March 26, 2013 | Jim Killock

Will bloggers be protected? Maybe – if your blog is “small”

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—

“Small-scale blogs

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.


Comments (5)

  1. Richard:
    Mar 26, 2013 at 01:48 PM

    By many definitions of the term, a "small scale" blog publishing something that goes viral would become a "relevant publisher" overnight, rendering moot any exclusion from which they'd benefited previously. We're at risk of regulating not the press but anyone who happens to publish something interesting!

    Why are they tying themselves in knots over these definitions?!

  2. Jim Killock:
    Mar 26, 2013 at 03:15 PM

    Tying themselves up in knots is right: because they are rushing and didn't give this thought beforehand I guess.

  3. Simon Perry:
    Mar 27, 2013 at 11:46 AM

    Great to see that you're active in this area.

    Most of your approach is well targeted. I wanted to draw your attention to this though - "The proposals need a blanket exclusion for all publishers that are not a company or limited liability partnership."

    This initially sounds great, but sadly this would catch a lot of small-scale publishers including bloggers.

    Anyone who has any assets of any sort shouldn't be publishing online without doing it through a limited company, as they - due to the current structure of UK libel law - are legally liable for third-party comments that are left on their site.

    The most cost-effective way to protect against this is to publish the site through a Limited company, to limit their liability to the value of the company.

    If we agree that publishing through a Ltd company isn't the test, what could it be? Size of turnover perhaps?

  4. Jim Killock:
    Mar 27, 2013 at 12:22 PM

    Hi Simon

    What we are trying to suggest are those groups of people who aren’t likely to have big budgets to employ lawyers. Surely that includes people whose businesses aren't incorporated?

    Turnover is problematic as it easier to game than the SME definitions, which include the status of a company in a group of companies.

  5. Simon Perry:
    Mar 28, 2013 at 02:31 PM

    I think we're talking about the same groups of people - ie those who don't have much money.

    The nuance is that many do (and are wise to) invest £15-20 in forming a Ltd company to publish under, as a form of cheap insurance, to protect their personal assets for potential legal action over content on their site.

    Happy to speak on the phone about this to clarify further, if point isn't being made in text.