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The Law Column: Freedom of expression – policy and practice

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It’s been an important few weeks for freedom of expression, as there have been a number of developments – two at a policy level, and one which is very much of relevance to working journalists.

The first big news in terms of policy was the Government’s response to the Cairncross Review. The Review made nine recommendations aimed at securing the future of the industry, ranging from “new codes of conduct to rebalance the relationship between platforms and publishers” toOfcom should explore the market impact of BBC News

The Government has accepted eight of the nine recommendations. A good deal of coverage was devoted to the rejection of the ninth proposal, that “an Institute for Public Interest News should be established”.

There have been mixed reactions to this decision, but essentially, the Government’s position is it does not want to get involved in a discussion about the definition of ‘public interest’ news, and by implication, interference with the press.

Interestingly, the Government does support “developing a media literacy strategy alongside Ofcom, industry and stakeholders”, and “launching a new fund focused on innovations aimed at improving the supply of public-interest news, to be run by an independent body”. And it agrees that “the Local Democracy Reporting Service (LDRS) should be reviewed and expanded……and supports the BBC’s plans to grow the scheme”.

These are all important issues. It will be interesting to see the precise proposals when they are published.

Now, hands up everyone who read the Conservative Party’s election manifesto. No, I didn’t either.  But I have now, and in particular, I made it to page 48.

And why is this important? Because in one single sentence on that page, the Conservatives promised to lift a huge threat to journalism by promising: “To support free speech, we will repeal section 40 of the Crime and Courts Act 2014, which seeks to coerce the press”.

Section 40, you will remember, is the provision which was introduced immediately after Leveson, and essentially, it says that if a publisher is not a member of a regulator which is approved under the Royal Charter, then in any litigation, whatever the outcome, the Court must award costs against the defendant publisher, unless one of two exceptions applies.  Intentionally, IPSO is not an approved regulator.

Although the section has never been brought into force, it was still lying dormant on the statute book, just waiting for a Minister to bring it to life.

I have always objected to this section on the grounds that it is a threat both to freedom of expression and to the very survival of the press.

In any dispute that goes to Court, the legal costs are always a major consideration, and have the capacity to bring even a well established title to its knees.  So a promise to repeal this is iniquitous piece of law is something I very much welcome.

Given the dominance of Brexit in our public life at the moment, I decided to check what was happening by asking the Department for Digital, Culture, Media and Sport (DCMS) if this is a promise which is going to be kept.

And I pleased to report that it is. A member of the Ministerial Support Team at the DCMS has told me that his colleagues “are currently exploring options as to how and when the repeal will occur. We will set out our plans to repeal this section in due course”.  Despite the wriggle room that the DCMS has left itself as to timing, the promise is there.  Section 40 is on its way.

And finally, back in the everyday world of news reporting, an interesting decision was delivered by the High Court last week.

Following a murder trial in Manchester last year, a teenage Defendant was convicted of possessing a knife. Being a teenager under the age of 18, he applied for, and was granted, an anonymity Order under section 45 of the Youth Justice and Criminal Evidence Act 1999.

But as readers will know, these kinds of orders expire as soon a youth turns 18, which is why he applied for an extension to the anonymity order for 22 months after his 18th birthday. This has come to be known as “the Venables jurisdiction”, named after the killer of two year old Jamie Bulger back in 1993.

Mrs Justice Steyn recognised the conflict between Article 8 of the European Convention for Human Rights (the right to “private and family life”) and Article 10 (right to freedom of expression). After balancing these competing considerations, she rejected the youth’s application.

It’s interesting that the Judge accepted that the Defendant had demonstrated that if his anonymity were not extended, there would be an interference with his right to private and family life under Article 8.

But she then decided that the curtailment his right to respect for his private life was clearly justified by the compelling public interest in open justice.

In other words, each case depends on its facts, but the open justice is so important that it is not to be overridden except in the most exceptional circumstances.

A good decision for freedom of expression, following hard on the heels of policy announcements which are similarly encouraging.