The government is set to repeal the crippling legal provision that pushes newspapers to pay both sides of court costs for defamation and privacy – regardless of whether they win or lose.
Pledging to “reform decades-old laws” and boost the public service broadcasters, the government said it will axe Section 40 of the Crime and Courts Act 2013 as part of the Media Bill.
This cull has been on the Tories’ agenda for a while, with the former previous Culture Secretary Nicky Morgan stating back in 2019 that the provision undermined “the essential role of local newspapers in speaking truth to power.”
Whilst the measure was never brought into force, the decision is a win for press freedom campaigners, who have argued that the law discourages publications from breaking stories out of fear of legal repercussions.
Partner at media and IP law firm Wiggin LLP Matthew Dando told City A.M.: “It [Section 40] would have forced media organisations to sign up to a state approved regulator or risk bankruptcy for reporting the truth. Robust investigative journalism would have been sucked dry between that rock and hard place.”
“Requiring newspapers not signed up to an approved regulator to pay both sides’ legal costs regardless of the outcome of litigation was extraordinary and counter to the very essence of democratic values. It would have seriously undermined the ability of the media to hold truth to power”, he added.
As it stands, libel law is already stacked heavily against publishers because broadcasters are required to prove the truth of stories, making the high costs of litigation crippling for even the best resourced media organisations.
However, law partner at Simkins LLP Jon Oakley defended the move, and stated: “It should be remembered that this provision came into being as a direct consequence of the Leveson Report, which found multiple failings on the part of the press both to behave responsibly and to regulate itself effectively.”
Indeed, the law was initially introduced to incentivise publishers to join or form an approved regulator, leading to the formation of IMPRESS, which covers 109 publishers and 193 titles.
However, no major publication has chosen to be part of IMPRESS, the only Leveson-compliant regulatory body.