We are comfortable that there is a clear articulation of “blog” and “news”. Blogs are to do with the expression of the point of view of an individual or group of individuals. That is pretty straightforward, although, as with everything else, it will be subject to the courts’ deliberations at the appropriate time. Maria Miller, HoC debate, 22 April 2013.

The definitions of ‘blog’ and ‘news’ look set to be increasingly significant, in a very practical sense.

The government has updated amendments in the Crime and Courts Bill to “make clear that small blogs will not be classed as ‘relevant publishers’” who should sign up to the new regulator. Additionally, those who are not ‘relevant publishers’ but opt-in voluntarily, will receive the costs incentives of participating, including access to the regulator’s arbitration service.

DCMS has produced a flow-chart [see update at end], to help publications decide if they are expected to join the regulator or not – with the caveat that it’s not legal advice!

There are two definitions, which might prove problematic in the future (although the Secretary of State for culture, media and sport, Maria Miller, is confident they are ‘straightforward’): ‘news-related’ and ‘blog’.

It appears that if you don’t wish to fall into the ‘relevant publisher’ category and your publication isn’t defined as a ‘blog’, publishing ‘news’ should not be the main focus of your business.

The Crime and Courts Bill will return to the House of Lords in the next stage of ‘Ping Pong’ later today (Main Chamber, 2.30pm).

Also see:

• Patrick Smith’s commentary on some of the detail at the MediaBriefing
• UK Supreme Court Blog for the other provisions of the Crime and Courts Bill
• Media Reform Coalition: Blogs are be exempted now – but does the new wording work?

If any experts on micro-businesses and media organisational structures are reading, your thoughts on exemptions for individual titles and companies would be welcome.

Update: DCMS has updated its flowchart on Flickr to clarify the ‘publisher’ bit of ‘relevant publisher':

Update 23/04/13, 10.41am
We have clarified the wording in the introduction following user feedback. Formerly read: ‘Relevant publishers are the newspapers and newspaper-like publications…’
Now reads: ‘Relevant publishers produce the newspapers and newspaper-like publications…’

HEY! REGULATOR! LEAVE THOSE HYPERLOCALS ALONE

By Damian Radcliffe

Hyperlocal media – news or content pertaining to a town, village, single postcode or other small, geographically defined community – is not a new sector. But a fusion of technology, social media platforms and gaps in traditional media provision, have all combined to create the perfect conditions for  this sector to bloom.

As a result, hyperlocal media has grown substantially in the UK and other countries in recent years, with concerned citizens, new entrants and established media operators all taking advantage of this perfect storm to create and distribute locally relevant content. And despite very real challenges in making hyperlocal pay, we are only likely to see the sector grow, especially as smartphone technology continues to make it easier to create, distribute and consume locally relevant content.

Currently, the hyperlocal media sector is still relatively small. But as it grows, the issue of regulation is likely to rise up the policy agenda. Whether it is likely to be caught up in the slightly larger considerations of the Leveson Inquiry remains to be seen, but I believe there is a strong case for arguing against the statutory regulation of online hyperlocal media. In fact, I would go further and argue that not only should it be avoided, but that it would also be impossible to enforce.

As someone who spent just under five years working for the UK regulator, and who now works for a different regulatory body in a very different part of the world, that might seem a strange thing to say. So below I will explore five reasons why the sector should be unregulated, and why I think attempts at such regulation would ultimately prove unsuccessful.

Part One: the case against regulation

In my view there are five key areas which need to be explored when examining the case for regulation of this nascent sector. They are:  the open internet philosophy; the inapplicability of historic rules of regulation; practicalities of enforcement; the role of Citizen/Community Journalism; and innovation.

Taking each of these in turn:

1. The Open Internet Philosophy

This is a subject which has been written about far more extensively than we have space to explore here. However it is, a useful – if rudimentary – starting point. If you believe in the open internet, then the web should be a predominantly unregulated space. Clearly there are exceptions, such as the need to protect the exploitation of minors, but most of these concerns are not applicable to hyperlocal websites.

Provided that the law of the land is not being broken, then hyperlocal websites should generally be left alone, free to self-manage, without recourse to a wider regulatory power.

2. The historic rules of regulation do not apply

In a broadcast world, regulation was used to create a framework for licensees. In return for abiding by the rules, which included signing up to a code of conduct and agreeing terms of trade (e.g. what type of service you are, or specific obligations such as the amount of local news you produce), then license holders got access to a precious commodity: spectrum, and with it the right to broadcast direct to people in their homes.

