With Lord Justice Leveson offering his views on the future legislation of the UK press following a lengthy investigative process, Campbell Deane, a partner at law firm Bannatyne, Kirkwood, France & Co, offers his viewpoint on what the recommendations, should they be taken forward, would mean for the Scottish newspaper industry.
At a time when the Scottish newspaper industry faces severe economic challenges, falling advertising revenues and in some cases fighting for their very existence, they may have hoped that Lord Leveson might have done something to lift the gloom. Particularly when, as part of the Regional press submissions, the two now former editors of the Scotsman and Herald gave evidence to the Inquiry, in glowing terms as to the standards and journalistic practices that exist North of the Border. The corrupt and illegal actions of some within the Press were Londoncentric and had certainly not filtered into Scottish practice. Having taken this on board Leveson stated in his Report that he hoped his proposed regulatory model would not provide an added burden to the regional and local press.
Regrettably however that is exactly what he has done.
That is not to say that reform was not necessary. The Press Complaints Commission in its current format is a busted flush. Its failure to act on the phone hacking scandal and its role as a mediator rather than regulator was its death knell.
Leveson’s recommendation of a new system underpinned by statutory regulation may never hit the statute books, with David Cameron strongly indicating that he would not legislate against a free press. Notwithstanding that, and in particular since this is a devolved matter and the First minister has indicated he considers statutory underpinning to be the correct solution, the terms of the Report in relation to remedies afforded to the public require closer scrutiny.
The Report recommends that the newly constituted Board should provide an arbitral process in relation to civil legal claims against those parts of the media that subscribe to being part of the new regulatory system. The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use.
Heaven forbid that I would argue that individuals with grievances should be denied access to arbitration or the courts in respect of media matters. It’s how I make my living. But in representing both claimants and defenders in libel actions, I have the advantage of seeing both sides of the same coin. It is true that libel cases can indeed be expensive. But Leveson’s recommendation sits contrary to my years of experience of acting for both aggrieved parties and the press.
I can see the strength of such an argument in London where the costs of litigation are outwith all comparison compared to Scotland, and where the sheer volume of claims involves dedicated libel judges. We may have the same number of libel cases in 10 years that they have in one.
Some may argue that there are so few cases because aggrieved parties cannot afford it but the existence of speculative fee arrangements in Scotland is a remedy to that. And a remedy which unlike in England's conditional fee structure is not routinely abused by lawyers. The system separates the wheat from the chaff. If it’s not likely to succeed then it will not be litigated. That is not a denial of access to justice. It's common sense.
The safety net for Leveson is a proviso that frivolous and vexatious claims will be dispensed with at an early stage. Having dealt many of these over the years what might seem ridiculously frivolous to one person may be of great importance to the claimant. If they didn't think it important then they wouldn’t complain.
Such a recommendation will add a considerable burden to the beleaguered coffers of the Scottish press.That is because they have to fight all the complaints before them. Under the new regime a newspaper has to account for all complaints to the Regulator. An abundance of settled complaints may well give rise to an inference by the Regulator that the newspaper is not fulfilling its duty to act in a responsible way. The outcome of that under the proposal would be further financial sanctions from the Regulator.
And what happens to the newspaper that doesn't want to join the new regime. Well if they don't join and an individual has to go to the courts rather than accessing the cheaper version of arbitration then even if the claimant loses the newspaper may have to pick up the claimant’s expenses. Whether such a proposal would even be ECHR compliant would need to be tested. But it goes further than that. If the claimant wins then the newspaper who doesn’t sign up may be in line for exemplary or punitive damages, a concept not even acknowledged in defamation cases in the Scottish courts.
The Scottish newspaper editors highlighted that many of the issues raised by Lord Leveson were alien to good Scottish journalistic practice. It seems at least financially that all newspapers will be tarred with the same brush. At a time of falling newspaper revenues and an ever diminishing market that is a very high price to pay for the Scottish press having behaved responsibly.