Section 40 is part of the Crime and Courts Act 2013, which deals with a whole range of issues but also implemented some of the recommendations contained in the Leveson Report into phone hacking by newspapers.
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.
But there is a recognised regulator — Impress — why not join that?
Index — which is itself a small publisher as well as a freedom of expression campaign group – will not join any regulator that has to have the approval of a state body. The Press Recognition Panel – set up by an arcane political mechanism called a Royal Charter – is the body that approves any press regulator and we do not believe it is sufficiently separate from politicians and political interests. Keeping Section 40 on statute effectively forces publishers to join an approved regulator even if they do not believe it represents their best interests or those of the public.
The Royal Charter isn’t really state involvement, is it?
Yes it is. Its supporters claim that the Press Recognition Panel, established by something called a Royal Charter, is at arm’s length from the government. It’s true that changes to the Royal Charter require a two thirds majority from both houses but after the recent manoeuvring we have seen from the House of Lords to introduce a version of Section 40 by the back door, and given all the unprecedented political upheavals worldwide over the past year, it’s not at all beyond the bounds of possibility that it could happen. Index on Censorship has always opposed the Royal Charter and we will continue to do so. We also campaign against government control of the media across the world as a principle.