The Martyrdom of Press Freedom: What Recognition of IMPRESS means and why the press fears It – Paul Wragg

13 11 2016

impress2xPress regulation is changing.  On 29 October 2016, IMPRESS was officially recognised as the UK’s first ‘Leveson-compliant’ regulator.  This is a momentous occasion.  But recognition has been met with uniform hostility from the mainstream press.  The Daily Mail was not alone in decrying the event as an end to 300 years of press freedom

As a member of the IMPRESS code committee, I want to get to grips with these claims, not least because I know that code committee members have strived to reconcile the legitimate interests of the press with the legitimate interests of the public, including those who are occasionally victims of the press’s work.  It is clear that some newspapers now feel threatened by the existence of IMPRESS and it is important to understand why.

It seems clear that the press does not object to regulation as such. The ‘irony’ of recognising IMPRESS, claims the Daily Mail, is that ‘the Press has never been more tightly regulated’.  According to the Times ‘IPSO has the power to impose stiff fines and has already resolved dozens of complaints with sanctions and through mediation’.  Moreover, they say, ‘every…national paper [apart from The Guardian, The Independent and the Financial Times] supports and is bound by IPSO and its editors’ code of practice’. Nor is the press suggesting that the IMPRESS code is more onerous than IPSO’s.  As Peter Preston in The Guardian said, ‘Set the IPSO and IMPRESS editorial codes side by side and no one can see much difference.  Apply those codes to current cases and there’s no obvious gap either’.

The press does object, though, to the perceived blackmail underpinning the government’s plans for press regulation.  Recognition of IMPRESS has triggered s 34, Crime and Courts Act 2013.  This allows the court to award exemplary damages against a publisher outside the scheme of recognised regulation (ie, non-IMPRESS members) but only if that publisher has had deliberate or reckless disregard, of an outrageous nature, for the claimant’s rights and that conduct merits punishment.  Clearly, this is a judicial power that will be exercised in narrow circumstances and not at all if publishers refrain from acting egregiously when disregarding the rights of victims.

The press is also concerned that IMPRESS’s recognition will prompt the Secretary of State for Media, Culture and Sport to activate the controversial s 40, Crime and Courts Act 2013.  This provision dictates that successful defendants in media claims (defamation, misuse of private information, etc) bear the costs of the claimant, if they are not members of a recognised regulator.  This, the Daily Mail claims, will encourage mischievous and meritless actions: it will ‘hand a blank cheque to anyone to sue any newspaper, however risible their case, knowing it won’t cost them a penny’.

This is a fanciful claim.  Even with section 40 in place, the defendant can have ‘risible’ claims struck out long before substantial costs are incurred.  The Times fear that section 40 ‘would encourage baseless lawsuits from plaintiffs seeking simply to run up defendants’ legal bills’ is foundationless because strike out prevents those costs accruing.  Moreover, the incentive to pursue such an action – the ‘blank cheque’ mentality – is nonsense.  Given that costs are never fully recovered, the pursuit of a claim that leads to no more than a partial recovery of costs is no incentive to litigate.

The Times claims that someone like Lance Armstrong, who, they say, sued The Sunday Times to contest the truth about his doping in order to intimidate other news organisations from reporting on it, would now be empowered by the prospect of recovering their costs.  This enhanced bargaining position would ‘encourage’ litigation ‘in the hope of settling out of court’ and so conceal misdemeanours.  This is an interesting point, although the logic of it is not persuasive.  If a Lance Armstrong-type character sought to suppress the truth then the active pursuit of a defamation claim would be disastrous.  Even with section 40 in power, the court would find against him and undermine his credibility.  The fact that he would recover his costs would hardly vindicate him, though, clearly, it would stick in the craw of the defendant. But the threat to litigate, though, as a strategy to intimidate, would be very risky.

Yet the wording of section 40 does not necessarily lead to the gloomy outcome that The Times predicts.  Costs must be awarded unless the court is satisfied that the issues raised could not have been settled using arbitration or that it is just and equitable in all the circumstances to disapply the rule.  In the Lance Armstrong-type scenario it might be said the issues were too complex for arbitration, given the depth and length of the investigation into his activities.  The Sunday Times would have had a powerful claim to say that the allegations must be printed.  Alternatively, a powerful claim could be made to disapply the rule given the enormity of the journalistic discovery.  In an exceptional case such as this, it is highly unlikely the courts would punish the newspaper and reward the claimant for his egregious wrongdoing.

