Why press regulation should cover blogs

by Carl Gardner on March 24, 2013

In my last post, 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.

{ 14 comments… read them below or add one }

1 Ursula Rice March 24, 2013 at 09:58

Very interesting. I havnt yet formed an opinion so I’ll express some thoughts and listen to other people’s opinions before making my own.
Firstly, blogging is becoming a defined marketing tool and is recommended as part of social media strategy. Some blogging feels less in the course of business (seusspicious minds/ Pink Tape ) and some more so (Marilyn Stowe). But I think resisting the course of business aspect will become less tenable over time.
Secondly, single bloggers are in the running to recklessly disregard peoples rights outrageously. a fathers pressure group that seems to be run from an exclusive source has stated it wishes to publish names of mothers who are “contact deniers”. I dont whether they have thought better of it, but it seems to have lots of issues surrounding rights to a family life and privacy just for starters.
Thirdly it doesnt seem unreasonable to agree to abide by a code that just tells you to obey the law anyway.

How about you make up a story in your next post and apply it to some imaginery blog characters eg: MumsOrg, Daddys4Justice, Pigeon Fanciers Bi monthly, Bob the blog (Bob works at the daily Planet) ? it might illustrate the point and would be a service to webkind, as it is pretty early on a Sunday to be learning about libel law…

2 Simon Carne March 24, 2013 at 10:04

Would a lot of the problems go away if, in the case of bloggers, there was an option to agree to use the regulator’s arbitration system once a claim had been made? This would avoid the need for the regulator to process thousands of membership applications from those who want protection “just in case”, whilst still providing all the benefits and protections of the regulator’s arbitration system if and when actually needed.

If the regulator is to be funded by the industry, the option to join post-claim can’t be left open to all publishers. But the Charter already allows for membership to be “available on different terms for different types of publisher” – see first extract quoted in Carl’s blog above. The clause was presumably intended to permit different charging mechanisms, but there is no reason why it couldn’t be applied (or, if necessary, extended) to permit some classes of members to join for the purposes of an arbitration. It would be much less costly all round.

3 Carl Gardner March 24, 2013 at 14:25

Ursula,

I may make up a scenario! I quite enjoy that. Depends how good my imagination is.

I agree there are some bloggers who’d show deliberate, outrageous disregard for people’s rights. At the moment they risk exemplary damages in libel cases in any event. I think it’s right to extend exemplary damages to other causes of action involving publication, so we can make sure deliberately outing and hounding people without justification won’t pay.

4 Carl Gardner March 24, 2013 at 14:28

Simon,

I agree. I think that’s a really good proposal.

Need it be hard to process applications, though? Couldn’t it be quite a simple online process, like joining any organisation?

But anyway, I agree. I think it should be fine to join when you get a solicitor’s letter.

I think the provisions need to be changed to cope with this: the question whether the benefits of regulation kick in should not depend on whether you were regulated at the time you allegedly libelled someone (which is how the legislation would work as drafted). The key should be whether you give someone a chance to arbitrate once they’s started threatening you with legal action.

To be fair to claimants, so you can’t force them to spend money on libel proceedings and then pull the rug from under them at a late stage, perhaps you should have a month (say) from receiving a letter before action, in which to decide to sign up for arbitration. After that, perhaps arbitration should only be available with the claimant’s agreement.

5 Simon Carne March 24, 2013 at 19:04

Carl

We agree except, perhaps, for the (relatively minor?) point of the second para in your note to me above. I accept that the online sign-up could be automated, but I am working from the assumption that, as a regulator, the new body will wish to be more inquisitive than that when taking on new regulatees, or else it could face criticism that it isn’t “regulating”. The body, when it comes into existence, may take a different view from me.

6 Angela Phillips March 24, 2013 at 19:43

Media Reform is interested in ways of giving protection to small news websites. We initially suggested that bloggers should be encouraged to join as associate members, perhaps in return for implementing basic internal compliance around right of reply and correction of errors. This is a useful addition to the debate.

