WHO JOINS THE REGULATOR? A report on the impact of the Crime and Courts Act on publishers

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Contents

Executive summary

In 2013, the Crime and Courts Act was passed and a Royal Charter was granted to create a new system of press regulation.

As part of the Act, a new class of publisher was created known as a ‘relevant publisher’, to define the publications expected to join a recognised regulator.

English PEN is concerned that the lack of consultation and parliamentary debate surrounding the legislation and the Royal Charter has resulted in a confused, contradictory and arbitrary series of definitions and exemptions that will create uncertainty and chill freedom of expression.

Categories of publisher that the government itself intended to be exempt will, according to English PEN’s analysis, be expected to join the regulator.

This includes charities, not-for-profit community newspapers, political parties and specialist publications.

Lord Justice Leveson did not expect the new regulator to encompass all the media, although he believed that it should be open to small publishers to join. The failure to define the scope of the regulator clearly both during and after the Leveson Inquiry was a serious omission.

English PEN calls for an urgent review of the legislation.

Key findings:

  • Publishers expected to be exempt from regulation appear to fall into the category of ‘relevant publisher’, including campaigning organisations, political parties and think tanks
  • Terms in the legislation are poorly defined, leading to uncertainty for publishers and the risk of a chill on free speech
  • Lack of clarity in the legislation will result in anomalies within categories of publication expected to be excluded from regulation, including blogs and specialist publications
  • English PEN’s analysis of a range of publications, according to the terms in the legislation, reveals widespread inconsistency across the media landscape regarding which publications are exempt and which qualify for regulation

Introduction

In July 2011, the government appointed Lord Justice Leveson to conduct a public inquiry into the culture, ethics and practices of the press. This followed the public outcry as the scale and nature of phone hacking by at least one national newspaper emerged. The inquiry dealt with the press’s relationship with politicians, the police and the public, and made recommendations for reform, including for a new system of press regulation.

As part of his inquiry, Lord Justice Leveson invited and received evidence from a number of interested parties, including journalists, special interest groups, politicians and people who felt mistreated by the press. A number of core participants – consisting largely of victims of phone hacking, national newspaper groups and various government ministers – instructed legal representatives who were able to ask questions of witnesses along with counsel to the inquiry.

Lord Justice Leveson’s report was published in November 2012. The inquiry’s recommendations included: the creation of an independent self-regulatory body; the appointment of an independent board, with power to carry out investigations and impose sanctions; the establishment of a low-cost arbitration service for civil legal claims; a recognition body to certify a new regulator – a role that the report recommended be carried out by Ofcom.

Lord Justice Leveson’s proposal of statutory underpinning for the regulator was rejected by the prime minister, David Cameron, and by most of the press. In March 2013, the leaders of the three main political parties reached an agreement, supported by the campaign group Hacked Off, which resulted in the granting of a Royal Charter and the passing of associated legislation.

The Royal Charter established a process for formulating a recognition panel, whose role will be to give formal approval to a press regulator. The charter also set out the criteria which a press regulator must meet in order to be considered for approval. Associated legislation contained in the Crime and Courts Act[1] (‘the Act’) passed by the House of Commons set up a system of exemplary (i.e. punitive) damages and costs designed to offer an incentive to publishers to subscribe to an approved regulator, with the risk of financial penalties if they fail to join. The legislation also set out the categories of publishers, ‘relevant publishers’, who are expected to join the regulator, along with those who are exempt.

The legislation has significant implications for both free speech and access to justice. Publishers classed as ‘relevant publishers’ will have to choose between joining a recognised regulator or risking exposure to high court costs, even in cases that they win. This may make publishers who decide not to join a regulator more likely to self-censor in order to minimise their exposure to the risk of being sued, even if they believe that it would be lawful to publish.

English PEN’s analysis and research reveals that there is a worrying lack of clarity regarding the classification of relevant publisher.[2] Publishers whom the government had intended to be exempt in fact appear to fall into the category expected to subscribe. The definitions and exemptions are poorly defined, leading to uncertainty for publishers as to their status and resulting in the risk of a chill on free speech.

This confusion is the consequence of the government’s failure to consult on the Leveson Inquiry’s recommendations and to engage in full debate and scrutiny[3] when it introduced the Royal Charter and associated legislation, in breach of its own guidelines.[4] There were no impact assessments nor scrutiny by any parliamentary committee. MPs did not even have copies of the draft Royal Charter when it was first debated in the House of Commons.[5]

Supporters of the legislation have argued that such consultation and scrutiny were unnecessary because the issues had been fully considered in the public inquiry. Although the Leveson Inquiry took evidence, it did not consult on its findings or recommendations. Furthermore, the new system of press regulation differs from that recommended in the Leveson report.[6]

The Recognition Panel created under the Royal Charter was formally established on 3 November 2014. In a year’s time,[7] relevant publishers who are not members of a recognised regulator may be exposed to paying exemplary damages in publication proceedings if they lose. The same publishers will risk punitive costs awards against them when the first regulator gains recognition under the Royal Charter.[8]

