Sunday, October 23, 2016

Don't activate Section 40

There are a lot of contenders for the description of the most ridiculous or unjust act put on the statute book in the last fifty years.

Some would nominate Section 28: others might nominate Section 5 of the Public Order Act 1986 which until it was repealed in 2013 made it a criminal offence to insult somebody. The ban on Beef on the Bone and the Dangerous Dogs act would probably also get a mention.

One of the daftest has not - yet - been implemented but there is a possibility that ministers might shortly be asked to activate it. They should refuse.

Ironically the very same bill which removed one ridiculous law included another one.

Section 57 of the Crime and Courts Act 2013 scrapped the law that meant that it could be a criminal offence to insult someone.

Unfortunately Section 40 of the same act has a serious claim to be one of the most unjust and one-sided laws ever passed.

The Leveson Inquiry into the activities of the Press, and the Phone Hacking trials, demonstrated that there were some serious problems in the way certain journalists were behaving and that some of them had an unhealthy relationship with the police. So it is not surprising that "Hacked Off" and others wanted action.

However, it is important for the workings of British democracy that action does not become over-reaction. Let's not forget that the pre-Leveson law was quite strong enough to bring those accused of the worst abuses exposed by the inquiry before a court, including some of the most powerful people in Britain, and to obtain convictions, and some very rich and powerful people went to jail.

Because of the message sent by those convictions it is much less likely that the worst excesses exposed by the Leveson Inquiry would happen again today, and if they did it is far from obvious that draconian new press laws are needed to deal with them.

Section 40 of the Crime and Courts Act 2013 is an example of such a draconian law. I very much doubt that it was ever intended to actually be used: it is on the statute book as a threat to newspapers designed to ensure their good behaviour and to blackmail them into signing up to a supposedly "voluntary" regulatory regime. It does not come into effect until the government activates it and in my opinion one of David Cameron's wiser decisions was that he never did activate it.

One of the things which section 40 says is that if you don't like something written about you in a newspaper, and you sue them, they have to pay your legal costs. Not just if you win, which would be fair enough, but if you are proved to be a liar and the newspaper wins, they can still be told to pay your legal bills.

Now I am all in favour of protecting people, whether they are high or low, from having the newspapers write lies about them or invade their privacy. But it is utterly wrong to protect anyone, high or low, from having newspapers tell the truth about them in a matter of legitimate public concern!

It has been suggested that the government may soon be asked by the new press regulator set up under the Leveson recommendations to activate Section 40. For the sake of a free press in Britain, I really, really hope they don't do it.

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