‘Section 40’ would protect media freedom – not have a chilling effect on the press

4 min read23 April 2018

Several myths have been skilfully circulated by opponents of reform to the UK’s media. But the ‘Section 40’ amendment to the Data Protection Bill would protect press freedom by removing costs-risks for independently-regulated publishers, writes Lord Attlee

Earlier this year, Baroness Hollins and I secured lords amendments to the Data Protection Bill concerning press regulation. Her amendment required the Government to commence the second part of the Leveson Inquiry while mine, in effect, would re-legislate for the cost shifting provisions of Section 40 of the Crime & Courts Act 2013.

Several myths have been skilfully promulgated by opponents of reform. The first one is that Leveson system is ‘state regulation of the press’. During debate in the Lords, no noble Lord, not even one of the at least four QCs against me, could explain how the state could interfere in the Leveson system. They did not even try.

What do we mean by a free press? The press can be, and is supposed to be, biased, partisan and opinionated. But if you are rich enough you can threaten the press with huge legal costs which can be enough to chill the press. Think Maxwell. This is part of why “section 40” was proposed – to protect press freedom by removing costs-risks for independently-regulated publishers.

A favourite argument is that it is unfair that under s40, if a newspaper (not signed up to an approved regulator) is sued by a claimant then the newspaper is liable to all the costs in the case win or lose. This is held to have a ‘chilling effect’ on the press. However, what is always conveniently forgotten is that if the newspaper is signed up to an approved regulator, the claimant will have to meet his own costs win or lose. Therefore, far from there being a chilling effect, the newspaper is protected from a Maxwell-type attack.

Quite properly s40 does not apply if there is not at least one approved regulator in operation. Since the News Media Association (NMA) made it clear that they would not be providing one, it was necessary for someone, preferably not the Government, to ‘pump prime’ the first approved regulator. Yes, the funding came from Max Mosely but via at least two trusts and he has no control of IMPRESS whatsoever. When the NMA tested this in the courts by means of Judicial Review the case was found to be “hopeless on the facts”. Since Counsel for the NMA was the Lord Pannick QC, who can probably blacken the character of the Angel Gabriel and get damages from the Holy Ghost, we can be confident that courts came to the right decision.

It is often claimed that IPSO is an effective regulator. When in the chamber I made some tough observations about the performance of IPSO but I was never challenged. For instance, IPSO has never arbitrated any cases, nor have they even instigated a single standards investigation, let alone levied so much as a £10 fine for misconduct. We only have to look at the Kerslake Report on the Manchester Arena attack to see the adverse effect of a pathetically weak regulator. We read about attempts to bribe to hospital staff or journalists harassing victims of their families. Some went so far as to impersonate officials or even interfere with fatal casualty notifications.

In all of this I was of course mindful of any adverse effect on local newspapers. When I approached the editor of my local newspaper we had a great discussion. Yes, he had sustainability problems but regulation and complaints were not problems. In the unlikely event that he makes a mistake, he corrects it.

We have a parliamentary system of which we can be proud. Members of all parties from both Houses regularly vote according the whip and on party lines. We do this believing that our party is right and in the absence of any compelling and reliable evidence that our party might be wrong.

I fully accept that I might be wrong. However, what I am proposing cannot be perverse because I am only proposing that which Parliament has already legislated for. The pressure on MPs must be exceptionally intense since only two Conservative MPs have felt able to discuss these matters with me. Even as a former Government whip in the Lords, I find this to be deeply disappointing and worrying.

Lord Attlee is a Conservative peer.

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