The Leveson report – (ab)use of process? – Tim Press

The wait is over, we now know Lord Justice Leveson has steered close to, but avoided a compulsory scheme of press regulation.  The incentives to join the voluntary scheme proposed are therefore crucial.

Leveson proposes four main incentives:

• the “kite mark” of quality journalism that will only be available to members
• less burdensome regulation by the Information Commissioner, given that the new code will include strict rules on use of data
• joining the scheme will give access to an arbitration service for disputes with members of the public and avoid a punitive costs regime that will apply to litigation otherwise
• and avoid exemplary damages that would be available in defamation cases against non-regulated defendants

The first two points do not look to be knock-outs, but the next two are more complex and form part of the “statutory underpinning” of the proposed scheme (along with indirect oversight by Ofcom).

Arbitration is a system where disputes over legal rights are decided by someone who acts in the same way as a judge but is paid privately.  Participation must be agreed but, if it is, the law will treat the outcome as binding and enforce it like a judgment – so damages awards can be made.  The proceedings are confidential, the fees of the arbitrator are paid by the parties, and generally no award of legal costs is made at the end of the process, whatever the outcome.

Leveson hopes that this system, with experienced media lawyers as arbitrators, will be cheap and quick.  That is possible, especially if (as proposed) the arbitrators’ fees are borne by the industry.  But as it is a legal process, representation will be needed on both sides.  How cheaply this can be done will depend on the terms of the arbitration scheme, whether there will be live examination of witnesses and other procedural formalities.  There will still be significant costs which complainants and newspapers have to bear. Richard Moorhead has blogged about this, noting the tendency of lawyer-driven processes of all kinds to generate costs.

Leveson hopes to use this as an incentive by making court litigation even less attractive.  In litigation the losing party normally pays the winner’s costs.  Leveson proposes denying this in situations where arbitration under a “statutorily underpinned” self-regulatory scheme was available, and in some cases ordering newspapers who win to pay defendants’ costs.  For this to be an incentive, the arbitration scheme must only be available to regulated newspapers and the costs of the arbitration must be kept low.

Would this really work – and could refuseniks get around it?  What if a refusenik offered to go to arbitration on identical terms?  The courts have to act fairly based on the facts.  When presented with identical facts, it would be difficult for a court to say “we are denying you your costs simply because you didn’t join the official regulatory framework”.  In any event, if the press choose not to co-operate and so no scheme with “statutory underpinnings” emerges, the new cost rules will not kick in.

Another problem is that an amendment to the Civil Procedure Rules may not be sufficient.  The objectives of the Rules do not include press regulation, so any changes would have to be for civil justice, not regulatory, purposes.  The legality of a rule affecting only newspapers could be challenged.  To avoid this, an Act of Parliament would be needed, or the scheme made to apply to all industries (difficult, and why fix what isn’t broken?).

Exemplary damages would only kick in if a case was brought.  The complaint against some sections of the press is that they behave with impunity against the poor and weak, who cannot afford to bring a claim.  This branch of the press will continue to be able to behave in this way provided it chooses its targets wisely and stays outside the regulatory system (thus denying access to arbitration).  In cases that did get to court, much would hinge on how much discretion the court had:  would it be open to a more responsible newspaper to argue that they should be judged on their general conduct and whatever regulatory scheme they chose to join, rather than just on their non-co-operation with the “statutorily underpinned ” scheme?  As with costs, the use of the law of damages for back-door regulatory enforcement has difficulties.

True, Lord Justice Leveson also proposes implementing the Jackson reforms in media cases.  These limit the liability for costs of unsuccessful claimants in some situations, with the aim of making litigation a more attractive option for the less well off.  It is not clear that this would assist all those affected by the press:  lawyers would still need to be paid or persuaded to take the claim on a “no win no fee” basis, and the court case would be public and more stressful than an arbitration.

The efficacy of these incentives is unclear.  Whilst public pressure may force the press into Leveson’s arms, the worst case scenario for the reforms, is that the more responsible wing of the press forms its own regulatory body, without statutory underpinnings, but picking up on many aspects of Leveson, whilst the maverick outliers continue to thrive on their outlaw status.  If the aim is that all the press is regulated by a particular body, is not the simplest approach for the law to impose this?

Tim Press is a qualified solicitor and was a partner with Woodham Smith and Taylor Joynson Garrett, before moving to academia. He currently teaches Intellectual Property to undergraduates, and litigation and advocacy and commercial litigation on the Legal Practice Course.

This post originally appeared on the Cardiff Law School blog and is reproduced with permission and thanks