The war between the government and the press over section 40 of the Crime and Courts Act 2013, or rather between the Independent Press Standards Organisation (Ipso) and Impress, is artificial and wholly unnecessary.
Even less is the need for a judicial review of the government’s consultation over s.40 and its implementation. The government should accept that section 40 is deeply flawed in so far as it seeks to penalise newspapers, which have not joined an “approved regulator” with high court costs, even if the newspaper has won an important, public interest, libel action.
Trying to suggest that section 40 is there to “incentivise” newspapers to join an “approved” regulator like Impress, or to make Ipso seek recognition from the Press Recognition Panel (PRP), is disingenuous and misconceived.
Costs in high court media disputes should be left to judges in this area of law and not used by politicians to try to force newspapers into an unknown and untested straightjacket.
Indeed, implementing section 40 in its current form will lead to the government being hauled before the European court of human rights – if the UK remains a signatory – because it cannot be right to make a newspaper, which is not part of an “approved regulator”, like the Guardian or Financial Times, pay a claimant’s legal costs when a claimant has just lost a bogus claim and the newspaper has quite rightly fought it on grounds of truth and national interest.
If section 40 is meant to provide “access to justice” to claimants who cannot currently afford high court litigation, it again fails because the “free” fast track arbitration scheme recommended by the Leveson inquiry has become inextricably caught up in the complexities of press regulation and approval of press regulators by the PRP.
The PRP has little or no experience of the complexities of media law and what needs to be done to provide a really effective fast track arbitration system as an alternative to high court litigation.
Central to any such system must be keeping legal costs to a minimum. Regrettably, the PRP wants section 40 implemented, however unjust it is, simply to justify its own existence and its somewhat dubious decision to approve Impress as a regulator, even though it is largely funded by money from Max Mosley charitable trusts and has little more than 30 micro-publishers under its umbrella.
That of course does not mean that newspapers subscribing to Ipso should not face exemplary or aggravated damages where they refuse to offer a bona fide claimant fast track arbitration where they have put something ambiguous or seriously damaging into the public domain.
Like it or not, Ipso’s current pilot arbitration service is not Leveson compliant. It seeks to put a £50,000 cap on damages and limits the costs which can be recovered from a defendant newspaper to 10% of damages (ie, £5,000) which is totally unrealistic in the libel world.
Further, it makes a claimant pay half the costs of a final hearing. In short, its pilot arbitration scheme is most unlikely to be used by claimant lawyers or to form the basis for a proper pilot scheme.
Most importantly, the threat of exemplary or aggravated damages being awarded under the crime and courts act against newspapers which refuse to offer fast track arbitration for bona fide disputes should apply to all commercial publishers/broadcasters/book publishers and website owners who refuse to offer claimants cost-effective arbitration for seriously damaging material they have put into the public domain.
What no one seems to realise is the desperate need for a fast track arbitration scheme for all media disputes, like compulsory 28-day “statutory adjudication” under the Housing Grants, Construction and Regeneration Act 1996.
Leveson-style arbitration should not be just something which applies to the “naughty boys” of Fleet Street but to anyone who is caught up in a media dispute that needs resolving as quickly, painlessly and cost effectively as possible.
In short, there should be an industry wide fast track arbitration scheme for all publishers, broadcasters and others, which is independent of Ipso or Impress.
And any such arbitration scheme should have to be approved by the Civil Procedure Rules Committee of the high court with the help of specialist libel judges, not the PRP which seems happy to approve all sorts of differing arbitration schemes when it has little or no experience of complex privacy or libel actions.
The law is the law. How members of the public are given quick, fair and cost effective access to justice is the real issue. Fast track arbitration, like ABTA’s one for travel agents, is the answer.
If we want to move forward by helping people with a genuine grievance against a newspaper we must strip away the restrictions on the Ipso pilot arbitration scheme.
In so doing, we must make it applicable to all broadcasters and publishers of whatever kind; entrench in it provisions which prevent the system being misused by opportunist claimants (ie, an effective strike out mechanism) and then simplify the way an arbitration can be started with the key issue being decided on day one.
Only then will any kind of serious progress be made in offering the victims of press intrusion some real redress.
This is an edited version of the submission by Early Resolution CIC to the Government’s Consultation on the implementation of section 40. The full version can be found here [pdf].