In the Media

Implement Jackson reforms for media litigation, says Leveson

PUBLISHED November 29, 2012

Thursday 29 November 2012 by Michael Cross

A call for Lord Justice Jackson's proposals on costs to be introduced for defamation, privacy, breach of confidence 'and similar media-related litigation' appears in the Leveson report on the press published today.

In his report, Lord Justice Leveson proposes a new law to create an independent press regulator and to impose 'a legal duty on the government to protect the freedom of the press'. The new independent self-regulatory body would be governed by a board with the power to 'direct appropriate remedial action for breach of standards and the publication of corrections and apologies'.

The new regulator would also provide an arbitral process in relation to civil legal claims against members, 'drawing on independent legal experts of high reputation and ability on a cost-only basis to the subscribing member'. Such expertise would not be difficult to find 'from the most senior ranks of the legal profession', Leveson says.

Arbitration 'should be fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious)'.

The process would have a system to allow frivolous or vexatious claims to be struck out at an early stage.

While membership of the body would be voluntary, membership should 'be relevant to the decisions reached' in relation to damages and costs. Leveson recommends that the media regulator Ofcom reviews the system every two years and act as a backstop regulator if publishers refuse to sign up.

Exemplary damages should be available in actions for breach of privacy, breach of confidence and similar media torts as well as for libel and slander.

Leveson comments that the change of the law enacted by part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act will alter the balance between those who complain about the press and the press itself. If there is no prospect of recovering either uplift on costs or the premium for after-the-event insurance, 'the economics of litigation move against those who would otherwise challenge the press in favour of the press'.

Failure to adopt the Jackson proposals for qualified one-way costs-shifting will turn the clock back to the time when only the very wealthy could pursue claims, he says.

Leveson's 2,000-page report holds back from recommending changes to the defamation law. With the defamation bill currently going through parliament 'I do not consider it to be valuable either to go over that ground or to postulate what might be the effect of any legislation eventually enacted', he says.

Leveson also concludes that no new statute is needed to protect privacy, saying the common law has 'has allowed flexibility of approach and a sensible enunciation of the relevant factors to be taken into account when balancing the competing issues in fact sensitive cases'.

However, he calls for tougher penalties for data protection offences, including computer misuse.

'It is important that courts recognise the gravity of this type of offending and are also provided with guidance regarding the implications should circumstances arise when it becomes necessary to consider the commission of this type of offence by a journalist.'