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Q&A: How will Section 40 impact press freedom

Ian Beales of the Commonwealth Press Union Media Trust makes sense of Section 40, a contentious UK provision that would force news publishers to pay all costs of legal action taken against them, even if they win. Mr Beales has been a journalist for more than 50 years and is currently an international consultant on...

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Ian Beales of the Commonwealth Press Union Media Trust makes sense of Section 40, a contentious UK provision that would force news publishers to pay all costs of legal action taken against them, even if they win.

Mr Beales has been a journalist for more than 50 years and is currently an international consultant on press self-regulation.

He was a founding member of the Editors’ Code Committee, which drafted the first UK Editors’ Code of Practice, launched in January 1991.

[sta_anchor id=”1″]What are your thoughts on Section 40 and the debate around whether it should be enacted?

Most UK publishers and editors believe any governmental or parliamentary involvement in newspaper regulation is inimical to the freedom of the press in Britain, after 300 years free from state controls.

So, following the Leveson Inquiry, 95 per cent of UK national and regional press publishers rejected Parliament’s notion of a state-approved Royal Charter system of print media self-regulator, and launched instead a very rigorous – but genuinely self-regulatory – Independent Press Standards Organisation, under a former Lord Justice of Appeal. With powers to impose fines of up to £1 million for systemic breaches of the Code, this system is tough – but totally independent of government

Section 40 is a direct challenge to that. It is aimed at punishing newspapers choosing to stay outside the Royal Charter system – by inflicting on them legal sanctions from which royal charter regulated titles would be exempt. This amounts to a deplorable and punitive form of insidious coercion, which would send out a dreadful message throughout the world.

Basically, refusing newspapers  –  95per cent of the British press – would face:

  • Paying all complainants’ legal costs in defamation, privacy or harassment actions – even where the press wins in court! It is an ambulance-chasers’ charter: complainants who might have settled out of court would have nothing to lose.  The sums could be huge, creating a major chilling effect on journalism. Some UK publishers privately estimate the potential costs in tens of £ millions annually: often enough to make a difference to profit or loss in the case of struggling titles. So at worse putting them out of business and at best deterring them from investigative journalism.
  • The risk of exemplary damages in a defamation case, from which royal charter newspapers are exempt. This not only ramps up the cost where newspapers are in the wrong, but introduces the concept of two-tier justice, which we believe would offend against the basic precepts of the British judicial system – and of those in Australia and many other Commonwealth countries – and very probably also breach the European Convention on Human Rights.
  • The risk that backing Royal Charter-type regulatory schemes could be attractive to individuals or organisations with their own anti-press agendas. Currently, the UK’s only Royal Charter regulator is financed by a tycoon exposed in the press for his taste in sex parties.

[sta_anchor id=”2″]What impact would triggering section 40 have on press freedom?

There are two major areas of impact. First, it would have a massive chilling effect as described above, which could put some UK papers out of business or deter them from vital investigative journalism.

Second, there is international ripple effect from the legal precedent set by this kind of two-tier, selective justice. Britain is still regarded in much of the world – especially the Commonwealth – as an exemplar in legal and constitutional matters. Many Commonwealth countries share the UK legal heritage of a belief in equal justice for all and of a free press. Section 40 seriously challenges both concepts. The international risk is that other countries – especially under dictatorships or repressive regimes ­– will feel that Britain’s adoption of such tactics legitimises them.

A CPU Media Trust survey showed that fear was shared by many commentators in the Commonwealth –including Australia and New Zealand – and elsewhere.  The risk of Britain effectively exporting this system around the world by example is real and disturbing. It could spread like a virus.

[sta_anchor id=”3″]Australia held a similar media inquiry to the Leveson inquiry. Is there risk that the passing of Section 40 could lead to similar provisions in Australia and elsewhere abroad?

The fact that Australia and New Zealand both launched parallel media inquiries to Leveson is evidence of the ripple effect of such initiatives. They were not alone: other foreign governments without any record of media freedom to sully also took aid and comfort from the British experience.

It does not follow that Australia would inevitably adopt Section 40 type measures. But it is likely that the Canberra government would sit up and watch.  Maybe it would follow suit, maybe not. That uncertainty too could have a chilling effect.

Of course, we do not yet know whether Britain will implement Section 40. The proposals have been both criticised and welcomed in Parliament. We hope good sense will prevail and the government will not set this awful legal precedent.

[sta_anchor id=”4″]There appears to be little newspaper support for Section 40. What then is the motivation for putting into force something that was passed without a date of enforcement set?

The motivation was to use the royal charter exemptions as ‘incentives’ to get the bulk of the UK press to sign up to a system they didn’t want.  But these are incentives only in the sense that Don Corleone’s offer you can’t refuse was an incentive.

The enforcement date was delayed because a press recognition panel first had to set up a system to regulate the regulators, by setting out the compliancy rules, and then they had to invite applications to become such an approved regulator. So far only one has applied – IMPRESS – which has only a very tiny number of small publishers signed up.

[sta_anchor id=”5″]Do you believe section 40 is a way the government can force newspaper publishers to join IMPRESS?

They can’t force it – the system is voluntary – so the proposed Section 40 sanctions effectively have rigged the odds against those who don’t join.  It is selective, unfair and against most notions of British justice.

[sta_anchor id=”6″]What are the main differences between IPSO and IMPRESS, and their advantages and disadvantages?

The difference to which Royal Charter supporters would point is that it offers an arbitration system to assess claims and award damages or settlements. Proponents claim this would be cheaper for both complainants and newspapers.

There might be instances where that could be true – especially for larger newspapers with big budgets.  But for smaller newspapers, it would mean that, instead of being decided quickly as now, most complaints would go to lawyers, which at a minimum would be likely to cost £6,000. Just a few cases a year would be more than the annual salary of a junior reporter. It simply does not add up.  Effectively, they could be compromised editorially and crippled commercially by complainants with nothing to lose.

IPSO has a membership covering thousands of newspapers, with circulations running into many millions. It has a Code of Practice echoed around the world, and respected as comprehensive and fair. Even non-IPSO newspapers such as the Guardian, the Financial Times and the Independent use it.  IPSO is funded by the vast majority of UK newspapers, who sign up to it under a five-year contract.

IMPRESS has a membership of dozens, often with very limited circulations. Its Code was widely criticised, and it relies for its finance on a tycoon who is a leading campaigner against the press.

[sta_anchor id=”7″]Is there anything else you would like to say or add?

But, even if it the scheme is dropped, that might not be the end of the story. It does not follow that all those governments who are watching this with excited interest will walk away just because Britain does. The genie is out of the bottle. It may be impossible to put it back.

There is a lesson in that for all mature democracies.  When they think aloud about interfering with basic good governance concepts such as press freedom, they give those dark thoughts life in equally dark places.

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