Press regulation is changing. On 29 October 2016, IMPRESS was officially recognised as the UK’s first ‘Leveson-compliant’ regulator. This is a momentous occasion. But recognition has been met with uniform hostility from the mainstream press. The Daily Mail was not alone in decrying the event as ‘an end to 300 years of press freedom’.
As a member of the IMPRESS code committee, I want to get to grips with these claims, not least because I know that code committee members have strived to reconcile the legitimate interests of the press with the legitimate interests of the public, including those who are occasionally victims of the press’s work. It is clear that some newspapers now feel threatened by the existence of IMPRESS and it is important to understand why.
It seems clear that the press does not object to regulation as such. The ‘irony’ of recognising IMPRESS, claims the Daily Mail, is that ‘the Press has never been more tightly regulated’. According to the Times ‘IPSO has the power to impose stiff fines and has already resolved dozens of complaints with sanctions and through mediation’. Moreover, they say, ‘every…national paper [apart from The Guardian, The Independent and the Financial Times] supports and is bound by IPSO and its editors’ code of practice’. Nor is the press suggesting that the IMPRESS code is more onerous than IPSO’s. As Peter Preston in The Guardian said, ‘Set the IPSO and IMPRESS editorial codes side by side and no one can see much difference. Apply those codes to current cases and there’s no obvious gap either’.
The press does object, though, to the perceived blackmail underpinning the government’s plans for press regulation. Recognition of IMPRESS has triggered s 34, Crime and Courts Act 2013. This allows the court to award exemplary damages against a publisher outside the scheme of recognised regulation (ie, non-IMPRESS members) but only if that publisher has had deliberate or reckless disregard, of an outrageous nature, for the claimant’s rights and that conduct merits punishment. Clearly, this is a judicial power that will be exercised in narrow circumstances and not at all if publishers refrain from acting egregiously when disregarding the rights of victims.
The press is also concerned that IMPRESS’s recognition will prompt the Secretary of State for Media, Culture and Sport to activate the controversial s 40, Crime and Courts Act 2013. This provision dictates that successful defendants in media claims (defamation, misuse of private information, etc) bear the costs of the claimant, if they are not members of a recognised regulator. This, the Daily Mail claims, will encourage mischievous and meritless actions: it will ‘hand a blank cheque to anyone to sue any newspaper, however risible their case, knowing it won’t cost them a penny’.
This is a fanciful claim. Even with section 40 in place, the defendant can have ‘risible’ claims struck out long before substantial costs are incurred. The Times fear that section 40 ‘would encourage baseless lawsuits from plaintiffs seeking simply to run up defendants’ legal bills’ is foundationless because strike out prevents those costs accruing. Moreover, the incentive to pursue such an action – the ‘blank cheque’ mentality – is nonsense. Given that costs are never fully recovered, the pursuit of a claim that leads to no more than a partial recovery of costs is no incentive to litigate.
The Times claims that someone like Lance Armstrong, who, they say, sued The Sunday Times to contest the truth about his doping in order to intimidate other news organisations from reporting on it, would now be empowered by the prospect of recovering their costs. This enhanced bargaining position would ‘encourage’ litigation ‘in the hope of settling out of court’ and so conceal misdemeanours. This is an interesting point, although the logic of it is not persuasive. If a Lance Armstrong-type character sought to suppress the truth then the active pursuit of a defamation claim would be disastrous. Even with section 40 in power, the court would find against him and undermine his credibility. The fact that he would recover his costs would hardly vindicate him, though, clearly, it would stick in the craw of the defendant. But the threat to litigate, though, as a strategy to intimidate, would be very risky.
Yet the wording of section 40 does not necessarily lead to the gloomy outcome that The Times predicts. Costs must be awarded unless the court is satisfied that the issues raised could not have been settled using arbitration or that it is just and equitable in all the circumstances to disapply the rule. In the Lance Armstrong-type scenario it might be said the issues were too complex for arbitration, given the depth and length of the investigation into his activities. The Sunday Times would have had a powerful claim to say that the allegations must be printed. Alternatively, a powerful claim could be made to disapply the rule given the enormity of the journalistic discovery. In an exceptional case such as this, it is highly unlikely the courts would punish the newspaper and reward the claimant for his egregious wrongdoing.
