In a recent post on the Head of Legal blog, I said I was worried that the press self-regulation scheme agreed by the main political parties (and to be underpinned by a Royal Charter and two pieces of legislation) would not offer bloggers what it offers the press. Let me explain my worries – and why I think every type of blog should be included.
It’s often been said that Lord Justice Leveson “ignored” the internet in his report – but that’s flatly wrong. It’s true that he didn’t go on at length about the web. His remit was, after all, to consider the culture, practices and ethics of the press. But he clearly envisaged that online publishers and even very small blogs should be able to join his proposed self-regulator. Anyone who doubts that should look at paragraphs 4.11, 4.12 and 4.13 on page 1761 of his report.
And Schedule 3, paragraph 23 to the draft Royal Charter seems to replicate this.
The membership of a regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms, including making membership potentially available on different terms for different types of publisher.
Those words are an almost exact lift from Leveson’s paragraph 4.13, referred to above. So far so good. The term “publisher” is not defined in the draft Charter. The term “relevant publisher” is defined – but in the Charter, the only significance of that term is that relevant publishers are excluded from serving in various positions in the recognition body, the appointments panel or a regulator.
The problem is in the clauses inserted into the Crime and Courts Bill to give statutory underpinning to incentives to join a regulator. These provisions all use the concept of relevant publisher, defined as in the draft Royal Charter. The definition, in what I think must now be new clause 37 (MPs debated it as new clause 29) is as follows:
(1) In sections (Awards of exemplary damages) to (Awards of costs), “relevant publisher” means a person who, in the course of a business (whether or not carried on with a view to profit), publishes news-related material —(a) which is written by different authors, and
(b) which is to any extent subject to editorial control.
There are special exclusions from this for publishers like the BBC and special interest titles, set out in a schedule – but more of that below.
The first thing to notice about the definition is that in includes only those who publish in the course of a business. I don’t see why this qualification is necessary: why does it matter to a person who’s libelled, or spied on, or hounded, whether they’re being hounded in the course of a business? And I don’t think it’ll be easy for regulators or even for the courts to decide who meets this test. It’s given rise to litigation in the context of the sale of goods, and comes up in tax cases and criminal cases too.
It’s especially hard for a small publisher like a blogger to know whether it applies to them. If you sell a book through your otherwise non-revenue producing blog, do you write in the course of a business? What if you earn money from media appearances on the back of your blogging? What if you’re a lawyer who blogs on a site linked to your firm or chambers? Is that in the course of your professional business?
Next, there’s the requirement to publish material written by different authors. I don’t think this is hard to satisfy: any group blog does, of course. But even by allowing comments, I think a blog publishes material written by different authors.
More difficult, and much more complex, is the provision about the material being subject to editorial control. This is further defined in subsections (2)-(4):
(2) News-related material is “subject to editorial control” if there is a person (whether or not the publisher of the material) who has editorial or equivalent responsibility for–(a) the content of the material,
(b) how the material is to be presented, and
(c) the decision to publish it.(3) A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for content of the material, if the person did not post the material on the site.
(4) The fact that the operator of the website may moderate statements posted on it by others does not matter for the purposes of subsection (3).
The intention here is presumably to exclude lone bloggers, as the Culture Secretary said in the House of Commons debate. I suppose the idea is that, since they do not post any comments made by others, they do not have editorial responsibility for the content or decision to publish those comments (subsection (3)); their news-related material does not satisfy subsection (2), and therefore they’re not a relevant publisher under subsection (1). The fact they they may moderate comments makes no difference (subsection (4).
But does it really work so neatly? Subsection (3) may operate like this if the publisher doesn’t post comments themselves. But what if he or she “pre-moderates”, and so does actually post the comments? It seems to me hard to argue that this should not count as posting “because pre-moderation is something different”, since subsection (4) tells us the fact of moderation does not matter for the purposes of subsection (3).
What’s more, even if subsection (3) operates as intended, I’m not sure it interacts effectively with subsection (1). If a lone blogger isn’t responsible for the content of, or the decision to publish, comments, then (because subsection (2) isn’t satisfied) that news-related material on his or her blog isn’t subject to editorial control for the purposes of subsection (1). Nonetheless, he or she does still publish material written by different authors, and the material is subject to editorial control to the extent that he or she writes and posts it himself. Remember that subsection (1) makes you a relevant publisher if your news-related material is to any extent subject to editorial control.
