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Time to Repeal Section 40 of the Crime and Courts Act

Time to Repeal Section 40 of the Crime and Courts Act

Introducing Section 40

Section 40 of the Crime and Courts Act was introduced in 2013 in response to the Leveson Inquiry. Effectively, it was intended as an anti-libel law. In theory, legal remedies would be more readily available to the general public. Publications which printed bullshit could no longer hide behind high-priced lawyers and the deterrent effect of the cost of legal action.

Of course, this being Britain, they’ve gone and screwed it right up.

The main problem is that all legal costs of claimants fall to the publishers. This is regardless of whether the court finds in favour of the claimant, or not. Publishers can avoid this by signing up to a state-approved press regulator. Currently, the only one approved by the state is Impress. The Independent Press Standards Organisation (IPSO) is not an approved regulator, although many publications are already members.

Why is this a Bad Thing?

When you see purveyors of hysterical nonsense like The Daily Mail complaining about this, it is hard to have sympathy. I’ve long struggled with my conflictions over the right to press freedom when weighed against the irresponsible journalistic standards that exist in the mainstream media.

What we need to look at, however, is the wider effect this could have. The Open Rights Group (and yes, for disclosure, I am a member), argues that the law is so vague that it risks silencing a free press. The ORG says that campaign groups such as themselves, or even multi-author blogs could come under its power. This means that grassroots, independent or other small publishing outlets that are seen to provide news could be sued by anyone who didn’t like what they said, regardless of whether it was true or not.

Relevant Publisher

This confusion stems from the act’s “relevant publisher” criteria. It’s not entirely clear on what constitutes a relevant publisher. The act regards a relevant publisher to be a person who, in the course of a business (although whether they aim to profit or not is irrelevant) publishes “news-related” material which is written by different authors, and which is to any extent subject to editorial control.

Under that definition, if I invited another person to contribute to this site and write articles such as this, while I acted in an editorial capacity, then I could fall under this law. That seems reasonable.

Why Not Just Join the Regulator?

First, that a regulator is state-approved seems to contradict the notion of independent. You can certainly argue that IPSO does not respond adequately to complaints about its member publications. Given the lies that continue to be peddled by certain newspapers, one could easily make a case that their existence does not deter agenda-pushing propaganda.

However, regardless of concerns over the failings of self-regulation, state-regulation could be seen as a step to eliminating freedom of the press. Surveillance laws have already been abused by those in positions of authority to target journalists. It’s not that much of a stretch to believe that approved state regulators could be biased towards the state.

Maybe such fears are unfounded and Impress, or other such regulators, will not show such bias. Impress does state it is constitutionally independent and autonomous. That it is a possibility, though, will rightly concern many publishers.

And let’s not ignore the fact that multi-author blogs can be run as a hobby. I’ve previously contributed reviews to Cult Reviews. In addition to movie critiques, there is some editorial news-style content on there about the cult film industry. I’m not the only contributor. Cult Reviews doesn’t make a profit. If that site were based in the UK, would it now be a news site that someone could sue if they didn’t like us trashing their film?

Many multi-author blogs will be completely unaware of this law and the implications of it. Ignorance may be no defence, but it’s bloody important when you’re liable for the legal fees of one angry reader.

But the Press Need to be Regulated

I would concur. The phone hacking scandal was despicable. It was a gross invasion of privacy. I would also argue that better access to legal recourse against the lies in the press is a good thing – but not like this.

We have to remember that if we want responsible journalism, and we want the balanced debate necessary for an informed electorate in a democracy, then we must not be eager to trample all over independent journalism.

We can make our point to the unethical outlets by refusing to supply them or their advertisers with our cash. Stop buying the scumbag rags that piss all over privacy. Refuse to spend your money at those who advertise in them. Don’t click their links. Ignore their clickbait headlines. Stay away from their websites if you can. Instead, support local news. Support independent media.

Silencing Voices

Those who do not sign up to Impress, or any future state-approved regulator, will be silenced. When legal costs can run into tens or hundreds of thousands of pounds, they will not risk a lawsuit because even if they’re telling the truth, they will have to pay those expenses. Many simply cannot afford to be sued once.

Now, there are some exemptions. “Micro businesses” for example, and publications that report news in an “incidental” way. The problem is that these exemptions are also vague, perhaps deliberately so. Bloggers and small online publications may be able to call themselves a micro-business and avoid it, but the rules (found in Schedule 15 of the Act) are not detailed. However, even if it is proven that minor publications have nothing to fear, it still doesn’t change things for larger publishers.

Most would like to see the tabloids stop printing utter bollocks and escaping any recourse. A tiny correction for front-page lies doesn’t cut it. But again, this law isn’t the answer. It may be intended to create a more responsible press, but it will almost certainly harm the free flow of ideas.

Fortunately, the government has launched a consultation. We only have a few days to make our voices heard and oppose Section 40. You can sign ORG’s petition to repeal Section 40 here.


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