Media Reform has been meeting with bloggers and legal advisors to determine where they stand in relation to the new regulatory proposals. One thing is clear: virtually everything written about this so far in the mainstream press has been wrong (more on that later).
Right now, two things have happened. Firstly, the Royal Charter has passed into law. The Charter does not regulate the press. It simply lays out the criteria for a new self-regulator to follow and provides for the recognition of this regulator by the an independent panel. It demands that any new regulator have a code of conduct and defines ways it must be able to discipline its members.
Then there’s the Crime and Courts Bill, which supplements the Charter by affecting how courts handle regulated publishers, and which is still going through Parliament. It is here that both the carrots and the sticks of the system will be worked out and it is this relationship that we need to understand – because, as most of the press have failed to mention, the Bill both protects and disciplines publishers.
Small publishers could benefit enormously from the protections offered by regulation in ways that haven’t been covered by the national press. The advantages for bloggers under the Charter, in concert with a properly formulated CoCB, would be of far greater significance than any sanctions a regulator could impose.
But there are also real problems: as we explained on Tuesday
, the Bill’s definition of “relevant publishers” is too wide, and potentially includes group bloggers or small online news sources for punishment in court. Moreover, there are other more complex issues which the press has failed to report.
Full details on this are forthcoming, and all of this is subject to change, but right now, here’s where things stand:
- 1) the “relevant publisher” test must be tightened up. This week, the House of Lords signaled its good intentions by adding a vague place-holding amendment about excluding “small-scale bloggers”. That placeholder needs to turn into something concrete. We’ve suggested a turnover threshold – either corresponding with the current VAT registration threshold or following some other legal definition of a small business.
- 2) Under the current drafting as we understand it, any organisation which is excluded by the “relevant publisher” test will also be excluded from legal cost protection. Half the point of the CoCB is to make news publishers who join the regulator immune to legal costs. But poor drafting has resulted in a bill which actually neuters any advantage for irrelevant publishers.
- 3) As currently drafted, the CoCB allows individual writers to be sued as well as the publications they write for – without having the protection of the regulator. This could potentially allow individuals to get around the cost protections enshrined in the CoCB and extract money from individuals even if their publishers are part of a regulator. The legal writer Carl Gardner has a rundown here.
The second and third issues are most urgent, because they have received far less attention than the first, on which all parties are broadly united.
The second matters because, if anyone at all can receive cost protection via a regulator, then there is potential for bloggers and the small press to have unprecetended
protection from libel and other civil suits. Denying them that protection would be completely pointless. It wouldn’t harm the larger press, wouldn’t harm the government, and would miss an opportunity to protect freedom of speech in a new and serious way.
The third matters because it is simply a gaping and dangerous hole in legislation which has been designed to offer journalists protection if they work within the system of regulation.
The exact shape of the regulator under the Royal Charter won’t be determined for months. Right now, the CoCB is absolutely the most pressing issue for anyone who cares about press freedom and media reform. We have to make sure that the bill not only protects small publishers from the penalties it imposes on Fleet Street, but also that it sets up the legal grounds for future protection.
Over the bank holiday weekend, we’re going to be assembling a briefing document which clearly lays out all the legal concerns of the new regime for bloggers. In the meantime, Carl Gardner has picked out some of the problems with the CoCB amendments
in great detail. Watch this space.