It’s not a press regulator, it’s a web regulator.

18 March 2013

Since the early 1990s, hundreds of millions of words have been produced about the Web. Enthusiasts have told us that it is the greatest communications revolution since Guttenberg invented movable type, and they are probably right. Utopian fantasists have imagined that cyberspace would be beyond the reach of governments – those ‘weary giants of flesh and steel’, as one particularly giddy theorist put it – and they were certainly wrong.

Their libertarian dreams, as we can see tonight, were an illusion. Those ‘weary giants of flesh and steel’ are tougher than they look. They are more than capable of using the new technologies to their own advantage, while censoring what their citizens write online. In the past, I would have directed you to China, Iran or Belarus to see web censorship. But now we can get all that at home.

Politicians and broadcasters are talking tonight as if those hundreds of millions of words had never been written, and we are still living in the pre-Berners-Lee age. They keep saying that the party leaders proposed “press regulation” today, when that was barely the start of it. The establishment – and when all three parties and the extra-parliamentary great and good come together, I think I can describe them as such – has emotional reasons for misleading themselves and the public. They see the excesses and alleged crimes of the tabloids and want to say that the legislation before Parliament will stop them. But there is also a strong element of propaganda. By focusing on the brutishness of the tabloids, they make the public forget about attacks on fundamental principles and perhaps allow themselves to forget as well. For when people behave dreadfully they normally have to delude themselves before they can delude others.

I can see the propaganda’s appeal. Although I believe in freedom of the press in theory, I find the sanctimony, pornography and bullying of much of the press revolting. I don’t think the state has the right to control them, but if the tabloids closed tomorrow I wouldn’t shed a tear.

“Press regulation” as the BBC News was saying at Six and Channel 4 News is saying as I type, does not sound so bad, not even to me, if all it means is stopping the tabloids. The briefest study of the Royal Charter and the Crime and Courts Bill which carried Leveson proposals, however, shows that the first attempt at press licensing since 1695 does not confine itself to the press. In public, the establishment talks about “press regulation”, in the small print, its demands are much broader and very modern: it wants Web regulation.

The regulator will cover ‘relevant publishers’. If they do not pay for its services and submit to its fines and rulings, or set up their own regulatory body, they could face exemplary damages in the courts. It is not just the old (and dying) newspapers, which the state defines as ‘relevant publishers’ but ‘websites containing news-related material’.

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As Index on Censorship says, ‘Bloggers could find themselves subject to exemplary damages in court, due to the fact that they were not part of a regulator that was not intended for them in the first place. This mess of legislation has been thrown together with alarming haste: there’s little doubt we’ll repent for a while to come.’

What ‘news-related’ material can get you into trouble? It turns out to be the essential debates of a free society. Dangerous topics to write about include ‘news or information about current affairs’ and ‘opinion about matters relating to the news or current affairs’. Any free country should would want the widest possible discussion of news and allow the largest possible range of opinions about current affairs. As of tonight, Britain does not.

Oh and how could I have forgotten, in homage to the toned and gilded originators of the new authoritarianism, the three main parties are also warning us to be careful about ‘gossip about celebrities, other public figures or other persons in the news’.

Is there an upper limit on readership? Is a website that has a few dozen hits a day exempt? Or do the state’s plans mean that every website that comments on news and current affairs or gossips about Hugh and Jemima must pay to join the quango, accept its punishments, or face exemplary damages in the courts? The government does not know. Alternatively do John and Joan Smith, blogging from their living room about the plight of the poor or foreign affairs, have to set up their own regulatory body. If so, how the hell are they meant to do that? Again, the government does not know. Do not be surprised by their ignorance. When Nick Clegg, Charlie Falconer, Oliver Letwin and Hacked Off, cook up a plan to change fundamental liberties at 3am in Ed Miliband’s office, confusion must follow.

