It is not often that everyone in the country acquires an important new legal right, but just such a right is now almost in our grasp – and it is one that brings to an end a longstanding scandal in British law.
For the first time ever, everyone who reasonably feels they have been libelled or have suffered unjustified invasion of privacy by a news publisher will have access to affordable justice. No longer will only the very rich or fortunate* enjoy the full protection of the law – every citizen will be able to do so.
Parliament has already given overwhelming approval to this measure and it now awaits what should have been the formality of ‘commencement’ by the Secretary of State for Culture, Media and Sport, Karen Bradley. Following an important development this week (I will come back to that) she is under growing pressure from MPs and peers to get on with it.
The key to the long-overdue reform is arbitration. Under the new arrangements news publishers (but not broadcasters) must offer low-cost arbitration to all complainants who can make a case that their legal rights in libel or privacy have been breached.
Professional arbitrators will then handle the cases (as they do in many other areas of the law) and they will be able to hand down just the same punishments as the courts. This will not only usually be much quicker than traditional legal proceedings but it will also cost the complainant a basic fee of £75 instead of the notorious six- and even seven-figure sums of the past.
In other words, the days when only film stars and tycoons could afford to protect their privacy or their reputations from unjustified press attack will be over. Whoever you are, providing you can afford £75, you can ensure the law is enforced.
For all of this we have to thank Sir Brian Leveson, who made this reform central to his recommendations to tackle the collapse in press standards that made his 2011-12 public inquiry necessary.
And one of the beauties of the arrangement is that it also brings significant benefits to newspapers and news websites as well as to ordinary citizens. They too stand to gain from cheaper justice in libel and privacy cases – for decades they have sometimes been obliged to pay outlandish lawyers’ bills to protect themselves in court, but the cost of an arbitration case for a paper will rarely have to be more than £3,500. And their libel insurance costs will also fall because of the reduced risks.
Better still, they will be protected from ‘chilling’, the process by which very wealthy litigants (most notoriously Robert Maxwell) obstructed investigative journalism by threatening to tie up editors and reporters in long and expensive legal actions. Papers have been complaining about this for at least 30 years: now it can be brought to an end, freeing investigative journalism to do its job.
We are finally within grasp of this win-win reform this week because something else that was proposed by Leveson has just come about. A new regulator for news publishers, Impress, has been ‘recognised’ by the Press Recognition Panel (PRP) as meeting the required standards of effectiveness and independence.
And unlike IPSO, a regulator set up by national newspapers which rejected Leveson’s findings, Impress offers the kind of arbitration service that is required if the new legal right of access to justice is to work.
So in the future if you believe that a news publisher regulated by Impress has libelled you or invaded your privacy without justification you will not have to embark on a ruinously expensive course of litigation. Instead you can pay a modest fee and insist that the publisher joins you in binding arbitration.
And what if your complaint is against the Daily Mail or Daily Mirror, which are not regulated by Impress but by their own body, IPSO (which does not meet the PRP standards)? Would you be stuck with crippling costs if you took legal action?
No. This new legal right is for everybody, and that includes everyone who may be written about in the Mail, Mirror, Telegraph, Guardian, Sun and other national papers.
Those papers will find that they can’t simply deny members of the public access to affordable justice. They can’t just tell them that if they want redress they must be ready to forfeit their savings and their homes to pay lawyers’ fees. That would be unjust, and it would actively encourage papers to stay outside a Leveson-standard regulator such as Impress.
Under the new scheme such publishers would be free to insist that the case goes to court, but they would normally have to foot all the complainant’s costs, no matter who wins or loses. In other words, so long as a paper continues to accept Leveson-standard regulation and so long as it denies people access to low-cost arbitration, it must be ready to shoulder the costs of any privacy and libel cases that the courts say are worth hearing.
And remember, if a paper takes that position it is also rejecting costs savings and protection from chilling, as well as a form on regulation in which the public can have faith.
How soon do we gain our new legal right? That’s where the hitch is. Although parliament has passed the necessary legislation, the Cameron government found a piece of small print that enabled it to delay commencement and the new May government still has not taken the necessary step.
Why would a government stall a measure that will give everyone a new legal right at no cost to the public purse? We know that the Cameron government had a slavish relationship with the big national newspaper groups, and particularly the Sun and the Mail, and all of those companies continue to reject the Leveson rejections.
With Impress now ready and able to provide arbitration on Leveson lines, we must now wait to see whether the May government is ready to put the interests of ordinary members of the public before those of the big newspaper corporations.
*The fortunate are the small number of those who secure Conditional Fee Agreements (CFAs), also known as no-win, no-fee agreements. These are difficult to get because solicitors tend to set the bar high to minimise their own risk, and they have been widely criticized by the press industry and others for inflating costs.