by Brian Cathcart
It has been a long time coming, but the first of the big reforms recommended by the Leveson Inquiry is finally going to happen, and that is good news for all of us because it means greatly enhanced access to justice in some cases where our legal rights may have been breached.
It also offers a historic opportunity to British journalists, and particularly inves-tigative reporters, who for the first time can have effective protection from ‘chilling’ – a kind of legal bullying that can stifle good journalism.
The door to these changes is being opened – nearly three years after the Leveson Inquiry reported – because a small, new, wholly-independent public body called the Press Recognition Panel (PRP) has announced that it is ready to do business. The next step is for it to assess and then (barring surprises) grant official ‘recognition’ to its first applicant, Impress, and that in turn will trigger those important changes in the law.
The changes, incorporated in the Crime and Courts Act 2013 (Section 40), will ensure that in legal cases involving possible libel and invasion of privacy by UK news publishers, everyone will have access to justice, and not just the rich. (Fairer access to justice, incidentally, is an explicit objective of the present government.)
Gone will be the days when ordinary people who believed they were wronged by powerful national newspapers faced the risk of bills in the tens and hun-dreds of thousands of pounds if they wanted redress. Instead, we will all have the right to have our case heard at low cost (perhaps £150), or even at no cost at all.
This will happen in one of two ways. Where the legal claim is against a news publisher that is a member of Impress, the case will normally be handled out-side the court system in a new, Leveson-style arbitration process.*
Alternatively, where a case involves a publisher outside Impress (and the biggest national newspaper companies are all outside Impress), that publisher will be deemed to be denying access to satisfactory cheap arbitration and so it will have to pay all of the legal costs of both sides in any High Court action, no matter who wins.
In other words, if you have a genuine, arguable legal case, either you get cheap arbitration or else all your court costs are paid. Corporations such as the publishers of the Sun, the Telegraph and the Mirror will not be free to tell people: ‘You can only have justice in your libel or privacy case if you are rich enough to take us to the High Court.’
It is a big change, even a revolutionary one, and it has been the result of the most careful deliberation. The Leveson Inquiry was a formal, judge-led public inquiry set up in response to a grave crisis in press standards and it heard and considered the evidence of all parties over more than a year. The legal changes described here were among its recommendations and they were endorsed in turn by all parties in Parliament after months of cross-party dis-cussion
How soon will this change come? Since Impress will be the first regulator to present itself for recognition we can’t say how long the process will take, but it is likely to be in the next few months.
If it has taken years to reach this point, there are two reasons. The first is that, as Leveson recommended, complex and elaborate procedures were re-quired to ensure that the Press Recognition Panel and the entire process are entirely free from political or industry interference. That took time. The second is that the big newspaper companies have done all in their power to delay things.
Their behaviour, on the face of it, is perverse, because these legal changes offer huge benefits for journalists working on important stories about rich and powerful people and institutions – the sort of activity the papers say is at the heart of their work.
For many years editors have complained of the effect of ‘chilling’ – a process best illustrated by the example of the late Rob-ert Maxwell, who in the 1980s and early 1990s was able to prevent the expo-sure of his fraudulent activities by legal intimidation. He threatened any reporter or paper that investigated him with court action that would tie them up in court for years and expose them to great financial risk.
Maxwell has his successors today – editors say that many stories are lost be-cause rich individuals and big companies behave the same way. Even big newspaper companies are often unwilling to carry the risk of a six-figure legal bill over several years for the sake of one scoop, although that scoop may be important and in the public interest.
Once Impress is recognised later this autumn, however, those UK news publishers who join it will enjoy protection from chilling. If, for example, a Russian oligarch or a giant supermarket chain threatens to sue them, their editors don’t need to fear high costs. They can publish their story and tell the litigant: ‘We will see you in arbitration once you have paid your £150.’
And if the litigant insists on having a day in court – in other words, tries to de-ny the news publisher its right to cheap arbitration – then the litigant will be required to pay his or her own court costs even if they win, and possibly the other side’s costs as well if they lose.
For everyone who cares about freedom of expression in Britain, and about the ability of journalists to hold the powerful to account, this is a historic breakthrough, another revolutionary change.
Why then are the big newspaper corporations spurning it? It is up to them to explain, but the reasons they have offered so far are without foundation.
They claim, for example, that the Royal Charter system is a threat to free speech, but that is false. They also claim that all of this is a breach of their human rights (on this point the Daily Mail is happy to invoke both the Human Rights Act and the European Convention on Human Rights in its own defence) but that too is untrue.
They used to claim, when Leveson recommended a free arbitration service for complainants, that this would ‘open the floodgates’ for an unmanageable number of claims. But then, at their request, a modest administrative charge was permitted as a deterrent to frivolous claims, so they can’t claim that any more.
Surely, having complained for so long about the costs of going to court, they can’t object to the idea of cheap arbitration. And surely they can’t declare that they don’t mind having their reporters ‘chilled’. Let us hear what objections they have.
* Unless the claimant explicitly rejects that option, in which case they will have to pay their own legal costs in the High Court, win or lose, and may have to pay the other side’s costs if they lose.