As one would expect, the subject of applying regulation to the internet, has come under particular scrutiny from the online community as a result of proposals contained in the draft Royal Charter on self-regulation of the press and amendments to the Crime and Courts Bill. On the whole they have been criticised as an unwarranted extension which will have a “chilling effect” on internet publishers. Is this an accurate assessment of the proposals?
The draft Royal Charter flows from the Leveson Report. In is interesting that those who complained that Lord Justice Leveson failed to deal with the internet now appear to complain the measures taken to implement the report do include the internet.
A number of commentators such as Hugo Rifkind in the Times (£) argue that the effect of the draft Royal Charter will be that “anybody with a point to make or an accusation to level” will be subject to the same form of regulation as a newspaper and the possibility of £1 m fines (should they choose to sign up to the proposed regulator) or exemplary damages (if they don’t). I have to say I disagree.
Looking at both the draft Royal Charter and the Crime and Courts Bill it is of note that there are differing definitions of “relevant publishers”.
The definition of “relevant publisher” as it applies to a website within the draft Royal Charter (at Schedule 4) is:
“a person (other than a broadcaster) who publishes in the United Kingdom a website containing news-related material (whether or not related to a newspaper or magazine).”
Importantly, a person publishes in the United Kingdom if:
“the publication takes places in the United Kingdom or is targeted primarily at an audience in the United Kingdom”
This definition is deliberately permissive as it allows anyone who wishes to join the regulatory system to do so.
One also needs to look at the definition of a “relevant publisher” as proposed in the amendments to the Crime and Courts Bill (see amendment 18) to see what the situation would be if you are not signed up the regulatory system. Here the definition is as follows:
“a person, who in the course of business (whether or not with a view to profit), publishes news related material-
(a) Which is written by different authors;
(b) Which is to any extent subject to editorial control”
This definition is somewhat narrower than that contained within the Royal Charter no doubt as it is specifically dealing with the various ‘carrots and sticks’ for those who choose not to sign up to the regulator.
In light of these definitions individual bloggers are unlikely to be subject to the new proposed regulatory regime. So for example those individual blogs on WordPress or Blogger would remain unregulated and not subject to the adverse costs awards, or possibility of exemplary damages, that can result from not signing up as members of the proposed regulator. On the other hand websites such run by those such as the Huffington Post or Guido Fawkes could be.
Paul Staines’s ‘Guido Fawkes’ website for instance has a number of contributors, is run as a business and despite being off shore is targeted primarily at an audience in the United Kingdom. Whilst he is entitled to protest and refuse to join the regulator one has to ask, from a commercial perspective, why such a website would do so?
If the website continues to publish articles within the law it has nothing to fear. If it was to stray into libellous (or otherwise unlawful) territory it would be able to benefit from the proposed arbitration system which would be considerably cheaper than fighting High Court litigation, in which it would most likely be liable for the costs of in any event given most disputes will be able to be dealt with under the arbitration scheme.
Following the recent decision in Thompson v James  EWHC 515 (QB) (see here for case comment) the claimant, who lost her case and was successfully sued herself, has said that she is unable to pay the £25,000 damages let alone the costs involved with a 6 day High Court trial. Had the new regulatory regime been in place, and Ms Thompson been a member, no doubt she would have benefited from a user friendly, speedy and considerably less costly arbitration process. All this is all the more relevant if the abolition of CFAs (currently on hold for libel and privacy claims) goes ahead.
As to the threat of exemplary damages for those who don’t sign up to the proposed regulator, these are only to be awarded “where the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights.” Even if this high threshold is met the Courts are likely to consider the offending party’s financial circumstances, and ability to pay, when assessing the amount of exemplary damages that should be payable.
Maria Miller, the Culture Secretary, appears to support this view as when asked to comment on this issue she said the “publisher would have to meet the three tests of whether the publication is publishing news-related material in the course of a business, whether their material is written by a range of authors – this would exclude a one-man band or a single blogger – and whether that material is subject to editorial control“. Miller also highlighted the various bodies excluded from this definition which includes broadcasters, special interest titles, scientific journals, public bodies and charities, company news publications and book publishers.
Whichever way ones look at it the law with regards to the internet remains uncertain; regulating it, even less so.
What of organisations such as Google, Facebook and Twitter? These companies will need to look closely at the draft Royal Charter and the way in which it affects them. Whilst on the face of it they are conduits for others to publish blogs or micro blogs do they in fact exert editorial control, such as to fall within the definition of “relevant publisher” through their use of various algorithms? They will also need to have in mind the recent decision in Tamiz v Google  EWCA Civ 68 (see here for case comment) in which the Court of Appeal held that Google could be liable as a publisher at common law.
It is clear that these companies all make a significant amount of money within the United Kingdom and that they, along with other websites which are run as businesses, should be subject to the same rule of law as everyone else.
Whilst the individual blogger, passionate about his or her subject, should be offered some protection from the ‘stick’ of the not being a member of the proposed regulator it appears safeguards already exist; perhaps someone just needs to report this fact to them.
