In Monday’s Lords debate about the new press regulation provisions inserted into the Crime and Courts Bill, one line stands out above all. Discussing an amendment about the vicarious liability of publishers, justice minister Lord McNally said (column 876):
the liability of individual journalists at common law remains as it is now.
Although said in the context of a specific amendment, his statement’s true of the provisions as a whole. They do nothing to alter the legal position of an individual journalist (or, for that matter, blogger). It is publishers who will be able to subscribe to a press self-regulator under the terms of the draft Royal Charter; and its is relevant publishers who, under the Crime and Courts Bill, will have costs protection in libel and privacy cases if they subscribe (or can’t reasonably be expected to) and suffer costs penalties and possible exemplary damages if they don’t (and could be reasonably expected to).
At first blush, most people will be comfortable about this. Most assume that the new scheme will simply place burdens on publishers, and are likely to oppose any extension of those burdens to individual journalists. Indeed, I expect some readers to be horrified when I say that writers not only should but must be covered by the new legislation. Let me explain.
As the law stands at the moment, the writer of an article or blogpost – not just its “publisher” – can be sued for libel or misuse of private information. Often, a claimant won’t bother, because it’s the publisher rather than the writer who has money to pay damages. But it can be done.
For example, in relation to her very good book Denying the Holocaust, David Irving sued the author Deborah Lipstadt as well as her publisher Penguin Books. In relation to a newspaper article, Peter Abbey sued the journalist who wrote it, Andrew Gilligan, as well as his publisher, Associated Newspapers. And in relation to a blogpost, Johanna Kaschke sued the blogger who wrote it, John Gray, as well as the editor of the blog that published it, Alex Hilton. As Lord McNally said, the new press legislation will not change this.
If the new provisions came in as drafted, and some aggrieved claimant sued both a publisher and writer for libel, the publisher – at least as long as he, she or it qualified as a “relevant publisher” – would be subject to the new costs provisions. If it did not subscribe to a self-regulator but could reasonably have been expected to do so, then the presumption would be that it should pay the claimant’s costs – win or lose. Equally though, if the publisher did subscribe, or could not reasonably have been expected to (an example might be a foreign publisher or a very small one), the presumption would be that it should not have to pay the claimant’s costs – win or lose.
But what about the writer? He or she would be in the same position they’re in now. They’d pay the claimant’s costs if they lost.
What this means is that a rich claimant could in effect circumvent the protections given by the Crime and Courts Bill to self-regulated and “reasonably unregulated” publishers – simply by suing the writer, as well or instead. They’d no longer be able to threaten a small or self-regulated publisher with the risk of paying heavy legal costs, but they could use that threat against the writer.
If the publisher were a big operation and decided to stand behind its writer, that might be fair enough. But what if it didn’t, or couldn’t? What if the defendant were a group blog (like Labour Home in the Kaschke case), and the publisher didn’t have the means to stand behind the author of the post? A rich, bullying claimant would be in the same strong position they’re in now – even if the blog had signed up for self-regulation. That can’t be right.
The problem can be solved if special provision is made to protect writers. If a claimant wants to make a complaint of libel (say) against an individual writer, he or she should be expected to use the self-regulator’s arbitral service if it’s available because a self-regulated publisher hosted the piece – or a substantially similar piece. I say “substantially similar” to cover the situation where a piece in a newspaper or on a group blog is cross-posted in a slightly edited form on the writer’s own website.
If the claimant ends up going to court anyway, the writer should have the same costs protection as the publisher – even if the publisher isn’t being sued, and whether or not the publisher subscribes to a self-regulator. Only if the publisher was not signed up to regulation but could reasonably have been expected to should the writer be at risk of costs – and even then, only if he or she loses.
If this scheme goes through, it must include special provision for writers. It wouldn’t mean a extension of regulatory burdens, or impinge on free speech. On the contrary, free speech requires it.
In the Simon Singh case, the BCA sued the writer (Singh) but deliberately did not sue the Guardian, which ran the piece. The Guardian offered to enter into negotiations with the BCA but it refused because it wanted to go after Singh personally. In that kind of situation, I think that punitive costs should be awarded against the Claimant if it fails to use the Leveson arbitration procedure.