IPSO Blog: Press arbitration and IPSO’s pilot scheme

In the world of press regulation, arbitration is a divisive issue. It is heralded by some as a way of achieving access to justice, and vilified by others as an ill-fitting tool which, at its worst, could limit free speech.

What is press arbitration? 

By way of an introduction: arbitration is a system where parties agree to a set of rules through which they are happy to resolve a legal dispute, removing the need to litigate. It can be tailored to particular kinds of dispute and can resolve claims more quickly than going through the Courts. 

The idea of press arbitration comes from the Leveson Report. Lord Justice Leveson identified that the overwhelming costs of media law litigation can put people off from pursuing or defending legal claims, allowing financially powerful parties to ‘bully’ their opponents into submission. 

What makes an effective arbitration scheme? 

It was hoped that arbitration could provide for greater access to justice by reducing costs and and resolving claims more speedily. However, improving access  is not simply a matter of lowering costs or providing a quicker process. Due process, robust inquiry, effective remedies, clarity and trust are all also necessary to achieve proper access to justice. 

Ultimately the arbitrator will have a vital role to play in delivering these values. Leveson recommended that press arbitration should be conducted inquisitorially. This means that the arbitrator (rather than the parties and their lawyers) directs the lines of inquiry, cross examines witnesses and questions the evidence. The hope is that this will allow the arbitrator to act as a balance against financial inequality and the parties’ differing levels of legal knowledge. 

The IPSO arbitration scheme 

In order to support this inquisitorial process, it was essential for IPSO to bring on board arbitrators with significant legal knowledge and experience. Individuals who have the authority and presence to control the process and stand up heavy-hitting and well-financed parties. Leveson himself recommended the use of independent legal experts of high reputation and ability. I think we have achieved this by putting together a panel of eight barristers all of whom have over ten years practicing experience. 

The trouble is: experienced, skilled and resourced barristers, capable of providing robust inquiries, cost money. The suggestion that press arbitration can be done on the cheap ignores this fact and calls for an artificially low cost at the expense of a robust and fair process. 

The IPSO scheme has been designed as a cost-effective solution to this problem. It has fixed fees with inbuilt incentives to achieve resolution at an early stage; acting to limit the accumulation of unnecessary costs. This is a balancing act, giving capable arbitrators the necessary time and resources to properly investigate claims, whilst ensuring that the scheme remains cheaper than litigation. 

Of course, fixed or capped fees set a natural limit on the resources and time available. Attempting to arbitrate claims which require greater resources than the scheme can provide would be like trying to fit a square peg into a round hole. 

Doing so would risk undermining the fairness and efficacy of the scheme and could result in unjust outcomes, lowering trust in the arbitration process.  For this reason, IPSO’s pilot has a detailed process allowing the arbitrator to filter out claims for which arbitration is not suitable. 

Why a pilot scheme? 

Press arbitration is still largely untested and the IPSO pilot is its first large scale trial. Without an evidential basis, it would be premature to state whether arbitration will be the solution Lord Justice Leveson hoped for, the unhelpful experiment others have since labelled it as, or something in between. 

It is my hope that the IPSO pilot will be actively considered as an alternative to litigation and in so doing will provide fair resolution for the parties whilst also providing the evidence needed to progress the debate further. 

The arbitration pilot is up and running, and available to those wishing to avoid costly litigation. You can read more about it here. 


Originally published 28 October 2016.