That said, there can be no denying that in this day and age individuals still retain the power to cause untold damage through their publications online. One tweet from Justin Bieber can reach 36 million followers in an instant, many more than the daily circulation all of the newspapers in this country (and several others) combined; and therein lies the problem which remains to be addressed.
Tim Lowles is a Senior Associate in the IP and Reputation Management team at Collyer Bristow. He can be followed on Twitter at @timlowles.
Would Inforrm fall under the Crime and Courts bill as it stands ?
Inforrm is not carried on as a business and is a “special interest” title so it would not be a “Relevant publisher” on two grounds.
“If the website continues to publish articles within the law it has nothing to fear. If it was to stray into libellous (or otherwise unlawful) territory it would be able to benefit from the proposed arbitration system which would be considerably cheaper than fighting High Court litigation”
i have to say, I disagree with the above comment and the tone of this article. Just more of the same from the old school of thought I think.
Who decides when a website has strayed into libel territory? The problem for a long time (as confirmed by the regular tables published here) is that most of the libel cases brought have been eventually dismissed because they are so weak they should never have been pursued in the first place.
We have a system and a law which encourages libel litigation for name calling, triviality. whistleblowing and honest opinion (because the law currently is still weighted more in favour of the claimant). We have a situation in which most solicitors are ignorant of libel law and what constitutes significant harm and damage. Solicitors do not understand or recognise context, abuse of process and over-compensation – all regular features of so many cases. Some of the libel cases brought over recent years have been so absurd and hilarious that I confess I initially started reading this site for amusement purposes but have since become hooked by the often excellent understanding and analysis published here. Although most cases end up with a sensible outcome in the end, we have worthless cases which drag on for years because of vexatious litigants and claimants with a gross ignorance of the law who are encouraged by equally ignorant solicitors and a judiciary system which is often unable to reach a decision for years – until one day it finally dawns on one,judge (usually an appeal judge) that the case he is hearing is so utterly ludicrous it should never have received a hearing in the first place.
I think there are many elements here to be concerned about. I do however favour some kind of arbritation scheme but one which also discourages the kind of libel nonsense commonly pursued. For that though you need decent lawyers and arbritators who really understand libel law and serious harm. For me, we really do need to start addressing the numerous cases which are clogging up our courts and properly educate solicitors about libel law. We need to introduce severe sanctions for claimants and their lawyers who bring vexatious libel litigation and destroy the lives of defendants – all because of a few trivial comments on a website. When we get the basics right and the parties start acting intelligently and sensibly we can then start discussing all this.
I think the chances of an individual blogger joining any approved regulator are nil, so the potential benfit to them of any newspaper industry arbitration scheme is purely theoretical / illusory. Its not going to solve the sort of problems of Thomson v James. Don’t forget that we can all use arbitration or mediation to resolve disputes now if we are so minded.
“Who decides when a website has strayed into libel territory?”
Why, a libel jury, of course!
Would Inforrm also be subject to exemplary damages if it was not part of a regulatory system? The idea seems a bit silly but given the multiplicity of authors and the presence of editorial control it might well do.
Inforrm would not be a “relevant publisher” so would not be liable to exemplary damages.
Will INFORRM sign up to the regulator?
If there are proper terms available for bloggers we will sign up.
Sorry for the double post – didn’t think the internet had been working.
In my post above I think there were a couple of points I tried to make although I wrote it quickly and did not home in properly to make them clearer.
My observation about who decides what is libel territory was that the sentence I quoted from the article seemed like a presumption of guilt and that in practice there are many people who would worry even if their website clearly did not step into libel territory. If we look at the judgements and list of cases published here over the last three years there is a clear and worrying trend of a significant minority of cases which really should never have had a hearing. Vexatious and ill conceived litigation (often when represented by a solicitor) is a serious problem in libel litigation which is not properly recognised. One major and overlooked reason for this is that there is a worrying lack of knowledge about libel and a failure by many lawyers to grasp some of the essential concepts and keep up to date. The comments on many legal and media websites about recent Twitter libel cases are testiment to that.
It is true that if an ill conceived case were to proceed nowadays, the case could still be years in the High Court until common sense prevails but the right outcome will usually be achieved in the end and there have been improvements recently. For example, I think more cases are struck out earlier than they once were. More civil restraint orders have been issued to vexatious libel litigants.
The point about the proposed arbitration service is that it will be a challenge to deal with determined vexatious litigation and ill conceived claims for several possible reasons. Firstly I am not sure how effective it would be against determined vexatious claims when it does not seem there would be the power to dismiss them. Secondly, with the proposed arbitration scheme, there is no guarantee that the arbitrators will have the same level of expertise and discretion that the judges have now.
The overall point I was making was that part of the reason the courts are clogged up is due to a lack of knowledge and expertise in the legal community (and the wider public) about libel law and how it works in practice – and particularly how it has more positively evolved in the courtroom these last few years. Before we knee jerk into regulation of websites and arbitration schemes or any change for that matter, we need to ensure that all involved parties have a far better working knowledge and understanding of libel law and are up to date with current thinking and developements. Above all we need to ensure that all litigants are on a more equal footing which is certainly not the case now.