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Select Committee report puts Section 40 back on the agenda

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It’s already been widely reported that last week, the Culture Media & Sport Select Committee has published its response to the government’s consultation on the commencement of S.40 (of the Crimes and Courts Act 2013).

In doing so, the arguments about S.40 have been put back on the agenda, with the future of local, regional, and national journalism right at the centre of that debate.

Given the significance of S.40 to the UK’s press as a whole, and the regional and local press in particular, it’s worth considering about the Select Committee’s report in a little more detail.

Disappointingly, but perhaps not surprisingly, critics of the press have reacted to it in a sensational way – “Committee defies the corporate press on regulation“, “All this will be a bitter pill for the industry and IPSO to swallow“, and “The committee’s recommendations are a resounding slap in the face for the corporate press“, to name but three of the more sensational comments.

It cannot be denied that the Committee has made a number of recommendations which demand reform of the current system of regulation, which some publishers might find hard to accept. S.40 provokes strong feelings on both sides of the argument.

But at the same time, it is arguable that the Committee’s response is a carefully structured compromise – on the one hand suggesting a regime which would lift the threat to freedom of expression created by S.40; whilst on the other, making it clear that the Committee is unanimous in believing that S.40 should not be repealed now.

And at the heart of the report is unambiguous message that IPSO needs to strengthened.

The Committee wants IPSO to:

have its financial independence codified in its own legal structure document;

  • to be given access to a “substantial fund” to enable it to be proactive and conduct its own investigations;
  • to reduce the cost of the arbitration scheme so that complainants incur minimal fees; and
  • to expand its publicity campaign to ensure that the public is made aware of its work

Disappointingly, however, on at least two fundamental issues, the Select Committee’s members have failed to address issues are fundamental to the debate on S.40, and to the concept of a free and independent press.

First, whilst the report records the press’ analysis that the creation of the Royal Charter process is tantamount to the imposition of state-backed regulation, it merely highlights (and criticises) some of the arguments put forward in support of this proposition. What the report does not do is give any indication of the thinking of the committee’s members on this fundamental issue – which is a glaring omission for something so important.

Second, the report addresses the press’ argument that S.40 will have a chilling effect on investigative journalism, by stating merely that there are exceptions to S.40 (which is true, though the exceptions are very restricted), and that there will be no chilling effect if publishers belong to a recognised regulator (which again is true, but hardly the point).

As to the way ahead, which after all is what actually interests journalists and publishers, the Honourable Members who sit on the Committee have made their view clear: failure to reform IPSO and to introduce a cheap arbitration scheme, should result in S.40 being implemented as it stands; but if these reforms are introduced, then the government should consider repealing S.40.

Interestingly, it seems repealing S.40 does not have to involve acceptance of regulation under the Royal Charter.

As Damian Collins MP, Chairman of the Select Committee said last week:

If the vast majority of newspapers and magazines continue to refuse, on principle, to accept regulation under the terms of the Royal Charter, then the government should create an alternative path, that would allow IPSO to become established as the preferred body to take responsibility for the self-regulation of the press”.

If this is the approach that the Government eventually adopts, then journalism across the board could well be saved the disaster of an implemented S.40.

And in that eventuality, the eyes of all journalists will turn to IPSO.  And that, no doubt, will be the challenge.