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The Draft Press Standards (Scotland) Bill will no doubt be analysed and criticized for its call for the creation of a regulatory body to oversee the press in Scotland. I want to focus on a particular definition in this draft that is particularly troubling to anyone who cherishes the freedom of expression and values the use of social media for news retrieval and expression of opinion. Just for the record, I can’t find regulating social media in the Terms of Reference.

The effects could be disastrous for freedom of expression in Scotland. This draft bill goes right to the heart of social media and individual users publishing “micro-blogs” and “tweets”.

First some context from the briefing note –Defining “the press” in the age of social media.

“Of relevance to the Irish, Labour party and Hacked Off models are that some of the online press is clearly linked to print equivalent publications. The DCMS proposals however state that it is irrelevant if websites containing news-related material are or are not related to a newspaper or magazine.”

To be clear, this uses my quote from submissions written alongside Aamer Anwar highlighting to the Scottish Parliament Justice Committee in its examination of the role of social media in criminal trials that balance might not be achievable because of the nature of underlying technology regardless of the most impartial journalist’s intentions.

“a Journalist who in [is] in good faith tweeting both sides of a trial in a fair and impartial manner might have one tweet [retweeted] hundreds of times, but a tweet describing the cross examination might never get seen by anyone remotely interested in the case. In this manner, the technology is not meant to be fair and impartial, even though the journalist may be.”

This was on a specific point of using cameras and social media during live criminal trials. This quote is taken completely out of context and missed the point about protecting witnesses for retribution for testifying against a particularly menacing crime boss, accused rapist, or violent spouse. The entire submission was relating to criminal trials!

To prove my point, I refer you to a little experiment I did this week. I tweeted the following story and picture. It has been Rt’ed nearly 2000 times and favourited 560. The problem is it is completely false. The whole scene was fabricated and I knew it when I posted it.

Image

Here is the problem that this highlights:

Lets say I am what the McLeveson group labels social media users/bloggers as “relevant publishers”.

Clause 8 (1) (b):

8 Interpretation

(1) In this Act, “relevant publisher” means a person (other than a broadcaster) who

publishes in Scotland—

(a) a newspaper, magazine or periodical containing news-related material, or

(b) by electronic means (including a website), news-related material (whether or not related to a newspaper, magazine or periodical)

If blogs and tweets are regulated does that mean anyone referred to on a blog or tweet is a ‘person in the news’? I reject this purely on common decency and public policy grounds. How is it at all possible or acceptable to subject a blogger or tweeter to a regulator which has the power to impose a financial sanction based on ‘turnover’ (from Leveson recommendation 19) as a backstop following non-compliance with some other instruction? For example, an apology?

Furthermore, how does one identify a blogger’s ‘turnover’? Is the private blogger to be scrutinized for his personal income to determine his ability to pay a fine? This is completely incompatible even with Leveson’s proposals. It appears the McCluskey Group forgot the whole “necessary in a democratic society” and “proportionality” tests that must be satisfied before any restriction on freedom of expression to be ECHR compliant.

Finally – talk about drafting the turning to Clause 8 (2) (c):

“news-related material” means—

(a) news or information about current affairs,

(b) comment about matters relating to the news or current affairs,

(c) gossip about celebrities, other public figures or other persons in the news

What are the definitions of ‘celebrity’, ‘public figure’ and ‘person in the news’? Tom Hanks is a celebrity. But so is Alex Salmond. Are Gerry and Kate McCann? The effects of this are very problematic.

If blogs and tweets are regulated does that mean anyone referred to on a blog or tweet is a ‘person in the news’?

Lastly, there is already some disagreement about the effect of Clause 1(4). It seems to restrict challenges of the Scottish Ministers to judicial review. Currently as the law stands, the press (or anyone else affected) can challenge the validity of any act by (a) Scottish Minister(s) on the basis that it is incompatible with ECHR under s57(2) of the Scotland Act. Clause 1 would seem to me to run in parallel with, rather than add anything to, s57(2).

Finally, there’s Clause 7 which calls for Scottish Ministers to appoint members to the role of Recognition Commissioner/Regulatory Body. Of course, this would never lead to cronyism, could it?

The great irony here is that I am writing a blog criticizing a draft bill that is effectively criticizing the Draft Press Standards (Scotland) Bill and if passed; therefore, would be subject to regulation. What is I saw a celebrity out on the town being naughty and tweeted a picture of the act? Am I subject to the regulation? Looks like it.  My ‘turnover’ is zero. I am a PhD student. How would I defend myself? No doubt Mr Hanks is a celebrity, but he appears to be in a pub minding his own business and I just published a picture of him acting the fool with a fellow patron. Does that I have violated his privacy? What about the non-celebrity? Possibly. Why should I or anyone else be subject to the regulator’s whims here?

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