Publish and be damned? Commercial bloggers.

Guido Fawkes (Gunpowder Plot)

In my first post on the draft Royal Charter for Self-Regulation of the Press (the “Royal Charter”) and amendments tabled for consideration in the Crime and Courts Bill (the “Amendments”) published on Monday, 18 March 2013, I stated that as a private blogger, they would not worry or concern me.

What about commercial blogs and bloggers?

The Royal Charter definition of “relevant publisher” makes no distinction between personal or commercial blogs. It catches any blog which publishes news-related material. This includes publishers based outside of the UK, if it is determined that the news-related material on the blog is directed at the UK. For example, Global and General Nominees Ltd, the St Kitts and Nevis publisher of the Guido Fawkes blog, must be considered to be a relevant publisher for the purposes of the Royal Charter.

However, if an offshore relevant publisher chose not to sign up to a recognised/approved regulator, what would be the effect? In other words, what is the risk to Guido Fawkes of joining the Spectator and Private Eye in ignoring the Royal Charter?

The heavy-handed Amendments attempt to penalise relevant publishers for not submitting to the jurisdiction of a recognised/approved regulator by permitting the courts to award exemplary damages against them and make adverse costs orders, in respect of certain claims (defined as “Relevant Claims”: civil claims for libel, slander, breach of confidence, misuse of private information, malicious falsehood and harassment).

Note that the definition of “relevant publisher” in the Amendments is different.

NC29 of the Amendments’ definition for “relevant publisher” catches a person who, in the course of business (whether or not carried on with a view to profit), publishes news-related material. The first obvious question is what, in the context of the Crime and Courts Bill, does “in the course of business” mean? It’s anyone’s guess, but going by the old favourite of the plain, ordinary meaning of the words, I’d suggest that any website or blog that is published by a commercial entity or charity will be caught. This will catch many political current affairs blogs, such as LabourList, PoliticsHome and ConservativeHome. The grey area will be personal blogs that also carry advertising – will these be sufficiently commercial to be “in the course of business”?

Taking the two definitions into account, I’d say the Guido Fawkes blog was a relevant publisher for both the Royal Charter and the Amendments and so was caught by them. So what?

For the threat of exemplary damages and adverse costs orders under the Amendments to have any effect on overseas commercial blogs, in order to persuade them to volunteer to be subject to a recognised press regulator under the Royal Charter, the blogs would have to be convinced that claimants could successfully bring a Relevant Claim against them.  This would require Relevant Claim claimants to get leave to serve a claim outside of the relevant jurisdiction (see Civil Procedure Rules Part 6 and relevant Practice Directions 6B), to get a default judgement, assuming the blog publishers ignore the claimants’ served claims (Part 12 and Practice Direction 12) and obtain orders to enforce any judgments (eg stop orders? Part 73 and Practice Direction 73). All tricky steps – good luck with that for a claimant who is a normal person of usual means.

I suspect that many overseas commercial blogs, Guido Fawkes amongst them, will not be sufficiently worried by the Amendments regime to rush into the arms of a Royal Charter recognised press regulator.

Publish and be damned? Not bloggers.

It is always a joy to see the executive at work. Yesterday saw the publication of a rushed draft Royal Charter for Self-Regulation of the Press (the “Royal Charter”). At the same time, a set of amendments were scrambled together and tabled for consideration in the Crime and Courts Bill (the “Amendments”).

You can tell there was not much careful reflection on the effect of the combined documents simply by seeing the confusion that abounds. This being a lawyer’s blog, I am interested in the misaligned definitions of “relevant publisher”.

It must be uncontroversial to state that the Royal Charter, whether by accident or design, will catch self-hosted blogs that comment on current affairs or politics. Schedule 4(1) includes:

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);

d) a person “publishes in the United Kingdom” if the publication takes place in the United Kingdom or is targeted primarily at an audience in the United Kingdom;

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.

There is some potential confusion in what is meant by a website. This blog is hosted and comes under the domain of WordPress. Is this my website or does it belong to WordPress, for the purposes of the “relevant publisher” definition? The blog is aimed at an audience in the UK; is the website hosting it? If I hosted the blog on my own domain, even using WordPress software, then it is clearer that I would be a “relevant publisher”.

So what? Firstly, the Royal Charter is all about setting up a recognition panel for regulators of relevant publishers. Sure, these regulators must have their own standard codes, and in order to be recognised must have an arbitration process for complainants and relevant publishers, an enforcement mechanism (with fines of up to 1% turnover to a maximum of £1 million for breaches of standard codes) and the ability to direct corrections and apologies. However, nothing in the Royal Charter would require me, as a blogger who is a “relevant publisher”, to subject myself to the jurisdiction of a recognised regulator. I can choose to stay unregulated.

Any reports that as a blogger I could be fined up to £1 million are therefore wide of the mark.

What about the Amendments? These are, in essence, an indirect method of getting relevant publishers to sign up to a recognised regulator – in the terminology of the Amendments, an approved regulator. If relevant publishers fail to sign up, then they risk being subject to an award of exemplary damages in certain defined causes of action (see the definition of “Relevant Claims”: civil claims for libel, slander, breach of confidence, misuse of private information, malicious falsehood and harassment), if the claimant is successful against them. If I were a relevant publisher blogger caught by the Royal Charter, should I be worried?

No.

This is because in the Amendment, “relevant publisher” is given a different definition:

NC29

(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 for—

(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).

News-related material has the same meaning in the Amendments as in the Royal Charter. It is also made clear in the Amendments that a reference to “publication” of material is a reference to publication on a website, in hard copy, or by any other means.

So for the purposes of the Amendments and the threat of exemplary damages, I would not be a relevant publisher, whether this blog was hosted by WordPress or self-hosted. WordPress would also not be a relevant publisher for a WordPress-hosted blog (no editorial control).

So as a blogger, I will not lose any sleep over the Royal Charter or the Amendments as they stand today.

[The image is of Harriette Wilson, courtesan to, amongst others, the Duke of Wellington. On being threatened that she would publish her memoirs, he is reported to have said, “Publish and be damned.”]