Clarifying the press regulator’s relationship with the web

To post or not to post?A furore has broken out over whether the Royal Charter on press regulation, and the amendments to the Crime and Courts Bill that accompany it, would mean that bloggers and tweeters would be subject to ‘exemplary damages’ in the event of successful complaints brought against them.

The Guardian’s live blogger Andrew Sparrow initially thought that blogs and Twitter might be subject to regulation by the newly created press regulator – the independent body recommended by Lord Justice Leveson. He was swiftly corrected, and the correction sheds light on the source of confusion – the definition of “relevant publisher” in both the Royal Charter and amendments to the Crime and Courts Bill.

It is clear that in the Royal Charter, “relevant publishers” are only mentioned in relation to membership of, and appointments to, the Recognition Panel – a body that will from time to time check to see the independent press regulator is doing its job properly. “Relevant publishers” are to be excluded from taking part in the Recognition Body, either as staff or as appointees – removing a conflict of interest that has seen press people dominate the now-defunct and ineffective PCC.

We need to clear up the issue of whether bloggers, Twitter (the website itself and those of us who tweet) and other writers should be fearful of regulation and damages. So I asked a senior government official, who explained the intention of the statute to me thus:

The amendments to the Crime and Courts Bill provide for a publication’s membership of a recognised regulator to be taken into account when they are defending themselves against civil litigation for libel, breach of privacy, or other related torts. Exemplary damages are paid on top of normal damages and are extremely rare in civil law. They are generally only awarded when the defendant has behaved in an outrageous manner and motivated by the profits that they earn from the wrongdoing. The behaviour brought to light in the phone hacking scandal, where there was blatant and unjustified disregard for individual rights in order to generate sensational stories to sell newspapers, is the kind of thing which the clause is designed to catch. So it is a far cry from the activities of your typical political blogger.

The official went on to say that membership of a regulator would provide protection from exemplary damages if arbitration had been used – but that such damages are only awarded in cases where outrageous abuses of power had been proven. The award of such damages would only proceed if the publication in question is: “publishing in the course of business; publish[ing] news related material written by a range of authors (more than one);  subject to editorial control.”

They went on to provide an indicative (not exhaustive) list of those who should be covered by the newly-created regulator, and those who aren’t:

IN:

  • National newspapers and their online editions – Guardian, Times, Mail, Sun et al
  • Local and regional newspapers and their online editions – Dorset Echo, Somerset Standard, Yorkshire Post
  • Online only edited ‘press-like’ content providers – e.g. Huffington Post, Holy Moly Gossip and lifestyle magazines – e.g. Heat, Closer, Marie Claire

OUT:

  • Bloggers, tweeters, news aggregators and social networking sites – eg Facebook, Twitter, Stephen Fry, Ricky Gervais
  • Small publishers of special interest, hobby and trade titles – e.g. Waitrose magazine, Decanter, Retail Week
  • Student and not for profit community newspapers – e.g. Varsity, Leeds Student, parish magazines
  • Scientific journals and periodicals – e.g. British Medical Journal, Modern Language Review, BMC Neuroscience
  • Online presence of book publishers – e.g. Collins, Macmillan
  • Broadcasters’ websites – the BBC, Sky News

From the Crime Bill amendments, some of these exemptions are clear – those for broadcasters and scientific publishers, for instance. Because of the grey area between professional journalism and blogging, however, the exemption for independent bloggers and tweeters is less so to me – although media lawyer David Allen Green is confident that they needn’t fear fines.

There clearly needs to be some more clarification of who is and who isn’t to be covered by the new regulator – but the shrill presumption of “regulating the web” is wide of the mark scaremongering. We must remain vigilant of the unintended consequences of press regulation – but in doing so, let’s not forget that while the press must remain free, it cannot be free to abuse its power.

* Prateek Buch is Director of the Social Liberal Forum and serves on the Liberal Democrat Federal Policy Committee

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14 Comments

  • “Intention”, “should”. Any fool knows that once a law has been passed it doesn’t matter what the
    “intention” was on how it “should” be used. Those who can exercise it will use it as they see fit. That said I am broadly in favour of these new regulations.

  • “They went on to provide an indicative (not exhaustive) list of those who should be covered by the newly-created regulator, and those who aren’t”

    Well, according to the royal charter, ““Regulator” means an independent body formed by or on behalf of relevant publishers for the purpose of conducting regulatory activities in relation to their publications”. Obviously that means “relevant publishers” as defined by the charter, not the Crime and Courts Bill.

    Obviously this is what comes of making important decisions at 2 in the morning.

  • Paul Walter Paul Walter 20th Mar '13 - 4:21pm

    Thanks very much indeed for this clarification, Prateek.