What about Twitter feeds? My editor at the Observer, John Mulholland pulled me up short last year when he pointed out that an approving review Richard Dawkins had written on his website on my last book –on censorship, aptly – had been tweeted hundreds of times after Dawkins put a link on Twitter. ‘That’s done you more good and been read by more people than any review in the mainstream press,’ he said. He was right. Dawkins has 645,000 followers. That’s more followers than the Independent has readers. Should his Twitter feed be regulated? Should he face exemplary damages if he tells the state to piss off, as I hope he would? Or should there be some kind of Twitter limit? If you tweet about the news and celebrities and only have 100 followers will you be free to speak your mind within the laws of the land? But if you get 500, 1,000, 10,000 followers should the new rules apply?

Paul Waugh of Politics Home asked Downing Street whether the new quango would cover Twitter. It didn’t know. The Crime and Courts Bill says that people who publish about their hobby, trade, business or industry and the authors of online academic journals will be exempt. The government is, of course, exempting itself and all other ‘public bodies’ as well, for it would never do for the state to abide by the rules its citizen must follow. Everyone else must submit, as far as we can tell.

The anarchist in me is looking forward to sheer bloody mess this half-baked, illiberal, ill-conceived censorship will bring. It will be a perverse delight to see the regulator overwhelmed and the politicians, who applauded themselves so loudly today, mocked tomorrow. But this isn’t funny because basic human rights are at stake. I am already getting bloggers contacting me, and asking if they need to tone down what they write or sign up to the quango. If politicians from all parties – and let us not forget that just as in Murder in the Orient Express they are all guilty – do not instead tone down this sweeping legislation a great chill will descend on the free republic of online writing, which until now has been a liberating and democratic force in modern British life.

The chilling effect is the most sinister and pervasive form of censorship, and something no robust, plain-speaking democracy should tolerate.
As I say in You Can’t Read This Book , which Dawkins was so kind about.

‘You can be a famous poisoner or a successful poisoner,’ runs
the old joke, ‘but you can’t be both.’ The same applies to censors.
Ninety-nine per cent of successful censorship is hidden from
view. Even when brave men and women speak out, the chilling
effect of the punishments their opponents inflict on them
silences others. Those who might have added weight to their
arguments and built a campaign for change look at the political
or religious violence, or at the threat of dismissal from work, or
at the penalties overbearing judges impose, and walk away.

Update 10.20 pm Downing Street has now told the Guardian that “personal blogs” like the Guido Fawkes political website would not be covered, but news-related websites like Huffington Post UK would.” Still no word on Twitter, I see, but personal political blogs like Guido Fawkes and many another right wing and left wing blog, are hard hitting. They are news blogs, and in the case of Guido Fawkes and some of his left-wing competitors they are large-scale news providers. The distinction makes no sense. More to the point, where is it written into legislation? It’s not in the amended Crime and Courts Bill, while the Charter just says the Leveson “Inquiry recommended that for an effective system of self regulation to be established, all those parts of the press which are significant news publishers should become members of an independent regulatory body”. It does not say what the government defines as a significant news publisher.

This is all going to end up in the courts. The judges will have to clean up Parliament’s mess. I should warn liberal readers that the English judiciary’s record on freedom of speech is dire.

Update 8.30am Tuesday 19 March As you were. 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. Be kind, it’s only the government, why should it?

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Show comments
  • Brian H

    Collateral damage from friendly fire, or deliberate targeting?

  • jameshogg

    Move to the United States and say what you want from there. You’ll be fine.

    Watch as the U.K. censors try to keep up with all the I.P blocking, the VPNs and proxies that get around the blocks, and continually try to challenge the First Amendment to the U.S. Constitution. That will be hilarious to watch.

    Then again, I guess we do have to stay here and make a stand, so that we may protect the speech of others. If the BBC can repost Tweets that got somebody else locked up without being locked up themselves, we are entitled to repost them, too.
    Maybe we shouldn’t be so pessimistic. The Streisand effect is the modern day “I am Spartacus.” Remember what happened to the crackpots who sued Simon Singh? People will see the futility of all of this. We just have to be brave and stand by our principles.
    If banks are going to screw us over yet again, we are going to call them out on it. Without their permission.

