The Privy Council, which will now be responsible for issuing a royal charter setting up a panel to vet the independence of a new press regulator, started licensing books in 1538. In 1557 a royal charter gave the members of the Stationers’ Company a monopoly of printing. In 1588 the anti-episcopal Marprelate Tracts (one of whose authors, John Penry, was executed for publishing them) provoked a system of press licensing which survived in one form or another, though with diminishing effect, until the last decade of the 17th century.

The first thing that should be said about the current controversy is that nothing resembling press licensing – the prior authorisation of publications – is being proposed by anyone. Even in its strong form, regulation is concerned with redressing and in extreme cases penalising journalistic misconduct. Prior restraint is a matter for the courts, as the press accepted when it got constraints on the granting of injunctions written into the 1998 Human Rights Act.

The case for strong-form regulation – universal statutory oversight of all news media, which is what Lord McCluskey’s committee has just proposed for Scotland – is that it separates compensation and redress for victims of press misconduct from penalties for outrageous conduct. There is no good reason why such penalties, in the form of exemplary damages, should go into the pocket of a victim who has already been awarded proper compensatory damages, but every reason why a media outlet which casually violates people’s privacy or reputation in pursuit of circulation should find that such conduct does not pay. Yet compensatory damages for being libelled, if calibrated, as they arguably should be, to the fixed damages of just under £12,000 which are awarded by statute for the no less devastating experience of bereavement caused by someone’s negligence, could be paid out of a large media organisation’s petty cash. An independent regulator with penal powers is a perfectly reasonable solution.

Nevertheless, statutory regulation, although hardly a constitutional novelty, is not at present on the cards. What has emerged from the parliamentary crisis is something that is arguably misdescribed as statutory underpinning of a voluntary system. Self-regulation cannot work without some measure of statutory underpinning; but what the House of Commons has just agreed to put on the statute book may not be the underpinning that is required.

The parliamentary and press brouhaha has been about setting up an independent panel with the task of ensuring that a voluntary regulator, though established by the very bodies and individuals it is to regulate, will at least have the appearance of independence. The last-minute consensus in the Commons has liberated the Defamation Bill, which has the quite separate purpose of rationalising the law of libel, from the amendment which the Lords, in desperation at the Commons’ inertia, had attached to the bill as it left for the Commons in an attempt to get Leveson implemented. What the Commons has now done instead is amend the Crime and Courts Bill to anticipate the coming into being of a voluntary regulatory body, known as an ‘approved regulator’, and resolve to provide for its recognition by a panel established by royal charter. Who will be on the panel, and who will be accepted by it as suitable members of the regulatory body, is already the subject of dark tabloid forebodings.

As a quid pro quo the amendment grants newspapers which subscribe to the approved regulator a qualified exemption from the longstanding common-law liability – rarely encountered in practice and now being taken out of the hands of juries – to pay exemplary, or punitive, damages in cases of outrageous conduct. The logic is that for such papers regulatory fines will replace exemplary awards. It is this provision which is being presented in parts of the press as a threat that newspapers which fail to sign up to a new regulatory body will be punished by exposure to exemplary damages.

But can it lawfully be done? In the first decade of the 17th century the Royal College of Physicians, which had been incorporated by royal charter with power to fine or imprison anyone who practised without its permission, imprisoned a Cambridge-trained physician, Thomas Bonham, for practising in London without the college’s licence. Giving judgment in his favour on his claim for false imprisonment, the chief justice, Sir Edward Coke, fastened on the impropriety of allowing a regulatory body to impose fines which went into its own coffers. It was an abuse of power, Coke said, which not even Parliament could license.

Although Lord Justice Leveson did not enter any caveats about it, there is no reason to think that modern public law would take any less strict a view. It is why regulators with punitive powers typically require both the authority of the state to impose fines and a statutory remit which divests them of any direct interest in the fines they impose. The European Court of Human Rights would have something to say about a system which ignored these principles – for instance, if magistrates’ courts were expected to pay for the upkeep of their buildings out of the fines they levied.

So how is the approved regulator going to be constituted? What are its powers and obligations going to be and what will be their source? As things stand they are intended to come neither from a statute nor from a royal charter but from a contract written by the press itself, which newspaper publishers can sign up to or abstain from as they choose. A contractual set-up may get round the problem of fines going to the disciplinary body’s own funds, but as with any other contract, no one can be compelled to sign up to it and its adherents are free to walk away from it if they are prepared to pay what it costs to do so.

The press need be in no hurry. If in a year’s time there is still no approved regulator for the recognition panel to approve or disapprove as successor to the Press Complaints Commission, it isn’t easy to see what anyone could do about it. A continuing void in regulation is not going to provoke agitated editorials in the tabloids. But it could eventually compel Parliament to legislate, this time not for underpinning but for regulation. Meanwhile, despite the accusations of ‘licensing’ and the announcements of intention not to co-operate, the press has so far lost very little ground. Even the little it has lost is something one might have expected it to welcome: a mechanism for kitemarking a new self-regulatory body.

