An exchange in last night’s Lords debate on the new press regulation clauses in the Crime and Courts Bill revealed a little-noticed – and no doubt to some, astonishing – aspect of the proposed system: it covers foreign publishers.

Lord Lucas raised the issue (column 854):

I am sure that this is my misreading, but it seems to me that there is nothing in the wording that exempts the New York Times, or Le Monde, from having to register. We are going back to our imperial habits and stretching our net across the world. They are certainly publishers of news on a large scale about the United Kingdom, but they are surely not intended to be caught and have to register just because they choose to report what is going on in these islands, on page 59. If that is the intention, I feel that it is the wrong one.

Here’s the reply given by the minister, Lord McNally (column 871):

The noble Lord, Lord Lucas, asked whether we were trying to regulate the New York Times or Le Monde. No, but equally nothing would prevent them from joining if they saw an advantage in doing so. Of course, international publishers can still be susceptible to defamation torts in the UK; they are not exempt.

This I suspect will surprise many – including those who assume (as I think many may) that the fact that the provisions themselves only apply within this jurisdiction means that they have no potential application to anyone based outside the UK.

While the territorial “extent” of legislation is simple to identify – there’s always a section towards the end of any Act of Parliament making this clear – all this really means is that the provisions form part of the law of England and Wales, or or the UK (as the case may be). The question of how that English or UK law applies personally to those outside the jurisdiction is a slightly different interpretative question, and one which may need thinking about.

Clearly Lord McNally must be right that no one expects the New York Times to sign up to a British, or English and Welsh, press self-regulator. I doubt it’d be keen to although I think it’s also important to say that, if the New York Times‘ standards were actually applied by the British press or a self-regulator, that would solve Britain’s press problem. The mistake Lord Lucas made in debate was his assumption that being covered by the legislation means having to sign up for anything. It doesn’t. Subscription to any press self-regulator will always be voluntary under this scheme.

But I also think he and Lord McNally are right that nothing in the legislation exempts foreign publishers from the definition of a “relevant publisher”. Before concluding that this is excessive, or an “imperial” (as Lord Lucas put it) limitation on foreigner’s free speech, we need to think what the consequences are of including foreign publishers, and what the consequences would be if we excluded them.

Foreign publishers can be sued for libel in the courts of England and Wales now. The Defamation Bill, also nearing the end of its Parliamentary passage, will cut down the risk quite a bit, because of clause 11(2), which provides that our courts have no jurisdiction to hear libel cases against those based outside Europe

unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

In relation to libel claims against (basically) EEA and Swiss defendants, the effect of the Defamation Bill will be to have the English courts deal with them according to the normal Brussels Regulation or Lugano Convention rules on jurisdiction in civil matters.

But even after the Defamation Bill comes into force, it will still be possible to sue a foreign publisher here, in an appropriate case. One question for foreign publishers, then, is this: if they happen to be sued in an English court one day, would they like to be able to force the claimant to go to free English arbitration instead? If so, then membership of a UK-based press self-regulator may actually have a value for them. At least they’d have the choice.

But more importantly, even if they chose not to access a self-regulator’s abrital service, the legislation would protect them. Under what I think must now be clause 31(3) of the Crime and Courts Bill, when deciding whether to award exemplary damages

The court must take account of the following—

(a) whether membership of an approved regulator was available to the defendant at the material time;
(b) if such membership was available, the reasons for the defendant not being a member;

Obviously a foreign publisher would have good reason not to have joined. Equally, the provision dealing with costs protection says that

(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 not 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.

So a foreign publisher, because it would not reasonably have been expected to subscribe to a UK press self-regulator, would enjoy the same protection as if it were a subscriber.

Seen like this, it becomes clear that including foreign publishers within the ambit of the legislation is actually fairer to them than exclusion.

If on the other hand publishers based outside the UK were excluded from the legislation giving costs protection to subscribers or “reasonable non-subscribers”, then they’d get no advantage. If sued in English courts, they’d just have to settle or fight, with no more protection than they have now. And as things stand, the courts already have power to award exemplary damages against them in appropriate cases, and (much more importantly) costs.

I wonder whether putting EU publishers at that sort of disadvantage might even breach EU law on the free movement of goods, or freedom to provide services. It would I think be a discriminatory measure, and no grounds of justification would be available under articles 36 or 52 of the Treaty on the Functioning of the European Union. This may partly explain why European publishers at least have been included.

The inclusion of foreign publishers is another example (like including blogs) of something about this legislation that, at first blush, seems obviously wrong; yet which, when you take time to think it through, is actually quite right.