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Falklands : Freedom to Inform Conference, Monday 11 November 2013 David Price QC: After-Dinner Address
Submitted by Falkland Islands News Network (Juanita Brock) 30.11.2013 (Article Archived on 28.12.2013)

A tough statutory incentive to join a non-statutory entirely voluntary self-regulator aka “I’ll make him an offer he can’t refuse”

David Price QC: After-Dinner Address, Society of Editors Freedom to Inform Conference, Monday 11 November 2013

Section 40 subsection (3) of the Crime and Courts Act 2013

A tough statutory incentive to join a non-statutory entirely voluntary self-regulator aka “I’ll make him an offer he can’t refuse”

I am honoured to have been invited to speak to you tonight. It’s said the big difference between accountants and lawyers is that accountants know they’re boring. You should have thought of that before inviting me. And I’m afraid that I will be talking hard core law with you tonight. I am going to get down and dirty with section 40 subsection (3) of the Crime and Courts Act 2013. What is that you may ask and how does it affect me? It is that “tiny tiny dab of statute” to use the words of that distinguished jurist, Hugh Grant. He “personally does not see the slightest danger to freedom of speech” arising from it, so it is with great diffidence that I beg to differ from such an authoritative and impartial source. Tiny dabs of statute sometimes have big kicks, rather like asses.

What section 40 subsection (3) says that if you are the publisher of news related material, which means most of you here, and you have not joined an approved regulator, that is a regulator approved by a recognition body approved by a group of politicians, and you get sued for libel, beach of privacy or other media torts you will have to foot the entire bill for fighting the court case, including the other side’s legal costs, even if you win.

It brings a whole new meaning to the word win, which in this context now means lose, lots of money.
The words of that hapless Greek king Pyrrus of Epirus spring to mind: “If we are victorious in one more battle against the Romans, we shall be utterly ruined.”

Yes, it is harsh, but to be fair the government did reject the alternative proposal: compulsory viewing of the Hugh Grant Collection DVD box set -– apparently they received legal advice that it amounted to cruel and unusual punishment.

Is this tiny dab of statute suitable material for an after dinner speech, you may ask. Well it’s definitely not sexy, unless, of course, you’re a member of a Hacked Off, and who knows what turns some of them on... don’t answer that ... It certainly has scope for humour in the way that bonkers things do, but it seems it is deadly serious.

I have pulled together some quotes from politicians and believe that the tiny dab can best be described as “a tough statutory incentive to join a non-statutory entirely voluntary self-regulator”. Or putting it more succinctly in the words of Don Corleone: “I’ll make him an offer he can’t refuse”.
Which reminds me of the old joke:-

Question: What do you get if you send the Godfather to law school?

Answer: An offer you can't understand.

But it is an offer that most of you want to refuse, so tonight I will consider whether you can do so and still avoid the legal equivalent of a horse’s head in your bed.

What is the legal equivalent of a horse’s head in your bed? I suppose it is your publishing company becoming insolvent and having its assets seized and because editors are personally liable, you being made insolvent and losing your home – so not too bad then - all because you have been too good at your job: You’ve run too many important public interest stories
that have resulted in libel and privacy claims that you have won. And a raft of lawyers will be lining up to sue you in the knowledge that they will be paid by you for the privilege of losing. It is a new form of litigation funding to replace no win no fee. It’s called no win for you, big fee for me.

So can how can this appalling vista be avoided?

Well, firstly, if there is no approved regulator you can’t be punished for not joining it. Simples. Let the Independent Press Standards Organisation do its work even if it won’t or can’t get recognition under the politicians’ royal charter. Let Sir Brian Leveson’s report gather dust on the second shelf of an academic's bookcase, if it will take the weight. We know that Sir Brian has now taken a vow silence on the subject. This Mexican stand-off might suit the vast majority. But there are too many zealots with time on their hands to let it all slip away so easily.

