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
Some interesting ideas but there are number of important mistakes.
First, the Leveson model for independent “self-regulation” of the press is not a proposal for “pre-publication” self-regulation: it has three parts “complaints” (post publication), “standards” (pre and post publication) and “arbitration” (post publication).
Second, the Enterprise and Regulatory Reform Act and the Crime and Courts Act do not “prove” that the Government is making a mess of the Leveson recommendations. They implement those recommendations.
Third, the new regulator does not “have to hear” complaints from “any crackpot lobby group”. The regulator has a discretion to hear third party complaints, Sch 3, Para 11 of the Charter provides that, in relation to third party complaints
“The Board will need to have the discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby”.
The press have been scaremongering about third party complaints – there is in fact little change from the present position.
Fourth, the “costs protection in defamation and privacy claims” (which implements a Jackson recommendation lobbied against by the press) improves the position of the press as compared to the present position where newspapers are liable to success fees and insurance premium.
Fifth, the editors have never produced any evidence that free arbitration will lead to a flood of complaints. Minor complaints will not give rise to claims.
Sixth, frivolous and vexatious claims can be dismissed by an arbitrator (just as they are dismissed by a court). There is no Article 6 issue about an arbitrator dismissing a bad claim. And very bad claims can be refusal admittance to arbitration at the beginning.
1st. We know and accept that the Leveson model has three parts to it. What is important is that there has to be some statutory intervention and it is critically important to see this in relation to the each part of the Leveson recommendations. The Press is inclined to see everything in terms of “standards and editorial control” and does not appreciate the need to think constructively about those post-publication recommendations – complaints and arbitration – where statutory intervention is not only important but vital.
2nd We think we are entitled to a view on the mishmash of Government legislation which has been enacted to underpin a Royal Charter which has not yet been put in place and provide sticks and carrots to join the new Press Regulator which is still miles from recognition.
3rd. The Press believes rightly or wrongly that the new Press Regulator will be under a duty to consider complaints from third parties – quite different from the current position – and those complaints won’t always fall into one of the boxes where they clearly have a discretion to reject the complaint.
4th. Recoverability of ATE premiums and success fees from losing defendants in libel/privacy actions is almost certain to go. That likelihood and the Government’s latest Consultation Paper,Costs protection in defamation and privacy claims looks like an attempt to put pressure on the Press to begin to agree to some sort of “free” arbitral system for media disputes. A costs protection order issuing in a marginal case which a newspaper wants to fight as a matter of principle is no great improvement on the current situation.
5th Regionals can and do get privacy complaints under Paragraph 3 of the PCC Code which could suddenly metamorphose into High Court privacy claims involving damages IF the arbitral system is “free” and the complainant has nothing to lose. This fear, while largely illusory has to be taken seriously.
6th There would be an Article 6 issue if the Arbitrator was part of the new Regulatory regime and he/she “struck out” a claim against a member of the new Regulatory authority. Constructing a filter system for the new regulator does involve Article 6 issues if the arbitrator works for the regulator and has the power to strike out.
Alastair Brett
Three points in reply (using the same numbering):
3. If the press believes that the new regulator would have a duty to consider third party complaints they haven’t read the Royal Charter. It doesn’t. As I said before, this is “scaremongering” and should be condemned, not repeated as fact.
5. Not sure why you think that a “largely illusory” fear must be taken seriously. It shouldn’t be.
6. The arbitrator is not “part of the new regulatory regime”, he/she must be “independent and impartial” (in the same way that FA arbitrators are part of a system set up by the FA but independent of it).