  • Andrew Floyd

    for the benefitof the lawyers indiscreet mps and celebrities. A sledge hammer to crack a tabloid nut

  • Studley

    Nick, I love you! (Well, I love the two articles of yours I’ve read so far. And I intend to keep reading.)

  • charlenehale

    Seriously we will become Gulagastan.

  • FrenchNewsonlin

    It is an absolute bl**dy disgrace as you make clear Mr Cohen. A betrayal of a nation whose liberal values and staunch defence of individual freedoms and liberties were once admired around much of the English-speaking world. Well as an ex-South African who, under the apartheid regime, has been there on the issues of press and individual freedoms, draconian restrictions on rights and liberties etc, may I say this is a very slippery slope your country is perched on. Won’t be long now before your lawmakers take further succour from the despised Afrikander Nationalist government of the time and put Suppression of Communism, indefinite detention without trial and similar freedom-engendering Acts on the Statute Book. British politicians (Conservatives!) should be wearing hair-shirts and hanging their heads in shame, except that word appears to have been expunged from the vocabulary of today’s young ‘progressives’.

  • Lavoulian

    Yes – and in addition to censoring the web politicians are also taking powers to track our internet use, read our emails and texts, record phone conversations and monitor social networks. Already the UK authorities have put in place the most intrusive CCTV operation in the world, watching us everywhere we go. Civil liberties hard won over centuries have been comprehensively destroyed. And the West has the gall to criticize lack of freedom and democracy in China? The Chinese authorities must be staggered by the sheer scale of this hypocrisy.

  • angryantipodean

    In affectionate remembrance of FREEDOM OF SPEECH and ENGLISH LIBERTY, who died in The House of Commons, Westminster on the 19th of March, 2013 AD after a prolonged illness. Deeply lamented by all those concerned with the freedom and liberty of mankind and the memory of all those who gave their lives to defend it, who it now appears, sadly, gave their lives for naught . RIP.

  • Anthony Gerard

    Any journalist who questions the tax affairs of the Barclay twins is immediately threatened by lawyers.

    Let’s see Britain’s free press writing about their foreign Billionaire owners – and we’ll soon see how independent and free from their owners interference they really are.

  • Anthony Gerard

    Hopefully, The Spectator and The Telegraph will now start reporting about the dealings of its owners, The Barclay Brothers.

    Any journalist who questions the tax affairs of the Barclay twins is immediately threatened by lawyers.

    Let’s see Britain’s free press writing about their foreign Billionaire owners – and we’ll soon see how independent and free from their owners interference they really are.

  • Bill Kruse

    What about Facebook? What about web hosting companies, would they be liable if someone on a site hosted on one of their servers said something that might now be regarded as untoward? Has anyone even considered these questions?

  • Adam Ach

    All publications should follow The Specator and say NO!

  • Ben

    It’s a bloody disgrace.

    The fact that the likes of Hugh Grant and JK Rowling can be paraded around as if they are some kind of expert authority without agendas of their own, and actually be listened to, is the final straw for me.

    I’ve had it with this country and its reactionary moral crusades. Why does anyone think the Dowler’s opinion on the matter should be an important consideration? Why do people seem to think that personal tragedy or victimhood grants the sufferers’ opinions greater validity? I don’t think i’ve ever seen a country so willing to acquiesce to new, wide-reaching laws to repair some oversight or freak occurrence (no one is willing to admit that these things are often unavoidable). The mentality seems to be: oh, that didn’t work in this one instance, so lets simply make a new law, and then when that one doesn’t work properly, just make another one! Thus by piling frivolous laws on top of one another to repair the frivolous laws that have already failed we reach the overcomplicated mess of a political system currently employed.

    I will certainly be leaving here as soon as the opportunity arises, and i reckon plenty of other people are feeling the same way.

  • Nicky Milks

    Errr, you can write what you want as long as it’s true, based on evidence, and isn’t breaking the law.

    I think you media guys need to stop the hyperbole, and be honest.

    You want freedom to attack, smear, insinuate, punish, as it brings in the punters, and gives you political power.

    • Ben

      Attacking and insinuating should be illegal now? we should give individuals the right to interpret what constitutes these things?

