Section 40 - The Good, the bad, and what it means for whistleblowers

30th January 2017

The press is an essential component of any democracy and of vital importance to the world of whistleblowing.

But whilst all agree that the press should be enabled to continue its vital function, it was widely recognised that in its role to expose wrong doing – its power and reach were being abused. People’s lives were needlessly ruined, lies were gratuitously told in search of profit, influence was leveraged in ways that were highly inappropriate, and, of course, phones were hacked.

To curb these excesses, the government have established a recognition process for regulators of the press. To gain recognition the body needs to fulfil the key criteria outlined by the Leveson inquiry. So far only one body, IMPRESS, has applied and been granted recognition, the majority of publications (including the Sun, the Times and Daily Mail) are regulated by IPSO who have refused to apply for recognition. Others have decided to be outside both systems (these include the Guardian, FT and Private Eye).

These new recognised regulators are entirely optional; a newspaper can stick to existing systems. But those newspapers who are not members of a recognised regulator would face paying both sides’ costs in legal actions such as libel, privacy, harassment even if they win the case (typically the loser would pay both sides legal fees). The message is that if you don’t want to be subject to the new model, then you must submit to heightened scrutiny by the general public through the courts. In the eyes of supporters of these reforms,the public are being protected because the publications will shoulder increased legal costs.

There are however grave fears Section 40 could be financially ruinous for newspapers who refuse to sign up to a recognised regulator. For an industry already struggling financially, it could result in the closure of many titles especially regional titles. This is a grossly out of proportion outcome when there has never been any suggestion that regional titles required better regulation in the first place.

Also, there is the danger newspapers will steer clear of more complex stories due to the added risk of litigation. This will only be exacerbated if, as is suspected, the rich and powerful use Section 40 to suppress coverage. If this were to happen it could result in a chilling effect on whistleblowing. It is already difficult to decide to blow the whistle to the media, but if the prospect of stories being published are reduced because of the potential costs, the options for holding the rich and powerful to account will be seriously affected at a local and national level.

Holding the press to account though has strongly divided opinion.

Campaign group Hacked off joint executive director Evan Harris said, “Public opinion remains solidly behind Leveson. The public sees no improvement in press behaviour and has no faith in the ability of newspapers to regulate themselves without independent scrutiny.’

Meanwhile the News Media Association has warned in its submission to the government consultation that enacting the legislation would cost the regional and national newspapers it represents £100m a year.

There must be clear guidance on what protections exist so Section 40 is not abused by the rich and powerful. Thought needs to be put into how any measure can enable proper scrutiny of the larger publications, without forcing the hand of smaller publications.

For the world of whistleblowing, getting this right couldn’t be more important.

In the interest of transparency, we would like to highlight IMPRESS are a commercial client of PCaW, and we provide advice to individuals who work for publication on their scheme, as well as providing consultation and training on all things whistleblowing.