11 January 2017

The case against Section 40


On Tuesday, the Government’s consultation over the future of press regulation closed. One of its two objectives was to canvass opinion on whether to implement or postpone Section 40 of the Crime and Courts Act. Here is an edited version of CapX’s submission.

Dear Culture Secretary,

I am writing as the Editor of CapX to register my opposition to any move to implement Section 40 of the Crime and Courts Act, on the grounds that it would inflict significant damage both on the British media and British democracy.

CapX does not currently qualify under the Act as a “relevant publisher”. We do publish “news-related material” which is “written by different authors” and “subject to editorial control”. But we are not a business, and we fall under the size threshold for a “micro-business”, having fewer than 10 employees – although it is unclear from the guidance whether the exemption is for any micro-business, or simply for “micro-business that are blogs”, which of course raises the question of what separates a blog from any other news site.

But just because Section 40 does not apply to us now, it does not mean that it never will. If we were to become a business and/or expand our staffing levels – potentially even if we were to engage in “commercial activity” such as putting on paid events for our readers – we would suddenly find ourselves subject to the new regulatory framework. And the very prospect of that is enough to deter us, or any other small publisher or would-be publisher, from taking such a step.

The only official state-recognised regulator is Impress. Yet as recent reporting has made crystal clear, it is impossible for senior figures at Impress to be anything remotely resembling impartial.

Their animus against papers such as the Mail and the Sun is obvious and longstanding. Yet the briefest glance at the Twitter feeds of these board members and senior executives show that this is not about a distaste for tabloid journalism per se, but a wider discomfort with those papers’ political stances – and indeed with the centre-Right more generally.

Impress is, by its own standards, a broad church. Well-meaning liberal-left types sit alongside outright Corbynistas such as Maire Messenger Davies, the chair of its Code Committee.

But taken as a whole, it is clear that these are people who are not active politically as an outgrowth of their interest in media ethics, but political activists who are bringing a pre-established worldview to bear on their view of the press.

We are not talking here about people who simply dislike the Mail’s editorial line (and for the record, on the very same day that CapX carried an article condemning Section 40, we also ran a critique of that paper’s views on aid policy).

No, we are talking about “independent regulators” who endorse tweets accusing Laura Kuenssberg of spreading anti-Corbyn propaganda, and whose own politics seem closer to The Canary than to The Times.

On top of this, of course, there is the fact that Impress relies for its income on Max Mosley, the country’s most notorious and most vocal critic of a free press.

Impress, in other words, should never have been recognised as a fit and proper regulator. Not least since for those such as CapX, whose coverage focuses on the benefits of competition and free markets, it is hardly feasible to submit to a regulator whose senior staff view our opinions with contempt (as, to be fair, we do theirs).

But even if a regulator had emerged that was packed with the wisest and noblest people in the land – whose every decision was a masterpiece of Solomonic jurisprudence – the use of Section 40 to compel publications to sign up to it would still be an affront to fairness, freedom and basic common sense.

Section 40 dictates that if organisations refuse to submit themselves to Impress’s scrutiny, they will have to pay the legal costs of those who take them to court – even if they are reporting the absolute truth, and even if they win their case in court.

Under such circumstances, were CapX (for example) to become an independent business, we would be not a rabbit in the headlights, but a lamb to the slaughter.

We do not publish gossip, or personal allegations: our focus is on how to deliver the greatest prosperity to the greatest number. But part of that mission involves a recognition that the powerful have too much power – that crony and cartel capitalism can be as much a threat as big government.

And if we published something that displeased one of these powerful figures – an oligarch, say, upset at our longstanding criticism of Vladimir Putin – we could not fight it. We would have to fold for fear of facing bankruptcy.

Section 40, in other words, will not just have a chilling effect in terms of what stories will be published. It will have a chilling effect in terms of what media organisations are established in the first place. Anyone intending to write critical things about those with deep pockets and high profiles will face an overwhelming disincentive for doing so.

And even if the implementation of Section 40 is postponed, the fact that it is there on the statute book, waiting to be imposed at the discretion of this or that Secretary of State, will have its own chilling effect on the behaviour of the press.

To see how unfair this legislation is, imagine that it were being imposed in a foreign country. The President and Generalissimo decrees that, in order to combat “fake news” and preserve the dignity of government, media organisations will have to bear the costs of any court cases that are launched against them.

This is press censorship, the international NGOs and international community would cry. Not at all, His Excellency would reply. These publications are still at perfectly liberty to publish whatever they wish. They will just have to be more responsible about doing so.

He would not be convincing. Nor, in Britain, are those at Hacked Off or Impress who argue that it is acceptable is to put every publication, large and small, left and right, broadsheet and tabloid, print and digital, in the crosshairs of opportunistic and intimidatory legal cases – just so long as it punishes those who endorsed phone-hacking, or who publish disobliging articles about immigrants and Jeremy Corbyn. (See this from Francis Wheen, deputy editor of Private Eye, for a real-life example.)

Section 40 will, as this thought experiment shows, have ramifications far beyond Britain. If, in future, a dictatorship or autocracy – of any size, in any part of the world – seeks to censor and curb a free press, they will have an easy rebuttal to any criticism.

Look at Britain, they will say. Look at the mother of parliaments and cradle of democracy. They think it’s OK. Why shouldn’t we?

And the answer, of course, is that it isn’t – or at least that it shouldn’t be. The case against Section 40 is as strong, on social, legal and moral grounds, as the case for it is weak.

We urge you not just to further postpone its implementation, but to ensure that a measure so overwhelmingly against the public interest is removed from the statute book completely.

Robert Colvile is Editor of CapX.