2:19 pm - March 19th 2013
by Paul Bernal
One of the immediate reactions to the last minute deal over the implementation of the Leveson recommendations was that it would hit bloggers and tweeters very hard. I’m not sure that’s really true.
However, it will be quite some time before everything becomes clear, partly because the Royal Charter itself needs careful and detailed analysis and partly because it’s not just the Charter itself that matters, but the documents and guidelines that follow.
The Royal Charter is only part of the story. It sets out terms for a ‘recognition panel’ that ‘recognises’ regulators – it doesn’t set up the regulators themselves. As Cameron and others have been at pains to point out, the idea is that the ‘press’ sets up the regulator(s) itself.
We have yet to see what form any regulator the press sets up will take. It has to be good enough for the recognition panel to accept – that’s the key…
So what about bloggers?
Attention has been focused on Schedule 4 of the Royal Charter (which can be found here), which sets out two definitions:
“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);”
“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.”
This seems to have caused many people to panic – but you need to look a little further: in particular, what does it mean to say that I’m a ‘relevant publisher’?
On a quick review of the Royal Charter, all it appears to mean at present is whether I would be eligible to part of the ‘recognition’ panel, or employed by that recognition panel – part of the rules intended to keep the recognition panel independent of the press, one of the key parts of the Leveson recommendations.
We need to see more – the real details of how this will work have yet to emerge beyond the initial Royal Charter Draft. The fact that the definitions are there doesn’t mean much – though it could be a pointer as to the direction that the new regulatory regime is headed.
It may indeed be that the new scheme is intended to ‘regulate the web’ but it doesn’t do so yet.
What’s the difference between a newspaper’s website and a blog?
That’s the big question that has yet to be answered. There’s a clear difference between the Guardian Online and my little blog – but where do Conservative Home, Liberal Conspiracy and Guido’s Order Order fit into the spectrum? There were even rumours last year that the Guardian was going to abandon its ‘real’ paper and focus only on its online version. If they turn true, should the Guardian Online have been regulated as though it were a newspaper?
If the press is to be regulated at all – and the consensus between the political parties that lay behind yesterday’s deal suggests that non-regulation is not an option – then online newspapers that are effectively the same as ‘paper’ newspapers should have to be regulated too. Small blogs shouldn’t – and Cameron and others have been quick to say that social media won’t be covered, though quite how they bring that into action has yet to be seen. The difficulty lies in the greyer areas, and that’s where we have to be vigilant – the devil will be in the detail.
What about those huge fines?
The Charter actually says the body should have “…the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000)…”
Appropriate and proportionate sanctions for a non-profit blogger would therefore be likely to be qualitative – remedies like proper and prominent apologies come to mind. The fining capability – the £1,000,000 that has made its way into press headlines – may mean something to big newspapers, but it’s effectively irrelevant to bloggers. We don’t have ‘turnovers’ of any significance – and big fines would (in general) be inappropriate and disproportionate.
…and anyway, blogs are already subject to the law
This is a key point that many seem to miss. This regulatory framework isn’t acting in a vacuum. Bloggers and tweeters are already subject to the law – to defamation law, to privacy law, to copyright law, to public order law, to laws concerning hate speech, to obscenity law. This framework would do nothing to change that. Those laws are complex and variably effective – and variably enforced.
Personally that’s what I’d be concerned about, much more than Leveson. The illiberality of the use of public order and related law on tweeters and bloggers is something that, for me, is far more dangerous a trend than anything this Royal Charter could bring about.
Personally, I wonder whether those who are against the regulation for their own reasons are just trying to scare bloggers and tweeters, and enlist them on their side. Not me. Not yet.
A longer version of this piece is here.
Paul Bernal is a lecturer in IT, IP and Media Law at UEA.
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