A crucial part of the draft Royal Charter is Clause 22, Schedule 3, on Arbitration services. Carl Gardner has previously written about the reasons that a lone blogger might want to be able to access these.
Draft Royal Charter, Clauses 22-23, Schedule 3 (my emphasis):
22. The Board should provide an arbitral process for civil legal claims against subscribers which:
a) complies with the Arbitration Act 1996 (“the Act”);
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, subject to a successful complainant’s costs being recoverable (having regard to section 601 of the Act and any applicable caps on recoverable costs);
and g) overall, is inexpensive for all parties.
23. The membership of a regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms, including making membership potentially available on different terms for different types of publisher.
Additionally, the Crime and Courts Bill discusses the effect on costs as a result of participation – or non-participation – in an arbitration scheme.
The discussion among small publishers has mainly been around the compulsory membership aspect of the new legislation proposals, and the penalties for not participating.
But there are also important questions around opting-in and joining the regulator, in order to access the free arbitration services: who should be able to and what type of media output would be included? At what stage of a complaint could a publisher join a regulator*?
And if a publisher can’t access these services, what are the other ADR options, and what would incentivise Claimants, as well as Defendants, to participate?
Further reading on ADR and arbitration:
- Index on Censorship / English PEN Alternative Libel Project
- Early Resolution arbitration
- Lawyers for Media Standards: ‘Serious concerns about Royal Charter arbitration scheme’
- Leveson: Inquisitorial Arbitration – Ned Beale and Cara Gillingham
- Carl Gardner: ‘Why press regulation should cover blogs’
- Carl Gardner: ‘Costs protection for regulated publishers in the Crime and Courts Bill: a small analgesic’
*Also see this post on the LSE Media Policy Project blog, where commenter (and mediator) Simon Carne suggested: “there is no reason why it couldn’t be applied (or, if necessary, extended) to permit some classes of members to join when the need for arbitration arises“.