This two-way contract has been a key tool in making broadcast regulation work, but it is not a framework which logically transfers to the online space. Online space is virtually limitless, the challenges faced by hyperlocal practitioners – such as discoverability, scale and financial sustainability – are only recent considerations for traditional media players in a multi-channel, online, world.

Without the obvious means for a similar sort of two-way contract between the regulator and the service provider, we have to reconsider how and why we might regulation in the Internet age.

3. The (im)practicalities of enforcement

Anyone can set up a hyperlocal website or channel using tools like Facebook, WordPress or Twitter. These tools are often free, and fairly easy to use, with the result that you can set up your website in minutes. And it also means that if your website gets into trouble, you can dismantle and remove traces of it pretty quickly too. This means that not only is it impossible to comprehensively capture what hyperlocal sites exist, it will be equally impossible to monitor them effectively.

In contrast launching a newspaper, TV or radio station has often required specific licenses, equipment and training, as well as clear monitoring requirements. Broadcasters, for example, have a legal requirement to keep a record of what they have transmitted, whilst newspaper owners see their physical product in the public’s hands.

This makes it rather hard to hide any potential crimes and misdemeanors.

4. Concerned Citizens and Community Journalism

Whilst commercial hyperlocal outlets and networks do exist, the majority of hyperlocal content in the UK is produced by citizens, often for free, or certainly very small sums of money.

This in itself is no bad thing, indeed I have previously suggested that the best sites stem from local need, by people steeped in their communities. In many cases, but not always, this manifests itself in the form of active citizens investigating and reporting on what matters to them.

Looking at the US hyperlocal scene, the Federal Communications Commission in their extensive report  “The Information Needs of Communities: The changing media landscape in a broadband age” noted:

“Even in the fattest-and-happiest days of traditional media, they could not regularly provide news on such a granular level. Professional media have been joined by a wide range of local blogs, email lists, websites and the proliferation of local groups on national websites like Facebook or Yahoo!

For the most part, hyperlocally oriented websites and blogs do not operate as profitable businesses, but they do not need to. This is journalism as voluntarism—a thousand points of news.”   (Page 16)

This sentiment is equally applicable to the UK and any other county with a growing hyperlocal scene.

The voluntarism described by the FCC should be encouraged and nurtured, not stifled. Attempts at regulation of this sector are only likely to reduce transparency and accountability, not increase it, by discouraging citizen related activity.

Few community journalists would be able to afford any inevitable regulatory fees, and the very presence of such fees would undoubtedly deter some citizens setting up their own hyperlocal sites.

It is also likely that few concerned citizens would not even know that their Facebook Group, or blog fell under any regulatory regime. Used to using open, social, internet platforms without restriction to comment on issues of interest to them, why would their local website be regulated when posts on local food or their holidays are not?

Determining what citizen content fell in – or out – of any regulatory regime would be a very difficult call.

5. Innovation

Lastly, there is the issue of innovation. Regulators always like to talk a lot about their role in encouraging innovation, creativity and new business models. Perhaps the extent of this is overplayed, but regulators can certainly play a role in ensuring that barriers to innovation are kept to a minimum. With the online hyperlocal sector still in its infancy there is a very real risk that innovation would be stymied by unnecessary regulation.

 Part Two: the case for regulation

When I wrote the original blog article which formed the basis of this contribution,  I also spent considerable time considering the reasons for regulation. Then, as now, I struggled somewhat – both in terms of the mechanisms for enforcement, as well as the potential benefits.

For the former, I considered the option of income thresholds – that sites above a certain income would need to be regulated – and in turn whether sites might opt in to be regulated by the PCC or some other body. Finally, I also wondered if there was merit in the industry coming together and devising its own system of self-regulation.

The latter provoked some discussion, and I am grateful in particular to William Perrin, Philip John, Judith Townend and Mike Rawlins for their thoughts and contributions.

Of these, I think the three strongest arguments for regulation are around protection, credibility and parity for hyperlocal publishers.

All of these are desirable outcomes, but I am yet to be convinced that they way to achieve them is through regulation or indeed self-regulation. Rather, they require attitudinal changes and shifts more than anything else from big media, the NUJ and in some cases media consumers.

