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A sabre toothed PCC for press complaints and libel actions? – Alastair Brett

The Press Complaints Commission is in the operating theatre and in a critical condition.  It cannot compensate victims for serious breaches of its own Code nor can it mount proper investigations into press malpractice.  It needs a major blood transfusion and a complete set of canine implants.  Until it has some proper teeth it will remain the “watchdog with rubber dentures” and be the laughing stock of regulatory bodies.

That does not mean to say that it has not fulfilled an extremely useful role as a mediating body which has enabled thousands of people, at little or no legal cost, to obtain corrections and apologies in published and on-line material.  It has also sent out increasing numbers of desist notices to newspapers when celebrities or those suffering from grief and shock need to be protected from marauding hordes of paparazzi or unrepentant journalists.  None of this should be under-estimated or lost sight of in the rush to replace an ailing PCC.

So the time has come for major surgery or last rites.  With defamation reform on the Coalition agenda there is no earthly reason why libel and privacy should not join the PCC in the same operating theatre.  With a bit of deft surgery, it should be possible to reconstitute the PCC as the Office of Press Regulation and Adjudication (“OPRA”) with a firm statutory base and streamlined procedures.  This new body would be like the Advertising Standards Authority but be divided into two distinct sections – a “mediation” division offering services like the old PCC over breaches of its Code of Practice and an “adjudication” division which would offer fast track adjudication of libel and privacy actions, like in the Construction Industry, but at a fraction of the cost of current High Court proceedings.

Above all else OPRA must be outside State control, self-financing and highly professional. It needs to be a voluntary body with its own Code of Practice which commands the highest respect.  In order to get over the “Desmond” problem there must be major incentives for all commercial publishers to join it.  The Statute setting up OPRA would thus make it clear that only those commercial publishers signing up to its Code of Practice would be exempt from VAT.  Second, only those commercial publishers who were members of OPRA could stay a High Court libel or privacy action and have it referred to OPRA’s independent media law experts for fast track adjudication of key determinative issues.  This adjudication system would be similar to that used in the Construction industry and be binding on the parties unless challenged in a higher forum, either the High Court or Court of Appeal.

OPRA would thus be able to award damages or order corrections and apologies through a process of quick adjudication.  The only thing its independent media experts – retired High Court judges or practising silks – could not do would be to grant injunctions. For these a claimant would have to go direct to the High Court.  Anyone starting an ordinary High Court libel or privacy action against an OPRA member without first going through OPRA’s fast track adjudication system would have their action stayed and referred back to OPRA and its experts for adjudication. Commercial publishers not joining OPRA could, on the other hand, be sued immediately in the High Court and could easily face a claim for aggravated or exemplary damages for refusal to abide by OPRA’s Code of Practice.

Managed carefully, this new fast track adjudication system, modelled on the Construction Industry’s scheme, could save hard pressed newspapers hundreds of thousands in legal costs.  It could also provide access to justice for all those low or middle income earners who currently cannot begin to afford a libel action.  Instead of having to issue expensive High Court proceedings, someone seeking compensation for real damage to their reputation or right to privacy, would take their case to OPRA’s adjudication division. If it was deemed a genuine and bona fide claim, it would set off down the OPRA fast track adjudication scheme with an OPRA media law expert identifying the key issues for early determination.

OPRA would pay for the cost of an independent medial law expert/adjudicator and there would be “one way costs shifting” in favour of the claimant.  This would mean that the OPRA media law expert could not normally make a costs order against the claimant – except in the case of fraud by the claimant. Thus a claimant would not have to take out ATE insurance to protect himself/herself against an adverse costs order and there would be no need for success fees where a claimant might have entered into a conditional fee agreement with his/her solicitors.

The parties could also choose whether they wanted an issue like “meaning” determined by a single expert or with the help of two lay assessors.  Above all else, key issues would be determined right at the outset of an action enabling a publisher to make an offer of amends where appropriate or a claimant to back off before huge costs were incurred.

The time is quite clearly right to overhaul not only the substantive law of defamation but also the mechanisms and procedures whereby members of the public can get access to justice at a reasonable price.  Defamation and privacy have become a rich man’s sport and with the likely demise of Conditional Fee Agreements, it could become even more difficult for the average person in the street to get proper redress through the Courts or the PCC if Parliament does not set up a properly funded and authoritative regulatory system for the Press.  And any such system must be designed to embrace the new high tech age we live in so that there is proper recourse against rogue bloggers and a suitable system of sticks and carrots to make not only the national media but bloggers join a voluntary body like OPRA.

Explanation of the key elements in the Office of Press Regulation and Adjudication

The salient features of any new regulatory body like OPRA would be as follows:-

1.  OPRA would be an entirely independent regulatory authority with its governing body made up of appointees from the general public, the industry and experts in relevant fields.  It would need to be set up under a Press Act 2012.

2.   All commercial publishers whether electronic publishers or hard copy publishers would have to register with OPRA if their circulation or ‘visits to their website’ was above a certain number. Only by registering with OPRA and agreeing to abide by its Code of Practice would a commercial publisher be entitled to zero rated VAT.  Registration would also enable OPRA to send out desist notices to all major publishers and for members of the public to locate a publisher if legal or disciplinary action had to be taken. In effect this would take the place of the statutory duty to carry an “imprint” under the Newspapers, Printers, and Reading Rooms Repeal Act 1869.