7 Evan Harris March 25, 2013 at 02:44

Excellent post

You say about this clause…

(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.

that it makes your “head hurt”, and “may be beyond my comprehension.”

Don’t worry, This is because there is NOT missing between “could” and “have” in (2) (a). It now makes sense.

This is typical of the bad drafting by the DCMS and the MoJ of these clauses.

8 jonathanwthomas March 25, 2013 at 14:50

As I run a news website that has a subject about the UK, I can safely say that my website will continue to be based and run from the USA where free speech isn’t even up for discussion.

9 Carl Gardner March 26, 2013 at 20:07

And a great website it is too, Jonathan!

I think it’d be really interesting if someone who really knew the law of the US First Amendment were to analyse whether the proposed legislation here would breach it – it’s not obvious to me that it “abridges” free speech or the freedom of the press at all.

The other point you raise is an important one. It’ll amaze most people, but I don’t think being based or run from the US makes any difference, strictly, to how you’re affected by this! You can be sued for libel right now. And if this legislation is passed, you’ll still be at risk (though the Defamation Bill, also nearing the end of its Parliamentary process, will cut down the risk quite a bit).

The question for foreign publishers is this: if they happen to be sued in an English court one day, would they like the choice of being able to force the claimant to go to free English arbitration instead? If so, then this legislation may even offer them something.

If publishers based outside the UK were excluded, then they’d have no choice: if sued in English courts, they’d just have to settle or fight.

10 jonathanwthomas March 26, 2013 at 21:46

So, forgive my ignorance of international law – if I was sued in an English court, how would they sanction/fine/punish a business in the USA that has no presence in the UK?

11 Carl Gardner March 26, 2013 at 22:31

It’s hard I think to enforce a judgment in the US, because the US I don’t think is party to any international agreement on enforcement of judgments. So I think you’d have to start fresh proceedings in the US. It can be done, though.

It’s especially hard in defamation cases now because of the “SPEECH” Act. But even under that, it’s still possible if a US court thinks the defendant would have been found liable for defamation in the US.

So: very hard, but possible I think.

I’m interested in what Americans think of all this – there was an op-ed in the New York Times last week for instance criticising the proposals (though it didn’t seem to me to fully understand them).

It’s true our libel law has been a real problem – one that we’re solving. But I think outside observers get a really wrong impression if they think Britain’s going backwards in terms of free speech. These post-Leveson proposals divide us here, but I think it’s a minority who see this as a threat to free speech. And the debate is skewed by the worst elements of our press who are really just defending their own commercial interests with incredibly one-sided coverage of this.

I wonder if American journalists behave like some of ours have, and what would happen if they did.

12 jonathanwthomas March 26, 2013 at 23:05

Well, I can try and give you my perspective as I like to think I’m knowledgeable on the subject.

Essentially what I think bothers the American press about this is the idea of having to be answerable to a third party that’s basically an arm of the government. But it’s not like we don’t have media controls here – the FCC controls broadcast media pretty tightly and has restriction on what can be broadcast and when (in most cases I think these restrictions go too far).

I think the agreed proposal perhaps overreaches, I read that there is language that could try to ensnare foreign media and bloggers when they have no authority to regulate them outside of the UK.

While we have our fair share of muckraking reporters – they don’t generally work for the major newspapers (we don’t have an equivalent for the Daily Mail, for example). They work for the ‘tabloids’ and don’t pretend to be a real news source. They do stretch journalistic ethics and our libel laws are very weak here compared to the UK (which is why you have the libel tourism). But I don’t think you would generally find American journalists doing anything so blatantly illegal as phone hacking, bribing office and blagging. No serious journalist would do that. And as I’ve read in your papers there – current statute just needs to be enforced against these reporters. It’s a cultural thing in British Newspapers – I’ve always viewed them as rather sinister and opportunistic compared to papers here.

