Leveson moots arbitration service for resolving claims against the press
29 November 2012 | By Katy Dowell
Lord Justice Leveson today said a low-cost arbitration service should be established to help newspapers and magazines resolve legal claims.
Publishing his long-awaited report into the culture, practice and ethics of the press, Leveson LJ proposed that a statutory body such as Ofcom should take responsibility for monitoring an overhauled Press Complaints Commission.
Such a body would provide a dispute resolution service and those that do not sign up to the new form of independent regulation of the press would leave themselves open to claims for exemplary damages in civil claims. Publishers would also lose the ability to claim back their own costs in libel and privacy cases, even if they won, if they did not sign up.
Leveson LJ said: “I believe these proposals in relation to costs should provide a powerful incentive for all publishers to want to be part of such a self-regulatory system.”
In his 2,000-page report Leveson LJ said the press must create a new and tough regulator, but it had to be backed by legislation to ensure it was effective.
“The press has to be accountable to the public in whose interests it claims to be acting and must show respect for the rights of others,” he said.
“It should not be acceptable that it uses its voice, power, and authority to undermine the ability of society to require that regulation is not a free for all, to be ignored with impunity.
“The answer to the question who guards the guardians, should not be ‘no one’.”
Excerpts from the report:
- “An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals. That body should set standards, both through a code and in relation to governance and compliance.”
- “The body should: hear individual complaints against its members about breach of its standards and order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications.”
- “…the provision of an arbitration service that is recognised and could be taken into account by the courts as an essential component of the system, not (as suggested by Lord Black) simply something that could be added at a later date. The service could be administered comparatively easily within the regulator and be staffed by retired judges or senior lawyers with specialist knowledge of media law whose fee would be met by the publisher but who would resolve disputes on an inquisitorial model, striking out unmeritorious claims and quickly resolving the others.”
- “If, by declining to be a part of a regulatory system, a publisher has deprived a claimant of access to a quick, fair, low cost arbitration of the type I have proposed, the Civil Procedure Rules (governing civil litigation) could permit the court to deprive that publisher of its costs of litigation in privacy, defamation and other media cases, even if it had been successful.”
- “The board should publish an annual report identifying, amongst other things “information about the extent to which the arbitration service had been used.”
The lawyers respond:
Withers partner Amber Melville-Brown
Journalism has to be plied professionally if the press is to take its proper place as watchdog and bloodhound of society, rooting out and alerting us to evil. And Lord Justice Leveson has also acknowledged the need for the press to be able to inform, educate and entertain, and in doing so to be “irreverent, unruly and opinionated”.
The PCC had failed, he said, in keeping the press to its responsibility to the public. And therefore there was a need for real independent, statue backed, self-regulation. If such regulation is not truly independent of industry leaders, government and politicians, it would not have the confidence of the public and would effectively be ‘the industry marking its own homework’.
But the report raises various questions. What might happen if the media as a whole, doesn’t agree to buy in to the scheme? And how will a two tier approach, with on the one hand a form of arbitration under the new proposed regulator and the traditional ambit of the courts on the other, play out.
There was cross- party support for a new Defamation Act favouring publishers and the result of a vociferous campaign by defamation law detractors , anticipated in 2013. Whether government - to whom the ball has now been firmly passed by Leveson - will show support for the essential regulation he asserts is required, or whether he will bow under the pressure of powerful, publishing scaremongers and ignore or delay Leveson’s recommendations, remains to be seen.
Eversheds associate Andrew Terry
Lord Justice Leveson described the Leveson Inquiry today as the “most concentrated look at the press this country has ever seen”. It will take time to study the detail but it appears to offer the press one last shot at a form of self-regulation with voluntary membership, in theory at least. It is proposed to be underpinned by statute but Leveson LJ is clear that this is independent regulation organised by the press.
Crucially, and perhaps surprisingly, Leveson LJ proposes a voluntary scheme with incentives in place in order that newspapers sign up. These incentives include an arbitration service to deal with disputes in a quick and low cost way, with additional damages being awarded in successful litigation brought against those who do not subscribe to the regulatory body. The detail will need to be scrutinised to understand whether or not Leveson LJ has done enough to address the ‘Desmond Problem, that is, are these proposals really strong enough to guarantee that all major news publishers participate meaningfully in the new regime in the long term?
5RB barrister David Sherborne, counsel to the core participant victims (CPVs) at Leveson
Together with my clients, we have had the opportunity to read what we can of the report in the time available earlier this morning. It is on any view a weighty and impressive document, especially as it has been produced within the tight timeframe that Lord Justice Leveson set himself at the outset.
While I am sure that many individual CPVs will be giving their own reaction, the consensus is that we welcome the contents of the report and in particular both the findings it contains and the recommendations which are proposed. The Hunt/Black proposal, which has been supported by the majority of the print media, has been demonstrated to be utterly unworkable and should be consigned to a footnote in the history of press regulation, which is where it belongs.
In the face of the compelling and often disturbing evidence that my clients gave to the inquiry about their experiences at the hands of the press, the need for a strong independent regulator is frankly unarguable and Lord Justice Leveson has recommended exactly that. It only remains now for elected politicians to keep their promises and to put aside their personal relationships with newspaper proprietors and editors. The whole reason why the Government appointed such a senior judge to conduct a public inquiry into press standards was because politicians had been compromised, as module 3 so graphically demonstrated.
