In a recent piece on this blog Helen Anthony argued that the proposed Royal Charter framework for self-regulation of the press was objectionable because of the “statutory incentives” under sections 34 to 42 of the Crime and Courts Act 2013. These, she suggests, gives rise to various legal and moral difficulties.
She says that the most fundamental point is that
“it is wrong for publishers to break no laws, and do no wrong, yet have to pay a substantial amount in someone else’s legal costs. This is what the provisions in the Crime and Courts Act permit”.
Helen Anthony is, I believe, wrong on this point and also on her legal arguments. Her discussion does not properly taken into account “balance”: the way in which the Leveson scheme is designed to balance the rights of victims, the public and the press. Let me explain.
The Moral Argument
It is accepted by everyone – even by the national newspapers which back PressBoF – that the press should be subject to some kind of scrutiny beyond that laid down by the civil and criminal law, some kind of “regulation”. In other words, like other professions or trades such as law, medicine, architecture or social work, practitioners should be bound by a Code of Conduct under which aggrieved members of the public can make complaints and seek redress. As Lord Justice Leveson said in his report, it is reasonable and proportionate
“to require the press, which enjoys many benefits in the public interest, to accept the obligations of the sort of public interest standards, over and above the minimum requirements of the law, which they have already described to some extent in their past codes and which they purport to take seriously and live up to” (Report, Vol 4, K Chap 8, 7.4)
The press, in principle, accept this. But they go on to say that the press has a special status in a democracy which requires that they should be free of the kind of statutory regulation which applies to broadcasters. Furthermore, they argue that any regulation to which they are subject should be wholly free of any statutory element. They claim the now unique privilege of “self-regulation”.
Although there are a number of difficulties with these arguments they were accepted by Lord Justice Leveson subject to one important caveat – which has one important consequence. The caveat is that the press cannot be given a completely free hand as to how self-regulation is organised. Experience has consistently shown that they cannot be trusted to design and operate a robust, independent and effective self-regulator. This is why the Press Council and the PCC failed and why Lord Justice Leveson rejected the “Hunt-Black” plan for a PCC Mark 2.
Lord Justice Leveson’s solution to this problem was to provide for an independent “audit” of self-regulation. His report sets out a number of requirements which an effective self-regulator must have. An independent “recognition body” would consider whether any proposed self-regulator met these requirements – which are, in effect, minimum standards of fairness, independence and effectiveness. Among these requirements is a provision that the self-regulator would have an arbitration system to provide effective access to justice for victims (and to reduce legal costs for both claimants and the press).
The Leveson scheme has one important consequence. The press are entitled to set up and to operate their own self-regulator according to the broad criteria set out for recognition. But there needs to be some incentive to join a recognised self-regulator. Otherwise, experience demonstrates that the press would simply refuse to do so but would, instead, set up their own ineffective self-regulator which they would continue to control. This would, in turn, mean that press abuses would continue and that the victims of those abuses would lack effective redress.
So incentives 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.
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 an 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.
It needs to be borne in mind that there are important exceptions to this general rule. 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. 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
So Helen Anthony is not right to say that the Crime and Courts Act provides for “court-imposed sanctions” and “punitive costs”. Rather the Act provides that a publisher who forces a claimant to use the court system – rather than providing arbitration – will, ordinarily, have to pay that claimant’s costs of doing so. This is entirely consistent with the approach that the court 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, the answer to Helen Anthony’s “moral argument” is that 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.
The Legal Arguments
Helen Anthony mentions a number of legal arguments against the Leveson system. These are not ones which, on analysis, are likely to succeed. First, she suggests that exemplary damages and “punitive costs orders” may breach Article 10 of the European Convention. I have previously dealt with the argument that exemplary damages are a violation of free speech. The short answer is that under the new statutory provision such damages could only be awarded in case of “deliberate or reckless disregard of rights of an outrageous nature” and where they are necessary properly to punish the defendant. This is proportionate and reflects the position in other countries which have strong free speech protection. Exemplary damages are already available in libel cases. Awards are very rarely made and the position is not going to change under the new provisions. The main difference with the Crime and Courts Act is to provide immunity for members of an approved self-regulator.
The second argument is that the arbitration system is incompatible with Article 6 of the Convention because it denies access to justice. Helen Anthony correctly points out that an arbitrator provides a “final and binding decision” (subject to an appeal on a point of law). But under the Leveson system such a decision would be provided by an independent and impartial arbitrator, applying the law of libel or privacy in the same way that a judge does in court. So there is no basis for suggesting that it would be unlawful. The difference is that, in arbitration, the procedure can be streamlined to reduce time and costs.
In relation to the press, regulated publishers would agree to accept arbitration as a condition of joining the recognised self-regulator. This is what happens in other areas where arbitration schemes are common-place. For example, football clubs and footballers agree to be bound by FA rules – which include compulsory arbitration. These have been found to be compatible with Article 6 by the Courts. In relation to claimants they would still have a choice as to whether to use the arbitration system or go to court. The only difference would be that, if they went to court, they would not usually be able to recover their costs. This is a restriction on access to court but one which would not be found to be unlawful because it is proportionate and justified. It promotes the proper aim of providing swift and effective access to justice. A properly designed and operated arbitration system would provide great benefits for both the press and claimants.
One last point in response to Helen Anthony. In her post she objects to the fact that the regulator will have to have a standards’ code which, under the Leveson requirements, must include provisions on conduct, privacy and accuracy. She objects to this on the basis that, because there are incentives to join the regulator, then “new laws” are being introduced by the back door because new privacy and other standards would be imposed beyond those found in the criminal or civil law.
There are number of points to make. First, Leveson deliberately avoided any specifics about the Code – this is a matter for the new self-regulator. Second, a self-regulator’s code is not law – whether front or back door. It is a series of professional standards, devised by the industry, to which the press agrees to subject itself. Third, in practice the new code unlikely to be very little different from the Editors Code which the press pretends to follow at present. The only difference will be that there will be effective enforcement.
Finally and perhaps most importantly, a standards code administered by a recognised self-regulator is, once again, a “balanced solution”. It is intended to protect the rights of individuals in relation to privacy, accuracy and conduct whilst at the same time giving the press independence from direct statutory regulation. Incentives to join such a system, delivering these wider benefits, are entirely justified.
Helen Anthony does not like the elements of “incentive” written into the Leveson system. But she needs carefully to consider the problems that currently exist, as Sir Brian Leveson did, and offer a better alternative. The old system of “voluntary” self-regulation run by the press without external audit has, everyone agrees, failed. There are, in reality, only two realistic alternatives which will provide effective and independent regulation.
The first is the carefully balanced “Leveson system” of what might be called “audited self-regulation”. If this is going to work it must, for the reasons already set out, be incentivised. The second, is perhaps the more open, democratic and accountable route – independent regulation by a body established by statute. This is the way in which broadcasters are regulated but it is, of course, even less popular with the press than the Leveson system. Leveson preferred the first option and his solution is supported by the victims of press abuses (and a majority of the public). No alternative effective system has been proposed.
If we are to have effective and independent press regulation which protects victims and press freedom something needs to done. Everyone agrees that “the status quo is not an option”. The balanced Leveson system of audited self-regulation does not place undue restrictions on the rights of publishers – it balances them carefully with the rights of victims and of the public.
Hugh Tomlinson QC is the Chair of Hacked Off.