[vc_row][vc_column][vc_column_text]Section 40 is part of the Crime and Courts Act 2013, which deals with a whole range of issues but also implemented some of the recommendations contained in the Leveson Report into phone hacking by newspapers. Index on Censorship strongly opposes the introduction of section 40.
Section 40 addresses the awarding of costs in a case where someone makes a legal claim against a publisher of “news-related material”. The provision means that any publisher who is not a member of an approved regulator at the time of the claim can be forced to pay both sides’ cost in a court case — even if they win.
What is wrong with Section 40?
Section 40 does not protect “ordinary” individuals as its advocates claim. It protects the rich and powerful and is a gift to the corrupt and conniving to silence investigative journalists – particularly media outfits that don’t have very deep pockets. Special interest investigative news outlets could shy away from exposing government officials engaged in bribery, for example, because – even if the publication is right – they could end up paying both sides’ legal costs if the story is challenged by a claimant. This could bankrupt a small organisation and would make many investigative journalists think twice about publishing a story for fear of being hit with crippling costs from any claim. The role of the press is to hold the powerful to account and they need to be able to do this without the fear of being punished for doing so.
But there is a recognised regulator — Impress — why not join that?
Index — which is itself a small publisher as well as a freedom of expression campaign group – will not join any regulator that has to have the approval of a state body. The Press Recognition Panel – set up by an arcane political mechanism called a Royal Charter – is the body that approves any press regulator and we do not believe it is sufficiently separate from politicians and political interests. Keeping Section 40 on statute effectively forces publishers to join an approved regulator even if they do not believe it represents their best interests or those of the public.
The Royal Charter isn’t really state involvement, is it?
Yes it is. Its supporters claim that the Press Recognition Panel, established by something called a Royal Charter, is at arm’s length from the government. It’s true that changes to the Royal Charter require a two thirds majority from both houses but after the recent manoeuvring we have seen from the House of Lords to introduce a version of Section 40 by the back door, and given all the unprecedented political upheavals worldwide over the past year, it’s not at all beyond the bounds of possibility that it could happen. Index on Censorship has always opposed the Royal Charter and we will continue to do so. We also campaign against government control of the media across the world as a principle.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/4″][vc_icon icon_fontawesome=”fa fa-times-circle” color=”black” background_style=”rounded” align=”right”][/vc_column][vc_column width=”3/4″][vc_column_text]
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]What’s wrong with state involvement?
It’s a fundamental principle of a free press – and a free society – that if journalists or anyone else wants to ensure politicians are held to account then they must be entirely free from political control.
But some of your patrons are supporters of Hacked Off, which supports section 40.
Yes. And on this point we disagree with them. This includes people like the highly respected journalist Harold Evans. But many people also agree with our position, including human rights expert Lord Lester who has called the Royal Charter a “steamroller to crack a nut”.
But didn’t we need new laws?
No. The elements that the Leveson Inquiry was set up to investigate — contempt of court, phone tapping, bribing the police — were already all illegal. We had all those laws.
Would you join IPSO, the regulator to which the majority of the press belong and which is not approved?
No. We think that as a free expression organisation, albeit with a publishing arm, it is important that we stand outside the various vested interests of different parts of the media.
Isn’t this all just about protecting the big commercial interests of the press and allowing big newspapers to print lies?
No. The publications most likely to be affected by Section 40 are small publications like Index on Censorship or local newspapers, like the Maidenhead Advertiser, that refuse to join a government-recognised regulator. Many local newspaper editors are very worried about the impact of this. Section 40 does not protect individuals from an unchecked, irresponsible press. That is achieved by making redress cheaper and faster by mechanisms such as early arbitration and mediation that avoid courts altogether, and by making sure any self-regulator applies a clear and robust code of conduct that holds papers clearly to account for any mistakes.
But broadcasters are regulated, why not the press?
Broadcast regulation seems largely a relic of a bygone era when viewers had a choice between one or two providers and therefore the risk of skewed information loomed large. Government regulation of any media which has the power to stop stories being broadcast or otherwise published is a principle that Index opposes.
