Another legislative shambles as Britain steps towards state control of the press – and the web

I have been leafing through my copy of Roget’s Thesaurus in search of a synonym for “shambles” – I have used that word rather a lot recently in connection with the publication (and immediate amendment) of the Civil Procedure (Amendment) Act 2013, and it would be good to find a different word for the shabby political deal which resulted in agreement in the middle of Sunday night on state regulation of the press and, as now appears, of pretty well anyone who comments on current affairs. (But probably not – see articles linked to from my post scriptum last paragraph).

If I am not yet sure what it means, I am not alone. Its targets are those who:

(a) make broadcasts…

(b) publish, for circulation anywhere in England or Wales, a newspaper, magazine or periodical (or online content associated with a newspaper, magazine or periodical), a substantial proportion of which consists of news of, or opinion and discussion about, current affairs;

(c) in the course of a business, publish content on a website, a substantial proportion of which consists of news of, or opinion and discussion about, current affairs in England and Wales.

The upshot, whatever its proponents say, is a statute-backed regulator of press comment.  It resulted from a political deal in which David Cameron was effectively outflanked by Ed Miliband, whose prime driver seems to have been putting one over on Cameron rather than any conviction. Nick Clegg’s conduct reminded us of the cartoon which appeared at the time when the coalition was being stitched together – a door bearing a notice reading “Knock three times and ask for Nikki” as he offered himself to the highest bidder.

Back in July 2011, when the full effect of Rupert Murdoch’s corrosive influence on the press and public life tumbled out into the open, I warned that the pursuit of Murdoch and his papers could drive us towards US-style discovery. I said this:

It is suggested (implied, hinted, alleged, commonly supposed, any term you like short of known) that there has been much deliberate document destruction at Wapping; it has even been suggested that The News of the World was closed down in order to make this possible. There are enough people out there with prospective civil claims, quite apart from any other investigations, for this to be the time when the UK’s preservation principles are tested properly. We keep our fingers crossed, and hope that whatever emerges is limited to its facts, its scale and its culpability, and does not send us down the same extravagant, wasteful, disproportionate route as [has] preservation in US civil proceedings.

In other words, I was fearful that one extreme example of misconduct in respect of electronic disclosure would drive us to preservation Hell, setting a US-type standard which forced everyone to disclose more than necesary to see off the imputation that they had concealed or destroyed information.

We have yet to find out if I was right to be worried about this. Meanwhile, however, anti-Murdoch sentiment has given us something much worse – we have slipped into state regulation of “news of, or opinion and discussion about, current affairs in England and Wales”.  What gives this its special, chilling effect is that no-one, and certainly not those those who cobbled it all together, seems to know what this means. The Labour chief negotiator was apparently Harriet Harman who, as I said in a recent tweet, looks increasingly as if on day release from the Home for the Bewildered; the others do not seem to have been much more focussed.

I write blogs in the course of business and I also tweet. On the face of it, my subject-matter is a specialist subject which is not “current affairs” and which should fall to be protected or, at least, not be caught by, the new regime.  I am also a very small fish. I do, however, have a fair amount to say about “current affairs” (this blog post is an example) and it is arguable that what I write about the Jackson reforms is effectively about access to justice and therefore “current affairs”.  “Surely not?” you say. Well, it was almost certainly not the intention of those who threw together this farrago to catch people like me, but I would not rule out the possibility that someone will try it on. I see no exemption for “small fish”.

Downing Street has apparently said that political bloggers like Guido Fawkes would not be caught, but if he does not “in the course of a business, publish content on a website, a substantial proportion of which consists of news of, or opinion and discussion about, current affairs” then who does?  And what force does a pronouncement from Downing Street have anyway? Downing Street was also, apparently, unable to say whether Twitter is caught by the provisions of the Bill (and see below as to today’s version from the centre of government).

The confusion does not end there. My blogs and tweets are published on servers based in the US. Is that a publication “for circulation anywhere in England or Wales”? Does it make a difference if I am in Oxford or New York when I press the “Publish” button? If Twitter is not caught in principle, then why not?  It is “content on a website” and if “a substantial proportion” (whatever that may mean) of the content is about “current affairs” (whatever that may mean) then the choice of vehicle is presumably irrelevant in the absence of a specific exclusion.

We may see some closer definitions in due course. We may discover, as so often happens, that the whole thing is a damp squib, one of those things which excite the strange little creatures who infest Westminster but which has no practical effect on real-life. That is not the point; wartime apart, government has avoided press regulation since the end of the seventeenth century.  Freedom of the press has now been given away, without much thought, because some fairly squalid politicians wanted to show that they can control Rupert Murdoch and his kind, because others wanted to score points off opponents, and because yet others wanted to be friends with a certain kind of celebrity.

As I write, Twitter is getting excited about a different aspect – whether the provision for “exemplary damages” (a rare concept in English law) would be in breach of Article 10 of the European Convention of Human Rights. Some of the newspapers who attack the ECHR may find it suddenly useful to them.

What a shambles (that useful word again). The idea that something so fundamentally affecting our laws and rights should be knocked out in the middle of the night by someone as unprincipled as Nick Clegg and as dim as Harriet Harman is truly terrifying.

You may like to see Nick Cohen’s Spectator article It’s not a press regulator, it’s a web regulator, and Guido Fawkes’ Warning to Liberal and Progressive Bloggers. The former carries an update from this morning reporting that “Downing Street has dropped last night’s line about exemptions for “personal blogs” – whatever they may be – and has returned to the old line that it doesn’t have a clue what is going on”. The latter has today been supplemented by a helpful diagram The Simple Royal Charter Explained, showing the complaints and compliance machinery which might be needed for the new regime.

You don’t have to “boycott” or “opt out” of it all, just not sign up. Will anyone bother to invoke it, and who will be the targets? What line will the courts take? You just don’t know. What happens when Cameron, Miliband, Clegg and Harman have moved on and are replaced by rulers who are not merely incompetent, unprincipled or dim but something worse? That is what we have to worry about as our present rulers casually undo centuries of press freedom.

PS: Since publishing this, I have seen two articles which address the question whether those who write blogs (that is, those who do so on their own, not as one of several authors nor as publisher of the writing of others). One is Publish and be damned? Not bloggers by Andrew Sharpe; the other is Leveson: Bloggers and the Royal Charter by Paul Bernal. Neither feels much at risk personally for the reasons given in their articles, any more than I do – if I have managed thus far to avoid defaming anyone, stealing copyrighted material, uttering threats or breaching confidences, I will probably not start now. My concern is not with my personal position, but with the components in my heading: we should be concerned about any legislation born in last-minute, middle-of-the-night backroom deals; it is clear that even those who drafted it do not know what it covers; and we should be very fearful of the idea that Parliament should decide, however indirectly, who may publish what. Because that is where this shabby stitch-up is taking us.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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