Section 40 is bad news for journalists and campaigners
In 2013, Section 40 was snuck into the Crime and Courts Act after just 13 hours of parliamentary debate on a controversial piece of legislation that would fundamentally change the relationship between the press and politicians.
For three hundred years, the press has been free from state interference – put simply, if you wanted to print news or opinion on paper you didn’t need to ask the government’s permission to do. All you needed to do was abide by the law of libel (and other laws) and Grub Street could get on with its work unimpeded.
Section 40 fundamentally shifts this relationship. It means for the first time in 300 years, newspapers, blogs and campaigning groups (that is anyone who published ‘news-related materials’) would need to sign up to a state-approved regulator. If you decide not to, the legislation means you would be financially punished.
The stick to force those affected to sign up was a big stick indeed: those who don’t join the state-backed regulator will be forced to pay all the costs in a libel case, even if what they published is entirely true and in the public interest.
You could expose the Panama Papers and have to pay the entire costs of any tax-dodger who decided to sue you.
Section 40 is flawed legislation that poses many legal, political and human rights problems including:
1. Section 40 chills free speech by making people who publish news, fear the financial clout of the rich and powerful who may wish to suppress information that is in the public interest;
2. Local and regional newspapers who have faced declining budgets in recent years, but who provide a vital check on the power of local authorities and national government will be financially ruined by the impact of this law;
3. It is unclear which organisations are caught by the law as the definition of ‘relevant publishers’ under Section 40 is vague. This means that campaigning organisations could be put off publishing important news on human rights, financial corruption and environmental destruction simply because it is unclear whether they are covered by the law;
4. Even if campaigning organisations were to sign up to the only state-backed regulator MPRESS, they would be bound by an arbitration system that is expensive and not designed for not-for-profit news publishing.
For instance, the cost of arbitrating a single claim could be £3,500 if it wins at arbitration plus £3,000 and reasonable £300 per hour lawyers if it doesn’t. These NGOs would be punished by Section 40 even though they were never intended to be covered by this legislation.
5. There are unanswered questions (and pending legal challenges) about the independence of the only state-backed regulator, IMPRESS which is funded through a trust network, ultimately leading to a single rich individual Max Mosley.
In the last two years, 89up has been working with the newspaper industry and publishers to understand what the impact of Section 40 would be on smaller publishers, campaign groups and the press.
For all the rhetoric of proponents of Section 40, there are two questions that we believe need exploring; do you think this legislation sets a dangerous international precedent, do you think this legislation is compatible with the European Convention on Human Rights?
How does this affect blogs?
Blogs like Left Foot Forward would be caught up by this legislation because it has an editor, multiple authors and publishes news-related materials. If Left Foot Forward decides not to join the state-backed regulator it could be bankrupted by a single vexatious claim against it (LFF would have to pay the entire costs of the case which could be many hundreds of thousands of pounds).
Arguably worse, is if LFF decided to join the regulator. Any enemy of the website (angry UKIP MEPs) could make complaints against the website for any critique that LFF published about them.
For any case the regulator takes forward, LFF would pay an arbitration fee of up to £3,500, plus any legal costs that may accrue. Not many cases would need to be taken forward for LFF to feel the pain.
Some campaigners are presenting Section 40 as an opportunity to rein in the parts of the media they don’t like. But this is to imagine that the only people who would ever take action against in courts are genuine victims with legitimate grievances.
In truth, the libel courts are often used by greedy bosses, oligarchs and crooks to scare newspapers, blogs and campaigners from uncovering their misdeeds. Section 40 would embolden such people to take even more actions against already straitened publications, safe in the knowledge it wouldn’t cost them a penny.
Luckily, the Department of Culture, Media and Sport is consulting on Section 40. We believe it should be repealed in order to protect free speech for campaign groups and publications like LFF.
Mike Harris is CEO of 89up, whose Section 40 campaign is supported by the News Media Association
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