One of the most disappointing things about Tuesday’s FT leader column, ‘Leveson, the British press and the law’, is not that it parrots the self-interested arguments made by other papers (though it does), or that its logic is inconsistent (though it is), but that it is misleading and inaccurate.
The egregious inaccuracy is towards the end of the piece. ‘The advent of contingency-fee arrangements’ the leader says ‘means these [libel laws] are available not only to the rich but to anyone with a good case’. Yet rather than beginning, contingency-fee arrangements in media cases are about to come to an end. The ‘advent’ of contingency-fee arrangements (CFAs) was almost twenty years ago, in 1995 (having first been made possible in personal injury cases by secondary legislation under the Courts and Legal Services Act 1990). Earlier this year Parliament voted through changes in CFAs that will effectively end them in media cases (in the Legal Aid, Sentencing and Punishment of Offenders Act).
This is very important for the future of media regulation, but for the opposite reason given by the FT. The disappearance of CFAs in media cases means that, without effective regulation, ordinary people will be unable to challenge the might of big media organisations.
To explain briefly why. Let’s say there’s a front page about you next year claiming – entirely falsely – that you’re a murderer. You contact the newspaper which – if it chooses to respond – refuses to correct its piece. So you contact a lawyer to ask what you can do. The lawyer will tell you that, although you could take a case against the news corporation it will – whether you win or lose – cost you thousands, if not tens of thousands, of pounds. None of this will be recoverable (since CFA insurance will not be recoverable from next year). And, if you choose not to take the insurance, it could cost you hundreds of thousands if not millions (if it makes it all the way to the High Court). Needless to say, most people – whether it’s the Dowlers, Christopher Jefferies or the next victim of a miscarriage of media – just will not be able to afford to take action.
Which is why effective regulation is necessary. Without regulation to level the playing field slightly, the large media corporations will be virtually untouchable by ordinary people. An effective regulatory system will be most people’s only chance of gaining any sort of fair redress.
The FT is, of course, free to form its own view about best system of press regulation, but it would be better if it did so on firmer foundations.