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Is UK web speech regulated? No.10: Er. We’ll get back to you

On-the-hoof tabloid crackdown leaves bloggers, online journos in the dark

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As plastered all over the news yesterday, politicians and anti-tabloid campaigners finally hatched a plan to form a publishing regulator, by royal charter, with the ability to fine misbehaving organs and demand corrections to articles. The letter of the law underpinning the watchdog states it will cover websites; government spin-doctors are saying otherwise.

By approving the legislation, tacked onto the Crime and Courts Bill, has Parliament just voted to regulate internet speech? We know that online publications will be subject to new regulations – and anyone can create a website and publish news. If a publisher doesn't agree to join the new scheme, even though the regulator rules that it should, that publisher could face bonus libel costs even if it wins a defamation case.

So who's in? Who will sign up? Who should sign up?

Amazingly, the question appears to have taken Downing Street by surprise, and last night Number 10's spinners appeared to be making up definitions on the hoof.

Yesterday Parliament voted to end more than 300 years of freedom from political interference in the published word, approving amendments to draft crime and courts reforms to create "exemplary damages" for newspapers and websites that refuse to participate under a new regulation scheme.

The new scheme, ironically called a "Royal Charter on Self-Regulation of the Press", creates a new quango to oversee the press. The legislation [PDF] approved by Parliament defines what falls under that new regulator's remit:

“publication” of material is a reference to publication — (a) on a website, (b) in hard copy, or (c) by any other means; and references to a person who “publishes” material are to be read accordingly.

But what does "news-related" mean? Here, the new law explains:

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.

Last night in an answer to a question by political journalist Paul Waugh, Number 10 explained that national and regional newspapers, and their websites, should fall under the new regulator, along with “online-only edited 'press-like' content providers - eg, Huffington Post, Holy Moly Gossip and lifestyle magazines - eg, Heat, Closer, Marie Claire”. "Press-like" is an extremely vague term for a Western law.

But who is out? Number 10 assured Waugh:

Bloggers, tweeters, news aggregators and social networking sites - eg Facebook, Twitter, Stephen Fry, Ricky Gervais. Small publishers of special interest, hobby and trade titles - e.g. Waitrose magazine, Decanter, Retail Week Student and not for profit community newspapers - e.g. Varsity, Leeds Student, parish magazines Scientific journals and periodicals - e.g. British Medical Journal, Modern Language Review, BMC Neuroscience Online presence of book publishers - e.g. Collins, Macmillan Broadcasters' websites - the BBC, Sky News.

This spontaneous "define by example" response leaves the most important areas still in need of a grown-up legal definition.

New legislation tabled in Parliament typically undergoes a gruelling 11-stage process of examination and review, where definitions are agreed and consequences considered. This hasn’t happened in this historic measure, which significantly alters the (unwritten) constitution of the UK, and is presented as a fait accompli.

Index on Censorship points out that:

Bloggers could find themselves subject to exemplary damages in court, due to the fact that they were not part of a regulator that was not intended for them in the first place. This mess of legislation has been thrown together with alarming haste: there’s little doubt we’ll repent for a while to come.

The consequence, as writer Nick Cohen points out, is likely to be that an English court decides who is a publisher and what is news.

Another mess awaits. Peter Lilley MP pointed out that the new quango “must decide what is fact and what is true. At best this is a recipe for multitudinous time-wasting complaints… at worst it is a mini self-appointed Ministry of Truth”.

There are no limits on powers the regulator can grant itself, he added.

The charter was agreed in private at 2.30am on Monday, between representatives of the three main parties, and four representatives of the pro-regulation pressure group Hacked Off. Newspaper representatives and individual publishers were not invited.

The number of Conservative MPs who voted against the amendment to the Crime and Courts Bill is said to be 14. ®

The smart choice: opportunity from uncertainty

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