In my recent post on the Malkiewicz v UK application, I noted two ideas for reducing exorbitant cost of defamation proceedings. One was to allow publication proceedings to be heard in the County Courts, taking advantage of the costs limitations imposed by the ‘small claims’ and ‘fast track’ procedural rules. Alternatively, a new specialist court or tribunal could handle such claims.
A third option, not mentioned in the previous article, is to funnel claims against the media through a form of Alternative Dispute Resolution. IPSO and IMPRESS both offer services of this kind, and a ruling from either body can deliver a cheap form of redress to complainants.
However, membership of a press regulator currently offers no protection against a formal claim being made in the High Court. A recent conference organised by the Foreign Policy Centre and the Justice for Journalists Foundation detailed how strategic lawsuits against public participation (SLAPPs) are still being used as a way to chill public interest journalism. There is nothing to stop wealthy claimants launching proceedings as a way of punishing those who publish critical stories about them.
But what if that changed? Following the Leveson Inquiry, the coalition government made an attempt to link membership of an ADR scheme to reduced costs. Section 40 of the Crime and Courts Act 2013 offered a ‘stick and carrot’ approach to regulation. Members of a ‘recognised’ regulator would not have costs awarded against them, if ever they were involved in publication proceedings (section 40(2)). Meanwhile, media outlets that were not part of the ‘recognised’ regulator would always have costs awarded against them, if ever they were taken to court (section 40(3)).
It was the second provision that proved controversial. Punitive costs would have introduced an element of coercion into the regulatory system. Publishers would have to either join the regulator, or face a crippling sanction the next time they went to court (regardless of the merits of their defence). In a submission to the DCMS (as it then was), press freedom organisations English PEN and RSF said that the provision represented an “unprecedented chilling effect for publishers and journalists in the UK.”
The Conservative Party appeared to agree with this assessment. In 2017 their manifesto pledged to scrap section 40.
The Conservatives won that election, but have yet to find time to repeal the provision. Instead, section 40 exists in a form of statutory limbo — still on the face of the Act, but as yet un-commenced. Are ministers keeping the section as a card up their sleeve, to be commenced if the newspapers fall out of favour?
Here’s an idea: why not commence section 40 in part only? That is, activate the ‘carrot’ of sub-section (2) and abandon the ‘stick’ of sub-section (3).
The virtue of this manoeuvre is that it would instantly hand a strong shield against SLAPPs to small publishers, who could take advantage of the arbitration scheme offered by IMPRESS (or a hypothetical future competitor) and avoid the costs risk associated with a lengthy court case.
Meanwhile, the absence of s.40(3) would mean that the larger publications, and those who are ideological opposed to any link between press regulation and the state, would be entirely unaffected. Subjecting oneself to the standards imposed by the ‘recognised’ regulator would become a voluntary process.
The main objection to this idea would be that it creates a two-tier system: One rule for those who acquiesce to government-imposed speech standards; and another rule for those who want to keep to the standards of Article 10 jurisprudence (which may not be the same).
There is some force to this argument. But it must be remembered that there is already a two-tier system in publication proceedings: Those who have money (whether they are billionaire claimants, or large media groups) are able to bring and defend against claims in a way that individuals and small publishers cannot. If the law is to prioritise someone, then let it be those of slender means.
Robert Sharp was the Head of Campaigns at English PEN from 2009-18, during which time he was one of the managers of the Libel Reform Campaign. He is now a freelance policy advisor and freedom of expression activist. www.robertsharp.co.