A fundamental facet of Westminster's plan to compel the newspaper industry to sign up to its new Royal Charter will not be applied in Scotland, meaning a two tier system of press regulation for the UK could be established by 'legal accident'.
Newspapers signed up to the Royal Charter in England will be subject to the new press regulator’s arbitration system, which is designed to allow people to pursue claims against newspapers outside of the expensive court system.
But titles refusing to sign up to the charter will now be forced to pay exemplary charges should a complainant be forced to use the court system to pursue a complaint, potentially resulting in heavy financial losses.
The issue has been a key incentive in encouraging newspapers to sign up to the Royal Charter, but the Scottish government has confirmed to The Drum that there will be no possibility of exemplary charges in any cases brought in Scotland as the Scottish government sees “little attraction” in introducing punitive damages into the Scottish system.
A spokesman said: “Scottish ministers have made clear that they see little attraction in introducing punitive damages into Scots law, where they are not currently allowed, solely for the purpose of then exempting newspapers from them under certain circumstances.
“The Royal Charter has finally agreed includes a requirement for the new Regulator’s Board to reflect experience across the UK nations and regions, that its arbitration system should be able to support arbitrations conducted under Scots as well as English law, and appropriate involvement of the Scottish as well as Westminster Parliament, for example in approving amendments to the Royal Charter.”
The spokesman went on to say that “an effective arbitration” service should still be an incentive for publishers to sign up to the controversial Royal Charter, which the majority of the press industry has fought against because they claim state involvement in press regulation is a threat to press freedom.
Following the signing of the Royal Charter last month, confusion has reigned in Scotland over how the Charter will be implemented north of the border and integrated into Scots law, with media coverage in the country minimal in comparison to heavy analysis of the legislation in England.
The Scottish government fell quiet on the issue after the release of its own failed attempt at producing a regulatory system plan in March, the McCluskey Report, and instead aligned itself to Westminster’s plan.
Now, it appears that the result has left Scottish publishers with significantly less costs and a legal loophole protecting publishers from one of the most divisive points of the Royal Charter legislation.
Scottish Newspaper Society director John McLellan said: “If compulsory arbitration or exemplary damages are forces on the industry by Westminster, Scottish newspapers will have legally backed get-out clauses and a two-tier system is being established by legal accident.
“The UK regional press vehemently opposes compulsory arbitration, because it has the potential to open the floodgate to spurious cash claims. Scotland is therefore likely to be a vital bulwark against what is a red-line issue.”