Those not paying very, very close attention, may mistakenly have thought that the Leveson Inquiry was done and dusted, the subsequent row about regulation of the press over. Not only is that far from the case, but we now have reached a critical juncture. A seemingly innocuous clause in nearly four year old legislation hangs over the press like a guillotine.
Section 40 of the Crime and Courts Act 2013 relates to costs in libel and privacy cases against newspapers and has not been implemented. Yet.
There is currently a judicial review legal challenge, brought by two victims of phone hacking and the online publication Byline, that is seeking to force its implementation as well as calling for the start of the next part of the Leveson Inquiry. The government is now waiting for the result of that Judicial Review before making any further decisions.
Should it come into force, the consequences are very worrying indeed. As the Press Gazzette explains: “Section 40 [of the Crime and Courts act 2013] states that publishers who are not signed up to a Royal Charter-backed press regulator must pay both sides’ legal costs in libel and privacy cases win or lose.”
Win or lose.
Just think about that for a second. The rule of law seems to be totally turned on its head by Section 40 - even if you win, you still lose.
A newspaper could be sued for libel for a story it publishes, prove in a court of law that the story was not libelous, and still have to pay the legal costs of whoever brought the case against them. The financial devastation that could wreak on the already cash strapped newspaper industry, and the chilling effect such a law could have in holding the rich and powerful to account, should be obvious.
Those with cash to burn could potentially put in dubious cases against newspapers, knowing that the newspaper will be the one that has to ultimately cover for the cost.
If the consequences are troubling for major newspapers, they are potentially cataclysmic for local ones, which are in dire financial straits but do hugely important work. Writing in the Guardian, Sam Meadows, the chief reporter of the Herts and Essex News, said: “Vexatious claims could have a crippling effect on local and regional papers, already under an unprecedented level of financial pressure.”
Meadows rightly points to the amazing work conducted by local newspapers on issues such as Hillsborough and the chaos on Southern Rail.
Liberals should shudder at the the thought that our raucous press, both national and local, could be silenced from publishing something correct by the threat of a legal bill.
The way to avoid Section 40 is to sign up with a regulator that is compliant with the Royal Charter. However, I do not believe the press should have to sign up to a state sanctioned regulator, and many in the industry have expressed concern about the proposed regulatory framework. As legendary Boston Globe and Washington Post Editor Marty Baron (played by Liev Schrieber,) put it in the film Spotlight: “Personally I'm of the opinion that for a paper to best perform its function, it really needs to stand alone.”
The prospect that Section 40 may finally come into being should worry all of us who believe in a free and independent press.
Charlotte Henry is a journalist and broadcaster covering technology, media, and politics and a member of Bright Blue. The views expressed in this article are those of the author, not necessarily those of Bright Blue.