The corporate papers that are determined to resist Leveson-based reform are currently playing what they evidently consider to be their strongest card, and it is this: “If the changes are implemented as promised, a publication that is sued for libel and wins its case will be forced to pay the costs of the losing side”.
That sounds bad, doesn’t it? And they can make it sound even worse. As we all know, court costs in libel are appallingly high, so, it said, “Small publications such as local papers and specialist magazines and websites could be bankrupted by this – even when the courts had found they did nothing wrong”.
That’s really terrible, you may be thinking. But you would be wrong, because the people propagating this argument are doing something that is a speciality of theirs: they are stripping the subject of its real context.
Here are three elements missing from the picture painted above.
- No news publisher could be placed in this position unless it had first deliberately denied the complainant the opportunity to have the case dealt with at far lower cost – to both sides – than is possible in our courts (that is, through arbitration).
- No news publisher could be placed in this position unless it had deliberately rejected effective self-regulation along lines recommended by Leveson and endorsed by every party in Parliament – a system totally free of state interference and intended to protect us all from press abuses.
- No news publisher could be placed in this position unless it had deliberately refused to participate in reforms designed to end the scandal under which the vast majority of people cannot afford justice in cases of libel and breach of privacy.
The picture looks different now, no? The reality is that any newspaper or website that gets itself in such a position in the courts must have been asking for it – worse, it must have been knowingly engaged in denying ordinary people their rights.
Only if you exclude the context, only if you choose to look through the wrong end of the telescope, do you see the kind of monstrosity of injustice that the big newspaper groups would like you to see.
Sir Brian Leveson, who was painstakingly respectful of press freedom (and was bound by his remit to be so), would never have countenanced the kind of gratuitous unfairness that the one-eyed fable above appears to entail. Nor would it have been possible to secure a consensus in favour of such legislation across all parties in Parliament.
And there is something else that the big papers are failing to acknowledge. The measures agreed by Parliament, the reforms currently being unjustifiably withheld by compromised Culture Secretary John Whittingdale, would also bring unprecedented benefits for journalists.
If, as Parliament always intended and as David Cameron explicitly promised, Whittingdale signs the administrative document ‘commencing’ Section 40 of the Crime and Courts Act 2013, it could spell the end of a form of bullying that has stifled good journalism in Britain for decades.
It is called ‘chilling’ and it happens when a wealthy individual or institution forces a publisher to abandon an investigation by threatening to drag it through the libel courts for years at potentially ruinous expense. Editors have complained about this at least since the Robert Maxwell scandal two decades ago and Section 40 can end it forever by giving newspapers the power to insist that potential litigants wait until after publication and then proceed through low-cost arbitration.
(If a complainant still tries to flex financial muscle by insisting on expensive court proceedings, Section 40 has an answer: even when the complainant wins the case in court he or she will normally have to pay the publisher’s costs. Thus no halfway sensible newspaper or website could be deterred from publishing a genuine story by the risk of a big libel bill.)
Why do big news publishers not want to take advantage of this great gain for journalistic freedom? Only one explanation suggests itself: because they fear being open to legal action for libel and breach of privacy from ordinary people, through cheap arbitration, more than they care about exposing the wrongdoings of big institutions.
What does that tell us about their journalism, and about their commitment to freedom of expression?
This post originally appeared on the Hacked Off blog and is reproduced with permission and thanks.