‘Small-scale bloggers’ and the DCMS consultation: the sequel

by Stephen Tall on April 18, 2013

I posted at the weekend my thoughts on the current Government consultation about the post-Leveson media regulation proposals — and specifically the legislative cock-up that may catch ‘small-scale bloggers’ in the net.

As I’ve said many times before: I think the legislation is wrong in principle and wrong in practice. But MPs from all three parties cheerily voted through a measure which accidentally sought to regulate the internet with barely a murmur of dissent from the liberal/left blogosphere which seems more concerned with hating on the Daily Mail than sticking up for its own freedoms.

The Department of Culture, Media and Sport (DCMS) consultation exercise has been shrouded in more secrecy than I’m comfortable with. I was invited along as co-editor of LibDemVoice. Many people who would like to be consulted with, and who may be affected by the legislation, have not been invited to give their views. Those of us who were included were not unreasonably chided by Jonathan Calder: ‘Perhaps the silent participants felt flattered to be asked?’ Me, I’d say curious rather than flattered. But the end result is the same, I accept. Accept this post as some measure of reparation.

There’s currently no mechanism on the DCMS website to contribute views (at least that I can see). I have asked how this can happen. To be fair to the DCMS, however, they are having to conduct the consultation within a matter of weeks having been given no warning of Parliament’s intentions to try and regulate the blogosphere. If they’re floundering, and those not consulted feel ignored, blame the MPs who landed us in this mess, not those civil servants now racing against time to try to make sense of their sloppy haste.

Anyway, in the spirit of openness here’s the notes of the meeting that we were emailed this week. Make of them what you will. My take-away is that next time MPs would do better to think through legislation and consult those affected in advance of passing it, rather than end up bounced by lobby groups egging them on to fulfil their own desire to avenge the newspaper industry.

General observations

Stakeholders present at the 3 meetings set out their concerns about the current definition from their perspective. This included the following points made by attendees during the meetings:
· They requested more clarity around ‘incidental news coverage’ and ‘specialist publications’. Much of the internet was made up of multi-functional sites like Mumsnet and they show the breadth of online organisations

· They requested more clarity on the definition of ‘in the course of business’ – who did this exempt? Would simply being a limited company bring them into the definition of ‘relevant publisher’?

· They questioned whether business-like activity caused an organisation to be included? If a campaign group produces and sells a book with the aim of making a profit, would that book cause them and all their other activity to be regarded as a business?

· Clarity was also requested on the meaning of ‘different authors’, in particular how student publications would be excluded.

· The argument was put that if the law was not crystal clear in this area, that lawyers would be able to take advantage of this and write to small organisations who are not legally trained and may not be able to afford legal advice saying they are a relevant publisher and liable. Any complexity or ambiguity, therefore, would be used by lawyers and could lead to organisations taking a cautious approach to publication.

· In discussion of the options under consideration there was a view that any definition could be problematic in some respects. Therefore, it was important to make it as simple and easy to understand as possible.

· There was also a view around the table that it was more desirable to place the bar for inclusion as a relevant publisher too high rather than too low. There was still plenty of legislation – libel, privacy, etc., – which would provide redress against bloggers or publications not counted as a relevant publisher.

· Those in the room also raised an issue about pre-moderation, and questioned whether the definition in the legislation on this point was clear enough? It was pointed out that the legislation already distinguishes sites that exercise editorial control, which are included, and those that moderate, which are not included in the definition. Those at the meetings requested more clarity on blogs who only publish comments once they have been moderated. Does that constitute editorial control?

Suggested improvements
Stakeholders present at the 3 meetings set out views on how the current definition could be improved from their perspective. This included the following points made by attendees during the meetings:

· Some attendees felt it would be helpful if the definition of relevant publisher set out categories of the publication included, rather than presuming that everyone is caught and identifying ways that organisations fall out. It was pointed out, however, that listing publications could bring with it other problems – who decides which publications should be on or out, and should this be something that politicians decide in legislation?

· Others suggested a size threshold for inclusion as a relevant publisher: possibilities included small companies act definition, VAT threshold, no of staff, circulation. However, issues identified with each included:

o The definition of a small company in the Companies Act could set too high a bar for entry, excluding too many organisations that Leveson was designed to capture;

o VAT threshold too low a bar for any blog that isn’t a one-man band;

o Circulation or readership problematic given online organisations can’t control this, e.g., if an article goes viral.

o Using number of full-time equivalent employees as a threshold could be problematic. Blogs and other websites will use several freelancers and assessing how they count toward FTEs would be complex.

· There was discussion about using turnover as a threshold:

o Could a turnover definition only take account of turnover derived from publishing activity? That would ensure that larger organisations that only publish news related material as part of their broader activity would be excluded.

o If a turnover definition is used, what would be the effect of large, one-off donations for campaign or political publishers? For example a political blog/publisher may receive a large donation in the run-up to an election?

· A further idea was put forward that there could be two classes of relevant publisher – small and large. The sticks would not apply to the same extent to the two categories. This could be useful if the bar for inclusion as a relevant publisher was set low.

· Could a change be made around ‘primary purpose’ or ‘not for profit’?

· The issue of incentivising smaller organisations also came up. Currently a publication that is not a relevant publisher would not receive any of the benefits from the incentives if it joined a regulator (i.e., the protection from the costs and exemplary damages clauses that would be available to a relevant publisher that joins the regulator, without the consequences if they choose not to join). This was felt to be a better way to deal with the smaller-scale – to incentivise them to join rather than including them in the definition

· But also important to consider the cultural impact of blogs joining a press self-regulatory system.