The House of Lords yesterday approved a change in the law which would force news publishers to pay both sides’ costs, even if they win, in privacy and libel cases if they have not signed up to an approved regulator.
The amendment, added last night to the Investigatory Powers Bill, with members citing the connection to phone hacking, was passed by 282 votes to 180.
It is similar to section 40 of the Crime and Courts Act 2013, which has not yet been implemented by the government.
The amendment provides that – whatever the outcome of the case – if the defendant publisher is a member of an approved press regulator, the court must not award costs against them unless satisfied that the issues raised by the claim could not have been resolved by using the regulator’s arbitration scheme, or it is “just and equitable in all the circumstances of the case to award costs against the defendant”.
For a defendant that is not a member of an approved regulator, the court must award costs against them unless satisfied that the issues could not have been resolved by using the arbitration scheme or it is just and equitable to make a different or no award of costs.
As recommended by the Leveson review, the Royal Charter-backed Press Recognition Panel has been set up to, it says, “ensure that any organisation which regulates the press is independent, properly funded and able to protect the public, while recognising the important role carried out by the press”.
It is due to consider the application of one regulator, IMPRESS, later this month, although currently only mainly small local newspapers have signed up to it.
Citing concerns over threats to independence, most of the national press have chosen to set up IPSO – the Independent Press Standards Organisation – which has said it would not seek recognition from the panel.
Last year, the then culture secretary John Whittingdale said the government was not minded to implement section 40. Baroness Hollins – the crossbench peer who laid the amendment with the support of the likes of former deputy Prime Minister Lord Prescott– said this represented a change of government policy “which both breaks the cross-party agreement and betrays promises made to both Houses and to press abuse victims”.
Were the government to say that section 40 would be implemented, she continued, she would withdraw the amendment.
She said the aim of section 40 was to incentivise press owners to join an accredited self-regulator and to “provide access to the courts for press victims facing a deep-pocketed defendant”.
Minister Earl Howe told her that implementation of section 40 was still under consideration.
He continued that regardless of the panel’s decision on IMPRESS, “it is true to say that the press landscape has undergone a huge amount of change over the last four years and the government need to be sensitive to that.
“A crucial part of section 40, for example, is around ensuring both sides have access to low-cost arbitration as an alternative to expensive litigation. The arbitration scheme run by IMPRESS is relatively new, while IPSO is currently trialling an arbitration scheme to better understand how it could work effectively.
“Given the importance of arbitration to making section 40 operate effectively, it would also be useful to see how both IMPRESS’s arbitration scheme and IPSO’s arbitration pilot work in practice.”
Bob Satchwell, executive director of the Society of Editors said: “Members of the House of Lords have hijacked other important legislation, with which we still have issues, to pursue a vendetta that could seriously damage papers which had nothing to do with the Leveson report. Hopefully the House of Commons will take a more considered view.”
The Society of Editors, alongside regional and local newspaper editors, has called on the government not to put forward a commencement order to implement section 40 on the basis that it would have a “devastating effect” on the local and regional press.
Mr Satchwell said: “The idea that a publisher or editor could be wrongly sued for libel or privacy, fight and win the case in court, vindicating their reporting, only to be forced to pay the costs of an unsuccessful claimant as well as their own, would be unreasonable and at odds with the fundamental principle that the law should be fair.
“In addition, not only would implementing such provisions create a real risk of a chilling effect upon journalism in the public interest, it comes at a time of already well-documented pressures on the regional and local press, of which I am sure you are well aware.”
He added: “IPSO requires editors to deal with complaints quickly and directly, which has long been the practice in local and regional newspapers. Punitive costs and the prospect of cost-free legal actions even if a paper successfully defends its reporting could make a resort to courts more attractive to plaintiffs and their legal advisers.
“It might mean no win and no fee but more actions would take up court time and only the lawyers would benefit.”