What is Section 40 of the Crime and Courts Act 2013?

[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]

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][/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]

Index on Censorship response to the IMPRESS consultation

November 2014 (PDF)

As a UK-based organisation dedicated to the promotion of free speech and elimination of censorship worldwide, Index on Censorship is pleased to have the opportunity to provide feedback on the documents that proposed press regulator IMPRESS has drawn up ahead of its formal launch. Index also made written and oral representations to The Leveson Inquiry on the culture, practice and ethics of the press.

IMPRESS asked specific questions, to which Index has responded below. Our comments should be in no way seen as an endorsement – or indeed – a rejection of IMPRESS.

1. Do these documents meet the criteria set out in the Leveson Report, as distilled in the Royal Charter on Self-Regulation of the Press, for an independent and effective regulator? How might they be improved in this respect?

These documents reflect in large part the criteria set out in the Leveson Report and even more closely the requirements outlined in the Royal Charter on Self-Regulation of the Press, particularly on the important question of redress through swift and transparent complaints and arbitration procedures.

However, Index remains concerned that the independence and efficacy of a regulator will not be guaranteed by seeking recognition from an oversight body established by Royal Charter. A Royal Charter – though arcane – remains a political instrument. Royal Charters are established by Her Majesty’s Most Honourable Privy Council, the bulk of whom are politicians, including serving members of government. Though we accept that the Recognition Panel is conceived in a way that is intended to demonstrate absolute independence from government control, the establishment of an oversight
body through such an obscure piece of political machinery is not a mechanism likely to inspire the public trust and confidence required by the public. The whiff of undemocratic, non-transparent political involvement in the creation of the regulatory body has tainted it from the outset.

As the Privy Council says on its own website: “…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to charters can be made only with the agreement of the Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy.” (our italics)

There is little clear evidence that the Recognition Panel, as currently conceived, would restore public trust in the British press, or indeed behave in a way that would hold a regulator successfully to account, as scandals involving the oversight of other independent regulators, such as the Care Quality Commission, have shown. A study by the Media Standards Trust has shown that more than 70% of the public believe that it is important that a new system of press self-regulation is periodically reviewed by an independent commission, but it is by far from clear that the public believes that this should be a Recognition Panel established by Royal Charter. An opinion poll conducted by Survation in April 2013 found that 67% of those surveyed concurred with a statement that any regulatory system should be set up ‘in a way that does not give politicians the final say if and when changes need to be made’.

In addition, Index remains concerned that, aside from the Royal Charter, other elements of legislation introduced in the wake of the Leveson Report represent a threat to media freedom. One of the most worrying of these is section 42 (3) of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents.

There are two principles here that threaten a free press. Firstly, that in effect joining a regulator becomes less than voluntary if you have the threat of punitive damages hanging over your head. Secondly, that those who do not join and therefore feel under threat of exemplary damages will skirt away from controversial subjects and investigative journalism, and opt instead for “safe” stories.

Such measures could be especially punitive for small publishers and news organisations with limited financial means. This has a damaging effect on free expression.

Supporters of this aspect of the act argue that exemplary damages would only apply to “reckless” action by journalists, but it is possible that a court could find that a breach of Article 8 rights to privacy and reputation was by definition “reckless” even when a journalist was pursuing an investigative news story in the public interest.

2. Do these documents (in particular the ‘sunset clause’ in the Mem & Arts) serve to protect the regulator’s independence from potential interference by politicians or civil servants? How might they be improved in this respect?

The memorandum and articles skirt around the issue of whether IMPRESS would seek recognition under the charter although it is made clear in other documents that IMPRESS would seek recognition. For the reasons outlined above, Index believes that IMPRESS should not seek recognition under the Royal Charter and that a robust ethics code, financial independence, and demonstrations of efficacy (i.e. participants shown to be held to account; swift and cheap arbitration) are the only ways in which the independence of the regulator will be truly demonstrated.

3. Do these documents serve to protect the regulator’s independence from potential interference by subscribing publishers? How might they be improved in this respect?

It is unclear from the documents supplied by IMPRESS what precisely the relationship would be between the funding mechanisms for IMPRESS and the regulator itself. The implication of the documents is that the regulator would be funded by participants (as with IPSO) but (unlike IPSO as currently envisaged) these participants would have no further role in setting the agenda for IMPRESS or carrying out its duties.

Complete transparency over the regulator’s funding is vital for its success. The agreement between participants and regulators should state explicitly that the funders can have no role whatsoever in the operations of IMPRESS or in its decision-making. Clear and total separation between the funding of the regulator and the regulator itself is vital to ensure press freedom.

The IMPRESS website identifies a number of current funders of IMPRESS but no details are given outlining the expected cost of running the regulator or the regulator’s financial plans. This raises the question of how the body can ensure it will be adequately funded — and therefore its long-term sustainability — should participants decide, for whatever reason, that they are no longer happy with the decisions being taken by IMPRESS. This should be clarified, along with greater detail on the projected cost of the regulator and its intended sources of income.

One mechanism that could help improve public confidence in the industry as a whole might be to make subscription open to individual journalists. This would mean the public could be assured that the body represents the press as a whole and would help IMPRESS to cover a fuller range of publishers who might be covered by the Crime and Courts Act.

