A follow-up to my weekend post, Bloggers unite to oppose “botched late-night drafting” that proposes new press/web regulation, highlighting the concerns of many — including the Hacked Off campaign group — that politicians’ hasty law-making had resulted in legislative over-reach.
In the House of Lords last night, the Government accepted an amendment that will exclude from the Royal Charter-backed independent self-regulation plans ‘A person who publishes a small-scale blog’.
How ‘a small-scale blog’ is defined will be consulted on by the culture, media and sport department. Patrick Wintour in The Guardian reports this as “a miniconsultation with the newspaper industry on how best to construct a workable definition of the bloggers”, which would be an, erm, interesting way of going about it.
Here’s what Lib Dem justice minister Lord (Tom) McNally told peers:
In the past week, I have seen some concerns voiced regarding the extent to which bloggers or tweeters may be caught by this definition [of ‘relevant publisher’ – ie, those within the ambit of the regulator]. I will return to this point in a moment. Lord Justice Leveson distinguished between the often grass-roots, small-scale activity of individual bloggers’ sites and social networking, and those activities that have developed over time into more sophisticated, multi-authored and edited news-related businesses. He referred to:
“a number of news blogs-the Huffington Post is an early, high profile example of one, which has developed over the years into something much more like an online newspaper-which specifically aim to bring a range of news stories and views on those stories to their readers”.
This is an important distinction. Leveson is describing a press-like operation online. In order to future-proof our regulatory approach, we need to keep up with changes in technology. Any regulatory system that seeks to cover news publishers cannot ignore the fact that the print forms of press are facing real economic challenges, both structural and cyclical, and that distribution methods are moving increasingly online. Reforms to press regulatory systems must take account of the increasing online presence of the national news publishers, as well as press-like news publishers who operate solely online.
In future, the digital world is likely to be the principal method of distribution for much of our news, and our regulatory system must reflect this. It is important because the public have different expectations about different kinds of media, and in taking a regulatory approach we should take seriously those public expectations. Clearly, the online version of the national press, its regional counterpart or an online yet press-like news site, carry very different public expectations when compared with a small-scale blog-or, for that matter, a tweet. Our definition of “relevant publisher” seeks to make this differentiation. It does so by employing an interlocking series of tests, all of which must be met before the threshold of the definition is reached. They are, first, whether the publication publishes news-related material; secondly, whether it is written by different authors; thirdly, whether it is to any extent subject to editorial control; and, fourthly, whether it is published in the course of a business. The definition is therefore intended to protect small-scale bloggers while capturing the more sophisticated, press-like online material that Leveson described.
Equally, the definition of “relevant publisher” is not intended to capture the news aggregation services of operations such as Yahoo! or MSN. Nor is it intended to capture social networking sites where individuals post user-generated material. Nor is it aimed at sites that simply moderate the comments of others, or aggregate a series of blogs without any active consideration of the content, such as the blog-hosting services WordPress and Tumblr. I also clarify that, contrary to some recent reporting, the definition is equally not aimed at covering individual journalists. The definition of “relevant publisher” is aimed at organisations that employ or otherwise commission journalistic content, and, even then, only to the extent that these organisations operate in line with the four interlocking tests that I outlined.
I recognise that people have been seeking clarification on how the legislation could apply to small-scale bloggers, and how the interlocking tests work. This is reflected in some of the amendments before us, and includes the suggestion that there may be a case for making an express exemption in respect of small-scale blogs in the new schedule inserted by Commons Amendment 131.
To allow a period of reflection in advance of the next round of ping-pong in another place after the Easter Recess, the Government have tabled manuscript Amendment 131BA in recognition of the concerns over Amendment 131. As part of this, my right honourable friend the Secretary of State for Culture, Media and Sport has agreed that her officials will collate and engage with any issues that are raised before submitting a view on how the test will operate and whether there is a need for a further amendment. I hope it is clear to noble Lords that when this is next considered by the other place, the Government may come forward with an alternative amendment, or invite the other place not to agree this amendment. However, for now, I invite the House to make this change.
It’s not clear from Tom McNally’s statement if he thinks that sites like LibDemVoice should be brought within the regulator’s reach.
On the one hand, we are very clearly not an “online version of the national press”. However, we do (probably) meet all four of the “interlocking tests” he specifies — as will other multi-author blogs which publish news-related posts and carry advertising to pay for running costs.
It’s this grey area in the middle which the government doesn’t yet have an answer to whether we should be included in or included out.
* Stephen was Editor (and Co-Editor) of Liberal Democrat Voice from 2007 to 2015, and writes at The Collected Stephen Tall.
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11 Comments
He also apparently referred to ‘tumblr’ as ‘tumbir’. I would tweet him a correction but I suspect he’s not on Twitter.
