Protestors dressed as David Cameron and Rupert Murdoch at the publication of the Leveson Report on 29th November (photo: Rex Features)
Following the Leveson report into the culture, practices and ethics of the press, the most heated discussion concerns whether Fleet Street would be subject to self-regulation or to statutory intervention. But this binary discussion omits a crucial element: the judiciary, which has a role of great significance to play in shaping the post-Leveson media. Its contribution should be to assist in reforming the appalling cost of taking legal action. Victims of the press must have a right to proper redress at a fraction of the cost of current High Court litigation.
Lord Justice Leveson, a close friend of the lord chief justice, Lord Igor Judge, is a clever man who believes implicitly in a free press and an independent judiciary. Last year, in a speech on media regulation, Lord Judge referred to these as two pillars of a healthy democracy. Leveson likewise has emphasised that a new press regulatory body must be independent of parliament and the industry.
However, any suggestion of pre-publication regulation greatly alarms the press. Indeed, Leveson’s biggest mistake was to suggest that Ofcom, which regulates TV and radio, would have oversight of any new independent regulatory body—Ofcom’s head is appointed by the government using parliamentary procedures for public appointments. The press hates the idea of their arbiter being in hock to MPs or in any way licensing them.
So who should guard the guardians? Some, the prime minister included, advocate delaying any legislation to give the press time to find its own solution. In this case, the media would be becoming its own guardian, signing up, under contract, to a new independent regulatory body, which would have two or three years to show it can work.
Any new regulator must offer victims of press intrusion and bad behaviour access to justice through a fast, fair and cost effective dispute resolution system. And that system must involve awarding damages to people whose reputations have been damaged.
Leveson has recommended a new system of free, binding arbitration, paid for by the industry, as a precursor to High Court litigation, which everyone accepts is cripplingly expensive. However, a new arbitration system like this will remain optional and ineffective unless either it is introduced under statute—which the press would not like—or the judiciary builds in incentives for litigants to choose this new arbitration route. The best way to ensure that voluntary arbitration will work is not through statutory regulation, but by making it financially very risky to ignore the arbitration route on offer. If defendants or claimants choose not to go down this quick, cheap, new route, they will be penalised when it comes to recovering legal costs.
Leveson’s option for binding voluntary arbitration, with the press industry footing the bill in most cases, will only work if there are real incentives to pursue arbitration and both rich claimants and powerful newspapers go down this route. Equally the press must be reassured that under a new “free” arbitration system, the floodgates for hundreds of hopeless cases will not be opened. There must be major reform of how and when judges award costs and when they award exemplary damages.
So we come back to the judges and whether the Civil Procedure Rule Committee will make it clear that those not using the new independent arbitration system will be penalised in costs. If they do subscribe to the new arbitration system, then statutory intervention might just be shelved.
The judiciary and the Civil Procedure Rule Committee must now make sure that the free arbitration system posited by Leveson has strong incentives and deterrents. All disputes should be processed in the same way and civil litigation should become a level playing field. If the press ignores the question of access to justice and fails to encourage judges to buttress the new free arbitration system, then the industry may one day be subject to statutory intervention. If Leveson is to be effective then the judiciary itself must now move with precisely the speed that, at present, it expects from the press.