The new class of ‘relevant publisher’

Lord Justice Leveson gave some guidance as to which publishers should submit themselves to regulation (i.e. who is to be a ‘relevant publisher’), stating that the new system of regulation ‘must involve all the major players in the industry, that is to say, all national newspaper publishers and their online activities, and as many regional and local newspaper publishers, and magazine publishers, as possible. This is not meant to be prescriptive at the very small end of the market: I would not necessarily expect very small publishers to join the body, though it should be open to them to do so on appropriate terms’.[9]

Section 41 of the Crime and Courts Act defines relevant publisher (with exceptions set out in Schedule 15, see Appendix 1) but makes no attempt to apply this to ‘major players’ alone. Furthermore, it relies on a number of terms that are themselves undefined and have no clear and obvious meaning. Interpretations of the legislation will therefore differ, producing uncertainty for publishers who may not know whether they will be classed as a relevant publisher or not.

English PEN is concerned about the impact of the new press regulation system on publishers. It believes that the definition of relevant publisher draws in more publishers than intended and that the lack of clarity will result in a chill on freedom of expression.

This report considers the definition of relevant publisher in detail, attempts to identify the types of publisher that will qualify as such, as well as gathering the views of different types of publisher on the issue.

According to the legislation, the test applied in considering whether a publication is relevant is as follows:

o Is the publication made in the course of a business, whether or not carried on with a view to a profit?

o Does the publication contain

  • news or information about current affairs,
  • opinion about matters relating to the news or current affairs, or
  • gossip about celebrities, other public figures or other persons in the news?

o Is the publication written by different authors?

o Is there a person (including the publisher) who has editorial responsibility for

  • the content of the material in the publication,
  • how the material is to be presented, and
  • the decision to publish it?

o If the publisher is the operator of a website, did it post the relevant material itself?

o Is the publisher exempt by virtue of schedule 15? Exempt publishers include broadcasters, public bodies, charities, micro businesses, and those who publish special interest titles, scientific and academic journals, company news publications, and books.

English PEN carried out an analysis of whether a number of publications might fall within the definition of relevant publisher, which is attached at Appendix 2. This, of course, cannot provide a definitive answer as to whether a publication will be a relevant publisher or not. It is our interpretation, based on our understanding of the criteria set out in the legislation, of whether publishers are likely to be relevant for the purposes of the Act, and so is purely illustrative of the range of publications likely to be affected.

National newspapers

All major national newspapers will be relevant publishers. They were the focus of the Leveson Inquiry and the intended target of the legislation. They clearly publish as businesses, are written by multiple authors, are subject to editorial control, contain news-related material and are not exempt by virtue of Schedule 15 of the Act. This includes daily newspapers such as The Times, the Daily Telegraph, the Guardian, the Financial Times, the Daily Mail, the Daily Mirror and the Sun, as well as their Sunday publications.

The definition of relevant publisher makes no distinction between a newspaper that is published in print, and one that is published online, and therefore encompasses these publications’ websites. There is some confusion, however, as to whether relevant publishers would be responsible – under the terms of the Act–for comments posted on their websites by others. Section 41(3) of the Act excludes publishers who host internet forums from the definition of relevant publisher, but it is not clear whether this section protects relevant publishers such as national newspapers, which invite comments on their otherwise regulated articles.

Regional and local newspapers

The definition of relevant publisher does not depend on a title having national coverage or being published daily, so local newspapers are produced by relevant publishers too.

Likewise the definition has no limit on size or circulation numbers, so very small local newspapers are affected by the legislation in the same way as large regional groups or national newspapers. Online newspapers – whether with significant or very small audiences – are similarly affected.

Community newspapers

Community newspapers published voluntarily may also be affected by the legislation, despite assurances by the former Secretary of State Maria Miller regarding not-for-profit publications.[10]

While it is self-evident that newspapers publish news-related material, it is unclear whether community newspapers publish in the course of a business (irrespective of whether they intend to make a profit). There is no definition of the term ‘in the course of a business’ in the Act. It is a phrase used elsewhere in legislation and similarly undefined (so far as the author and English PEN are aware). It is a term discussed in case law in relation, for example, to the sale of goods, when the Court of Appeal has said[11] the words should be taken ‘at their wide face value’. In this context, the phrase ‘at their wide face value’ would suggest that the publication should be more than a one-off (‘in the course of’) and not carried out as a purely personal act. If this wide reading of the phrase is applied in the case of the Crime and Courts Act, community newspapers would be relevant publications for the purposes of the Act. For community newspapers to be protected as the government intended,[12] the courts would have to interpret the term narrowly in this instance.

Community newspapers may be exempt if they are published by a charity. The Ambler, for example, a local newspaper that runs a website and produces a hard copy paper six times a year, will probably not be considered a relevant publisher. It is produced by one part-time worker and a team of volunteers, but is published by the Amble Development Trust, which is a registered charity[13] and seemingly exempt by virtue of s.6(1) of Schedule 15 to the Act.