The fact that this question is even being asked highlights a fundamental issue in internet-age lawmaking: very few in positions of power understand the nuances and practicalities of online activity and content management and this is leading to a lot of ridiculously ham-fisted decisions. One cannot simply draw direct analogies between print media and online media; people tend to consume a mix of online content by different writers/publishers instead of focusing on that from a single source and a blog with a tiny readership may go viral overnight due to a single article.
We should be looking at strengthening, enhancing and, most importantly, enforcing existing general laws rather than developing new internet-specific regulations or guidelines. Not only are these new policies often laughably irrelevant but the whole process takes so long to carry out, technology has generally moved on by the time it arrives.
Obviously the situation is still a mess, but what I don’t quite understand is why bloggers who support the government proposals for regulating the traditional press are so outraged by the idea that they may be regulated as well. Isn’t that a bit inconsistent?
@ Chris – not for me, really, to speak for pro-state-backed-regulation bloggers (given I’m anti-), but… I think there’s a different expectation of a press title with in-house lawyers compared to blogs which have a very small staff or are volunteer-run. On a practical level, at LibDemVoice we’ve no idea if we’d be able to afford to join the self-regulator – that won’t be such a consideration for national titles.
Stephen
Yes, obviously I realise you are against the proposals.
It would be interesting to hear from those who are pro regulation of newspapers but anti regulation of bloggers whether it is just a question of cost, or whether they would still object even if bloggers were offered free subscription to the regulator.
“It’s not clear from Tom McNally’s statement if he thinks that sites like LibDemVoice should be brought within the regulator’s reach.”
But there is no regulator and no reach.
If you don’t want to be a member of a self-regulation body, you don’t have to be. As long as you don’t break the law then you will be OK. If you egregiously break the law in a massively taking the Michael way, then you may have to pay out a lot of wonga. Is Lib Dem Voice planning to egregiously break the law in a massively taking the Michael way?
“If you don’t want to be a member of a self-regulation body, you don’t have to be. As long as you don’t break the law then you will be OK.”
But unfortunately that’s not true, is it? If you are a “relevant publisher” (statute version) and don’t subscribe to a regulator, then if anyone sues you the presumption is that you will have to pay their costs, whether you are found to have done anything wrong or not. How many law suits like that would it take to drive LDV out of business?
Now we’re getting into useful details – this is the sort of thing the Lords should be looking closely at. It sounds fixable to me.
It seems obvious that there should be laws regulating what is acceptable behaviour for a site like LDV, and there should be a low-cost arbitration process for dealing with violations of those laws. Those things are good for everybody, big or small. Paying costs, however, is something you’d only want to do to a large commercial enterprise.
Further thought. The fourth criteria – ‘published in the course of a business’. I suspect that the word wallahs in parliament/the givernment should be able to justfy their salaries by coming up with a decent definition of ‘business’ which precludes non-profit making concerns such as LDV. If you look up ‘Business’ at dictionary.com for starters (see below) you will see that the word is intricately associated with ‘commerce’, ‘commercial’, ‘trade’ and ‘profit’. Taking those definitions in the round, and without resorting to dusting off the Concise Oxford Dictionary, I would say that a business involves pecuniary gain, and LDV doesn’t. You don’t have shareholders or owners who are paid dividends. I would have thout the government wordsmiths would therefore easily exclude non-profit making organisations, which LDV is – if they want to. And reading Lord Tumbir Tom’s speech it seems LDV comes just below the bar. I am presuming Huffpo and Guido make some sort of pecuniary gain for their owners, in which case I presume they come above the bar.
In one sense it is crazy that we are having this conversation. In another sense, I applaud Lord Tumbir Tom’s vision in incuding the internet in the ambit of this activity and it is good that the government is investing some time in finding a sound definition of where to draw the line.
http://dictionary.reference.com/browse/Business?s=t
http://dictionary.reference.com/browse/commercial?s=t
http://dictionary.reference.com/browse/Commerce?s=t
http://dictionary.reference.com/browse/Profit?s=t
http://dictionary.reference.com/browse/Trade?s=t
“It seems obvious that there should be laws regulating what is acceptable behaviour for a site like LDV, and there should be a low-cost arbitration process for dealing with violations of those laws.”
But regulation by law, with a low-cost arbitration system, is very different from regulation by a non-judicial body set up by the publishing industry which makes up its own code of conduct and doesn’t follow judicial procedures. I’m sure people like Ian Hislop would be very happy if it were a matter of applying statute law through a low-cost judicial route, but it’s not.
“The fourth criteria – ‘published in the course of a business’. I suspect that the word wallahs in parliament/the givernment should be able to justfy their salaries by coming up with a decent definition of ‘business’ which precludes non-profit making concerns such as LDV. “
But parliament in its wisdom (or haste) has specified “in the course of a business (whether or not carried on with a view to profit)”, so it was decided those concerns shouldn’t be excluded. And I still don’t see why in principle non-profit publications should be excluded, if the purpose is to protect the public from breaches of privacy and so on. Some online publications are probably a lot more widely read and capable of doing a lot more damage than (say) a local newspaper.