English PEN is a charity that promotes public enjoyment and access to literature, and defends freedom of expression for writers, journalists, translators, publishers and members of the public in the UK and internationally.
Reporters Without Borders – known internationally as Reporters sans frontières (RSF) – is an international non-profit organisation working to defend the freedom to be informed and to inform others throughout the world. RSF accomplishes its work through its wide network of correspondents in 130 countries, its offices and sections in 13 cities – including its new London bureau – and its consultative status at the United Nations, UNESCO, and the Council of Europe. As a leading defender of press freedom and freedom of information, RSF alternates public interventions and effective behind-the-scenes actions.
Questions on s.40
5. English PEN and Reporters Without Borders recommend that the government should ask Parliament to repeal all of s.40 now
6.Do you have evidence in support of your view, particularly in terms of the impacts on the press industry and claimants?
7. Please provide the evidence which supports your view [recommending that Section 40 is repealed].
Section 40 would introduce an unprecedented chilling effect for publishers and journalists in the UK, leading to self-censorship and a reduction in public interest reporting. The essential role of the press in our democracy would therefore be undermined, as well as the scope for any writer to investigate matters of concern and national interest for the public.
In our view, Section 40 is:
- inconsistent with existing authority;
- incompatible with the European Convention on Human Rights (ECHR); and
1. Section 40 is inconsistent with existing authority. It is in essence a provision which would have the same effect as for exemplary damages. As per Eady J in Mosley v News Group Newspapers Ltd :
First, [exemplary damages] bring the notion of punishment into civil litigation when damages are usually supposed to be about compensation. Secondly, the defendant's means can be taken into account because these damages are in some ways analogous to a fine … Thirdly, despite that, every such sum awarded goes not to the state itself, as is the case with a fine, but to the claimant in the litigation. It represents to that extent a windfall. Fourthly, in the context of those civil claims where a jury is still available, it is the jury rather than the judge which determines the amount of the appropriate penalty.
It is for these reasons that exemplary damages have consistently received negative treatment by the judiciary in the UK. For example, Lord Devlin referred to ‘the anomaly inherent in exemplary damages’, Lord Reid described them as ‘an undesirable anomaly’, ‘indefensible’, and a ‘form of palm tree justice’, and Lord Diplock referred to them as an ‘anomalous remedy’.
Under the common law, exemplary damages may only be awarded in two cases. The first is where there has been oppressive, arbitrary, or unconstitutional action by the servants of the government. The second is where (a) there has been wrongful conduct deliberately and knowingly carried out, and (b) there has been a calculation that what is gained by carrying out the act outweighs the damages at risk.
Plainly, the first category does not apply to publications to which Section 40 could apply. With regard to the second category, Section 40 would, if enacted, essentially allow for exemplary damages where the second requirement (the calculation of gain) has not been satisfied. Thus it would allow for exemplary damages where the common law would not, rendering Section 40 wholly inconsistent with established law. While Parliament has the right to make law that is inconsistent with the common law, going against years of judicial argument with a knee-jerk attempt to reform the law in light of the Leveson Inquiry is not the way to do it.
2. Section 40 is incompatible with the ECHR. It is incompatible with both Articles 10 (freedom of expression) and 6 (the right to a fair trial). Regarding Article 10 (freedom of expression), Section 40's incompatibility can be seen from domestic jurisprudence. As per Eady J in the strike-out application in Mosley v News Group Newspapers Ltd :
I do not consider it necessary in a democratic society that the scope of exemplary damages should be extended into the process of finding the right balance between competing rights under Article 8 and Article 10. There is no warrant for doing so in the common law and I see no justification for extending this anomaly, having taken into account the relevant considerations arising under the Human Rights Act 1998.
In the case itself, Eady J stated:
My primary reason for not extending the scope of this anomalous form of relief into a new area of law was that such a step could not be justified by reference to the matters identified in Article 10(2) of the Convention. It could not be said to be either ‘prescribed by law’ or necessary in a democratic society. That is to say, I was not satisfied that English law requires, in addition to the availability of compensatory damages and injunctive relief, that the media should also be exposed to the somewhat unpredictable risk of being ‘fined’ on a quasi-criminal basis. There is no ‘pressing social need’ for this. The ‘chilling effect’ would be obvious.
I therefore rule that exemplary damages are not admissible in a claim for infringement of privacy, since there is no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the tests of necessity and proportionality.
His judgment received favourable treatment by the Supreme Court, who all agreed with him on the exemplary damages point in R (Lumba) v. Secretary of State for the Home Department .
When the case went to Strasbourg, the court stated that:
Although punitive fines … could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of art 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of … punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.
Thus it is clear from both domestic and international jurisprudence that a provision which acts as a form of exemplary damages is highly likely to be in breach of Article 10.
