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  1. Media Law
January 3, 2017

Sunday Times says it never would have published Lance Armstrong investigation under Section 40 as media ramps up campaign

By Dominic Ponsford

The Sunday Times has warned that its historic exposure of drugs cheat cyclist Lance Armstrong would never have happened had Section 40 of the Crime and Courts Act been enacted.

It has published a form urging readers to respond to a Government consultation and urging them to back the scrapping of both Section 40 and part two of the Leveson Inquiry.

The consultation closes on 10 January and also asks whether Leveson part two, looking at phone-hacking and journalists’ relations with the police.

Section 40 was passed by Parliament in 2012 as a way of forcing publishers to sign up to a Leveson-compliant regulator but has never been enacted. It says that UK news publishers who aren’t signed up to a Royal Charter-backed regulator must pay both sides’ libel costs in cases that they lose.

Armstrong sued The Sunday Times in 2004 after it linked him to the taking of banned drugs. It was forced to pay him £300,000 in damages and more than £700,000 in costs. In 2013 it recovered that money after Armstrong admitted taking performance-enhancing drugs.

The paper said this week: “Had Section 40 been in force at the time, the burden of paying Armstrong’s libel costs whether or not we won the case would have stopped us from publishing the story in the first place.”

The paper also noted that under section 40 it could never have recovered the £850,000 in costs it recovered from the gangster David Hunt who unsuccessfully sued the paper for libel in 2013.

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The Government is considering whether to repeal Section 40, keep it under review, scrap it, or enforce it only partially – meaning the few publishers signed up to Royal Charter-backed regulator Impress would be protected from paying both sides’ costs in libel cases (even if they lost) but other publishers would not be punished.

The Sunday Times, in common with most other national newspapers and many regional ones, has urged its readers to respond to the consultation by saying that both Section 40 and Leveson part two should be scrapped.

Publishers are concerned that their voices on the consultation will be outweighed by the backers o campaign group Hacked Off which has encouraged its own mass response to the consultation and provided supporters with a templated letter.

If Section 40 is passed, most news publishers could be forced to either sign up to Impress or agree changes to the constitution of the main press regulator IPSO to make it compliant with the Royal Charter on the regulation of press.

This would mean providing a libel and privacy arbitration scheme which is free for claimants, something which many publishers fear would increase the number of claims.

Daily Mail columnist Richard Littlejohn this week rounded on Impress and those who support it, saying: “It would be like putting the Kray Twins in charge of the Police Complaints Commission and forcing the victims of their crimes to pick up the bill.

“To conjure up another analogy, how would Max Mosley like it if one of his call girls decided to sue him for spanking her too hard and — win, lose or draw — he was forced to pay all her legal costs?”

Impress is mainly funded by Mosley.

Mail Online, the UK’s most read newspaper website, has also provided a step-by-step guide showing its readers how to respond to the Section 40 consultation (by calling for Section 40 and Leveson 2 to be scrapped).

The London Press Club has written to all its members urging them to respond to the consultation as has the Society of Editors, which has also urged its members to campaign in their titles against Section 40.

Labour MP Kate Hooey, writing in The Sun on 1 January, warned that if Section 40 is enacted: “Very quickly the choice every newspaper will face will be to submit to State regulation under Impress, drop any investigative activity at all, or shut down.

“Shutting down will be the only honourable option. The UK will lose not just a free press, but any print press at all.”

Professor of journalism and Hacked Off founder Brian Cathcart has previously told Press Gazette the “corporate newspaper industry” is making “dishonest” arguments on the issue of section 40.

He said: “Its entire campaign, promoted not only in national and regional papers but also in internal propaganda directed at employees, rests on just two claims.

“First, that publishers – and in particular small, local papers – risk ruin as a result of the provisions of Section 40 of the Crime and Courts Act 2013, which could see courts awarding damages against a paper even if it wins a case. And second, that Section 40 is a plot to drive free publishers into ‘state-backed’ regulation.

“Section 40 gives every citizen a right of access to affordable justice in libel and privacy cases, and a news publisher could only suffer an adverse costs award on winning a case if it had denied the claimant that right.

“How could it be fair for a paper to force an ordinary reader into expensive court action when a far cheaper and quicker alternative was available?”

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