I was one of those invited to the Department for Culture, Media and Sport (DCMS) this week for what was termed a ‘Small scale blogger stakeholder discussion’.
A quick reprise of why:
- As I posted here three weeks ago, concerns about the legislation are widespread and include both those who are pro-Leveson and anti-Leveson.
- Civil servants at the DCMS are now scrambling within a very short timescale to try and make sense of the cross-party legislation passed by the Commons to implement the Leveson Report through a Royal Charter.
- In particular, they are having to try and work out which websites qualify as ‘relevant publishers’ and will therefore be expected to join the new state-backed media regulator.
- As ever with any legislation which is intended to include only specific groups the question is how and where the line is drawn.
- For example, highly influental and well-read lone bloggers like David Allen Green and Iain Dale wouldn’t be included; but, potentially, small, local multi-author blogs (such as Lib Dem Focus team co-authored blogs) might be included.
- The truth is no-one knows, including the DCMS.
What I said at the DCMS meeting
Regular readers will know my own view: the post-Leveson legislation is wrong in principle and in practice. However, I didn’t go along to put my personal point of view but to find out more about how the legislation might (or might not) impact LibDemVoice. The meeting was held under ‘Chatham House’ rules so I can’t tell you who was there or what they said. But I can tell you the points I made:
There is an issue of principle and LibDemVoice’s editorial collective would have to make a judgment at some point whether we wanted to join the proposed regulator, or whether we joined publications such as the New Statesman, Spectator and Economist in rejecting it;
Beyond the issue of principle are the pragmatic considerations for us at LibDemVoice. First, and most obvious: if the regulator is not free to join (someone’s going to have to meet its considerable running costs and it won’t be the government) could we even afford to join it? If free or nominal cost, then yes. If on the basis of %-age of turnover, probably. If on a fixed-sum basis (eg, £5,000), then unlikely.
Set against that are what dangers would face LibDemVoice if we didn’t join the regulator. In the event we got sued, would we be subject to ‘exemplary damages’ if we lost the case? And would we have to meet the full costs of both sides even if we won?
These questions are of course hypothetical. We’ve never yet been sued (though we have been threatened with litigation on a handful of occasions); and ‘exemplary damages’ would turn on whether we’d acted reasonably. However, they’re not questions that can be treated lightly either: I enjoy being involved with LibDemVoice but I’m not about to risk my livelihood for it. Much of this legislation will end up being tested by case law. None of us wants to be that test case.
Who’s included?
A lot of the discussion which followed turned on the pretty basic question: does this apply to my site? Lord McNally has set out four ‘interlocking tests’ of which sites would be included:
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.
All of us met the first three tests. But the DCMS weren’t able to tell us what the fourth test — ‘in the course of a business’ — actually means.
Various clever proposals have been put forward for trying to draw the line between ‘small-scale bloggers’ and the newspaper publishers which were the focus of the Leveson inquiry. For example, that regulation should include only those organisations of a certain size, whether defined by turnover or staff or circulation (an arbitrary line would have to be drawn somewhere).
I’m not sure how that will work in practice. Whenever you define something strictly you invite ‘gaming’ of the system. And the DCMS made the quite powerful point that they had no wish to ‘punish growth’ by setting a cliff edge of regulatory cost the moment a publisher grows to a certain size.
What next?
Ultimately, and regardless of my personal opposition to the legislation, I think it can only work if we’re all in, ‘small-scale bloggers’ and large-scale news corporations alike. The DCMS may well find a way of squaring the circle, distinguishing between us in a logical way: good luck to them. But I think the online world is far too fluid for any meaningful distinction to be drawn. It’s just an inevitable consequence of starting to regulate free speech: many are fine with it until they realise it applies to them.
The consultation closes within the next couple of weeks before recommendations are made about which types of wesbite are included as ‘relevant publishers’.
PS: Lib Dem blogger Jennie Rigg has written about this here and has links to others who’ve been part of the DCMS consultation.
* 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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19 Comments
Next question: what will be the cost for small web-based publishers of signing up to the regulator? I can see the big publishers, having been forced into it, using it to squeeze out irritating small competitors by setting ridiculous joining rates. Regulation inevitably leads to barriers to entry. There’s a host of other issues – such as who is responsible for content on websites which use the range of news feeds that are available.
Why on earth was this “stakeholder discussion” kept secret? What advantage is supposed to accrue from such secrecy, other than avoidance of embarrassment to the DCMS? Isn’t this precisely the sort of situation where greater openness is desirable?
I get the impression that many bloggers are pushing the rules to be as silly as possible in order to try to lead the system to failure.
“whether we wanted to join the proposed regulator”
-could be regulators plural and, indeed, they are “self-regulators”. So there could be a specific self-regulatory body formed by blogs.