Last week I asked Hugh Tomlinson QC, chair of Hacked-Off, whether there were any plans for another body to seek recognition. This was the response I received:-

“I have been told, in confidence, about a number of proposals but there is nothing that I can pass on to you [characteristic candidness from an organisation campaigning for openness in public life].

Hacked Off is not planning to establish a regulator [you know what the next word is going to be] but is obviously supportive of any third party plans to do so. I understand that the Government believes that such a regulator does not have to be proposed by relevant publishers but can be put up for recognition on their behalf. I suspect, however, that any proposal for recognition would not be advanced unless it was supported by some “relevant publishers” [in quotes] – although this would not have to include national newspapers. In relation to “self-regulation” [also in quotes], if a regulator was established by, say, a number of local newspapers, this would, for them, be “self-regulation” – and equally for anyone else who chose to join.” [end quote]

What this means to me in non-legal speak is that Hacked Off is trying to get someone else to set up a regulator and persuade enough regional newspapers to agree to join it so that it can be described as self-regulation.

But is that realistic? It is not so easy to set-up a regulator even if you are crazily driven and financially backed – just ask Guy Black. And how could a proposed regulator that only represented a small number of insignificant publishers amount to self-regulation? Hacked Off is seeking to sell the plan to publishers because it means that complainants will have to go to through the regulator’s arbitration scheme instead of court. So no more expensive court cases.... just expensive arbitrations instead, which will be paid for the publishers... so you get shafted both ways.

Let’s suppose that a Hacked Off approved regulator could be set up, the costs penalties will not apply if it was not reasonable for you to join the regulator. If the regulator is only regulating a small number of small publishers and you are a member of IPSO which is up and running, why join?

And could this approved regulator offer an arbitration service on heavy duty libel or privacy cases? This is important because the costs penalties only apply if the arbitration scheme of the approved regulator that you could have joined could have dealt with the court case that you have just won.
Again, I asked Hugh Tomlinson QC:

“It is obvious that an arbitration scheme could be established using, say, [guess the next bit] retired High Court judges as arbitrators, which could arbitrate complex cases.”
My joy at the juicy brief fees is only outweighed by my horror of renewing my acquaintance with Sir Michael Davies (no, actually he’s dead and therefore may not be eligible). So let’s assume they trawl the nursing homes for these ageing white Oxbridge males entirely representative of modern British society and put together an arbitration scheme that could work, in theory.

Then things do start to get a bit grim.

Well you could lose the court case, which is, in fact, much easier than winning it.
But let’s suppose you manage to win against all the odds.

Section 40 does say that the court retains the discretion not to order you to pay all the costs. You’re taking a big gamble relying on a court’s discretion to depart from what Parliament has said should be the default to encourage you to join a regulator that could have dealt with the dispute.

Under the Human Rights Act a judge can declare that section 40 is incompatible with Article 10 of Human Convention ECHR, the part that protects free speech. Small problem, section 40 is based on the recommendations of Sir Brian Leveson, currently president of the Queens Bench Division one of the most senior judicial positions. Is it likely that his brother judges would deliver such a snub?

Final legal option is an outing to the ECHR in Strasbourg. It’s all very civilised. Short hearings and long lunches at great restaurants. In Naomi Campbell’s case against the Mirror it ruled that large legal costs could be a breach of Article 10. And we know that there is favourable legal advice at least in relation to exemplary damages. So probably worth a shot. But you won’t be flying there. The decision in the Naomi Campbell case was 10 years after the article was published. By which time you’ve probably gone bust from all those court victories.

So on that happy note, I suggest that you enjoy yourselves while you are still in the pink, it may be later than you think but there is a late bar tonight and the last chance saloon still remains open. I have always believed that a free press should be perpetually propping up the bar of the last chance saloon with a double gin in its hand. Those who would prefer a teetotal sanitised media should be careful what they wish for. So tonight let us drink to a true free press without the buts, the dabs of statute, the sticks, the carrots or anything else that it going to make the law look even more like an ass.

Thank you.

(100X Transcription Service)


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