00232-17 Oerton v The Times

Decision of the Complaints Committee 00232-17 Oerton v The Times

1. Richard Oerton complained to the Independent Press Standards Organisation that The Times breached Clause 1 (Accuracy) of the Editors’ Code of Practice in relation to a number of articles, headlined:

1)  “Only the guilty will cheer curbs on the press”, published on 3 January;

2)  “New law 'will allow corrupt to gag press'”, published on 3 January;

3)  A letter to the editor headed “Curbs on the press”, published on 5 January;

4)  “A law that loads the dice in favour of criminals”, published on 5 January;

5)  “Don't clap our crusading press in leg-irons”, published on 6 January;

6)  “Press regulator 'biased against papers and BBC’”, published on 6 January;

7)  A letter to the editor headed “Press Regulation”, published on 7 January;

8)  “Newspapers and the State”, published on 7 January;

9)  “State Press regulator has 'major flaws'”, published on 9 January.

2. The articles all concerned press regulation, in the context of the Government’s consultation on the implementation of Section 40 of the Crime and Courts Act 2013.  Each article contained a claim or explanation about the effect of this legislative provision on a newspaper or publisher which had not joined a “recognised regulator”.

3. Adopting the numbering above, the first article was a comment piece by a well-known investigative journalist, which claimed that ”in a nutshell [a newspaper which had not joined a recognised regulator] …will be compelled to pay the costs of claimants even if their claim fails. Crooks like Robert Maxwell could sue, lose their case having been exposed in court as liars, and still receive millions of pounds from the victorious newspaper”. The second article was a news article in the same edition of the newspaper as the first article, which reported on the opinions expressed by the investigative journalist in the first article, as well as opposing views. In identifying this journalist’s objections to Section 40, it reported that a newspaper would be required to “pay complainant’s legal bills even if they are defeated in court”. The third item was a letter to the editor from the Executive Director of the European Publishers Council, which said that a newspaper “could be wrongly accused of libel, malicious falsehood or slander, taken to court, win the action, and vindicate its journalism – yet still have to pay the legal bills of whoever brought the case as well as their own”.

4. The fourth article was a comment piece in which the author described his own experience of working as an investigative journalist at the newspaper, and the effects of potential civil liability on the newspaper’s decision making processes. In that context, he expressed concern about the impact Section 40 would have on investigative journalism, and said that it would have prevented publication of many articles had it previously been in force. The article claimed that under Section 40, a newspaper which had declined to join IMPRESS (a recognised regulator), “would be forced to pay its opponent’s legal costs in any claim brought for libel or breach of privacy, even if it won the case”. It went on to claim that Section 40 was “an almost inbuilt guarantee of punitive financial sanctions. Any chancer…would be able to take you to court in the sure and certain knowledge that they and their lawyers would not lose a penny by doing so”.

5. The fifth article was a comment piece by an MP and former journalist, advocating against implementation of Section 40. It claimed that “in any case where a newspaper was sued for libel the title would have to pay all the costs of the case, even if every word it printed was true. No good deed will go unpunished”.

6. The sixth article was a news article which claimed that a newspaper that “had failed to join an approved regulator would be liable to pay legal costs for libel and privacy cases, even if it won the case. It would mean that newspapers could face paying out hundreds of thousands of pounds under [Section 40] if they did not join Impress”. The seventh item was a letter to the editor from the CEO of a US media trade association, which stated that a publisher “should not have to pay the costs of parties bringing frivolous claims in the courts…regardless of whether those claimants win or lose”. The eighth article was a leading article. It stated that Section 40 “would create the presumption that newspapers that do not join Impress would pay both sides’ costs in any libel action, whoever wins. It would, in effect, force papers to pay to print the truth, whenever the truth proved unpalatable to anyone prepared to sue”. The ninth article was a news article, which stated that a newspaper “would probably have to pay the legal costs for both sides of privacy and libel cases even if they won”.