4. At the same time, do these documents serve to give subscribing publishers confidence in the regulator’s operations? How might they be
improved in this respect, without compromising the regulator’s independence from the news industry?

It is unclear from the documents provided by IMPRESS whom it considers to be a likely member. The Crime and Courts Act sets out four cumulative criteria which must be met by a publisher to satisfy the definition of relevant. A publisher must:

. Publish “news-related material” (see below)
. Publish “in the course of a business” (whether or not carried on with a view to profit)
. [Produce material] “written by different authors”, and
. [which is] “subject to editorial control” (over the content of material, presentation
and the decision to publish).

Schedule 15 of the Act exempts publishers including broadcasters, public bodies, charities, micro businesses, and those who publish special interest titles, scientific and academic journals, company news publications, and books. But as English PEN has shown (‘Who joins the regulator: A report on the Crime and Courts Act on publishers’), a number of small publishers may nevertheless be caught in the net and there remains a “dangerous” level of uncertainty about the definition of “relevant”. Index has serious concerns that the implication of this, as detailed above, is a restriction on
investigative and challenging journalism.

5. Do these documents provide clarity about the regulator’s procedures? How might they be improved in this respect?

More clarity in the Procedures document regarding; the internal ombudsman; the complaints handling procedure; and conditions of joining, would be welcome. In its prospectus, IMPRESS states: “The regulator will not receive complaints directly unless or until the internal complaints system has been engaged without the complaint being resolved in an appropriate time.”

6. Do the IMPRESS/CIArb Arbitration Rules serve to give potential litigants in a relevant action confidence in the scheme’s capacity to provide access to justice? How might they be improved in this respect?

Index would suggest that IMPRESS consider the Alternative Dispute Resolution mechanisms outlined in the submission by the Alternative Libel Project, a collaboration between Index on Censorship and English PEN, which include suggestions on Early Neutral Evaluation. Details can be found here.

In conclusion, Index welcomes attempts by all the sides of the press to better self-regulate in ways that both protect the independence of the media and the free speech rights of the broader public. However, we remain opposed to the Recognition Panel as established by Royal Charter as the mechanism through which oversight of any regulator should be achieved, and deeply concerned that punitive measures such as exemplary damages negate any notion of a recognised regulator being voluntary.

This material can also be found in PDF here.

Ipso’s flaws should not be an excuse for state media regulation

The Independent Press Standards Organisation (Ipso) does not yet meet all the requirements for an effective, voluntary self-regulator. But we should not let flaws in its current design be used as an excuse to turn to state regulation of the press – or to introduce a system that effectively makes press regulation compulsory, and which punishes the poorest.

Index on Censorship welcomes the establishment of the new press regulator Ipso, but calls for further work to be done to ensure it is both clearly accountable and genuinely independent in providing an effective means of dispute resolution. As we said in our submission to the Leveson Inquiry in 2012, the range of inappropriate, unethical and illegal behaviour by some journalists and media organisations that the inquiry exposed demonstrated a clear need for “a better and tougher approach to press regulation” and that a new and more effective approach to self-regulation of the press was vital if statutory regulation was to be avoided.

Index does not support the Royal Charter, an ill-conceived political fudge that indicates the beginnings of creeping state interference in an industry that must remain entirely free of political and governmental involvement, and does not believe that any regulator should seek recognition under the Royal Charter.

As we wrote in 2012: “A new regulatory body, set up on a self-regulating basis, must push for a high standard of corporate governance and accountability. And it must have a wide-ranging remit to monitor and address issues of journalistic standards including ethical standards. It must offer a straightforward, effective and fair approach for dealing with individual complaints [and]… must be able both to defend privacy and to be clear about where, when and why a public interest defence can override privacy.”

Though we believe the new regulator goes some of the way to meeting these demands, it is of concern that despite the length of time Ipso has had to consider the matter, the regulator launched today offers no effective means for swift, low-cost dispute resolution and complaint handling. Rapid, cheap arbitration will be a key element for any successful press regulator and comments from Sir Alan Moses this morning indicate that Ipso is still a long way from a decision on how such a scheme should be run. Ipso must institute an easy, fast and fair way of resolving defamation claims and other disputes as a matter of urgency.

We are also worried about the level of genuine accountability of the new regulator, and the potential for the wealthiest news organisations to exert undue influence over the workings of Ipso through its current funding mechanism, not least through a current proposed veto that the funding body would have over any changes to the regulator’s code of conduct. Sir Alan Moses will need to ensure there is clear separation between the workings of the regulator and the newspaper members that fund it. He will also have to do more to demonstrate how Ipso will be publicly accountable.

There is a risk that without a clear indication of how the independence and efficacy of Ipso’s work will be assessed and verified, other proposed press regulators may seek to gain public trust by seeking recognition under the Royal Charter. This could unleash exemplary damages and costs for Ipso members and any other publishers, including potentially individual bloggers and small websites, who choose – for whatever reason – not to be part of a recognised regulator. Such actions would undermine the very notion of a voluntary system of regulation, and therefore of a free press.