By Jonathan Grun

Guy Black – Lord Black of Brentwood – was addressing last week’s Institute of Commonwealth Studies conference on threats to press freedom in the Commonwealth when he felt compelled to mention the “elephant in the room” of British press freedom: Section 40 of the Crime and Courts Act 2013.

This repressive law, which has not yet been introduced but may be after a government consultation now taking place, will punish newspapers that have not submitted to regulation under a controversial Royal Charter.

A speaker from the floor of the conference, who obviously could not wait to see the press shackled by Section 40, seemed to believe that the measure was not an elephant – it was really a gift horse and the press was foolish to look it in the mouth.

From my viewpoint on the elephant / horse continuum, Section 40 is definitely at the elephant end of the spectrum – and in a country that prides itself on a free press it is a rogue elephant.

After the phone hacking scandal and the Leveson inquiry of 2011-12 some press campaigners and the government cooked up – over late night pizzas – a plan to set up a Royal Charter, under which a press regulator should be recognised. It was a half-baked proposal and we must hope that the pizzas were better cooked.

Most newspapers, on a matter of principle, rejected that approach because they believed it opened the door to state interference with the press.

Instead, the press set up a new regulator – the Independent Press Standards Organisation – and I believe it is doing a very good job of resolving complaints and also monitoring and raising editorial standards.

IPSO has even been consulted by the Royal Household: the Palace successfully brought a complaint against the Sun for its headline Queen Backs Brexit. Perhaps, instead of a Royal Charter, IPSO could qualify for a Royal Warrant.

So, how do you coerce the free press into membership of a state-recognised regulator? The answer is Section 40.

If Section 40 was brought into force, a newspaper that refused on a matter of principle to sign up to the state-recognised regulator would be penalised.

For example, if it was sued for libel it would have to be prepared to pay both sides’ costs, win or lose.

Astonishingly, if the publisher won the action, because the court was satisfied that the report was true, had been lawfully published, was in the public interest, and that publisher, editor and reporters had also all acted lawfully, the publisher would still have to pay the losing claimant’s costs and its own costs.

A free press that is coerced into membership of a state-recognised regulator is no longer truly a free press.

Think of the chilling effect of Section 40 – how it would be used by rich bullies who want to prevent newspapers investigating them.

Think of the message that Section 40 would send to other countries, where regimes would feel that their repressive measures were being validated by Britain’s example.

This year I have had the pleasure and privilege of being the chairman of the judges for the British Press Awards – often referred to as the Oscars of British journalism – so I have seen at first hand the real contribution that the press makes to our society.

It was been a real celebration of British journalism and it is good to share some the stories that were honoured.

So, the Awards were a celebration of why our newspapers are a force for good in our society. They delighted some, infuriated others, spoke truth to power, campaigned on behalf of their readers and were a vital part of our national conversation.

But, while they were doing all that good work, they were trying to invent new ways of story telling for a digital audience – and fighting the major threat of Section 40.

We simply do not know how that particular story will end. But it is only one of a number of threats that the British press has had to oppose in the last few years.

They are indicative of the dynamic tension that inevitably exists between a free press and the authorities.

For example, there was the way the police used – some would say abused – laws to obtain journalists’ phone records.

Police obtained the phone records of the Mail on Sunday when they were investigating the traffic speeding case of the government minister Chris Huhne and they obtained the phone records of Sun journalists when they were investigating the Plebgate row, which erupted when a Cabinet minister Andrew Mitchell got into a row with police at the gates to Downing Street.

And last year the press had to wage a major campaign to prevent the government watering down Freedom of Information Act laws, which allow citizens and especially journalists to request answers from official bodies.

FOI is certainly very effective at finding things out. It has really helped citizens learn more about how their country is being run and it has increased transparency in government.

So it was very worrying to find that the government’s review team resembled to some observers a kangaroo court, packed with critics of Freedom of Information.

The outcry involving the press and others forced a welcome retreat by the government. But of course, maintaining the status quo was all very well. We should have been pressing forward to increase the transparency of government. Instead we have to be grateful that it was not reduced.

The next fight may involve a proposed revision of the espionage laws that could mean that whistleblowers and the journalists who work with them are given the same criminal status as spies in the pay of a foreign power.

As you can imagine, that idea, even in draft form, was greeted with outrage and it may well be killed off after consultation – it certainly should be.

But there will be some, who operate in the shadows and prefer to keep it that way, who would welcome it.

So, it requires constant vigilance to protect our rights, even in a country that has a long tradition of a free press. In an era of so-called fake news that free press has never been more important.

If we succeed the press will benefit – but it is our fellow citizens, who rely on a free press to represent their interests, who will benefit the most.


Jonathan Grun is Professional Chair in Journalism, University of Sheffield