As to Article 6 (the right to a fair trial), while there does not seem to be any ECtHR jurisprudence on a provision of law similar to the proposed Section 40 elsewhere in Europe, the fact that there do not seem to be any similar provisions elsewhere speaks volumes about the nature of Section 40.
Section 40 will force publishers to seek arbitration by threatening huge costs awards against those publishers who do not subscribe to a recognised regulator, which must offer this service. Furthermore, it makes access to court unaffordable in practice for those smaller and medium sized publishers which are considered ‘relevant publishers’ under the Act, but who may not wish to join a recognised regulator due to the element of coercion.
In Steel v United Kingdom  (also known as the McLibel case) the court stated that the denial of legal aid to two individuals defending defamation proceedings had breached their Article 6 right to a fair trial. We would argue that, on the basis that the denial of access to money with which to fund legal action is a breach of the Article 6 right to a fair trial, forcing defendants to pay the claimants' costs regardless of the outcome of a trial would have substantively the same effect and, thus, would also amount to a breach of Article 6.
Thus, while the courts are bound to apply the law as enacted by Parliament, they are also bound to read and give effect to primary legislation in a way which is compatible with Convention rights. Where they cannot do so – as would likely be the case if Section 40 were to be enacted – they can make a declaration of incompatibility.
3. Section 40 is wholly arbitrary in nature. As part of the Crime and Courts Act, a new class of publisher was created known as a ‘relevant publisher’, to define the publications expected to join a recognised regulator.
By differentiating between defendants who are ‘relevant publishers’ and those who are not, and defendants who are members of an approved regulator and those who are not, Section 40 seeks to penalise certain types of defendant, rather than specific types of conduct, thus being wholly inconsistent with the long-established legal principle of equality before the law.
English PEN and Reporters Without Borders are concerned that the lack of consultation and parliamentary debate surrounding the legislation and the Royal Charter has resulted in a confused, contradictory and arbitrary series of definitions and exemptions that will create uncertainty and will ultimately and seriously undermine freedom of expression.
The fact that Section 40 only applies to a particular category of defendant is compounded by the fact that this particular category is the press. As per the European Court of Human Rights (ECtHR) in Nilsen and Johnsen v Norway (1999)
According to the Court's well-established case law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to Article 10(2), it is applicable not only to 'information' of 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. As set forth in Article 10, this freedom is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
As per the ECtHR in Observer and Guardian v United Kingdom (1999)
These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the 'interests of national security' or for 'maintaining the authority of the judiciary,' it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'.
Thus the special importance afforded to the press by Strasbourg jurisprudence is clear. To single out a particular category of defendant to which both the domestic and international courts have repeatedly attached special importance is wholly objectionable.
To illustrate the arbitrary effect of Section 40 as proposed, defendant A person who yells someone's private information to a crowd of 1,000 people would not fall under the remit of Section 40 – since he is not a publisher – whereas defendant B who writes an internet blog containing the very same private information, which is read by only his two followers, would fall under the remit of Section 40. The defendants' conduct in both scenarios is the same (i.e. disclosing private information) and, indeed, the defendant's conduct in the first scenario is likely to have a far more damaging effect due to the size of the audience. Yet, because of who defendant B is in the eyes of Section 40, he would be exposed to a regime which has the same effect as exemplary damages whereas defendant A would not. This is patently unfair.
Furthermore, Section 40 clearly discriminates between large commercial publishers who can easily afford membership of an approved regulator and small independent publishers who cannot. For this reason, Lord Leveson (in the section of the report that this Section seeks to give effect to) expressly acknowledged that small publishers would not need to be regulated.
Section 40 does not define ‘publisher’. Based on the definition of ‘publisher’ at common law – any person knowingly involved in publication – Section 40 would apply to all kinds of defendants, including, but not limited to, independent bloggers, non-governmental organisations and social media accounts that comment on current affairs.
Categories of publisher that the government itself intended to be exempt will, according to English PEN’s analysis, be expected to join the regulator. This includes charities, not-for-profit community newspapers, political parties and specialist publications.
If Section 40 is commenced, these groups may find themselves liable to pay the costs of both sides, even if they win a case, as a result of the lack of clarity regarding the definition of ‘relevant publisher’. This will therefore not only have a chilling effect on the press, but on civil society as a whole.
English PEN has presented its analysis in full in its report Who joins the Regulator? https://www.englishpen.org/campaigns/who-joins-the-regulator/
English PEN’s research has demonstrated that:
- Publishers expected to be exempt from regulation appear to fall into the category of ‘relevant publisher’, including campaigning organisations, political parties and think tanks
- Terms in the legislation are poorly defined, leading to uncertainty for publishers and the risk of a chill on free speech
- Lack of clarity in the legislation will result in anomalies within categories of publication expected to be excluded from regulation, including blogs and specialist publications
- English PEN’s analysis of a range of publications, according to the terms in the legislation, reveals widespread inconsistency across the media landscape regarding which publications are exempt and which qualify for regulation
The legislation has significant implications for both free speech and access to justice. Publishers classed as ‘relevant publishers’ will have to choose between joining a recognised regulator or risking exposure to high court costs, even in cases that they win. This may make publishers who decide not to join a regulator more likely to self-censor in order to minimise their exposure to the risk of being sued, even if they believe that it would be lawful to publish.
