Section 40 is an appalling piece of legislation which will damn publishers

In practical terms for 2017, Section 40 means newspapers have to join Impress – an untested organisation funded almost exclusively by one individual (and a press critic at that) and approved by an official quango that itself reports to Parliament – or face huge legal costs even in respect of cases we win

Facing huge legal costs even in respect of cases you win is utterly iniquitous and surely cannot be what Sir Brian Leveson had in mind in 2012 (Getty Images)

For the last 10 weeks, the Government has been undertaking a public consultation on key aspects of media regulation. The most crucial relates to a provision of the Crime and Courts Act 2013 (Section 40) which, if implemented, would have the effect that media outlets which do not sign up to an officially “recognised” regulator would generally have to pay the costs for both sides in libel or privacy claims, whatever the outcome of the case. Since the costs of a libel trial can easily run into the millions, it is no surprise that the issue has exercised news publishers considerably.

The background to all this can be found in Sir Brian Leveson’s recommendations following his 2011 inquiry into phone hacking and other aspects of newspaper practice and culture, including press regulation. His call for a new system of self-regulation with some sort of legislative backstop was always something of a contradiction. Parliament’s attempt to resolve the paradox by using a Royal Charter to create an official Press Recognition Panel (PRP) was a triumph of optimism that reflected the peculiar anxieties of the time, rather than any obvious sound thinking.

By the time the PRP was established in the autumn of 2014, a significant section of the newspaper industry had already set up a new self-regulatory system to replace the Press Complaints Commission. The Independent Press Standards Organisation (Ipso), led by former appeal court judge Sir Alan Moses, made clear from the outset that it would not seek formal recognition as a matter of principle, given the link between the PRP and Parliament. However, an alternative regulator, Impress, subsequently sought, and in October was granted, approval from the PRP. Section 40 is therefore in play, should the Secretary of State for Culture, Media and Sport see fit to trigger it.

Timescales in this debate are all too easily ignored. It is more than 10 years since News of the World journalist Clive Goodman and investigator Glenn Mulcaire were arrested over phone-hacking allegations. The Leveson Inquiry, announced in 2011 as the hacking scandal exploded, heard from numerous victims whose lives had been made miserable by tabloid malpractice. Yet the resulting report already felt anachronistic when it was published a year later. It may have done a fine job of highlighting the excesses of some elements of the British press, but it felt like an analogue throwback in an increasingly digital world.

Five years on and that is even more obvious, as The Independent’s move to a digital-only business can attest most starkly. In half a decade, the priorities and nature of the news media has changed out of all recognition. Print may still have a significant role, but it is not dominant as it once was. Brands are global, not parochial – The Independent’s readership, for instance, is no longer predominantly resident in the UK. The key debates for journalism in 2017 are about how best to harness – and challenge – social media, and about the threat posed by fake news, not to mention the economics of keeping journalism alive. Phone-hacking, which was never carried out by The Independent in any event, is an old story; the idea of underpinning a system of media regulation by that favourite device of medieval monarchs, a Royal Charter, seems ever more bizarre.

When Ipso was established, The Independent chose not to become a member, primarily because of disagreements about whether potential future decision-making about changes to Ipso’s structure would be dominated by the bigger news publishers. Like our sister paper, the Evening Standard – and other titles including The Guardian and the Financial Times – The Independent has operated an in-house system of self-regulation for handling complaints. Our journalists continue to abide by the same rules overseen by Ipso. And to be fair to Ipso, it has done well under Sir Alan Moses’ leadership.

The alternative regulator, Impress, is a deeply odd beast. Funded primarily by that staunch critic of tabloid newspapers, Max Mosley, it has very few publisher members and none from among the major print or online news organisations. It has not yet finalised a code of conduct for its signatories and appears not to have handled any complaints. Yet as a consequence of it having been judged by the PRP to have met criteria set down by the Leveson Report, it has taken on a significance that is disproportionate to its day-to-day work and experience.

Of all the oddities here, perhaps the most obvious is that the debate about Section 40 arises not from phone-hacking but from the notion – discussed specifically by Max Mosley and Lord Justice Leveson during the latter’s inquiry – that ordinary people cannot afford to bring legal proceedings against news publishers. This seems to be accepted as a given. Yet it is unlikely that many editors would consider it so.

Section 40 was introduced on the premise that if publishers didn’t agree to pay for “low-cost” arbitration provided by a recognised regulator, they would face a penalty by paying the full costs for both sides in a pricey legal action. In practical terms for 2017, that means join Impress – an untested organisation funded almost exclusively by one individual (and a press critic at that) and approved by an official quango that itself reports to Parliament – or face huge legal costs even in respect of cases you win. This is utterly iniquitous and surely cannot be what Leveson had in mind in 2012. At the very least, it is impossible to see how Impress qualifies as “self”-regulation in any sense at all.

The truth is, if Section 40 of the Crime & Courts Act is implemented, The Independent, like every other member of the print and digital media which does not wish to sign up to Impress, will be forced to think twice before writing critically about any individual or organisation – however warranted the criticism. At a time when the media in the US is wondering whether a Donald Trump presidency will undermine historic press freedoms across the Atlantic, and when deliberate fake news can be sent spinning around the internet from Balkan bedrooms, it seems extraordinary that British-based publishers should be facing such a threat.

The UK Government must not implement this appalling piece of legislation – if it does, publishers will be damned.