Bloggers set to join growing list of exemptions to press law which Lord Black condemns as 'almost certainly illegal'

A new Government amendment has been proposed which would exclude "small-scale" bloggers from the threat of exemplary damages if they refuse to join a new Royal Charter-backed press regulator.

Justice minister Lord McNally urged the House of Lords to accept the change to the Leveson proposals in the Crime and Courts Bill in the light of concerns that bloggers would get caught up in laws intended to apply to larger organisations.

MPs last week agreed additions to the Bill that would allow for newspapers which did not join the new regulator to face exemplary damages in defamation cases.

Lord McNally said the new clauses approved by MPs following a late-night cross-party deal set out a series of tests to clarify which publishers were covered by the legislation.

But he said there were "concerns" about whether small-scale bloggers could be inadvertently covered by the new regime and said further clarification might be needed.

The amendment currently states that any publisher of "news-related material" written by different authors and subject to editorial control would be covered by the exemplary damages clause.

Culture Secretary Maria Miller and her officials would deal with submissions on the issue over the recess, which ends for MPs on April 15, and decide what further action was needed, he said.

"When this is next considered by the Commons, the Government may come forward with an alternative amendment or invite the Commons not to agree this particular amendment," he said.

The amendment, in the name of Home Office minister Lord Taylor of Holbeach, would add "a person who publishes a small-scale blog" to the list of people and organisations explicitly exempted from the new regulatory regime.

Those already in the proposed exclusion list from the threat of exemplary damages and increased civil case legal costs already include the following:

  • The BBC Broadcasting Corporation.
  • Any licensed broadcaster
  • Any title which relates to a particular "pastime, hobby, trade, business, industry or profession" and which "only contains news-related material on an incidental basis that is relevant to the main content of the title".
  • "A person who publishes a scientific or academic journal that only contains news-related material on an incidental basis that is relevant to the scientific or academic content."
  • "A public body or charity that publishes news-related material in connection with the carrying out of its functions." (So council run newspapers)
  • Company news publications 
  • Book publishers

Introducing the press regulation proposals to the Upper House, Lord McNally said Lord Justice Leveson in his report distinguished between press-like online publishers such as the Huffington Post and individual bloggers.

He said: "Clearly the online version of the national press or their regional counterparts, or indeed an online press-like news site, carry with them very different public expectations when compared with a small-scale blog or for that matter a tweet.

"Our definition of 'relevant publisher' seeks to make that differentiation and it does so by employing an interlocking series of tests, all of which must be met before the threshold of the definition is reached.

"This is first whether the publication publishes news-related material, second whether the publication is written by different authors, third whether it is to any extent subject to editorial control and fourth whether it is published in the course of a business.

"The definition is therefore aimed to protect small-scale bloggers while capturing more sophisticated press-like online material that Leveson described."

He said the changes to the Bill, which have been widely criticised in some parts of the media, struck "the right balance" between "tough self-regulation" and freedom of the press.

Liberal Democrat Baroness Bonham-Carter of Yarnbury hailed the Government's proposals as protecting the freedom of the press and the rights of individuals.

"We need a raucous, unfettered press, but one that does not prey on the vulnerable and innocent," she said. "I believe we have achieved this balance through the proposed royal charter and we have achieved it with all party consensus."

But Tory Lord Black of Brentwood, executive director of the Telegraph Media Group, launched a scathing attack on the plans, insisting they were "wrong in principle and fundamentally flawed".

Lord Black said the legislation, which was being pushed through at "breakneck speed," was a "constitutional nightmare" and would bring "discredit" on Parliament.

Urging ministers to think again, he said: "Everything about these clauses is wrong. They were cobbled together late at night over a pizza with no thought of the legal and constitutional issues involved.

"They exhibit no understanding of the digital world … are alien to decades of English law and almost certainly illegal under European law.

"They would provide a serious blow to investigative journalism and disproportionately impact on smaller publishers and in particular the regional press."

Labour's Baroness Kennedy of The Shaws, a leading human rights QC, accused opponents of the plans of "hyperventilating".

"It really does beggar belief that Lord Black, who sat on the Press Complaints Commission for years and basically was hugger mugger with those who were not very interested in what was happening to the victims of press excesses, to hear him now speak about the chilling effects of this regulatory framework," she said.

She said that exemplary damages, which Lord Black had warned were probably incompatible with the European Convention on Human Rights, would only be used "in the most exceptional of circumstances where the most egregious conduct took place".

Liberal Democrat lawyer Lord Phillips of Sudbury said it would not be possible to have a "more modest provision of exemplary damages" than those contained in the Bill.

He said they would only be awarded only if a defendant's conduct had shown "a deliberate or reckless disregard of an outrageous nature".

For Labour Lord Stevenson of Balmacara said the debate on Leveson had moved on and the key thing was to understand the Government changes and "avoid any unnecessary scaremongering".

Lord McNally, replying to the debate, said he was in no doubt that many people in Parliament "would literally lay down their lives for the freedom of the press".

He said: "I do somewhat regret that in Lord Black's remarks nowhere was there any apology, no recognition of lawbreaking on an industrial scale, no understanding of how deeply wounded the victims of press intrusion have been, no recognition of the deep disgust of the general public in the opinion polls we have seen."

Lord McNally called for Lord Black to support the agreement rather than trying to "wreck" it and said the prize was "a free press operating to the highest standards of ethics and one that is law abiding".

Peers agreed without votes the first tranche of Leveson amendments introduced last week in the Commons.

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