We had a tactical victory yesterday: the Lords passed a government “holding amendment” to exclude ‘small blogs’ but didn’t decide what that might mean.
Lord McNally, for the government, said:
we do not want to draw in too broad a range of publishers. Our aim has been to capture the main elements of the press, as well as what I find it helpful to refer to as "press-like" activity online.
I recognise that people have been seeking clarification on how the legislation could apply to small-scale bloggers, and how the interlocking tests work. This is reflected in some of the amendments before us, and includes the suggestion that there may be a case for making an express exemption in respect of small-scale blogs in the new schedule inserted by Commons Amendment 131.
To allow a period of reflection in advance of the next round of ping-pong in another place after the Easter Recess, the Government have tabled manuscript Amendment 131BA in recognition of the concerns over Amendment 131. As part of this, my right honourable friend the Secretary of State for Culture, Media and Sport has agreed that her officials will collate and engage with any issues that are raised before submitting a view on how the test will operate and whether there is a need for a further amendment.
The amendment was
[As an amendment to Commons Amendment 131]
131BA* Line 29, at end insert—
7A A person who publishes a small-scale blog.”
But what is “small scale”? Lord Lucas’ amendment to base the question on the Companies Act’s definition of a small or medium size enterprise was rejected, but it seems the most plausible definition to us. What other options are there?
Readership is hard to measure.
Pixel size, maybe? Blogs of less than 500px wide?
There are other problems, too. Publishing “in the course of a business” covers a very large number of possible blogs. The proposals need a blanket exclusion for all publishers that are not a company or limited liability partnership.
The "incidental nature" qualification to each of the protected exclusions for hobbyist, industry, professional, social club or other web sites needs to go. None of these sites should be prevented from regularly and routinely covering the news that it interesting to them for fear of the “costs clause” stick. It's hard too see why MumsNet wouldn't be caught, as its articles are about citizenship in general.
Given we have breathing room, now, we will push for whatever improvements we can get to avoid the Bill being a train-wreck for the Internet and UK bloggers.
If you spot problem, let us know here. Meanwhile: please email David Cameron, Harriet Harman and Nick Clegg about this.