Small publishers and local newspapers like the Maidenhead Advertiser could be targeted if Section 40 is implemented.
Local newspapers have an extremely important role in shining a light on corruption, danger and crime in their communities. This is not a job likely to be picked up by anyone else should those newspapers close. They do this in an increasingly difficult financial environment.
They report on court cases, the costs of local services and interrogate local officials. Once our local press dies that these essentials will probably go unreported.
The public should be aware that today is the last day that they can make clear to the government that Section 40 of the Crime and Courts Act 2013 is not acceptable in a modern democracy that believes in a free press. This is a bizarre law that punishes truthful reporting by making newspapers and magazines of all sizes and shapes pay the legal costs of a law suit that proves that their reporting is accurate and should not be given a place in our legal system.
This could have extremely dangerous effect on our local newspapers that’s why so many local newspaper editors have spoken about their fears for the future if Section 40 is triggered.
Here’s how some local newspapers have responded to Section 40.
“Section 40 of the Crime and Courts Act is an obscure piece of legislation for the public, but its implementation could force newspapers and magazines to pay both sides’ costs in privacy and libel cases, even if they successfully defend a legal action by showing their reporting was accurate and publication was in the public interest.
“A government consultation, which closes on Tuesday, is seeking opinions on whether or not to put costs orders under Section 40 into operation.
“This flies in the face of fundamental rights of the freedom of the press, freedom of expression, the public’s right to receive information, and the first principle of justice – that it should be fair.”
“It is no secret that the regional press operates in a very challenging commercial environment as we transition from being a print focused industry (where our revenues have been in decline for a number of years) into a digitally led business.
“The huge disruption in our industry has made the job of serving regional audiences harder, and it has been getting harder for the best part of a decade.
“I urge you to join me in opposing Section 40 of the Courts and Crime Act, a piece of legislation that would empower those who seek wrongdoing from the eyes of the public and add a huge financial risk to regional newspapers.”
“Essentially, this is a piece of legislation that would mean newspapers paying the costs for anyone who wants to sue them – whether they are successful or not.
“It would lead to a raft of spurious complaints made by people unhappy with something they have seen in print, who could challenge matters all the way up to the High Court, safe in the knowledge that if they eventually lose the case . . . the newspaper will pay their costs.
“Not only is this lunacy, it is dangerous lunacy.”
“Section 40 of the Crime and Courts Act 2013 will mean newspapers that refuse to join the state-approved press regulator IMPRESS will have to pay the costs of both sides in civil cases like libel – even if they win.
“The costs will be ruinous for the local press and even national newspapers will be dissuaded from running contentious stories that could result in legal action.
“The most solid defence against a libel action is that a story is true.
“Section 40 undermines this crucial pillar of British justice and with it brings the whole house crashing down on the role of newspapers to inform the public without fear or favour.”
“The terrible revelation that murdered schoolgirl Milly Dowler had her mobile phone hacked by national newspaper journalists quite rightly caused public outrage.
“But rather than demanding to know why the long-standing criminal laws that prevent phone-hacking had not been enforced and guilty parties prosecuted, politicians instead started a process that could well diminish Britain’s freedom of the press.”
“But if the Government decides to go ahead and put Section 40 into action, it is something that will affect every single reader of this newspaper – because it will place draconian constraints on what information we can and can’t share with you. In short, it means we could be punished for telling the truth.
“Stories such as the controversy about the Future Fit hospital proposals, the troubles of Shropshire Council’s IP & E venture, and the fall-out from the Operation Chalice investigation into child sex abuse could all become a thing of the past if the Government chooses to activate Section 40.”
Read the full Shropshire Star article[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_cta h2=”TAKE ACTION” h2_font_container=”font_size:30|color:%23dd3333″ shape=”square” color=”grey” use_custom_fonts_h2=”true”]
Index on Censorship urges everyone to voice their opposition to Section 40
Write to the Secretary of State
The Rt Hon Karen Bradley MP Department for Culture, Media and Sport 100 Parliament Street London SW1A 2BQ
[vc_row][vc_column][vc_column_text]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. Index on Censorship strongly opposes the introduction of section 40.
