Section 40 and the beginning of the end of the free press

Whilst the press can certainly fail to abide by moral principles in their pursuit of public interest stories, Section 40 will dilute investigative journalism further.


No one denies that the press can go too far with pursuing controversial stories that they consider to be in the ‘public interest’, but Section 40 is not the solution needed to tame them. It represents the beginning of the end of the free press.

Section 40 of the Crime and Courts Act 2013 was implemented in response to the Leveson Report issued after the phone hacking scandal of 2011. It is designed to award legal costs when someone makes a claim against a publisher of news-related material. However, this provision ensures that any organisation who is not a member of an approved regulator can be forced to pay both sides’ costs in a court case- even if they win.

Naturally, this legislation has some proponents. Hacked Off, a group established to protect victims of ‘press abuse’, claim that Section 40 will benefit the ordinary citizen who feels that they have been unfairly libeled by journalists at a low cost. They claim it is a significant step forward for an independent press because media outlets can be offered sanctions or rewards by ministers.

Undoubtedly, what happened to the Miller family during the phone hacking scandal was awful. There was no public interest in hacking the phones of the parents of a missing school girl. But to provide Max Mosely with the responsibility of managing Impress, which claims to be an independent regulator, would be damaging to press freedom. The News Media Association said it would be dangerous for this regulator to be approved by the Press Recognition Panel because of the cost-element of Section 40.

This provision will fail to protect ordinary individuals. It will silent investigative journalists who produce groundbreaking stories and empty the pockets of media organisations with little money. Corrupt politicians could sue newspapers that have successfully exposed their behaviour, regardless of the truth behind the story.

The Press Recognition Panel that was established by a Royal Charter comes from the Government, and this ensures that the press will be regulated by the state. It is understandable why countless media outlets refuse to join this panel. It provides the state with the power to control the press.

Prior to the Leveson Inquiry, there were numerous laws that protected individuals from press abuse. There is the Contempt of Court Act 1981 that prohibits media organisations from publishing information once a criminal case becomes active after a person is arrested. The Defamation Acts of 1996 and 2013 both protect people from defamation. They both specify the conditions for what constitutes as libel or slander. They both state what defamation is to enable individuals who feel they have been defamed by the press with a criteria that establishes their chances of success if they pursue a defamation case. The Sexual Offences Act 2003 protects victims and witnesses of sexual offences from being bullied by journalists into revealing details of the cases they were involved in. The list goes on. But there are enough laws that already protect individuals’ rights whilst guaranteeing the freedom of the press.

Section 40 is a travesty. It is a shambolic move to expand the powers of the state at the expense of bankrupting media outlets to protect the reputations of the rich and powerful. It is a disguised attempt to destroy people’s rights whilst claiming to protect them. It is embarrassing that the Government has introduced a piece of legislation designed to damage press freedom. Let’s hope that a compromise is reached, or that Section 40 is scrapped altogether, otherwise the quality of British journalism will be diluted.




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