Press regulation: Internet targeted by MPs for first time 'in chilling threat to free speech'
- Press watchdog to cover websites even if not connected to newspaper
- Foreign sites targeting UK audiences could face huge damages for abuses
- Lawyers say bloggers could also be affected but Government says no
- Full details on how internet is affected 'still to be confirmed', MPs say
- New press watchdog will issue £1m fines and demand front page apologies
- All three party leaders tried to claim victory after 20 months of wrangling
- Hacked Off campaigners were present at talks but newspapers were not
By James Chapman, James Slack, Martin Robinson and Matt Chorley
PUBLISHED: 03:55 EST, 19 March 2013 | UPDATED: 07:12 EST, 19 March 2013
Compromise: David Cameron told MPs the deal has protected the principle of a free Press from statutory regulation
The internet will be targeted for the first time as the 'chilling' Royal Charter attempts to curb free speech on the majority of websites and blogs, experts warned today.
The draft version of the document also suggests that foreign-based or owned websites such as Twitter, Huffington Post, Facebook, Holy Moly, the Guido Fawkes political site and even The New York Times will also be subject to the stifling controls if their articles are aimed at 'an audience in the UK'.
But as confusion mounted about exactly who would be covered, the government said it would leave it entirely up to the new regulator to decide whether major foreign sites should be made to sign up. It also claimed that 'small' blogging sites would be exempt.
Lawyers say large foreign organisations could, like newspapers, be pursued for 'exemplary' damages of up to £1million in defamation and other cases if they failed to abide by its rules - even if they have their business or servers in other countries like America and Ireland.
Even if they won a libel case in the High Court they could also be blocked from claiming back any legal costs under the proposed rules, meaning these huge financial penalties could be an incentive for them to sign up.
The document says: 'The new rules would cover
newspapers, magazines and websites containing "news-related material",
even if the websites are not connected to a printed paper or journal.
The Royal Charter also states that it will cover 'news-related material' including current affairs news and information, opinion and 'gossip about celebrities, other public figures and other persons in the news'.
Niri Shan, Head of Media Law at Taylor Wessing, said: 'The wording of the Royal Charter is unclear and if I was Facebook or Twitter or Google I would be concerned about the lack of clarity.
‘If they have a website and it includes news then it could capture them. I don't think the intention is to target bloggers, but currently it would.'
Abroad: Websites like Huffington Post, who are owned by a U.S. company would be subject to the new controls
In range: The popular Guido Fawkes blog would also be subject to the Charter, even though they have their servers in Ireland, experts say
Mr Shan, one of the UK's top libel
lawyers, said that media organisations based abroad have rarely ignored
British libel judgements as damages would only be secured against their
assets in the UK, like an office.
'If they did not have a British base they would still probably agree to pay damages and apologise because of the reputational damage it would cause them', he told MailOnline.
This is despite American businesses being able to use the First Amendment - the right to free speech - as a defence. It also is despite U.S. courts will not enforce a UK libel judgment.
It is understood that the same principle will apply, with UK courts left to decide if they have jurisdiction over the website and publication being sued.
UKIP leader Nigel Farage said: 'The fact that in the proposed regulation all things and all people are covered, is very disturbing.
'That is your blog, your forum, your twitter feed, your Facebook page, in fact almost the whole of contemporary discourse. The only place left to speak out will be in the pub… and they are closing at 10 a week due to a series of ill thought out government measures'.
Carla Buzasi, the editor-in-chief of The Huffington Post, which is run by U.S.-based company AOL, told the BBC: 'I can't imagine any politician has had this discussion because they have rushed this through so quickly.
'It does worry me to a certain extent. Someone said this is a carrot and stick approach. There doesn't seem to be too much of a carrot here,' she added.
Guidelines: The charter appears to say that anyone with a website who aims stories at a UK audience, like Holy Moly for example, should be 'nervous', experts say
However, despite the language in the draft Charter, there remained political confusion last night as Downing Street said the regulatory regime was not aimed at bloggers, and giants like Facebook and Twitter.
Adding to this lack of clarity, during an interview on Newsnight last night, Tory part co-chairman Grant Shapps said this was still not confirmed.
Asked by Jeremy Paxman about the inclusion of bloggers in the Charter he said: 'You’ll have to wait until the details are published next week. A little bit of patience and we’ll know the answer.'
The online editions of national and regional newspapers, such as the Guardian, Times, Mail and Sun, and the Dorset Echo, Somerset Standard and Yorkshire Post, would certainly be covered.
Online-only edited ‘press-like’ content providers, such as the Huffington Post and lifestyle magazines including Heat, Closer and Marie Claire would also be included.
Examples of those who would not fall under the potential remit of the new watchdog would be high profile Tweeters such as Stephen Fry, small publishers of special interest, hobby and trade titles, such as Waitrose magazine, Decanter, Retail Week, and not for profit community newspapers, such as Varsity, Leeds Student, parish magazines, scientific journals and periodicals like the British Medical Journal and the Modern Language Review.
