Success on bloggers exemptions and new access to cost protections for small publishers
by Evan Harris
The government has published two late amendments to the Crime and Courts Bill which Hacked Off has been pressing for, including helping to convene three meetings to assist bloggers and supporters co-ordinate their efforts.
They deal with (a) the definition of who would be exposed to penalties for remaining outside the system and (b) the incentives for membership of an approved self-regulator. Their effect is to clarify and improve the position for small publishers and bloggers.
The changes mean that multi-author blogs that publish news-related material, are businesses employing fewer than 10 (w.t.e.) people and have turnover of less than £2m will not be classed as “relevant publishers”. That in turn means that they will not face the penalties in costs that relevant publishers can be liable for or risk exemplary damages if they breach someone’s rights in an outrageous manner.
The amendments will also help a second group, besides multi-author blogs. If you have a business of the same size (fewer than 10 employees and less than £2m turnover) and you are not primarily a news publisher, but you do publish some news that is relevant to your business, then you will also be exempt from the risk of costs and damages penalties.
Both exempted groups will benefit from a second amendment. This provides that if they choose to join a Leveson-type approved self-regulator (assuming its rules allow them to) then they will obtain the benefits of costs protection if they are sued in court by a claimant who refuses to use the low-cost arbitration scheme of the self-regulator.
This is an extremely valuable change because without it there would be far fewer benefits to joining up if you were not a relevant publisher. A significant advantage of paying a subscription to a self-regulator that provides an arbitral system is that it should deliver protection from the high costs of court actions.
This is the cost protection provision in the bill, modelled on the Hacked Off draft published in January.
17 “Awards of costs
(1) This section applies where—
(a) a relevant claim is made against a person (“the defendant”),
(b) the defendant was a relevant publisher at the material time, and
(c) the claim is related to the publication of news-related material.
(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.
Hacked Off has been working, with others, to achieve these amendments for many weeks.
This is a very good result for bloggers – for two reasons. Almost all multi-author edited news blogs will now not need to join an approved self-regulator in order to avoid cost penalties if sued in court. But in addition, any such news blogs who do chose to join, will get cost protection if a libel or privacy claimant chooses to sue them in court instead of using the arbitration scheme in the self-regulator.
This will give a real boost to the Leveson system – avoiding the criticism that would otherwise have resulted from the DCMS original drafting, when Leveson never intended small blogs to be under pressure to join – while still allowing those who wish to join a self-regulator to get the benefits that an arbitration system offers them and their readers.
The drafting of the clauses is still not perfect and Hacked Off has made clear that we deprecate the failure of the DCMS to institute a completely open process of public consultation on the Royal Charter and the incentives clauses, and allow full parliamentary debate. However the Royal Charter and the related clauses are now workable, and those bloggers who should not be covered will now not be covered.
Thanks are due to the following, as well as bloggers and campaigners who engaged with the issue at short notice and such a regrettable short timescale.
• Article 19
• Carl Gardner at the Head of Legal blog who has written on this issue
• Sunny Hundal (Liberal Conspiracy) who has blogged on this
• The Open Rights Group
• The Labour Party whose efforts were led by Helen Goodman MP
• Lib Dem John Leech MP who pressed Maria Miller on this at the DCMS Select Committee
Evan Harris is the associate director of Hacked Off and tweets at @DrEvanHarris.