Nineteen years ago I was threatened with a libel suit by Harold Evans because of an article I’d written in the Spectator about his departure as president of the New York publishing company Random House. Via his solicitors, Evans threatened to sue me for libel unless I paid his legal costs, gave a sum of money to charity and signed an undertaking that I would never write about him again.
I can’t claim to have been a high-minded journalist taking on a corrupt businessman. It was more of a Mickey-taking piece, pointing out that the former Sunday Times editor, once a titan of British journalism, had become a humourless, self-important twit since marrying Tina Brown and moving to the U.S. The article was accurate and well-sourced but, being a freelance hack, I was in no position to fight the case. On the other hand, I was reluctant to sign his gagging order, particularly as he wanted me to promise never to write about his wife as well. It was the hypocrisy that really stuck in my craw. Evans presents himself as a champion of free speech yet here he was, trying to use Britain’s libel laws to silence a pesky gadfly.
Luckily for me, Evans made a mistake – he went after the Spectator too. In a separate letter to the editor, he threatened to sue the magazine for libel unless it promised never to repeat the allegations in my article, published an apology and also paid a sum of money to charity. The editor – with the blessing of Conrad Black – decided to jointly defend the claims and promised to pick up all the legal bills. That meant I could safely ignore all of Evans’s demands and a few weeks later he dropped the case.
What’s the relevance of this episode? Today is the last day of a consultation the Government is holding about whether to activate section 40 of the Crime and Courts Act. If it’s activated, any publication not signed up to Impress, the press regulator largely funded by Max Mosley, will have to pay all the costs in a libel case even if it successfully defends a claim. At present, the court typically asks the loser to pay their own costs and the lion’s share of their opponent’s. But if section 40 is activated, publishers outside Impress will have to pay their costs and their opponents’ even if they win.
The Spectator has said it has no intention of signing up to Impress, so if section 40 is activated and a Spectator contributor finds themselves in a similar position to the one I was in 19 years ago it’s extremely unlikely that the magazine would join its case to theirs. If it did, it would then be on the hook for the claimant’s costs in both actions, whatever the outcome.
Even if an editor was keen to defend a contributor facing an unmerited libel suit, the reality is that decisions of such commercial sensitivity are never left to them alone. Back in 1998, Frank Johnson, then the editor of the Spectator, had to get the permission of Conrad Black, then the owner, before joining the magazine’s case to mine. Conrad agreed, but only after he was persuaded the claim was defensible so that, in the event of it going to court, Evans would probably lose. Even then, he was taking a financial risk. If he had been warned that the Spectator would have to pay all the legal bills, including Harold Evans’s, even if we won, I suspect he would have told me I was on my own. I can think of no magazine or newspaper proprietor who would take a different view.
Few journalists can afford to fight libel claims without their publications in their corner, so the vast majority finding themselves in this position would have to give in to all the claimant’s demands, even if everything they’d written was true. Knowing this, few journalists writing for publications not signed up to Impress would risk writing anything likely to antagonise someone rich and powerful, regardless of how true it was. If section 40 is activated, the Spectator will inevitably become a very different beast. It doesn’t matter how defiant the magazine’s editorial staff are, the new rules will render its contributors vulnerable to being individually targeted.
The odd thing about section 40 is how much more draconian it is than anything proposed by Leveson. In his 2,000-page report, Leveson recommended that the rules applying to the award of costs be amended so that the court has to take into account whether a publication is a member of a recognised regulatory body when deciding who picks up the bill. However, he stopped short of saying that publishers who aren’t members must pay their own and their opponent’s legal costs even if they successfully defend an action. Rather, he recommended leaving the matter to the court. ‘Ultimately, the discretion of the court would govern all these issues’, he wrote.
This is an important point. Leveson wanted a system of ‘voluntary self-regulation’ – that’s the phrase he used – so it was critical that the inducements that were put in place to coax publishers into signing up with the officially recognised regulator weren’t too draconian. That’s why, while he thought the rules regarding costs should be tweaked, he didn’t think the court should be forced to award costs to the claimant if the defendant wasn’t a member of the official regulatory body, win or lose. The reason he thought it should ultimately be a matter for the court was because he wanted publishers to regard not signing up to the Government-approved regulator as a risk, but not a death warrant.
