Monday, 18 March 2013

Leveson's Royal Charter - Not a blog regulator

There is a lot of fuss being made today about how new plans on press regulation via a Royal Charter/Legislation (it's all the same, at the end of the day) will result in regulation being required for humble bloggers (like!). The idea being put around is that bloggers will face potential chilling effects by new powers being open to those wishing to abuse the legal system to sue bloggers for what they're publishing.

tl:dr;? The laws collectively being brought forward mean we don't need to worry, relax, sit back...can I help you put that knee back in joint?

Now, let's put aside the rest of the content of the legislation that essentially exists to get people to sign up to regulatory bodies entirely to avoid court cases in the first place, and focus on this issue of the humble blogger. First, some files for your reference.

Here is the draft of the Royal Charter

Here is a draft of a really important sister-legislation, the Crime and Courts Bill Amendments

The confusion here comes, I think, in that the Royal Charter doesn't feel like it is fully formed. It is pretty much the same as the draft that was given by Labour and Lib Dems in response to talks breaking down a couple of days ago. In this sense the definition of a "publisher", and thus someone that should be seeking to be a member of an independent regulatory body, is extremely loose...

b) “relevant publisher” means a person (other than a broadcaster) who publishes in
the United Kingdom:
i. a newspaper or magazine containing news-related material, or
ii. a website containing news-related material (whether or not related to a
newspaper or magazine);

e) “news-related material” means:
i. news or information about current affairs;
ii. opinion about matters relating to the news or current affairs; or
iii. gossip about celebrities, other public figures or other persons in the news.
(emphasis is mine)

It's easy to get panicked here, I am posting new-related material right now, it's news and information on current affairs. By this definition I am now a publisher. Taken further it's easy to interpret that this means your Tweets are, if current affairs or celebrity based, making you a publisher too.

But thankfully nothing else in the Charter really says anything about what you must do. The Charter, you see, isn't really about publishers, it's about regulators.

The whole point of the Royal Charter is to set up a body that assesses and advises the various independent regulators that the government hopes will be set up. Think the Press Complaints Commission MK2 for the tabloid and broadsheets, but maybe some additional ones for gossip magazines, or for large blogs like Huffington Post.

What matters to us is the content in the Amendments document. Bear with me, and feel free to skip the jargon to get to the interpretation...

(1) In sections [Awards of exemplary damages] to [Awards of costs], “relevant
publisher” means a person who, in the course of a business (whether or not carried
on with a view to profit), publishes news-related material—
(a) which is written by different authors, and
(b) which is to any extent subject to editorial control.
This is subject to subsections (5) and (6).
(2) News-related material is “subject to editorial control” if there is a person (whether
or not the publisher of the material) who has editorial or equivalent responsibility
(a) the content of the material,
(b) how the material is to be presented, and
(c) the decision to publish it.
(3) A person who is the operator of a website is not to be taken as having editorial or
equivalent responsibility for the decision to publish any material on the site, or
for content of the material, if the person did not post the material on the site.
(4) The fact that the operator of the website may moderate statements posted on it by
others does not matter for the purposes of subsection (3).
(5) A person is not a “relevant publisher” if the person is specified by name in
Schedule [Exclusions from definition of “relevant publisher”].
(6) A person is not a “relevant publisher” in so far as the person’s publication of
news-related material is in a capacity or case of a description specified in
Schedule [Exclusions from definition of “relevant publisher”].’.

...Phew... ok, what this says is as follows:

1) When a court is deciding how to award costs (in relation to penalising with heavy costs a publisher who has refused to join a regulator, and thus hasn't allowed a claimant the formal route of complaint they deserve), a publisher is defined (additionally and separately to the Royal Charter we've discussed) as a Business that publishes news and current affairs based material. The Business must publish content that isn't by just one single author, and has someone who is (2) in control of what to publish, when to publish it, and to generally be an "editor".

So far so good, I am not a business, I am one person, and while I edit my blog thisis the only way I fit this criteria. Already I can breathe easy that I am not going to be horribly punished by the legal system.

3) Publishers that aggregate content will also not fall into this legal definition. This is possibly the biggest grey area here. If I own a business that is all about publishing the news, but I let anyone free access to post on my site, do I fit the bill of having editorial control?

In reality this kind of clause looks to mean that forums, chat rooms, and social media sites like Twitter will not fall under any negative legal action purely for hosting what are platforms for publishing content, rather than websites that publish their own content in a specific manner.

4) Forum owners especially, but any owner of this business site that lets people publish content in general, will not be penalised simply because they take control of "moderation". This is actually huge news for the blogging community, which has long had legal issues with the idea that if you moderate comments on your website you take responsibility for the comments on your website. This is a huge step in rectifying that balance between encouraging participation and keeping yourself legally covered.

5) and 6) go on to mark out some specific situations whereby even if you hit all the markers in 1 and 2, you will still be exempt from huge legal costs because you are (and this is very rough, so don't take it too literally) a TV broadcaster such as the BBC that is running a website or publication, if you are running a site on a specific non-news/current affairs topic and only therefore post news relevant to your site's niche, if you are science journal, if you're running a business site whose news is solely about your business and it's interests, book publisher and public bodies.

So there you have it! We're moving forward with what is quite exciting legislation to require that big, for-profit organisations have to adhere to some minimum standards of accountability and ethics. At the same time, miraculously, we've also increased protection for bloggers and similar by removing some of the grey area that existed previously about their legal definition in the inter-world. But at the same time we do have an issue with a vague Royal Charter that encompasses almost anyone with an opinion and a means of putting it out there.

How people take this really is a pessimist vs optimist call, IMO. Nothing is forcing independent bloggers to get on board with a regulator, if they don't they'll be legally exempt from these "punishing costs". But at the same time the opportunity is here to think ahead, about our own standards, and to be proactive in a way that the dead tree press hasn't been and (if this week's evidence is anything to go by) never will be outside of legal coercion.


There is another interesting situation which I guess comes down to how these amendments are to be heard. On the one hand we have the Royal Charter, which I think everyone is agreed is very vague and loosely written in too many places. On the other we have an amendment marked "NS4" from Simon Hughes et al. in the amendments document.

Maybe it's just the formatting, but the amendment looks like a neater and tighter version of the Royal Charter. It'd be good if someone can shed light on whether this is an attempt to simply put the Royal Charter in to "real" legislation, or if this is a necessary bit of linking legislation. Given who has put it forward (i.e. not the government!) I would assume the former, and that the impetus will be on the ministers talking up the need for the Royal Charter and not this legislation.

This would be a shame, since the amendment by Hughes, Caroline Lucas, Ben Bradshaw, etc. is much *better*. It makes clear, through the amendments I have discussed above, that those people that cannot serve on the recognition body (and the body that appoints them) could indeed by little bloggers like me...a much more ambiguous assertion taking the Royal Charter at it's black and white words. (note: @loveandgarbage isn't so sure that it is a reference to the other amendment, but to the Royal Charter itself.)

Just some more food for thought...