Tonight, Alan Rusbridger gives the annual Orwell Lecture, entitled “Hacking away at the truth”. In the lecture, he reflects on the broad lessons for British society arising from the phone hacking scandal as well as expressing several reasons to be optimistic about the Leveson Inquiry. He also sets out five proposals for press regulation, including for the first time proposing a “one-stop-shop” mediation service for libel and privacy cases as an alternative to the courts.
The full speech is available here. This is an extract relating to mediation and a new regulator.
Let’s look at the list of people most journalists don’t want to have a hand in deciding what we publish: the list would include the courts, politicians, anyone domiciled in Europe, and any lawyers acting on conditional fee arrangements. So we want something British, non-legalistic, free from anything that smacks of the state, and something that’s cheap. If that’s the case, then doesn’t logic suggest that we should be suggesting to Lord Justice Leveson a new body which would offer a plausible and effective alternative to all these busybodies who are just dying to interfere.
Let’s stick an M (for mediation) in PCC. Maybe called it the Press Standards and Mediation Commission. It’s now our own one-stop shop disputes resolution service so that people never had to go to law to resolve their differences with newspapers. It would be quick, responsive and cheap. We could even make this a carrot to tempt people into the fold of independent regulation – i.e. newspapers that signed up to PSMC would have clear advantages to newspapers that didn’t.
Is it workable? Well, let’s start with libel – and here it could be a positive advantage that Parliament is currently discussing defamation reform, which could mean that Leveson could dovetail proposals with the excellent suggestions for overall reform which have come from Brian Mawhinney’s Joint Committee and from such organizations as PEN and Index.
How might it work? The PSMC would employ a small permanent staff to deal with libel questions, with a panel of qualified and neutral mediators. The mediator could decide on meaning. S/he could rule on questions such as whether the piece is fair and accurate; whether it’s an opinion or an allegation of fact; whether it’s in the public interest; whether the subject of the article had a reasonable chance to respond and whether his/her response was included. I.e., the mediator, where appropriate, could go through the sorts of questions that crop up under a Reynolds defence. The mediator could rule on prominence and wording of any correction and apology and settle any issues of compensation. Most of the issues could be settled on paper. There would be no fees recoverable on either side, beyond the reasonable expenses of a claimant. A record of the discussions would be kept by the mediator.
What’s in it for claimants? It makes libel infinitely cheaper and simpler. What’s in it for the press: the same. The quick, infinitely cheaper resolution of the vast majority of defamation cases. Of course, the mediation might fail. But, before any court action could be started, the trial judge would read the mediator’s report of the attempts to settle. If a newspaper could be shown to have made reasonable and honest attempts to deal with the issue, that could be reflected in a cap on costs and/or damages. You could further and say that a reasonable offer of a correction and apology should be a complete defence to libel, subject only to the payment of damages.
Of course, the devil’s in the detail and there would be much to work out if one were to think seriously about dovetailing the law of defamation with a new regulatory regime. But I think there’s enough there to merit serious engagement.
So much for libel. But I described the PSMC as a one-stop shop. What about privacy? We are always hearing journalists deploring the use of the courts to create a backdoor privacy law. So can we go further and deal with privacy cases as well as libel? Surely the logic is that we should try? But of course, we bump into the fact that, while there is a reasonable consensus about the iniquities of the libel law, there is much less agreement about the threat posed by a privacy law, or about the reasonable grounds for intruding on privacy.
What are the difficulties? Well firstly we need to agree on what we mean by “the public interest” – and stick to it. I’m one of those who think the PCC’s definition of the “public interest” is actually pretty good. Until the PCC’s report into phone-hacking, I was happy to serve on the committee which revised it. Others think it’s too prescriptive, old-fashioned, too obsessed with exposing iniquity, and too narrow. But, whatever definition we come up with – and I’m all for expanding the group of people who help us get there beyond a small pool of editors – let’s believe in it and be prepared to argue it. If we fight legal actions and mount campaigns over articles that even we don’t pretend are in the public interest as we define it, aren’t we inviting people to be cynical about our motives and our commitment to self-regulation?
Under the HRA, and at the request of the media by virtue of s 12 (4) inserted into the Act before it was passed, judges are obliged to pay special attention to this Code. The evidence is that they do – especially when balancing Article 8 (privacy) and 10 (freedom of expression). They will normally ask a newspaper whether they are saying that an article is in the public interest, as defined by the industry code. But, in the overwhelming majority of recent privacy injunction cases, the newspapers did not in fact argue that there was any public interest involved. To which one might respond, what’s a judge supposed to do? It’s fashionable to blame one judge, Mr Justice Eady, for single-handedly creating a law of privacy in this country. But a moment of self-reflection might concede that, as an industry, we have sometimes done ourselves no favours by testing the state of the law with a series of really quite weak cases – so weak that very few have been appealed and in some of which the newspaper didn’t even argue the merits of the case. There’s simple pragmatism involved here.
Supposing we all can agree on a public interest defence – including the 99 per cent of journalists who don’t write about other people’s sex lives – then what would stop the PSMC getting involved in privacy as well as defamation? It’s never been exactly clear what “the industry” thinks of the idea of policing the boundaries of privacy itself. It’s commonplace, as I say, to decry the judges trying to do it for us. So that suggests we should want to do so and that a one-stop shop that included privacy shouldn’t be unthinkable. Indeed, in May this year the chair of the PCC, Lady Buscombe, boasted that the PCC was already “more active than judges in defending privacy”. She said: “the PCC operates a pre-publication service that can work with editors to prevent intrusion before it happens.” The PCC director, Stephen Abell has said the same.
But there are two challenges we would have to face up to. One is the question of prior restraint. Are we really capable of agreeing on, and resourcing, in a service which could prevent information from appearing because it believed it did not meet the public interest test of the Code? It seems to be happening on an ad hoc basis already. Can we make it routine? Secondly, are we prepared for the PCMC to follow the general contours of the privacy jurisdiction as the courts have developed it? The second is surely critical to persuading would-be claimants to use our one stop shop over the courts. If it doesn’t look as though we take privacy seriously – or if we diverge wildly from the results obtainable through law – then people will simply carry on using the courts.
Why is this agreement over ‘the public interest’ so crucial? Because, in the end, the public interest, and how we argue it, is not only crucial to the sometimes arcane subject of privacy – it is crucial to every argument about the future of the press, the public good it delivers and why, in the most testing of economic times, it deserves to survive.
Alan Rusbridger is the editor of the Guardian. The speaker for the annual George Orwell lecture series is selected in turn by the Department of English and Humanities and the Department of Politics at Birkbeck College.