The press also claims that the Crime and Courts Act 2013 amounts to coercion to join IMPRESS.  This is problematic for the Daily Mail because IMPRESS is a ‘phoney State-endorsed regulator’ or it is a front for Max Mosley ‘and the zealots of Hacked Off’.  These concerns over political allegiances were dismissed by the PRP, as the Daily Mail itself admits.  IMPRESS is not a lobbyist; it is a regulator.  Its role, like IPSO’s, is to adjudicate on complaints that speak to the published code of conduct.  That code has been carefully drafted to protect the interests of the public to live free from undue press scrutiny as well as to protect the interests of the public in receiving accurate investigative journalism.  IMPRESS has no political role to play in those adjudications.  It cannot suppress publication.  It cannot find against publishers for expressing illiberal or shameful views.  It cannot say that the press must contribute to democracy more productively.  Its function is simply to uphold the code.

The Daily Mail complains that IMPRESS would ‘set in place a system of State licensing which would be condemned without reservation by liberals in Britain were it imposed by a totalitarian regime’. The comparison to licensing of the 1600s is a powerful trope.  But it is utterly meaningless.  In pre-modern Britain, the Crown had the power to sanction ideas that troubled it, however whimsical that unease or distress may be.  Scandalous, seditious and treasonable speech brought severe penalties.  A person could be imprisoned, emasculated, disemboweled, quartered and beheaded (see, eg, David Cressy, Dangerous Talk (OUP, 2010).

Under the Royal Charter, a newspaper may be required to publish a correction or an apology.  Repeated disregard for the code may result in a fine.  The newspaper that thinks these two regimes are comparable needs to think again.  But, crucially, the Royal Charter regime does not attack ideas.  It regulates rights.  Newspapers remain free to express whatever unscrupulous, dangerous and misguided opinions they wish to publish.  The only restriction is that information provided must be accurate, non-discriminatory to individuals and respect rights to privacy.  We should be clear that the Daily Mail remains entitled to pursue the totalitarian ideal that judges who block the unlawful use of prerogative power are ‘enemies of the people’ if it wishes to stand for that sort of ideology.

The underlying tactic in press commentary on the Royal Charter (generally) and recognition of IMPRESS (specifically) has been to evoke sympathy.  It has portrayed itself as under attack from the courts and government with no means of defending itself or of protecting serious investigative journalism.  This self-serving tactic shamelessly misrepresents the options.  The press remains master of its own destiny.  It would face no threat from s 34 or s 40 if IPSO obtained official recognition.  The Daily Mail claims that IPSO will not do so ‘because its members believe, quite rightly, that it is the back door to control by politicians’.

This is a difficult claim to fathom.  The only government role left in the system of press regulation is when to activate section 40.  The threat of punitive awards and costs is neutralised if IPSO is recognised.  Indeed, it will then be powerfully protected from costs in media claims because section 40 will swing the other way to punish the claimant who pursues expensive court action over inexpensive arbitration. This is IPSO’s most potent weapon – and it is intriguing why it has not availed itself of it.  If the press feels more ‘tightly regulated’ by IPSO and welcomes the higher ethical standards that it represents then there is nothing to fear from recognition.  There will be no external ‘meddling’; IPSO and its members will be left alone to regulate itself.  The only threat that the recognition process poses is to test IPSO’s claim that it is truly independent from press interference.  Whilst it sits outside the recognition scheme, its claims to independence remains unchallengeable.  If it submits to scrutiny, that claim might be proven false – something IPSO members certainly do not want because it would reopen the debate about whether government needs tougher measures in place to tackle the problems of partisan regulation that Leveson identified.  So the real question in this debate is not why would IPSO submit to official recognition but why wouldn’t it?

Dr Paul Wragg is an Associate Professor at the School of Law, University of Leeds, and an Associate Fellow of the Inner Temple.  He is editor-in-chief for Communications Law (Bloomsbury Press).  This article will be published in the December issue of Communications Law.  Submissions for the journal should be e-mailed to p.m.wragg@leeds.ac.uk.


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13 11 2016
The Martyrdom of Press Freedom What Recognition of IMPRESS means and why the press fears It Paul Wragg | Real Media - The News You Don't See

[…] Press regulation is changing.  On 29 October 2016, IMPRESS was officially recognised as the UK’s first ‘Leveson-compliant’ regulator.  This is a momentous occasion.  But recognition has been met with uniform hostility from the mainstream press.  The Daily Mail was not alone in decrying the event as ‘an end to 300 years of press freedom’.  As […] Inforrm’s Blog […]

13 11 2016
daveyone1
14 11 2016
Andrew Scott

Why is it risible and/or fanciful to suggest that claimants would game this system in the hope of achieving better outcomes in terms of settlement before cases get anywhere near the court? The evidence of newspapers’ response to the use of CFAs produced by the MLA re 2008 (sic?) suggested forcibly – even if somewhat tendentiously – that media companies were indeed compelled (or maybe just chose) to settle what would ultimately have been losing claims early. What is the evidential basis for your contention? or is it merely a ‘view’?

Another view – this time an incontrovertible one – is that this is a tax on free speech.

