Thursday, January 05, 2017

Five days left to protect the freedom of the press

Democracy rests on three pillars:
  • the sovereignty of the people expressed through the ballot box,
  • the rule of law including independent courts,
  • and freedom of speech including a free press.
To have a genuinely free society you need all three of those things.

If you believe in democracy, you should be saying

Article 50, yes please; Section 40, No thanks!

A committed supporter of democracy should say Yes to article 50 because, regardless of the position one took before June 23rd, the decision on whether Britain should stay in the EU was put to the people and the result of a majority vote should be respected.

But if you want to keep a properly functioning democracy, it is quite simply intolerable that newspapers who have decided not to sign up to a state-approved regulator should be put in the position that if they are sued by somebody who does not like an article they write, they can be liable for that person's legal costs even if they prove in court that it was true and in the public interest.

I have linked to several excellent articles in the last few days explaining why Section 40 should not be introduced and there is another powerful article making that case by Fraser Nelson here.

Most of the press have signed up to a regulatory body called IPSOS which is not recognised by the government: hardly any have signed up to IMPRESS, the approved regulator, and for the reasons Alex Wickham laid out here I don't blame them.

It is bad enough that Section 40 of the Crime and Courts Act 2013 managed to get onto the statute book during the period of extreme concern about the press following the Leveson inquiry and the phone hacking scandal.

It is terrifying that there appears to be a danger that it might actually be implemented. A government consultation on whether to do so closes in five days time, at 5pm on Tuesday 10th January 2017.

It is not necessary to have section 40 to deal with phone hacking, which is already illegal, and those journalists and editors who could be proved in a court of law to have been involved in it went to prison.

The best argument made by the supporters of section 40 in the parliament is that they want ordinary people, particularly those who cannot afford expensive legal representation, to have an affordable right of redress if the press write something which isn't true about them. It would, for instance, solve that problem if IPSOS, the regulatory body which most of the press is signed up to, were to introduce a system of low-cost arbitration. The one point on which I am in agreement with many of those MPs and peers who support section 40 is that it would be a very good thing if IPSOS did this.

The reason that I cannot, however, regard section 40 as an acceptable means of securing press reform is that it will punish the innocent along with the guilty and penalise accurate press reports as well as false ones.

The present government has - rightly - serious concerns about what section 40 might do to genuine investigative journalism and the local press in particular. Former minister John Whittingdale said in October 2015 he was not persuaded that the time was right to bring section 40 into effect."

The present secretary of state Karen Bradley has expressed similar concerns.

Unfortunately the House of Lords - in which the government has no majority - is supporting this measure, and as Roy Greenslade explained here a majority of peers attempted in October 2016 to bring section 40 into effect by the back door, through an amendment which has been called the "Leveson amendment" to a completely separate piece of legislation, the Investigatory Powers Bill.

To deal with the issues raised by this amendment, the government agreed to hold a consultation on  whether to activate article 40 and on whether to hold "Leveson 2" e.g. a second stage inquiry into the functioning of the press.

You can take part in this consultation at

and if you want to live in a country in which we have a free press that can challenge powerful interests without the risk of being bankrupted by vexatious legal actions, I strongly recommend that you do so, and ask the government not to implement Section 40.

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