The legacy of the phone hacking scandal is a gigantic mess. Some campaigners who were out-and-out opponents of a free press were able to establish themselves as moral crusaders, exploiting the story to try to end a centuries-old principle which is crucial to the functioning of our democracy. The effects were lasting: myths about what offences were and were not committed still abound, various journalists were kept in the cruel limbo of unlimited police bail only for the cases to be dropped or dismissed in court, and politicians all talked about a satisfactory solution without producing one.
One hangover of that last problem lies in the provisions of the Royal Charter on press regulation and the Crime and Courts Act 2013.
The Charter was allegedly agreed over pizzas in the middle of the night. Hacked Off dispute this account, but it certainly bears all the hallmarks of the poor decision-making of the early hours. Leaving aside the oddity of using a Royal Charter in the first place, the document established a body called the Press Recognition Panel. The PRP is charged with overseeing and approving Leveson-compliant press regulators, but it is not the regulator itself. This was an attempt to make out that what was being introduced was not state-controlled regulation of the press, as though having a regulator of the regulators somehow changes the fact that ultimate power over the process lies with the state.
Since its creation in 2013, the PRP has been in search of a regulator to oversee. Most newspapers, unsurprisingly, have refused to work with this system and some have set up their own self-regulator, IPSO, instead. This is hardly surprising; the basic premise of the Royal Charter and the PRP runs counter to the principle of a free press, so any media organisation which values its liberty is unlikely to sacrifice it by signing up.
In the meantime, a body called Impress has been established to seek the PRP’s formal recognition as a Leveson-compliant regulator. As you might have guessed, it is rather more enthusiastic about Leveson and state-overseen press regulation, and it enjoys a close relationship with various prominent figures in Hacked Off.
Since its foundation, Impress has been plagued with problems. Most inconveniently, it has found very few publishers who are willing to submit their reporting to its oversight. So far a few dozen small outlets have signed up, compared to more than 2,000 which are part of IPSO. (Interestingly, one which has registered with Impress happens to be the Hacked Off-allied blog that published a story about John Whittingdale’s private life). As a result, it has struggled to meet the Royal Charter’s criteria.
Next week, though, there is a possibility that it will finally be approved by the PRP. Why should that matter? After all, it will only be regulating those unwise enough or doctrinaire enough to have subscribed to its rule, and companies, like individuals, should be free to place limits on themselves even if it is unwise to do so.
That would be the case, and there would be no problem, if it wasn’t for the Crime and Courts Act 2013.
Given that Fleet Street and the regional press weren’t keen to sign up to the Royal Charter’s way of doing things, the Act was an attempt to forcefully encourage them to do so. Aware that compulsion would cause uproar, and potentially wouldn’t pass the Commons, they settled on a halfway house. Not quite a nudge, more a hearty shove. Section 40 of the Act says that any media outlet not registered with a PRP-approved regulator will be liable to pay the costs of anyone suing them, even if the case does not succeed.
You read that right: if someone was to bring a libel suit against a newspaper which hasn’t submitted to Leveson-compliant regulation and fail in court, the newspaper would still have to pay the legal costs of both sides.
That’s an obvious injustice – the traditional principle is that the defendant should pay the claimant’s costs if the case succeeds. That principle is there for a good reason. If someone has been libelled, say, by a publication then of course they should not be left out of pocket for seeking redress. But anyone considering bringing such a case should reasonably have to foot the bill if they lose – anything else is an invitation to vexatious claims.
The result of risk-free litigation would be a rise in cases intended not to secure justice but to penalise a target the claimant does not like. People in the public eye who dislike a story which is published about them could punish media outlets financially even if the story is found to be justified and within the rules. The courts should not be a stick with which to beat one’s enemies even when they have been found to have done no wrong.
In short, this is a bad law, both in principle and in practice.
Article 40 has not yet been brought into force for the obvious reason that without a PRP-approved regulator, it wouldn’t be reasonable to demand that newspapers register with one. But if Impress secures approval we can expect anti-press campaigners to demand that the Culture Secretary, Karen Bradley, trigger the Article instantly.
She should refuse to do so. In fact, this bad law should be removed from the statute book before it does real damage.