In the draft Crime and Courts Bill, currently being debated in Parliament as the statutory underpinning to the proposed new news regulator, a ‘relevant publisher’ is defined as:
“a person who, in the course of a business (whether or not carried on with a view to a profit) publishes news-related material (a) which is written by different authors, and (b) which is to any extent subject to editorial control.”
This definition quite clearly includes website and blog publishers (this clause does continue to exclude from the definition any website publisher who has no control over what is published on their website) and quite clearly includes comments on news.
As a company, we publish two blogs – the IT Governance blog and the Vigilant Software blog. Both have multiple writers. Both are subject to our editorial control. That means that we will fall within the definition of a ‘relevant publisher’ for the purposes of this new Bill. I’m sure that, within the UK, there are hundreds – if not thousands – of corporate blogs that fall within this definition.
So what does this definition mean? Well, according to one of the proposed new clauses in this bill, if a legal claim is made against us (us being a relevant publisher) about anything we publish, the court – in considering an award of costs – may take account of whether or not we were a member of an approved regulator and, if we were, whether or not we subjected ourselves to that regulator’s arbitration scheme. In assessing the size of the award, courts are directed to focus on ‘aggravated damages’ – to compensate for mental distress. Courts would also be able to award “exemplary damages” but only as long as the total amount of the award does not punish us ‘excessively’.
What sort of financial number do you put on ‘mental distress’? What might be ‘excessive’? (Do bear in mind that these awards will be made by judges, not by juries – and judges have also found themselves in the eye of a media storm from time to time, haven’t they?)
Here’s a logical example of what could happen. I write a blog post, in which I excoriate the Defence Secretary for the UK’s inadequate cyber defences, directly referencing a news article which identifies some major cyber stupidity and calls into question the Defence Secretary’s basic professional competence. The blog post is re-published on the IT Governance blog – a relevant publisher. The Defence Secretary takes exception to the blog and sues. He makes a ‘relevant claim’ – that is, a claim in respect of say, libel or slander (both of which are already extensively covered under UK law, but don’t mind that). We’re not a member of an approved regulatory body for the press. Why should we be? We’re not a newspaper…….
However, if we have in place ‘internal compliance procedures’ (“any procedures put in place by the defendant for the purpose of ensuring that (a) material is not obtained by or on behalf of the defendant in an inappropriate way, and (b) material is not published by the defendant in inappropriate circumstances”) then we may ask for the existence of those procedures to be taken into account. I have no idea what the definition of ‘inappropriate’ would be, but I fear that it would basically cover anything that a claimant said was inappropriate.
This is, unquestionably, a Bill to limit the freedom of the press. It also intends, fairly and squarely, to limit the freedom of those who use the Internet to comment on the behaviour of politicians and others in the public eye.
It is, frankly, a disgrace.