The press also claims that the Crime and Courts Act 2013 amounts to coercion to join IMPRESS. This is problematic for the Daily Mail because IMPRESS is a ‘phoney State-endorsed regulator’ or it is a front for Max Mosley ‘and the zealots of Hacked Off’. These concerns over political allegiances were dismissed by the PRP, as the Daily Mail itself admits. IMPRESS is not a lobbyist; it is a regulator. Its role, like IPSO’s, is to adjudicate on complaints that speak to the published code of conduct. That code has been carefully drafted to protect the interests of the public to live free from undue press scrutiny as well as to protect the interests of the public in receiving accurate investigative journalism. IMPRESS has no political role to play in those adjudications. It cannot suppress publication. It cannot find against publishers for expressing illiberal or shameful views. It cannot say that the press must contribute to democracy more productively. Its function is simply to uphold the code.
The Daily Mail complains that IMPRESS would ‘set in place a system of State licensing which would be condemned without reservation by liberals in Britain were it imposed by a totalitarian regime’. The comparison to licensing of the 1600s is a powerful trope. But it is utterly meaningless. In pre-modern Britain, the Crown had the power to sanction ideas that troubled it, however whimsical that unease or distress may be. Scandalous, seditious and treasonable speech brought severe penalties. A person could be imprisoned, emasculated, disemboweled, quartered and beheaded (see, eg, David Cressy, Dangerous Talk (OUP, 2010).
Under the Royal Charter, a newspaper may be required to publish a correction or an apology. Repeated disregard for the code may result in a fine. The newspaper that thinks these two regimes are comparable needs to think again. But, crucially, the Royal Charter regime does not attack ideas. It regulates rights. Newspapers remain free to express whatever unscrupulous, dangerous and misguided opinions they wish to publish. The only restriction is that information provided must be accurate, non-discriminatory to individuals and respect rights to privacy. We should be clear that the Daily Mail remains entitled to pursue the totalitarian ideal that judges who block the unlawful use of prerogative power are ‘enemies of the people’ if it wishes to stand for that sort of ideology.
The underlying tactic in press commentary on the Royal Charter (generally) and recognition of IMPRESS (specifically) has been to evoke sympathy. It has portrayed itself as under attack from the courts and government with no means of defending itself or of protecting serious investigative journalism. This self-serving tactic shamelessly misrepresents the options. The press remains master of its own destiny. It would face no threat from s 34 or s 40 if IPSO obtained official recognition. The Daily Mail claims that IPSO will not do so ‘because its members believe, quite rightly, that it is the back door to control by politicians’.
This is a difficult claim to fathom. The only government role left in the system of press regulation is when to activate section 40. The threat of punitive awards and costs is neutralised if IPSO is recognised. Indeed, it will then be powerfully protected from costs in media claims because section 40 will swing the other way to punish the claimant who pursues expensive court action over inexpensive arbitration. This is IPSO’s most potent weapon – and it is intriguing why it has not availed itself of it. If the press feels more ‘tightly regulated’ by IPSO and welcomes the higher ethical standards that it represents then there is nothing to fear from recognition. There will be no external ‘meddling’; IPSO and its members will be left alone to regulate itself. The only threat that the recognition process poses is to test IPSO’s claim that it is truly independent from press interference. Whilst it sits outside the recognition scheme, its claims to independence remains unchallengeable. If it submits to scrutiny, that claim might be proven false – something IPSO members certainly do not want because it would reopen the debate about whether government needs tougher measures in place to tackle the problems of partisan regulation that Leveson identified. So the real question in this debate is not why would IPSO submit to official recognition but why wouldn’t it?
Dr Paul Wragg is an Associate Professor at the School of Law, University of Leeds, and an Associate Fellow of the Inner Temple. He is editor-in-chief for Communications Law (Bloomsbury Press). This article will be published in the December issue of Communications Law. Submissions for the journal should be e-mailed to firstname.lastname@example.org.