7. The complainant said that the newspaper had repeatedly misrepresented the effects of Section 40. He accepted that Section 40 required that a court must award costs against a newspaper which is not a member of an approved press regulator. However, he said that under the statute, this was subject to two exceptions. Firstly, the rule does not apply unless the claim in question could have been resolved using the arbitration scheme of the approved regulator. Secondly, the rule does not apply if the court thinks it is “just and equitable in all the circumstances” for it not to apply.

8. The complainant said that the effect of these exceptions was that the only circumstances where a court would award costs to the claimant in a case where the newspaper had successfully defended the claim would be where the claim was genuine and made in good faith, and where the court took the view it was not unjust or inequitable for this to happen. The complainant said it was misleading to claim that under Section 40, courts would award costs in favour of all claimants, or claimants where their claims were not made in good faith or genuine. He said that the award of costs is always at the discretion of the courts, and that Section 40 does not create a presumption, but simply weights this discretion.

9. The newspaper said that Section 40 has not been commenced, and that all commentary on its effects was grounded in interpretation. It said that the newspaper’s view was that Section 40 creates a presumption that costs be awarded against a newspaper which is not a member of a recognised regulator. It noted that the requirement that costs “must” be awarded against a newspaper, “unless” a court was satisfied that one of the exceptions applied. The newspaper said that the effect of the two exceptions was unclear. In relation to the first exception, it said that whether a particular claim could have been resolved using the arbitration scheme of an approved regulator would be uncertain, and any such arguments would be mired in legal debate. In relation to the second exception, it said that the effect of this was simply to require that judges do not act unjustly, which lacked legal certainty. It said that newspapers had no assurance that Section 40 would be interpreted in their favour, and noted that the purpose of Section 40 was to penalise publishers who chose not to join a recognised regulator. The newspaper said that the view that Section 40 would mean that costs would be awarded against a newspaper even if they won a case, as expressed by its writers, brought home the vice of the provision.

10. The newspaper said that as one of the many newspapers to have lost libel cases, only for it to be subsequently shown that the claimant had lied, it lacked any confidence that the two exceptions to the general rule created by Section 40 would have the effect claimed by the complainant; that costs would not be awarded against newspapers who successfully defended vexatious claims. The newspaper said that in any event, the vast majority of claims against newspapers, which they might successfully defend, are both made in good faith and might qualify for arbitration under the scheme of an approved regulator, such that a newspaper would not benefit from the two exceptions. In these cases, Section 40 would require a newspaper who successfully defended the claim to pay the costs of the defendant. It noted that this was the interpretation of Section 40 adopted by Hacked Off, who had said that “newspapers which choose not to join an approved regulator – and so do not provide access to justice through an approved low cost arbitration scheme – must pay the costs of litigants who bring arguable and honest cases against them”.

Relevant Code provisions

11. Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee

12. Critical to the Committee’s consideration of this complaint was the fact that at the time of publication, Section 40 had not been commenced. The newspaper and complainant were offering their interpretation of a legislative provision and how it might, in practice, be applied. The Committee gave weight to the fact that the articles were published in the context of debate and advocacy in relation to the implementation of Section 40. It noted the newspaper’s argument that the provision’s requirement that courts “must” award costs against a newspaper, “unless” the court was satisfied that two exemptions applied, created a presumption that costs should be awarded against a newspaper. The Committee also gave weight to the fact that the purpose of the provision was to incentivise publications to join a recognised regulator by the imposition of an unfavourable costs rule to those who chose not to, contrary to the current position where costs are awarded according to the outcome of the case. Nevertheless, the newspaper was under an obligation to take care not to publish inaccurate or misleading information under the Code, and the Committee examined whether the newspaper had fulfilled this obligation in relation to each of the articles under complaint.

13. The first article stated that under Section 40, newspapers would be “compelled to pay the costs of claimants even if their claim fails”, but did not refer to the two exceptions to the rule contained in the provision. The article was clearly presented as a comment piece. It introduced its claim about the effect of Section 40 with the words “in a nutshell”, making clear it was providing a summary of the effects of the provision.  For these reasons, the Committee considered that the article’s characterisation of the effects of Section 40 was not significantly misleading, and there was no breach of Clause 1.

