The Section 40 debate shows just how much our press needs a proper regulator – Simon Carne

In recent weeks, the press has bombarded its readers with warnings that the Government is threatening to impose financial penalties on publishers if they do not sign-up to the regulator, IMPRESS. This is utterly misleading on so many levels.

Publishers can escape the consequences of the proposal (known as “section 40”) if they sign-up to a regulator that meets certain tests. IPSO, the regulator that most publishers have chosen to sign up with, has said that it could easily meet those tests, and would do so if asked (more on that below).

Examples of press misinformation on this issue abound, for example:

• The Times: “What [section 40] says is that any publication not agreeing to be regulated by Impress will be subject to the costs of a legal action — even where it wins. Really. That’s what it says.”
• The Daily Telegraph: “publications who fail to submit themselves to Mr Mosley’s regulator could have to pay the legal costs for anyone who sues them – successfully or not.”
• The Spectator: “The Section 40 proposal violates any basic notion of justice, yet this is the technique that the government would use to force us to sign up to Max Mosley’s regulator, ‘Impress’, rather than Ipso, the independent press regulator.”
• The Chairman of the Editors’ Code Committee: “I still have to pinch myself that we live in a country in which the Government’s press regulator is financed by Max Mosley and that papers who refuse to sign up to it will not only face punitive damages in libel courts but could be forced to pay a claimant’s costs even if the article concerned is entirely true and the paper wins its case.”

On any analysis, the debate over section 40 is not about forcing publishers to join IMPRESS (or even encouraging them to do so). It is inherently unlikely that the publishers who actually created IPSO will move across to a far smaller regulatory body which they had no role in establishing and which is indirectly part-funded by a man whom many editors appear to despise (see, for example, the Spectator: “no self-respecting publication would sign up to a regulator bankrolled by a figure as egregious as Max Mosley”).

If section 40 is implemented, the IPSO-regulated publishers will essentially have two choices: they can either accept the costs imposed by section 40 (and decline the protections which section 40 also offers) or take suitable steps so that IPSO becomes an approved regulator. The press are understandably opposed to the higher costs option. But they also profess to be opposed to having an approved regulator. And yet, on any analysis, the refusal to allow their regulator to be approved has no rational basis.

The press has offered several reasons for their stance, but those reasons do not fit the facts.

• An approved regulator must submit to periodic reviews by the Press Recognition Panel (PRP) to ensure that it continues to meet certain criteria. In various attempts to justify an objection to this, the press repeatedly confuses the process of having their regulator gain approval with actions taken by the regulator once it has been approved. For example:

–    The Daily Mail: “As for the Royal Charter, the newspaper industry rejected it as gross State interference in free expression.”

–    Nottingham Post: “Ipso has refused to seek recognition by the PRP for the simple reason that it believes it would be submitting to state regulation.”

In fact, IPSO has made it clear that it has no objection to being independently reviewed, as evidenced by (i) its commissioning of the recent Pilling Review; (ii) evidence from the Chief Executive of IPSO to the House of Lords Communications Committee that “we intend to repeat that exercise at periodic intervals”; and (iii) evidence from the Chairman of IPSO at the same hearing that IPSO “remains neutral. If somebody said to us tomorrow, ‘Make sure you [seek recognition from the PRP]’, of course IPSO would do that”.

• Many leading writers and columnists have suggested that the PRP’s status as a chartered body makes it an arm of the State. For example, the Daily Telegraph and the Spectator have both referred to an approved regulator as a “state regulator”. The Times has referred to a “state-approved press regulator … given the thumbs-up by the odd panel appointed under the terms of a royal charter granted by MPs, and therefore opposed on principle by almost the entirety of the British press, which values its independence from government and the legislature above most other things.”

But the press industry themselves positively advocated a chartered body as the appropriate basis for a reviewer of press regulation. The industry drafted a charter and submitted it for royal approval under exactly the same mechanism through which the PRP gained its own royal charter – a process which the press now decry as “appointed under the terms of a royal charter granted by MPs.”