I’m not sure regulation will solve the problem more than enforcing the law would and it may stifle innovation in the media. Even if I ever moved to the UK (doubtful thanks to current Tory policies), I’m reasonably sure I’d never base Anglotopia there but then I probably wouldn’t have anything to fear as I don’t break any laws. The prospect of unlimited liability is what’s terrifying, especially as we’ve just gotten through some legal troubles and they were not cheap to handle. Any more, no matter how spurious or unfounded, would break us.

13 Carl Gardner March 28, 2013 at 12:26

I’m not sure “where a blog is based” is as crucial as you think, Jonathan. I’ve no idea where I’d say this blog “is based”, but I chose to host it with an American host, as it happens, because that host was reputed to work well with Wordpress. Maybe that means it’s on servers in the US (who knows? Maybe they’re somewhere else). But if I libel someone, I don’t think they’ll have any difficulty suing me. We’ve recently Lord McAlpine’s lawyers having some success in pursuing allegedly defamatory tweets, although Twitter’s an American site. So I’m not sure server location is as key a factor as people often assume.

You talk about being answerable to an arm of government – but I think this misunderstands the proposals. What’s proposed is a system of self-regulation. It’s the press who will (if they choose to) create the regulator, which will be completely independent of government and Parliament. It really can’t reasonably be called “an arm of the state”. It won’t be like the FCC, and no one (certainly not Leveson) is proposing that any such body regulate the press.

On legislative overreach, please read my more recent post on “the international aspect”. Again, it’s easy to misunderstand the proposals, mainly because the legislation has, quite wrongly, been attacked as simply imposing burdens on the press. It doesn’t. It imposes some burdens (a risk of exemplary damages in privacy and other publication tort cases rather than only in libel cases, as now, and a costs penalty in those cases – if they don’t subscribe to a regulator when they could reasonably have been expected to) and some protections (costs protection if they do subscribe to a regulator or couldn’t reasonably be expected to do so).

It’s vital that foreign publishers should not be excluded from these protections (and the legislation makes pretty clear foreign publishers have get-outs from the burdens, as it’s not reasonable to expect them to subscribe to regulation). It’s not overreach: it’s being fair to foreigners.

I don’t compare these proposals to the First Amendment. But there is one parallel. If I objected to the First Amendment covering me (which it surely would if I were sued in the US – wouldn’t it?) because I didn’t want to be “regulated by the US federal government” then I guess you’d suspect me of misunderstanding my own interests. In a similar way, excluding foreign publishers from this legislation would merely have the effect of denying them new legal protections that will be available to us Brits. You’re rightly worried about unlimited liability – so it should interest you that these proposals would reduce your liability. Crucially, you won’t be liable for costs if you are sued. You should support these proposals and want to be included in them, Jonathan.

Finally, you talk about enforcing existing law – this argument’s advanced here all the time. But what law do you mean?

If you mean law in the true sense – criminal law, libel etc. – then the problem is that the police have better thing to do than spend more of their time staking out newsrooms. They can’t realistically do this – and if they tried, that really would be the very worst sort of “state regulation”. And libel only works for the rich who can afford to sue newspapers.

On the other hand, if you’re also referring to law in a softer sense – newspapers and the press regulating themselves by adhering to their own ethical codes – then I agree completely. That’s what these proposals are about. They’re an attempt to create a real system of self-regulation based on a ethical code that the press will actually follow, rather than (as for many years here) simply ignoring whenever it suits them.

14 Carl Gardner March 28, 2013 at 12:48

Angela,

Thanks. Yes, something like associate membership or “membership light” of some kind might be right for bloggers.

I’d be quite happy to develop an internal compliance system. What I think would be much more valuable for a blogger, though, would be the chance to have any serious dispute (what we now think of as a libel claim) decided by someone independent of me, in a way that put me at no financial risk.

If I could control my own costs completely (by representing myself) knew I wouldn’t have to pay any costs to the other side (unless I behaved unreasonably in the arbitration, perhaps – this is a rule familiar in small claims and unfair dismissal claims) and knew the remedies against me if I lost would be things like a right of reply, a correction and an apology – and not damages – then I think my freedom of expression would be hugely enhanced compared to the current position.

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