13 Jan 2017

Section 40, Press Regulation, Defamation and Scotland

The Scottish newspaper industry may take some heart from the First Minister’s opposition to Section 40 of the Crime and Courts Act 2013 but even with Nicola Sturgeon indicating that the Scottish Parliament would refuse to enact such a piece of legislation it is far from plain sailing for Scottish publishers. That is because even without legislation biting in Scotland, Scottish publishers will still get caught by online publication if section 40 is enacted in England.

Back in April 2013, I wrote extensively in the media http://www.dailyrecord.co.uk/news/politics/leveson-press-freedom-under-threat-1767329 and Solicitor’s legal journal http://www.journalonline.co.uk/Magazine/58-4/1012432.aspx criticising the recommendations of the Expert Panel under the chairmanship of Lord McCluskey which had been appointed to consider the Leveson recommendations in Scotland. I also appeared before The Education and Culture Committee at Holyrood where evidence was taken on the ‘The Royal Charter – the implications for Scotland’, looking at the future of press regulation in Scotland highlighting those concerns. http://www.parliament.scot/newsandmediacentre/62224.aspx

My biggest concern then mirrors the First Minister’s current concerns, namely the damage that reform would bring to the local newspaper industry within Scotland.   Thankfully the McCluskey proposals were not implemented by the Scottish Government, but the spectre of further press regulation again brings to the fore the difficulties facing the Scottish press should Westminster introduce Section 40.

Perhaps the most draconian aspect is that by virtue of section 40 the newspaper requires to pick up the complainer’s legal bill even if the newspaper succeeds in successfully defending an action. Such costs would be crippling to both smaller weekly but also national publications.

It used to be that Scottish newspapers could only be sued in their primary place of publication. In other words, Scotland. With the internet, that all changed and as a result Scottish newspapers can be sued in England or anywhere the offending article is downloaded. It is entirely unrealistic for a publisher not to have an online presence and it smacks of censorship to withhold articles from the web for fear that the newspaper may get sued in England. But that may well be a consequence if section 40 is implemented.

Even if section 40 is not recognised by the Scottish Government there is nothing to stop a complainer heading off to the English courts complaining about online Scottish publications. It is not difficult to imagine the attractiveness to raise proceedings in England where the English system permits Conditional Fee Arrangements and awards high expenses. All the more so where the Scottish publication will have to pay your costs even when the newspaper wins. Why wouldn’t you?

Nicola Sturgeon has warned that she does not think it is an exaggeration to say that Section 40 would threaten the vitality of local newspapers. I suspect it will go deeper than that and effect the Scottish newspaper industry as a whole.

Campbell Deane is head of BKF’s Media law practice.

BKF are the only top ranked Scottish defamation solicitors in Chambers 2016.http://www.chambersandpartners.com/11822/20/editorial/1/1#6073_editorial