Broadcasters’ websites, including the BBC and Sky News, would not be included even though they are not regulated by the broadcast regulator, Ofcom.
The Department for Culture, Media and Sport said there were three interlocking tests aimed at protecting 'small scale bloggers'. The tests are:
- Whether the publication is publishing in the course of business
- Whether it publishes news related material written by a range of authors
- Whether it is subject to editorial control
A spokesman said: 'Ultimately, it is a matter for the court to decide on the definition of a relevant publisher based on assessment of the facts, in accordance with the three interlocking tests.
'But if material isn't subject to editorial control shouldn't be caught.'
The spokesman added that the new system was aimed at tackling the 'British Press' and not the wider internet.
'It would be up to the self-regulator to devise their own rules. If they said "we will only accept publications that are based in the UK" that would be OK.
'In the Royal Charter and the exemplary damages that have been tabled there is nothing in there that says "this is only limited to UK publications". However there is nothing in there which says this should apply to overseas bodies.
'The regulator could choose to do that.'
But hinting at the almost-impossible task of a UK body policing everything on online, the spokesman added: 'If we have got a regulator that decides it wants to do everyone, it will be a really big job.'
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David Cameron, Ed Miliband and Nick Clegg yesterday unveiled a cross-party agreement on Press regulation after ‘shambolic’ all-night talks – only to see the deal immediately opposed by senior Tories and challenged by key elements of the newspaper industry.
All three party leaders tried to claim victory after 20 months of wrangling in the wake of the phone hacking scandal ended in an agreement by the Prime Minister to set up a media watchdog.
It would have the power to require front-page apologies and issue £1million fines, under a Royal Charter.
The campaign group Hacked Off, which represents celebrities and other victims of Press intrusion and had four representatives at cross-party talks, warmly welcomed the deal.
By contrast, there was no-one present at the early hours negotiations from the newspaper industry – which was not informed the talks were taking place.
And last night there were doubts over whether major newspaper publishers would agree to recognise the new watchdog, while some Tory MPs warned it constituted a serious threat to three centuries of Press freedom.
Four newspaper groups, the Daily Mail Group, News International, Northern and Shell, publishers of the Express, and the Telegraph Media Group, as well as the Newspaper Society and the Professional Publishers Association, said they had not been consulted over the final package and there were ‘deeply contentious issues’ to consider.
The Newspaper Society represents 1,100 regional papers.
London Mayor Boris Johnson, a former journalist, telephoned Mr Cameron yesterday and expressed ‘serious concern’ about a proposal to hit publishers who refuse to sign up to the new watchdog with ‘exemplary’ damages in libel cases.
‘The thing that is really exercising Boris is the idea that if we don’t join the club then you get whacked with massive fines,’ an ally said.
Former Tory Cabinet minister Peter Lilley went further, telling MPs the new regulator would act as an Orwellian ‘Ministry of Truth’ and urging media organisations to follow the example of The Spectator magazine, which has indicated it will refuse to recognise the body.
There was wider concern on the Tory benches at the chaotic nature of the discussions at which the deal was brokered.
Actor Hugh Grant lead the Hacked Off campaign for tougher press regulation
Mr Cameron pulled the plug on cross-party talks on Thursday, claiming Labour had produced fresh demands, apparently prepared in close co-operation with Hacked Off.
But over the weekend, facing a
Commons defeat as Labour and the Lib Dems threatened to join forces, the
Prime Minister reopened discussions with Mr Clegg.
negotiator, Cabinet Office minister Oliver Letwin, was then dispatched
to talks in Labour leader Ed Miliband’s office in the Commons on Sunday
Deal done: Culture Secretary Maria Miller claimed to have averted Labour's 'extreme version' of press law, but Labour deputy leader Harriet Harman claimed it was a deal which victims of phone hacking could be 'pleased' with
Four representatives of Hacked Off, which has campaigned for a draconian crackdown on media excesses, were present. A deal was finally reached at 2.30am yesterday.
Downing Street denied that Mr Cameron had been asleep, insisting he had been in touch with Mr Letwin regularly throughout the night, with their last contact at 3.20am.
Tory MPs expressed private amazement that the Government had allowed talks to take place in Mr Miliband’s office, or with Hacked Off present – but no-one from the media industry.
Deal: Miliband, Clegg and Cameron launched a new round of late-night negotiations on the issue
In the Commons later the Prime Minister said a Press law had been avoided – although he conceded there were ‘two very important but relatively small legislative changes’ needed.
They include a clause allowing more punitive libel damages to be awarded against publishers who refuse to recognise the watchdog. A separate clause was passed last night to ensure that the Royal Charter for the Press cannot be amended unless two-thirds of MPs and peers and all three main party leaders agree.
Mr Cameron made a number of
concessions to secure the deal, dropping an effective veto for the
industry over the regulator’s membership and agreeing that the regulator
should have the power to ‘direct’ newspapers on the prominence of
apologies and corrections.
