Crime and Courts Bill [Lords]

No, because there is no statute that says, “We are setting up a system and we are passing a law to make all the newspapers be in it.” The newspapers have a choice as to whether or not the enter the system. However, the point is that we are incentivising them to enter it and disincentivising them from staying outside. They could make a judgment that they want to stay outside. They could decide that they do not want to go to arbitration and that they will take their chances with the court. They might decide that they will be so careful that they will never commit a media tort, and even if they did, that they would never get anywhere near the “outrageous” behaviour that would justify exemplary damages and so would not need to worry about that. I hope that they will not take the view. I hope they will think that, even if they are not behaving outrageously, they would want to shelter themselves from the prospect of exemplary damages. I hope that they will go into the system willingly. Exemplary damages will still be available to the courts to award against people who are in the regulator, but it is more or less a presumption that those people will not be in it. That is a major disincentive.