Schillings partner Chris Scott
We called for Lord Justice Leveson to think big and broadly at how reputation and privacy disputes can be resolved quickly and more effectively. Providing incentives to the press rather than threats is a sensible approach to underpinning effective self-regulation and encouraging participation.
Changing the way the costs of legal proceedings are dealt with is an ambitious move in the right direction. Looking at replacing the Press Complaints Commission in isolation while reform of libel and its costs are debated risked missing an opportunity. By drawing the issues together Leveson LJ creates a possibility of creating genuine improvement not only to the position of those who find themselves complaining to the press, but also to meet press concerns about the impact of legal disputes.
The hard part now is the detail to achieve demonstrable independence sufficient to have the confidence of the public and press. This not easy to achieve and guaranteeing that independence through ‘statutory verification’ both now and in the future will take serious reflection to get to a result that will stand the test of time.
Finers Stephens Innocent partner Mark Stephens
How does Lord Justice Leveson’s suggestion of fines up to £1m square with the cap on damages to avoid the chilling of free speech? It seems that he has forgotten the Elton John decision in the European Court of Human Rights.
We have a cap on libel and privacy damages of £230,000 so as to avoid fines having a chilling effect on free speech. This is clearly yet another area that the Prime Minister will need to look at more carefully.
Carter-Ruck partner Isabel Martorell
Lord Justice Leveson was right in a number of important respects. First, to recognise the significant failings in the culture, ethics and standards of the press and the overwhelming arguments for a strong independent regulator. While a majority of the British press do uphold and adhere to proper journalistic standards, the actions of a significant minority have demonstrated time and again that self-regulation does not work.
As such, without the statutory underpinning that the Leveson Report recommends, any proposals for reform were likely to lack credibility in the eyes of victims of egregious press conduct. Crucial also from the victims’ point of view were perhaps two things in particular: that any regulatory body is truly independent from the press, and also that it has real ‘bite’ - a power to take effective enforcement action against transgressors, which the PCC conspicuously lacked.
Leveson LJ addressed the question of independence by making clear that a new regulator must not include any serving editors and must also comprise a majority of people who are entirely independent of the press. In terms of the efficacy of the sanctions regime proposed - which includes financial sanctions of up to 1 per cent of turnover with a maximum of £1m - this will depend almost entirely on the new regulator’s willingness actually to employ these powers.
Guardian News & Media legal director Gill Phillips
The report is damning about the widespread failings in the culture, ethics and standards of the press and recognises the devastating consequences this has had for the victims. It finds the relationship between the press and politicians got far too cosy. The police seem to have got off quite lightly.
The report does seem to tar some sections of the press - for example the regional press - with the failings of the few. It concludes, again no surprises here, that the PCC has failed and that a new body is needed.
There appears to be a large degree of consensus around the independent self-regulatory aspects of the report’s recommendations, less so about the statutory verification process the report suggests should be operated by Ofcom.
Is this crossing the Rubicon, as the Prime Minster suggests? Is Ofcom the right body to do this? To what extent will it go beyond verification so as to involve monitoring?
What’s good about the independent self-regulatory system is that it is entirely voluntary. It relies on incentives, for example it recommends constructing a costs regime in relation to privacy and libel cases that would make membership of a voluntary system a significant benefit for any publisher.
There is little suggestion of substantive changes to the law other than the statutory verification process and two recommendations that appear, at first blush at least, to be seriously worrying, namely recommendations to narrow the journalistic exemptions under the Police and Criminal Evidence Act and the Data Protection Act. These will need careful consideration as to their implications.
Michael Simkins partner Gideon Benaim
The Leveson Report has finally been published and the scope of its recommendations are beginning to sink in, although it’s fair to say it will take a bit of time to read the four inch-think volumes.
What an historic opportunity we have here. Politicians, now is your time to act by supporting and implementing what are extremely generous proposals. It could have been so much tougher. It’s not the time to behave cowardly, so it was really good to see Miliband and Clegg showing they have integrity. The public are behind reform - all the polls show it - but the Prime Minister is already backing down. That is extremely bad form.
Independent self-regulation organised by the press with statutory underpinning as recommended by Lord Justice Leveson should be an easy pill for the press to swallow. It’s a much lighter touch than it could have been.
If the press fails to set up, support or sign up to the new independent self-regulator it could face statutory regulation, so I expect it will do its utmost to make it work, at least cosmetically, and give the politicians a get out.
All in all I believe that Leveson has done the best he believed he could, but his recommendations require politicians to stay on track, and the Prime Minister is already backing down.
Mishcon de Reya partner Charlotte Harris
The Leveson Inquiry has dominated the press over the past 18 months, and the report has been eagerly anticipated by the media and the public alike. Lord Justice Leveson’s report is incredibly thorough and is, I believe, vital to restoring public confidence in print media. The report roundly asserts the current system is not good enough, and at Mishcon de Reya we welcome the recommendation of an independent self-regulatory body governed by an independent board. We likewise welcome the categorical statement that neither government nor parliament should be involved in regulating the press.
However, the report also provokes pressing questions. The recommendations must be backed up in statute, but will this be by tinkering with existing legislation or creating new legislation? The absence of a draft bill or draft code are both notable - even more so is the lack of a statutory timetable. Leveson LJ made it clear the ball is now in the politicians’ court. For the inquiry to serve its purpose, addressing the culture, practices and ethics of the press and protecting individuals as well as free speech, it must not be kicked in the long grass.