14 11 2016
Paul Wragg

Gaming happens all the time, in all litigation contexts. That includes settling meritless claims on a commercial basis. There is nothing special about the press in that respect — this is a fact of business.

But this is besides the point. My point — which you don’t engage with — is that adverse costs is not as inevitable as The Times — and presumably you — claim. The pursuit of litigation is costly, time-consuming and emotionally draining. The idea that people will now start pursuing vindictive claims is far-fetched.

The idea that this is a tax on free speech makes for a great slogan — you could sell quite a few t-shirts I’m sure — but you’ll have to talk me through how this improves state revenue.

14 11 2016
Andrew Scott

Paul, unlike yourself, I have no iron in the fire here whatever and I’m sorry to read your ad hominem response. It’s true that I haven’t responded to any of the other points/arguments, but similar complaints regarding your preference for assertion over (difficult to obtain) evidence can be made in respect of most of them.

Certainly, the newspapers’ comments on recognition / Impress etc will be instrumental and self-serving, but that doesn’t make them automatically baseless. If you want to argue that they are so, then mere assertion is not enough. A strong case can be made for the Leveson-inspired scheme, but it is not good enough to pretend that there are no downsides. And fundamentally, why should organisations like the Guardian or Private Eye be subjected to any form of regulation beyond the courts?

The point re Armstrong’s actions – and that, of course, is only one admittedly very good illustration – is that people absolutely do game libel/privacy litigation. Yes, that is a feature of all litigation, but here we are talking about legislative provisions that will make that sort of illegitimate pressure very much easier to bring to bear. Moreover, the potential fall-out is very significant indeed with media litigation, not just for the immediate litigants but also in terms of its potential wider impact on public knowledge.

You say that strategies such as that pursued by Armstrong would be “risky” and “far-fetched”, but the fact is that he did it and others do it, even though – as we all found out in 2013 – he was a copper-bottomed liar.

Yet, transport yourself back to when the Walsh article was published, and this is what happened (even though Walsh was right, and “everyone” knew it)…

– Armstrong v Times Newspapers Ltd & Others (QB) [2004] EWHC 2928 (QB)
– Armstrong v Times Newspapers Ltd & Others (CA) [2005] EWCA Civ 1007
– Armstrong v Times Newspapers Ltd & Others (No.2) [2005] EWHC 2816 (QB)
– Armstrong v Times Newspapers Ltd & Others (No.2) (CA) [2006] EWCA Civ 519
– Armstrong v Times Newspapers Ltd & Others (No.3) (QB) [2006] EWHC 1614 (QB)

And after all that, the Sunday Times settled with Armstrong and reportedly paid him costs and £300k damages.

14 11 2016
Paul Wragg

Thank you, Andrew. I appreciate your response. The incentive for someone like the Guardian or Private Eye to join a recognised regulator is, amongst other things, the protection they will gain from s 40 (once activated) operating in their favour. Disputes can be settled cost-efficiently through arbitration or, if that is not possible, through the court, but without the threat of having to bear the adverse costs order. If the claimant refuses to engage in arbitration then they will bear the defendant’s costs.

As to Lance Armstrong, it is a pity that the Sunday Times did not progress the matter to court for the justification plea to be heard. But, of course, the position against Armstrong was much stronger after the USADA findings in 2012.

14 11 2016
Evan Harris

For Andrew Scott’s concerns about section 40 to be valid, one of two things must be true

Either 1) newspapers have valid reasons to reject Leveson and the will of Parliament; and then choose not to take advantage of the costs protections (let alone avoid the costs penalties) by electing not to join a recognised regulator.

No valid reasons have been offered.

That deals with the Lance Armstrong issue fully, without having to fall back on what Paul Wragg says (which is surely right) that there is sufficient judicial discretion written into section 40, or even to put it down to a “litigation gaming” fact of life.

Alternatively 2) it must be true that newspapers face HIGHER costs from being required to offer and then fund low-cost arbitration than they face from existing court costs. Since the IMPRESS arbitration scheme is much cheaper than the High Court, and in fact cheaper than unrecoverable costs from successful defences or strike outs, then the only way this could happen is that by joining IMPRESS they would suddenly be assailed by large number of new viable claims (those that are not are filtered out by the regulator or arbitration service). What is the extraordinary evidence for this extraordinary claim?

There is none. And the industry has had 4 years since Leveson to demonstrate that there is unclaimed libel and privacy intrusion all over their pages, that have escaped the notice of the damaged or have not tempted claimant lawyers equipped with CFA recoverable uplifts and ATE. No evidence has emerged. Even if it did it would merely show that the absence of low cost arbitration had denied accessible justice to those whose rights had been impugned by newspapers.

So while Dr Scott can mount a theoretical case for the second option, there is simply no evidence for it.

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