Section 40: Protection for the People, or Oppression of the Press?

The United Kingdom might be seeing its own version of the infamous Gawker versus Hogan case play out in its own legal system, but with a twist. Section 40 is a new law that if enacted, will force publishers to pay for the legal expenses of the person suing them, regardless of whether the claimant wins or loses. This punitive measure has generated much controversy as media outlets could be unfairly subjected to bankruptcy.

Drafted as a result of the British News International phone hacking scandal in 2011, it is a part of a larger set of reforms proposed by the Leveson Inquiry that sought to control the abilities of investigative journalism in the UK. Parliament has opened opinions from the public for consultation regarding Section 40’s potential permanence.

The creation of Section 40 has incited protest in a majority of the British public due to the consequences for investigative journalism. Katherine O’ Donnell, night editor of the Scottish edition of The Times, called political control over journalism “a frightfully bad idea” in an interview with the Committee to Protect Journalists.

With the adoption of Section 40, smaller news outlets fear they could go bankrupt as journalists can be sued for the controversial stories they publish. The Telegraph believes that local newspapers will cease to exist due to financial inability brought upon them as a result of  expensive lawsuits induced by this act. The potentially crippling effect will also create a disincentive for investigative journalists to publish their findings, faced with the threat of financially ruining their employer.

Index on Censorship, a non-profit dedicated to defending global freedom of expression, believes that Section 40 will threaten the independence of the press. “The role of the press is to hold the powerful to account and they need to be able to do this without the fear of being punished for doing so.”

News outlets can escape the threat of lawsuits by joining IMPRESS, the only press regulator recognized under the Royal Charter. The Royal Charter being, in the words of Philip Morgan, required to act in the public interest, not strictly speaking to act in the members’ interest.”  IMPRESS provides arbitration scheme free to the public and protects publishers against the risk of court costs and exemplary damages.

Many publishers are fundamentally against IMPRESS because of its ties with Parliament, creating a conflict of interest for the press’ ability to report on politics. IMPRESS is also ept to being swayed by wealthy donors such as Max Mosley, who has recently invested £3.8m into the company. Mosley, former Formula One boss, won a lawsuit in 2008 for £60,000 after being falsely accused of being in a “sick nazi orgy”, and has thus been an advocate for tighter restrictions since. Peter Preston at The Guardian predicts that if Section 40 is to come into practice, “every national from the Sun to the Guardian, the Star to the FT – will be up in arms.”

Though many large news outlets are against Section 40, others see it as a mechanism to preserve reputations for those under the scrupulous eye of the media, such as politicians and celebrities.

While the press have often exposed celebrities for extramarital affairs and scandals, important investigative journalists are known for their reporting on MPs, whose excessive and inappropriate expense reports were exposed and criticized by taxpayers in the past.

Ed Balls and Yvette Cooper, two MPs married to each other, were exposed for buying a house with taxpayer funds in 2009. For politicians especially, these scandals ruined their chances of reelection, such as Jacqui Smith who lost her chair in Redditch. By enacting Section 40, wealthier parties can financially ruin news outlets who print stories they dislike.

If passed, Section 40 will only affect England and Wales, and not Scotland. Fiona Hyslop, the Scottish National Party’s Culture Minister, openly confirmed that their government did not believe in bringing Section 40 into Scottish law. As Scotland has its own independent legal system, they can reject the inquiry. This caveat could enable Scottish news outlets to become censorship safe havens for British journalists. Hyslop claimed “Any movement by the UK government to action Section 40 must carefully consider potential threats to the health of our democratic life and to the freedom of the press.”

After evidence was found in the News International phone hacking scandal in 2011, portions of the press were guilty of improper influence in pursuit of stories in the United Kingdom; since then, the British press has been under review.

The Leveson Inquiry and its statutes have been enacted by Parliament to hold news outlets financially responsible, but have yet to put in action. Facing strong public
resistance, Parliament has undertaken measures of public consultation of the Inquiry.

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