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Section 40: Time for Some Balance

This week we spoke to three prominent media lawyers about their views on the commencement of Section 40 and the benefits to publishers of a low cost arbitration scheme.

We are waiting to see what the Government will decide to do after its consultation on Section 40 and Leveson 2, but with so much that has been written about the potential consequences, what of the benefits of this law which Lord Justice Leveson envisioned?

Will Richmond-Coggan, media law partner at Pitmans, thinks that the importance of Section 40 is that it introduces fairness into the system of defamation.  He said: “It is often the case that those with deep pockets, whether publishers, wealthy individuals or corporations, are able to use the law by bringing a potentially costly court case.  Lord Justice Leveson acknowledged this unfairness and sought to help people to get access to justice.  So, what Section 40 does is ensure an equality of arms for ordinary people and smaller or less prosperous publishers so that they are able to resolve a complaint using low cost arbitration rather than through the courts.”

Amber Melville-Brown, partner and head of media & reputation at Withers Worldwide, comments on the press reaction to regulation. She says: “There has 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 Section 40.  This law is intended to incentivise media organisations to sign up to a robust, recognised press regulation scheme as anticipated in the Leveson recommendations.”

Most of the mainstream newspapers have said that the recognition process amounts to ‘state-regulation’, Jonathan Coad, media lawyer and partner at Lewis Silkin, who acts for publishers and broadcasters as well as undertaking reputation management, disagrees: “The press insistently and mendaciously asserts that a Leveson-compliant regulator would amount to state regulation.  This is absolute nonsense.  The broadcast media, for whom I have acted for 25 years, is regulated by a statute-backed entity, OFCOM which, unlike IMPRESS, is a statutory body directly appointed and funded by the Government.  But that by no means results in the media being state regulated.  Anyone who has watched senior politicians being flayed by interviewers of OFCOM-regulated broadcasters knows that this claim by the press is ridiculous.”

Richmond-Coggan also considers that it is important to see Section 40 as part of a patchwork of provisions which were enacted by Parliament at the same time and which are a codified whole that aims to protect the freedom of the press.  “This is certainly not a legislative regime which is anti-publisher.  It was generally recognised that defamation and media dispute costs were escalating dramatically and that those with money were strong-arming their way into court.  The whole purpose was for the law to produce publisher-friendly costs and protections for publishers, as well as the public, including increased threshold tests to make it more difficult for cases to be brought and extra protections against spurious claims.  But where there was a case to answer there would be a level playing field for all parties.”

Far from deterring the print media from running trenchant investigative stories, Jonathan Coad, thinks this law offers far-reaching safeguards for publishers: “Section 40 offers publishers who are members of a recognised regulator invaluable protection from any threats from powerful companies and individuals who would rather they did not publish a story. It is therefore a protection for rather than a threat to the Article 10 right to freedom of expression. It means that the publisher can publish without fear and rest easy that their ability to call those in power to account and to uncover the truth is protected by the law.”