Not impressed: Why Section 40 must go to protect press freedom

The UK faces one of the biggest threats to its democracy right now. It’s time to fight Section 40

Whatever else you are doing at the moment, stop. This is one of the most – if not the most – pressing issue facing us right now, and if we don’t deal with it immediately, it might be too late.

How important? So vital that on December 15, 1791, the Founding Fathers made it part of the First Amendment to the United States Constitution. Not the Second Amendment, Third, Fourth or Fifth, but the First. It even outranks that US holy of holies, the right to bear arms, which had to make do with the Second Amendment.

What I am referring to here is the freedom of the press. And in the UK it is under imminent and dire gaggedthreat.

Section 40, as it is referred to, came in as a result of the Leveson Inquiry into press activity and is part of the Crime and Courts Act 2013 that deals with the award of costs in cases where individuals sue publishers for libel, harassment or other complaints linked to news-related material. In short, it orders courts to award costs against publishers, whether or not the claim succeeds, if the publisher has not signed up to be ruled by a Government-approved press regulator.

So, win or lose, every Tom, Dick or Harry with a grievance, however, unjustifiable, will be able to go to court knowing that they will have nothing to pay, because the bill for whatever costs they rack up in the process will be presented to the newspaper, magazine or website in question.

No publisher can afford to continue in business with such a Sword of Damocles hanging over them.

Where some of the problems lie

The Act became law in 2013, but Section 40 cannot be enforced until there is an approved regulator for the media to sign up to. Soon there will be – which is why the threat is imminent – so why doesn’t everyone just sign up and avoid the issue?

The problem is twofold. First, the introduction of a Government-approved regulator to which publishers must, in effect, sign up to by law also effectively gives the Government direct control over the media. Why is this a bad thing? Well if you consider that recent precedents for doing this are in Zimbabwe under Robert Mugabe and in Turkey under Reccep Tayyip Erdogan, you will begin to get the picture. On January 3, Rachael Jolley, editor of the Index on Censorship magazine, expressed her great fears of this development in the Daily Telegraph.

“There should be a clear distance between any government and the journalists who report on it,” she wrote.

Secondly, the approved regulator in question is IMPRESS, the body set up by Max Mosley, the hugely wealthy former racing driver who has gone after the press, bankrolling the campaign in the process, ever since the News of the World exposed details of an orgy in which he took part in 2008. IMPRESS fields a board of wide-ranging talents, expresses its commitment to press freedom and bills itself as “the first truly independent press regulator in the UK”.

It may be all of these things, but so far no national newspaper has signed up to its rules. Why so little confidence in IMPRESS? Go to their website and click through to IMPRESS Code Consultation for the first clue. This is what it says: “The IMPRESS Code Committee is in the process of drafting a new Standards Code for the press. IMPRESS ran a six week public consultation until 29th September 2016. IMPRESS received over 40 submissions. The Code Committee is considering the draft Code in light of these submissions.”

So, if I understand this correctly, the press must sign up to be ruled by an organisation that has not yet published its binding code of conduct. In other words, they would have no idea what they were signing up to.

Now check what it says under Our Regulatory Scheme on the website: “We have the power to direct the publisher to make a correction or an apology. We also have the power to award financial sanctions (fines) when a publisher has committed serious or systemic breaches of the Code or our governance requirements. We can award sanctions up to 1% of that publication’s turnover, to a maximum of £1m.

“If you believe that you have suffered real harm and you wish to pursue a legal claim for defamation, breach of privacy or harassment against a publisher regulated by IMPRESS, you may ask us to arrange arbitration for you.”

IMPRESS offers no clarity as it adopts sweeping powers

As I read this, then, an organisation that has not yet set out its code of conduct, expects publishers to sign up to that binding code and subject themselves to the whim of anyone who feels that they might have been harassed, without defining what that might be, whilst setting out the powers of enforcement. Don’t forget, the £1m fine would be in addition to the costs, however unjustifiable awarding them against a publisher might be.