Other community newspapers are published by small groups of volunteers, but not as part of a charity or other exempt organisation. The publisher of the ECHO, for instance, a not-for-profit community newspaper produced entirely by volunteers[14] and published as a monthly print edition, appears to be a relevant publisher for the purposes of the Act.

Current affairs and celebrity magazines

Current affairs magazines and those magazines discussing the lives of celebrities fall squarely within the definition of relevant publisher. They are published in the course of a business, they clearly publish news-related material, they are written by different people and subject to editorial control, and they are not exempt. How frequently a title is published is irrelevant: weekly, fortnightly, monthly, annual or ad hoc publications will be affected by the legislation.

Current affairs and celebrity magazines are in a similar position to national newspapers, in that they were targeted by both the Leveson Inquiry and the government as part of the scope of publisher that should be covered by the new press regulation regime.

Special interest magazines

Many special interest magazines publish news that is of interest to their readers. In many cases, their publishers meet all the criteria needed to become ‘relevant’. The publications are made in the course of a business, written by different people and subject to editorial control. To ascertain whether these publications are ‘relevant’, we must consider the schedule of exemptions.

Some magazines may be exempt by s.4 of Schedule 15, which excludes those who publish ‘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’. For example, BBC History Magazine[15] contains occasional news items relating to recent finds, such as the discovery of the body of King Richard III.

For other specialist magazines, however, news stories form a much more significant part of the publication. For these magazines, the ‘incidental’ exemptions cannot apply.

Decanter, a magazine about wine, was given as an example by Maria Miller as the type of publication which would not be relevant for the purposes of the Act.[16] Yet news-related material forms the main content of the publication. Its news is about vineyard sales and profits, new wines, environmental issues affecting the industry, and people concerned with making and selling wine. It may not be news that is interesting to everyone, but it is news. It seems that Decanter may be a relevant publisher despite Maria Miller’s assurances otherwise.[17]

Decanter magazine is certainly not alone. Many other specialist magazines that relate to particular trades or hobbies focus on news-related material that is not incidental to the main content of the title. To consider whether a magazine’s news-related material is ‘main content’ or ‘incidental’ to this, it is necessary to assess the definition of ‘news-related material’.

The definition of news-related material in the Act is ‘(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.’[18] This definition is incredibly broad. Any new event is news, but it might not be news to everyone. A baby being born is always news to one or more people. How many people it is of interest to depends entirely on personal perspectives and interests. Most births are news only for family and friends. Perhaps it is news to a wider community of neighbours and colleagues. Perhaps the birth took place on New Year’s Day and is therefore of symbolic interest to a town and appears in the local paper. Perhaps the parents once appeared on television and therefore the birth is worthy of an article in a magazine. Or, at the extreme end of the scale, perhaps the birth is a royal one and the subject of international news coverage. So when does a birth become news? Perhaps when a journalist deems it to be so.

So news relating to a particular pastime or hobby might be viewed as news to one person and not another. Football magazines for instance relate to a particular pastime, but contain news and opinion regarding football. Is this news-related material? In all likelihood, the answer will be yes. What if the sport is not football, but less popular, like angling? The answer should surely still be yes, but again Maria Miller identified the Angling Times[19] as a publication that is not relevant for the purposes of the Act. There seems to be no logical explanation for this. Just like Decanter, the news-related material appears to be the main content of the title, rather than being incidental, and the special interest title exemption does not appear to apply.

Special interest websites

Special interest websites are in the same position as special interest magazines, although the content of websites may differ, for example hosting relevant discussion forums. The same key issues concerning whether material is ‘news-related’ and ‘incidental’ to the main content of the title arise. The result is that the publishers of many websites, just like the publishers of many magazines, will be left unsure as to whether they are ‘relevant publishers’ or not.

Political parties

All major political parties publish websites containing news-related material, written by different people and subject to editorial control.

Are they published in the course of a business? Almost certainly. Political parties operate like many large businesses, employing people, producing annual reports and having their accounts audited. None of the exemptions listed in Schedule 15 can be said to apply. Political parties are not public bodies or charities. The publication may be said to relate to a particular pastime, hobby, trade, business, industry or profession, but the news-related material they publish cannot be described as only being published on an incidental basis to the main content of the title. The news-related content on political parties’ websites is significant. Websites published by political parties therefore appear to be relevant for the purposes of the Act.

Local political parties also send out newsletters, and some have their own websites. These contain news-related material, are sometimes written by different people and are usually subject to editorial control. Are they published in the course of a business? Again, this may depend on how widely the courts interpret this term. Many local political organisations, such as the Welwyn & Hatfield Conservative Association Limited, are registered companies, which suggests that they do operate as a business.

As regards exemptions, the same position applies to local parties as it does to national parties. Their publications may relate to a particular trade, hobby, pastime, industry or profession, but the news content of newsletters or websites is not included incidentally, it is a significant and probably essential component of the publication.