14. The second article contained a statement about the effect of Section 40, in the context of a news article reporting that the author of the first article had expressed concern about the implementation of the provision. The article’s claim was not an inaccurate statement of the presumption Section 40 would create in relation to costs. To omit reference to there being exceptions to this presumption was not significantly misleading in the context of the article, which did not present itself as providing anything more than a summary of the authors’ position on the effects of the provision. There was no breach of Clause 1.

15. The third article, a letter to the editor, made clear it was making a claim about how costs “could” be awarded in cases where newspaper’s successfully defended claims. This statement was not inaccurate statement about how costs could be awarded under the terms of Section 40; this claim was not misleading because the letter did not also refer to the two exceptions in the provision, and there was no breach of Clause 1.

16. The fourth article referred to the costs rule created by Section 40 as applying to “any claim”, without referring to there being exceptions to this rule. It also predicted that claimants would have the “sure and certain knowledge” that they would be awarded costs. Although this might be considered overly optimistic, within the context of the article read as a whole, it was no more than a prediction, one among a number of predictions about the effect of Section 40 made in a comment piece. In response to the complaint, the newspaper provided a reasonable basis for these predictions. The article was not misleading in the manner alleged, and there was no breach of Clause 1.

17. The fifth article claimed that if Section 40 was implemented, there would be “penalties” for newspapers who did not join IMPRESS. In that context it claimed that under Section 40, costs would be awarded against a newspaper “in any case where a newspaper was sued for libel…even if every word it printed was true”. The article was a comment piece, which clearly advocated against implementation of Section 40. It provided a summary of the effect of Section 40, to explain the nature of the “penalty” it created for newspapers which were not members of IMPRESS. The newspaper provided a reasonable basis for this prediction about the effect of Section 40, and the article was not misleading in the manner alleged.

18. The sixth article, which reported criticisms of IMPRESS, stated that Section 40 would have the effect that a newspaper which had not joined a recognised regulator, “would be liable to pay legal costs for libel and privacy cases even if they won the case”. It then claimed that such newspapers “could face paying out hundreds of thousands of pounds”. As with the second article, this was presented as a summary of the effect of Section 40 in the context of a news article. For the article to omit reference to these exceptions to the rule on costs was not significantly misleading in the context of the article, and there was no breach of Clause 1 on this point.

19. The seventh article was a letter to the editor, which objected to Section 40 being implemented on the basis that publishers should not have to pay the costs of parties bringing “frivolous claims….regardless of whether those claimants win or lose”. It was not misleading to publish this claim about the effect of Section 40, which was clearly presented as the opinion of the letter writer, for which the newspaper provided a reasonable basis in response to the complaint. This aspect of the complaint did not represent a breach of the Code.

20. The eighth article was a leading article, and therefore was distinguished as the editorial view of the newspaper. It claimed that Section 40 would create a presumption that newspapers that do not join IMPRESS would “pay both sides’ costs in any libel action, whoever wins”.  It then stated that the effect of this presumption would be to “force papers to pay to print the truth, whenever the truth proved unpalatable to anyone prepared to sue”. In this article, the general rule on the award of costs contained in Section 40 was referred to as a “presumption”, indicating that there might be cases in which it would not be followed.  The article was not misleading in the manner alleged, and there was no breach of Clause 1.

21. The ninth article referred to newspapers “probably” having costs awarded against them, even if they won, as part of an explanation as to the effect of Section 40. The word “probably” indicated that the presumption Section 40 would create in relation to costs was not absolute. It was not misleading for the article to summarise the effect of Section 40 in this way, without making specific reference to the nature of the exceptions. This aspect of the complaint did not raise a breach of Clause 1.

Conclusions

22. The complaint was not upheld.

Remedial Action Required

23. N/A

Date complaint received: 12/01/2017
Date decision issued: 13/04/2017

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