As an anarchist I hate to see the state involved in anything between private individuals and organisations. Right up to, especially even, in the resolution of disputes. The more disputes that can be resolved through private, mutually agreed, non-state arbitration the better. And the Leveson report (“An Inquiry Into The Culture, Practices and Ethics of the Press”, 29/11/2012) potentially provides an opportunity.
Briefly, the Leveson Inquiry was established in a period of outrage at the behaviour of the News Of The World in regard to the coverage of a very public incident in which a girl was abducted and murdered and a revelation that they had engaged in hacking into the girl’s phone while she was missing to get her messages. Anyway, it grew through mission creep quite substantially but the main thing people have been waiting for is to hear how Leveson proposes to regulate, or otherwise, the press in the future to help try and avoid such practices. And today was the big day. From what I have read (skimmed the executive summary relevant sections) he suggests having a body independent of the press and of government that would be voluntary for a title to join, would have, particularly, arbitral functions to settle disputes between publishers and their victims. The incentive to join would be that the private arbitral services would be much less costly than taking a libel case through the High Court and that titles who did not use such services (he suggests there could be more than one, though doesn’t appear to like the idea) may be penalised if and when their cases did end up in the state-managed legal system.
So far so good. However, he says that to get such a thing going will require legislation, and some are interpreting that as meaning that the “independent body” and the sort of things its terms of reference would have to cover, would thus be “regulated” and that this is the start of a slippery slope that could open a gateway for more intrusive state interference with the press. This is a position with which I agree. But, I’d still like to see some kind of self-regulation amongst the press, given that they benefit from huge (if dwindling) positions of privilege and access to power. Something that makes getting justice for people they wrong (even if I don’t accept libel and defamation as things that should be actionable, I know lots of people do so accept it for now) more cheaply and swiftly and with the benefit of not involving the state would be welcome.
As I say, I think the idea that this is the thin edge of a heavy wedge is sound. After all, if you’re going to tell the state-run libel courts that they can change the rules of engagement if one of the parties to an action is a newspaper that could have used the voluntary, cheap and efficient Press Arbitral and Mediation Service Ltd, chose not to do so, you’re going to have to define in legislation what PAaMS Ltd and its competitors in the new cheap media mediation services industry looks like and how to weigh the quality of their adjudications and in what sort of cases they can penalise one of the parties in costs awards and so on. That leaves open the likelihood that the actual definition of what a good press regulatory body should look like and do will be handled in secondary legislation, easily changed with less scrutiny and so on.
So the anarchist challenge is to devise such an arbitration regime or institution that would have incentives for people to use their services without needing any legislation (or at least not “positive” legislation that defines things that are then open to legislators’ abuse) and at the same time decrease the level of state involvement in inter-personal disputes. And I think I have it. Moreover I think it could be done right now as part of, or rather a substantial amendment to, the Defamation Bill.
Here’s the legislation then, because it’s really simple, I’ll get it out of the way. You simply add to the Defamation Bill that nothing covered by the act will be heard in a state-run court of law unless it has been through private independent arbitration first and that if you do end up in a state-run court on such an issue the party that made it come to the state-run court could be severely financially penalised in awards of costs if it was found unreasonable. You could add that if the first application to the state-run court was simply because no arbitral service could be mutually agreed upon, the only thing the state-run court will entertain is a motion to impose an arbitral service to hear the substantive case.
And there then lies the opportunity for private law entrepreneurs to come up with cost-effective, efficient, well regarded, arbitral services that combine the right incentives for newspaper titles to want to patronise (as well as other possible defendant groups – The Bloggers Libel Defence League Ltd, Stupid Twits United Ltd, Private Eye Prosecutions Pty, The Learned Journals Defenders Co-op – and so on). After all, if you’re going to grant the press the right to private arbitration why not the rest of us who may find ourselves accused of libel and want swift and cost effective judgement too?
Now I realise that not all complaints against the press are about defamation or libel, and I realise that Leveson and many others actually want something more than simply a dispute resolution service, more like a body that agrees a code of conduct for its members and means of monitoring and if necessary taking action on abuses of that code. But actually that’s the sort of thing that private law entrepreneurs would do. One of the ways in which you keep litigation costs down is to avoid litigation in the first place. One of the ways to do that is to have agreed robust expectations of the users of your service. One of the ways to have clear, well understood adjudications is to have clear, well understood rules of behaviour that make breaches clear and actionable. And one of the ways you get closest to consensus is to have a free market in which arbitral firms compete for the most custom by offering the best quality at the lowest cost.
And when it’s shown to work well for defamation cases and for other disputes involving the press, then you simply extend it slowly to all sorts of other civil actions. And before you know it, we’re living in a Private Law Society!
Oh, and how has the market, as opposed to regulation, fared so far? Well, the News of the World was shut down a few days after the revelation of the phone hacking. A swift campaign got advertisers to pull their budgets, readers boycotting and all sorts. Seems there at least to have been pretty swift judgment.