Recommendation: Lord Justice Leveson called for a new Press regulator underpinned by statute
THE SUN'S 'UNRESERVED APOLOGY'
A Labour MP yesterday demanded that the editor of the Sun be sacked after the newspaper paid damages for accessing a stolen mobile phone.
Immigration spokesman Chris Bryant called for Dominic Mohan to quit after his reporters read messages from a mobile belonging to fellow Labour MP Siobhain McDonagh.
The Sun accepted there had been ‘a serious misuse of Miss McDonagh’s private information’ after her phone was taken from her car in South-West London in October 2010.
The Sun, which was not accused of stealing the phone, offered an unreserved apology and Miss McDonagh said she was paid £50,000 damages by News Corp.
After the hearing, Miss McDonagh said that she felt very uneasy after being told in 2012 that the paper had appeared to have ‘acquired her mobile phone’.
The regulator was also given the power to appoint the committee which writes the Editor’s Code, dismantling the one part of the existing system that is agreed to work well.
Mr Cameron told MPs: ‘This system will ensure upfront apologies, million-pound fines, a self-regulatory body with independence of appointments and funding, a robust standards code, an arbitration service that is free for victims and a speedy complaint handling mechanism. We can put all of this in place without the need for statutory regulation.’
Broadcaster Jonathan Dimbleby, chairman of the Index on Censorship, warned: ‘The two-thirds block on any changes to the Royal Charter could be abused in the future – not least when today’s emerging consensus shows that the parties can come together in both Houses to agree on press regulation.’
Mr Lilley said: ‘We are giving a body the right to decide what is fact and what is true. At worse, it is going to be establishing a sort of mini self-appointed Ministry of Truth.
‘We note that no similar powers are taken with respect to the BBC.’
Mr Lilley added: ‘I hope personally that when this is established quite a lot of media organisations will have the courage to follow the Spectator and stand aside from this body and remain free while hopefully adopting the highest standards in the way they publish and treat the public.’
Conservative MP for Clacton Douglas Carswell said: ‘Today is a milestone. Press now answer to quangocrats. Awful, awful, awful.
The fiendishly complex new system, by James Slack
The MPs have produced a Press regulatory regime of fiendish complexity, with layer upon layer of bureaucracy.
The process begins with the political parties themselves who, by devising the terms of yesterday’s Royal Charter, have interfered in the workings of the free Press for the first time in 300 years.
As we show in the flowchart, the first step to be taken under the Charter they have produced will be the establishment of a Recognition Appointments Panel (shaded red, on the bottom right-hand side).
Handpicked by ex-Whitehall mandarin Sir David Normington, the current Commissioner for Public Appointments, none of the four members can ever have been a newspaper editor.
In turn, as the arrow on the diagram shows, this panel will then appoint a Recognition Panel. This will contain up to eight members, none of whom, the politicians have decided, can be an editor, publisher or a member of the Commons or Lords.
Crucially, it will have sweeping powers to oversee the new independent Press regulator. The Recognition Panel will carry out regular checks on the regulator and will pass judgment on whether or not it is working. A negative verdict could take Westminster back to the drawing board.
This brings us to the regulator itself – which, as we show in the boxes coloured blue, is being established under a separate, hugely complicated process.
The first move in setting this up will be the establishment of a six-strong Foundation Group (bottom left) appointed by the newspaper industry and headed by ex-President of the Supreme Court Lord Phillips.
The group’s job is solely to set up a Regulatory Appointments Panel, which will contain five members – an independent chairman, two other independent members, an editor and one other industry member.
This Panel’s job is two-fold. First, it must pick the 12 members of the Main Board (coloured purple) of the new Press regulator, which will be independently chaired with six other independent members. The five industry members on the Board – a minority – cannot include serving editors.
The Panel will also establish the Complaints Committee, an off-shoot of the regulator containing the Main Board’s chairman, six independent members and five industry figures, none of whom can be a serving editor.
The Complaints Committee will decide if the new Code on journalistic conduct and ethics has been breached in individual cases – which could lead to the Main Board ordering the publication of prominent apologies and corrections.
Drawing up this new Code will require the establishment of yet another panel – the Code Committee – featuring five independent members, five journalists and five editors. It will be appointed by the Main Board, raising concerns that it will be acting as judge and jury on rules it has itself written. To this galaxy of committees will then be added two other new bodies, which are offshoots of the new regulator’s main board.
The first, the Standards and Compliance Arm, will have the power to investigate potentially systemic problems at a newspaper, such as phone hacking, and impose huge fines.
Meanwhile, the Arbitral Arm will set up a panel to adjudicate on civil complaints against newspapers, without the need to go to court. If a member of the public wins a case, the newspaper involved must pick up their costs.
But, if the person loses, newspapers will not be able to recover their own legal fees – potentially leaving regional newspapers, in particular, with crippling bills. There are also concerns about the system being swamped by compensation-seekers.
To get this Byzantine system of regulation off the ground will require countless meetings involving dozens of panel members and independent experts. The danger is that it will collapse under its own complexity.