Unfortunately, under section 40, a death warrant is exactly what it would be. It stipulates that the court must award costs against the defendant in virtually every circumstance – it actually uses the word ‘must‘. True, there are a couple of caveats, but the financial risk to a publisher of defending a libel claim would increase exponentially. That means newspapers and magazines that aren’t members of Impress will be at such a disadvantage they will be forced to sign up. Some publications, like the Spectator, will choose to remain outside Impress, but that doesn’t mean the decision about whether to enrol will be ‘voluntary’. That would be like claiming a man’s decision to sell himself into slavery when the alternative is death is ‘voluntary’. The Spectator will effectively be martyring itself on the altar of free speech. The vast majority of publishers will have no choice but to join, knowing they’ll face financial ruin if they don’t.
Which isn’t to say I’d be completely comfortable with an amended version of section 40 that more accurately reflected Leveson’s recommendations. Leveson thought publishers would need to be given sticks as well as carrots to induce them to sign up to an official regulator, and then tied himself in knots because he knew that any sticks would mean the resulting system wasn’t voluntary. My view is, if the system is going to be genuinely voluntary, publications should be granted benefits if they join, but not face penalties if they don’t. That’s why I’m less troubled by the exemplary damages sections of the Crime and Courts Act, which have already come into force. Under those provisions, a publisher who is a member of a recognised regulator will be exempt from having to pay exemplary damages in libel cases, while those that aren’t won’t be. This is a carrot not a stick because the provisions don’t render those publications outside the official body any more vulnerable than they were before the Crime and Courts Act came into force.
Section 40 also contains a carrot. It says that those publishers who have signed up to the recognised regulator won’t have to pay a claimant’s costs, even if they lose a case. If the Government wants to commence that aspect of section 40, while asking Parliament to repeal all those provisions that apply to publishers outside a recognised regulator, that’s fine. That would be consistent with the principle of ‘voluntary self-regulation’. But if section 40 contains sticks as well as carrots, the regulatory system it ushers in won’t be voluntary.
Of course, for most newspapers and magazines, the issue isn’t just with the voluntary part of Leveson’s proposed system, but the self-regulation part, too. If the regulator must be recognised by a panel that’s at least partly appointed by the Government, the word ‘self’ begins to seem a little suspect. Now it may be that the press’s suspicions about just how independent such a regulator would be are groundless, but you can hardly blame them for wanting to wait and see before signing up, particularly when they have the alternative of joining IPSO, which most of them have done. Forcing them to enrol by commencing section 40 will only confirm those suspicions.
Another reason not to activate section 40, at least those provisions that apply to publishers that don’t sign up, is that Impress is largely composed of metropolitan liberals who loathe the red tops – Impress’s CEO Jonathan Heawood has shared social media posts comparing Daily Mail journalists to Nazis – and the fact that it got the official stamp of approval in spite of this suggests the ‘Recognition Panel’ leaves much to be desired. Max Mosley and his colleagues weren’t concerned about Impress’s anti-tabloid bias deterring newspapers like the Sun and the Mail from agreeing to become members because they believed section 40 would be activated in full and they’d have no choice. If it isn’t – if just the carrots are introduced, not the sticks – Impress will have to replace those finger-wagging scolds with more impartial officials. In short, the official regulator is likely to be of a higher calibre if the draconian parts of section 40 aren’t commenced.
Finally, if section 40 is activated in full, it will be hard for a publisher ever to leave Impress. The recognised regulator will have no incentive to retain the confidence of its members if it knows they’ll face terrible financial risks if they depart. Impress would become the regulatory equivalent of the European Union, taking the continued allegiance of its members for granted and imposing ever more swingeing costs.
Defenders of Impress will have little patience with any of the above arguments. They’ll say there’s a simple way for the Spectator to avoid the ‘libel chill’ that publications outside the official regulator will experience and that is to sign up, pronto. But for most journalists, the idea of being forced to submit to a Government-approved regulator is fundamentally at odds with the very essence of our profession. We don’t swear the equivalent of a Hippocratic oath when we become hacks. But if we did, refusing to be bullied by the rich and powerful, be they liberals or conservatives, would surely be in there somewhere.
You can respond to the consultation here