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Publishers should accept regulation and push for ADR, says expert

OPINION: Lord Justice Leveson will almost certainly recommend that newspapers be bound by legislation regulating their activities, and newspapers should take the opportunity to lobby for alternative ways to settle libel and other disputes. 30 Oct 2012

Lord Justice Leveson has conducted an inquiry into press standards and will probably report his findings to the Government in November. It is almost certain that he will declare press self-regulation through the Press Complaints Commission (PCC) has failed and that a new system of regulation should form part of legislation.

A majority of publishers have focused until now on opposing this idea wholesale, arguing that it risks making government interference in the press easier and more likely. Instead they should accept the inevitable and switch to campaigning for cheaper access to justice.

In return for agreeing to a new model underpinned by statute the newspaper industry should demand that a considered and comprehensive alternative dispute resolution (ADR) scheme be established so that the new regulator is, for example, the first port of call for libel and privacy complaints. 

This could help solve a problem that acts as a bigger restriction on the freedom of the press than any statutory regulation: fear of ruinously expensive libel and privacy actions.

The stark fact is that even large publishers can ill afford expensive libel and privacy cases. They defend some, but settle many others, especially when a large company or rich celebrity is funding the other half of the litigation.

Pursuing these complex cases through the courts takes too long and costs too much.

Publishers have an opportunity now to lobby to put in place a system that all privacy and libel complaints will have to pass through. Even if some end up in the courts many will be settled cheaply, publicly and fairly, which is a more desirable result for publishers and press freedom than covert deals on the court steps that depend as much on the depth of the pockets of the person bringing the case as on the merits of their claim.

One proposal floated is for a new Media Standards Agency. This is an interesting option available to Lord Justice Leveson because it balances well the need for regulation with some enhanced benefits for those taking part.

It could be backed by legislation and remain independent both from the Government and the publishing industry and an adjudication scheme would form part of its processes. It would be voluntary but, crucially, participation would bring concrete benefits: it could put in place an extra defence for members of 'regulated publication' in libel cases and could introduce a new public interest defence in privacy claims.

One issue not addressed properly by the Media Standards Agency plan or any of the alternatives proposed so far is the fact that so much publishing by newspaper publishers now happens online. Popular online blogs may well attract more hits and readers than some local or regional newspapers yet the former are not regulated while the latter are. 

This is a very difficult problem because any regulation of online content needs to catch newspaper publishing but should not interfere with individuals' rights to express themselves outside of any formal publishing industry.

This is because the aim of regulation is to curb some of the institutionalised excesses practised by newspaper publishers. These must be curbed to protect the public, be they famous or not. This is best done by changing the culture of those organisations, and that demands a move away from self-regulation.

The same principles should not be applied to private individuals because they are not part of those cultures that must be reformed. Of course if they invade someone's privacy or defame them on a blog or in a tweet they should face the rigour of the law, but to expect individuals to understand and comply with additional industry regulation is neither fair nor good policy.

There are difficult questions for Lord Justice Leveson and the Government which will choose whether or not to implement his plans. While publishers have probably already accepted the inevitable, they should not lose sight of the bigger opportunity to lobby for wider changes. Alternative dispute resolution will reduce their costs and increase the fairness of the system, and the opportunity to make that progress should not be passed up.

Ian Birdsey is a media law specialist at Pinsent Masons, the law firm behind Out-Law.com