It is a longstanding national scandal that, although in principle the law protects us against libel and breach of privacy by news publishers, with rare exceptions those laws work only for the rich. The vast majority of people in Britain simply can’t afford to go to court to uphold their right not to be lied about and and their right to have a private life.
The inevitable consequence is that some in the news media intrude and publish lies because they know they can do so with impunity, so the failure of our legal system to ensure access to justice actually encourages injustice.
This is unacceptable in a civilised society.
What is not widely known is that we are just one signature away from a remedy. If the Culture Secretary, Karen Bradley, were to sign an order tomorrow commencing Section 40 of the Crime and Courts Act 2013 she would, at a stroke, give everyone in the country the ability to uphold these rights at minimal cost.
Think about it. If you were libelled by a news organisation in print or online you would not have to consider whether to risk your home to fund a court action; you could pay £75 and make your case before a professional arbitrator. He or she would then make a ruling under the law and if you were successful could award damages or impose other sanctions.
And if for any reason the news publisher you were challenging was not signed up to a proper arbitration scheme you would still not have to risk your home pressing your complaint. Section 40 says that if a news publisher obliges a claimant to go to court rather than to a low-cost arbitrator that news publisher should pay all the legal costs of the case whatever the outcome, providing that is ‘fair in all the circumstances’.
Section 40 is therefore a remarkable opportunity to right a terrible wrong in our society. And news publishers would benefit from it in several ways. One is that, providing they participate in arbitration, no paper or news site need ever risk a seven-figure High Court costs bill again.
Another is that editors and journalists are liberated from ‘chilling’, a blight on reporting that they have been complaining about for many years. Chilling happens when a wealthy litigant uses the potential cost of court proceedings to deter honest reporting – a notorious case involved the businessman Robert Maxwell, who blocked investigation of his criminal activities by frequent threats of legal action.
Under Section 40, if a Maxwell figure tried the same tactic on an editor that editor could simply reply: ‘We will publish our story, after which you can pay your £75 like anyone else and we will respond to you before the arbitrator.’
It is a brilliant scheme for everyone except those who want to breach the law by libelling or intruding, and it has an added benefit. It places pressure on news publishers to participate in effective, independent regulation of the kind recommended in the Leveson Report and endorsed by all parties in Parliament.
You might wonder why Karen Bradley, who voted for Section 40 in 2013, has not already signed the necessary commencement order, which has been on her ministerial desk since she arrived at it 18 months ago. She must know, after all, that as a result of her delay people have been suffering and continue to suffer from libels and breaches of privacy for which they have no accessible remedy.
It hardly needs to be said that without access to justice our laws are meaningless. That was recognised in Magna Carta, no less, and only last July the Supreme Court put the point in plain language:
‘People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations.’
Karen Bradley’s choice should therefore be an easy one, except that she is under pressure from the national newspaper corporations to shelve Section 40 again.
These are, to borrow the Supreme Court’s language, businesses which at present know that the vast majority of citizens are unable to enforce their rights against them – and they like it that way. Despite their protestations that they hold the powerful to account they are content to tiptoe around the wrongdoings of the very wealthy (who can afford to sue) while regularly trashing the rights of ordinary people.
So, to protect this cynical business model, ever since Section 40 was passed in 2013 the corporate papers have been ferociously misrepresenting it to the public and to parliamentarians, pumping out propaganda articles and news reports. And in this propaganda they are careful never to mention access to justice, because they cannot afford to let their readers know that the principal objective of this measure is to enable ordinary people to protect their lives and uphold their rights.
The choice before Bradley was summed up in a line she wrote herself in the introduction to her consultation on the issue: ‘This is a government that works for everyone and not just the privileged few.’ Which will it be in this case?
(Picture from Freefoto.com, with thanks)