What’s the situation?

You will not believe today’s craziness, but here’s a quick recap of how we got to here:

The synopsis of the amendments:

Any blogger who is legally defined (via the Companies Act)  as a small or medium enterprise, or below, will not face regulation and thereby will not unavoidably risk a huge monetary spanking if they get dragged into court, irrespective of the court’s findings.

So if your journalism-like blogging business is worth less than 6 million quid per annum, you are safe; and if you’re insufficiently journalism-like then you are already basically safe.

Where are we now?

You would think that tabling this amendment would mean that the UK would remain safe for the strange bedfellows of British blogging, that common sense will undoubtedly prevail and that we’d be good, right?

Alas not. The amendments are not being voted on until monday, and by some spectacular mental feat there are a bunch of MPs who believe that the amendments are not a good idea and want the Lords to drop them.


…If this amendment is passed, we are concerned that [BIG NEWSPAPER COMPANY] will somehow avoid regulation by spinning off small subsidiaries to print the actual newspapers, that those will qualify as small-to-medium enterprises, and that they will thereby flout regulation…

It’s an legitimate concern for anyone who is driven to regulate the big newspapers, because we all know that “big media” are a bunch of sneaky bastards who will get away with anything they can.

HOWEVER: because the Companies Act 2006 is not a hastily cobbled-together piece of legislation, drafted in the dead of night by a bunch of vested interests who just want the problem to go away, but is instead a halfway decent piece of proper legislation, the Companies Act has already got this matter covered and all the paranoia is for naught.

Quoth Barrister Francis Davey, in an ORG blogpost:

There is always a risk of gaming with these sorts of provisions, but in the case of the SME definitions in the Companies Act 2006, there is some protection.

Taking “S” companies first. Section 381 defines a small company as one that meets conditions in s.382 subject to various exclusions found in s.384. Those exclusions include being in the same group as a public company. The definition of “group” is pretty robust (and can be amended for anti-avoidance purposes). It means that if one of the large media companies created a subsidiary it could not be an “S” company.

But this only works if you use the definition in s.381 not s.382.

The drafters of the companies act must have decided to define “M” companies differently. Here s.465 is like s.382 – it has no exclusions in it. The exclusions – much like the “S” exclusions – are found in s.467. They too prevent a company from taking advantage of the rules on M companies if they are in the same group as a public company.

But this requires another tweak to the definition so that s.467 is brought in. I think that was the intention but hasty drafting is very error prone.

The message here is that we can exclude small publishers without a significant risk of “gaming”. The Companies Act anticipates this.

So what can I do about this?

Get the message out; tweet your MP, e-mail your MP, talk about it in public, and if you know any peers then ask them if they can vote in the house and for them to support Lord Lucas’ amendment to protect British blogging and freedom of speech. Make sure that the politicians at the top of the heap know this: the Government’s fears of big media companies using Lord Lucas’ amendments to escape regulation are solvable through use of the Companies Act – see the ORG blogpost for details – and if they do not include the amendment then we all lose, for the sake of a paranoid fantasy.


3 Replies to “SATURDAY UPDATE – HELP! – Leveson Blog Regulation – WE NEED YOUR HELP AGAIN!”

  1. The wording of the Lucas amendmenent (still not officially available on the Parliament website) can be read as only providing protection to actual registered Small or Medium companies, not to small scale individual or collective bloggers or publishers

    Why should we have to go to the expense and bureaucracy of setting up a Company in order to publish a blog ?

    The HackedOff secret amendments (where is the full text online ?) apparently tallk about “non-profit” publishers. How do you prove that ? Do you need to submit full your private financial details to the snooping Regulator ? Is a loss making newspaper a “non-profit” ? Is a blogger who gets a few pence more than the hosting costs from Google AdWords considered to be a commercial publisher ?

  2. Yes, there are other exclusions needed, for other types of business. The language used is “in the course of a business” which is why we are trying to exclude businesses on the basis of size. The amendments will be published on Monday, but the danger is that amendments that aren’t drafted by government officials may easily have technical problems, and be rejected. The hope has to be that the government sees the problems and introduces amendments of their own, at the last moment.

  3. I’m amazed that there are MPs who intend to vote against the amendment. If the amendment gets voted down, do they intend to register, or stop blogging and shut their personal websites down?

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