06/01/2017 16:35 GMT | Updated 06/01/2017 16:42 GMT

What Is Section 40 Of The Crime And Courts Act 2013, And How Might It Affect The Free Press?

The end of the free press, or making justice cheaper?


A potential new law which would make it easier for the public to take newspapers to court has prompted a vitriolic response from Britain’s press - with editorials and entire front pages dedicated to criticising the legislation.

Publications and websites, such as The Huffington Post UK, could be subject to a new condition, currently being consulted on, which would make publishers pay the legal costs of people claiming libel, even if cases are thrown out.

Section 40 of the Crimes and Courts Act 2013 was written in response to the Leveson Inquiry, which recommended legal remedies should be more easily available to ordinary members of the public and those who might not have a team of experienced and costly lawyers to hand.

The Section has been passed into law but has yet to be made ‘active’ by the government. A public consultation on activating Section 40, ending on 10 January, was announced in November.

Alastair Grant/AP
Sun editor Tony Gallagher has railed against Section 40, using the tabloids considerable clout

Fleet Street has rallied against one of its conditions - to pass on the legal costs of claimants to the press even in unsuccessful cases - which applies only if publishers refuse to join a state-approved regulator. 

At the moment, only one press regulator has been state-approved, Impress.

Critics have said the funding of Impress is closely linked with, if not funded by, high-profile defamation claimants and that its membership is insubstantial. Around 40 publications are members, Press Gazette reported.

Many newspapers argue the rival regulator, the Independent Press Standards Organisation (Ipso), of which most of Britain’s national newspapers are members, adequately adjudicates complaints and is independent from government. HuffPost UK is not a member of Ipso or Impress.

The Sunday Times said enacting Section 40 would stop a free press telling the truth. MailOnline said its very existence was threatened by the law. 

MailOnline said its very existence was threatened

Yet some of these fears over the effect of the possible new legislation are “heavily exaggerated”, a legal expert has said.

Will Richmond-Coggan, a partner and solicitor advocate at law firm Pitmans LLB pursued a groundbreaking libel case at the High Court last year.

He told The Huffington Post UK Section 40 will not change what constitutes a libel is in the eyes of the law. “The Defamation Act 2013 imposed substantial thresholds for what can be considered a libel,” Richmond-Coggan said.

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Libel cases have been heard at the Royal Courts of Justice at a cost of millions of pounds

“This is what I use as a lawyer when considering claims of libel. I have personally rejected claims on the basis they would not satisfy the thresholds in that Act. Section 40 would not change those thresholds,” he added.

That Act states a libel must be proved to have caused, or was likely to cause, “serious harm” to a claimant or serious financial loss to a business.

“The fears over Section 40 have been heavily exaggerated,” he added. “We’ve heard, for example, from the Sunday Times who said their Lance Armstrong expose would never have been published with Section 40 in place. But Armstrong successfully sued for libel in that case, and the Sunday Times in turn sued him when the story was eventually proved true. Section 40 wouldn’t have made a difference.”

Sunday Times
The Sunday Times said enacting Section 40 would stop a free press telling the truth

He also said Section 40 has been designed to minimise the costs for both parties - including the publisher.

“The whole point of Section 40 is to encourage a relatively low-cost arbitration service for cases where a complainant believes they’ve been libelled,” Richmond-Coggan said.

That arbitration service would come via government-approved regulators only. Such a service would be relatively cheap, if not free, and be quick, legal commentators believe

PA/PA Wire
The Daily Mail has rallied against Section 40 

But for publications unwilling to join a government-approved regulator, amid concerns over state control of the free press, a legally recognised arbitration service wouldn’t be available.

That means costs may be awarded against them, even if they win a case in court.

There are concerns this could create a ‘no win, no fee’-style culture among lawyers, as cases could be pursued with severely reduced risk on their part.

“Publishers choosing not to join an approved regulator - and thus be liable for costs whether they are successful or not - would I think create considerable appetite for lawyers to pursue claims,” Richmond-Coggan said.

Joe Giddens/PA Wire
Culture Secretary Karen Bradley ordered the current consultation into Section 40

Nonetheless, supporters of Section 40 say it will provide everyone with access to affordable justice and they’ve claimed opponents have engaged in a war of misinformation. 

“What [Section 40] chiefly does is to give every citizen a historic new right of access to affordable justice in cases of libel and unjustified intrusion,” Brian Cathcart, a professor of journalism and founder of the anti-phone hacking Hacked Off campaign, wrote on The Conversation.

The government said of its consultation on Section 40: “The previous Secretary of State for Culture, Media and Sport announced in October 2015 that he was not minded to commence section 40 at that particular time.

“The government has received various representations from interested parties since then and this consultation seeks to better understand the different views being offered and ensure we are engaging with the widest possible audience as we consider next steps.”