Okay, so there still seems to be a lot of confusion surrounding the amendments to the Crime and Courts Bill relating to publication torts and the extent to which these may, or may not, impact on bloggers.
This is a situation that hasn’t been help either by the government, which tabled two revised clauses on exemplary damages and awards of costs shortly before Tuesday’s debate, leaving many people to base their comments on the wrong versions of these clauses, nor by the press, and organisations like Index on Censorship, which have spent the last couple of days spouting hyperbolic bullshit in the hope of rooking bloggers in volunteering to become human shields for the media barons.
Not in my name, guys – never, ever, in my name.
So, lets take this from the top and go through the key clauses line by line, if necessary, and see if we can inject a little accuracy into the debate, and the first thing to be clear about is that proposed Royal Charter, itself, has precisely zero impact on bloggers. The interpretation clause in that particular document, with its definitions of a relevant publisher and news-related material, relates only to rules in the charter that deal with appointments to the Board of the new recognition panel that will keep an eye on the new press regulator, and the employment of staff by that panel, and has nothing whatsoever to do with the actual business of regulating press activities.
So, unless you’re planning to sign-up to the new regulator when it launches, there is nothing in the draft Royal Charter for you to be concerned with right now.
Okay, so the big question that vexing bloggers is that of which blogs, if any, might conceivably be caught up in this new regulatory system, if only due to the provisions for exemplary damages on significant news publishers that choose to operate outside the new system, and the answer to that question lies in clause NC29 and schedule NS5, so let’s start by working through those – and where relevant I’ll be inserting clause numbers into the text of these clause in italics to make thing a little easier to follow:
(1) In sections [Awards of exemplary damages – NC21A] to [Awards of costs – NC27A], “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.
News-related material is defined in clause NC30 – ‘Other interpretations’ as:
(a) news or information about current affairs,
(b) opinion about matters relating to the news or current affairs, or
(c) gossip about celebrities, other public figures or other persons in the news.
So that’s a very broad definition for starters but that only the starting point for the definition of a relevant publisher, because such a publisher must also be publishing news-related material in the course of a business that it written by different authors and which is, at least to some extent, subject to editorial control, as defined in subclause (2).
What this means in practice is, first and foremost, that solo bloggers will not be relevant publishers for the purposes of awarding exemplary and aggravated damages and cost under clauses NC21A – NC27A, nor indeed will be anyone who provides a blog hosting service, online forum or social networking platform that operates without any overarching editorial control over content posted to individual blogs, forums or accounts.
So, straight away, sites such as Blogger, WordPress.com, Facebook, Twitter, etc. are completely out of the frame and it follows logically that anyone using any of these providers, or anything similar, on a solo basis is similarly not caught up in these clauses. There will be no regulation of Twitter or of anyone’s personal Twitter account by the new press regulator, although accounts used by journalists working for regulated titles in an official capacity will probably be treated as an extension of their employer’s publishing operation and will fall under the jurisdiction of the new regulator, if their employer signs up to it.
Where things become a little less certain is when to comes to those group blogs where there is some degree of editorial control over content; so sites such as Conservative Home, Liberal Conspiracy and Guido’s Order-Order.com clearly will meet the criteria for editorial control and publication of news-related material by different authors.
What’s not at all clear, at this stage, is whether these sites would also be considered to be businesses for the purpose of this clause, and here things have been made even more confusing by the inclusion of the ‘whether or not carried on with a view to profit’ caveat in subclause (1).
Without that caveat one could at least take the word business to have its natural meaning – “any activity or enterprise entered into with a view to profit” – in which case group blogs that can show that any commercial activity they engage in, such as running advertising, was solely for the purpose of covering the basic costs of running the site, i.e. hosting, domain registration, bandwidth, etc, would be completely out of the frame.
As thing stand, I think is clause is capable of being interpreted by a court as indicating that an editorially-run group blog that engages in any kind of commercial activity, including running on-site advertising, could easily be treated as a business for the purpose of this clause and I think that it’s almost certain that group blogs that have paid staff will fall into this definition of a relevant publisher, if this clause passes into law without amendment.
So if, as has been claimed, it is not Parliament’s intention to define any of these group blogs as relevant publishers then changes will need to be made, either to this clause or to the schedule [NS5] which specifies exclusions from the definition of a ‘relevant publisher’ under subclauses (5) and (6) of this clause.