3.   OPRA would draw up a set of Guidelines for commercial publishers like that set out in the Appendix but its primary function would be to enforce a Press Code of Practice very similar to the PCC’s current Code of Practice.  This would be reviewed annually by OPRA’s Code Committee.  This like its main management committee would consist of representatives from the industry, the general public and experts in relevant fields.

4.   OPRA would be financed by a) a small registration fee levied on all commercial publishers and b) by a small levy on each Members’ average circulation or number of weekly visits to its website.  This would be similar to the way in which the ASA is financed but while the registration fee would be compulsory, the levy based on circulation would be voluntary and dependent on the commercial publisher becoming a paid up Member of OPRA.

5.  OPRA would report annually to the Department of Culture Media and Sport (DCMS) and petition the DCMS (like the ASA petitions the Office of Fair Trading) to take action where it, OPRA, was either unable to regulate the conduct of a commercial publisher because it was not a paid up Member or it was unable to provide the relief sought (e.g. injunctive relief) or an inquiry needed to be mounted into press malpractice.  Thus, the DCMS would act as a backstop to OPRA like the OFT acts as a backstop to the ASA.

6.  OPRA’s regulatory functions would be split into two divisions:-

a)      It would have a Mediation Division like the current PCC which would deal with breaches of its Code of Practice. This would not normally involve lawyers and be cheap and quick. If the matter could not be mediated to a satisfactory conclusion it would pass the dispute to its Adjudication Division (see below)

b)  It would have an Adjudication Division which would resolve all legal actions involving a claim for compensation between claimants and Members of OPRA.  This statutory adjudication system for defamation and privacy claims (including serious breaches of the Code of Practice involving privacy) would be an obligatory pre-cursor to High Court proceedings (except in the case of emergency interlocutory injunctions). As under the Construction Industry’s adjudication procedure (Housing Grants and Regeneration Act 1996 sections 108 and 114), both parties would be bound by the adjudicator’s findings unless and until one party challenged the ruling in the High Court (a built-in appeal process).

7.  The cost of referring a key issue in a libel or privacy action to an independent expert in media law for adjudication would be funded by OPRA but the adjudicator could always recommend that the Member pay the adjudicator’s fees where the adjudicator took the view that the publication was irresponsible and/or a repeat offence.

8.   OPRA’s Adjudication Division would refer all libel actions, where there was a prima facie case, for early resolution of key issues, like meaning or comment, to an independent media law expert, either a retired High Court judge or a leading silk in defamation or media law.  The parties would agree the adjudicator who would sit on his/her own OR with two lay assessors if the parties so wished. If there was no agreement by the parties as to the expert, OPRA would appoint the adjudicator.

9.   There would be significant costs benefits to OPRA members under its practices and procedures. While an OPRA Member might have to pay the Claimant’s reasonable legal costs in resolving key issues at the outset, an OPRA Member would never have to pay Claimant lawyers’ success fees or ATE premiums as at the early stages of an OPRA adjudication there would be ‘one way cost shifting’ in favour of the claimant.  The only case where an OPRA adjudicator could make a costs award against a claimant would be where the adjudicator found there had been fraud on the part of the claimant.

10.   OPRA would be able to issue advisory desist notices to all registered on-line or print media publishers. Failure to abide by a desist notice would leave an OPRA member subject to OPRA’s disciplinary practices and procedures and a non-member open to legal proceedings by the DCMS in the High Court for an injunction and what might be aggravated or exemplary damages with all the costs consequences that that would entail.

11.   If OPRA felt it was necessary to mount an inquiry into a particular press malpractice, OPRA would petition the DCMS for funds and for a statutory inquiry to be set up under the Tribunals of Inquiry Act 1921.  This would normally be chaired by a High Court judge and would have all the powers of a statutory tribunal to summon witnesses and take evidence.

Alastair Brett, Media Law Consultant & Managing Director Early Resolution CIC

5 Comments

  1. Norman

    This is a very interesting contribution although it seems to carry an inclination to presume publications are at fault. I would like to see a provision that national governments, international state organisations and similar agencies would be forbidden to use OPRA.

    • Early Resolution (@EarlyResolution)

      Don’t worry, councils and governments cannot sue in libel so would not use OPRA. Only individuals working within a council or public body who are identified in the piece can sue for libel and they, like everyone else, should be able to get justice through OPRA

  2. Elaine Decoulos

    Well done Mr. Brett. Finally some well thought out proposals with some meat on the bone and practical application. This is certainly a better use of your skills than in your previous position…It looks like we may all be thankful you left. Your legacy may be finding a way to reign in the reckless British press. As they say, it takes one to know one.

  3. Norman

    The ‘reckless British press’? How can you possibly describe a press in such terms when it has exposed numerous public scandals down the years. Was it reckless to expose phone hacking? Was it reckless to expose the MPs’ expenses fraud. Was it reckless to home in on Maxwell and his cronies? It was the courts and regulatory agencies that reigned in the early exposure Cap’n Bob and several other rogues in public life. Let us have a Press that is a bit more reckless, not less.

  4. Elaine Decoulos

    Norman, I was referring to the poor standards and ethics of the mostly tabloid British press, which are indeed reckless and worse, not its successes in investigative reporting, which are many and could be more.

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