Data Protection Bill [HL]

Further written evidence submitt e d by Associated Newspapers (DPB53)

Dear Committee Members

I am writing in response to the evidence provided to the Committee by the Press Recognition Panel.

This evidence contains many statements with which news publishers not members of Impress - that is, all national and regional newspapers and websites and virtually local publishers - would disagree. It also demonstrates that far from being independent the PRP is an evangelising organisation, lobbying for a system of regulation that gives the state ultimate control.

More particularly the Committee may wish to take a closer look at the claims the PRP makes about the Royal Charter requirement that an approved regulator should offer an arbitration service.

The PRP say:

23. Under the Charter, it is mandatory for an approved regulator to provide access to arbitration for anyone who has a proper claim to bring. Without that fundamental mandatory protection, no arbitration system delivers this bedrock of the Leveson proposals. It follows that, to meet those requirements, it must not be possible for publishers or regulators to choose which cases they allow through to arbitration.

24. Only IMPRESS currently offers an arbitration scheme that meets the Charter’s standards. Other regulators could be established (or adapt themselves) to meet those requirements. But no others do so at present.

In fact, while it is true the Royal Charter requires a recognised regulator to offer an arbitration service, it does not specify whether it should be mandatory for all publishers to be members of such a service, nor whether it should be compulsory for publishers who are members to use it whenever requested by a claimant.

Indeed the inclusion of references to the Arbitration Acts is a pointer to the fact that legally arbitration cannot be compulsory. Under the Acts there has to be agreement between the parties to any arbitration. This is what the Royal Charter says:

The Board should provide an arbitral process for civil legal claims against subscribers which:

a) complies with the Arbitration Act 1996 or the Arbitration (Scotland) Act 2010 (as appropriate);

b) provides suitable powers for the arbitrator to ensure the process operates fairly and quickly, and on an inquisitorial basis (so far as possible);

c) contains transparent arrangements for claims to be struck out, for legitimate reasons (including on frivolous or vexatious grounds);

d) directs appropriate pre-publication matters to the courts;

e) operates under the principle that arbitration should be free for complainants to use;

f) ensures that the parties should each bear their own costs or expenses, subject to a successful complainant’s costs or expenses being recoverable (having regard to section 602 of the 1996 Act or Rule 63 of the  Scottish Arbitration Rules) and any applicable caps on recoverable costs or expenses); and

g) overall, is inexpensive for all parties.

 

At no point does the Royal Charter say that publishers who are members of a recognised regulator should be obliged to be a member of its arbitration service or, if they are a member, to allow all claims to go to arbitration. Similarly, while Leveson clearly recommended that a regulator should offer an arbitration service, he did not specify that it should be compulsory. This is what he said:

 

22. The Board should provide an arbitral process in relation to civil legal claims against subscribers, drawing on independent legal experts of high reputation and ability on a cost-only basis to the subscribing member. The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious). The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary. The process must have a system to allow frivolous or vexatious claims to be struck out at an early stage.

  

This may be why the extent to which Impress’s arbitration scheme is compulsory is not completely clear. The scheme’s rules seem straightforward:

‘Under the terms of the IMPRESS Regulatory Scheme, where IMPRESS has determined that such a dispute is suitable for arbitration under the IMPRESS/CIArb scheme, the publisher is required to participate in the arbitration.

However the guidance that accompanies the rules requires that the publisher agrees to a case going to arbitration. Describing the arbitration process, it says:

 

The claimant and the publisher must then apply, jointly, to CIArb, through IMPRESS, for the appointment of an Arbitrator to determine the dispute. This is done by completing an application form (Form ARB1), in which they both confirm their agreement to arbitrate under the Scheme, and in accordance with the Scheme’s Rules and the Arbitration Act 1996 (or the Arbitration (Scotland) Act 2010, if applicable).

 

The fact that the publisher has to confirm agreement seems to indicate they are free to not confirm it, as would be the case under the Arbitration Acts.

If that is the case there is no difference between the Impress arbitration scheme and that operated by IPSO (which is voluntary), and the IPSO scheme would also meet the Royal Charter requirement.

The PRP maintain they ‘can neither under-enforce nor gold plate the [recognition] criteria’. We would argue that this is a 24 carat case of gold-plating.

The PRP’s claim that it is ‘a uniquely-independent body… entirely independent, including of politicians, the press and other interests’ also deserves closer scrutiny.

The PRP’s submission goes on to say:

18. The PRP is aware of press reports regarding IMPRESS’ funding. Nothing we have seen there, or in other communications directly to us on that and other issues, suggests that the Charter threshold for an "ad hoc review" of our decision about IMPRESS has been reached. In particular, we have seen nothing to suggest any compromise on the independence of its funding.

19. Later this year, in the "cyclical review" of IMPRESS which the Charter requires, we will transparently and openly review all aspects of IMPRESS’ continuing compliance with all 29 Charter requirements.

So, although it has already decided that there is no need to examine one of the major objections to Impress’s claim to be an independent regulator – its almost total dependence on £3.8million funding from Max Mosley, via his family trust – it will nevertheless carry out a ‘cyclical review’ later this year.

The reason for this is that the PRP’s initial funding from the Government ended in November 2017. It is now dependent for funding on carrying out cyclical reviews, for which it will charge Impress the maximum permissible - £220,000.

As virtually all Impress’s funding comes ultimately from Max Mosley, the PRP will also become almost entirely dependent on his money. Committee members may think this is indeed a ‘unique’ form of independence.

Peter Wright

Editor Emeritus

Associated Newspapers

March 2018

 

Prepared 22nd March 2018