Scotland PapersAlmost a year on from the publication of the Leveson Report and media regulation in the UK remains in a state of flux.  Two charters are currently vying to establish a recognition body to keep tabs on a press regulator in the UK.  But both could result in a stalemate.  This blog considers the impact on the regulation of the press in Scotland and whether there are alternative options available.

Two proposals are currently on the table – the cross-party charter, sanctioned by the main political parties and the Press Standards Board of Finance (PressBoF) charter.  Both will be considered by the Privy Council over the next few weeks.  There is scepticism that the PressBoF charter actually achieves Leveson’s aims of an independent and effective system of self-regulation, in comparison to the cross-party charter which achieves most of them.  The press and the politicians are at loggerheads and there are worries that there is very little prospect of newspapers supporting the cross-party charter.

The process is slow and frustrating but where does it leave Scotland?  The situation is intriguing as

  • press regulation is the responsibility of Scottish Parliament;
  • there were victims of press malpractice in Scotland; and
  • there is a separate legal framework which operates in Scotland.

Scotland has a number of publications which are Scotland centric.  Do papers such as the Daily Record, the Press and Journal and the Scotsman require a UK wide regulator?  And indeed, the revealing of Ryan Giggs (as the footballer who had been granted an anomyity injunction) by the Sunday Herald gave the best illustration of a newspaper operating in a separate legal jurisdiction.

At present, Scotland favours the UK wide cross-party charter, which is diluted from previously advocating a separate system of Scottish press regulation.  Signs are that this may be a cunning PR decision from Alex Salmond in the run up to the referendum on Scottish independence in September 2014, as he tries to garner press support amid anxieties about the sizeable cost of a separate Scottish regulator.

While this may be the right or the wrong way to proceed, it is crucial that any proposal is compliant with Scots law.  Doubts about the legality in Scotland of some of the proposals have been raised in the past and still remain relevant.  In particular, Leveson recommended introducing incentives to publishers to join the new regulator and penalise publishers who chose not to join.  The cross-party charter has proposed an arbitral process in relation to civil legal claims.  While advantages such as speed and cost are obvious, it is critical that any proposals adhere to the separate law of arbitration in Scotland which is now largely codified in the Arbitration (Scotland) Act 2010.  At present, the cross-party charter only stipulates that the arbitral process must comply with the Arbitration Act 1996.

In attempting to make the system accessible to the public, Leveson wanted claimants to be able to rely on the failure by a newspaper to subscribe to the regulator as it deprived the claimant the right to proceed to arbitration.  With this in mind, he suggested that, absent the unreasonable or vexatious conduct on the part of the claimant, it would be inappropriate for the claimant to be expected to pay the costs incurred in pursuing the action.  There may be complications of implementing this in Scotland as the general rule is that “expenses follow success” and we will have to await the implementation of the recently published Taylor Review of Expenses.  It is difficult to see how this “incentive” would operate in Scotland at the moment.

Of similar angst from a Scottish perspective, the Crime and Courts Act 2013 in England and Wales will make publishing companies that do not join the new regulator, liable to awards of exemplary damages.  Firstly, this act does not apply in Scotland.  Secondly, the general function of damages in Scots law is compensatory or restorative.  Exemplary damages are unknown to Scots law and there is no system of aggravated damages available.  This leaves the position in Scotland particularly unclear and it is difficult to see a practical alternative to making it compulsory for all publishers to be subject to the new system of regulation.

There are suggestions that even if the cross-party charter is approved by the Privy Council, the majority of newspaper publishers will reject it.  The Scottish Parliament may be forced into a decision in order to ensure that the system does not break down.  What may be most advisable is a hybrid position where an independent UK press regulator is formed and a separate Scottish Recognition body is adopted to ensure the regulator acts in accordance with the Leveson recommendations with the press in Scotland.  The Scottish Parliament would then have the power to establish the criteria which will determine the publications to be subject to the jurisdiction of the new regulator.  It could conceivably legislate that all publications distributed in Scotland shall be subject to the jurisdiction of the new regulator even if there are issues in England and Wales with publishers opting out.  This would negate the need to provide non-Scots law compliant incentives.

It is important to be mindful of the looming prospect of potential independence for Scotland in the future.  The Scottish Parliament risks being tied into Westminster legislation for the foreseeable future with no opportunity to amend without a two-thirds majority in the UK Parliament (due to the Enterprise and Regulatory Reform Act 2013).  Scotland must and should (where necessary) protect its own future on press regulation.

It is hoped that the press and political stalemate will subside in due course and that the regulation of the Scottish press will either have a UK recognition body which complies with Scots law or their own separate Recognition body which has the power to set its own agenda.  This will ensure that those resident in Scotland can be adequately protected from abuse of the kind that the Leveson Inquiry identified and examined.

Stuart Tennant is a solicitor specialising in commercial dispute resolution with one of Scotland’s top commercial law firms.