It appears to have been the government’s intention to exclude at least local political parties’ newsletters. Maria Miller gave assurances to Conservative MP Jacob Rees-Mogg concerning their status[20] and yet for this to be borne out in practice, such publishers will have to rely on the court to make very generous interpretations of either the term ‘in the course of a business’ or the word ‘incidental’.

Charities, campaign groups and think tanks

Campaign groups regularly publish news-related material both in print and online. A visit to Amnesty International’s website at the time of writing told readers about a ‘Spiral of Abuses’ in Thailand and ‘Evidence of War Crimes’ in Ukraine.[21] This type of information, along with material published by campaign groups such as Global Witness, Index on Censorship and Which? is clearly news-related for the purposes of the Act. It is written by multiple authors and edited and, although these organisations operate on a not-for-profit basis, their publications are produced ‘in the course of a business’. Furthermore, many do not appear to be exempt by virtue of Schedule 15 which exempts a ‘public body or charity that publishes news-related material in connection with the carrying out of its functions’[22] because of the structure of the organisations.

Index on Censorship, for example, which aims to promote freedom of expression around the globe, and publishes a magazine containing news-related material, has both a charitable and non-charitable arm. The magazine is commissioned by its non-charitable arm, and so, for the purposes of the Act, Index would appear to be a relevant publisher.

Other apparently charitable organisations have similarly complex corporate structures. Amnesty International, for example, consists of both an International Secretariat and national branches, including Amnesty International UK. Both these organisations are made up of registered charities and registered companies.[23]

The government made clear, in the limited debate in Parliament, that it intended charities to be exempt and that it would be unlikely for campaigning organisations to be expected to join a recognised regulator. Lord McNally said: ‘My noble friend would exclude non-charitable campaigning organisations that publish material that is incidental to the organisation’s aims and objectives. The government’s definition of a relevant publisher already excludes charitable organisations, which will represent the vast majority of campaigning organisations. A “non-charitable campaigning organisation” would have, first, to be run as a business and, secondly, to be publishing news, opinion or information about current affairs before it would be caught by the government’s current proposed definition.’[24]

Think tanks publish similar material to campaigning organisations, such as research, briefings and policy papers that may be news-related material. There is no exemption for such organisations and they will therefore be relevant publishers for the purposes of the Act.

Blogs

Small multi-author blogs are not relevant for the purposes of the Act.[25] The term ‘blog’ is not defined in the Act (deliberately so[26] though this seems strange given that the apparently self-explanatory term ‘multi-author’ is). The term is to be given its ordinary meaning it seems. Definitions differ, from a ‘regularly updated website or web page, typically one run by an individual or small group, that is written in an informal or conversational style’[27] to ‘a discussion or informational site published on the World Wide Web and consisting of discrete entries (“posts”) typically displayed in reverse chronological order’.[28] Lord McNally described a blog as being primarily for ‘the expression of opinions, comments or personal experiences by an individual or group of individuals’.[29] For the government this appears to be what sets blogs apart from online newspapers, and therefore excludes them (so long as they remain micro-businesses) from the class of relevant publisher. Yet the definition of news-related material – the central issue of concern to relevant publishers – includes the publication of ‘opinion about matters relating to the news or current affairs’.[30] The government’s logic in excluding bloggers but not other small, news-related publications is therefore baffling.

To qualify for this exemption, the multi-author blogs must also be a micro-business, having fewer than ten employees and a turnover of less than £2,000,000.[31] This will mean that small groups of individuals that produce blogs concerning local, national or international news are excluded from the definition of a relevant publisher.

Blogs such as www.blogpreston.co.uk may not be considered ‘relevant’ for the purposes of the Act. It is a website that reports local news, with posts listed in reverse chronological order and several local contributors (but not employees). It contains some opinion, but primarily reports news in a neutral way. Yet it is clearly styled as a blog.

The lack of clarity surrounding the definition of blogs, and whether they are exempt from being relevant publications, can be seen if Blogpreston is compared to the Brixton Blog, which styles itself as ‘Brixton’s online newspaper’ and is organised more like a traditional local paper’s website, with sections on news, what’s on, features and sport. It therefore appears as if the Brixton Blog would not qualify for the same exemption as Blogpreston. Should the two websites be treated differently on the basis of how the material is presented?

A further anomaly may arise because the publishers of the Brixton Blog also produce the Brixton Bugle, a print edition that contains content that also appears online. Even if the online content is exempt because it is deemed to be a blog, the print edition of the paper will be a relevant publication.

The exclusion of small, multi-author blogs from the definition of relevant publisher may therefore not protect small community-based, online papers such the Brixton Blog or onthewight.com.

It does however mean that other influential blogs are not classed as relevant publishers. Order-order.com, the influential website styled as Guido Fawkes’ blog of plots, rumours and conspiracy, appears to be excluded from the definition of relevant publisher, as it is a micro business which publishes news-related material in a multi-author blog. This is despite the website being visited by between 50,000 and 100,000 daily, and as many as 100,000 readers per hour when big political stories break.[32]

Broadcasters

The exemptions for broadcasters (s.1-3, schedule 15) appear to be based on the fact that they are regulated by Ofcom. Yet whilst this is true in relation to broadcasting, it is not in relation to the broadcasters’ websites. The websites of the BBC and Sky News will not be classed as relevant publishers, whilst those belonging to national newspapers such as the Guardian and The Times will be. Likewise, MTV’s website is exempt from being a relevant publication, but NME’s website, which covers similar subject matter (music, television, celebrity gossip), is not exempt. A further example is National Geographic, which covers several current affairs issues and seems not to qualify as a relevant publisher because of its related television channel, whereas other current affairs magazines do.

