I use this website almost exclusively to comment on things within my duties as a local councillor. If I dilute this website with things of personal interest to me, or national politics, it reduces my accountability to the public for things I do in their name.
It’s because of that belief in accountability that I consider it the duty of every single public office holder in the UK to protect the free press. It is only a free press, holding the powerful to account without fear or favour, that keeps many public office-holders honest. If we believe in better government, we should believe in press freedom.
As such, I see my defence of press freedom to fall within my duties as a councillor, so here is my response to the government’s consultation on press regulation in full:
1. The United Kingdom is blessed with a particularly dynamic and varied press, unrivalled in the western world. This has allowed it also to have one of the largest daily presses in the western world, with twice as many daily newspapers sold per head of population as the United States or France. We can also take pride that – unusually – newspaper readership is high across all socio-economic groups.
2. The success and viability of a widespread and popular mass media is vital to achieve the Government’s broad objectives. Despite accusations that a more regulated press would improve accuracy and information available to the public, the British public is better informed about issues than almost anywhere else. ComRes conducts a survey in 40 different countries each year to compile an ‘Index of Ignorance’, which calculates how good public knowledge is of facts related to key social issues, such as healthcare and immigration. On that basis, the UK ranks second only to the Netherlands in terms of knowledge, and there is a strong correlation between newspaper circulation per capita and knowledge on key social issues. As such, for its flaws, it appears as though the UK’s large, dynamic, and free press is successful at informing the public of key issues.
3. The cost rule in the United States is an instructional example to the impact that Section 40 might have. Although the United States’ First Amendment enshrines the freedom of the press in law, in actuality, the press is dulled significantly by legal practicalities. Libel, of course, exists is a tort in all 49 common-law states and applies to the press regardless of the First Amendment, albeit with limitations (eg NY Times v Sullivan). There is great evidence that the ordinary costs rule in the United States, wherein costs do not follow the event, mean that spurious legal challenges occur on a regular basis, and jeopardise the objectives of the First Amendment (see, eg Gaffney (1990), Windon (2010)). This has a chilling effect that reduces the courage to publish well-researched articles and opinion in good faith that the First Amendment was intended to enshrine. As noted above, newspaper readership in the United States is half as widespread as in the United Kingdom, with far higher levels of political ignorance based on the ComRes Index of Ignorance. As such, costs rules should be considered carefully, as they constitute a significant barrier to press diversity and outcomes, even where press freedom is enshrined in law.
4. In the United Kingdom, Conditional Free Agreements (CFAs) have significantly reduced barriers to access to justice, including in libel proceedings. This has emboldened prospective claimants to take action more frequently. Defamation is expressly excluded from the Conditional Fee Agreements Order 2013, meaning their unrestricted use is effectively encouraged by the Government. Their use has led to some pernicious outcomes, including proceedings now costing up to 140 times as much as in continental Europe (see report by Oxford’s Centre for Socio-Legal Studies in 2008, which prompted the then-Government to state it would act, without actually doing so concretely). However, it has also ensured that there is no disparity of access to justice between larger and smaller prospective claimants, or between claimants and defendants. Furthermore, the general rule in 44.3 of the Civil Procedure Rules and the general availability of After The Event (ATE) insurance ensure that losses by unsuccessful claimants will be only proportionate, and media outlets cannot mount unreasonably well-resourced defences. Thus, CFAs ensure that claims that are unsuccessful do not leave a claimant substantively out of pocket, and thus do not deter action where it is entered into in good faith. As such, there is no reason to require defendants to pay claimants’ costs unless the claim is successful.
5. Not only will the use of the powers under Section 40 increase the number of claims, and the burden imposed on publishers where claims are unsuccessful – which are figures requested by the consultation document – but it will increase the proportion of claims that are spurious. In an age wherein action is reported widely, the mere taking of action is often seen as half-way a statement of wrongdoing by the defendant. The taking of action imposes reputational damage on the defendant, in an industry in which reputation for trustworthiness is a publication’s foremost asset. However, the proportion of actions that are spurious will rise if the powers under Section 40 are used: imposing a further non-pecuniary cost that will undermine trust in publishers. This would run counter to the Government’s objectives. It is therefore recommended that further metrics, such as the proportion of claims that are spurious, are examined.
6. The use of the powers in Section 40 would, however, turn this on its head, and encourage not just action taken in good faith, but also where it is taken in bad faith. Like the United States’ cost rules, it imposes a burden on a defendant even where a claim is unsuccessful, and it is likely that the outcome would be similar to the United States: a less courageous press and a less campaigning press; a less investigatory press and a less iconoclastic press; and ultimately, a less well-read press and a less-informative press. There is no rational policy basis to require further regulation of the press as a price to avoid this cost rule; defamation actions already exist and are thriving, with few issues of access to justice. If the intent of the legislation is to provide a chilling effect on the media, it is well-constructed; if the intent is to promote good standards in the media, where honest reporting is encouraged and dishonest reporting is penalised, section 40 ought to be repealed.
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