Sometimes, even after all these years of press lies and hypocrisy, the shamelessness of the big British newspaper companies can still take the breath away. Last week lawyers for the Murdoch, Mirror and Mail papers complained to the Supreme Court that costs in some media cases amounted to a ‘legal casino’ in which the bills could be so high that there was a ‘chilling effect’ on journalism. As a result, they argued, freedom of expression was endangered.
Specifically, they were seeking curbs to the additional costs that can arise in cases where claimants in privacy and libel cases take advantage of Conditional Fee Agreements (CFAs), also known as ‘no-win-no-fee’ arrangements.
CFAs are at present the only way anyone who is not a millionaire can sue a paper, but there is no doubt that CFA costs can be surprisingly high so on the face of it you might have some sympathy with the press companies.
The problem is (though readers of the Times report were not reminded of the fact) that these same organisations – the Murdoch, Mail and Mirror papers – have for the past three months been leading a hysterical and utterly dishonest campaign to prevent reform of legal costs.
That’s right. Section 40 of the Crime and Courts Act 2013, which these papers are so desperate to block, would completely remove the need for CFAs, with their ‘success fees’ and their insurance bills.
More than that, it offers newspapers total protection from ’chilling’ – intimidation by the wealthy and litigious. And still better, it offers to slash all cost risks in libel and privacy cases by engaging news publishers in a low-cost arbitration scheme.
Under Section 40, in fact, the cost of dealing with a serious libel case should fall from the seven-figure sums complained of last week in the Supreme Court to low five-figure sums at most.
So at the very same moment that the Times, the Mail and the Mirror are complaining in the Supreme Court about the scandalous cost of CFAs and their ‘chilling’ effect on investigative journalism, they are ranting and railing on their editorial pages against a measure designed to bring an end to the scandal – and to protect free expression.
How can this be?
These companies think the price of Section 40 is too high, in two respects. The first is that to take advantage of its benefits they must join a press self-regulator that the public can trust to uphold a code of conduct for journalists in an effective and independent manner. Having spent seven decades dodging that, they really don’t want it now.
The second is that the benefits of Section 40 extend not only to news publishers but also to ordinary members of the public. If the government sees fit to put Section 40 into effect, then for the very first time all citizens who can make a decent case that their rights in libel or privacy have been breached will enjoy a right of access to justice at low cost – as little as £70 in fact.
In other words Section 40 would end of the real scandal in these matters, the one that afflicts the general public as opposed to wealthy newspaper companies. That is the scandal that only the rich and those few people fortunate enough to secure CFAs can afford justice. It is the old, old scandal in which the vast majority of us are left powerless when newspapers abuse us.
You can see why the Murdoch, Mail and Mirror papers don’t want any change there. Just as they don’t want any code of conduct effectively upheld, they don’t want the laws of libel and privacy to be generally enforceable – especially not at £70 a time.
This is why what they are up to in court is so shameless. Read the words of counsel for the Times, Richard Rampton QC, as reported in that newspaper:
‘Freedom of expression is vital to the health of a democracy. The role of the media is vital in serving that interest. Even in the age of social media, newspapers and broadcasters are the means by which citizens get much of the information that they need to make effective decisions about the world they live in.’
That vital role is under threat, he argued, from a ‘costs bonanza’, a ‘legal casino’, a ‘chilling effect’.
What the press companies are aiming for, in begging the Supreme Court to curb the CFA system, is to secure a legal environment in which nobody who is not a millionaire is ever able to uphold their rights against a newspaper. And astonishingly, they have the nerve to claim they are doing this in the name of democracy and freedom.