Publishers’ views on press regulation

English PEN contacted a number of publishers – of varying types – to gather their views on press regulation.

The traditional news publishers we contacted – those with large publishing groups or national coverage – were aware of the issues concerning press regulation and had considered the matters at stake. Some smaller local news sites had also considered the issues, although they were wary of the costs implications of joining a regulator. Other publishers – such as those who deliver news but not in traditional formats – were aware of the issues but uncertain of their positions. And others – including a very small, local newspaper – considered that press regulation affected others, but not them.

A brief description of the publications we heard from, along with their comments, is set out below.

Large regional newspaper – London Evening Standard

The London Evening Standard, together with sister newspapers the Independent and the i, is one of the major newspapers that has not signed up to the Independent Press Standards Organisation (IPSO). Will Gore, the paper’s deputy managing editor, believes that the legislation concerning press regulation is unclear, and that this encourages people to wait and see how the law will develop. He believes that there are a number of uncertainties created by the legislation, and that there is an anomaly between the websites operated by the press, which will fall within a recognised regulator’s remit, and websites that are operated by broadcasters, which are not regulated by Ofcom.

Small, local, printed newspaper ̶ anonymous

The newspaper is published by a small local printing business. It is written by several authors and edited, and contains local news. There are no exemptions for newspapers of any size.

The publisher regards press regulation as ‘not for tiny fish’ like this publication. He had not considered whether he might be a relevant publisher nor the consequences. If the publication was relevant, he would have to think about whether it was ‘worth the candle’ to carry on. He did not see issues of press regulation applying to this publication and therefore probably would not join a regulator.

Community news site ̶ Cricklade Bugle

Styled as a community and news site for the local area, the Cricklade Bugle urges readers to think of it as Cricklade’s local paper. It is written by its editor, Peter Hansen, but he is seeking a team to help. At the moment therefore, the site would not be a relevant publication (as it is not written by more than one person), but it may become so.

The editor is aware of issues of press regulation and says all contributors must comply with the PCC editors’ code. Although not a journalist by trade, the editor has said he tries to run the site as professionally as he can, and uses common sense to handle everything. He believes that press regulation ought to apply to his small site as much as the large newspapers, but is concerned about the cost of joining the regulator.

Local online paper ̶ The Lincolnite

An online newspaper for the city of Lincoln, the Lincolnite has a small staff and a number of other local contributors. It articles are listed in reverse chronological order, almost like a blog, but are also sorted into categories much like more traditional newspaper sites. Its editor, Daniel Ionescu, believes that the Stonebow Media Ltd (which publishes the Lincolnite) will be a relevant publisher. He has said that the Stonebow would gladly join a recognised regulator, ‘as long as there are not ridiculous fees for businesses our size’.

Current affairs magazine ̶ Private Eye

A satirical current affairs magazine, Private Eye’s publishers Pressdram Ltd fall squarely within the definition of a relevant publisher. Pressdram is acutely aware of the relevant legislation and the consequences of not joining a recognised regulator once one exists, saying that the provisions in the Crime and Courts Act 2013 are ‘likely to result in unnecessary expenditure of time and costs, if not outright injustice’. Ian Hislop, Private Eye’s editor, has said that Pressdram ‘will have to have [these provisions] in mind when we consider whether to join an approved regulator (when there is one) and, if we decide not to do so, our reasons for that decision’.

Special interest magazine – Digital Spy

An internet-based magazine, Digital Spy says its site contains news and discussion about entertainment of every kind. As part of Hearst Magazines UK, the website is part of a large business that publishes a range of news-related publications, including Cosmopolitan magazine. This business did not tell us its views on the issues of regulation, but did say it had chosen to join IPSO.

Special interest website ̶ Mumsnet

This is a popular parenting website. It hosts forums, provides advice and information on a whole host of subjects that may be relevant to parents. It also contains a significant number of articles about its campaigns that contain news and opinion about current affairs. This appears to be news-related material. This would draw the website into the definition of a relevant publisher. Questions arise as to whether Mumsnet could be described as a special interest title (can parenting be called a particular ‘pastime’ for instance?) and whether the ‘incidental’ exemption may apply to its contents, though Justine Roberts (CEO of Mumsnet) does not believe it meets these criteria. Her view is that Mumsnet might be a relevant publisher, because it sometimes commissions guest blogs which may be news related, but the position is unclear. She says: ‘The position with the proposed regulator seems to have become so confused and sclerotic that at present we are just watching and waiting.’

