What’s the situation?

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

• There’s the whole Leveson regulation thing, you probably know about that
• Then over the weekend we discovered that Leveson would regulate all blogs
• Then on Wednesday, OpenRightsGroup, Big Brother Watch and Index on Censorship met with HackedOff to try and fix this
• We decided that the best quick fix we could do to save unregulated blogging in the UK was to legally exclude non-business/small-business bloggers from regulation
• Thursday, Big Brother Watch drafted and released a suggested amendment text…
• …and we went looking for a supportive peer to table the amendment in the Lords
• Friday, we got out peer – Lord Lucas – and Guido posted pictures

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.

Why?   BECAUSE PARANOIA:

…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.

tl;dr – WE NEED THE PRO-BLOGGING AMENDMENTS, FEARS ARE EASILY FIXABLE