The International Forum for Responsible Media Blog

Libel and the Crime and Courts Act: Why not commence the carrot? – Robert Sharp

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.uk

10 Comments

  1. Evan Harris

    “One rule for those who acquiesce to government-imposed speech standards” – Complete nonsense.
    The standards would be those imposed by a regulator **which is required by the same statute** to be independent of the Government. I suspect that the author knows this but is just conditioned to lazily repeat this propaganda of the corporate press.

    In contrast, the press “complaints-handler”, IPSO, a model of self-(ie non-)regulation so beloved of English PEN and RSF, is chaired by a former Tory Government Minister, and has been prepared to have the threat of s40 commencement should they step out of line, hanging over them, rather than allow access to justice, through arbitration, for its libel/privacy victims.

    • Robert Sharp

      Now hold on a moment.

      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).

      When I wrote this, I was channelling what I imagined to be the objection from the anti-regulation crowd to giving subscribers to IMPRESS any kind of benefit over other publishers. So in that sense, it is absolutely repeating the “propaganda of the corporate press.”

      That said, the underlying point is surely right, isn’t it? It does create two separate speech standards; one will be more stringent than the other; and that tougher standard is ultimately subject to political interference in a way that self-(or, non-)regulation is not.

      But I do admit that the ‘interference’ is not, in the present political climate, particularly onerous. Certainly nothing like the deeply problematic proposals for regulating the social media companies, for example. That’s why I would be intensely relaxed about giving a costs perk to IMPRESS members.

      • Evan Harris

        I see, so the author was just setting out the supposed justification of the corporate press, as to why claimants of modest means, taking on wealthy defendants should not have similar costs-shifting benefits to those he advocates for defendants of modest means taking on wealthy claimants.

        The problem is that if an assertion is patently false in law, but appears to the main justification of a position being argued (that only defendants of modest means should be assisted) then one would expect an analysis piece on this website (as opposed to – say – an opinion column in a newspaper) to point out that the justification is false.

        The author’s article however, chose not to point out the falsity (but which I note that he does in fact recognise) of the justification for denying access to justice to claimants of modest means, and the article also argued for a lop-sided outcome seemingly predicated on the flawed justification. That rather undermines the author’s proposition.

        The author then falls back on a re-casting of the objection to equity in access to justice based on Leveson-style independent regulation as

        “Two separate speech standards; one will be more stringent than the other; and that tougher standard is ultimately subject to political interference in a way that self-(or, non-)regulation is not”.

        Six obvious problems with that are:

        1. The system of Leveson-style independent regulation is not subject to political interference, under the Royal Charter system. Super-majorities in both Chambers of Parliament and the agreement of the Regulator of Charter-approved press-regulators would be required to change the standards (and if changed in a way that the press did not like, they could leave).

        2. Media regulation, even if legislated to be independent – as it is with broadcast regulation, is and must “ultimately” under democratic control (which the author calls “political interference”, and Parliament can – if it wanted to – abolish the need for super-majorities and change the system to anything with a simple majority in the House of Commons.

        3. Given the malign influence of the corporate press on UK politics, “political interference” is more likely to happen in favour of press interests (as with the non-commencement of section 40, the new plan to seek to abolish the parity of Article 8 with Article 10 ECHR in UK Courts and the failed plot to install Paul Dacre as Chair of OfCom) than against them.

        4. The “press freedom” that derives from the lack of independent regulation is really only freedom for tax-shy, billionaire press barons to print their propaganda, often at the expense of democratic institutions and individuals’ rights and liberties, and is of no real benefit to public interest journalism/journalists or the readers they manipulate. The author can not feel great about going into bat on their behalf year after year.

        5. Self- (or, non-) regulation is not cost free. The low standards it allows (in fact brings about) in the UK press is responsible for the *very* low trust scores found for the UK press in international surveys
        (eg https://www.thenational.scot/news/18435382.trust-rating-british-press-found-lowest-europe/). Freedom of expression and democracy advocates should care about that more than the freedom of unaccountable media moguls to avoid any regulation that might limit their disproportionate political influence or their profit margins.

        6. Every other form of media is regulated (or with the Online Harms Bill about to be regulated) and the press has led the call for the regulation of all its competitors. No serious free expression advocate should want a situation where the only unregulated media sector is the corporate press.