      You really have not the slightest clue of what you talk about with such certainty. Of course the press have political power, would you rather they didn’t?

      • FrenchNewsonlin

        Indeed. Consider for a moment the relatively recent phenomenon of ideo-religious extremists making violent and bloody demands for curbs on freedom of expression.Then look at the equivocations in terms of response by the European societies targeted.Then go and thank Leveson and Hacked Off for delivering you from evil.

  • highlandjock

    My local paper once reported on its front page that I had said scurrlilous things at a public meeting. I was not even at the meeting!! When this was pointed out to them, and they were threatened with a libel suit, they printed a two line retraction on page 17 of their next edition.
    The new set up will hopefully stop such blatant abuse.

    • sarahsmith232

      we already have laws against that, toughest libel laws in the world. so no difference.

  • High Level Terrorist Informant

    This isue of press freedom is a red herring, the real issue is police and security services corruption which facilitated amongst other things the 7/7 false flag terror attack. What needs regulation is the Police and security services that run unhindered, and for all intents and purposes unregulated
    It would not surprise me the use of the Metropolitan Police dirty tricks department in leaning on a number of MPs, lawyers, broadcasters (Andrew Marr, for example) and other Establishment stooges to reflect attention from them onto journalism in general. There are laws on phone and computer hacking and the police just waved the culprits on through.

  • The_Missing_Think

    Oooohh… I see… Nein Platform culture for the auto guilty riff raff scum like me is perfectly tickety f**king boo, but the nice dainty people that just happen to like Nein Platforming plebs on the sly, is totally wrong?

    Ha ha ha… Reap it, reap it, and reap it… you vile disgusting hypocrites.

    Equality, the snide snooty middle class way… huh?

    “The site has blocked you from posting new comments.” – DT.

    Go on Speccie, why don’t you ban me as well?

    • Trofim

      Could you possibly translate this, using explicit entailments and implicatures?

      • FrankS

        Be fair, he does call himself “The Missing Think.”

        • pewkatchoo

          I am worried. I am starting to understand him/her/it.

      • The_Missing_Think

        Sorry, no.

        But don’t worry, after a few years of being forced to encode anything you want to say into cryptic gobbledegook to avoid deletion or prosecution, you’ll get the hang of it.

        As will all Speccie journalists that stayed 100% completely silent when real life human beings that pay taxes, were brutally Nein Platformed when they dared to question the wisdom of mass, mass, mass immigration.

        Freedom of speech is a tool, not a warm fuzzy feeling, exclusively reserved for smug beautiful people and their poems about flower arranging.

        Banned constructive criticism = Unchecked problems that grow into ugly disasters. (EU etc).

  • Liz

    “By focusing on the brutishness of the tabloids, they make the public
    forget about attacks on fundamental principles and perhaps allow
    themselves to forget as well.”

    But the brutishness of the tabloids is a fact. How do you propose dealing with that because hoping it will go away isn’t good enough.

    There are other fundamental principles at stake here too, like not to have a brutish press churning out negative propaganda about the group you belong to with various negative and lethal consequences and the right not to have your life and reputation destroyed. Or to have a camera shoved up your skirt to see if you’re on your period.

    Surely good regulation will allow the good press and media to thrive and more voices to be heard by putting the bullies back in their corner.

    • FrenchNewsonlin

      All of the issues of which you complain already have remedies in law. Human freedoms and freedom of speech are indivisible, you curtail one and the other will follow. There can be no compromise. Either we are all fundamentalists about free speech or we invite enslavement by wannabe despots, particularly the ideo-religious extremists out there.

  • Reconstruct

    Perhaps it’s time for the Guardian to change its name – from ‘The Guardian’ to ‘The Jailer’.

  • Reconstruct

    You shouldn’t write in the Guardian again. Or indeed in any shackled publication. That’s going to be the difference between a journalist and a state-sponsored PR man.

  • paulus

    Well its quite simple :we need a martyr so we will pick Guido. Admittedly the though about being banged up for years on end probably doesnt appeal to him, but someone has to do it. We will need a fighting fund and he will need reassurance that everyone just going to move on and forget about him.

