The corporate national press in this country – it will be no surprise – struggles for sympathy, and it learned some time ago that if it wanted to tap into people’s emotions only one course was open to it: use the local press.
So it is that today, up and down the country today from Wisbech to Worcester and from Bournemouth to Dumbarton, local papers have been pushing out a single message to their readers, and, importantly, to their local MPs: ‘We’re in peril!’
Strangely, though, it’s not the local press that is in peril. It’s not national newspapers either. It is the power of the London-based press bosses who bear the ultimate responsibility for – as the Leveson Report put it – ‘wreaking havoc in the lives of innocent people’.
All those (remarkably similar) editorials in the local papers suggest that measures going before the Commons tomorrow (Wednesday) will gag them and bankrupt them, but in fact neither is the case.
Nothing that is proposed in the amendments to the Data Protection Bill will prevent any journalist, local or national, from doing the vital work of highlighting important issues, speaking freely, and holding the powerful to account. And MPs have bent over backwards to ensure that no financially vulnerable publication could suffer because of these measures.
Either the people responsible for writing the editorials have failed to read or understand the measures, or they are wilfully misrepresenting them. If only they looked properly, they would see that these measures will actually bring them substantial benefits. The facts are these.
The first of the amendments aims to initiate Part 2 of the Leveson Inquiry, which has the brief of investigating press criminality and which the government and its friends in the corporate press, shamefully, are trying desperately to prevent.
The local press is scarcely on the radar here. Nobody has suggested they were involved in criminality and it is very hard to imagine them having a significant role in Part 2. What is happening is that local papers are being used by national organisations as a shield in a bid to avert proper scrutiny.
Small publishers exempt
The other amendment is more complex, but one of the most striking things about it is the extent to which small publishers, including many local papers, are entirely exempt – in other words this amendment will make no difference to them at all.
The list of exemptions is as follows: not-for-profit publishers; those that publish mainly in Scotland, Wales or Northern Ireland or other regions; and those whose average annual turnover over the past five years has been less than £100 million. It is instantly clear that small, regional companies which publish local newspapers or operate local news websites are simply not affected.
On the other hand, ‘corporate’ papers, including local and regional papers owned by large companies such as Trinity Mirror, Newsquest and Johnston Press, are not exempt. It is worth remembering that these companies make substantial profits and their approach to local news publishing is by no means philanthropic. They have closed hundreds of papers in the past decade or so, and sacked thousands of journalists. And the squeeze goes on.
Since this is about what happens when people sue for breach of their rights, please note that it is always the parent (conglomerate) company that is sued and never the local title (on the very rare occasions when a local paper gives rise to any kind of court action).
What does the amendment propose? That when somebody sues a news publisher (in print or online) for breach of data protection rights, that person should have a right to justice without having to go to the High Court and pay a fortune in costs. Instead they should have access to affordable justice through an approved arbitration service.
This is actually good for the news publishers. For decades they complained of the crippling costs of the civil courts; this measure would not only reduce their risk but almost certainly reduce the insurance premiums they pay to cover themselves.
Where is the downside? If a news publisher were to deny a complainant access to approved arbitration, and so force him or her to take the expensive path to justice, then that publisher would run a risk. Under Section 40, the judge in the case would be free to decide, whatever the outcome of the actual case, that the news publisher should pick up the costs of both sides. That way the complainant would still have enjoyed affordable justice, and the news publisher would pay a price for treating him or her unfairly.
So it is not a simple matter of Section 40 saying to financially vulnerable local papers that they must always pay everyone’s court costs even if they win their cases. That can only happen if they behave unfairly in the first place: Section 40 contains a very important – and barely mentioned – provision that the judge can only make an adverse costs award if it is ‘just and equitable in all the circumstances’. That means that news publishers will not be stuck with paying the costs of trivial or vexatious claims, because the court retains discretion to penalise nuisance claims.
Is that it? Not quite. Section 40 has two knock-on effects. The first is that only ‘recognised’ arbitration systems apply. That is to say that if a publisher is not in a regulator that has been ‘recognised’ as meeting the Leveson standards of effectiveness and independence, that publisher will always risk costs penalties in court. It’s no good offering sub-standard arbitration as part of sub-standard regulation; you have to be in a recognised system.
Why? First because it needs to be clear that the arbitration meets basic standards, which are assessed by the independent Press Recognition Panel. And second because it was always envisaged, by Leveson and by Parliament in 2013, that this measure would place a modest degree of pressure on news publishers to participate in press regulation that meets basic standards.
When the Leveson Report came out in 2012 the entire industry, nationals and locals together, raised two fingers and refused to accept its perfectly fair and rational measures. Most of them, including most of the local press, set up a new regulator of their own, IPSO, which replicates almost all the faults of its failed predecessor, the PCC.
This is wrong because it leaves ordinary people at the mercy of unethical practices in journalism. While those practices are much rarer in local papers, that is all the more reason for them to embrace Leveson-standard regulation: they have nothing to fear.
And if pressure to join an entirely independent, high-standard regulator counts as a ‘stick’ from Section 40, then there is also a ‘carrot’.
Imagine you are a local paper reporter pursuing a good story about local activities by a big national corporation, and their lawyers started to threaten legal action. If the threats were serious the editor might begin to wonder whether it was wise to go ahead and risk years in court with attendant high cost risks. Sadly, in today’s world such stories are often abandoned.
With Section 40, if a paper is a member of a recognised regulator, that need never happen. The editor could just say to the corporation’s lawyers: ‘We’re going to publish and if you don’t like it we will see you in low-cost arbitration.’ And if the corporation insists on going to court, so denying the paper low-cost arbitration, it will risk having to pay both sides’ costs, win or lose.
So Section 40 protects good journalism and protects ordinary citizens while posing no threat to the future of hard-pressed local news publishers. It is virtually the opposite of what the local papers seem to believe.
Finally, a note on freedom. Contrary to the claims of the corporate press, the only freedom at stake under Section 40 is the freedom of news publishers to breach their own code of conduct with impunity.
And this is not ‘state regulation’, or anything like it. The Press Recognition Panel is, by design, entirely independent of political influence of any kind. All it does is apply a kind of MOT test to any press regulators put before it. To be recognised, a regulator itself must be independent of both political influence and undue industry influence, and it must meet basic standards of effectiveness.