Wednesday, January 04, 2017

More on why Section 40 of the Crime and Courts act must not be implemented

There is an excellent article on CapX by Alex Wickham of the Guido Fawkes website here about why it would be a disastrous blow to free speech and democracy in Britain to bring Section 40 of the Crime and Courts act into force.

As I said yesterday, section 40, passed in the wake of the Leveson inquiry and part of the over-reaction to some admittedly poor behaviour by the press, means that if a newspaper has not signed up to the state regulator and is then sued by someone who does not like what they have written, the legal costs of both sides can be charged to the newspaper even if they win the case and what they wrote was found to have been 100% accurate.

And even if it was in the public interest for what they had written to be published.

I do not believe that the people responsible for this legislation were actually stark-staring, ought-to-be-detained-under-section-II-of-the-mental-health-act bonkers enough to want such an injustice to actually happen. They wrote this preposterous nonsense into law as a means of trying to force newspapers to sign up to the press regulator.

Now, personally I think that this would have been a mistake even if there were no good reasons for newspapers not to want to sign up to a government-approved regulatory body,

Unfortunately it is worse than that. Alex makes a very good article that the board of Impress, the regulatory body which has now been set up, contains too many people who have a clear bias against sections of the press to be credible as suitable regulators.

I am not a huge fan of the British tabloid press. But if we want to continue to live in a free country, out attitude to much of the tabloid press must be the saying usually attributed to Voltaire:


Most of the British press is not going to sign up to Impress unless they are compelled to, in some cases because they fundamentally disagree with the idea of the press being subject to a government-approved regulator and in other cases because of a conviction - which appears to me to be justified - that prominent people in Impress are too hostile to them to be able to give them a fair hearing.

That means that if Section 40 is activated we will have a legal system which can penalise newspapers for publishing an accurate report of misdeeds by some rich and powerful person which any reasonable person would want to be in the public domain.

Some of those who defend section 40 will say "Ah, but the judges would not have to do that, they have discretion, we have good judges in this country and they won't do anything so stupid."

The reason this argument is not tenable is not that our judges are "enemies of the people." Most of them are wise people who get most of their decisions right.

The troubles is, all our judges and the other people in the legal system are mortal human beings and all mortal human beings sometimes make mistakes.

And if knowing that publishing something critical of some wealthy and vindictive person like the late and unlamented Robert Maxwell who is likely to sue carries not just the risk of being landed with huge legal bills if you write something inaccurate, but even if you are completely right but the courts decide to take Section 40 at face value - then some newspapers will conclude more often than they do now that they do not dare run the story for fear of financial ruin.

That would be even more disastrous for good journalism, and democracy, than it would be for the less savoury kind of journalism which the recommendations of Leveson inquiry were actually trying to deal with.

Hence Section 40 would be an intolerable blow against the health of British democracy and must not be brought into effect.

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