  • Bitethehand

    The Guardian started even before last night, stripping posts from the threads under articles up to four years old. The threads following the articles of dozens of Guardian writers will have been affected. See:

    The Guardian’s Comment is Free – censoring the historical record – airbrushing the online version.

  • David Barnett

    I accept that Press freedom needs to be accepted, warts and all, but it’s a crying shame that so many of these warts are so ugly, malodorous and generally vile. Blame the gutter press for that.

    My guess is that these measures have a lot of public support, proving I suppose, that democracy and freedom are not one and the same thing all the time.

    • andagain

      How many pretty warts have you seen?

      • D B

        I expect you are quite pretty.

  • Colin

    That’s The british Left, for you, cheers.

    Now we need the press to conduct a proper investigation into MP’s expenses abuse, before it’s really too late.

  • 72Princeton

    Good piece. You might not shed a tear if the tabloids closed, Nick. But the millions who walk into a newsagent’s every day, buy one and enjoy it wouldn’t shed a tear if the Guardian/Observer group closed down today, mainly because they are barely aware it exists. It is facile to see only bad in mass market newspapers.

  • Ron Todd

    The left want a better society. They think the best way to get that is for other people to do and think what they tell us. Much easier if they have some control over the internet.

    Unfortunately the better society a lot of them want is one in which the rest of us do as we are told.

    • Harry Owen

      Exactly. That’s the nub of this whole thing. This all comes down to a certain section of the left (not yours Nick!) wanting to silence people they don’t agree with. Read Polly Toynbee today and she’s completely honest about that.

    • Smithersjones2013

      The left want a better society.

      No the left want to create a society in their own image. They want a society where they dictate how we think. There is nothing ‘better’ about that!

      • highlandjock

        Your comment would be correct if you substituted “right” for “left”. Do you not know which is which, perhaps?

        • Chad Wozniak

          There isn’t much duifference either way – the left is just as reactionary as the right, wanting to return to the bad old days of tyranny and slavery, albeit they call these by different names.

  • colliemum

    Well, this is it then.

    Many have been mocking our American cousins for their insistence of keeping guns. They say again and again that the 2nd Amendment is the guarantor of all other Amendments, especially the First (Freedom of speech), without which the others will be eroded.

    It’s taken a bit of time here in the UK since they eroded our right to bear arms – but here we finally are: a Royal Charter to suppress the Freedom of the press.

    It is great to know that our slebs like Hugh Grant are now ‘protected’ (sarc!). After all, us plebs not learning about scandals like Mid Staffs is a small price to pay to for getting only faerie stories, well controlled, about those wondrous people. And who really needs to learn about sexual transgressions in Churches and care homes, who really needs to know about creeping EU ‘regulations’… oh, and will we still be able to see Pat Condell’s videos?

    Freedom of the press, freedom of speech – no longer needed in our long march to the Neo-Feudal society.

    • andagain

      Frankly the Second amendment is beside the point. It is the First that matters.

      • therealguyfaux

        If they ever take away the 1st Amendment, I guarantee you, they’ll wish there never had been a 2nd. Remember, it also covers freedom to hold religious beliefs or not, and it covers the right of people to gather peacefully, and the right of people to petition their government for redress of grievances. Start messing with people’s religion, their activities of a civic nature, and their ability to tell their representatives what to do, and you’ve sown the wind and will reap the whirlwind. Of course, if you know the people can’t fight back once the bullets fly, you’re a bit more likely to try the messing around.

        • andagain

          If the Army supports the government, the 2nd Amendment is not going to make much difference. And iftheArmy opposes the government, the 2nd amendment isn’t going to make much difference either. All that really matters is who can get the cannon fodder on their side. Which is why it is important that the 1st amendment makes sure you can talk to them.