Problems identified in definition of ‘relevant publisher’
English PEN’s research has identified the following ambiguities and inconsistencies, which are likely to give rise to a chilling effect with the commencement of Section 40:
- Community newspapers published voluntarily may be affected by the legislation, despite assurances by the former Secretary of State Maria Miller regarding not-for-profit publications. While it is self-evident that newspapers publish news-related material, it is unclear whether community newspapers publish in the course of a business (one of the tests for defining a relevant publisher). There is no definition of the term ‘in the course of a business’ in the Act.
- Special interest magazines. Many special interest magazines publish news that is of interest to their readers. In many cases, their publishers meet all the criteria needed to become ‘relevant’. The publications are made in the course of a business, written by different people and subject to editorial control.
- Political parties. All major political parties publish websites containing news-related material, written by different people and subject to editorial control. Are they published in the course of a business? Almost certainly. Political parties operate like many large businesses, employing people, producing annual reports and having their accounts audited. None of the exemptions listed in Schedule 15 can be said to apply. Political parties are not public bodies or charities. The publication may be said to relate to a particular pastime, hobby, trade, business, industry or profession, but the news-related material they publish cannot be described as only being published on an incidental basis to the main content of the title. The news-related content on political parties’ websites is significant. Websites published by political parties therefore appear to be relevant for the purposes of the Act. Local political parties will also be classed as ‘relevant publishers’.
It appears to have been the government’s intention to exclude at least local political parties’ newsletters. Maria Miller gave assurances to Conservative MP Jacob Rees-Mogg concerning their status and yet for this to be borne out in practice, such publishers will have to rely on the court to make very generous interpretations of either the term ‘in the course of a business’ or the word ‘incidental’.
- Charities, campaign groups and think tanks. Campaign groups regularly publish news-related material both in print and online. Stories on human rights abuse published by campaign groups such as Global Witness, Index on Censorship and Which? are clearly news-related for the purposes of the Act. They are written by multiple authors and edited and, although these organisations operate on a not-for-profit basis, their publications are produced ‘in the course of a business’. Furthermore, many do not appear to be exempt by virtue of Schedule 15 which exempts a ‘public body or charity that publishes news-related material in connection with the carrying out of its functions’ because of the structure of the organisations.
Index on Censorship, for example, which aims to promote freedom of expression around the globe, and publishes a magazine containing news-related material, has both a charitable and non-charitable arm. The magazine is commissioned by its non- charitable arm, and so, for the purposes of the Act, Index would appear to be a relevant publisher.
The government made clear, in the limited debate in Parliament, that it intended charities to be exempt and that it would be unlikely for campaigning organisations to be expected to join a recognised regulator.
Think tanks publish similar material to campaigning organisations, such as research, briefings and policy papers that may be news-related material. There is no exemption for such organisations and they will therefore be relevant publishers for the purposes of the Act.
8. To what extent will full commencement incentivise publishers to join a recognised self-regulator? Please use evidence in your answer.
For those who clearly qualify as ‘relevant publishers’, the commencement of the Act will effectively constitute coercion, rather than an incentive, to join a recognised regulator in order to avoid costs. This would undermine the fundamental freedom of the press.
The Act would also enable vexatious claimants to launch multiple claims, targeting publications with the aim of putting them out of business. It would, in our view, pose a fundamental injustice for a publication to publish a story in the public interest, be vindicated in court, and then be penalised further in costs. In order to avoid costs and to resist on principle the coercion to join a regulator, there is a high risk that publishers and journalists will no longer research or publish stories that pose any risk, resulting in a dramatic curtailment of the role of the press in our democracy to expose corruption, wrongdoing and hold the powerful to account. As outlined above, this is likely to affect charities, human rights groups, political parties and think tanks, exerting a chilling effect across society.
Leading publishers with a strong record of public interest journalism have already made it clear that they would not join a recognised regulator out of concerns that the coercion to join is an assault on their independence. While we recognise, and have long supported, the importance of low-cost arbitration, we do not believe that this necessitates the introduction of coercive legislation that poses such a threat to media freedom and an open society.
Questions on Part 2 of the Leveson Inquiry
9. Do you believe that the terms of reference of Part 2 of the Leveson Inquiry have already been covered by Part 1 and the criminal investigations?
10. Which of the following options best represent your views?
Terminate the Inquiry
English PEN and Reporters Without Borders would like to thank Leyla Linton and Humam Al-Jibouri at Mishcon de Reya who provided support and research in preparing this submission; and Helen Anthony, author of English PEN’s report Who Joins the Regulator?