Re: 5 – Iain Dale does actually employ someone to help him with his blogging called Grant Tucker. So he is potentially included.
Defining “in the course of a business” is not beyond the wit of the average idiot. The Media Reform Coalition have proposed several very reasonable alternative definitions:
1. Non-profit organisations should be excluded
or 2. ‘Small companies’, as defined by the Companies Act, should be excluded from exemplary damages and costs penalties. A small company meets at least two of the following three criteria: turnover of less than £6.5 million; fewer than 50 employees; less than £3.1 million in assets.
or 3. Any organisation with a turnover beneath the VAT registration threshold should be excluded from exemplary damages and costs penalties (currently £77,000 a year, linked to inflation).
or 4. Any organisation with a turnover beneath a multiple of the VAT registration threshold should be excluded from exemplary damages and costs penalties – for example 3x or 5x £77,000 a year.
or 5, Companies beneath a certain turnover threshold (unrelated to the VAT registration, so not rising with inflation) should be exempted from exemplary damages and cost penalties. (Figures which have been suggested range from £250,000 to £750,000 a year.)
At the end of the day, if you just stick LibDemVoice on blogger.com or wordpress.com you’d be completely and indisputably out of the ambit of the legislation, because there wouldn’t be a penny involved in your operation. So this isn’t a matter of free speech, it’s matter of whether you have free speech on free websites or paid host ones.
@ Paul – “there could be a specific self-regulatory body formed by blogs” How does this relate to paying the costs of the low-cost arbitration service?
“Defining “in the course of a business” is not beyond the wit of the average idiot.” – I’d agree with you. It’s why I (and others) asked what the definition is. The answer I was given is that it’s a common legal term that seems not to be defined – though we were promised at the meeting the Companies Act definition.
There are problems with the Media Reform Coalition’s suggestions, as I mentioned in my post, notably ‘gaming’ the definition (eg, large corporations setting up small-scale operations) or punishing the growth of small businesses.
Your point about blogger.com and wordpress.com is a red herring, by the way. The legislation specifically includes not-for-profit operations as well as for-profit ones so hosting costs are irrelevant to the question of who’s covered. And not spending a penny would in any case prevent us from (eg) putting on conference events etc.
We are arguing about exactly how the state is going to regulate the content of blogs ??????
@ Simon McGrath
Sadly yes.
Or more precisely those who don’t base themselves on the other side of the atlantic. What a great solution make it unattractive to base your operations out of the UK but you can trade back in from other countries.
Thanks for your reply, Stephen.
Surely if you are on blogger.com wihout advertising then no one could possibly say you are doing the blog as part of a business, surely? And in that scenario you could still put on conference events by passing the plate around. I am not saying such a scenario is desirable. I am just saying that we should keep this in perspective.
“@ Paul – “there could be a specific self-regulatory body formed by blogs” How does this relate to paying the costs of the low-cost arbitration service?”
I am not sure I understand the question, but they may possibly be one and the same.
“Simon: “We are arguing about exactly how the state is going to regulate the content of blogs ??????””
No. We are debating whether or not certain multi-contributor blogs fall into the ambit of exemplary damages/costs awarded when they break existing laws if they don’t join a self-regulation body verified by a recognition body set up by Royal Charter. I know its a long,convoluted sentence and its not sexy, so sorry about that.
Stephen in the discussions, were people clear about the difference between running a blog like this in terms of publishing the initial posts and in terms of managing the comments? I think it would be very useful to have codes of good practice for both, with some statutory underpinning for gross misrepresentation and failure.
I’d be interested in having some input into defining the latter – the codes of practice which focus on how comments are moderated. I’m an FRSA digital champion who focuses on this area. But I’m not in the loop. We’re linked on linkedin.com so if an opportunity arises where my input might be useful please do let me know. Right – back off to the doorsteps of Cockermouth South in heavy rain….
Sorry, above should say “enforced” rather than “awarded”.
@ Paul – “if you are on blogger.com wihout advertising then no one could possibly say you are doing the blog as part of a business, surely?” – as I understand it, the ‘in the course of a business’ definition isn’t this simple. And with good reason, you might say: after all, if it’s as easy to get around the new law as you say, it won’t be very effective.
The point on costs is crucial (viewing this issue only practically) – those who join the self-regulatory club overseen by the Royal Charter will be responsible for paying for the new low-cost arbitration service. Despite the name, this won’t be cheap to run! Those who join the self-regulator will be responsible for bearing the costs. Could LibDemVoice even afford to join? No idea.
Stephen,
Happy Sunday to you!
So a “business” is an operation where not a single penny changes hands? Well, blow me down. All that money wasted on an expensive education for me was totally wasted.
