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The future of defamation and privacy disputes

by Matthew Rushton on 07 Dec 2012

On 5 December, six days after publication of the Leveson Report, a select group of the UK’s leading media and defamation specialists gathered at Johnson’s Solicitors in London to discuss the Report’s findings. The event, co-hosted by Legal Business magazine and JAMS International, brought together Paul Tweed and Gavin Bonnar of JAMS International, a trio from 5RB, comprising Adrienne Page QC, Desmond Browne QC and David Sherborne; litigant Max Mosely; David Hooper of RPC; LSE’s Dr Andrew Scott; Alasdair Pepper from Carter Ruck; and Mark Lewis from Taylor Hampton Solicitors. Legal correspondent Joshua Rozenberg chaired the event.

 In summary, those present felt that the report was a “clever” and “canny” proposal, and that Lord Justice Leveson had avoided all the obvious traps. What he had failed to address, according to Desmond Browne QC, was the so-called Desmond Question: what to do if, like publisher Sir Richard Desmond, certain titles refused to buy in to self-regulation underpinned by statute. Observing that self-regulation can become self-interested regulation, Browne suggested the Legal Service Board’s model of regulation – as outlined in the Legal Services Act 2007 – neatly avoids the problem of being either self-regulation or statutory regulation.

Most around the table were clear that “the press can’t be relied upon” to maintain decent standards. Nevertheless, David Hooper of RPC felt that regulation by statute should be a last rather than a first resort.

Discussion moved on to the range of carrots and sticks designed to guide the press into a more robust regulatory framework. A central part of Leveson LJ’s proposals is a speedy, low-cost arbitration service, which has been touted as an incentive for the press to become involved. Nevertheless, Adrienne Page QC, was sceptical, questioning whom the arbitrators might be, who might run the service, and under what rules. A major concern, on which the report was silent, was whether the arbitrations would be confidential. David Sherborne also criticised the Report’s lack of detail questioning what powers the arbitral tribunal might have – emphasising that such powers would need to be extensive to provide the necessary incentives. There were also concerns about the tribunal’s power to order document disclosure, without which, Sherborne suggested, the extent of phone hacking could not have been uncovered.

Debate also covered access to justice, and specifically costs and cost shifting, which Max Mosely feared – once conditional fee agreements are no longer available post April 2013, and success fees and After The Event (ATE) insurance premiums were no longer recoverable – would leave over 99% of claimants with no access to justice.

In discussing the conduct of the press, Alasdair Pepper noted what he called the “Leveson Effect” – in that for the duration of the inquiry, the press had moderated its conduct. Paul Tweed "went so far was to say that over the last few months he settled more claims more easily than in any point in his career." Nevertheless there was a pronounced fear of “backsliding,” with attendees pointing to a lengthy history of misconduct of the press. David Sherborne felt that the only motivating factor which might incentivse the press voluntarily to moderate their conduct was money – in the form of substantial jury awards, and public revulsion.

For more on the above, plus discussion of press regulation in the Republic of Ireland, of the Internet and social media, the relationship between the press and politicians, and the press and the police, please watch the video above.

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Topics: Mediation

Matthew Rushton

Written by Matthew Rushton