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.”]

Bureau of Investigative Journalism v Bell Pottinger: a question of standards?

You may have thought that experienced public relations professionals would realise that there is no such thing as a private or “off the record” briefing, but the report last week from the Bureau of Investigative Journalism (BIJ) into the activities and practices of Bell Pottinger (BP) suggests this is not the case.

The BIJ used what is colloquially called a sting by posing as potential clients from a regime with questionable human rights and anti-corruption credentials, to reveal boasts from BP of what it could do in terms of media management and lobbying on behalf of a less desirable client, if that client showed commitment to a reform agenda. The sting included the use of hidden cameras and recording equipment, in what many consider to be tactics close to being entrapment.

The BIJ published its report, including video clips, on its website. The report was picked up by a number of press and broadcast media channels.

The story therefore provides a neat example of the difference in regulation between bloggers/websites, press media and broadcast media. This could not be more topical, as the Leveson Inquiry considers press regulation.

Blogs and websites

Firstly, blogs, bloggers and their websites have little restrictions on what they do or say. Only privacy and libel laws (together with specific legislation such as provisions concerning incitement to racial or religious hatred in the Public Order Act 1986) limit how and what is reported – it is accepted that current libel law as practiced in England and Wales may have a significant chilling effect on free speech, so that this is no trivial “only”. Assuming that there is no libel involved in the BIJ exposé as it merely faithfully reports BP’s own statements, then the question here is the methods used to get those statements. There are no specific laws against the use of surreptitious recording, if the recording does not involve interception of electronic communications within the scope of the Regulation of Investigatory Powers Act 2000 (eg hacking or phone monitoring) or unauthorised access to computers within the scope of prohibitions in the Computer Misuse Act 1990. The Data Protection Act 1998 might have relevance, but then within it is a journalism defence (section 35), which applies when the material processed is intended for any form of publication in the public domain and the publisher reasonably believes the publication is in the public interest. Although it does not say so explicitly, this publication must include blogs and websites.

A person seeking to challenge the publication could complain to the Information Commissioner, who has the power to levy monetary penalties of up to £500,000 for serious breaches of the Data Protection Act 1998, but to date there has not been a case involving a failed section 35 defence. Action in the courts is possible (but expensive), but the level of damages is low – the most publicised case involved Naomi Campbell (Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB), subsequently upheld by the House of Lords [2004] UKHL 22). Although not clearly identified as such, it would seem that her data protection damages amounted to a modest £1,000, out of a total award of £3,500 damages for breach of the Data Protection Act 1998 (damages for distress under section 13) and for breach of confidentiality.

More importantly, for private individuals’ blogs, it is arguable that any processing by them would be within the domestic purposes exemption (section 36), but this does depend upon how the law develops to interpret what are “recreational purposes” within that exemption.

Press media

For press media, there is little legislation above what applies to bloggers. The difference is that there is an increased level of self-imposed regulation, under the Press Complaints Commission (PCC) and its Editors’ Code. Article 10 of the Code states:

10 Clandestine devices and subterfuge
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

However, these restrictions can be disregarded in the public interest, if an editor reasonably believed prior to publication that publication or journalistic activity prior to publication was in the public interest. Note that in dealing with any complaint about use of clandestine devices and subterfuge, the PCC can take into account “the extent to which material is already in the public domain, or will become so”. Does this mean that once information obtained by subterfuge is out in the public domain, it is fair game for press media to republish it?

The real question for the Leveson Inquiry is what happens when there has been a breach of the PCC Code. It is widely suggested that the PCC is too ready to find that there is public interest. Even when it finds that there is no public interest to warrant the breach of the Code, it is arguably toothless, so that remedies for the victim are derisory.

Broadcast media

Lastly, what if the BIJ report had been broadcast on the Channel 4 Despatches programme, which appears to take some indirect flack from BP? Channel 4 is subject to the Broadcasting Code, regulated by Ofcom. Section 7 of the Broadcasting Code includes:

Deception, set-ups and ‘wind-up’ calls
7.14 Broadcasters or programme makers should not normally obtain or seek information, audio, pictures or an agreement to contribute through misrepresentation or deception. (Deception includes surreptitious filming or recording.) However:
• it may be warranted to use material obtained through misrepresentation or deception without consent if it is in the public interest and cannot reasonably be obtained by other means;
• where there is no adequate public interest justification, for example some unsolicited wind-up calls or entertainment set-ups, consent should be obtained from the individual and/or organisation concerned before the material is broadcast;
• if the individual and/or organisation is/are not identifiable in the programme then consent for broadcast will not be required;
• material involving celebrities and those in the public eye can be used without consent for broadcast, but it should not be used without a public interest justification if it is likely to result in unjustified public ridicule or personal distress. (Normally, therefore such contributions should be pre-recorded.)

So if a victim of deception complained to Ofcom, would the outcome be as weak as for the PCC?

This is where there is a marked difference between press and broadcast regulation. Whilst the actual regulations may be similar (see the above rules on deception/subterfuge), the penalties for getting it wrong as a broadcaster can be steep. Ofcom can fine up to £250,000 or 5% of a broadcaster’s qualifying annual revenue. The most recent case reported by Ofcom for breach of the fairness rule was a case involving Press TV Limited, who were fined £100,000 on 1 December 2011.