The proposal is written by Hugh Tomlinson QC and emerged out of roundtable discussions organized by the Media Standards Trust, and the Reuters Institute for the Study of Journalism at Oxford University. At the round table discussions were senior newspaper figures, lawyers, academics, and those with long experience in broadcast news.
This is not the Media Standards Trust’s proposal – we will be submitting our own proposal to the Leveson Inquiry in May – but we think it is an important and helpful contribution that merits serious consideration.
It outlines how a new adjudication/arbitration body, modeled on the construction industry, could provide speedy and fair redress for ordinary people who cannot afford – and do not want – to go to court, while at the same time shielding publishers from the potentially ruinous costs of defamation or privacy proceedings.
As an experienced QC, Tomlinson has been able to illustrate exactly how such a system might work – a system which many editors have already told Lord Justice Leveson they would be very interested in exploring.
Alan Rusbridger, editor of The Guardian, told the Leveson Inquiry:
“I think if this adjudication bit could be built into the role [of a new system] and acknowledged by law in libel — let’s come back to privacy later — and that there were significant advantages in costs and in the speed and ease of settling these disputes, that would be a significant imperative for any publisher to come in” (Oral Evidence, p.108, 17 January)
Rusbridger detailed his own view of how this might work in his Orwell Lecture.
John Witherow, editor of the Sunday Times, told the Leveson Inquiry:
John Witherow: “I think your ideas [Lord Justice Leveson] on arbitration are very interesting. Or mediation. We used mediation in some defamation cases.
Lord Justice Leveson: I think they’re interesting too, but more significant than that, again, if you’re going to require people to go down that route, there has to be a framework that requires it. You’d have to set up an arbitral system –
John Witherow: Yes.
Lord Justice Leveson: — which allows it to happen very quickly, but that would be law again.
John Witherow: Yes, and it would replicate the courts, in a sense, wouldn’t it?
Lord Justice Leveson: In one sense, I don’t mind that.” (Oral Evidence, p.47, 17 January)
Lionel Barber, editor of the Financial Times, told the Leveson Inquiry:
“… I think it’s promising, to look at whether this new body, the Media Standards Board, whatever you want to call it — by the way, it will have to have a new name — can offer an arbitration process or some form of resolution where parties do not immediately resort to the court, forcing news organisations to employ highly expensive barristers, and before you know where you are, you’ve seen £100,000 plus disappear. We don’t have that kind of money.” (Oral Evidence, p.59, Tuesday 10 January)
In such a system as the one drawn up by Tomlinson, a professional adjudicator could hear the arguments from both sides at short notice, and deal with them quickly and inexpensively. S/he could then award damages, direct the publication to apologise, dictate other sanctions, or find in favour of the publisher.
The complainant or the newspaper would not then be precluded from taking the case on to the high court – such a preclusion would compromise their Article 6 rights (to a fair hearing) – but the court would take the adjudication into account when reviewing the case. In other words, it could become very costly for either side to keep pursuing it once the adjudicator has made a decision.
Hugh Tomlinson will be introducing his proposal at a debate organized by the Media Standards Trust and Hacked Off in the House of Commons on Wednesday 29th February. Max Mosley will be responding to the proposal as will, we hope, an advocate of the PCC’s contract based proposal (for more information please contact email@example.com).