Party political website – Liberal Youth

This is the website of the youth branch of the Liberal Democrats. Whether it is published in the course of business is arguable either way and will depend on the courts’ interpretation of the term. It is written by different people, edited and contains news-related material in respect of both its news page, which gives updates relating to the organisation, and its campaigns page, which contains news-related material of more general interest. These sections appear to be an integral part of the publication. Whether or not the publication is likely to be relevant for the purposes of the Act is uncertain. When English PEN contacted the editor of Liberal Youth she said she had not considered the criteria for relevant publishers and did not know how it would affect her.

Campaign Organisation ̶ Index on Censorship

An international campaign organisation that promotes and defends the right to freedom of expression, Index produces a quarterly magazine and publishes a website. The magazine contains in-depth articles about issues of interest to Index, and is published by Sage under Index’s non-charitable arm Writers and Scholars International Limited. Index does have a charitable arm, but it is not responsible for publication of the magazine. Index operates as a not-for-profit business. Its publications are written by more than one person and are subject to editorial control. It appears as if the exemption for charities does not apply to Index and therefore it will be a relevant publisher.

Jodie Ginsberg, Index’s CEO, has said that Index believes it is a relevant publisher and is taking detailed advice on the issue. Index will not join a recognised regulator, as it is opposed to the Royal Charter that establishes the recognition panel. It would however consider changing its business model to avoid becoming a relevant publisher.

Blog ̶ Guido Fawkes

This political blog, published at order-order.com, is produced by a small number of people. It clearly meets all the criteria for a relevant publication, but is excluded by virtue of the micro-business provisions. Paul Staines, editor of the blog, has said that the publishers of the blog would not join a recognised regulator in any event, because ‘We don’t believe in licensed journalism.’

Conclusion

In defining the term ‘relevant publisher’, the government, according to Lord McNally, intended to capture the ‘main elements of the press, as well as …“press-like” activity online’.[33] Unsurprisingly, therefore, national and regional newspapers and celebrity magazines are, for the most part, relevant publications. More surprisingly, publications such as those produced by campaigning organisations, political parties, hyperlocal websites, community newspapers, think tanks and some specialist publications, for which news reporting is integral to the business model of the publication, also fall into this category.

Publishers who will not be ‘relevant’ for the purposes of the Act include publications such as parish magazines containing no news-related material, purely specialist magazines containing only incidental news-related material, blogs meeting certain conditions and personal political blogs. Charities, including student unions if they are registered as such, will be excluded from the definition of relevant publisher irrespective of the type of publication.

These are conclusions reached on the basis of an analysis of the definition of ‘relevant publisher’ contained in the Act. It is a definition that is far from clear – with particular issues of interpretation arising over the terms ‘in the course of a business’, ‘incidental’, ‘blog’ and ‘news-related material’.

The uncertainty surrounding these definitions is compounded by the government’s apparent intention to exclude community papers, political parties and a broad range of special interest magazines from the definition, yet there is nothing in the legislation to guarantee that this will be the case.

Campaigning organisations with apparent charitable purposes may fall within the definition of relevant publisher, yet they would not be widely considered to form part of the ‘main element’ of the press. Very small community-run newspapers such as the ECHO are not exempt, yet very influential blogs such as Guido Fawkes are. There are particular problems with exemptions for broadcasters, charities, micro-businesses and ‘incidental’ exemptions.

In summary, the research into the new status of relevant publisher shows that the definition depends very much on who you are and how you publish as much as what you publish. It demonstrates that the number of publications that the definition of relevant publisher covers is significant. The exemptions are arbitrary, excluding publishers that might be expected to be included in the definition of ‘relevant publisher’ and vice versa.

Awareness of the issues of press regulation was generally good amongst the small number of publishers with whom we discussed the issues. Some, such as the large publishing group Hearst Magazines, have chosen to join IPSO like many national newspapers. Other well established publications such as Private Eye and the London Evening Standard are choosing to wait and see what the new legislation brings. Smaller organisations were concerned about the costs of regulation, and those who were not mainstream news publishers spoke about uncertainty.

English PEN believes that the lack of consultation, scrutiny and debate surrounding the creation of a new system of press regulation pose a risk to freedom of expression. Our analysis reveals a dangerous level of uncertainty regarding the definition of relevant publisher that will have a direct impact on small publishers and points to confusion at the heart of government itself regarding its intentions. A viable system of press regulation cannot and should not be founded on such a clearly unsatisfactory basis.

Appendix 1
Relevant extracts from the Crime and Courts Act 2013

The relevant sections of the Crime and Courts Act 2013 are ss.34-42 and are available on Legislation.gov.uk at this address:

http://www.legislation.gov.uk/ukpga/2013/22/part/2/crossheading/publishers-of-newsrelated-material-damages-and-costs

The PDF version of this report reproduces the relevant sections in full.

Appendix 2

Which publications are ‘relevant’ for the purposes of the Crime and Courts Act 2013?