          • therealguyfaux

            Actually, I wasn’t thinking of an organised insurrection so much as free-lance “propaganda of the deed” against the craven individual politicians, who might be given pause, thinking of Cong. Giffords (though in her case, ostensibly it was an apolitical nutter wot dun it– OK, if you say so). And in the instance of the armed forces turning its weapons on the populace, the Government has to consider how Pyrrhic such a move could be, from a propaganda as well as men-&-materiel standpoint (think Ulster and many of the visuals from there). It might turn into a tar-baby. And if elements of the armed forces defected, they might like to know they were in friendly territory (sort of like the NVA with the VC) and capable of being supported by irregulars. Obviously you’d like everything to be resolved non-violently, by actually adhering to the 1st Amendment, allowing people to have their say in a meaningful way that would actually influence their legislators.

    • Nicky Milks

      The US only has a free press, as it’s also very easy to sue them. As in, normal people can sue the media very easily over there

      In the UK we have a free press, that are also basically protected by law, to do and say anything they want

  • FrankS

    Pub landlords, who already have to police drinking laws and smoking bans,will soon find themselves having to say “Are you a licensed opinion-holder sir? If not, I’ll have to ask you to keep silent or to leave.”

  • 15peter20

    “let us not forget that just as in Murder in the Orient Express they are all guilty”

    Oof, bad netiquette. BIG spoiler there.

  • He’s Spartacus

    What are the chances of this being published in your cash cow, The Guardian, Nick?

    Thought not.

    Shame one you.

  • planetpmc

    LOL! Hysterical —–.

  • Lee Griffin

    This is ultimately only half the story, and possibly a non-story in the end. There is a clear discrepancy between the wording of the royal charter, and the definitions provided in the amendments to the Crime and Courts Bill that provide the legislative underpinning to allow courts to charge exemplary costs to those who have acted unethically (and possibly criminally), aren’t a member of a regulatory body, and have significantly wronged the claimant.

    What could be the reasons for this? For a start the current wording of the Royal Charter is from the (hastily?) constructed Lab/Lib negotiation. Is this the tightest final terms possible? Second, the Royal Charter deals solely with the setting up of the body that will recognise the various regulatory bodies. There is nothing in that charter that says who shall be deemed to be expected to submit to regulation. Why? Because it is not the Royal Charter’s place to dictate who is to be regulated, only to set the framework upon which regulation can grow!

    The key legislation is that of the punishment, the exemplary costs and when they’re applied, which is the only part of this whole thing that holds that relevance. It is from here that we have our definition of who a relevant publisher is, a definition with a clear link to expectations of who should be expected to submit to regulation by the virtue of them able to be targetted in this punishing way if they are not.

    And the reality here is that the government submitted legislation says that bloggers are not expected to be part of regulation for the largest part. While some blogs, larger blogs that operate in a centralised manner, may fall under this banner…a banner intended to capture the web as well as print outputs of magazines and papers in the UK…most blogs will not. Single author blogs immediately will not need to worry, blogs that don’t offer editorial control (free to submit blogs) won’t need to worry. Forums won’t need to worry, Twitter won’t need to worry.

    I believe we have got ourselves worked up on the issue of the Royal Charter needlessly, we have expected the charter itself to be the entirety of the regulation project when it is not. The reality is that the vast bulk of the regulation project…by design…isn’t written down, it is meant to be dealt with independent of legislation and the press editors. This leaves the government interacting solely where it has to, on two issues, providing judges with the legal ability to enforce punishment, and providing for the body that will oversee and advise those regulators to keep them operating well.

    I don’t see web, in the sense of not being focused entirely on the media publishing houses, being regulated through any of this, through clandestine sneakiness, nor clumsiness.

  • Frank Fisher

    Well don’t say I didn’t tell you so… This is NOT the beginning, we are half way down the road

  • John_Page

    Peter Lilley is right – when front benches agree, the proposal hasn’t been stress tested and is more likely to prove wrongheaded. Murdoch carries a lot of the initial blame for this. Cameron’s resort to an enquiry has been utterly stupid. And I expect the McCanns are pleased.

    • FrenchNewsonlin

      “Cameron’s resort to an enquiry has been utterly stupid.” Cameron’s resort to an enquiry was the act of a shallow man with the morals of a quisling.If he wants to redeem himself he should U-turn on the charter without delay

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