The question, therefore, is how best to go about convincing politicians that either this clause needs to be altered or further exclusions need to be added to schedule NS5 to take these group blogs out of the frame and there I have what I think may be an intriguing line of argument.
Could a Political Party be considered to be a ‘business’ for the purposes of this clause?
After all, if one looks at, say, the Conservative Party’s website then it would clearly meet the other criteria for a relevant publisher; it publishes news-related material, has editorial control over the publication of content written by different authors and is run by paid staff, and it also has its own shop, which sells everything from campaign kits to baby clothes and Tory-branded golf umbrellas, which is rather more in the way of commercial activity than any group blog that has a Google AdWords account.
So does that make the Tory Party website a relevant publisher and leave it open to the possibility of exemplary damages should it run foul of these new clauses?
For the record, the Labour Party also has a campaign shop on its main website, even of getting to it means a bit of faffing about with a redirected domain name, while the Liberal Democrats at least manage to keep their merchandising operation off their main website at liberaldemocratimage.co.uk – and before you ask, no they don’t sell sandals.
So, if the definition of a business here is lax enough to allow for a group blog that self-finances its hosting using onsite advertising to be captured by this clause, then it easily lax enough to the same to political party, unless there already a general provision lurking in piece of existing legislation that removes that possibility.
There are, then, clear grounds for further amendments her to clean up this clause and ensure that group blogs don’t find themselves at risk of exemplary damages, a measure that is intended only to put pressure on major news publishers to sign up to a new, independent, press regulator.
Moving on, subclauses (3) and (4) should at least provide those group blogs that could be sucked into these clauses with a modicum of relief:
(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).
So, even if you moderate third party comments, you can’t be taken to have any editorial responsibility for them for the purpose of an award of exemplary damages, which is just as well given the general state of comments posted at the Daily Mail’s Mail Online site.
That doesn’t, of course, mean that anyone is going to be completely off the hook when it comes to ordinary damages for defamatory comments posted anonymously, although there the new Defamation Bill rides to the rescue to some extent by giving websites, generally, a defence to libel claims as long as any allegedly defamatory comments are removed on receipt of a takedown notice.
This brings us on to the exclusions, and the subclauses in this clause are of little real interest:
(5) A person is not a “relevant publisher” if the person is specified by name in Schedule [Exclusions from definition of “relevant publisher” – NS5].
(6) A person is not a “relevant publisher” in so far as the person’s publication of news-related material is in a capacity or case of a description specified in Schedule [Exclusions from definition of “relevant publisher” – NS5].
So let’s get straight on to the schedule with reads as follows:
EXCLUSIONS FROM DEFINITION OF “RELEVANT PUBLISHER”
1 The British Broadcasting Corporation.
2 Sianel Pedwar Cymru.
3 The holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence.
So, broadcasters, who have their own existing regulators, aren’t covered by these new clauses.
Special interest titles
4 A person who publishes a title that –
(a) relates to a particular pastime, hobby, trade, business, industry or profession, and
(b) only contains news-related material on an incidental basis that is relevant to the main content of the title.
So that also good news for Have I Got News For You, which is unlikely to run short of obscure guest publications for it’s missing words round as a result of these new clauses…
…or perhaps not, if this exchange from Tuesday’s debate accurate reflects the legal position of special interest titles:
Sir Edward Garnier (Harborough) (Con): I wonder whether my right hon. Friend could provide me with some clarification. She says that the exemplary damages regime will apply as per the new clauses and so on. One of the exclusions from the definition of a “relevant publisher”, which she will find in new schedule 5, is:
“A person who publishes a title that relates to a particular pastime, hobby, trade, business, industry or profession”.
Maybe the “hobby” relates to the point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). What is the position of an irrelevant publisher, if I can describe him as that, who publishes a magazine or some other publication about a pastime, hobby or trade, but who none the less behaves within the terms of Rookes v. Barnard? Would the court still be able to award exemplary damages in that circumstance?
