Whatever happened to the writ?

By Jason Nisse

Earlier this week I was asked by lawyers Addleshaw Goddard to contribute to an excellent seminar they were holding entitled “Your rights and their wrongs – when to challenge the media’s news gathering methods”.  Partner David Engel and managing associate Abigail Healey gave an in depth legal perspective on the law, the various codes of practice (PCC, Ofcom, BBC), and I followed up with a few mumbled words about the practicalities of dealing with the media the essence of which was:

  • Competitive pressures are leading to less experienced journalists doing much more work under greater pressure;
  • Being sued as a journalist can be a feather in your cap but breaching a code of practice can be career suicide;
  • Global sites mean that even if you can get the media not to run something in the UK it will seep out elsewhere – the topless Duchess being a classic example.

However of more interest even than this seminar was a conversation I’ve had with not only the media litigation team at Addleshaw but also top media lawyers across London about the death of the libel writ.

When I was a journalist, the writ was a fairly standard tool to use against the media. If you wrote something someone didn’t like you tended to be sent a “letter before action” threatening you with a writ, which was often followed up by a writ itself. I’ve been sued by all sorts of people – Robert Maxwell, Conrad Black, Nicky Clarke (hairstylist to the stars).

What the legal eagles have been telling me is that writs are less fashionable these days because of the expense of taking the media to court – and the likelihood that you won’t recover all your costs even if you win – the length of time taken through the court system and the uncertainty of the result.

In addition, Ofcom, the BBC Trust and the much derided Press Complaints Commission have proven to be quite reliable forums for dealing with complaints. And in the currently febrile media world – where fear of what Lord Justice Leveson will say is stalking “Fleet Street” – being judged to have acted beyond acceptable behaviour is seen as a sanction the media fear.

Leveson will soon opine on how regulation of the media should evolve. It has been speculated that he favours statutory regulation because self-regulation has failed. Failure of self-regulation has been shown in many areas. But it is clear that the sanction of being judged by your peers is working on some areas of the media.

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