After Leveson: which blogs are to be regulated? Answer: no-one yet knows.

by Stephen Tall on April 13, 2013

Leveson report front pageI 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:

  1. As I posted here three weeks ago, concerns about the legislation are widespread and include both those who are pro-Leveson and anti-Leveson.
  2. Civil servants at the DCMS are now scrambling within a very short timescale to try and make sense of the cross-party legislation hastily passed by the Commons to implement the Leveson Report through a Royal Charter.
  3. 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.
  4. As ever with any legislation which is intended to include only specific groups the question is how and where the line is drawn.
  5. 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.
  6. 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 wrong 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 at the meeting 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 divined. 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 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.