Major newspapers in the UK, including the Guardian, the Independent and the Financial Times have criticised the implementation of section 40 of the Crime and Courts Act 2013 (“section 40”) - a controversial law that could force publishers to pay the costs of people who pursue legal action against them, even if the publishers win. Section 40 has been, as expected, severely opposed by the publication industry, claiming it would hurt investigative journalism- the Sunday Times has warned that its historic exposure of Lance Armstrong would never have happened had section 40 been enacted.
Section 40 sparked debate across the publishers following the recent 10-week government consultation on media regulation. We recently discussed the outcome of the consultation here.
Section 40 will mean that publishers will have to join Impress, a regulator of the industry which will then provide a low cost arbitration service should anyone wish to pursue legal action against the newspaper. If publishers choose not to join, they could face a penalty of having to pay the full costs for both sides in a potentially pricey legal action.
Only a small number of mostly local publications have signed up to Impress. They include the Brixton Blog, Caerphilly Observer, On the Wight and the Lincolnite.
For newspapers, the issue is that the regulator is not seen as a self-regulator, which was recommended under the Leveson report. The Independent noted that to join Impress means “an untested organisation funded almost exclusively by one individual (and a press critic at that) and approved by an official quango that itself reports to Parliament – or face huge legal costs even in respect of cases you win”. Publishers are concerned that by joining Impress free speech will be significantly impacted by giving state control of the free press and the industry will be damaged.
The Financial Times submitted in the consultation that section 40 “would inflict disproportionate, unjust and potentially disastrous legal costs on newspapers, irrespective of their record on the ethical issues”. Many publications have stated that if it was implemented, they would be forced to think twice before writing critically about any individual or organisation at time which has seen Donald Trump elected as President and the UK voting for Brexit.
The Guardian has also said “This is of no benefit to the public, as it will discourage newspapers from conducting difficult investigations and holding powerful people to account…In complex and controversial cases such as terrorism, national security, or where deep source protection sits at the heart of a story, this chilling is likely to be particularly profound.”
Whether the implementation of section 40 would discourage publishers remains to be seen. However, amongst all the debate, it is key to remember that Section 40 was introduced to encourage a relatively low-cost arbitration service for cases where a person believes they’ve been libeled. The arbitration service that would be offered by Impress would be a quick, cheap, if not free service that would benefit both the complainant and the newspapers.