Should there be Leveson 2 to investigate the relationships between press and police?
We see absolutely no need for Leveson 2 – Leveson 1 already exceeded quite considerably its remit and investigating the relationship between the police and press seems no longer the most important concern when considering the print media. Leveson was already outmoded when it began and the inquiry’s recommendations fail to address the largely unregulated realm of online news.
Who is doing press regulation right?
Sadly there aren’t any models that work perfectly. Finland has an excellent model of self-regulation and is ranked at the top of the world’s press freedom indices but even there this is backed by statute, which has the taint of political involvement that Index on Censorship would be wary of. We monitor threats to press freedom in detail in Europe and neighbouring countries and the picture is deteriorating rapidly. Countries such as Poland and Hungary are introducing more stringent controls on the press that threaten the media’s independence. You only have to look to what’s happening to journalists in Turkey to see how easily democracies can extinguish press freedom by arguing it’s in the interests of national security.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1488189869194-a6a69648-dcf8-0″ taxonomies=”8993″][/vc_column][/vc_row]
For years Index of Censorship has monitored state interference in news reporting, from the authoritarian Chile in 1970s to North Korea today. With a history of scrutinising government pressure on media, we were never going to join Impress, the new state-approved UK press regulator.
There should always be a clear distance between any government and journalists that report on it. Again and again Index has reported how governments have set up bodies that stop the media covering stories they don’t like.
In Zimbabwe, the 2002 Access to Information and Protection of Privacy Act requires all journalists and media companies to register. Unlicensed journalists can face criminal charges and a sentence of up to two years in prison.
Last year the Turkish government has forced the closure of news outlets including Zaman and the Cihan News Agency. As our Mapping Media Freedom project has reported, dozens of journalists have been arrested. In Syria we have seen a systematic stifling of reporting.
Meanwhile in the UK, the Government is considering triggering Section 40 of the Crime and Courts Act, which will ratchet up pressure to self-censor. This repressive legislation would pressurise newspapers to avoid the controversial and not publish things others would rather were not heard.
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.
As the leading media lawyer Mark Stephens has pointed out, this could mean that if a Somalian warlord sued a British publisher for something stated in an entirely truthful report, the publisher could still be ordered to pay the warlord’s costs when he lost the case for defamation. Section 40 has been on the statute book for three years but was not triggered because there was no approved regulator of which publishers could be part.
That changed when Impress, a regulator to which so far only tiny local media publishers have signed up, was approved in October.
Having an approved regulator means Section 40 of the Crime and Courts Act could now be brought into force and that we and many other small publishers could face crippling costs in any dispute, threatening investigative journalism or those who challenge the powerful or the wealthy.
Newspapers and magazines need to be able to tackle controversial subjects, and hold the powerful to account, whether they choose to join Impress or not. In every issue, Index covers stories of corruption, of threats to writers or journalists and physical violence against people telling the truth. If threats of massive, unreasonable legal costs hang over newspapers and magazines then investigative journalism will be further squeezed.
Local daily newspaper editors are horrified by Section 40 and what it may to do to news gathering. Michael Sassi, editor of the Nottingham Post, warned: “Our future could be seriously compromised if either the proposed Section 40 were to become law or we were forced to submit to a government-sponsored regulator. Section 40 could encourage an avalanche of complaints because of the profoundly unfair clause that would force us to pay complainants’ costs – win or lose.”
As George Orwell said: “In times of universal deceit, telling the truth is a revolutionary act.” At times like this the Government must be even more vigilant about standing up for freedom of expression. If it fails to do so, it will undoubtedly be held up by other nations as an example they can follow.
Culture Secretary Karen Bradley is consulting on whether this chilling law should be activated. She told MPs last month that a number of editors of local newspapers were concerned that the exemplary damages section could put out them of business and certainly “would impact on their ability to do investigative journalism”.
That is an understatement. Section 40 is a direct threat to press freedom in the UK and must be scrapped.