Type of publication Publication Relevant publisher?
Broadcaster’s website BBC News Website No – broadcaster exemption
Broadcaster’s website Sky News Website No – broadcaster exemption
Broadcaster’s website ITV Website No – broadcaster exemption
Broadcaster’s website Channel 4 News No – broadcaster exemption
Broadcaster’s website MTV website No – broadcaster exemption
Campaign organisation Reporters Without Borders Yes
Campaign Organisation Which? Yes
Campaign organisation Index on Censorship Yes – published by company arm
Campaign organisation People & Planet No – charity exemption
Campaign organisation Global Witness Yes
Campaign organisation Amnesty Maybe – has complex corporate structure
Campaign organisation HRW Maybe – depends on status ofoverseas charities
Celebrity & magazine Marie Claire Yes
Celebrity magazine OK Yes
Celebrity magazine Hello Yes
Celebrity magazine Heat World Yes
Celebrity magazine Now Yes
Celebrity magazine Reveal Yes
Children’s newspaper First News Yes
Community online newspaper Cricklade Bugle No – written by only one author
Community newspaper Ambler No – charity exemption
Community newspaper ECHO Yes
Computing magazine PC Pro Yes
County Council Website Herts CC No – public body exemption
Current affairs blog Order-Order (Guido-Fawkes blog) No – micro business exemption
Current affairs blog Political scrapbook Probably not – micro businessexemption
Current affairs magazine New Internationalist Yes
Current affairs magazine The Spectator Yes
Current affairs magazine The Week Yes
Current affairs magazine Standpoint Yes
Current affairs magazine The Economist Yes
Current affairs magazine Monocle Yes
Current affairs magazine The Oldie Yes
Current affairs magazine New African Yes
Current affairs magazine Foreign Affairs Yes
Current affairs magazine Private Eye Yes
Current affairs website The Broker Online Yes
Education magazine Times Higher Education Yes
General lifestyle magazine Wired.com Yes
Global environment/travel magazine National Geographic No – broadcaster exemption
History Magazine BBC History Magazine No – special interest/incidentalexemption
International Catholic Magazine The Tablet Yes -special interest but newsnot incidental
Local blog Blog Preston.co.uk No – micro business exemption
Music & entertainment website Digitalspy.co.uk Yes
Music & politics magazine Rolling Stone Yes
Music, TV & Celebritymagazine NME Yes
National newspaper Daily Mail Yes
National newspaper Daily Telegraph Yes
National newspaper Mirror Yes
National newspaper The Guardian Yes
National newspaper The Times Yes
National newspaper The Sun Yes
National newspaper The Independent Yes
National newspaper Express Yes
National newspaper Metro Yes
Nursing magazine BJN No – special interest/incidental exemption
Nursing magazine Nursing Times No – special interest/ incidental exemption
Online newspaper Huffington Post Yes
Online newspaper www.positivenews.org.uk Yes
Parenting website Mumsnet Yes
Personal (local political) blog Bignews Margate No – written by only one author
Political blog Conservative Home Maybe – depends on turnover
Political party Labour Yes
Political party Lib Dems Yes
Political party Conservative Yes
Political party – youth wing Liberal Youth Maybe – if in the course ofbusiness
Politics magazine & website total politics Yes
Regional news website Brixton blog Yes – despite its name, it is not a blog
Regional news website On the Wight Yes
Regional news website The Lincolnite Yes
Regional newspaper Isle of Wight County Press Yes
Regional newspaper Manchester Evening News Yes
Regional newspaper The Scotsman Yes
Regional newspaper London Evening Standard Yes
Regional newspaper Portsmouth News Yes
Regional newspaper Lincolnshire Echo Yes
Regional newspaper Evening Standard Yes
Regional/Local newspaper The Clarion(Forest of Dean & Wye Valley) Yes
Regional/Local newspaper Lancashire Evening Post Yes
Science magazine New Scientist Yes
Student newspaper The Boar (Warwick University) No – charity exemption
Student newspaper Wessex Scene(Southampton University) No – charity exemption
Think Tank Institute of Economic Affairs Yes
Think Tank Fabian Society Yes
Think Tank/Pressure Group Compass Yes
Think Tank/Pressure Group The Freedom Association Yes

About the Author

Helen Anthony is a qualified, non-practising solicitor who works as a freelance policy consultant. Helen has advised English PEN on issues relating to the Leveson Inquiry, free speech and access to justice since 2012. She is the author of English PEN and Index on Censorship’s report The Alternative Libel Project, published in March 2012, funded by the Nuffield Foundation, which made recommendations to changes in procedural and costs rules to reduce the cost of libel cases in England and Wales. Helen has worked as a legal policy officer for the Association of Personal Injury Lawyers, and more recently carried out policy development work for a range of organisations concerned with the issue of free speech.

About English PEN

English PEN supports the freedom to read and the freedom to write in the UK and internationally, through advocacy, public events, outreach and the promotion of literature in translation. It is a registered charity.


