UK: Who Wants To Be A Regulator? Newspapers And Section 40

"Section 40". The whisper of those sinister words is enough to send chills of fear down the backs of any self-respecting reporter. Or, according to the media, to any member of the public who wants to sleep easy in his bed at night with the prospect of tucking into a good breakfast newspaper the next day.

There has, of late, been much media hysteria, beating of press breasts and gnashing of journalistic teeth at the temerity of the government to seek to bring into force this section of the Crime and Courts Act 2013.The government gets nervous when the media bloodhound starts to growl, fearing that it might bite back as a vote-robbing feral beast. So, in advance of making a decision — the weighty task of deciding whether to put section 40 into effect is in the hands of Karen Bradley, culture secretary — a public consolation process was instigated, closing earlier this week.So why all the fuss? What is this satanic section all about?

In short, section 40 is intended to incentivise media organisations to sign up to a robust, recognised press regulation scheme as anticipated in the recommendations made after Sir Brian Leveson's phone hacking inquiry.

The section stipulates that any media publishers not enrolled with a "recognised" regulator could be the subject of "cost-shifting" in media cases brought against them, whereby defendant publishers could be required to pay the legal fees of individuals bringing claims against them, whether they win or lose.

"Recognised" means recognised by the Press Recognition Panel (PRP), set up by Royal Charter after the Leveson inquiry. And aye, there's the rub. The major newspaper publishers are used to "marking their own homework", as Sir Brian Leveson said in his inquiry, by being overseen by the discredited self-regulator that was the Press Complaints Commission. No surprise then they are unhappy at being regulated by what they consider to be a body lacking in independence. Moreover, because the PRP was set up under Royal Charter, they argue — not in any way convincingly in my view — that regulation by a PRP-recognised body amounts to state regulation. That, they scaremonger, will amount to little better than the Pravda-esque propaganda sheets of a totalitarian regime.

What the majority of Fleet Street would prefer — and all but the FT, The Independent and The Guardian have signed up to it — is to be regulated by IPSO, the Independent Press Standards Organisation. This, chaired by former judge Sir Alan Moses, is not recognised by the PRP. While it is free to apply at any time for approval from the PRP, it has no intention of seeking recognition.

The other horse in the regulation race, IMPRESS, was recognised by the PRP in October 2016. The two have routinely bared their teeth at each other. While IMPRESS is proud of its PRP rosette, those riding the IPSO steed say that IMPRESS is effectively 'knobbled' twice over, once by being a 'state' approved regulator, and secondly, by being the creature of Max Mosley.

Mr Mosley, it will be recalled, was the former president of the Fédération Internationale de l'Automobile (FIA). In 2008 his private, sexual conduct was plastered across the pages of the News of the World. He went on to recover damages, successfully arguing that his privacy had been invaded. Unsurprisingly, since then he has been a fervent supporter of privacy protection and he set up a charitable foundation to fund IMPRESS.

This, however, has been a stick with which the press has sought to beat IMPRESS, arguing that it is not independent because Mosley has an axe to grind. But it is hardly surprising that he would have a legitimate interest in press reform having been a victim of such privacy invasion.

It is as a result of having two bodies seeking to regulate the media — one 'recognised' but regulating a limited, albeit growing, number of small publishers, and one 'unrecognised' but preferred by the big players — that adds complexity to the government conundrum with regard to implementation of section 40.If section 40 is implemented, the big names — with equally big voices, deep pockets and extensive power — who have backed IPSO will, being outside the ambit of a recognised regulator, be subject to the penalties that the section imposes. They argue this will amount to victimisation and will have a disastrous impact on free speech and the financial health of the United Kingdom's media sector. As a result of the sections of the act already implemented, publishers which have signed up to a recognised regulator are exempt from paying exemplary damages in media-related court cases, whereas media defendants who have not signed up to a recognised regulator do not have this exemption. But this incentive — carrot or stick, call it what you will — has not been sufficiently attractive to those many publishers who have signed up to IPSO rather than IMPRESS.

What, then, is a government to do?

Putting off the evil day of decision, it has 'asked the audience' by holding a public consultation. Both sides of the fray have sought to encourage their clientele to back them with various tick-box pro-formas to facilitate the process. What the 'final answer' will be, and who will end up the winner of this dangerous game of 'who wants to be a regulator' hangs in the balance for the time being.

What is undeniable is that the press holds a vital position in society. Few of us would deny that a great democracy is served by a great press, a press that calls out corruption, holds authority to account and impartially reports the courts. But not a press that misinforms, that unfairly attacks, that unjustifiably exposes private lives or one that prizes prurience over privacy and tittle-tattle over truth.

Such is the power of the press that codes of conduct enforced by robust regulators — in addition to the laws of defamation, privacy, data protection, harassment, etc — are vital to ensure that standards are upheld. When they are not, the impact on the lives of the victims over which the press trample for a salacious scoop or an extra zero on their bottom line can be significant.

Those against implementation of section 40 argue that it is a charter for the rich and powerful to bully the press, but it is not just the rich and the high profile in society who are attacked by the media. The wilder excesses of Fleet Street can be launched at those without the wherewithal to fight back and defend themselves. Costs shifting in favour of claimants who seek redress against the papers could be a valuable tool in the hands of these individuals seeking to retaliate against media excess or intrusion.

And both IMPRESS and IPSO have launched arbitration schemes to provide cost effective access to justice for claimants who have a valid claim or complaint, but who do not have the finances for fully-fledged legal proceedings to obtain justice and vindication.

The full impact and likely practical success of these schemes will not become apparent for some while. And, accordingly, there is merit in the argument that while the government should not accede to the demands of the self-serving press and repeal section 40, a not wholly unacceptable interim measure might be to put this on ice until the adequacy of these arbitration schemes can be assessed.

What section 40 seeks to do is ensure that the press signs up to a regulator which has the stomach for a fight with the press when they go off track. If newspapers and other publications are not prepared to play by the rules that Leveson proposed, then surely they only have themselves to blame if they are penalised in costs as a result.

We are a lucky people in Britain. Glad of our ability to speak and read freely about others, and yet conscious of our desire to protect ourselves, we should all be enthusiastic proponents of free speech, but equally demanding of fairness, accuracy and privacy. Criticism of the Fourth Estate is not heresy — the press must be held to account in the same ways as other powerful organisations in society. We need to find a suitable balance between the respective rights at play, which could be provided by a proper code of conduct, adhered to responsibly by the media, and policed by a reputable and robust regulator with sufficient powers of enforcement.

As the two regulator horses gallop down the racetrack — one in the colours of Leveson compliancy, the other with the baying media hound on its back — it is clear that the path to the winning post is strewn with hurdles. If the press can't be trusted to run in the same direction of good conduct, then a regulator with some clout needs to crack the whip to ensure that it does.

Previously publishe in Legal Cheek Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.