Justice denied: how media reforms have harmed the rights of companies – Dominic Crossley and Jason Nisse

7 01 2015

LevesonIt was a cold, wet day at the end of November 2012 when Lord Justice Leveson published his report.  The content was so hotly anticipated that those allowed a few hours head-start before the public release of the report were locked in special rooms in the Queen Elizabeth II building in Westminster so as not to leak its secrets.

Given the shocking evidence Leveson had heard from victims of press-abuse, it was no surprise that his report included recommendations for tough new measures for regulating the unruly elements of the Fourth Estate. These led the news for days, with commentary warning of the threat it posed to press-freedom.  We were foretold of dark days of a gagged press, at the mercy of PRs and lawyers.

Speaking as a PR and a lawyer who advise companies in these circumstances, it is striking how the reverse is true and how unconstrained newspaper publishers remain.  Indeed, for a corporate body seeking to protect its reputation, it has probably never been more difficult to challenge a newspaper article.

Attracting sympathy for companies wronged by the media is difficult. No corporate entity formed a part of the Core Participant Victims at the Leveson Inquiry.  But don’t businesses have rights? Doesn’t the accuracy of reporting of financial and commercial activities have significant social importance? Negative press coverage for businesses of all sizes can have severe long-term consequences, on balance-sheets, brands and ultimately the people who rely on the business being defamed for their welfare.

In the two years since Leveson, two principal changes have hampered the ability of companies to defend their reputation: the Defamation Act, and the post-Leveson regulatory environment.

The Defamation Act 2013 became law at the beginning of last year.  The Act was the product of an intensive campaign led by worthy organisations such as English Pen and Index on Censorship who lined up examples of where libel law was being misused.  As this campaign pre-dated the Leveson Inquiry and the hacking scandal, English Pen and Index on Censorship wase able to rely on the enthusiastic support of the newspaper industry for its  proposals and there was little or no column-space for the counter-argument.

As a newspaper article sets out its stall in the first paragraph you don’t need to read far into the Act to get the gist.  Section 1 “Serious Harm”, sets out the first hurdle for any claimant to overcome in bringing a libel claim and Section 1 (2) specifically addresses corporates.  It states that “serious harm” must include serious financial loss, or a likelihood of such loss.  Before this act there was no such distinction between a corporate and an individual.  It is not difficult to envisage articles that may be seriously damaging to a company but which it may be difficult (within the 12 month limitation period) to demonstrate have caused serious financial loss.  Even where such a loss was likely and could be evidenced, which company would want to give evidence of its losses and approach disillusioned clients for witness statements?

However, even before the Defamation Act, most companies would rather not spend their time in libel litigation.  If the papers had got something wrong, they were likely to want to contact the publisher to ask for a correction, and then go to the complaints body, the much derided Press Complaints Commission (PCC), if the paper digs  its heels in.  Surely, in the post-Leveson era, this is now more straightforward and effective? Well, not really.

A number of the largest newspaper publishers including News Corp, Associated Newspapers and Mirror Group newspapers have formed a new regulatory body called Independent Press Standards Organisation (IPSO).  It launched in September under the leadership of the impressive Sir Alan Moses but there are already reasons for concern.  First and foremost, its “independence” from the newspaper groups is highly questionable and its structure is defiantly contrary to Leveson’s recommendations.  Critics suggest it is nothing more than a re-branded PCC enabling the press to carry on as before.

It is possibly for this reason that many newspapers have not signed-up.  The Guardian, the Independent and the Financial Times groups are outside any regulatory structure.  This is not to say that they are likely to be more errant than those within IPSO (the reverse is probably true) but that for those seeking redress against the newspapers it is difficult to know where to turn next after making a complaint.  We have already discussed how unattractive the libel route is. Is it a coincidence that IPSO appears in Quis custodiet ipsos custodes (who is watching the watchmen)?

There are other challenges. As Paul Dacre, editor of the Daily Mail, pointed out in his Leveson evidence, the media is now global and online. Many online publications are anonymous and if you can’t find the author, the website is highly likely to be based outside the UK, and the search engines that point users to them certainly will be.  The media is now ubiquitous and everyone is a potential commentator whether on a review site, twitter or a blog created especially for the purpose. UK media regulation is entirely toothless in this situation – and the reforms of the last two years have removed most of the domestic dentures.

We are aware that for many, corporates elicit about as much sympathy as music fans have for Justin Bieber. And it is true that corporations have the wherewithal to pay for people like us to fashion a strategy for putting across their side of the story.  However ultimately there does need to be redress when things go badly wrong.   There is something amiss when this redress is more difficult now, two years after Lord Justice Leveson proposed a more enlightened future.

Dominic Crossley is a partner at Payne Hicks Beach, solicitors and Jason Nisse is a partner at Newgate Communications

This post was originally published on the Newgate Communications blog and is reproduced with permission and thanks.


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