The media column - Bring on the regulator

After many years as an editor, I have concluded that regulation of the press would be better than wh

Like most journalists, I was always instinctively opposed to statutory press regulation. I still have doubts about its feasibility, and I fear any attempt to impose "responsible" journalism would lead to a neutered press, afraid to challenge conventional wisdom or probe abuse of power. After many years as an editor, however, I concluded that regulation would be better than what we have.

This was also the view taken by Lord Justice Stephen Sedley in his Blackstone Lecture at Pembroke College, Oxford, this month. His proposals will get a loud raspberry in media circles, but I believe they deserve close attention.

This is not because I think the press has too much freedom but because, in certain respects, it has too little. Its main inhibition is the law of libel and its effect has grown since the advent of "conditional fee agreements" whereby lawyers charge their clients only if they win. I have no quarrel with the principle: in the past, the civil courts were beyond those of modest means. But the big worry for editors in libel cases is not so much the damages - these are less mind-boggling than they once were - as the lawyers' bills. A litigant now takes little risk, while newspapers risk paying both sides' costs. For example, the Mirror Group had to pay the model Naomi Campbell only £3,500 in damages (this was actually for invasion of privacy, to which I shall return) but meet legal bills exceeding £1m.

It may seem splendid that questions about how far newspapers can go should be decided in open court before a good old British jury. It would be a fine, democratic thing if it were so, and better than any state regulation. In reality, because a full court hearing can be ruinously expensive, the vast majority of libel cases are decided out of court, by negotiation between lawyers. The settlement, including any retraction, is determined less by the truth or falsehood of published allegations than by the size of mounting bills.

All this affects small publications, like this one, far more than it affects the bigger fish. Small publications cannot afford libel insurance, in-house lawyers or the legal bills to fight cases. Many decisions concerning the merits of pursuing a story come down to an editorial judgement about whether or not the subject will sue: politicians usually won't, but the police often will, even when no specific officer is identified. Even if you are absolutely confident of your evidence, you may not be able to afford the costs of proving the allegation. The courts will often award costs against an unsuccessful litigant, but you cannot be certain of it; in any case, he or she may simply plead bankruptcy.

Sedley's proposal is for a regulator who, after investigating complaints, can provide "genuine and proportionate redress" without the two sides going through the expensive adversarial system in the courts - though they would naturally have the right of appeal. A further, punitive fine might sometimes be imposed on an errant newspaper, but the money would go to public funds rather than to the complainant, thus removing the prospect of an undeserved windfall which at present motivates many libel writs. The regulator would also rule on privacy cases. Though, thanks largely to human-rights legislation, some of these are now successful, the law is still inadequate against intrusive photography or the gratuitous exposure of, say, footballers' sex lives.

Sedley rightly rules out extending the regulator's powers to "untruths which strike at no individual"; complainants must show that their personal reputation or privacy has been damaged. Sedley also says the regulator should have a specific remit to protect investigative journalism.

I hope this would include sexual misbehaviour by a deputy prime minister with an official who reports to him. Just to make sure, I would prohibit MPs, higher civil servants, the royal family, and police and members of the armed forces above certain ranks, from going to the regulator. They would have to take their chances in the courts as they do now. That should remove any danger that the regulator becomes a tool of the state.

This would not be a matter for Sedley's regulator but, given their anxiety to protect the Welsh from the waspish tongues of both the Prime Minister and Cristina Odone (late of this parish), it may be one for the police. The Mail on Sunday, joining the dreary chorus criticising Margaret Beckett's clothes, discovered that she shops at an outfitters in Derby, known locally (because that happened to be its name until recently) as Bracegirdles. Cue much snobbish, metropolitan hilarity and a quote from a shopper (unnamed) that "you can take the girl out of Derby, but you can't take Derby out of the girl". As a matter of fact, Beckett, though a Derby MP, was born in Manchester.

More important, my well-dressed wife is from Derby. She is outraged. Inspector Plod should proceed at once to Northcliffe House.

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