Opinion: Unfair law would seriously undermine the notion of a free press
Every first-year law student is familiar with Lord Devlin's quote about the British system of trial by jury, which he famously described as "the light that shows that freedom lives".
Trial by one's peers is indeed one of the cornerstones of a free and fair society; an indisputable symbol of democracy and civilisation.
Another light that shows freedom lives in our country is the 300-year-old system of a free press: a system under which newspapers – and latterly other media – operate free from constraints, influence or proscription by the government of the day.
A state-controlled press is associated with repression, tyranny and dictatorship; a free press with, well, freedom. That freedom is now under threat – from an innocuous-sounding section of a fairly straightforward and uncontroversial piece of proposed legislation, namely Section 40 of the Crime and Courts Act 2013.
It was drafted in response to the findings of the Leveson Inquiry of 2011 – set up in the wake of the phone hacking scandal and criminal actions of some "Fleet Street" journalists.
Under S40 publications not signing up to Impress – a regulator largely funded by Max Mosley, who was famously caught out by a tabloid sting while taking part in an orgy – will have to foot the expenses bill of anyone who chooses to sue them, irrespective of the outcome of the case.
To date, no major print or online news organisations have signed up to Impress, almost certainly because Impress and the provisions of S40 seriously undermine the concept of self-regulation; and put the concept of press freedom at serious risk.
What news organisation would run the risk of paying the legal costs of anyone who chooses to sue them – even if the news organisation wins the case? Bad enough for the big beasts of Fleet Street, but potentially ruinous for the ever-decreasing number of small, local news organisations which are already under such pressure from falling sales and the relentless rise of internet fake news, non-news and 24-hour at-a-click updates.
Some will merely shrug their shoulders and say, well, newspapers are becoming anachronistic in this digital age – what does S40 matter? Many more will simply not give the matter any consideration. After all, S40 doesn't affect in any way the utterly uncontrolled internet – so we'll still be able to get salacious and scandalous gossip.
We'll be able to click on fake stories like the Pope lending his support to Donald Trump, and myriad other false stories dreamt up by non-journalists wholly inconvenienced by such trivialities as codes of conduct and the laws of defamation.
Criminal behaviour by the press is rare indeed. As is libelling of the innocent. That is why libel cases are such big news – they happen so rarely. No newspaper editor goes out of their way to put their organisation at risk of ruin; that is why, in newspapers and news organisations of all sizes, a string of checks and balances is in place before stories ever see the light of day.
S40 has been roundly condemned as "iniquitous" – as, indeed, it is. Without freedom of the press there would be no newspapers daring to expose scandals such as MPs' expenses; no exposures of cover-ups of mismanagement by hospitals; no campaigns for justice for dead children. Our press needs to remain free. S40 seriously undermines that.
The government must look again at this legislation and allow the light of press freedom to continue to shine.