I suppose you might object to my reading by saying that all the material posted by different authors must be subject to editorial control in order for subsection (1) to be satisfied. But can that be right? It only could be if the word material in the stem of subsection (1) refers to an entire blog when it conditions subsection (1)(a) – since only a rare individual blogpost is written by “different authors” – but refers only to individual blogposts when it conditions subsection (1)(b).
Apart from all this, there’s the question of how the provisions apply to group blogs. On my pedantic, trouble-making reading, the person who runs a group blog may be a relevant publisher even if he or she allows other authors to post directly on to the site – since their own posts at least are subject to editorial control. But on what I think is the reading intended, allowing co-authors to post directly would invoke subsection (3), and all its intended consequences.
Finally, these provisions seem to draw a line between entirely self-written blogs on the one hand, and those who accept guest posts on the other. But what if you’ve only ever accepted one guest post? That would seem to make you a relevant publisher, wouldn’t it?
These worries seem to me enough to mean the provisions needs another look. But that’s not all. I mentioned that there are special exclusions from the concept of relevant publisher, set out in a new schedule to the Crime and Courts Bill. Most of the exclusions are unproblematic: there’s one for the BBC and other broadcasters, one for academic journals and one for genuine book publishers, for instance. No problems there. But the exclusion for “special interest titles” is more interesting. It covers
A person who publishes a title that —(a) relates to a particular pastime, hobby, trade, business, industry or profession, and(b) only contains news-related material on an incidental basis that is relevant to the main content of the title.
To some publishers, this will clearly apply. There’s much more doubt about others. This website, for instance, does not relate to the legal trade or profession: it’s about law. And news-related material is its bread and butter rather than being incidental.
There’s a simple solution to all this, and one that would be truer to what Leveson recommended: the entire concept of a relevant publisher should be abandoned.
The problem with the current approach is that, while apparently opening self-regulation to everyone, as Leveson recommended, it reserves the benefits of self-regulation only to a select few. The main benefit of self-regulation, for a blog, would be the costs protection it would give in libel and privacy claims. These are given by what I think must be new clause 36 of the Crime and Courts Bill:
(1) This section applies where —(a) a relevant claim is made against a person (“the defendant”),
(b) the defendant was a relevant publisher at the material time, and
(c) the claim is related to the publication of news-related material.
(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that —(a) the issues raised by the claim could have been resolved by using an
arbitration scheme of the approved regulator, or
(b) it is just and equitable in all the circumstances of the case to award
costs against the defendant.
I have to admit that subsection (2) makes my head hurt, and may be beyond my comprehension. Why should it count against a publisher that a libel claim (say) could instead have been arbitrated under a self-regulator’s system? And why is the court given a general discretion to award costs against the publisher, regardless? Surely subsection (2)(a) and (b) should be joined by and rather than or.
But the real point is that subsection (1) makes this protection available only to a relevant publisher. If you don’t blog in the course of a business, if you blog alone and the complicated provisions about editorial control count you out, or if you’re a special interest blog, then you’re out – and at risk of costs in a libel action – even if, as the draft Royal Charter seems to provide, you can and do join a recognised self-regulator offering free arbitration to anyone who claims you libelled them. That’s not good enough.
True, not being a relevant publisher also means you’re not at risk of exemplary damages under the new system. But that stick would be unlikely ever to be used against a small blogger anyway. First, because most of us can be confident we won’t show deliberately or reckless disregard of people’s rights of an outrageous nature (which will be the main part of the test for exemplary damages under the relevant new clause); and second, because other provisions require the court before awarding exemplary damages to consider the reasons why a publisher didn’t join a self-regulation scheme. This clearly allows scope for a small publisher to argue that it was unreasonable to expect them to do so.
No: for lone bloggers, the benefit of costs protection against libel claims far outweighs the risk of exemplary damages. They should not be excluded.
I welcome regulation: I see it as potentially liberating the press and blogs from the chilling effects of libel threats. But that can’t work for small publishers if they’re denied the benefits of the system. The provisions should be amended to let us in, as Leveson recommended.
I don’t agree with the Blog Off campaign, with Tom Watson (even if that makes me “very stupid”) or with Lord Lucas. They may want to save me from the burdens and deny me the benefits of regulation. But I want the choice.
This post was originally published on the Head of Legal Blog and is reproduced with permission and thanks