• The Times has suggested that, the appointment process for members of the chartered body means that “the state is skulking in the background. It does not directly approve the board of regulators. Another board does that. But the state sets up the board that does the approving.”

Not only is this description inaccurate, the arrangements are, crucially, the same protections as the industry’s own charter had proposed. Under the charter that now exists, the board of the body “that does the approving” is required to be appointed by an Appointments Committee, which, in turn, has to be appointed by the Commissioner for Public Appointments, just as the industry intended to be the case for the body envisaged in their own draft charter.

So intense is the press’s distaste for the chartered body that the Spectator refers to it as “the government’s Orwellian-sounding Press Recognition Panel”. But, once again, the charter has used the same name as the industry had adopted in the charter it proposed.

• This leaves us with the criteria for approval. When asked by the House of Lord’s Communications Committee whether IPSO is capable of being an “approved regulator”, Matt Tee, IPSO’s Chief Executive, identified two reasons why it would not: (i) the absence of a compulsory arbitration scheme; and (ii) the absence of a power to require newspapers to publish an apology (as distinct from a correction).

Mr Tee is right that these are genuine obstacles to IPSO being approved. But the press are plainly not baulking at seeking recognition on account of the distinction between an apology and a correction – not when the consequences of section 40 are evidently of such concern to the industry. One is forced to the conclusion that it is the low cost arbitration scheme that forms the stumbling block.

In the interests of access to justice for those who may be damaged by the press, Leveson considered it a fair exchange for society to conclude (through parliament) that publishers should either be regulated under an approved scheme, including a low-cost arbitration arrangement (Leveson recommendation 22), or else meet the additional costs of requiring claimants to go through the courts, which section 40 would provide for (recommendations 26 and 73).

Leveson’s proposed scheme would enable potentially expensive litigation to be conducted by way of an inquisitorial process, rather than the adversarial process normally adopted for litigation in the UK. This form of arbitration was recommended as a means to reduce costs for the press as well as for claimants, who would be able to access the scheme for no more than a nominal charge. But this does not mean that claimants could cause a nuisance to publishers by bringing unmeritorious claims. The criteria expressly require that there be arrangements for claims to be struck out where appropriate.

Moreover, the proposed arbitration scheme would protect publishers from wealthy individuals who threaten expensive legal action in order to suppress the publication of stories. According to the Times, “this happens … almost every single time you expose someone or something”. Not only would the arbitration scheme make the publisher’s costs very low, section 40 (once commenced) would also deliver the added advantage to publishers that a claimant who insisted on litigation in the courts would be required to bear both sides’ costs.

In a free society, publishers are quite entitled to prefer access to the courts rather than arbitration. But the press do not say they prefer litigation over arbitration. As shown by the analysis above, the arguments advanced by the industry are neither factually accurate nor rational.

It seems difficult to avoid the conclusion that the section 40 issue is a straightforward debate about access to justice. The press has, quite openly, set its face against making low-cost arbitration an option which claimants can choose. The press is free to hold that opinion. But, rather than being transparent about its motives, it has employed myths, half-truths and blatant untruths in an attempt to bolster a claim that it would be an affront to press freedom if publishers are required to foot the higher costs which would flow from having denied claimants the low-cost option.

From a regulatory perspective, it is a sign of abject failure that such deception can be conducted without any apparent intervention, correction or control by the publishers’ regulator, IPSO.

Even more astonishingly, IPSO has weighed in to support the publishers it is supposed to regulate. In a written submission to the DCMS, IPSO says, quite bluntly, that it opposes section 40 because the press do: “… the vast majority of the UK press have rejected the recognition system. This being the situation, IPSO does not agree that section 40 should be commenced.”

We expect our press to inform the public and hold power to account. That is why we value press freedom so highly. It is beyond irony that those very freedoms are being used to flood the public with misinformation in a campaign to get the government to bend to the publishers’ will. And all this done with the support of the organisation which describes itself as “regulator for the newspaper and magazine industry in the UK”.

This article is based on extracts from a submission to the Department for Culture Media and Sport by Simon Carne, a regulatory consultant