Press regulation is taking an awfully long time. Lord Justice Leveson reported last November and, after an initial spurt of activity when 2013 was young, everything’s gone still as the Privy Council – really just another word for the cabinet – mulls over two competing draft Royal Charters, at length. We may know later this year whether the press’s draft or that agreed by the main political parties will be adopted, or if there’ll be some fudge. But in the meantime, the delay gives us time to look at what the new legislation and the competing Royal Charters would achieve.

The system will have three building blocks: a Royal Charter to underpin a regulator, and two pieces of legislation: the Enterprise and Regulatory Reform Act 2013, which further underpins the Royal Charter, and the Crime and Courts Act 2013, which provides for the press to set up a self-regulator.

If either Royal Charter ends up being adopted, and if a press self-regulator is recognised as meeting the recognition criteria, then it’s the Crime and Courts Act 2013 that will give individual publishers a reason to want to sign up to be regulated by it – not just “traditional” news publishers but any relevant website or blogger, like you and me.

The competing Royal Charters

Nothing in either draft Royal Charter, or in either piece of legislation, actually establishes a press regulator. It will be up to news publishers to do that. It’s essential therefore that the new system has a mechanism for deciding whether or not the self-regulator satisfies the Leveson principles well enough to allow the legislation to kick in.

So the draft Royal Charter – on either the politicians’ or the press version – will establish a “recognition panel” to decide just that. The rules for appointing its members, and their terms, are set out in Schedule 1. It is mainly these details – appointment to the recognition panel, and the recognition criteria in Schedule 3 that are being fought over in the two competing draft Royal Charters. The press wants an industry funding body to fund the recognition body, rather than the recognition body funding itself by charging regulators.

The legislative incentives for publishers

The relevant provisions are in sections 34 to 42 and Schedule 15 of the Crime and Courts Act 2013.

A publisher will be at risk of exemplary damages under section 34 in a libel or privacy case if it is unregulated and shows an outrageously deliberate or reckless disregard for the claimant’s rights. In contrast it is protected from exemplary damages if it is regulated (section 34(2)). But while exemplary damages have attracted a lot of attention, they’re of vanishingly small importance. It is almost inconceivable that anyone writing seriously about law – whether a journalist, or a law firm with a blog – will recklessly disregard someone’s rights in an outrageous way. That goes well beyond being found liable in defamation or privacy.

Much more important are the costs provisions in section 40, which offers a carrot and a stick. There’ll be costs protection under section 40(2) for “relevant publishers” – a key concept – if they’re regulated. This means that, even if a regulated publisher loses a libel action, it won’t normally be liable for the claimant’s costs. That’s a powerful incentive to sign up for regulation. And the protection isn’t just for the regulated: it extends to those relevant publishers who could not reasonably have been expected to sign up. An example might be a foreign publisher.

The quid pro quo here is that there’ll be a costs penalty for “unreasonably unregulated” relevant publishers, under section 40(3). If they could reasonably have been expected to sign up for regulation and didn’t, then they’ll be liable for costs even if they successfully defend a libel case.

How does this apply to the web? Both the Royal Charter drafts and the legislation are neutral as between print and web. They apply to websites containing news-related material, as they do to print. Any regulator will have to be open to membership by all publishers. But whether the incentives apply to you depends on whether you’re a “relevant publisher”. This is the key to knowing whether you’re covered or not.

Under section 41 of the Crime and Courts Act, a relevant publisher is someone who

  • in the course of a business
  • publishes “news-related material”
  • written by different authors
  • which is to any extent subject to editorial control,

and “news-related material” under section 42(7) means

  • news or information about current affairs,
  • opinion about matters relating to the news or current affairs,
  • gossip about celebrities, public figures or others in the news.

So the “absolute” lone blogger is excluded – two writers are needed in order for a publisher to be caught. But once you have a single guest blogger or republish something news-related that was originally written by someone else, you may become a relevant publisher.

The most difficult concepts to get a handle on here for small bloggers and for law firms who publish on the web are the apparent further requirements for publication to be “in the course of a business”, and of “editorial control”. Lawyers who do a lot of consumer rights work may be clear about when publication would be in the course of a business – but for the rest of us, that may be harder. A law firm surely does publish in the course of a business, but perhaps an individual barrister does so too, if he or she has a website that refers to their practice. In other contexts, the “course of business” requirement separates pretty well the amateur blog from commercial news operations, but it works much less well when it comes to discussion on the web that involves professionals as well as pure observers.

Section 41(2) tells us news-related material is subject to editorial control if someone is responsible for its content and presentation and for the decision to publish it, but what’s left unclear is whether everything written by all the writers on your website has to be subject to editorial control, or whether editorial control over one writer is enough to capture you. That matters a great deal, because it means whether your website is potentially covered by the regulatory regime or not may depend on how exactly you interact with writers, both internal bloggers for instance, and guest writers. This is something that certainly needs more clarification.

What is tolerably clear is that allowing readers to comment on your website won’t in itself being you within the scope of regulation. Sections 41(3) and (4) provides that if you don’t post material on your site, then you don’t have editorial responsibility for it.

In Schedule 15 to the Crime and Courts Act there are some special exclusions from the definition of “relevant publisher” which will help some legal publishers avoid potential regulation – or exclude them from it if they want to sign up.

A key exclusion is for “special interest titles” – in other words, publications that relate to a pastime, hobby, business, industry or profession, and which only contain news-related material incidentally. Again, though, this is tricky. While many legal publications relate to the legal “industry” or profession, many will also write about things in the news, and it won’t necessarily be easy to decide how incidentally they do so. My own blog, for instance, is almost all about news-related material, I’d say. Perhaps those who publish overwhelmingly about those specialist areas that are rarely newsworthy – will drafting, for instance, or TUPE – this exception will clearly come into play. But if you’re writing about human rights or the latest cases and legislation on family law, things may be fuzzier.

Finally, at the last minute a new exclusion was introduced for “micro-businesses”, ie publishers with fewer than 10 employees and an annual turnover of £2 million or less. They’re not a relevant publisher if they’re a multi-author blog, or publish news-related material only incidentally. But they can still be treated as one, if they choose to be regulated. This is a privileged position, giving these publishers much more choice than most. It’s very odd that multi-author blogs can benefit from the exclusion – the intention must be, contrary to Leveson, to discourage even serious solo bloggers – as Guido Fawkes used to be – from seeking to be regulated.

Anyone who’s writing about law on the web is likely to have to think about how press regulation works. Specifically, they’ll need to be clear whether they’re publishing in the course of a business, whether their content is specialist and whether they write about news incidentally. They may also need to think about whether they want to positively avoid inviting others to write for them, or whether it might benefit them to do so in order to become an excluded micro-business.

It may never happen. The press has always avoided serious regulation in the past, and looks on course to do so again. Perhaps we’ll know by Christmas.

Carl Gardner is a lawyer, writer and commentator on law. He writes the Head of Legal blog. Follow him on Twitter @carlgardner.

Email carl@headoflegal.com.

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