Rachael Jolley is the editor of the Index on Censorship magazine
This article originally appeared in The Telegraph on 3 January 2017[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1484058713590-29d066e3-327e-3″ taxonomies=”8996″][/vc_column][/vc_row]
[vc_row][vc_column][vc_column_text]Index on Censorship has for the past four decades published the work of censored writers and artists. Now we face the possibility of censorship thanks to a UK government law that means — as a publisher that refuses to sign up to a regulator approved by a state-created body — we could end up paying both sides in a legal dispute even if we ultimately win the case. The law, Section 40 of the Crime and Courts Act 2013, as it stands is a danger to a free press.[/vc_column_text][vc_row_inner content_placement=”top”][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-times-circle” color=”black” background_style=”rounded” align=”right”][/vc_column_inner][vc_column_inner width=”3/4″][vc_column_text]
Section 40 of the Crime and Courts Act is a direct threat to press freedom in the UK and must be scrapped.
[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_column_text]This part of the act, created as a response to the Leveson Inquiry into phone hacking, has been on the statute for three years but was not enacted because — until earlier this year — there was no approved regulator of which publishers could be part. That changed when Impress, a regulator to which so far only small local media publishers have signed up, was approved in October by the Press Recognition Panel (PRP). The PRP was established through an arcane state mechanism called a Royal Charter following the Leveson Inquiry. Having an approved regulator means Section 40 of the Crime and Courts Act could now be brought into force and that we and many other small publishers could face crippling costs in any dispute, threatening investigative journalism or those who challenge the powerful or the wealthy.
Section 40 of the Crime and Courts Act is a direct threat to press freedom in the UK and must be scrapped. The government is currently consulting the public on section 40.
Index has warned consistently of the dangers from the Crime and Courts Act.
1. Under s.40, or the “cost provisions”, in relevant media-related court cases, newspapers which are members of a recognised self-regulator are exempt from paying their opponents’ legal costs, even if they lost a case. The presumption would also mean that newspapers outside a recognised self-regulator must pay their own and their opponents’ legal costs, even if they win a case. The s.40 incentive is based on the fact that recognised self-regulators have to have a low cost arbitration scheme that replaces the need for court action.
2. Please provide the evidence that supports your view (max 250 words)
As a small, independent magazine publisher that is a “relevant publisher” of news-related material as per the definition provided in section 41 of the Crime and Courts Act 2013 and that is not subject to any of the exemptions listed in Schedule 15, Index on Censorship faces the prospect of having to pay the costs for both sides if a claim is brought against us – even in a case we are ultimately successful in winning. This could potentially bankrupt the organisation, effectively silencing a magazine that has for the past 44 years dedicated its existence to the publishing of work by, and information about, censored writers and artists worldwide.
3. To what extent will full commencement incentivise publishers to join a recognised self-regulator? Please use evidence in your answer. (max 250 words)
Index on Censorship will not sign up to a regulator that has to be approved by a state-appointed body. Freedom of the press – including total freedom from any state involvement in regulation of the press – is the bedrock of a free and democratic society. Section 40 stands in direct opposition to this principle. Introducing punitive statutory penalties is not an incentive – it is a threat. Forcing publishers to join a recognised regulator or face the threat of punitive costs makes a mockery of the notion that the self-regulator is in any way voluntary.
We urge everyone to write to their MP and to Secretary of State Karen Bradley requesting its immediate repeal or to respond to the online consultation.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”Press Regulation” category_id=”8996″][/vc_column][/vc_row]
Sir, Index on Censorship has published stories by censored writers for more than four decades. Now we ourselves face the prospect of censorship via legal action in the UK. As it stands, legislation on the statute means that we — as an independent publisher that declines to join the press regulator Impress — face the prospect of crippling legal costs, even if we won a case that had been brought against us. Our publication, to which last month the British Society of Magazine Editors gave an “editor of the year” award for its work, could be forced out of business. Any regulation that could potentially bankrupt the media and make investigative journalism too costly to publish should be fiercely resisted.
Rachael Jolley
Editor
Index on Censorship magazine
