Before Lord Justice Leveson can begin to formulate a plan for the regulation of the press, one that meets the criteria he indicated that he favoured when addressing the Inquiry on 28 May 2012, he will have to have a hard look at some practical issues.
It is easy enough, and many have already tried, to put forward broad principles for reform, but a lot harder to devise a detailed, workable system.
Few would quarrel with the desiderata of the Media Standards Trust in its paper dated 21 June 2012 and it finds a neat solution to the difficulty of how to persuade or cajole the press to participate in a self-regulated new system. Its answer is that any publisher above small company level must on pain of a fine join in a self-regulating organization, or SRO (it doesn’t matter which one, provided it meets the criteria) and that the SROs will then be monitored by an independent auditor.
We can all agree that the press should have or adopt a code of professional standards; that it should have a transparent mechanism for dealing with complaints and claims; that breaches of the code should be met with meaningful sanctions; that ideally complaints should be resolved within 28 to 42 days; and that having adopted standards it says it will live by the press should be subject to an audit process, with penalties for non-compliance.
Reading the various proposals, one often gets the impression of a paper based approach, one which has in mind a typical claim or complaint by an ordinary member of the public. But as practitioners in the field of media law will know, there is really no such thing. Claims (and here I mean legal claims, not just complaints about breaches of the PCC Code) come in all shapes and sizes; some by reasonable, some by utterly unreasonable people, some with, some lacking merit, some seeking to shape the news or even pressurise newspapers to drop inquiries. Practitioners will know that there are reasonable complainants, but also some who go on to become litigants in person, who will never admit they are wrong and whose claims may have to be settled simply to avoid wasting time and money. Allowing groups to invoke the Code would also tend to encourage unreasonable complaints. At a time when the press is already struggling financially, we must be sure that we are not adding to an already stringent legal regime a mechanism which is going to overburden it with regulation.
Some of my criticisms of the proposals put forward by Lord Hunt and by Hugh Tomlinson QC can be found here, at the end of a paper for a LexisNexis conference on Privacy, Defamation and the Media held on 28 June 2012.
Regarding the Tomlinson proposals for a dispute resolution procedure, my concerns are broadly that it would increase complaints and claims and hence costs falling on the media, because it would offer complainants a free to use service; that it would not be suitable for claims of any complexity; and that it could be abused by unscrupulous claimants. It is a considerable step to offer a free complaints service, leading to adjudications which are not binding on the parties. I agree that, in some cases, however, this could give parties a useful indication of a disinterested legal expert’s view and lead to claims being dropped or settled, at a saving in legal costs. (Tomlinson would allow participating publishers to block court proceedings and require claimants to use the adjudication service first.)
At least Tomlinson has a detailed plan for how the system would work. The Hunt proposals envisage a regulator with power to compensate or fine, but are short on additional details. The Media Standards Trust doesn’t descend into detail either. It calls for SROs to “provide the public with an independent forum for complaints. This would need to be accessible, transparent, and free at the point of use”. It talks about “appropriate redress” and seems to envisage that decisions by SROs might involve “financial sanctions or compensation”, but the Trust simply says that SROs “would develop their own sanctions regimes based on guidance from the [independent auditor]”. Critically, the Trust does not explain where the line would be drawn, if at all, between Code breaches and legal complaints. Would its independent complaints forum be expected to award compensation for breaches of privacy or for harassment (cf clauses 3 & 4 of the current PCC Code) or for repeated libels on the McCanns? It is not clear whether the new complaints regime is intended to run in place of, in parallel with or in addition to existing legal avenues of redress.
It is vital that we have a clear idea of how this would work in practice. I suggest that Leveson should call on, say, 10 media lawyers (eg 6 in-house or defendant lawyers and 4 claimant lawyers, to take account of the fact that the former will be dealing with unrepresented claimants) and ask them to submit anonymised details of their half dozen latest claims, together with their assessment of whether they would lend themselves to resolution by an ombudsman or adjudicator or regulator, especially of the kind proposed by Hugh Tomlinson. Let Leveson LJ then factor that in to his considerations, in order to stress test any new model.
Meanwhile, one could do worse than look at some of the last few decided cases in the field, as a rough indication of the limits to a fast track system. Hence:
Church v MGN. Tugendhat J refused to give a ruling based on written submissions, holding that the C was entitled to an oral hearing on meaning.
Flood v Times. The SC overruled the CA in this case which raised complex questions about the ambit of the Reynolds defence and ‘responsible journalism’.
Hunt v Times. This raises complex questions too, not just about Reynolds, in the wake of Flood, but about rules of pleading and the defence of justification.
Thornton v Telegraph. This revolved around the issue of malice, in relation to statements by the writer, and was a fact heavy case.
Brookes v Facebook. This was an application against a social media site, which is not and likely would not be covered by a regulator.
Ferdinand v MGN. This privacy action led to a new, arguably more worldly approach to the balancing of Arts 8 and 10 and consideration of the extent to which public interest in the conduct of a high profile footballer outweighed his right to privacy in his personal life.
Trimingham v Associated. Very personal and abusive comments about the C were held not to amount to harassment, in light of some of her past conduct, a controversial decision which may be appealed.
Let Leveson LJ also consider the extent to which the proposed new regulatory systems would have prevented, had they been in place at the time, the ‘big issue’ failings of the press, such as phone hacking, payment of police for information and press intrusion. I do not suggest that a regulator would have been ineffective in all cases. But it does seem to me that, for example, investigating phone hacking at News Group in the aftermath of Goodman and Mulcaire, and doing so fully and effectively, is a job far beyond the resources of any regulator and was and is par excellence a matter for the police. This should remind us all of the limits to effective regulation and the danger of expecting too much from an enhanced system of regulation. Above all, we need to bear in mind what a new system would cost and who would fund it.
Richard Shillito, Consultant, Farrer & Co