Section 40 of the Crime and Courts Act 2013
Section 40 of the Crime and Courts Act 2013 (‘Section 40’) was enacted following the Leveson Inquiry to ensure that all news publishers could be held accountable to the public in the event of misconduct either through an independent press self-regulatory body or through the Courts. It was also designed to safeguard the freedom of speech of news publishers who might otherwise be unable to defend against malicious litigation (known as Strategic Lawsuits Against Public Participation or ‘SLAPPs’) for lack of funds.
Section 40 would have provided the courts with a judicial discretion to award costs, win or lose, against a news publisher in the event of a member of the public brining a relevant claim (such as libel) if they had chosen not to join an independent press self-regulator. Equally, Section 40 would have provided the courts a judicial discretion to award costs against a member of the public brining a relevant if they had declined the option to resolve the claim through an independent press self-regulator’s arbitration scheme, win or lose.
In this way, Section 40 would have protected both the ordinary public and news publishers who might simply be unable to afford complex and lengthy litigation in the courts by directing cases for resolution to timely and low-cost arbitration schemes instead or offering protection from costs when this option was not available.
Section 40 was never commenced which means that, although it was on the statute book, the powers to award costs in this way were never conferred on the courts.
In 2023, legislation was brought forward as part of the Media Act 2024 to repeal Section 40. Despite the misgivings of members of the House of Lords that this was contentious, the Section 40 was repealed as part of the ‘wash-up’ procedure following the announcement of a general election on 22 May 2024. The wash-up procedure enables the Government, with the co-operation of the Official Opposition, to complete any unfinished business by passing non-controversial legislation that is in progress. This means that the repeal of Section 40, despite its contention, did not receive proper scrutiny.
Many misleading and factually incorrect arguments were presented in favour of repeal. As the body responsible for overseeing the system of independent press self-regulation, the Press Recognition Panel sought to inform both Parliamentarians and the wider public to both correct these claims and ensure that the debate was informed.
We have archived these communications to maintain a record of these events.