Maria Miller: My hon. and learned Friend raises an issue in which he is well versed. If I do not provide a complete answer, then I will get back to him with all the details. Clearly, if somebody is not a relevant publisher then they are not drawn into the self-regulatory scheme. They would not be subject to exemplary damages or be eligible for the scheme. Therefore, they would not be caught within this remit. We have so drawn the definition of “relevant publishers” to ensure that the scheme does not catch people we do not need to catch, and that is why we have been careful to set out the three tests in new clause 29—to ensure that we are clear about who is covered. Some individual organisations might well fall close to the line, but then it would be for the courts to decide.
I should point out that this is rather an uneven ‘contest’ of wits.
Sir Edward Garnier is a QC, a former newspaper lawyer (for The Guardian) and served as Solicitor-General for two years from 2010 to 2012. It’s fair to say that he possesses one of the sharpest legal minds in the House of Commons. Maria Miller has a degree in economics and a past career in advertising and marketing, so it should come as no great surprise to find that she didn’t understand the importance of Garnier’s reference to Rookes v. Barnard, a key labour law case and the leading case in English Law on exemplary damages.
The correct answer to Garnier’s question is that unless this bill makes specific provision for the repeal of common law provisions that currently allow exemplary damages to be awarded in successful actions for defamation and malicious falsehood then Garnier’s irrelevant publisher – which includes all bloggers, of course, will continue to be at risk of exemplary damages if they behave within the terms of Rookes v. Barnard.
That said, Miller’s final sentence about individual organisations falling ‘close to the line’ rather suggests that these exclusions may not be as clear cut as she tries to suggest in the rest of her response to Garnier’s question, a point reiterates by her response to a question from Richard Bacon:
Mr Richard Bacon (South Norfolk) (Con): One could easily envisage a railway enthusiasts’ magazine which had a range of authors whose material was subject to editorial control but which many people would nevertheless consider to be a hobby magazine. It would fall outside the regime because it was aimed solely at enthusiasts. What would happen, however, if such a magazine were to get hold of some information, perhaps confidential information, about High Speed 2? Would it then be caught by the regime? Does my right hon. Friend not see the path that she is going down?
Maria Miller: We have clearly set out the direction that we are going in, and it is there in the information for my hon. Friend to read. Ultimately, the court will decide whether any particular issues fall near the line. If a publication is concerned about whether it would be caught by the new regime, it can of course seek legal advice, but we have done a great deal to make this clear to individual publications.
The issue here is the exclusion of special interest titles (and scientific journals and company news publications) requires any publication of news-related material to be on an ‘incidental basis’ to the main content of the title.
What is not at all clear, as yet, is how a court might choose to interpret the word ‘incidental basis’.
This could be by reference to the usual or typical content of the title, so the publication of a single news-heavy issue, as might very well occur in the unlikely event that a railway enthusiasts’ magazine should get hold of confidential information and HS2, would probably not tip the balance of content far enough away from the meaning of ‘incidental basis’ to leave it open to a claim for exemplary damages. However, if a court chose to interpret ‘incidental basis’ in terms of the content of a single issue of the same magazine, then a news-heavy issue based on a major scoop, like leaked information about HS2, could be deemed to take the magazine outside this exclusion clause and into legal territory where it could face a claim for exemplary damages.
To say, as Miller does, that a court will decide these matters may be an accurate reflection of the process of law-making, inasmuch as one can never be entirely sure how new statutes will be interpreted by judges until courts have the opportunity to lay down relevant precedents, but such statements offer no help whatsoever to small-scale publishers of special interest titles and the like, not to mention some group blogs, if they cannot definitively rely on these exemptions until some poor bastard gets sued.
I’ll get to why this raises particular concerns, far beyond the spurious attempts to claim that bloggers will be put at risk of claims for exemplary damages in libel actions by these clauses, when that risk already exists, when we look at clause NC30.
But to finish off this schedule, the rest of it looks like this:
Scientific or academic journals
5 A person who publishes a scientific or academic journal that only contains News-related material on an incidental basis that is relevant to the scientific or academic content.
Public bodies and charities
6 (1) A public body or charity that publishes news-related material in connection with the carrying out of its functions.
(2) “Public body” means a person or body whose functions are of a public nature.
Company news publications etc
7 A person who publishes a newsletter, circular or other document which –
(a) relates to a business carried on by the person, and
(b) only contains news-related material on an incidental basis that is relevant to the person’s business.