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.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/4″][vc_icon icon_fontawesome=”fa fa-times-circle” color=”black” background_style=”rounded” align=”right”][/vc_column][vc_column width=”3/4″][vc_column_text]
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]What’s wrong with state involvement?
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.
But some of your patrons are supporters of Hacked Off, which supports section 40.
Yes. And on this point we disagree with them. This includes people like the highly respected journalist Harold Evans. But many people also agree with our position, including human rights expert Lord Lester who has called the Royal Charter a “steamroller to crack a nut”.
But didn’t we need new laws?
No. The elements that the Leveson Inquiry was set up to investigate — contempt of court, phone tapping, bribing the police — were already all illegal. We had all those laws.
Would you join IPSO, the regulator to which the majority of the press belong and which is not approved?
No. We think that as a free expression organisation, albeit with a publishing arm, it is important that we stand outside the various vested interests of different parts of the media.
Isn’t this all just about protecting the big commercial interests of the press and allowing big newspapers to print lies?
No. 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.
But broadcasters are regulated, why not the press?
Broadcast regulation seems largely a relic of a bygone era when viewers had a choice between one or two providers and therefore the risk of skewed information loomed large. Government regulation of any media which has the power to stop stories being broadcast or otherwise published is a principle that Index opposes.
Should there be Leveson 2 to investigate the relationships between press and police?
We see absolutely no need for Leveson 2 – Leveson 1 already exceeded quite considerably its remit and investigating the relationship between the police and press seems no longer the most important concern when considering the print media. Leveson was already outmoded when it began and the inquiry’s recommendations fail to address the largely unregulated realm of online news.
Who is doing press regulation right?
Sadly there aren’t any models that work perfectly. Finland has an excellent model of self-regulation and is ranked at the top of the world’s press freedom indices but even there this is backed by statute, which has the taint of political involvement that Index on Censorship would be wary of. We monitor threats to press freedom in detail in Europe and neighbouring countries and the picture is deteriorating rapidly. Countries such as Poland and Hungary are introducing more stringent controls on the press that threaten the media’s independence. You only have to look to what’s happening to journalists in Turkey to see how easily democracies can extinguish press freedom by arguing it’s in the interests of national security.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1488189869194-a6a69648-dcf8-0″ taxonomies=”8993″][/vc_column][/vc_row]
[vc_row][vc_column][vc_column_text]Index on Censorship has for the past four decades published the work of censored writers and artists. Now we face the possibility of censorship thanks to a UK government law that means — as a publisher that refuses to sign up to a regulator approved by a state-created body — we could end up paying both sides in a legal dispute even if we ultimately win the case. The law, Section 40 of the Crime and Courts Act 2013, as it stands is a danger to a free press.[/vc_column_text][vc_row_inner content_placement=”top”][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-times-circle” color=”black” background_style=”rounded” align=”right”][/vc_column_inner][vc_column_inner width=”3/4″][vc_column_text]
Section 40 of the Crime and Courts Act is a direct threat to press freedom in the UK and must be scrapped.
[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_column_text]This part of the act, created as a response to the Leveson Inquiry into phone hacking, has been on the statute for three years but was not enacted because — until earlier this year — there was no approved regulator of which publishers could be part. That changed when Impress, a regulator to which so far only small local media publishers have signed up, was approved in October by the Press Recognition Panel (PRP). The PRP was established through an arcane state mechanism called a Royal Charter following the Leveson Inquiry. Having an approved regulator means Section 40 of the Crime and Courts Act could now be brought into force and that we and many other small publishers could face crippling costs in any dispute, threatening investigative journalism or those who challenge the powerful or the wealthy.
