During the first seven weeks of evidence at his inquiry, Lord Justice Leveson has visited the outer reaches of journalism and ethics. But he has to look beyond the paparazzi packs and the story-lobbing editors and make practical recommendations for “effective policy and regulation”. A tempting menu of at least 12 regulatory models has been presented. The large and difficult question is which of these is at once practical and strikes the right balance between individuals, the public, and the press.
The judge has given some indications of the kind of model he finds attractive. On Tuesday 10 January 2012 he “floated the concept” of “some sort of arbitral system for speedy resolution of privacy claims, [and] potentially small libel claims“. Such a model of press regulation could improve access to justice while helping to solve the notorious problem of excessive libel costs. Would such a system work?
An arbitrator is an independent person who makes a final and binding decision about a dispute. There is no problem with a regulatory body including an arbitration system. This could decide privacy and libel cases. The arbitrators could have the power to award compensation or require the publication of corrections. Organisations that were subject to the new regulator could be required to take part in such a scheme.
But there is a problem. Everyone has a right – both under the common law and under article 6 of the European convention on human rights – to “access to court”. This involves a right to have disputes resolved by an “independent and impartial tribunal”. Of course it is possible to agree to resolve a dispute in another way, such as arbitration. But there must be agreement. The “right to court” cannot be taken away by compulsion.
Claimants could refuse to take part. As Leveson noted, “if it’s consensual, then the very, very wealthy will simply say ‘I’m not interested’“. So members of the public would have to be given a choice as to whether to take part in a new regulator’s arbitration system and there would be a risk of “two-tier” justice: the courts for the rich and cheap arbitration for everyone else.
Two ways out of this problem have been suggested. The first is to create a “libel tribunal”. This would have to have all the basic characteristics of a court – independence, impartiality and fair procedures such as cross-examination and proper access to documents. There would be no “access to court” objection to everyone who wanted to bring a libel or privacy claim against the media being required to use such a tribunal, just as anyone bringing an unfair dismissal claim must use an employment tribunal. This is, for all practical purposes, a court and the libel tribunal would have to proceed along similar lines. But the disadvantages are obvious. It would be expensive to set up and run, and would risk becoming over-legalistic.
More interesting is a scheme all would-be complainants would be required to use, which involves only interim determination. Such a scheme, modelled on the construction industry adjudication scheme, has been championed by Alastair Brett, a former legal manager of Times Newspapers and long-time advocate of the early resolution of libel disputes (he discussed this on Inforrm last year). This proposal would mean that those bringing claims against regulated organisations would have to submit them to adjudication by independent experts. Court proceedings would be temporarily “stayed”. Adjudicators would make swift decisions on compensation and corrections.
Under the Brett proposal, this process would be paid for by the newspapers and unsuccessful claimants would not have to pay costs. The adjudicator’s decision would not be final. If either party did not like the result they could still go to court – although construction industry experience suggests that most adjudicators’ decisions are accepted. The possibility of participation in such a system could be an important carrot to attract the media into a new, voluntary regulator. Many practical issues remain to be worked out but an “adjudicatory” system might overcome the problem of compulsion and deliver the cheaper, more effective access to justice which Leveson seems keen to achieve.
Hugh Tomlinson QC is a barrister at Matrix Chambers specialising in media law and an editor of the Inforrm blog. He is a a contributor editor of a new proposal for a Media Standards Authority, including an adjudication element, to be launched later this month.
This article was originally published in Media Guardian and is reproduced with permission and thanks.