Yesterday saw the publication of the findings of the McCluskey group on the possible implementation of the reforms suggested by Leveson, LJ in Scotland. The report of the group is here. This is not the place to review the membership of the group – other than to note that the chair, Lord McCluskey, has over the years spoken out against the European COnvention on Human Rights (he views it as a bad thing and had railed against it from his Reith lectures in 1986), and to point out that no other member has particular expertise in human rights law. That no distinguished Scottish media law academic was on the expert group was also noteworthy (Peter Watson is a practitioner who is a visiting professor at Strathclyde law school has his research history in the field detailed in his legal 500 entry).
What I want to focus on is one point about the bill annexed to the McCluskey report. The bill proposes the establishment of an approved regulator as determined as appointed by a Recognition Commissioner (a government appointee). The approved regulator is to regulate “all relevant publishers” according to clause 4 of the bill. (In the event that no regulator is approved, or approval is withdrawn, the Scottish ministers must constitute a body under clause 7 to act as approved regulator and this government appointed body will have the power to regulate all relevant publishers).
So what is a “relevant publisher”? This is defined by clause 8 (1) of the bill.
“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).”
So you are a “relevant publisher” if you are a person who “publishes in Scotland” “news-related material”.
“News-related material” is defined in clause 8 (2)
““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.”
By commenting on the bill (which is a matter relating to the news) this blog post is giving news-related material. By tweeting sarcastic comments about the group’s work yesterday
In taking such scurrilous actions I was tweeting “news-related material” and this blog-post and those tweets therefore fall under the category of material regulated by the approved regulator provided it is published in Scotland.
The definition of “news-related material” also includes “gossip” about celebrities or other public figures. “Gossip” is defined in clause 8 (3). “for the purposes of this Act, includes assertions of fact about the private or family life of any persons mentioned in subsection (2)(c) if the information published is calumnious, defamatory or scandalous.” There is no requirement that the information be untrue – a prerequisite for defamation actions in Scotland at the moment. It is sufficient if the information is scandalous. Does this require the comment to fulfil the current law of defamation, or is this a revival of the old Scots law of convicium – where true comments about someone could found an action in verbal injury? The report is silent. But this element is well explored in a blogpost by Mark (warning contains gratuitous Tom Hanks imagery)
So, gossip is news-related material. On-line gossip or news comment whether found on twitter, facebook, or any common or garden blog will be subject to the Scottish regulator – provided it is published in Scotland. So when is something published in Scotland? The bill informs in clause 8 (4).
“A person publishes “in Scotland” if—
(a) the publication takes place in Scotland, or
(b) the publication is targeted primarily at an audience in Scotland.”
“The publication takes place in Scotland” introduces an interesting element in relation to on-line material. This is not defined in the draft bill, but there are Scottish cases that make clear when publication takes place in Scotland. For example, Ewing v Times Newspapers 2010 SLT 1093 is an Inner House decision premised on the basis that a man who was a vexatious litigant in England and Wales could sue in Scotland on the basis of having attended a public library in Edinburgh to download and view an article about him that he felt was defamatory (the Outer House decision  CSOH 169 is clearer on the publication point). The downloading of the article in Scotland by a person with no other connection to Scotland, no assets in Scotland, nothing, was sufficient publication to found jurisdiction. This is the general law the draft bill is plugging into.
The impact of that is startling.
Let us take a random ficititious blog called Robert Catesby’s blog – a scurrilous vehicle for the publication of political gossip. if I view Catesby’s blog in Scotland, downloading its content to my computer, his blog is “published” in Scotland. It provides “news-related material”. And Catesby (although based in the independent state of Euphoria) finds himself subject to the regulation of the Scottish ministers’ approved regulatory body for the press.
Or the Washington Post publishes a piece relying on the US freedom of expression entitlements but is viewed by me on my desktop, I have published the American piece in Scotland by viewing and downloading it, and brought it within the remit of the McCluskey group’s suggested Scottish press regulator.
McCluskey’s proposals therefore amount to an attempt to have Scotland regulating the world’s media, as well as the world’s bloggers, and every participant on a social media outlet wherever located – if viewed and downloaded in Scotland.
Well, good luck with that.