Section 40 of the Crime and Courts Act is a direct threat to press freedom in the UK and must be scrapped. The government is currently consulting the public on section 40.
Index has warned consistently of the dangers from the Crime and Courts Act.
1. Under s.40, or the “cost provisions”, in relevant media-related court cases, newspapers which are members of a recognised self-regulator are exempt from paying their opponents’ legal costs, even if they lost a case. The presumption would also mean that newspapers outside a recognised self-regulator must pay their own and their opponents’ legal costs, even if they win a case. The s.40 incentive is based on the fact that recognised self-regulators have to have a low cost arbitration scheme that replaces the need for court action.
2. Please provide the evidence that supports your view (max 250 words)
As a small, independent magazine publisher that is a “relevant publisher” of news-related material as per the definition provided in section 41 of the Crime and Courts Act 2013 and that is not subject to any of the exemptions listed in Schedule 15, Index on Censorship faces the prospect of having to pay the costs for both sides if a claim is brought against us – even in a case we are ultimately successful in winning. This could potentially bankrupt the organisation, effectively silencing a magazine that has for the past 44 years dedicated its existence to the publishing of work by, and information about, censored writers and artists worldwide.
3. To what extent will full commencement incentivise publishers to join a recognised self-regulator? Please use evidence in your answer. (max 250 words)
Index on Censorship will not sign up to a regulator that has to be approved by a state-appointed body. Freedom of the press – including total freedom from any state involvement in regulation of the press – is the bedrock of a free and democratic society. Section 40 stands in direct opposition to this principle. Introducing punitive statutory penalties is not an incentive – it is a threat. Forcing publishers to join a recognised regulator or face the threat of punitive costs makes a mockery of the notion that the self-regulator is in any way voluntary.
We urge everyone to write to their MP and to Secretary of State Karen Bradley requesting its immediate repeal or to respond to the online consultation.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”Press Regulation” category_id=”8996″][/vc_column][/vc_row]
On 27 March 2015, a group of claimants in the United Kingdom, including myself, won what is being called a “landmark victory” against Google Inc. It handles three billion searches a day globally, exercises a virtual monopoly and is valued at around £250 billion. It is also among the world’s biggest advertising agencies with revenue in 2013 of some £49 billion.
After fighting the claim for over two years, Google has been ordered to appear in court in the UK to answer the charges of invasion of privacy by the tracking and collation of browser generated information (BGI) via Apple’s Safari browser. In other words, “hacking” computer searches by getting behind the protections built into Safari on Apple devices – iPhone, iPad and Mac computers – in order to track the user’s browsing preferences. Google is thereby able to determine private information such as age, health issues, gender, sexual interests and preferences, and to sell this information to advertisers who can target the users. This is no different from what is commonly called “stalking”, only on a global scale.
But let’s begin at the beginning. In 2012, Simon Davies, one of the UK’s leading voices on the virtues of privacy, contacted me about the possibility of suing the internet search giant for the invasion of privacy. Three years later, after much to-ing and fro-ing in the British courts, what began as a speculative long-shot has taken wing in the legal imagination, becoming an important test case for the boundaries of privacy law in the UK and, by extension, the EU. This concerns not only the nature of privacy as understood in the context of Article 8 of the European Convention on Human Rights, but the definition of the term “damages’ in the context of the Data Protection Act (DPA) of 1988. For many in the legal profession, the chief significance of the case is in the possibility it opens up of suing non-resident companies and individuals in English courts on privacy-related grounds. This is a game changer and could set a precedent in UK law.
“You have a Mac, don’t you?” said Simon. “Yes, and an iPhone,” I replied. “Have you done much searching on Safari recently?” “More than usual as it happens. My car insurance, driving license and road tax were all up for renewal in November. And I’ve been shopping online, not something I usually do, but with grandchildren’s very specific Christmas demands only available there, I’ve been more active than usual in territory I don’t normally venture into.” All this in addition to my standard use of the internet in pursuit of facts, figures and data-checking familiar to any journalist or editor.