Cost. So, what if you use ACAS or Relate or some other existing arbitration/conciliation service on a contracted pay-by-use basis? The chances of LibDemVoice ever having to use such a service are so minuscule that it is hardly worth wasting breath on. You give people who have been named the opportunity to answer back, either through comments or through a separate responding article. And you have a sophisticated comments moderation system which makes it nigh-on impossible for an illegal comment to get through, and even if it does, it is normally swiftly spotted and deleted.
The Leverson proposals were designed to address the problems arising from the hacking scandal and a scandal of private email contents being sold by the police and other organs of the state, to journalists. There was (is) also a more general problem of instrusiveness of the red tops. Am I going nuts …. ?? The remedies should include punishment for those in government institutions who passed on the methods of hacking to media folk,, and the police should be arrested for selling the contents of emails. On the latter the arrest of the police (and others) must come first because without the police willing to sell there is no problem. thus the process must have been at the initiative of the police. No offer tto sell no sale. So instead of European style privacy protection and punishment for those in state institutions we have state regulation of blogs ? … and under the oversight of the secretive Privy Council on behalf of the Head of State (ie away from the clutches of Parliament). It smacks of the hacking scandal being used for another agenda seemingly against the public interest. Indeed the sale by state employees of email contents is a consequence of the ‘surveillance state’ – state intrusiveness rather than media instrusiveness. And the proposed remedy ? More state intrusiveness. Yes I am going nuts ha ha
It’s big-time mission creep – and it’s what always happens when new regulators are introduced. Nobody has picked up my original point. If the only exemption is for zero cost sites you are in effect turning any web site which has some kind of news turnover into a newspaper and bringing it within the scope of the regulation. Regardless of defamation, a key ethic of the existing press complaints commission and of newspapers is that there should be an opportunity for response ie some kind of balance to coverage.Once you broaden the definition of newspapers it creates a nonsense whereby every commercial or voluntary or lobby organisation that uses its website to make statements is expected to allow responses. Political blogs should be so far off the end of the spectrum that they should not even need to be involved in talks.
“…creates a nonsense whereby every commercial or voluntary or lobby organisation that uses its website to make statements is expected to allow responses.”
In fact, perhaps someone should come up with some software which allows people to make responses below posts…
@Paul – LOL, quite. If only there was some way of responding to a blog post. Oh, wait!
This whole thing makes me laugh. It’s a typical passive-aggressive human behaviour that when smart people lose an argument they immediately become hopeless and unable to deal with any consequences. You see it all the time – like in the office when smart engineers don’t get the type of coffee maker they wanted, then suddenly they are completely unable to use the new one when it arrives…despite having previously designed a car engine or something.
What you are seeing across the internet now is previously smart bloggers throwing their hands up in the air and exclaiming “Oh the humanity! How will we cope with this barbaric new system?” They lost an argument and now they don’t want to “cope” – they want to be difficult and to find every tiny little possible lump in the new pavement so they can trip over on it spectacularly, and then show every how hurt they are after the pavement got changed. Well, YAWN. It’s not impressive when 6-year old kids do it and it certainly aint impressive when smart people do it.
@ Paul Walter
“In fact, perhaps someone should come up with some software which allows people to make responses below posts…”
Not the point though is it. You don’t sound clever by deliberately misunderstanding.
@ MBoy
“What you are seeing across the internet now is previously smart bloggers throwing their hands up in the air and exclaiming “Oh the humanity! How will we cope with this barbaric new system?” They lost an argument and now they don’t want to “cope” – they want to be difficult and to find every tiny little possible lump in the new pavement so they can trip over on it spectacularly”
Let’s just clarify “They lost an argument” so that is bloggers who don’t believe in regulation have lost the argument?
Which argument would that be?
One that was resolved when the political parties came forward with a piece of legislation drafted by a bunch of people who want to restrict a free press funded by a Russian Oligarch?
Not what I would call a victory.
If you don’t understand why this current proposal is wrong think of it from the victim’s point of view.
If a blog accuses me of something of which I am innocent but will make me hated by my neighbours and potentially in fear for my safety / put dog excrement through my door (being a murderer / paedophile / leader of the LibDems) and it is read by hundreds of thousands of people. If it is a blog which meets some “business” threshold I have one avenue I must use (regulation based arbitration) if it is on a free blogging site I have to use the courts.
contd…
So the harm done to me does not affect my course of action (or potential remedy) but the structure / IT mechanism of the blog. That is not a liberal approach.
If we want to have a right to privacy lets have one.
We have no need to have a regulator to deal with Crimes (any liberal should know a crime doesn’t need to be illegal twice, just prosecuted once).
If some people don’t like that some other people (yes newspaper editors and journalist are people too [just]) express views they don’t like, perhaps they should go and live in a cave or grow a skin.