Anyone interested in journalism who has been reading the UK’s national press over the past week or two could be forgiven for thinking press freedom is in serious jeopardy. It’s one of those rare occasions when Fleet Street seems to speak as one.
The government is consulting on whether section 40 of the Crime and Courts Act – a law passed in 2013 – should come into effect. The provision effectively means that a news organisation defending a defamation or privacy case can be made to pay the costs of both sides, even if it wins the case.
The press is united in wanting it repealed and has painted a disturbing picture of the impact the provision would have on press freedom: anyone bringing an action against the press, however ill-conceived, will have their costs reimbursed – which would be a disaster, particularly for cash-strapped regional and local newspapers.
This interpretation of section 40’s effect is so dominant that it has become almost an accepted truth, leading David Pegg, in The Guardian, to conclude: “[it is] a law that forces publishers to pay punishment levies.” Several titles have claimed that various scandals, relating to MP’s expenses, corruption at the highest levels of FIFA, and the Panama papers would not have been published had section 40 been in operation. Common to all these examples is that the claimants would have had no grounds on which to bring a legal action.
This is a particular issue for cash-strapped local papers, which cannot afford to pay legal costs as it is
— Gareth Davies (@Gareth_Davies09) January 5, 2017
It is no wonder that the local and regional press should be fearful about its capacity to survive, let alone to pursue serious investigative journalism.
Local papers perform a vital public watchdog role for communities by, for example, monitoring the use of local authority power as well as reporting on rogue traders. This function is incredibly important to protect and is under threat, not least because resources are tight – whether the title is owned by a larger group or not. To further constrain them through the threat of costs in spurious claims would be disastrous.
But will the courts apply the law in the way that the press predicts? It seems unlikely for three reasons. First, it would undermine the purpose of press reform. Leveson’s report clearly stated that the scheme for realising meaningful, independent press regulation must not jeopardise press freedom. He said that if legislation was implemented to secure independent press regulation, then it should “place an explicit duty on the Government to uphold and protect the freedom of the press” (that’s on page 1781 for anyone who has invested in a copy). Serious investigative journalism sits at the heart of this commitment.
Secondly, it would, arguably, contravene the law. For as long as the Human Rights Act 1998 remains in force, courts are required to interpret legislation compatibly with, in this case, the Article 10 right to freedom of expression. Rewarding the claimant who exploits section 40 to stymie serious investigative journalism would breach Article 10.
Thirdly, it would be uncharacteristic of the judiciary – given its long history of jealously guarding the right to publish public interest expression.
So how would less restrictive interpretation be realised? The effect of section 40 depends upon the status of the defendant newspaper. If it is a member of a recognised regulator, then its costs are reimbursed even if it loses (section 40(2)). If the defendant is outside that scheme, then section 40(3) instructs the court to award costs against the defendant, even if it successfully defends the claim.
But the same clause provides the court with an important discretion. Costs should not be awarded against the successful defendant if it would be “just and equitable in all the circumstances” not to apply the rule. This is a crucial measure and one that has been ignored altogether in the mainstream debate.
In my view, section 40(3) would not protect the claimant initiating baseless claims. It has not been enacted to establish a rogue’s charter to undermine the important role of the press.
Leveson did not recommend these changes for the benefit of liars, cheats and scoundrels. It was enacted because the Leveson report proves that ordinary members of the public are also the victims of press malpractice and that unlawful damage to their reputation and private life has serious consequences. It was enacted because these victims often cannot afford legal advice. Cheap and efficient arbitration is the best means of securing their legitimate interests in an accountable press – and section 40 is designed to encourage both sides of a matter to seek arbitration before resorting to a costly court case.
The purpose of the legislation, therefore, is to ensure that victims of the press are not deprived of the opportunity to protect their interests. And if a claimant brings an unarguable case then it is entirely right that such a claimant should pay their costs and that of the newspapers. If Section 40(3)(b) did not protect the press in these circumstances, then the clause would be redundant.
Fair and balanced
It follows that the full force of section 40 should only be realised in cases where the court is satisfied, first, that the claimant had an arguable case, suitable for the court to decide, and secondly, that the claim could have been determined through arbitration. This will not be the case in every legal action. This also limits the power of the Section 40 litigation threat.
If section 40 is enforced then the local and regional press (and the nationals) should adopt a bullish approach to any threats to exploit Section 40. As all editors and journalists know, there is nothing to be done to prevent the threat of litigation from disgruntled subjects of press attention. Indeed, the threat of litigation is a fact of business life generally. But no one should feel cowed into silence because of Section 40 alone.
The court, though, is only in a position to confirm the security afforded by section 40(3)(b) once it is enforced. But the government can do that now – it can reassure the entire press, but especially the local and regional press, that the consequences of section 40 are not as draconian as the national press has predicted. If it did, it could confirm that Section 40 remains vital to the realisation of meaningful, independent press regulation where the press does not “mark its own homework” and the protection of future victims of press malpractice – but not at the expense of serious investigative journalism.