Quite frankly, whatever other objections might arise, the lack of clarity across the board here is reason enough to dismiss this scheme out of hand, especially in light of the powers it adopts and the level of potential sanctions.

Section 40 itself is just as woolly. Paragraph 3 (a), for instance, orders that costs must be awarded against the defendant (the press) unless the court is satisfied that (a) “the issues raised by the claim could not have been resolved by using an arbitration scheme…” or (b) “it is just and equitable in all circumstances of the case to make a different award of costs or make no award of costs”.

Sub para (a) is a non starter, because any vexatious claimant would have no incentive to abide by any arbitration, safe in the knowledge that in pursuing an action in court it would be the defendant shouldering their costs regardless of the outcome.

Sub para (b) is so wide and undefined as to be meaningless as reassurance to any publisher hoping to stave off a vexatious claimant’s costs. Quite simply, none would take the risk of publishing in the first place under such circumstances.

The result of all of this? A hamstrung press, which either comes to the heel of those who want to muzzle it, or faces closure because it simply could not afford to continue under such threats and strictures.

Don’t forget, in all of this, that a great deal of other legislation regulates the press already, from the Contempt of Court Act to existing libel laws. When journalists were caught out hacking phones, they went to jail, including Andy Coulson, David Cameron’s former communications director. The law does work already. They won’t be doing that again.

Fighting Section 40 is about defending democratic freedoms

It is vital to understand that freedom of the press is not about protecting dodgy reporters intent on smearing the latest sex scandal across the Sunday tabloids; it is about protecting the very democratic freedoms that you and I have taken for granted as our right for centuries. The Fourth Estate’s most important role is in holding parliament to account and, beyond parliament, in acting as a democratic check and balance that makes the rich, powerful and unscrupulous think twice before acting against the common interest. The press does this by retaining the power to expose wrongdoing and the wrongdoer without fear or favour. Section 40 will remove that check and balance, while introducing fear and favour, and will close the essential democratic divide between the press and Government. It is not in my interests for this to happen, nor is it in yours.

How many times when scandal or tragedy breaks in public life have we heard the words: We must do everything we can to ensure that this never happens again?

MPs expenses; the current football sex abuse scandal; cash-for-questions and many other outrages would never have come to light if Section 40 had applied at the time.

Allow it to proceed and the chances are such horrors will not only happen again, but will continue to do so on a more frequent basis. The real scandal is that, under such circumstances, we, the public, would never get to hear about it. And so the malefactors would know they could act unfettered by the risk of public scrutiny.

As Rachael Jolley says: “If such laws were introduced in another country, British politicians would be speaking out against such shocking media censorship. There’s no doubt that authoritarian powers will use this example to bolster their own cases in imposing media regulation.”

There are peoples across the world fighting for such freedoms, and we are about to give it all up, and oh so casually.

Culture Secretary Karen Bradley needs to remember her responsibility not just to the British public in this, but also to other democracies across the globe; it’s more than a timely reminder for her as one looks out across the West now.

Hacked Off and those supporting Mosley’s stance are extremely well funded and have been making very loud representations to the Government in favour of enforcing Section 40.

You can do your bit to counter this by letting the Government know what you think.

Write to presspolicy@culture.gov.uk NOW, giving your name and address and declaring that you are one of the following:

  • A member of the public
  • A lawyer
  • An academic

and that you want your views to be considered in the public consultation exercise on this matter. Tell them the following:

  1. The Government should repeal all of Section 40 of the Crime and Courts Act now.
  2. That you believe Section 40’s implementation would seriously damage the press’s ability to hold power to account.
  3. That you do not believe Section 40 will incentivise publishers to join IMPRESS.
  4. That you believe there is no need for further investigation following the completion of Leveson One and the criminal investigations.
  5. That Leveson Two should be terminated.

Alternatively, you can write a letter containing all of the above and send it to: Press Policy, DCMS, 4th Floor, 100 Parliament Street, London SW1A 2BQ.

We haven’t got long to put a stop to this potential disaster. ACT NOW.

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