It's time to put Section 40 and the threat of a second Leveson inquiry behind us

11 Jan 2017  |  Raymond Snoddy 
It's time to put Section 40 and the threat of a second Leveson inquiry behind us

There are plenty of press scandals in need of urgent attention - but none of them involve increased regulation backed by the sort of legislation that would please dictators everywhere

The period of consultation on press regulation is now, mercifully, over.

We can for the time being say goodbye to Impress, the UK's only officially recognised press regulator, appearing on television accompanied by clips from the man who finances them, the scarcely disinterested Max Mosley.

Few minds will have been changed as a result.

There are those who believe, on principle, that involving Government in the regulation, or even the official recognition of the regulation of the press, is a step too far to be fought and rejected at all costs and almost comically irrelevant in the Internet age.

No meeting of minds seems to be possible between such people and those who believe the worst of the press - with some justification after the phone-hacking scandals - and argue that independent regulation of the press by the press is something of an oxymoron.

It is almost surreal, however, that we should now be discussing passionately such an issue at all, when few members of the public, apart from noisy pressure groups, seem to care.

And why indeed should they care when there are the likely effects of Brexit, Trump, the state of the NHS, the resurgence of Russia, and in the sphere of information - if not journalism - the rise of the fact-free society, to worry about.

Processes have to be gone through when unwise political promises have been made and consultations have to run their course.

Somehow rational people have to find a way of easing politicians off the hook on which they have impaled themselves.

Ed Vaizey, the best Culture Secretary we never had, has helped by declaring that former Prime Minister David Cameron had been wrong to try to impose the first specialist press laws in modern times.

Former media minister Vaizey, who was involved in helping to draw up legislation that included the notorious Section 40 of the Crime and Courts Act 2013, now a backbencher, has had the courage to admit that in retrospect the section was a mistake.

"A statutory solution in light of today's circumstances is not the right way forward," Vaizey now admits.

Despite the length of his inquiry and the mind-numbing length of his subsequent report into the standards of the press, Lord Justice Leveson barely even engaged with the impact of the Internet on newspapers, and the subsequent undermining of the economics of the press.

The impact of Section 40

The News Media Association (NMA) claimed this week that implementing Section 40 could cost the industry £100m a year in legal costs.

"Section 40 is designed to force newspapers into a system of state-backed regulation which the industry views as entirely unacceptable and incompatible with the principles of free speech," said NMA chairman Ashley Highfield.

"Not a single significant publication has signed up to Impress, the state-recognised regulator funded by one wealthy donor, with the vast majority of the industry choosing instead the new tough self-regulatory regime under IPSO which is independent of the industry and completely free from state control.

"Section 40 would have a hugely negative impact upon the press industry both here in the UK and overseas. Newspaper titles would be forced to close and our democracy would be poorer for it. This harmful legislation must be repealed immediately."

The NMA said Impress was "not a genuine regulator" and appeared to have been set up "purely as a device to trigger the Section 40 costs sanctions against the press."

There are indeed a number of press scandals in need of urgent attention - but none of them involve increased regulation backed by the sort of legislation that would please dictators everywhere.

The main scandal is that the funding model for our press will be soon be so weakened that it will no longer have the resources to provide verified information, let alone the confidence to hold the powerful to account.

At the moment there seems no end to the litany of negative numbers - 5 per cent a year fall in circulation on average combined with something like a 15 per cent drop in advertising revenue seems to be the new iron law of the media.

There is the associated scandal of the giants of the Internet which take little or any responsibility for the lies, garbage and misinformation that goes out under their name, but can hoover up classified advertising on an industrial scale thereby undermining traditional media.

The latest sign of tension and moves towards consolidation in the newspaper industry comes in the form of merger talks between Trinity Mirror and Richard Desmond's Daily Express.

Something is likely to happen here, whether a Trinity Mirror stake in the Express or a merger of back-office functions.

If anything happens, and it probably will, there is only one certainty, and that is that jobs will be lost and ultimately there may be a "rationalisation" of titles.

It will not be the last example of consolidation in the industry as titles huddle together for warmth.

Against such a background it almost beggars belief that anyone, other that the self-interested, should think it a good idea to try make it the law of the land that newspapers should have to pay the costs of all parties in libel and privacy cases even when newspaper win.

The effect on the financially stressed regional press, rarely if ever responsible for sins on the scale of the national press, could be catastrophic.

A few such "wins" in the libel courts could be enough to push titles into closure, or more likely have a freezing effect on reporting any contentious issues for fear of being sued in the first place.

Naturally, Impress thinks Section 40 is a good idea in the hope that it will work as a stick to persuade other titles to become regulated by a "recognised" regulator.

It is time to put Section 40 and the threat of a second Leveson inquiry behind us.

Culture Secretary Karen Bradley does, however, need a little political help before being able to park such inflammatory legislation.

The fear is that it is simply unacceptable for politicians to do absolutely nothing, even if that is the wisest course of action.

Section 40 already exists and merely has to be implemented and therefore could be held in reserve as a guarantor of continuing good behaviour.

She can perfectly reasonably ask for one significant concession for exercising restraint which would act as a much more reasonable alternative to Section 40 - low cost binding arbitration.

This was one of the more positive things sought by Lord Justice Leveson who also paid tribute to the important role of the press, even if it was sometimes unruly, raucous and uncomfortable.

The Independent Press Standards Organisation (IPSO) is already at work on a trial scheme for low cost arbitration.

But like many IPSO manifestations the wheels ground monstrously slow and are often uncomfortably low key.

IPSO and the newspaper industry are in the middle of the year-long trial.

What if Karen Bradley were to set a two-year deadline for the launch of a formal low cost arbitration scheme overseen by IPSO, the regulator of choice for the newspaper and magazine industry? In return Section 40 could be parked for the foreseeable future, certainly for this Parliament.

If we can come out of the European Union in two years it ought to be possible to come up with a workable arbitration scheme.

As for the immediate implementation of Section 40 or Leveson II: No - a thousand times no!

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