorchestra and What Next? have joined together to create a new guide for the arts and entertainment sectors to support disability inclusion.

Here are Seven Inclusive Principles for Arts & Cultural Organisations working safely through COVID-19 to complement the suite of guidance documents already issued by UK Governments and sector support organisations. The Seven Principles offer practical guidance to arts and cultural organisations to support disabled artists, audiences, visitors, participants and employees.

The Bacc for the Future campaign, the Cultural Learning Alliance and What Next? has launched Arts in Schools, an advocacy toolkit designed to inform, help and inspire advocates to take action against the downward trend of the arts in schools.

Arts in Schools is a useful toolkit for arts activists and teachers to refer to and use when advocating and championing arts education. The pack includes vital information and advice to help make the case to keep arts in schools, including how to write letters to local MPs and Councillors, the National Schools Commissioner and members of the Education Select Committee.

Download the arts advocacy toolkit using the link at the bottom of the page or visit for more information.

Our focus on engaging MPs continues but this time with a focus on the local picture. This resource is about engaging your local MPs with top tips, step by step guidance and some useful key facts.