Why Section 40 must be repealed

The government is proposing to repeal Section 40 of the Crime and Courts Act, which in my opinion is one of the most malignant and dangerous pieces of legislation ever placed on the statute book.

This legislation has never actually been implemented, and for very good reason. If it were, those media organisations which have not signed up to a state-approved regulator would be required to pay the costs of both sides in any legal action brought against them for any of their stories, even if they win.

In other words, some modern Robert Maxwell who was trying to prevent an investigative journalist from publishing a truth he wanted to suppress could bring an action against the outlet which published that truth, and the courts could find that the story was

• True
• Fair
• In the public interest
• Not motivated by malice

and still get costs awarded against the publisher which might be ruinously expensive.

This pernicious clause, even in its current inactive form is a threat to free speech and accurate journalism, and my only complaint about the government's plans to repeal it is that this should have been done eight years ago as soon as the Conservatives gained a majority in parliament.

Opposition to this clause is an absolute litmus test in my book of whether someone understands democracy and is fit to hold elected office and it is not a particular surprise to me that Sir Keir Starmer fails this test: he has suggested that Labour will vote against repeal of Section 40.

It's probably a good thing for anyone involved in politics to occasionally ask themselves the Mitchell and Webb question:

Well, if you are voting to keep Section 40 on the statute book, or worse, to bring it into effect, on this issue you are the baddies.

I can't put the arguments against it better than they were put by "Index on Censorship" on the campaign page of their website for which my quote of the day for today is taken:

What is Section 40 of the Crime and Courts Act 2013? | Index on Censorship

As they put it,

"Section 40 addresses the awarding of costs in a case where someone makes a legal claim against a publisher of “news-related material”. The provision means that any publisher who is not a member of an approved regulator at the time of the claim can be forced to pay both sides’ cost in a court case — even if they win.

What is wrong with Section 40?

Section 40 does not protect “ordinary” individuals as its advocates claim. It protects the rich and powerful and is a gift to the corrupt and conniving to silence investigative journalists – particularly media outfits that don’t have very deep pockets. 

Special interest investigative news outlets could shy away from exposing government officials engaged in bribery, for example, because – even if the publication is right – they could end up paying both sides’ legal costs if the story is challenged by a claimant. This could bankrupt a small organisation and would make many investigative journalists think twice about publishing a story for fear of being hit with crippling costs from any claim. The role of the press is to hold the powerful to account and they need to be able to do this without the fear of being punished for doing so."

"It’s a fundamental principle of a free press – and a free society – that if journalists or anyone else wants to ensure politicians are held to account then they must be entirely free from political control."

"The publications most likely to be affected by Section 40 are small publications like Index on Censorship or local newspapers, like the Maidenhead Advertiser, that refuse to join a government-recognised regulator. Many local newspaper editors are very worried about the impact of this. 

Section 40 does not protect individuals from an unchecked, irresponsible press. That is achieved by making redress cheaper and faster by mechanisms such as early arbitration and mediation that avoid courts altogether, and by making sure any self-regulator applies a clear and robust code of conduct that holds papers clearly to account for any mistakes."

Quite.