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Section 40 decision set to be delayed by legal actions

scales-of-justiceThe Government’s decision on whether to bring into force provisions which could force newspapers to pay all the costs in defamation and privacy actions – even if they win – is likely to be delayed for months by legal actions.

Government lawyers yesterday filed papers at the High Court defending its decision to launch a consultation on whether to implement Section 40 of the Crime and Courts Act 2013 as well as whether to go ahead with Part Two of the Leveson Inquiry.

The consultation ended last week – but former police officer and Crimewatch presenter Jacqui Hames, an un-named victim of phone-hacking, and online news publisher Byline Media are contesting the decision to hold it in the first place.

Officials at the Department for Culture, Media and Sport, which is now sifting through a total of 140,000 responses to the consultation, said any decision on bringing Section 40 into force would be delayed until the end of the judicial review process.

A separate challenge launched by the News Media Association (NMA) which represents the interests of the national, regional and local press and magazine industry, has also launched an application for judicial review of the decision by the Press Recognition Panel (PRP) to accept Impress as a press regulator.

Should that challenge succeed and the PRP’s decision be overturned, the implementation of Section 40, were it to take place, would arguably become irrelevant, because the absence of a recognised regulator would mean courts could not implement the costs provisions against newspapers which had failed to sign up to one.

The NMA claims that the PRP made serious and fundamental legal errors in deciding to recognise Impress.

It filed its papers for its judicial review application at the High Court on January 12, serving them on both the PRP and Impress at the same time.

In the pre-action letter, the NMA told the PRP that the Impress scheme of regulation fell short of the recognition criteria detailed in the Royal Charter on the Press in a number of material respects which were not capable of cure.

Among the issues the letter highlighted was the source of Impress’s funding, which it described as “a matter of grave concern”.Most of Impress’s funding comes from former motor racing boss Max Mosley.

Most of the national, regional and local press have signed up to Ipso, the industry-funded Independent Press Standards Organisation.

No major publishers has signed up with Impress, which currently lists 30 regulated publications on its website – most of them hyperlocal websites. The total in the Impress list includes printed editions of some website publications.

The PRP has made clear it will fight the action.

Chairman Dr David Wolfe QC said: “The PRP received a pre-action protocol letter from the NMA prior to Christmas and responded to that on December 21, 2016.

“In that letter, we make clear that the PRP board is content with the robust decision it has made after allowing all parties three opportunities to provide the PRP with information they wanted us to consider.

“We have now received the NMA’s application for Judicial Review. The points made by the NMA in the JR are those which it made in its previous submissions to PRP and in the pre-action letter, to which the PRP has responded to. We will be responding to the Judicial Review application in due course.”


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  • January 18, 2017 at 12:49 pm

    This is good news. The outcome, one hopes, is that S.40 and Impress will be consigned to the dustbin of history when it’s all over.

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  • January 19, 2017 at 8:52 am

    Typical. Further to the above, it seems that the dustbin of history is now only going to be emptied every four weeks instead of every three. This means that all sorts of rubbish proposals will be hanging around even longer, leaving a nasty odour in the air.

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