8 (1) A person who is the publisher of a book.
(2) “Book” does not include any title published on a periodic basis with substantially different content.
So, apart from the uncertainties over the possible interpretation of incidental basis, scientific and academic journals, public bodies, charities, company news publications and book publishers are adequately covered, and according to Maria Miller, responding to a question from Jacob Rees Mogg, so too are newsletter published by local Conservative Associations (and one would assume similar publications by other political parties) although exactly which of these exemptions provides for that exemption was not specified.
If I was to take a guess then either the exemption for special interest titles or for company news publications might be applicable to a local newsletter put out by a political party, but then both subclauses refer to such exemptions in terms of their being business-related, which rather serves to reinforce the point I made earlier about the possibility of national party websites falling with the definition of a relevant publisher.
That brings us on to clause NC30, which I’ve already touched on in regards to the definition of news-related material, and to save time, I’ll focus only on the key subclauses – (4) and (5) – which define the range of publication torts for which a relevant publisher might find itself on the wrong end of a claim for exemplary damages:
(4) “Relevant claim” means a civil claim made in respect of any of the following –
(c) breach of confidence;
(d) misuse of private information;
(e) malicious falsehood;
(5) For the purposes of subsection (4) –
(a) the reference to a claim made in respect of the misuse of private information does not include a reference to a claim made by virtue of section 13 of the Data Protection Act 1998 (damage or distress suffered as a result of a contravention of a requirement of that Act);
(b) the reference to a claim made in respect of harassment is a reference to a claim made under the Protection from Harassment Act 1997.
As I’ve already mentioned, unless the current common law provisions for exemplary damages in actions for defamation and malicious falsehood are repealed by this Bill, then the inclusion of libel, slander and malicious falsehood in subclause (4) are neither here nor there.
However, the inclusion of breach of confidence, misuse of private information and harassment in the same clause is matter for concerns as, for anyone who is deemed to be a relevant publisher, this will extend the number of publication torts for which a court could award exemplary damages and there is clear scope for all three to have a chilling effect on legitimate public interest journalism, given the uncertainties surrounding group blogs and exemptions arising from publication on an incidental basis.
Breach of confidence, in particular, could prove to be problematic as the bar for bringing a claim of breach of confidence is far from onerous:
The courts no longer need to construct an artificial relationship between people in order to recognise that a duty of confidentiality has arisen. If a third party obtains information and knows or learns of its confidential character he or she can be required to respect the confidence. This means that a newspaper to whom a secret is sold or given can be ordered not to publish it. Secret documents, accidentally sent to third parties, may need to be returned. The language of ‘duty of confidence’ can even apply to a thief who steals private papers or documents. For the duty to arise, it may simply be sufficient for any reasonable person, standing in the shoes of the person who has obtained the information, to have realised that the information is confidential.
While the potential scope for actions for breach of confidence can be very wide:
The law of confidence has its origins in the commercial world of protecting trade secrets and confidential lists of business contacts. It has now grown far beyond this, and has recently been used in cases involving celebrities objecting to media intrusion of their private lives. Rather than speak in terms of a right to privacy, the courts have preferred to recognise such a right through actions based on breaches of confidence. Now photographs taken of people in both private and public places, or information obtained about a person’s activities from another person may be treated as confidential. A person may be able to sue where such confidential information is published or used in breach of the implied obligations of confidence.
So the range of publications that could attract a claim for breach of confidence and, for a relevant publisher under this clause, a claim for exemplary damages, runs from the publication of gossip and illicitly taken photographs of celebrities and other newsworthy public figures all the way through to leaked documents and information obtained from whistleblowers, and a publisher need only to have known or learned that information is confidential in order to be sued.
Here is has to be remembered that the chilling effects of publication torts reside not only in the risk of being sued successfully but also, for small publishers, in the often brutal costs of mounting a defence to such a claim, a fact that is routinely exploited by the so-called reputation management industry to suppress publication of information about their clients by means of intimidation. The mere threat of litigation is often enough to force a publisher to knuckle under to demands for the removal of information from the public domain, even if the publication of that information is clearly in the public interest, and anything that seems likely to increase the costs of defending a tort, such as yet more expensive legal wrangling over a putative claim for exemplary damages, is likely to increase the intimidatory effect of the legal nastygrams issued by the reputation management sector.