It does not end here. The Defamation Bill is now well advanced in its parliamentary passage. In its first incarnation the bill did little more than codify the existing common law of libel. This was why there was no real need for the reform lobby, for example, to call for the abolition of the ‘Duke of Brunswick rule’ dating from1849. The Duke, who lived in Paris, sent his manservant to London to buy a back number of the Weekly Dispatch that had been published in 1830, so that he could now sue the publishers for something it contained. (The chilling effect of the case was such that no library on either side of the Atlantic appears to hold the particular issue, and the law reports take care not to quote from it.) Although the high court in 1849 absurdly allowed the manservant’s purchase to count as a republication, in 2005 the court of appeal made it clear that today such a device would be treated as an abuse of the court’s process, and the bill now reflects this.

What the Defamation Bill also does, however, is abolish the ‘Reynolds defence’ – that the publication, though defamatory, was an exercise of responsible journalism and accordingly protected – and replace it with something approaching a tabloid editor’s dream: a defence that ‘the defendant reasonably believed that publishing the statement complained of was in the public interest.’ To be allowed a measure of editorial judgment is a desirable thing; to be appointed judge in your own cause, provided you have not altogether lost your reason, is another, wholly delightful thing. One of the problems with the well-motivated pressure to liberalise the public interest and fair comment defences is that it is the big hitters who will derive the greatest benefit. It is also likely to mean that courts have to apply differential standards: a subjective standard of reasonable belief in public interest for libels, and an objective one – proportionality – for invasions of privacy. Proponents of the change believe that all it does is spell out the former responsible journalism defence, but professional opinion doubts it. Much may depend on what the courts are prepared to tolerate as a reasonable belief.

The answer to the problem of the small critic of the big battalions may lie elsewhere: for example, in the appeal court’s watershed decision in the Simon Singh case that the proper forum for scientific controversies, however sharply expressed, is the academy and not the courtroom. Such critics will also be protected by a new rule introduced by the Defamation Bill that corporations can sue for libel only if they can prove actual or probable financial loss. Beyond this, it is the chilling effect of legal costs that needs to be addressed through brisk case-management, court-based arbitration and the like.

One particular blot on the common law has been incorporated in the bill. In recent years the courts have developed a doctrine that it is not libellous to publish an account of a controversy even if it includes defamatory allegations. Consider how this can work. A public figure who, for once, leads a blameless life is denounced as a thief by a demented critic who enjoys wide press coverage. If she remains silent, there is no public controversy; the media publish at their own risk, and if she wants to spend time and money on suing her detractor, she can do so. But if, rather than become embroiled in proceedings, she issues a simple factual rebuttal in the hope of stemming the abuse before lasting damage is done, there is a reportable dispute. So long as they report it without taking sides, the media are to be protected from the consequences of recycling the libel; and here the ‘reasonable belief’ defence is to be topped up with a requirement that ‘the court must make such allowance for editorial judgment as it considers appropriate’ and a waiver of any obligation to make inquiries before publishing.

It is not only the Defamation Bill that is riding to the media’s rescue. The Jackson reforms to legal costs are waiting to come into effect, abolishing the rule, a byproduct of the conditional fee system, that a losing defendant pays up to double the claimant’s costs while the claimant can get insurance against having to pay the defendant’s costs. The rule has had a seriously distorting effect on justice, and Lord Justice Jackson’s proposal to abolish it, although currently suspended, is welcome. Until the outcome of the Leveson proposals is known, it is not clear what will be put in its place. But among other things, these changes are going to reduce both the risk and the cost of libelling people and invading their privacy, and make it more nearly a cost-benefit exercise for the media.

Shielded by a newly benign defamation law, relieved of the risk of punitive awards of costs and with a liability to exemplary damages that are unlikely to be any worse than a regulator’s fine, it may be legitimate to wonder why any newspaper should feel the need to sign up to a voluntary self-regulation scheme.

20 March

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Vol. 35 No. 8 · 25 April 2013

Isn’t it sufficient, Stephen Sedley asks, that victims of defamation receive compensation, not punitive damages (LRB, 11 April)? It seems to me that he overlooks the need to incentivise people to undertake the risk of bringing a defamation suit. They might, if they lose, suffer financial hardship because your system – I’m a US trial lawyer – requires losers to pay their opponents’ fees. Even if they win, they may obtain only nominal damages because proving the financial value of reputational damage in court is close to impossible. Moreover, the entire process of litigation may serve to publicise further the defamatory remarks. In short, a defamation plaintiff has much to lose. If one wants to encourage meritorious defamation suits in order to deter reckless newspapers and television outlets, why not offer financial encouragement?

Neil Mullin
Montclair, New Jersey

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