I am not a media lawyer but it is interesting to consider the issue of press ethics from two perspectives that interest me: one is access to justice and the issue of lawyers fees, the other is the ethics of an adversarial legal system. Many of the suggestions for reform of press regulation contain within them alternative forms of dispute resolution, mediations and tribunals feature prominently. I believe that is a mistake. From these perspectives, the adversarial, party controlled model with attendant costs and power imbalances remains. Whilst it may be possible to ameliorate some of the problems of the current system, it will not make redress as fair, accessible, or quick as it can be. It will serve the interests of those can afford to get lawyered up. It will serve in others words the interests the media and wealthy celebrities.
My concern is exacerbated by an impression that both claimants and defendants use legal costs as a powerful weapon. It discourages claims and makes the financial consequences of those claims, rather than the substance of those claims, the important issue. The one rogue journalist defence is the best example of a claim round which substantial legal and media resources coalesced to attempt to mislead claimants, the public and parliament. The resources of the law were put to work to construct and manage this claim. It was disastrous, but it came very close to working. The threat of a claim can stymie important reporting and debate in the press, academia and the blogosphere.
I believe there may be an effective alternative to such an adversarial approach that reduces costs for the media, opens up redress to the ordinary citizenry and reduces the potential chilling effect that arises from the threat of litigation and its attendant costs. In particular, I believe it can be argued that an inquisitorial, ombudsman system for the resolution of complaints against the press can provide a significant advance for access to justice and, as it happens, improve the ethicality of the press.
It is axiomatic to my argument that legal costs exert a powerfully negative influence on free speech and the assertion of legitimate claims for redress where privacy or reputation has been violated. Reducing those costs is essential to promoting both free speech and effective redress. A system which relies on both sides instructing lawyers to pursue case through the courts, or through tribunals, or via mediation is a system which is inherently costly. Adversarialism naturally drives increases in cost. It also drives increases in the complexity of law. Specialist lawyers tend to increase the complexity of the law in their area. Judges keen to do justice between the parties have an incentive to increase complexity when seeking to distinguish cases. The natural way of the common law tends towards the complex interaction of cases facts and substantive law. There can be benefits to that system but those benefits depend on all parties who wish to rely on the law having equal access to advice.
Mediation and tribunals seek to bolt on more lay friendly processes to ameliorate some of these difficulties but rely on the backdrop of adversarial representation. I will make only a few points that could be made here. Where at least one party can afford representation, the tendency is for informal processes to be colonised by lawyers and the formalism which they are designed to resist. Informal processes look and feel increasingly like courts and frighten off ordinary parties. The second is that responsibility for investigation and presentation of the case tends to remain with the parties. That puts a party without the relevant information and/or without representation at a significant disadvantage. It also means that either or both parties put significant, and some of it wasteful, resource into investigating and building their case. The opportunities to game or stonewall the opponent in that process are significant. Opportunities to misrepresent claims and, as we have seen, defences, are also apparent inspire of professional obligations not to do so.
Ombudsman approaches are different. They put the power of investigation and adjudication in the hands of an independent Ombudsman’s office. They can recruit and develop sector specific expertise in ways less easy for the judiciary. They act like an inquisitorial judge. They do not have to rely on how complainants frame complaints and how defendants defend them. Interestingly, research on the Financial Ombudsman Service by Sharon Gilad suggests, Ombudsmen can overcome some of the power imbalance between represented and unrepresented parties. They can bypass the lawyers and speak directly to those involved in a matter. They can do so quickly and without the polishing of evidence seen in, for instance, a recent High Court case (not a libel case).
Crucially, this reduces the need for parties to involve lawyers (although they may continue to do so, they can be prevented from threatening their opponents with these costs). A further benefit is that,whilst Ombudsmen can settle or adjudicate cases, and settlements could remain confidential, the Ombudsman has the necessary knowledge to understand if complaints or patterns of complaint suggest broader concerns in a particular sector. The public interest in not brushing chronic problems under the carpet is balanced with the parties desire for confidentiality in a particular case. Furthermore, there may be significant benefits in terms of evolving solutions to cases: non financial remedies might be much more strongly prioritised where an Ombudsman deals than where a court, with lawyers and their funding models perhaps contingent on final outcomes, is in play. Similarly, the rules which govern journalists and claims against them, can be kept simpler: a genuine codification can be managed without the complexity that is driven by common law adjudication.
The final, but most significant benefit is cost. The need for representation is removed. Parties choose to instruct lawyers can more fairly be told to bear their own costs. Barriers to making or defending a claim are significantly reduced. Speech is freer as is the vindication of our other rights.
To be sure there are drawbacks. It will still be claimed that the full majesty of adversarial justice is better at seeking out the truth. That may be true, although I find myself wondering how many NightJacks there are or how often evidence is overly polished. One suspects and hopes the answer is, not often, but the critical point is that the majesty of adversarial justice is beyond the pockets of mere mortals, and most cases do not need or benefit from it. Justice might be a little rougher, but the consequences of a decision would be less serious (in cost terms) and if access to justice is increased more people would be likely to benefit than would lose out. The people who would benefit would more often than not be the powerless not the powerful: smaller publishers – who could opt in- and Individual claimants of limited means. Costs reductions could serve the interests of media and claimants. The media would have to resource an Ombudsman (along the lines being proposed for an independent regulator) but a reduction in their own legal costs (and the size of compensation payments if non financial redress developed well) and the ending of payments they make to claimants lawyers sides should offset those costs. Another way of putting this is that such an approach should be cheaper than any of the alternatives on offer. To ensure this the Ombudsman needs to be robust in dealing with vexatious claims and defences, an ability dependent upon its legitimacy and independence, but if they are, there is a real possibility that the system will be improved.