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 [2013] 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 [2013] 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.