It doesn’t take a genius to see where this is likely to go, given the uncertainties that I’ve already identified about the possible status of some group blogs as relevant publishers and the questions over whether or not some of the incidental basis exemptions will hold up in court. If there is a slightest possibility of a website or small specialist publisher falling within the definition of a relevant publisher then any lawyer contacting such a publisher, on behalf of a client, over the publication of confidential information from a whistleblower or leaked document, will inevitably toss in the threat of a claim for exemplary damages.
The threat posed by the extension of exemplary damages to breach of confidence torts is a far more serious issue than the alleged threat of exemplary damages in libel actions that the press and some media lobby groups have chosen to focus on for the simple reason that there is nothing new at all about libel actions carrying a potential risk of exemplary damages, and yet breach of confidence has barely merited a mention by anyone other than a few legal bloggers.
Before moving on, I think it well worth turning, again, to comments made in Tuesday debate by Sir Edward Garnier, for clarification of exactly what this clause is doing (and apologies in advance for the length of this passage, but the issue is an important one):
Sir Edward Garnier: The other point we ought to think about—something my hon. Friend the Member for Hexham (Guy Opperman) and I were discussing only a moment ago—is that we must be careful not to set up two regimes for exemplary damages. There already exists a common law regime for exemplary or punitive damages. Broadly, it is available where a state actor has behaved in an unconstitutional or high-handed fashion, for example when the police or the Prison Service grossly misbehaves in relation to someone in custody. That example is perfectly easy to describe: the court will award punitive and exemplary damages to mark society’s disapproval of the behaviour of that arm of the state.
Guy Opperman: Does my hon. and learned Friend agree that there appears to be, in effect, almost a mirror image of the common law system of exemplary damages? Under the present system, which he rightly describes, for an unlawful arrest involving a police officer verballing an innocent defendant, for example, a judge would give exemplary damages. Surely that would be mirrored in exactly the same way in the provisions proposed in the new clause. All that might be good, but surely those provisions would apply on an ongoing basis in any event. Does he agree that the concern is that the provision on exemplary damages does not necessarily change the common law?
Sir Edward Garnier: I think that I largely agree with my hon. Friend. The first limb relates to unconstitutional state behaviour, which he described and I mentioned, but the second limb relates to situations in which, under the common law, the defendant has calculated that the gain he could make from the civil wrong he commits will lead to greater profit for him than any potential damages he might have to pay as compensation to the wronged person. The court can recognise that by punishing the defendant, and deterring others from doing the same thing, through the separate and additional award of exemplary damages. Those two limbs of the exemplary damages regime are well described in the 1964 case of Rookes v. Barnard, but I will bore the House no further on that.
What we are creating is a regime that will be similar to the common law regime but not exactly the same and that will be limited to “relevant publishers”. We need to think carefully about whether we are setting up two systems that are close, but not quite parallel, for securing exemplary damages. While we are legislating to adjust exemplary damages for the perfectly sensible and understandable motive of encouraging newspaper publishers, or those who will become “relevant publishers”, to enter a scheme under a regulator, I wonder whether we ought to bring together everything relating to exemplary damages under one statutory umbrella. I say that not simply because I think that it would be neater, but also because of what is said in subsection (4) of new clause 30, which defines a relevant claim. It states:
‘“Relevant claim” means a civil claim made in respect of any of the following—
(c) breach of confidence;
(d) misuse of private information;
(e) malicious falsehood;
Under the common law, libel, slander and malicious falsehood are already susceptible to punitive and exemplary damages, but as we know from Max Mosley’s case against Mirror Group Newspapers—I will not rehearse the facts of the case—the judge, when asked to award exemplary damages to the claimant in respect of the behaviour of the defendant newspaper, said, “Under the common law I do not think that I can extend the ambit of exemplary damages beyond the categories of libel and slander and so forth to a claim involving a breach of confidence or the misuse of private information.”
