The Press and Section 40: Roy Greenslade and the Nightmare Scenario

By Professor Brian Cathcart

 

In the long history of special pleading by our corporate national newspapers, the nightmare scenario has played a distinguished role. Few ideas entailing even the slightest change or inconvenience for proprietors and editors have escaped this end-of-civilisation-as-we-know-it treatment.

 

They take the idea and stretch it to its absolute limit, no matter how improbable, absurd or even frankly impossible, and then ask the British public to imagine the apocalyptic consequences. If this change occurs, we are told, brave local newspaper reporters who are only doing their job will spend lifetimes in jail. Ancient and respected press titles will be ruined. National newspaper editors will find themselves swinging from gibbets. And inevitably, the curtain will come down on those 300 years of press freedom.

 

Once in a while, as with the shepherd boy who cried wolf, there are real grounds for concern. But most of the time – and indeed all of the time since these papers have been struggling to escape accountability for their thuggery – it is the purest humbug.

 

The latest humbug emerged this week from the keyboard of Roy Greenslade, media columnist at the Guardian, arguing against an amendment to legislation which will be debated by the Commons next week. You can tell he had a struggle constructing it – the buildup is very long – but here is the nightmare.

 

‘Imagine this scenario. A person who makes a legal complaint about a story argues that the details could only have been obtained by a journalist hacking into his/her phone. The editor, inevitably, would seek to protect the reporter’s source. In so doing, however, it would be impossible to prove whether hacking was or was not involved. In the ensuing legal action, under the section 40 provision, the newspaper’s publisher would be liable for the costs of the claimant as well as its own.

 It could prove commercially disastrous for some publishers. It would affect all newspapers that are not regulated by an approved regulator, which means all those titles currently with Ipso (i.e., the vast majority) plus the many outside (such as the Guardian, Financial Times, London Evening Standard and Private Eye).

 

There you have it. Greenslade is saying that if this small amendment becomes law newspapers would face ‘commercial disaster’. And this would happen because the  editor would be placed in the appalling position of having to accept ruinous defeat in a civil action for phone hacking rather than betray a source.

 

This is nonsense and any editors presently quivering with fear can relax. It won’t happen. If a complainant lodged a legal claim against a newspaper for phone hacking on the basis that ‘the details could only have been obtained by a journalist hacking into his/her phone’ that claim would be summarily dismissed. This is because the law requires people who sue to produce evidence first, so in a hacking case if there is no evidence of hacking there is no claim. In other words, in the real world outside the nightmare scenarios of the press such claims do not happen.

 

As for the risk of ruinous court costs, as Greenslade knows very well (but somehow fails to tell his readers), the little piece of law at the centre of this brouhaha, Section 40 of the Crime and Courts Act 2013, is notable primarily not for any burdens it supposedly places on the press, but because it confers on every British citizen a valuable new legal right – affordable justice in cases of libel and privacy.

 

The government is currently denying us all this right, but once we have it we will at last see the end of the decades-old scandal by which only the rich in this country are able to defend their reputations and their privacy in law. And if the Guardian or Private Eye found itself forced to pay court costs to a losing  complainant, that could only be because the Guardian or Private Eye had knowingly denied that complainant access to cheap justice in the first place.

 

The complete failure to explain this is of course characteristic of the recent campaign being waged against Section 40 by the corporate national press. What is disappointing is to find the Guardian failing in just the same way – and not only in Greenslade’s blog but in its news pages.

 

If you are a reader of the Guardian, the paper which heroically exposed phone hacking, ask yourself this: have you read a single news report explaining to you that if Section 40 is allowed to function no British citizen with a legitimate case for libel or breach of privacy against, say, the Mail or the Sun, will ever have to pay more than £75 to have that case heard? That’s right, not £75,000 but £75.

 

Some people at the Guardian, for whatever reasons, may not like the Leveson/Royal Charter arrangements that, in an admirably rigorous and transparent fashion, have delivered a certifiably independent, effective regulator in the form of Impress, but that does not justify selling Guardian readers short on the facts. (And by the way Nick Davies, the reporter who exposed hacking, supports Impress.)

 

As for Roy Greenslade, instead of calmly discussing a remedy for decades of injustice in which thousands of ordinary people who have been lied about and intruded upon by national newspapers have been powerless to defend themselves, he prefers to swing the telescope around and focus on a nightmare hypothesis which is so far-fetched as to be impossible.

 

Cup your hand behind your ear. That cry you can hear is ‘Wolf!’

 

This post originally appeared on Inforrm and is republished with thanks.

2 Comments

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Magnus Rogatumreply
October 28, 2016 at 03:10 PM

‘And if the Guardian or Private Eye found itself forced to pay court costs to a losing complainant, that could only be because the Guardian or Private Eye had knowingly denied that complainant access to cheap justice in the first place.’

Nonsense. The law states ‘The court must award costs against the defendant unless satisfied that (a)the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or (b)it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.
So the complaint is made, the paper is not signed up, the court awards costs because, of course, the arbitration scheme could have resolved the matter.
It would be amazing if a scheme could exist that would not claim to resolve almost any matter., And what does just and equitable mean?

EVAN HARRISreply
October 28, 2016 at 05:10 PM

It is not “nonsense”. You have misunderstood or failed to understand the point being made.

A recognised regulator must provide an offer of low-cost arbitration. So choosing not to join such a regulator is “knowingly” denying a “complainant access to cheap justice in the first place”.

If a publisher chooses to join a recognised regulator, not only would the adverse cost rule in section 40 not apply, but they would be better off than the status quo. This is because the same law you cite also states that a member of recognised regulator will not face an adverse cost order (even if they lose).

You are right that most claims could be resolved by a recognised arbitral scheme, and it is not the non-applicability of that scheme which is being referred to in the article.

The “just and equitable” exception means the court can choose not to impose the costs penalty in circumstances where the claim was – for example – abusive or vexatious.

Dr Evan Harris
Hacked Off

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