“Section 40”. The whisper of those sinister words is enough to send chills of fear down the backs of any self-respecting reporter. Or, according to the media, to any member of the public who wants to sleep easy in his bed at night with the prospect of tucking into a good breakfast newspaper the next day.
There has, of late, been much media hysteria, beating of press breasts and gnashing of journalistic teeth at the temerity of the government to seek to bring into force this section of the Crime and Courts Act 2013.The government gets nervous when the media bloodhound starts to growl, fearing that it might bite back as a vote-robbing feral beast. So, in advance of making a decision — the weighty task of deciding whether to put section 40 into effect is in the hands of Karen Bradley, culture secretary — a public consolation process was instigated, closing earlier this week.So why all the fuss? What is this satanic section all about?
In short, section 40 is intended to incentivise media organisations to sign up to a robust, recognised press regulation scheme as anticipated in the recommendations made after Sir Brian Leveson’s phone hacking inquiry.
The section stipulates that any media publishers not enrolled with a “recognised” regulator could be the subject of “cost-shifting” in media cases brought against them, whereby defendant publishers could be required to pay the legal fees of individuals bringing claims against them, whether they win or lose.
“Recognised” means recognised by the Press Recognition Panel (PRP), set up by Royal Charter after the Leveson inquiry. And aye, there’s the rub. The major newspaper publishers are used to “marking their own homework”, as Sir Brian Leveson said in his inquiry, by being overseen by the discredited self-regulator that was the Press Complaints Commission. No surprise then they are unhappy at being regulated by what they consider to be a body lacking in independence. Moreover, because the PRP was set up under Royal Charter, they argue — not in any way convincingly in my view — that regulation by a PRP-recognised body amounts to state regulation. That, they scaremonger, will amount to little better than the Pravda-esque propaganda sheets of a totalitarian regime.
What the majority of Fleet Street would prefer — and all but the FT, The Independent and The Guardian have signed up to it — is to be regulated by IPSO, the Independent Press Standards Organisation. This, chaired by former judge Sir Alan Moses, is not recognised by the PRP. While it is free to apply at any time for approval from the PRP, it has no intention of seeking recognition.
The other horse in the regulation race, IMPRESS, was recognised by the PRP in October 2016. The two have routinely bared their teeth at each other. While IMPRESS is proud of its PRP rosette, those riding the IPSO steed say that IMPRESS is effectively ‘knobbled’ twice over, once by being a ‘state’ approved regulator, and secondly, by being the creature of Max Mosley.
Mr Mosley, it will be recalled, was the former president of the Fédération Internationale de l’Automobile (FIA). In 2008 his private, sexual conduct was plastered across the pages of the News of the World. He went on to recover damages, successfully arguing that his privacy had been invaded. Unsurprisingly, since then he has been a fervent supporter of privacy protection and he set up a charitable foundation to fund IMPRESS.
This, however, has been a stick with which the press has sought to beat IMPRESS, arguing that it is not independent because Mosley has an axe to grind. But it is hardly surprising that he would have a legitimate interest in press reform having been a victim of such privacy invasion.
It is as a result of having two bodies seeking to regulate the media — one ‘recognised’ but regulating a limited, albeit growing, number of small publishers, and one ‘unrecognised’ but preferred by the big players — that adds complexity to the government conundrum with regard to implementation of section 40.If section 40 is implemented, the big names — with equally big voices, deep pockets and extensive power — who have backed IPSO will, being outside the ambit of a recognised regulator, be subject to the penalties that the section imposes.They argue this will amount to victimisation and will have a disastrous impact on free speech and the financial health of the United Kingdom’s media sector. As a result of the sections of the act already implemented, publishers which have signed up to a recognised regulator are exempt from paying exemplary damages in media-related court cases, whereas media defendants who have not signed up to a recognised regulator do not have this exemption. But this incentive — carrot or stick, call it what you will — has not been sufficiently attractive to those many publishers who have signed up to IPSO rather than IMPRESS.
What, then, is a government to do?
Putting off the evil day of decision, it has ‘asked the audience’ by holding a public consultation. Both sides of the fray have sought to encourage their clientele to back them with various tick-box pro-formas to facilitate the process. What the ‘final answer’ will be, and who will end up the winner of this dangerous game of ‘who wants to be a regulator’ hangs in the balance for the time being.
What is undeniable is that the press holds a vital position in society. Few of us would deny that a great democracy is served by a great press, a press that calls out corruption, holds authority to account and impartially reports the courts. But not a press that misinforms, that unfairly attacks, that unjustifiably exposes private lives or one that prizes prurience over privacy and tittle-tattle over truth.
Such is the power of the press that codes of conduct enforced by robust regulators — in addition to the laws of defamation, privacy, data protection, harassment, etc — are vital to ensure that standards are upheld. When they are not, the impact on the lives of the victims over which the press trample for a salacious scoop or an extra zero on their bottom line can be significant.
Those against implementation of section 40 argue that it is a charter for the rich and powerful to bully the press, but it is not just the rich and the high profile in society who are attacked by the media. The wilder excesses of Fleet Street can be launched at those without the wherewithal to fight back and defend themselves. Costs shifting in favour of claimants who seek redress against the papers could be a valuable tool in the hands of these individuals seeking to retaliate against media excess or intrusion.
And both IMPRESS and IPSO have launched arbitration schemes to provide cost effective access to justice for claimants who have a valid claim or complaint, but who do not have the finances for fully-fledged legal proceedings to obtain justice and vindication.
The full impact and likely practical success of these schemes will not become apparent for some while. And, accordingly, there is merit in the argument that while the government should not accede to the demands of the self-serving press and repeal section 40, a not wholly unacceptable interim measure might be to put this on ice until the adequacy of these arbitration schemes can be assessed.
What section 40 seeks to do is ensure that the press signs up to a regulator which has the stomach for a fight with the press when they go off track. If newspapers and other publications are not prepared to play by the rules that Leveson proposed, then surely they only have themselves to blame if they are penalised in costs as a result.
We are a lucky people in Britain. Glad of our ability to speak and read freely about others, and yet conscious of our desire to protect ourselves, we should all be enthusiastic proponents of free speech, but equally demanding of fairness, accuracy and privacy. Criticism of the Fourth Estate is not heresy — the press must be held to account in the same ways as other powerful organisations in society. We need to find a suitable balance between the respective rights at play, which could be provided by a proper code of conduct, adhered to responsibly by the media, and policed by a reputable and robust regulator with sufficient powers of enforcement.
As the two regulator horses gallop down the racetrack — one in the colours of Leveson compliancy, the other with the baying media hound on its back — it is clear that the path to the winning post is strewn with hurdles. If the press can’t be trusted to run in the same direction of good conduct, then a regulator with some clout needs to crack the whip to ensure that it does.
Amber Melville-Brown is partner and head of media & reputation at an international law firm in London.
This post originally appeared in the Legal Cheek Journal and is reproduced with the permission of the author.