Footnotes

1. See Appendix 1 for relevant extracts of the Crime and Courts Act 2013

2. English PEN’s response to the Leveson Inquiry’s recommendations 6 December 2012 http://www.englishpen.org/campaigns/what-about-the-bloggers/

See also Helen Anthony http://www.theguardian.com/media/media-blog/2013/oct/27/press-regulation-royal-charter-legislation

3. The government invited views on the narrow issue of how those who operate small-scale blogs could be excluded from the definition of relevant publisher. There was also a very low-key consultation on the Royal Charter, though it could be argued that this was merely to pay lip service to the requirement to do so, since no formal questions were asked and no consultation response ever published by the Government. There was no consultation on the complete package of proposals for press regulation, and there was no scrutiny at all by members of Parliament in committee as the bill passed through Parliament.

4. See the government’s ‘Consultation principles: guidelines’ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/255180/Consultation-Principles-Oct-2013.pdf

5. ‘On a point of order, Mr Speaker. I am sorry to do this, but it is all very well to talk about the publication of the draft charter, but it is not available in the Vote Office or in the Library. The Clerk has a copy of it, but hon. Members do not have copies of it. It is an odd way of doing business for us to debate something that we have never had an opportunity to see.’ Chris Bryant MP, in the House of Commons, 18th March 2013, Column 631, Hansard

6. Two of the most significant differences are

  1. the creation of a new recognition body by Royal Charter as opposed to amending Ofcom’s responsibilities to include formally recognising press regulators which meet Leveson’s criteria; and
  2. under the costs rules (s.40(3) Crime and Courts Act) it is the default position that a relevant publisher who is a defendant in publication proceedings, and is not a member of a recognised regulator must pay the claimant’s costs of the case. In contrast, Leveson recommended that the availability of an arbitral system through a recognised regulator should be one factor the court takes in to account when considering awards of costs (recommendation 73).

7. s.61(7) Crime and Courts Act 2013

8. The recognition panel expects to be in a position to recognise regulators ‘by late 2015, or not long afterwards’ Para 28, from David Wolfe’s presentation to the ‘Protecting the Media Conference’ 23rd September 2014, http://pressrecognitionpanel.org.uk/word/

9. Leveson Report, Volume IV, Part K, Chapter 7, Para 4.11

10. Rt Hon Maria Miller MP in the House of Commons, 18th March 2013, Column 704, Hansard

11.Stephenson & Anor v Rogers [1998] EWCA Civ 1931 (8 December 1998)

12. Rt Hon Maria Miller MP in the House of Commons, 18th March 2013, Column 704, Hansard

13. http://www.theambler.co.uk/about-us/ and http://www.ambledevelopmenttrust.org.uk/

14. http://www.echonews.org.uk/

15. Despite its name, BBC History Magazine is not published by the BBC, but by Immediate Media Company Limited under licence to the BBC.

16. Rt Hon Maria Miller MP in the House of Commons, 18th March 2013, Column 704, Hansard

17. Decanter is published by Time Inc. This company publishes a number of titles, including those clearly containing news-related material, but according to s.41(6) of the Act, a distinction should be drawn between a publisher’s different publications. Hence it appears that the content of Decanter itself, and not the other output of the publisher, ought to be considered when looking at the nature of the material.

18. s.42(7). Subsection (a) could be interpreted to mean ‘news about current affairs or information about current affairs’ or ‘news, or information about current affairs’. The construction of subsection (b) suggests it is the latter as it sets out news and current affairs as being clearly different things. Does it matter? The probable answer is no. If the former interpretation of section (a) is correct, it may limit the scope of news-related material to that related to ‘current affairs’. This is not defined in the Act, but its meaning according to oxforddictionaries.com is ‘Events of political or social interest and importance happening in the world at the present time’. However, even if this definition appears to slightly limit the scope of news-related material to political and significant social events, section (b) brings any opinion on any type of ‘news’ into the definition. Very few publications contain news without also containing opinion on it. The debate about the construction of section (a) may therefore prove to be of little practical consequence.

19. Rt Hon Maria Miller MP in the House of Commons, 18 March 2013, Column 704, Hansard

20. Rt Hon Maria Miller MP in the House of Commons, 18th March 2013, Column 704, Hansard

21.www.amnesty.org on 11/9/2014

22. Crime and Courts Act 2013, Schedule 15, s.6(1)

23.http://www.amnesty.org.uk/sites/default/files/amnesty_international_combined_financial_statements_2013.pdf

24. Lord McNally in the House of Lords, Column 873, 25 March 2013, Hansard

25. Crime and Courts Act, Schedule 15, s.8

26. Lord McNally in the House of Lords, Column 1390, 23rd April 2013, Hansard

27. http://www.oxforddictionaries.com/definition/english/blog

28. http://en.wikipedia.org/wiki/Blog

29. Lord McNally in the House of Lords, Column 1390, 23rd April 2013, Hansard

30. Crime and Courts Act 2013, s.42(7)(b)

31. Crime and Courts Act 2013, Schedule 15, s.8 (4)

32. Leveson Report, Volume 1, Part C, Chapter 3, Para 4.4

33. Lord McNally in the House of Lords, 25 March 2013, Column 849, Hansard

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