He went on to ask if I’d had been receiving an unusual amount of targeted advertising. Indeed I had! Given that Apple boasts of the superior security of its Safari browser, this was not only unusual, it was alarming. What had been going on? It seemed that Google had circumvented Safari’s default setting whereby cookies – small chunks of text with unique information such as the time of a user’s visit to a site – are accepted only if they come directly from the sites that users are browsing.
According to The Guardian, “Google wanted to use its DoubleClick and other ad systems to track where people go online, so that it can serve ‘relevant’ ads. It also wanted to be able to integrate its Google+ data into that information.” As the US-based Electronic Frontier Foundation (EFF) noted: “That had the side effect of completely undoing all of Safari’s protections against doubleclick.net.” It was, it added, “Like a balloon popped with a pinprick, all of Safari’s protections against DoubleClick were gone.”
Playing catch-up
The thought of making a claim, any claim, against Google was laughable. This was several years before Edward Snowden’s revelations of the NSA and GCHQ snooping activities in June 2013 raised privacy issues to a new level and put them squarely on the public agenda. It also preceded Google’s subsequent settlement with the US Federal Trade Commission (FTC) for the same offence. But it coincided with the revelation of News International’s massive phone hacking of celebrities, politicians, the Royal Family and, above all, of the murdered schoolgirl Millie Dowler. It was this that excited the public imagination and raised the matter of privacy to a new level. Suddenly it mattered in a different way; more personal, more threatening to the ordinary person in the street. The Leveson Inquiry kept the issue on the front pages through much of 2011 and 2012.
What is at stake here? How should we understand privacy in the different contexts in which we live and interact online? What powers should consumers have over their data? How can the power of corporations and advertisers be reined in? We are urgently in need of new definitions and concepts; those that served us even a decade ago are no longer adequate given the exponential advance of digital technology. What does “territoriality” or “residence” mean when Google can stretch out its hand from California and rifle through our data as we sit at our computers thousands of miles away? How can “jurisdiction” be confined to a geographical entity in the age of cyber crime and the global reach of search engines and browsers? What do we mean by “privacy” online when people are giving it away freely, not to say promiscuously, on social networking sites such as Facebook, Instagram and YouTube? And finally, though the case was not brought with this in mind, can “damages” be limited to pecuniary loss alone as apparently determined by the DPA?
The case against Google is not only about holding Google to account, but about beginning to clarify and modernise rules and definitions. Most important, it is about creating the laws needed to hold Google et. al. to account. As Guy Aitchison wrote in Open Democracy: “We are to a great extent playing catch-up. The rapidity of technological change has vastly outpaced the development of our laws, institutions and regulatory systems, along with the articulation of the ethical categories and principles with which to understand and evaluate them.”
Or, as Tim Berners Lee, inventor of the World Wide Web, put it: we need an “online Magna Carta” to protect the web. His “Web We Want” campaign was launched on UN Human Rights Day last year and calls on “ordinary people” to take control of the web and challenge “those who seek to control [it] for their own purposes”. It is within that context that we decided to pursue the present case.
A landmark judgment
It was not until June 2013 that we were allowed to serve our claim on Google to appear in a UK court to answer our accusations. Google was quick to point out that since it was not domiciled in the UK and did not pay taxes here, the courts had no authority to try the case and it would not answer our summons. We were, it said dismissively, entirely welcome to confront them on its home ground in California and set about getting this decision reversed. It did not deny the charges; on the contrary, Google admitted in February 2012 in the US that it had done precisely what we claimed. For this it had been fined by the FTC a record 22.5 million dollars for breaching the privacy of US users. In 2013, it paid a further 17m dollars to 37 US states plus the District of Columbia for the same offence. Following these judgements, Google promised not to repeat the activity and said it was taking all necessary measures to put right the damage it had caused.
