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Leveson 2 and Section 40 libel costs

The Leveson Inquiry examined the practices of the British press.  It was intended that Part 1 of the Inquiry would address ‘the culture, practices, and ethics of the press’ and Part 2 would address ‘the extent of unlawful or improper conduct within News International and other media organisations’.

In November 2012, the Inquiry reported its Part 1 findings, recommending that the Press Complaints Commission (‘PCC’) (a regulatory body which the British press had voluntarily signed up to) be replaced by a new body, and that there be financial consequences for press organisations which refused to sign up and subsequently found themselves subject to libel and privacy proceedings.  Following this, the Government included a number of press-related provisions (sections 34 to 42) in its Crime and Courts Act 2013.  Section 34, which is in force, provides that the Courts can award exemplary (punitive) damages against unregulated news publishers who are found liable for defamation, privacy and harassment claims.  Section 40, which is not yet in force, effectively provides that unregulated news publishers be made to pay the costs of such claims, regardless of whether they win or lose them.  Until recently, these provisions have been academic, as there was no Government-approved regulator.  However, in October this year, the ‘Press Recognition Panel’ recognised The Independent Monitor for the Press (‘IMPRESS’), a Community Interest Company funded in large part by the former motor racing magnate Max Mosely.  Few major publishers have opted to join IMPRESS.  Most – including News UK (formerly News International), the Mail, Mirror and Telegraph – have joined the Independent Press Standards Organisation (‘IPSO’), effectively the successor to the PCC, which recently received backing in an independent report by Sir Joseph Pilling.  Others, such as the Guardian and the Financial Times, believe they can regulate themselves.  With the Government’s recognition of IMPRESS, these publishers were left fearing that the bringing into force of Section 40 would leave them facing a potential avalanche of legal claims in which they would be in a ‘lose lose’ situation.

Meanwhile, Part 2 of the Leveson Inquiry was postponed for fear it could prejudice the large number of police investigations that were then ongoing in respect of both phone hacking and corrupt payments.  Those investigations are now all but at an end, and, with the recent conviction of tabloid journalist Mazher Mahood (the ‘Fake Sheikh’), ‘fair press’ activists such as the Hacked Off group, made famous for its celebrity spokespeople such as Hugh Grant, have called for ‘Leveson 2’ to begin in earnest.

Facing an outcry from the press – which is of course hugely influential in deciding the outcome of elections –  about section 40, and with Leveson Part 1 having cost the taxpayer £5.4 million, and the three police investigations into press wrongdoing around £43.7 million, it seems the Government may have lost the appetite.  Earlier this week the Culture Secretary, Karen Bradley announced that both issues and, in effect, the future of press regulation, will be dependent on a new consultation that will run into the New Year.  This can be found here.

Whilst the consultation document states that the Government ‘has not yet taken any decisions on section 40 or Part 2 of the Inquiry’, the very fact that a consultation is taking place, is likely to dishearten campaigners.  The consultation document makes much of what the Government believes it has achieved in the last four years, citing the three police operations (Elveden, Weeting and Golding) that have apparently led to over 40 convictions, the changes in self/voluntary regulation by the press, and the section 34 exemplary damages provisions.

The Government’s stated commitment to ‘a system of voluntary self-regulation by the press that is free from government interference and enables all sectors of the industry to thrive’ might be seen to echo concerns expressed by the press that section 40 would kill-off local/under resourced newspapers.  Speaking to the Commons Culture, Media and Sport Committee, Ms Bradley stressed the need for ‘a strong local press that can uncover local scandals’.  She went on to say ‘I have made no decision on the timing of a decision on Section 40. I don’t rule it out at some point in the future’.  It sounds as though it has been ruled out for now.  The consultation sets out four ‘options’ for section 40, only one of which involves fully commencing it.

As for Leveson 2, the thinking seems to be that nothing can be revealed by the Inquiry which has not already come out of Part 1, or the three police investigations, and that relevant reforms have already been made, such that the cost of Part 2 would no longer be in the public interest.  Ms Bradley told Parliament that ‘a clear message has been sent to all police officers and public officials that receiving payments for confidential information will not be tolerated and will be dealt with robustly. The Metropolitan Police Service has introduced new policies on whistleblowing, gifts and hospitality, and media relations’.       

Hacked Off’s response to the consultation has been predictably unequivocal, branding it ‘an attempt by the Government to re-run the Leveson Inquiry, but with a conflicted Government Minister replacing an independent judge… the postponement and potential cancellation of Part 2 of the Leveson Inquiry is an outrageous betrayal of promises made to victims of press abuse and to the British people by the former Prime Ministers.  Leveson Part Two is to look into evidence of corruption into police and the press, and a series of cover-ups.  It is almost unthinkable that a Prime Minister who claims to be willing to stand up to police and corporate interests would even consider postponing let alone cancelling an inquiry into cover-ups and corruption in our major national institutions’. 

The consultation period will run for 10 weeks from 1 November 2016 to 10 January 2017.  Those who wish to respond can do so here.  


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Articles are intended as an introduction to the topic and do not constitute legal advice.