Don’t clobber bloggers with Leveson

So I’ve written to my MP about the Leveson amendments to the Crime and Security Bill being debated in the House of Lords tomorrow.

I would urge any British readers to contact their MP and any members of the Lords who they feel able to write to. In case it helps, the text I sent to my MP is below:

Dear Mr Lord,

As well as being one of your constituents, I am also a pro-bono director of the Open Rights Group and a campaigner for digital rights.

Last weekend, I was both pleased and nervous to see that a cross-party consensus was coming to fruition on the implementation of Lord Leveson’s recommendations on the regulation of the press.

Unlike many, I am not too concerned that some regulation (be it underpinned by Royal Charter, statue or something else) will provide too great a hindrance to our free press, essential for any democracy. After all, Finland’s press regulation is underpinned by statue and they regularly top Reporters Without Borders’ ranking of press freedom around the world.

With any legislation introduced with haste, however, I am always cautious of the unintended consequences. This is particularly a concern when there is a cross-party consensus on a contentious issue, as it means the minutiæ don’t always receive the scrutiny they deserve.

The reason I am writing to you today is that, with Crime and Courts Bill in the House of Lords tomorrow, there are some *serious* concerns around unintended consequences. (The notes and amendments are online at http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0137/amend/pbc1371803m.pdf, in case you don’t have order papers to hand.)

Having discussed these regulations at length with many learnèd colleagues at the Open Rights Group and elsewhere, we have some major, serious concerns around conceptual flaws in the language and definitions in the text.

The intention of the legislation is to ensure that major media organisations who refuse to sign up for the regulatory body are penalised further if they behave immorally. The definitions in the text, however, could cause immense unforeseen harm to small Internet publishers who were never intended to be regulated by Lord Leveson.

To be clear, I am not advocating some form of lawless online “Wild West” where bloggers may defame people to their hearts’ content — our existing laws around defamation and invasions of privacy need better enforcement both online and off, as we’ve seen with the behaviour of some of our newspapers over the last few years.

To explain our concerns here, however, Apple could use these new provisions to chill disclosure of newsworthy product leaks such as http://www.macrumors.com/2011/12/26/2011-biggest-apple-product-leaks/. Companies like Monsanto could use these provisions to discourage public criticism of their strategies. Energy companies could use them to threaten and chill coverage of Climate Change or profiteering. Perhaps even whalers could use them to silence Greenpeace supporters.

I know that this is noone’s intention of these new regulations but, from reading amendment NC29, any website that carries adverts or that is run by someone who engages in consultancy work could be construed as being “in the course of a business”; many bloggers have guests, co-writers and translations that plausibly qualify as being “written by different authors”. It’s entirely feasible that a corporation could threaten litigation under these measures to chill the kinds of legitimate discourse essential to any healthy, functioning democracy. Furthermore, amendment NS5 offers no comfort in this regard.

These corporate litigants don’t have to be right and, as is so often the case, an issue doesn’t even need to go to court to have a chilling effect. If a complaint were to go to court, the “exemplary damages” provisions would mean that even a successful blogger could still be forced to bear the complainant’s costs. With such high stakes, most bloggers would just fold rather than risk such enormous penalties. As drafted, the amendments create new weapons for corporate litigants that worry me and others greatly. Even the Hacked Off campaign have accepted that the current drafting is poor: http://hackinginquiry.org/news/hacked-off-calls-for-all-non-profit-publishers-to-be-excluded-from-press-self-regulation-scheme/

Now Lord Lucas has tabled an amendment that seeks to limit the unintended damage in this area, inserting to the “exclusions from definition of ‘relevant publisher'” the words “a publisher who does not exceed the definition of a small or medium-sized enterprise as defined in Section 382 and 465 Companies Act 2006.” Such a change would, at a stroke, reduce the damage caused by the current wording, without neutering the key principles of hampering the less-moral members of our press.

Concerns have been raised about “gaming” this exclusion with the use of smaller subsidiaries, however the Companies Act 2006 again comes to our aid in this regard, as our statutory law already has a need to prevent such gaming, of course. More details on this can be found on the Open Rights Group’s blog, at http://www.openrightsgroup.org/blog/2013/gaming-can-be-avoided-bloggers-can-be-protected-from-the-crime-and-courts-bill

I would beseech you to do anything you can to help ensure that, in regulating the more immoral actions of some of our press, we do not inadvertently over-regulate non-profit bloggers — many of whom, like myself, are your constituents — by applying to them punitive damages even in the event of unsuccessful challenges to their legitimate speech.

Thank you for your time in reading this somewhat verbose letter. I look forward to reading back from you once you have a chance.

Yours sincerely,
Owen Blacker

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