When Section 40 of the Crime and Courts Act 2013 was quietly put in the bin ahead of the 2024 UK general election, one of the most forceful arguments made in support of repeal was that it undermined news publishers’ freedom of speech.
This is a bizarre and fundamentally incorrect argument.
Section 40 was designed to encourage news publishers to participate in independent press self-regulation by providing a protection from costs against any relevant claims, such as libel, being brought against them in the courts, which a self-regulatory body’s processes could have otherwise resolved.
This is a long way of saying that Section 40 would have made it much harder for wealthy organisations and individuals to try and muzzle investigative journalism by misusing the court system to bury news publishers in costs (known as ‘Strategic Litigations Against Public Participation’ or ‘SLAPPs’) if that news publisher was accountable to an independent press self-regulator.
But Section 40 was not a free pass. It also balanced public protection by removing the obstacle of costs from individuals bringing a relevant claim, such as libel, against a news publisher if it did not belong to an independent press self-regulator (subject to judicial discretion), making it easier for ordinary members of the public to hold them accountable through the courts instead.
This protection for freedom of speech could have been particularly powerful for smaller news publishers. It seems odd to deny this protection to small and local news publishers, given their role in countering dis- and misinformation, particularly in times of crisis, such as the tragic events in Southport and subsequent public disorder over the summer.
The risk of challenge in the courts may be perceived by smaller news publishers as a major obstacle, with the ability to defend yourself being seen as an entrance fee before undertaking investigative journalism. While this may only be a perception, it may nevertheless restrict smaller news publishers’ freedom of speech.
We can only speculate that larger commercial titles with access to their owners’ deep pockets prefer the current system, where individuals have to bring claims through the courts to challenge them effectively. Not only does this generate more news to sell – always good for brand awareness – but it may deter new entrants to the market.
More importantly, news publishers can use a ‘get out’ option in the courts by offering money to settle a claim, which, under the court rules, is too good to refuse for the claimant and potentially financially ruinous to reject.
Over recent years, there have been several examples of news publishers using Part 36 of the Civil Procedure Rules to reach ‘no admission of liability’ settlements when claimants sue them by offering a large settlement figure and transferring significant financial hazard to the claimant. Defendants in civil cases can thus prevent evidence from being tested in the courts and limit the reputational damage caused by an allegation of misconduct by keeping it as exactly that: ‘just an allegation’.
It has to be assumed that it would be far more damaging for the facts to be found proven on the balance of probabilities by a judge, adding more fuel to the public debate around the need for a genuinely independent and effective system of press self-regulation.
Some news publishers seem happy to shell out vast sums of money if it keeps evidence of wrongdoing out of the limelight. However, they baulk when it comes to paying for a (likely faster and more cost-effective) system that holds them to account when they break the rules without a public interest justification.
Of course, in the background, these same news titles want to be protected against SLAPPs but do not want this protection to come with the strings of responsibility and accountability that Section 40 envisaged.
There have been some efforts by politicians to give the press what they want – the previous Government brought in the Economic Crime and Corporate Transparency Act 2023, which strengthened protection against SLAPPs in so far as they related to economic crime and supported the Strategic Litigation Against Public Participation Bill, a Private Members Bill that went even further, although did not complete the parliamentary process before the 2024 general election was called. The new Government has also signalled its general support for protecting news publishers’ freedom of speech.
However, it is important to establish a proper evidence base for any change. Media lawyers have raised concerns that the industry’s claims are overstated, and implementing reforms to strengthen protection against SLAPPs may further restrict access to justice for members of the public who have experienced press harm.
It is already incredibly difficult for ordinary members of the public to have their say when they feel that they have experienced press intrusion. Their voices are easily silenced when news publishers operate outside independent press self-regulation by inadequate complaints systems or the prospect of time-consuming, expensive, and complex legal proceedings.
Freedom of speech, it seems, is a principle that sections of the press believe should only apply to them and at the expense of everyone else’s rights. The Leveson Inquiry identified the ‘too close’ relationship between the press and politicians as one of the enabling factors through which the industry could maintain a ‘benign regulatory environment’ allowing press misconduct to thrive. If the SLAPPs debate is anything to go by, this looks like a lesson we will shortly be repeating.