The Press is obliged to make good, not do good: why the crime-busting myth harms the SLAPPs debate, or why we need section 40, Crime and Courts Act – Paul Wragg

We need to do away with these libel laws, says Meirion Jones in The Guardian, because they only protect evildoers and they stop us, the press, from bringing them to justice. I can reveal, he continued, that The Sun could have brought Jimmy Savile to justice in 2008 but the threat of libel action meant that all the testimony they collected was wasted and so, since the chance of a scoop was gone, they did nothing with it…

I am exaggerating, but only slightly.

The tenor of Jones’s opinion piece is that libel laws prevent newspapers from performing the role of crime-busting – exposing ‘evildoers’ (his words) and bringing them to justice. My question to you is: is that what press freedom means? And if it does, what safeguards are in place – especially if we remove or otherwise reduce the protections afforded by libel laws – to ensure the press use this power accountably?

I start with an admission – press freedom is a contested term and, as such, I cannot pretend it has some fixed, indubitable meaning that I have only to trot out to make my point. I can make an argument for a notion of press freedom but it would fill a (very reasonably priced) book.

I want to test this idea, though, that press freedom is about crime-busting, or bringing ‘evildoers’ to justice. I start with some fairly basic principles, the most basic of which is that the state is the ultimate bearer of coercive power. It, and only it, has the power to deprive citizens of their liberty in the most extreme ways. It can bankrupt, it can incarcerate, it can kill (hopefully, only in times of war, but who knows with this government).

These powers are dangerous. What stops government becoming malevolent is the (delicate) system of controls that ensure public accountability. Each branch of government is publicly funded, operates in the public sector, and is driven by public interests. The ultimate arbiter of state decision-making is the public.

The same cannot be said of the press. The press is privately owned, operates in the private sector, and is driven by private interests (the wealth maximisation of its shareholders). The idea that it operates as a fourth estate is sheer fantasy. There is not even the faintest whiff of public accountability within this system.

The press is not an agent of, nor an alternative to, the police, for the simple reason that the press has neither the authority nor the mechanisms of accountability to be a crime-busting agency. Moreover, to the extent that it can bring about justice, it does so by means of a kangaroo court. It calls foul play and tarnishes reputation indelibly. If it is right that its quarry is a wrong ‘un, then its role is subsidiary, if not nugatory, for that person is only a wrong ‘un if the law says so, by means of criminal or civil trial. If it is wrong, then the wronged individual has only the law by which to make good her damaged reputation, for only the law can make a newspaper apologise for what it did. (IPSO can ask, but that’s it).

The press is not obliged to do good but it should be obliged, I say, to make good – that is, to compensate those it wrongs in its endeavours to make money for its shareholders.

This is not to say that the press cannot do good. Of course, it can. Yet, the reason for this is because freedom of speech is a means of doing good. Freedom of speech laws exist to protect public interest expression. To be clear, though, the valiant endeavour in these circumstances comes not from the speaker but from the protector, which in our case is the judiciary. Freedom of speech depends upon the law being sufficiently robust to protect public interest expression from state manipulation which, in our case, is due to the common law (that is: so-called judge made law). Prior to the Human Rights Act 1998 coming into force, the power to stop state manipulation of speech it disliked resided entirely in the judiciary finding ways to protect public interest speech, no matter what source it emanated from (journalist or non-journalist) and, latterly, including post-HRA, by working in tandem with the European Court of Human Rights, whose sole existence is a reaction to the atrocities of state totalitarianism in World War II.

The myth we need to divest ourselves of, and quickly, is that the press is some exalted institution of speech deserving ever-greater protection. It is not: the press has no duty to do good, but it must have a duty to make good. Therefore, what we need are robust laws that protect both public interest expression, when it arises, and victims of (even well-intended) speech that causes undue harm, be that to reputation or private/family life.

The only way that we can ensure such protection is through a system that requires independent consideration of the two sides of the claim. This can be done either through the legal system itself (which is costly, both publicly and privately) or through independent regulation, which is much cheaper and, typically, quicker.