In the Bill we are extending by statute what that judge could not do, but we are extending it only to cases involving “relevant publishers”; we are not extending it to what I will crudely call “irrelevant publishers” or individual defendants who might misbehave in such a way that brings them within the regime of either of the two limbs of exemplary damages. I do not want there to be two separate types of exemplary damages. One statutory system should govern the consideration and awarding of exemplary damages, not one and a half or two systems. I urge the Government to consider this when they are thinking about how to take these matters forward. Perhaps having done so they will think that my concerns are of no importance or account, but I raise them nevertheless, admittedly in the light of having seen the document only during the course of this afternoon.
At least one newspaper – The Guardian – has indicated that it has received legal advice that suggests that the new provision for exemplary damages could be susceptible to a legal challenge under article 10 of ECHR, and I strongly suspect that it is the creation of two separate types of exemplary damages that Garnier identifies here that may well have been identified as a possible breach of newspapers’ article 10 right.
This being the case, a successful legal challenge to this dual system for awarding exemplary damages would force Parliament to choose between two options for bringing this system into line with ECHR. It could either drop the parallel statutory provisions for exemplary damages against relevant publishers, which would entirely defeat the primary purpose of their introduction as an incentive for newspapers to sign up to the new regulator, or it could extend these provision to Garnier’s irrelevant publishers leaving anyone and everyone open to a claim for exemplary damages for the misuse of private information, breach of confidence and harassment.
And it may not even stop there, because when it comes to private and confidential information, and even harassment, the distinction these clauses make between news-related material and other published information is rather arbitrary. Why, for example, should a celebrity or public figure be allowed to claim exemplary damages over the publication of a private photograph in a newspaper but not a private citizen who has a similarly private photograph posted, without their permission, on Facebook, or perhaps more to the point, on a revenge porn website?
It is at least conceivable that the distinction between news-related material and other published material could be challenged under article 10; there is, after all, no such distinction in claims for defamation and malicious falsehood.
There is potential a huge can of worms lurking here, waiting to be opened should the press choose to take to the courts to challenge these clauses, one that could leave everyone who posts any kind of private or confidential information online, whether on a website, blog or social network, wide open to a claim for exemplary damages.
That leaves us to consider only the clauses that relate specifically to the making of awards of exemplary damages and costs, particularly NC21A, NC22 NC27A, and for brevity’s sake I’ll forego publishing these in full and stick only to the subclauses that matter.
To begin with the bar for a successful claim for exemplary damages is set very high, which is which such claims are generally extremely rare:
(5) Exemplary damages may be awarded under this section only if they are claimed.
(6) Exemplary damages may be awarded under this section only if the court is satisfied that –
(a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights,
(b) the conduct is such that the court should punish the defendant for it, and
(c) other remedies would not be adequate to punish that conduct.
Coupled with the fact that these clause apply only to relevant publishers of news-related material, at least for the time being, the risk that anyone, including group blogs and small publishers, might be bankrupted by a successful claim is likely to be extremely low, although as I’ve already pointed out the potential chilling effect here is not confined solely to the risk of losing a case but is also vested in the costs of defending claims in court.
For publishers that do sign up to the new regulator system, clause NC21A, provides a distinct carrot:
(2) Exemplary damages may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.
(3) But the court may disregard subsection (2) if –
(a) the approved regulator imposed a penalty on the defendant in respect of the defendant’s conduct or decided not to do so,
(b) the court considers, in light of the information available to the approved regulator when imposing the penalty or deciding not to impose one, that the regulator was manifestly irrational in imposing the penalty or deciding not to impose one, and
(c) the court is satisfied that, but for subsection (2), it would have made an award of exemplary damages under this section against the defendant.
So, regulated publishers are safe as long as the regulator doesn’t screw up and make a manifestly irrational decision not to impose an appropriate penalty in a situation where a court would have awarded exemplary damages.
Relevant publishers operating outside the new regulatory system will, of course, attract no such protection and in some cases, their decision not to sign-up to the regulator could count against them, should the court decide that they could have operated within the system and had no good reason not to, although they may get some credit from the court if they have adequate internal compliance procedures of their own:
(3) The court must take account of the following –
(a) whether membership of an approved regulator was available to the defendant at the material time;
(b) if such membership was available, the reasons for the defendant not being a member;
(c) so far as relevant in the case of the conduct complained of, whether internal compliance procedures of a satisfactory nature were in place and, if so, the extent to which they were adhered to in that case.
(4) The reference in subsection (3)(c) to “internal compliance procedures” being in place is a reference to 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.
