Is Freedom of the Press under Attack? Analysis of the Proposed New Press Law

“A free Press can be good or bad, but, most certainly without freedom, the Press will never be anything but bad.” These words, taken from the philosopher Albert Camus, open an article by the Telegraph expressing strong opposition to the proposed Section 40 of the Crime and Courts Act 2013. The Telegraph, among other leading British newspapers, has complained about the above-mentioned legal provision that requires accepting state-backed regulation or facing the payment of costs of both sides in legal cases. This article will therefore explore the background to the story and the proposed law that has shaken the entire media sector and the general public.

Press Regulation after Leveson’s Inquiry

When the News of the World phone-hacking scandal broke, the Government found itself in the middle of controversy. The former Prime Minister, David Cameron, had hired Andy Coulson, the paper’s former editor, as his director of communications. This, coupled with the alleged collusion between the police and the press and complaints made with regard to the treatment of public figures, celebrities and victims of serious crime, made the Government institute a wide-ranging judicial inquiry into the culture, practices and ethics of the British press under Lord Justice Leveson.

In January, the Government completed a consultation on the Leveson Inquiry and its implementation. Interestingly, Lord Justice Leveson’s report included a proposal that press organisations ought to join an officially recognised and independent regulatory body which would monitor their activities. In addition to this, he recommended that, if the press refuse to join the relevant regulator, then they would be exposed to adverse financial penalties. Namely, if they are sued, they would be obliged to pay their own costs and those of the complainant, even if they win the case. Further to this, the Government is to take a final decision on whether to continue with or to terminate Part 2 of the Leveson Inquiry, “Leveson 2”, which concerns the relationship between the police in England and Wales and the media.

Section 40 of the Crime and Courts Act

The controversial Section 40 stipulates that if a libel action was brought against a publisher, who is not a member of a state-approved regulator, it would be required to not only pay its own costs, but also the costs of its opponent, even if the publisher won the case.

Although Section 40 provides for a departure from the general rule on costs – the loser pays – it allows for some exceptions:

a) if the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member); or

b) if it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.

The Reasons behind the Newspapers’ Strong Opposition

Crucially, the Government’s proposal for the new press law has been put forward in times of financial struggle for print publishers, who are now in strong competition with social media news feeds and news websites.

In addition to this, Impress is so far the only independent regulator to have received Government approval. However, Impress is underpinned by a Royal Charter, hence is perceived by the press as controlled by politicians. The regulator has been criticised as biased because “ultimately it is politicians who would set the rules for newspapers, making journalists subject to restraints imposed by the very people journalists are supposed to scrutinise.” In consequence, newspapers that refuse to join Impress to safeguard their independence could be subject to unique cost implications, even if the brought case is groundless or their reporting is in the public interest.

Newspapers are therefore concerned that Section 40 will have a chilling effect on what the press is able to report. The new law is feared to supress investigative journalism and vibrant debates on issues like official failures over widespread child abuse, revealed doping and cheating in professional sport, or the use of public money by politicians.

Next Steps

The Government’s consultation on the Leveson Inquiry ended in January and both the public and the press are awaiting its outcome. Nonetheless, it is highly likely that the Government will drop or delay indefinitely introducing Section 40 due to widespread criticism from the media, the legal community and the general public.

Should the law be introduced, the UK legal landscape with regard to defamation cases may shift and one might expect a surge of litigation, or threats of litigation, which is going to affect the legal representation of both publishers and potential claimants.