Dr Robert Thomas

A free and fair democracy requires informed electors, and the United Kingdom has a proud history of a robust and rigorous press striving to facilitate that. At its best, it fearlessly spurs debate, exposes vice and scandal, and holds power and authority to account. Its constitutional importance should not be underestimated, and we would do well to remember Thomas Jefferson’s sentiment that “were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

In recent times, however, this view has come in for considerable criticism. The appalling revelations of often illegal activity issuing from the telephone hacking scandal and the subsequent Leveson Inquiry have convinced many that new, active measures are required for closer regulation of the press.

Section 40 of the Crime and Courts Act 2013 was the result of this instinct that something had to be done. It contains a provision (as yet uncommenced) that requires the publishers of newspapers to register with an approved and recognised media regulator, or else be required to meet the cost of even unsuccessful libel claims. The Government announced in March 2018 that it did not intend to commence the provision and would seek its repeal. But the debate was restarted in May 2018, when the Deputy Leader of the Labour Party – the Rt Hon Tom Watson MP – tabled (but ultimately did not move to a vote) an amendment to the Data Protections Bill designed to enshrine “Section 40” powers into law.

In essence, the provision seeks to undermine one of the central roles of a free press by providing that newspapers not sanctioned by the Government (via an official regulator) would face the costs of any legal challenge regardless of its outcome. The inevitable consequence of such a proposal would see questionable activities far less readily exposed and public debate reduced to bland platitudes in line with the prevailing orthodoxy. 

As if to add insult to injury, it is absurd that largely unregulated website – against which newspapers must already face constant competition in a rapidly changing market – will be effectively excluded from Section 40’s penal provisions. The burden of such measures – estimated at tens of thousands of pounds for even the smallest libel case – would inevitably fall hardest on small, local newspapers less able to bear the financial cost of a legal action. If they can always be sued at no cost to the complainant whenever he or she takes a dislike to a story, they will either cease to report any matters of consequence, or else face potential bankruptcy simply for reporting the truth. 

That newspapers can avoid such a fate by signing up to a Government regulator – Impress – is scarcely any reassurance at all, since only the most anodyne or sycophantic publications would submit to a body so ultimately under the control of the State. As William Blackstone memorably pointed out in his Commentaries on the Laws of England, “To subject the press to the restrictive power of a licenser…is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points.”

It is surely better that the press – the key medium for public argument, accountability, concern, and outrage – continues to be a voluntarily self-regulating community, with truth its arbiter and those accused of wrong-doing taken before a judge from an independent judiciary.

Otherwise, there lies the way of tyranny. Section 40 must not be implemented – and amendments of the type which Mr Watson tabled must be voted down – if we are to avoid following such a dangerous and destructive path.