Again, taking each of these areas in turn:

1.            Legal standing and support

Potentially the biggest benefit of regulation for the sector is that it may make it easier to unlock union and legal support. At present most hyperlocal writers are unrecognised by the NUJ and – in contrast to their traditional media peers – they do not enjoy the backing of a large legal department.

Legal support is an area the hyperlocal sector would benefit from. The day will come when a hyperlocal practitioner loses their home due to a legal dispute stemming from content on their site.  Sadly, it may take such an incident for this issue to be given the consideration it deserves.

We need to find a means to redress this, as the level of legal support for the citizen journalist/reporter is often minimal, if indeed there is any at all.

To counteract this, in the US, J-Lab and the Knight Foundation ran a Legal Risk Blog for American citizen journalists, bloggers and social network users. Different media laws mean that its usefulness as a tool for UK practitioners is limited, although the site is not without value.

One way this could work in the UK would be to encourage big media groups – perhaps through a regulatory lever – to provide a certain amount of pro-bono legal support to hyperlocal outlets.

Alternatively they may have to pay a small levy to a central legal fund, which could either ensure 24/7 legal support for hyperlocal practitioners, or support a financial pool to draw on when the litigation starts. Such an idea is not without risk of abuse, but if we are to encourage better relationships between community media outlets players and traditional media, providing meaningful support between the sectors in this way would be one way of doing it.

2.            Credibility

Rightly or wrongly, there can be misconceptions amongst consumers and traditional media alike about the content and accuracy of hyperlocal content. Being part of a regulatory regime may help to change that, but I am skeptical. Many regulated bodies – across media, finance and other industries – are severely lacking in credibility at present. As are their regulators.

Moreover, Ofcom research shows that many media consumers are already confused and ill-informed about regulation and funding. So being part of a regulatory regime will not necessarily change public perceptions. Or indeed those held by old media.

More effective measures could simply be cosmetic. Lichfield Blog for example renamed itself Lichfield Live, because it became “hard to escape the fact that having ‘blog’ in our name was causing problems with how we were perceived”.

Some of the Lichfield team have also posited the idea of self-regulation, with hyperlocal players signing up to an agreed “Code of Conduct”, in part to boost credibility.  I can see the merit of such a code, and such an approach could be especially useful for new sites in giving them best practice and a set of standards to aspire to, but I am not sure that it will make much of a difference in the credibility stakes.

That does not mean however that hyperlocals should not do it, and there would be a merit to having agreed and shared text on issues such as fairness and complaint handling, but the benefits of this approach are, in my view, of more benefit for practitioners, than big media partners and audiences.

Instead, I would argue that activities such as public visibility – reporting from, or organizing local events – or making your content available offline as well as online, may be much more effective at boosting credibility and changing perceptions than being part of any new regulatory body.

3. Creating a level playing field

The underlying consideration here is how to establish a more level playing field, particularly in terms of legal protection and credibility.  For some commentators, the only way to do this is by bringing hyperlocal media into any post-Leveson regulatory regime.

That may be so, but I think this argument is fallacious and that these objectives can be achieved through other non-regulatory means. Examples of credible, respected hyperlocal websites abound (see: http://kingscrossenvironment.com/ , http://parwich.org/ , http://pitsnpots.co.uk/ , http://www.london-se1.co.uk  and http://ventnorblog.com/  as just some examples). As, increasingly, do examples of creative partnerships between this sector and traditional media.

Regulation also risks having accidental consequences, from stifling innovation and driving small scale hyperlocal practitioners out of business, through to creating a two tier hyperlocal sector, with some outlets being regulated (perhaps due to their size, scale and or platform) whilst others are not (e.g. those on Facebook).

Far from creating a level playing field therefore, such a scenario risks widening gaps, not reducing them.

Concluding Thoughts

I argued earlier that a number of factors – the open internet philosophy; the inapplicability of historic rules of regulation; practicalities of enforcement; the role of Citizen/Community Journalism; and innovation – were all good reasons, both individually and collectively, against statutory regulation.

Similarly, I remain unconvinced at the viability of self-regulation, or that it is the means to deliver outcomes such as enhanced protection or credibility.

In my experience most hyperlocal outlets take questions of balance and accuracy very seriously and where they have an editorial agenda it is usually pretty clear.

Just because you are unregulated, does not mean that your standards are any lower.  Nor will being regulated suddenly mean that the public will view you content differently, that relationships with traditional media will transform overnight, or that late night telephone calls from aggrieved Press Officers will cease.

