Government pauses on web regulation to ponder question, “What is a small-scale blog?”

by Stephen Tall on March 26, 2013

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.

lord mcnallyIn 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 Tall is Co-Editor of Liberal Democrat Voice, a Research Associate for the liberal think-tank CentreForum, and also writes at his own site, The Collected Stephen Tall.