The irony of this debate, then, is that we have such a system in mothballs, presently. It exists in the form of s 40, Crime and Courts Act 2013, which, if brought into force, would create the conditions for such protections to be realised.

Section 40 is a complex costs-shifting provision, which was never given a fair chance in public debate because the press shouted it down, vociferously, by means of the most vitriolic of diatribes.

If s 40 were in force, it would work like this. The oligarch threatens the speaker with costly litigation. The speaker responds by informing the oligarch that they belong to a recognised, independent press regulator. As such, the speaker invites the oligarch to resolve the dispute through inexpensive arbitration. Either, the oligarch agrees, and the matter is resolved quickly, inexpensively, and in a manner that is binding in law. Or, the oligarch refuses and issues legal proceedings. At the resolution of those proceedings, regardless of whether the oligarch’s claim has merit or not, the oligarch is bound to pay both his own costs and those of the speaker. In any event, freedom of speech wins.

Why did the privately-owned institutional press object to this arrangement? For the simple reason that these protections depend upon the press belonging to an independent press regulator, for if the speaker does not then the costs-shifting provision reverses: the press is then liable for the oligarch’s costs even if the claim is defeated. The reason for this, if it is not obvious, is that the press has denied the claimant the opportunity to settle the matter quickly and decisively through arbitration.

Why should the oligarch be given the opportunity to settle matters cheaply? For the simple reason that Jones, and those employing the same rhetoric in this debate, are wrong to conclude that SLAPPs (and defamation laws generally) relate only to the oligarch’s interests. We must reject the supposition that SLAPPs reform is some noble endeavour to protect the intrepid Louis Lane from the insidious Lex Luthor.

This is an entirely false premise for the simple reason that the typical defamation claimant is usually not an oligarch. It is Christopher Jefferies, it is Danielle Hindley, it is people you have never heard of for the simple reason that the press does not confine its gaze to oligarchs, nor even to public figures in whatever sense of the word you wish to apply it. It is driven by the interests of its shareholders, remember, and that means making money. Accordingly, it will pursue whatever story sufficiently piques the fancies of its readers. Often, these stories focus on unusual deaths, such as ‘killed by a Yorkshire pud’, or ‘Parents of a two-year-old boy killed in a gas explosion at the family home are charged with his manslaughter’. These stories either have no discernible public interest element (the former) or they are simply wrong (the latter) but, in both cases, IPSO, the so-called regulator of the established press refuses to hold the press to account in any sort of meaningful way. It chooses not to exercise its power to fine its members for serious or systematic breaches of the code, a power that it claimed it would have before it surreptitiously watered down that power by replacing ‘or’ with ‘and’. IPSO has issued zero fines in its 8 year existence. Perhaps we should be unsurprised by this statistic given that the chances of having a complaint upheld by IPSO is smaller than that of winning the lottery.

The idea that the law can be amended to tackle the mischief inherent in the SLAPP dynamic is as fanciful as it is dangerous. Yes, powerful people write letters, through their legal representatives, in order to stymie debate and scare the weak(er) into submission. But do not forget that the established press themselves resort to such tactics in order to nullify the wronged. Look how desperate sections of the press have been to settle phone hacking claims prior to judicial determination so as to prevent claimants from being able to say that such and such newspaper was employing illegal, disgraceful tactics to obtain highly personal information; that it was not simply one rogue reporter engaged in serial hacking.

Yet if we are serious about tackling the gross imbalance of power that exists between the powerful (oligarchs/press barons) and the unpowerful (the lone blogger/the innocent victim of press abuse), then we should revisit the merits of s 40, Crime and Courts Act, for it offers a robust solution that would protect the only public interest consideration at stake here which is the law’s ability to protect public interest expression, as and when it is threatened. That can only be good for democratic participation.

Professor Paul Wragg, Professor of Media Law, University of Leeds.  Author of A Free and Regulated Press (Hart, 2020)