Meeting Hacked Off

Simon Phipps’ article and comments from Cory Doctorow and Alec Muffett prompted the invite from Evan Harris and Hacked Off. However, ORG is not the only organization with links to bloggers and concerns over the scope of the proposals, so we asked that Index on Censorship, Big Brother Watch and others were there.

The issues Simon raised were primarily about definitions: the post Leveson process has suddenly swept up a large swathe of online publishers.

Very quickly, this weekend, after agreeing the shape of the post Leveson settlement and the Royal Charter, the government moved to introduce clauses into the Courts And Crime Bill to give substance to the ‘carrot and stick’ they want to use to induce media organizations to join a new self-regulator.

The clauses are being introduced very rapidly, with little preparation, and nearly no time – until Friday – for the Lords to propose amendments to correct mistakes. The rush is political: the parties are worried consensus will break, and want to avoid continued accusations of holding a sword over the press’ head, with the attendant ability to pressurize publications about what they say.

Index on Censorship, Article 19 and English PEN are opposed to the use of the punitive measures at the heart of the Bill, because of the likely chilling effect on free speech. Some publishers, like Private Eye, may have good reasons not to join a self-regulator, so it seems unfair to put them in greater legal danger because of a choice they face. Perhaps a self-regulator won’t be as independent or impartial as we hope, for instance.

The sticks are in two forms, making exemplary damages available against publishers who should be self-regulated, and making it possible to award costs in full against such publishers even if they win, because, essentially, they should be using self-regulation and cheaper arbitration mechanisms.

The costs issue may be the more important one. Free speech groups have pointed out that these sticks will be open to human rights challenges, and equivalent measures have already been rejected by the ECHR. In their view, it is only a matter of time before these ‘incentives’ come under legal attack and are rejected.

However, the sticks are only available against organizations that, in the definitions in the Courts and Crime Bill, ought to be self-regulated. Thus what falls in and out is extremely important. This is where Simon and Alec’s observations have helped us understand the threat to online publishers.

The rushed clauses were agreed without proper thought to what was caught up. Online publications are included, and the barriers are extremely low. Clause 29 outlines what is caught. You have to be businesses publishing news-related content which have multiple authors:

“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.

Exclusions then try to remove moderation from the meaning of ‘editorial control’. Then organizations are stripped out in Schedule 5:  broadcasters, special interest titles, academic journals, public bodies, charities, company news publications, book publishers.

The trouble with this approach is that the net is drawn much wider than Leveson intended – and then seeks to predict what we need to exclude. This is highly unsatisfactory. There is no proven need to force small publications into self-regulation.

Leveson identified a small group of irresponsible publishers, who are large and powerful, and whose financial need for an audience drives them into extraordinarily bad behaviour which they feel is a reasonable business risk, that needed better (self) regulation.

That is not the model of net businesses today, nor the large number of web publishers that could be swept into the category of businesses that face punitive measures.

We suggested (but did not agree as a group) three approaches as damage limitation:

1. Narrow the scope by only including websites attached to a print publication; which was Leveson’s original proposal
2. If this is not acceptable to the government, narrow the scope to larger businesses
3. If that is not acceptable to the government, then Hacked Off and others must rely on suggesting new categories for exclusion. This is highly unsatisfactory, as we mentioned

We also briefly discussed the idea of trying to limit the scope by readership, but felt that was unworkable.

The wider incentive for all organizations is that arbitration is cheaper than court action. This kind of incentive should be available for publishers, but that is not dependent on punishments.

All groups – including Hacked Off – agreed that the pace of discussion was inappropriate. The situation is made more complicated by the politics of the three parties, with Lib Dems and Labour siding together.

This is how legislative mistakes are made. Where ORG, Index and Big Brother Watch differ from them is over the use of punitive measures against non-participating publishers. Discussion was good however, although it remains to be seen how much the the three parties will be prepared to listen to either Hacked Off or free speech campaigners.

See also Alec Muffett’s blog recording the discussion. Please note the correction concerning A19.