On Wednesday 9 May 2018, the House of Commons will deal with the Report Stage of Data Protection Bill. [pdf] Two amendments relevant to press regulation have been proposed.
The first is headed is headed “Data protection breaches by national news publishers” and requires the establishment of a public inquiry into data breaches by national newspapers – with similar terms of reference to Part 2 of the Leveson Inquiry.
The second is headed “Publishers of news-related material: damages and costs” and introduces a regime similar to that under section 40 of the Crime and Courts Act 2013 in relation to data protection claims against publishers. This is proposed by Tom Watson and others from the Labour Party. It “non-profit” publishers or local and regional publishers with a turnover of less than £100 million.
These provisions are worrying the Government and the Daily Mail. An indication of the extent of the Daily Mail’s worry is that has reached for human rights law to defend itself. A piece published on 7 May 2018 bears the online headline “Labour’s ‘plans for two-tier press regulation that would favour supportive Guardian over other newspapers’ would be illegal, warns a leading QC“.
The Daily Mail cites an opinion by Antony White QC suggesting that the amendment would “violate human rights law“. This appears to be the opinion attached to the News Media Association evidence to the Data Protection Bill Committee [pdf] which dates from January 2018, and relates to the version of the amendment inserted into the bill in the House of Lords, rather than the amendment currently before the House..
On analysis, the opinion of Mr White QC is simply a rehash of the arguments promoted by the press in 2013 to challenge section 40 of the Crime and Courts Act. These arguments were rejected by the Government’s own legal advisers at the time and they were right to do so.
The fundamental flaw in the human rights arguments relied on by the Daily Mail is that the human rights in question – access to court, freedom of speech and right not to be discriminated against (under Articles 6, 10 and 14 ECHR) – are all “qualified rights”. The rights can be interfered with in a justified and proportionate way – a fair balance must be struck between those invoking the rights and the general interest.
The provisions of section 40 of the Crime and Courts Act 2013 and of the proposed Data Protection Bill amendments (“the Section 40 regime”) are indeed justified and proportionate. They are part of a carefully balanced scheme designed to protect both freedom of speech and the rights of the public.
In his Inquiry Report Lord Justice Leveson agreed with press submissions that they should have the unique privilege of self-regulation. He agreed that they were entitled to set up and to operate their own self-regulator. But this was subject to an important qualification: this self-regulator had to meet certain minimum standards of independence and effectiveness. It had to be independently “audited” by what is now the Press Recognition Panel according to the broad criteria set out for recognition in his Report.
But there needed to be some incentive for the press to set up a recognised self-regulator. Otherwise, in accordance with their past behaviour, the press would simply set up their own ineffective self-regulator which they would continue to control and which would not actually regulate. This would, in turn, mean that press abuses would continue and that the victims of those abuses would lack effective redress.
This is exactly what has happened to date because section 40 has not been brought into force. The press have established IPSO – in defiance of Leveson’s views – a body which carries out no press regulation of any kind. It is a press dominated complaints body like the old PCC.
Among the requirements for an effective press regulator is a provision that it will have a low cost arbitration system to provide effective access to justice for victims (and to reduce legal costs for both claimants and the press). IPSO’s wholly unused arbitration system does not meet these standards.
The “costs incentives” under the Section 40 regime are a crucial part of the Leveson scheme. A balance is struck between, on the one hand the rights of the public to a press which is ethical and fair and, on the other, the freedom of the press from external control. Without incentives the system will not work (as has been proved to date).
Under the system of incentives members of a regulator are indeed treated differently from those who are not members. This is because the members of the self-regulator offer the public effective redress for legal wrongs through a low cost arbitration system. Non-members do not offer such a system and redress against them can only be obtained at great expense through the courts. If publishers choose to deny members of the public effective access to justice through arbitration then they must, as a general rule, meet the cost of those members of the public using the courts.
The Labour amendment has a reciprocal provision whereby if a news publisher is a member of recognised regulator and therefore offers access to fair and effective low cost arbitration, then any claimant who rejects this approach and chooses instead to go to court faces the same situation. The general rule will be that the claimant meets the costs of the regulated publisher which is being taken to court.
It needs to be borne in mind that there are important exceptions to this general costs rule that publishers who reject independent regulation pay whether they win or lose. The court can refuse to follow it if it is “just and equitable” to make a different award. This would apply, for example, if the claimant’s case was frivolous or if the claimant had refused a reasonable settlement. In the amendment before the Commons such exceptions to the rule are spelled out in the text. The system retains flexibility to enable the courts to do justice but it provides a strong incentive for publishers to join a system which give claimants access to justice.
A publisher who forces a claimant to use the court system – rather than providing proper independent low cost arbitration – will, ordinarily, have to pay that claimant’s costs of doing so. This is entirely consistent with the approach that the courts already takes to those who refuse alternative dispute resolution. There is no question of “punishment” – but, rather, of a rule designed to promote access to justice.
In short, publishers who decide, by their refusal to join a recognised regulator, to deny claimants access to quick and cheap dispute resolution, must pay for that decision when that would otherwise impose costs on potential victims or deny them a remedy. Publishers have been given a choice that no other business or profession is given: they can choose whether or not to be subject to effective scrutiny. If they choose not to, then they must pay to ensure that victims have access to justice.
There is no threat to press freedom or human rights – simply a threat to unregulated press abuse.
In other words the Section 40 regime strikes a proper balance between rights: the rights of the press and the rights of the public. It is a justified interference with the rights of the press under Articles 6, 10 and 14.
The Labour amendments to the Data Protection Bill strike a fair balance and protect the position of the local press – which has long harboured an irrational fear of independent arbitration but which is not responsible for the systematic abuse of the rights of members the public which has been perpetrated by much of the national press.
Hugh Tomlinson QC is the Chair of Hacked Off which supports full implementation of the Leveson recommendations.