Instead, we need to recognize that hyperlocal publishers are an increasingly important part of our media ecosystem. They can, and do, on occasion provide great content for other media outlets – acting as a local wire service. Hyperlocal outlets can also be a great way for traditional media to find new voices and talent, whilst for audiences they can help plug gaps in content provision – or provide a new level of ultralocal reporting.

Nurturing and supporting the industry should be the aim of policy makers.  And it does not need regulation to make this happen.  Key challenges such as finding ways to develop partnerships, or unlocking legal training and support for hyperlocal publishers, can all happen without the need for regulatory intervention or frameworks.

Let’s see if we can make it happen.

Democracy Society / Damian Radcliffe. An extract from Media Regulation & Democracy [PDF], Demsoc 4 (July 2012), pp. 33-43. This content is licensed under a Creative Commons Attribution-Non-Commercial 3.0 Licence.

The Democratic Society is a non-partisan membership organisation supporting participation, democracy and new models of networked governance.

Damian Radcliffe is the author of Here and Now – UK hyperlocal media today, the UK’s first review of this emerging sector, and an Honorary Research Fellow of the School of Journalism, Media and Cultural Studies at Cardiff University. Twitter: @mrdamian76.

I found the relatively new blog Inforrm a very useful bridge before I got hold of a university log-in, but even with my newly acquired access to legal journals, the site remains an extremely useful way of digesting media law news.

Informm has written an introductory guide to blogging in the UK, referencing several other blog lists, which I heartily recommend. It includes its “personal suggestions for of UK blawgs – focussed on those at the ‘serious’ end of the scale, providing useful (and regularly updated) information for practitioners or with some relevance to those with an interest in media related legal issues.”

In today’s media round-up Inforrm picks up on the BBC’s report about a solicitor’s firm which says it has “taken forward six defamation actions involving Facebook in the last nine months.”

Richard Wilson, blogger at Don’t Get Fooled Again, has rightly criticised the article for some of its flaws (via Twitter) but even at the risk of exacerbating the problem, I’m glad to see the issue raised.

There needs to be investigation in this area, but from very informal anecdotal evidence, I’d say that many Facebook users are unware of the libel risks. This is something that should be addressed, through further research and better online guidance.

On his blog, Vallée reports:

The film cassette was seized by police on the street under Section 19 of the Police and Criminal Evidence Act 1984 on Monday 30 August 2010 Brighton, England.

The police spokesman says that the officer took the film because:

The officer reasonably believed the tape contained evidence of a protester being assaulted by someone taking part in the march. It has been seized temporarily to ensure that evidence cannot be inadvertently lost or altered and will be returned, intact, to the owner as soon as possible.

But the incident wasn’t reported in the mainstream media. The Sussex Police head of media relations, Nick Cloke, who answers the photographers’ questions on Vallée’s blog, says that the Guardian was initially interested:

It’s also worth mentioning that after discussion with The Guardian they agreed that while the issues around Sections 19 and 23 merit debate – indeed, I have significant personal and professional interest in this myself – basing a story around this incident would not have been proportionate, hence they decided not to run it.

But the person whose footage it was, Glenn Williams, disputes that he was near the suspected GBH incident the police media officer describes.

Rights and wrongs of the issue aside, it’s fascinating to see the media officer jump into the debate, at such length.

Cloke offers this, for example, in reply to Williams:

Before explaining what I know about the alleged assaults and how I collated this information, it concerns me that you were given unlawful direction to stop filming in your initial encounter with the officer. This should not have happened and I will be following it up with the officer and their supervisor. The officer has been identified from the collar number in the pictures, but as I haven’t yet had a chance to address this, it seems unfair to name him now, particularly as naming will not impact on either your or my comments.

And gives these examples of where the police got it wrong on previous occasions (Cloke gives further detail in a subsequent comment):

Indeed, since I took up my post in November 2009, there’ve been two times when material was inappropriately temporarily seized from media by Sussex officers. In both cases, unreserved apologies were given, the officers involved were given management advice and since then we’ve started a training programme to make everyone more aware of the rights people have to record in public places.

In the past, I’ve put in quite a few calls to the police over photography incidents like these, and never received a response like this.

As we scrutinise the relationship between police, police media officers and journalists (an issue that is addressed in the New York Times’ phone hacking report), online contributions like these should be welcomed, and where necessary, their content challenged.