Ministers must introduce the right to justice conferred by Section 40.
1. The Daily Mail agreed to pay Melania Trump “more than £2m” as it admitted publishing "false and defamatory claims" about her past.
2. The Mail’s editor, Paul Dacre, and two of his executives beat a humiliating retreat in their efforts to gag the online journalism platform Byline by threatening a libel action it hoped Byline could not afford to fight.
3. The Mail, Times and Mirror all failed in appeals to the UK Supreme Court to reduce substantially the costs awarded against them in libel cases they lost.
4. The same Supreme Court ruling has effectively choked off the one avenue to justice in libel and privacy that is open to people of ordinary means, the Conditional Fee Agreement (CFA) or ‘no-win-no-fee’ deal.
5. The corporate national press has begun a campaign on the issue of libel costs, seeking to determine the terms of any future arrangements to its own advantage.
Together these events illustrate the vital importance of these matters in national life – the recklessness of some reporting and the need for remedy; the abuse of the law by big newspaper corporations, the relentlessness of those corporations in pursuing their self-interest and the vulnerability of ordinary people in the face of it all.
But it is the fourth item on the list – the likely ending of the CFA scheme in libel and privacy – that is the most important of all, because that Supreme Court judgment leaves us all standing at a crossroads. One of the roads before us leads to a relatively fair world in which the rights to reputation and privacy of ordinary people can be upheld without compromising freedom of expression, and the other takes us deeper into territory where only very wealthy people such as Melania Trump are able to defend those rights. The choice is as plain as that.
In fact, as of last Tuesday we are already marching down the second of those roads, and the underlying message of the newspaper propaganda campaign mentioned in item 6 is that we should keep going. They may want the government to offer a token reform to to cover their shame, but their real objective is clear: they do not want ordinary people to be able to sue them.
Who will choose the road for us? The government. There is general agreement that ministers must do something because we can’t stand still. The position today is manifestly intolerable.
There is no legal aid in libel or privacy cases: however badly you have been wronged, the state will not help you. Press regulation is a sham: the corporate papers have rejected the post-Leveson reforms so we cannot look to their ‘self-regulator’, IPSO, either to uphold standards or provide meaningful remedies for those wronged.
Costs in these matters are astonishingly high – any legal case that goes as far as the High Court will prompt bills in six and even seven figures. No normal person can fund such a course of action.
CFAs were the only recourse for anybody not a millionaire, and from Tuesday your chances of persuading a solicitor to act on no-win-no-fee terms have been significantly reduced, if not ended altogether.
This is because, with CFAs, lawyers formally take on the risk: they act on the principle that they will only be paid if they win your case for you. Lawyers are risk-averse, but until Tuesday they were allowed to do two things to mitigate this risk. First they were allowed to increase and even double their rates if they won – so-called ‘success fees’ – and second, they could involve you in an insurance arrangement known as an ATE.
The Supreme Court has now ruled, albeit in coded fashion, that success fees and ATEs are unfair on defendants, which means that solicitors can no longer mitigate their risk. As a result we can be certain that CFAs will be much harder to get and it is possible, even likely, that they will become rare.
It thus becomes all but impossible for people of ordinary means to sue for libel and privacy. Look at that another way: newspapers will be far freer than they already are to publish libels about you or intrude upon your privacy, because they can be confident that if you are not rich you cannot sue them.
This has not happened by accident. The corporate papers have been working towards this objective for many years. In a world of declining print sales, they see this licence to intrude, defame and fabricate as their ticket to survival.
What is the alternative, the other road that ministers might choose? It is this. By a simple stroke of the pen, on any day she chooses, the Culture Secretary, Karen Bradley, has it in her power to confer on all of us a new right of access to low-cost justice in libel and privacy, through arbitration.
The legislation (personally endorsed at the time by Theresa May) has been passed by Parliament, with overwhelming support, and has received royal assent. The necessary structures have been established. And there would be no cost to the public purse and no danger to freedom of expression.
Bradley’s signature would “commence” Section 40 of the Crime and Courts Act 2013, giving all citizens the power to insist that news publishers offer them low-cost arbitration. Where that is refused and newspapers insist on court proceedings, Section 40 takes the side of the citizen: the paper may have its day in court, but (providing the judge agrees it is fair in all the circumstances) the paper should pay all of the costs, win or lose.
Needless to say the corporate papers – the Murdoch press and the Mail, Mirror, Express and Telegraph groups – are appalled at the prospect of being accountable in this way to every Tom, Dick and Harry in the country. Between November and January, when the future of Section 40 was up for public consultation, they waged a campaign of breathtaking dishonesty and hysteria against it.
It becomes all but impossible for people of ordinary means to sue for libel and privacy.
But strikingly their entire campaign has been dismissed, unanimously, by the Commons Select Committee on the Media. In its submission to the consultation the Committee urged Bradley to ignore the screaming of the newspapers, but it also proposed that she offer them a concession – essentially a staged introduction of Section 40.
What will Bradley do? Only a fool would imagine that Murdoch and Dacre do not have a hold over this government, so perhaps pessimism is in order.
Yet the Select Committee’s recommendations point to something different: MPs of all parties find it hard to tolerate the idea that newspapers should be immune from the laws of libel and privacy. They cannot ignore the swaggering, thuggish conduct of the press today and they know how unpopular it is with their constituents. Their influence might just help to push us towards the other road, the road of Section 40.
We can all do something. If you want to see a general right of access to justice in libel and privacy at low cost, write to your MP and say you want to see Section 40 commenced. It might just make a difference.
A previous version of this piece referred to allegations about the man dragged from a United Airlines flight. The author has since retracted this statement.