With the debate on the future of press regulation apparently descending into a state of some disarray, it may be time for reflection on what can and needs to be achieved following Lord Justice Leveson's somewhat damning criticisms. However, while the criminal law has still to take its course, a number of core issues appear to have fallen by the wayside. These issues, in my opinion, are central to the problems that have been the subject of so much debate in recent months.
As a practicing lawyer frequently representing a cross-section of victims ranging from A-listers to politicians, while at the same time also having a significant number of journalists and publishers on my client list, I often have to change hats when arguing for press freedom on the one hand, and striving to protect the basic reputational and other rights of the ordinary man on the street on the other. Neither of these roles or objectives represent straightforward legal challenges, and often a compromise has to be reached in accommodating the rights of the individual while recognising the need for a free press.
However, in controlling the platform for free speech the press do have the upper hand, and with it comes a heavy responsibility to ensure fair and accurate reporting. This is all the more important in the current era of immediate, international dissemination on the internet. Once the defamation or privacy horse has bolted, it is usually too late for any effective remedy for the victim, whether that be in the form of monetary compensation or a carefully worded apology. The damage has been done, and it is often left hanging for many months, or indeed years, until redress can be obtained through the Courts. Hardly a satisfactory state of affairs.
I can find no provisions under the proposed Royal Charter (https://www.gov.uk/government/publications/leveson-report-draft-royal-charter-for-proposed-body-to-recognise-press-industry-self-regulator) or in the counter proposals coming from various sections of the press, for dealing with prevention of the publication of a defamatory allegation or breach of privacy prior to the newspaper going to print. Often a victim is given only a few hours notice of an intention to publish allegations of the most serious nature, and which can travel from London to Los Angeles within seconds of the article appearing online. As a result, any attempt to correct or apologise comes too little and too late, and can never effectively undo all the damage that has been caused worldwide. The X Factor judge, Louis Walsh, found this out to his cost, and also that no amount of money (he ultimately received €500,000 in damages and a fulsome apology from The Sun) could possibly remedy all the damage and distress caused to him (http://www.dailymail.co.uk/news/article-2239748/X-Factor-judge-Louis-Walsh-settles-400k-defamation-action-The-Sun-Ireland.html) .
Perhaps what is required is an arbitrator having the power to suspend an article, if only for a short period of say forty-eight hours, to afford the victim the opportunity to produce evidence to prove the falsity of the allegations. If he or she can do so, then the article would be suspended permanently, and if the complainant cannot then he or she would be liable for a financial penalty for inconveniencing the paper and delaying publication. Wishful thinking perhaps, but in reality this is the only practical step that would afford the individual some degree of protection, while at the same time the newspaper would avoid potential exposure to a large legal costs bill in the event of a successful libel action.
Such a proposal should not be an obstacle to genuine investigative journalism, but could provide an effective mechanism which should operate in the interests of all parties concerned.