      • Robert Sharp

        I fear the Commenter is reading a far wider scope into the article than the Author intended. The post was written in the context of an earlier piece concerning stratospheric libel costs for ‘small’ claimants and defendants, coupled with a renewed campaign to do something about SLAPPs. It does not seek to solve the problems highlighted by the Leveson Inquiry.

        The Commenter’s focus on the corporate media reminds me of the grasshopper (or was it a fox?) in that Aesop Fable, preventing any of the other animals from gaining any benefit from the food store, just because he cannot. The Commenter seems to be suggesting that if the provisions in the Act are not enacted all at once, exactly as was intended… then no-one must derive any benefit at all.

        If the Author is “going to bat” for anyone here it’s the smaller, independent publishers who have joined IMPRESS. I repeat the point made by Christopher in the comments below: “half a loaf is better than no loaf; the best should not be the enemy of the good.” Why deny IMPRESS members the benefits they were promised?

  2. Christopher Whitmey

    I endorse Evan Harris’ point. I totally endorse the article where it says, “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.”.

    But does s.40(2) alone really give a remedy to those of ‘slender means’ if it alone was in force?

    s.40(2) (2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time).., the court must not award costs against the defendant unless satisfied that—

    What is my costs risk if I, of slender means, sue a newspaper that is NOT a member of an approved regulator?

    Surely I need the protection of s.40(3)? Q.E.D.?

    • Robert Sharp

      Commencing s.40(2) alone would not solve the costs issue, but the original article does not claim otherwise. It just represents an improvement on the status quo. Why should smaller publishers who are happy to be regulated by IMPRESS miss out on the benefits, because of the intransigence of the bigger media companies?

      • Christopher Whitmey

        Thanks for your ‘half a loaf is better than no loaf’ reply. But is it? If I have a complaint against an IMPRESS publisher I know I have a PRP compliant complaints procedure so no need to go to court in the first instance. I grant that the IMPRESS publisher is not protected – so maybe a quarter of a loaf 😉

  3. Christopher Whitmey

    Robert, in the light of your comment today and referring to my ‘half loaf’, please can you answer the question I posed above:

    What is my costs risk if I, of slender means, sue a newspaper that is NOT a member of an approved regulator?

    Surely I need the protection of s.40(3)? Q.E.D.?

    • Robert Sharp

      You are entirely correct to point out that 40(2) alone would not address the cost risk to you or any other claimant of limited means, when going up against one of the big corporates. My suggestion does absolutely nothing for those kinds of claimants.

      However, I think that your “QED” is premature, because there is more than one solution to the problem you identify: Bring in the county courts; a dedicated media tribunal run by HMCTS; some other form of mediation/ADR/ENE (English PEN came up with one version during my time)QOCSSection 40(3)

      I’m sure people will add other ideas in the comments.

      I personally do not favour the latter because of its potential to chill desirable speech (although the fact that those with a solid record of defending free speech, such as Evan Harris and Jonathan Heawood, support it, means I could well be wrong).

      My only point is that a disagreement over the form of the stick should not be a reason to abandon the carrot.

  4. Evan Harris

    >> “I fear the Commenter is reading a far wider scope into the article than the Author intended. The post was written in the context of an earlier piece concerning stratospheric libel costs for ‘small’ claimants and defendants, coupled with a renewed campaign to do something about SLAPPs. It does not seek to solve the problems highlighted by the Leveson Inquiry.”

    I accept that. I was drawing attention to the false description of Section 40 by the author, which undermines the case against he makes against commencing the entire law (which is what Parliament enacted, whereas he is proposing selective legislation by the executive by selective commencement, which is probably unlawful). I note that the author does not engage with the factual basis of my criticism of his misrepresentation of the statute as “government-imposed speech standards”.

    >> “The Commenter seems to be suggesting that if the provisions in the Act are not enacted all at once, exactly as was intended… then no-one must derive any benefit at all.”

    I did not express a view on the author’s “half-a-loaf” proposal to create a two tier system, favouring wealthy defendants over wealthy claimants. I was merely pointing out the flawed justification for opposing the other half of the loaf.

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