However, I can foresee problems arising from subclause (4) should an unregulated publisher find itself in a situation where it can only on demonstrate that its internal compliance procedures were adhered to by hanging a source out to dry as in:
“Your Honour, we did everything possible to check that the material was not obtained in an inappropriate way, but our source lied to us about how they came by the information.”
“And your proof of that is…?”
As regards costs, the new clause NC27A makes it clear that there will be a presumption against awarding costs against a regulated publisher if the court decides that a case could reasonably have been settled through the regulator’s own arbitration scheme and a presumption in favour of awarding costs against an unregulated publisher unless a case could not reasonably have been settled by arbitration:
(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that –
(a) the issues raised by the claim could have been resolved by using an arbitration scheme of the approved regulator, or
(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.
(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that –
(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or
(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.
(4) For the purposes of subsections (2) and (3), a claim could have been resolved by using an arbitration scheme of an approved regulator if, at the time when the claim was commenced, the approved regulator had arrangements in place for an arbitration scheme under which the claim could have been referred for determination by an arbitrator appointed under the scheme.
The issue here for those group blogs that could get caught up in these clauses as a relevant publisher is the question of whether or not it would have been unreasonable for them to sign up to the regulator and I would expect the costs of membership to be a significant factor is these exceed the income generated by a group blog from advertising, etc. by a significant degree. That could keep group blogs that operate on a shoestring budget out the worst possible trouble but may offer no comfort at all to relatively large scale operations, particularly those that can that can afford to pay their editorial staff.
The question of whether it would be unreasonable for a publisher to sign up to the new regulator is also clearly of relevance to publishers based overseas, where I think it is highly unlikely that a court would consider it reasonable for them to become regulated unless they specifically target the UK market by publishing a UK edition of their website, so the Huffington Post is in, but the New York Times almost certainly isn’t and the net effect of these clause should be that of making the whole business of suing either a regulated news publisher, or one that could not reasonably have been regulated in the UK, a much less attractive proposition by making it much more difficult for a plaintiff to recover their costs unless they are suing over a major foul-up for which arbitration is not a viable option.
For an unregulated relevant publisher, dodging the plaintiff’s costs is much more difficult proposition, although whether this will make it any more difficult than it is currently is question that only an experience media lawyer could perhaps answer.
So, to sum up the situation for bloggers, it is currently only the larger group blogs that could conceivably get caught up in these clauses, despite assurance given to the contrary by Ministers, and these new provisions do not make any difference whatsoever to the position that all bloggers find themselves in when it come libel, defamation and malicious falsehood, where claims for exemplary damages are already a possibility, albeit a relatively remote one due to the stiff legal test that one has to fall foul of to make such an award possible.
The clauses that are supposed to keep bloggers and specialist publications that ‘do news’ only an incidental basis do not appear to as clear cut as some politicians have been suggesting, a fact that Maria Miller more or less admitted to in Tuesday’s debate, although to be scrupulously fair here, Miller own understanding of the implications of these clause may not all is should be.
Where there is, however, cause for serious concern is in the extension of exemplary damages to torts involving misuse of private information, breach of confidence and harassment and the manner in which this has been undertaken, i.e. by creating a parallel system in statute that ostensibly targets only commercial publishers of news-related material alongside the existing common law system, which in the case of libel, defamation and malicious falsehood, covers all publishers.
The question here is whether or not this system would stand up in the face of legal challenge mounted by the press under article 10 of ECHR and how the government would respond were such a challenge to prove successful, as this could easily result in the extension of exemplary damages in these torts to all publishers, including bloggers and ordinary citizens publishing information on social networks such as Facebook and Twitter.
That’s where the real hand-grenade resides in these clause and it seems odd that the press has yet to point this out, particularly in light of the lengths to which newspapers are currently going in their efforts to recruit bloggers to serve as human shields for the own interests, most of which have nothing whatsoever to do with these clauses.
Or maybe it’s not quite so odd when you consider that also the hand grenade is there in the legislation, it not one that will go off unless the press itself choose to pull the pin, an act which make not be viewed by bloggers in anything like the sympathetic manner they are hoping to generate.
What this proves, at least so far as I’m concerned, is simply that in debates on press regulation, as in war, truth is invariably the first casualty.