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  1. Media Law
January 6, 2017updated 09 Jan 2017 10:49am

More than 5,000 Hacked Off supporters urge Government to enact Section 40 as consultation deadline looms

By Dominic Ponsford

More than 5,000 individuals have responded to the Government consultation calling for it enact Section 40 in full thus forcing UK publishers into a state-backed system of press regulation.

This is the number who have responded through the form on the website of campaign group Hacked Off.

Set against this there has been a mountain of opposition against enacting Section 40 of the Crime and Courts Act voiced by UK news publishers.

Section 40 states that news publishers who are not signed up to a press regulator which complies with Parliament’s Royal Charter on press regulation must pay both sides’ costs in libel and privacy actions that they win.

The law has been kept on ice by the Government since it was passed by Parliament in 2013. A Government consultation which asks whether it should finally enact Section 40, reform it or scrap it closes on Tuesday 10 January.

Nearly every national newspaper, and many regional ones, have printed editorials calling for the law to be scrapped and urging their readers to write in to the consultation.

Non-regulated titles such as The Guardian, Financial Times, Evening Standard and Private Eye also want Section 40 to be repealed.

Those opposing Section 40 include:

  • Every major UK newspaper publisher
  • The News Media Association (which represents most UK newspaper and magazine publishers)
  • The News Media Alliance (which represents more than 2,000 US publications)
  • The European Publishers Council
  • News Media Europe (which represents more than 2,000 publications)
  • The World Association of Newspapers and Newspaper Publishers (which represents 18,000 publications)
  • Index on Censorship
  • The Society of Editors
  • Chartered Institute of Journalists
  • Press Gazette.

Those backing its implementation include:

  • Hacked Off
  • Impress
  • Article 19 (provided “damages or costs do not amount to a disproportionate burden”)
  • The Campaign for Press and Broadcasting Freedom.

The National Union of Journalists has yet to finalise its position on Section 40.

If Section 40 is enacted, most UK news publishers (online and print) would be subject to it. Only members of Royal Charter-recognised regulator Impress would be immune.

The regulator which most UK newspapers and magazines belong to, IPSO, could change its constitution to comply with the Royal Charter, but this would require it to provide libel and privacy disputes arbitration which is free to claimants – a move which publishers fear could open them up to more payouts.

Under the arbitration scheme run by Royal Charter-recognised regulator, Impress, publishers must pay arbitration costs of up to £3,500 and can be forced to pay claimants’ legal fees of up to £3,000.

Many UK news publishers object on principle to being part of a state-backed press regulation scheme. Many also have concerns that Impress is almost entirely funded (albeit indirectly) by press reform campaigner Max Mosley.

Hacked Off’s view on enacting Section 40:

“The Government should keep the promise it made to the victims of press abuse, to the public and to Parliament.

“The Government should not cravenly seek to curry favour with the press industry lobby by betraying the victims of press abuse and reneging on its commitments.

“Nothing has changed since section 40 was enacted to change the need for it. Press standards remain low, the press remains largely unregulated, public confidence in newspapers and their pretend regulator IPSO is rock bottom.

“Section 40 commencement will guarantee access to affordable justice for claimants and should make the press industry join a recognised regulator to achieve the consequential costs benefits. The effective regulation that follows will serve the public interest by raising newspapers’ standards, improving trust in newspaper journalism, and providing remedy for complainants.”

Impress on enacting Section 40:

“Section 40 of the Crime and Courts Act 2013 forms an integral part of the post-Leveson framework for independent and effective self-regulation of the press. Section 40 is not a shock to the system – it is the system and needs to be commenced without delay. It creates benefits for joining a recognised regulator – which will give publishers new freedoms to pursue investigative journalism – and disbenefits for refusing to join. The fact that dominant publishers don’t like section 40 simply shows that it provides a meaningful incentive.  It is the only option on the table that will advance the cause of independent and effective press regulation and access to justice.”

The Society of Editors on why Section 40 should be scrapped:

“Under the cover of the Leveson Inquiry that examined wrongdoing by a small number of journalists, which has already been dealt with in the criminal and civil courts, the new rules would penalise papers even if they prove in court that they had printed the truth to inform the public about matters they are entitled to know.

“The legislation is part of scheme to force newspapers to join a regulator backed by a Royal Charter dreamed up by politicians at a late night meeting over beer and pizzas.

“This flies in the face of fundamental rights of the freedom of the press, freedom of expression, the public’s right to receive information, and the first principle of justice – that it should be fair.

“If the Section 40 orders are introduced, the constant threat of legal action would have a devastating effect on reporting. Newspapers outside a Royal Charter recognised regulator will be faced with the threat of legal action by those who wish to suppress stories that are in the public interest by relying on the presumption that newspapers will be forced to pay their legal costs regardless of whether they win or lose.”

The News Media Association:

“Under this system anyone will be able to bring a legal claim against a newspaper’s journalism which the newspaper will have to finance even if the claim is false and without merit. It will be a bonanza for the unscrupulous, a field day for opportunistic lawyers, and will lead to timid journalism and the risk of some newspaper titles being forced to close.

“Newspapers are told that they can avoid this if they join Impress, a Max Mosley funded organisation which has been approved by the government funded Press Recognition Panel. But newspapers will not do so because they are determined to preserve the freedom of the press. But also, because they believe that Impress should never have been recognised. It is made up of people whose published opinions make clear that they have a visceral hatred for many of our newspapers, and that they see regulation as a way of controlling free speech”

Press coverage against Section 40 (source News Media Association):

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