Publish and be damned? Not bloggers.

Harriette Wilson00

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.”]

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4 thoughts on “Publish and be damned? Not bloggers.

  1. I’m sorry, but despite not being a lawyer, I can’t help but wonder if that’s not just sloppy law drafting. The way I read the difference in definition in the amendment is that Blogger or WordPress.com are not liable for your words, but I don’t see anything that exonerates me if I have guest bloggers on my blog. As the blog owner, I ALWAYS have control over what gets published. So do you.

    I’m nowhere nearly as optimistic as you are about this. At the very least, I can see any number of vexatious litigants using this.

    • Good point. If you have guest bloggers, it would come down to either the question of whether you were running the blog as a business or, if you were, whether you retained editorial control over the guest blogger’s post. I admit that it is unlikely that a blogger would hand over editorial control to a guest, but it might be possible depending upon the platform being used.

      I think we are all agreed that the Royal Charter and the Crime and Courts Bill amendments are a mess.

      • What constitutes running the blog as a business? If it’s “making a profit”, the Guardian is exempt. If it’s “enabling Google adverts”, loads of people are screwed. Guido and his ilk will be particularly vulnerable.

        It’s definitely going to be a bloody mess.

  2. Pingback: Another legislative shambles as Britain steps towards state control of the press – and the web | e-Disclosure Information Project

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