The debate over press regulation will start again in earnest in the coming weeks. What is extraordinary is how the press and the government have so far failed to find a workable way forward in implementing the Leveson recommendations. The press cries “no statutory intervention” so the government, terrified of upsetting the press, comes up with a complex royal charter rather than a simple statute.
How and why no one has seen the need to draw the crucial distinction between pre-publication “self-regulation” of the press – as recommended by Lord Justice Leveson – from post publication dispute resolution through a “free” arbitral process defies belief. The passing of two pieces of legislation earlier this year with provisions in them about Press regulation – the Enterprise and Regulatory Reform Act preventing Parliament changing the royal charter without a two thirds majority in both Houses and the Crime and Courts Act, which leaves publishing companies which do not join the new regulator liable to awards of exemplary damages, proves what a mess the government is making of the Leveson recommendations.
The two recommendations which really scare the press are the idea of a “free” arbitral process for all media disputes and the new regulator having to hear complaints, not just from individuals but from any crack-pot lobby group which believes that an article is wrong or unfair. To add to this, the government has just issued a consultation paper on its latest proposals to introduce “costs protection in defamation and privacy claims” for those of “modest means”. While designed to give access to justice and allow the less well-off to protect their reputations and privacy, this will enable poorer claimants to bring borderline claims against newspapers, knowing they will never have to pay the defendant’s costs even if they are unsuccessful.
That, plus the earlier Leveson recommendation that there should be a “free” arbitral system for defamation and privacy complaints sends shivers down the spine of editors who envisage every minor inaccuracy or privacy complaint turning into a five or six figure claim for damages, rapidly send an ailing Fleet Street into bankruptcy.
The press barons now see a “free” arbitral process or “costs protection” for claimants as giving rise to a form of “legal aid blackmail” – “pay up quickly and it won’t cost you more than a couple of thousand pounds but fight the claim and even if you win it will be a Pyrrhic victory as you will never recover your costs”. So, without an effective deterrent against frivolous claims, any “free arbitral system” is likely to fail and costs protection orders could lead to terrible injustice.
Leveson spotted these problems and made it clear that any “free” arbitral process for media disputes, must include “a system to allow frivolous or vexatious claims to be struck out at an early stage”. There lies the rub. How can this be done quickly and effectively without the new press regulator breaching Article 6 of the European Convention on Human Rights whenever claims against its own members are struck out?
The government must learn from the Constitutional Reform Act 2005, which set up an independent judiciary, and replicate parts of it to set up a free, independent and self-regulating press, protecting free speech like the first amendment in the US.
If this statute also provided that no one could issue a high court claim for defamation or privacy and seek damages without first having been through a mandatory, 28 day “fast track” adjudication process, the press would be delirious. Just such an adjudication system was introduced for the construction industry in 1996. Quick construction industry adjudications have been a remarkable success and could easily be replicated in the newspaper industry and form the basis for a Leveson-type “free” arbitral process.
The government must therefore come to grips with “pre-publication self-regulation” and let the press get on with its own code of conduct and how this will be effectively and properly administered. At the same time the government should seize the bull by the horns and make it clear that the administration of justice, post publication, does require statutory intervention or high court rule changes, so that it applies equally to rich claimants and powerful publishers. There must also be access to justice for everyone but this must mean being able to strike out frivolous or vexatious claims on day one.
The Press’ fear of a “free arbitral” system and/or “costs protection” orders is illusory. Mandatory fast track arbitration or adjudication for both claimants and defendants is infinitely quicker and cheaper than fighting long drawn out libel actions. Paying for an experienced independent arbitrator or adjudicator to rule on a “key issue”, like the meaning of the words complained of or if they are an honest comment or statement of fact or in the public interest, right at the outset, enables most actions to settle within days.
The new press regulator could use a small group of experienced independent lawyers to filter claims: some would automatically go forward to 28 day adjudication while other claims would be deemed so frivolous as to be rejected and the claimant invited to make a Part 8 application to the high court to have the case certified as properly “justiciable”. It is vital that under any “free” arbitral system, the arbitrator/adjudicator has a discretion to penalise one side or the other in costs where the system is being abused.
Any fast track arbitral process, even with the newspaper paying the arbitrator’s fees to determine a key issue – unlikely to be more than a few thousand pounds – will be infinitely cheaper than a long drawn out and hugely expensive high court action running into six figures. The press must now get its act together, accept that there needs to be statutory intervention in relation to post publication matters and also to set up a free and independent Fourth Estate, like the judiciary, as an essential bulwark to our democracy.
Sir Charles Gray, former High Court judge and Alastair Brett, former Legal Manager at Times Newspapers Ltd, now respectively Chairman and Managing Director of Early Resolution CIC a company set up to help litigants resolve media disputes.
This article originally appeared in the Guardian Media section and is reproduced with permission and thanks