Protecting public interest journalism: the proposal within the new Media Bill
By Hanna Basha
Following the King’s Speech on 7 November, Hanna Basha assesses the repealing of section 40 of the Crime and Courts Act 2013
In 2011, the Conservative government mandated Lord Justice Leveson to propose recommendations and legislation for press reform. This was following the phone hacking scandal which engulfed the News of the World and ultimately led to its closure. The extent of the wrongdoing was later uncovered through criminal and civil cases; civil cases dealing with phone hacking are ongoing as at today’s date.
Despite the context of the recommendations, the Conservative government has slowly shelved each meaningful reform. The King’s Speech on 7 November 2023 repealed section 40 of the Crime and Courts Act 2013 in order to ‘protect public interest journalism’. This particular section, although never implemented, was intended to provide a mechanism whereby media groups, who had not signed-up to independent regulation, could be ordered to pay their opponent’s costs if sued, even if successful. It also allowed the courts to refuse to order the media group to pay costs where a claimant had unreasonably sued, instead of seeking to resolve the dispute through an arbitration scheme approved by a regulator.
While media groups, focussing on their liability to pay costs, have understandably rejoiced, it is worth pausing to reflect on the purpose of this legislation. Independent regulation of the media is important, as is independent regulation in all public sectors. It is not designed to fetter responsible public interest journalism. It is designed to make the press more accountable to the public. Regulation also gives the public faith in the press and provides a cheaper way to resolve disputes. Defamation cases can be expensive and it can be difficult for a member of the public of modest means to be able to correct false allegations or deal with publication of private information in the media, when large media organisations are funded by wealthy individuals or corporates with a whole bank of media lawyers at their disposal.
Section 40 was a tool which encouraged the media to be regulated and this can only be a good thing for both the public and the media. Moving disputes away from expensive arena of the courts and into the hands of regulators means that disputes are easier and cheaper to resolve. This gives the public real protection and is ultimately good news for the media.
Rather than focussing on an easy tool designed to encourage cheaper and easier resolution of disputes, the current government has spent its time and energy in implementing part, but only part, of a strategic lawsuit against public participation (SLAPP) regime. The Economic Crime and Transparency Act became law in late October and allows the early resolution of claims which are seen to be SLAPPs.
However, insofar as it relates to SLAPPs, the Economic Crime and Transparency Act is clunky and its consequences are uncertain. If a case is a SLAPP, and this is for the court to decide, then it can be struck out, but only if two pre-requisites are met. The first is that the claimant’s behaviour is ‘intended’ to cause the defendant distress, expense, harm or inconvenience beyond that which is normal in litigation. This will be difficult to assess. The second is that the claimant needs to show that the case is more likely than not to succeed at trial. How this fits with defences in defamation cases and the burden of proof will have to be worked out by the courts. It will be difficult for a claimant to prove a negative, such as that they are committing an economic crime, without knowing the charges against them or the reasons for the defendant’s assertion. While much of the procedure remains uncertain, what is certain is that dealing with these cases will involve specialist lawyers and, therefore, will be expensive and time consuming.
The rules of independent regulation do not and would never fetter responsible public interest journalism and, therefore, it is difficult to understand the shelving of section 40 of the Crime and Courts Act 2013, other than as a step to appease the press close to an election. It is disappointing, but given the continuing influence of the press on this government, it is hardly surprising. If current polls are correct, it will soon fall on a Labour government to grasp the nettle and we can only hope that they take steps to protect the public rather than the press.
Hanna Basha is a partner at Payne Hicks Beach