    You mention “the newly-created regulator” but, for the avoidance of doubt, no regulator has been created yet. The Royal Charter has simply set out how a recognition body can be established. It is up to the press themselves to decide whether or not they want to set up one or more self-regulation bodies and submit them to the recognition body to be recognised.

  • i’ve seen too many assurences from government regarding how laws should work or intended to work. Once they are out there this is not a matter for government but the police and the courts. There are copious examples of mission creap once laws and regulations are on the books. You only have to look at how ‘anti terror’ laws have been actually used despite ministers reassurences as they were passed

    And lets face it if a overnment has to clarify matters thn the law / regulation is badly drafted.

  • Al McIntosh 20th Mar '13 - 5:29pm

    It would be useful to have clarification on the status of Focus and other local newspaper-like election literature in relation to the new regulator.

  • Tony Dawson 20th Mar '13 - 5:48pm

    Governments are notoriously bad at reading their laws the way they would like them to read!

    ‘Intention of parliament’ is only used at the absolute margin in judicial interpretation. Someone independent and qualified needs to have a serious look at this legislation pdq.

  • “It is clear that in the Royal Charter, “relevant publishers” are only mentioned in relation to membership of, and appointments to, the Recognition Panel”

    This has been said in numerous places. But it doesn’t make it true.

    “Relevant publisher” is also used in defining the “Regulator” (ie the body set up by the recognition panel) in Sch 4(1)(a):
    “‘Regulator’ means an independent body formed by or on behalf of relevant publishers for the purpose of conducting regulatory activities in relation to their publications;”
    It’s not clear on the face of that whether it refers to all relevant publishers or just those who chose to be regulated.

    Carl is right – suddenly as liberals we seem to have suspended our critical faculties as to the fallability of Parliament and decided that because the end objective (meaningful sanctions for wrongful behaviour and abuse of power by the press) is a good one that Parliament must automatically have got things right.

    That end objective has my support – however restrictions on freedom of the press are something that we have to do with great caution and ensuring that an over broad approach isn’t taken. Simply put, legislating in this area is far too important to rush through in one afteroon’s sitting, with three hours debate on proposals which had been drafted in the small hours of the morning.

    This is a really stupid way to be passing massively significant and far reaching legislation.

    Mark – I’ve responded to this same point in the LDV forums with some (lengthy) extracts from the bill to explain my point. However the assurance by a minister is only of limited assistance in resolving ambiguity and wouldn’t necessarily be followed by the courts (the relevant case is Pepper v Hart which allowed comments made in the passing of a bill to be used as a guide to statutory interpretation in limited circumstances). I think Cabinet Office guidance is that ambiguities should be put right by amendment where possible.

    Lord Steyn once said that party political Parliamentary debates late at night were not ideal conditions for the making of authoritative statemetns about the meaning of clauses. I think this was a particularly masterful judicial understatement 🙂

    It seems certain that the intention is not to regulate political literature. However as this legislation stands I’m far from convinced that it doesn’t. I’m hoping that this can be made clear by amendment at the consideration of amendments stage.

  • “There has been a huge amount of deliberate misinterpretation of what the new regulatory system proposes and is about, mostly by those with a vested interest in the status quo, and their supporters. ”

    This is undoubtedly true. However it doesn’t mean that every query or criticism of the bill comes from those groups.

    I’m particuarly worried that those people with a record of good, ethical and effective investigative journalism haven’t been involved in and don’t seem supportive of these proposals. Any restrictions on freedom of the press can be used by those in power to cover up their misdeeds just as much as they can protect the vulnerable. Remember the same newspaper that hacked Milly Dowler’s phone also exposed Jeffrey Archer’s perjury and blew open a cricket spot-fixing ring. The bathwater may be incredibly dirty but there is also a baby in there as well.

  • Al McIntosh 20th Mar '13 - 8:58pm

    @Mark Thanks for the reassuring link. However, like Hywel, I would feel much more comfortable if there was an amendment that put the status of political literature beyond doubt. A great deal of local politics relies on the unsung work of unpaid volunteer-agents who already have enough to worry about without the risk of being clobbered by the new regulator.

  • The issue with the regulator would be the time/hassle/distraction of dealing with complaints the regulator. The original standards board regime was very broadly drawn and attracted a lot of superficial and frivilous complaints which took up a lot of people’s time and energy to deal with.

    I can imagine the BNP would have made a lot of use of it challenging some of the things we said about them a few years back. The idea of regulation is there to deal with a power imbalance in freedom of expression – that doesn’t really exist when it comes to political campaigns (at least not on the level of an individual vs a tabloid newspaper).

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