The Royal Charter that would establish a body to oversee press regulation was due to be referred to the Privy Council today. But industry bodies representing the press have filed an injunction against that happening. The court will examine the application this morning. Legal blogger and former government lawyer Carl Gardner says judges may grant the injunction for the time being, even as he doubts that any legal challenge by the press will ultimately succeed.
In the Monday editon of the Guardian, Helen Anthony (legal consultant to English PEN) laid out a succinct explanation of just what is wrong with the new regulatory system.
A structure that implemented Lord Justice Leveson’s recommendations for a recognition panel and formally accredited a regulator would work well if membership of such a regulator was truly voluntary. But publishers are being coerced into becoming members of a recognised regulatory body with the threat of court-imposed sanctions, following the introduction of the Crime and Courts Act 2013.
This act directs courts to treat publishers differently depending on whether they are members of a recognised regulatory body or not, with those outside the system facing the threat of exemplary damages and unduly punitive costs measures should they be taken to court. Furthermore, the act limits claimants’ rights to recover costs if they choose to take their case to court instead of following the regulator’s complaints and arbitration process.
These exemplary damages and punitive costs orders may breach the right to free expression embodied in article 10 of the European Convention on Human Rights, as a number of media law experts have already argued. Yet there is also a fundamental moral argument, alongside the protection of free speech: it is wrong for publishers to break no laws, and do no wrong, yet have to pay a substantial amount in someone else’s legal costs. This is what the provisions in the Crime and Courts Act permit.
In short, it threatens to penalise publishers even when they do nothing wrong.
I have not seen a convincing response to this. Hugh Tomlinson QC has previously written that exemplary damages (‘a special category of damages which is designed to punish the defendant and to vindicate the strength of the law’) do not violate free speech principles. But the Crime & Courts Act (Sections 34-42 if you’re interested) seems to do something else: introduce ‘exemplary costs‘ where a publisher may be hit with a bankrupting legal bill even when they have done nothing wrong.
Herein lies the coercion. Publishers cannot afford to win a defamation case if they’re outside the regulator.
The Hacked Off campaigners prefer to focus just on the way the Royal Charter will enable independent regulation, which on its own seems reasonable. But it’s the accompanying Crime & Courts Act 2013 that provides the coercive element. It’s like a polite and smooth talking businessman who nevertheless has a henchman sitting outside his office door.
I’m planning I have written a quick follow up post on what form political intimidation of the press might take, under the new provisions.