As you may have seen, the sham regulator IPSO has announced that it is introducing a ‘compulsory’ arbitration scheme for national newspapers that it says should enable people to pursue libel and privacy cases without having to incur huge legal costs. We can expect the industry’s cheerleader in Parliament, Culture Secretary Matt Hancock, to treat this as a breakthrough of historic significance, but there are compelling grounds for scepticism. Here are a few.
The press industry has argued passionately against compulsory arbitration ever since it was proposed by Sir Brian Leveson in 2012, so why do this now? The answer is that we are days away from a Commons vote on implementing Section 40, a measure that will give teeth to the full Leveson regulatory reform package that was approved by Parliament in 2013 but has been withheld by the government. Because their friends in the Conservative party don’t have a majority the corporate papers fear defeat, so they see the need to make a partial concession in a bid to prevent that.
The full details of the arbitration arrangements remain unclear. It appears, none the less, that the national newspapers will have an option of deciding whether or not to take part in this ‘compulsory’ scheme. IPSO tells us the damages limit will, generously, be raised from the £50,000 available in the current (unused and untested) voluntary system, to £60,000. All the other defects of the current scheme seem likely to remain: short time limits for claims, no oral hearings unless the newspaper agrees (and if it does the hearing will be in private at IPSO’s offices), no appeals on points of law and a cap on costs of £10,000.
And whatever the details of the scheme, we would be fools to assume that any promise by the corporate press will be fulfilled. These are the people who, launching IPSO in 2014, promised us front-page corrections, vigorous investigations and million-pound fines, and not one of those has happened. These are the people condemned by Leveson for a 60-year ‘pattern of cosmetic reform’ in response to public demands for change. And these are the people whose journalists are trusted to tell the truth by (at best) only one in five of the population. Their word is worth nothing, and their word is all we have. If their scheme had been running successfully for two or three years (and there was nothing to prevent that) there might be grounds for believing in it. As it is, it comes along, on paper, just days before the House of Commons votes, and is untested by anyone. It is a pig in a poke, offered by a very dodgy salesman.
This is very obviously a desperate, last-minute measure designed to head off the part of Section 40 that the press fears the most: effective, independent regulation. Leveson deliberately linked low-cost arbitration to regulation as the only form of pressure (a fairly mild one, in fact) that should be applied to encourage news publishers to participate in regulation that was independently recognised as adequate to protect the public from press abuses. The arrangements surrounding legal costs in Section 40 (of the Crime and Courts Act 2013) place news publishers at a disadvantage if they do not participate in arbitration provided by a formally-recognised regulator. IPSO does not meet those standards of effectiveness and independence, and this latest manoeuvre shows the length the industry will go to avoid being regulated to those standards. They are happy to have a code of practice and to talk grandly about standards, but they are utterly terrified by the idea that the code might actually be upheld by independent people who put the interests of the public first.
Section 40 offers a very important carrot, alongside that small stick, and it is a carrot that would benefit everyone. If the corporate press has its way, this will be lost. It was a legal means to deny wealthy and powerful individuals and institutions the power to bully journalists through the threat of expensive and time-consuming court action. Though editors used to complain about this, they now never mention it – again because Leveson linked it with regulation, and more than anything they fear Leveson-standard regulation. They will be happy to forfeit this additional freedom for their journalists, a freedom that would enhance their ability to hold power to account on behalf of the public, rather than be effectively obliged to honour their own code of practice.
The Leveson reforms were meant to break a pattern in which the public suffered because of the inability or unwillingness of politicians to bring about real change. The judge offered – and Parliament in 2013 accepted – a package of measures designed to take these matters out of the hands of politicians for good, and to entrust an independent body with the task of overseeing effective, independent regulation, and low-cost arbitration, into the future. Not only would any press regulators be tested when they were set up, but they would be checked regularly every few years to make sure their standards did not slip. If this latest manoeuvre succeeds and MPs fail to back Section 40, that sustainability will be lost. Worse, we know that once the vote has occurred and parliamentary pressure has been removed, a rapid decline in the already low standards of regulation offered by IPSO is all but inevitable. A free-for-all will follow in which members of the public will be the losers.
A final note
Regulation and arbitration are different. The latter concerns the law: people will only have access to arbitration, at best, if they have a case that their legal rights have been breached. Much of the worst press behaviour, however, falls within the law but is none the less unjustifiably harmful. Journalism that is distorted and misleading, for example, may not be libellous but it is certainly contrary to the letter and spirit of any of the available codes of practice, can be gravely harmful and should be sanctioned where found. Without Section 40 we may therefore expect many repetitions of the kind of journalism that brought us ‘The Queen backs Brexit’ (The Sun) and ‘We’re from Europe: Let us in!’ (the Mail), neither of which was libellous but both of which were misleading and harmful.