In August 2013, Google was granted permission to challenge the decision and in January 2014 appeared before London’s High Court. Mr Justice Tugendhat rejected all Google’s arguments, namely that:
1. the cause of action was not a “tort” (see below);
2. there was no serious issue to be tried in relation to the claim in misuse of private information/breach of confidence;
3. there was no serious issue to be tried in relation to the claim for breach of the Data Protection Act 1998;
4. the claimants had not shown that England was clearly the most appropriate forum for the trial of the claims;
5. “damage’ means significant physical or economic harm and no such damage was alleged by the claimants.
Under the UK’s complex legal system, Google was able up the stakes and go one higher in its effort to evade UK justice. In the hope that it would reverse Tugendhat’s ruling, it went to the Court of Appeal.
And, for almost a year we waited; the courts of England are second only to the “mills of God” in the speed of their actions. Finally, in December 2014, we returned to court, but the single day allowed for the hearing proved inadequate and again we waited. It was not until March 2015 that the Appeal hearing was concluded over a further two days. Listening to the legal jargon, the citation of innumerable precedents and the complexities of the technical issues involved was mind-numbing: a six-hour-long address by the counsel for Google on the definition of the word “tort” came close to watching the proverbial paint dry. On later investigation, this word so crucial to the case turned out to mean a civil wrong causing damage to the persons involved and demanding redress in court. Because the invasion of privacy had previously never been considered a tort, Google argued that it could not be tried as a civil offence in a UK court.
Once again, the judge dismissed all Google’s claims, leaving us open to pursue the case. Announced on 27 March, it was a famous victory or, in the words of the lawyers involved, “a landmark judgment”. The Master of the Rolls, the Right Honourable Lord Dyson concluded in brief that:
On the face of it, these claims raise serious issues which merit a trial. They concern what is alleged to have been the secret and blanket tracking and collation of information, often of an extremely private nature, as specified in the confidential schedules, about and associated with the claimants’ internet use, and the subsequent use of that information for about nine months. The case relates to the anxiety and distress this intrusion upon autonomy has caused.
In addition to determining the matter of “serving out” on non-residents, it clarifies some important issues – the nature of privacy and its definition in law, the definition of damages – and prepares the ground for the determination of future law in this area, a change that reflects the changing nature of “privacy” in the world of global information technology.
What next?
Yet the so-called “landmark judgment” aroused little excitement in the UK media. Could it be that everyone is simply waiting for the next chapter? Or do the suspicions in some quarters that even the media is running scared of Google have some traction?
Much depends on what Google does next. Will it choose to up the ante once more by going to the Supreme Court? Or will it acknowledge the error of its ways and face trial? In the event that the Supreme Court refuses an appeal, will it settle out of court to avoid a potentially damaging judgement?
We shall see. Meanwhile, it’s only fair to acknowledge that Google is not entirely the monster this case presents it as. Not only does it provide a service without which most of us would be ineptly fumbling our way around the web, it is an employer of 50,000. Their terms and condition of employment are such as to foster the envy of their peers. But the utopian dystopia of Dave Eggers 2013 novel The Circle, whose inhabitants lead an isolated cult-like existence reminiscent of some of the more bizarre sects in the US might be nearer the mark.
And it can acknowledge fault, even though it has defended its record on privacy by claiming that much of its illicit information gathering was “by mistake”. As Google’s head of “people operations”, aka human resources, Lazlo Bock admitted in an interview in The Guardian: “There’s a lot of responsibility that comes with having a global brand and the kind of footprint we have and the kind of impact we have and we need to live up to that.”
Corporate responsibility is one thing, however, and abiding by the law another. The days when Google was free to roam the unregulated territories of the internet are slowly, but surely, coming to an end.
A full account of the appeal judgement in Vidal-Hall et al. v Google, including technical and legal terms and definitions, plus details of the claim are available at: www.bailii.org/ew/cases/EWCA/Civ/2015/311.html
Editor’s Note: Google is a funder of Index on Censorship
