2000px-Carrot_and_stick_motivation.svgIn his recommendations for press regulation, Lord Leveson emphasized that “the best option would be for all publishers to choose to sign up to a satisfactory self-regulatory regime and, in order to persuade them to do so, convincing incentives are required.”[1]

The discussion about these “convincing incentives” has focused primarily on the exposure to exemplary damages for those who decline to join. Lord Leveson may not have predicted that the key strategy used to incentivize joining up would be to disincentivize staying out. Can that strategy produce a regime publishers will accept?

As Guardian editor Alan Rusbridger describes, an effective system with effective incentives needs “more carrot” and “less stick.” Perhaps this slight shift in focus can produce a regime of self-regulation that publishers big and small can support.

The Stick – Exposure to Exemplary Damages:

It has been made quite clear that many prominent publishers are opposed to exposure to exemplary damages. Hugh Tomlinson QC recently challenged the prevailing view that exemplary damages act as a sort of “fine” to those that refuse to join the regime. Exemplary damages, he explains, “would only be surmounted in very rare cases” involving “outrageous wrongdoing.”

Tomlinson also demonstrates that exemplary damages would probably not run afoul of Article 10 of the European Convention on Human Rights, given that they do not operate as a prior restraint on speech or involve criminal penalties. Therefore, according to Tomlinson, exemplary damages are “no threat whatever to public interest journalism.”

Yet, this brings us back to the issue of creating “convincing incentives” for joining up. Publishers that do not see exemplary damages as a realistic threat may not join if given only a (“very slight qualified”) immunity from an unlikely harm. Less savvy public interest journalists that (mis?)perceive exemplary damages as a real threat might sign up not because they want to, but because they are too scared to do otherwise.

The Carrots:

What has been lost in this discussion is Leveson’s recommendation that an “arbitration service”[2] be created and tweaked to provide participants with some positive incentives – some ‘carrots,’ so to speak. Looking to press laws elsewhere might inspire some ideas for a few.

  Carrot #1:  Giving Publishers an “Exhaustion of Administrative Remedies” Defense

One possibility would be to give subscribers to the regime a defense to strike a lawsuit filed in court if the grievance has not yet been addressed using the arbitration service.

Publisher defendants would want this ‘carrot’ because it would reduce the costs of expensive litigation and lengthy disclosure processes used in traditional courts. This carrot also benefits complainants because it encourages them to utilize a faster arbitration process with its quicker remedies.

‚  Carrot #2:  Bringing in the Bloggers

Features could be added to the arbitration system to incentivize smaller web-based publishers to join. For example, the same arbitration system could be used by blogger journalists to address cease and desist or takedown demands. Some experts say illegitimate demands have been used by content owners to intimidate recipients who fear a full-fledged lawsuit.

ƒ  Carrot #3:  Adopting Anti-SLAPP Motions

The new press regime could also make subscribers eligible for an “anti-SLAPP” defense. In some American states, anti-SLAPP defenses are available to prevent “Strategic Lawsuits Against Public Participation” – i.e., frivolous lawsuits intended to induce a settlement by frustrating defendants with legal fees.

With a typical anti-SLAPP motion to strike, a defendant must first show that the complaint relates to activities protected by the fundamental right to free speech (i.e., The First Amendment). At that point, the case is stayed and discovery (disclosure) is put on hold, thereby reducing legal costs.

During that hold, the burden shifts to the complainant to present evidence demonstrating a reasonable probability of success.[3] If she can, the case proceeds. If not, the claim fails.

Publisher defendants would want this ‘carrot’ because it provides another mechanism for filtering out frivolous lawsuits. It might be crucial that this ‘carrot’ apply in both courts and arbitration. One sticking point with current proposals is that the arbitration system would be free for complainants. There is concern that “ambulance-chasing lawyers” might misuse the system to add to the costs against publishers. An anti-SLAPP sort of motion might then save costs both in traditional court cases as well as internal arbitrations by weeding out unsubstantiated complaints.

These ‘carrots’ are just a few suggestions and may not operate perfectly in a self-regulatory system. At the very least, they can contribute to an important goal: We want publishers to want to participate in a system that works. To achieve that, more energy may need to be directed toward creating positive incentives. More carrots, less stick.

Follow Paul Moura on Twitter @paulmoura

[1] The Report into the Culture, Practices and Ethics of the Press: Executive Summary ¶ 65.

[2] The Report into the Culture, Practices and Ethics of the Press: Executive Summary ¶¶ 66-67.