How Dacre and the Mail are making the case for section 40 – Brian Cathcart

By threatening to sue the journalism crowdfunding platform Byline, the editor of the Daily Mail isn’t just reminding us that he is a bully, he is also presenting a case study in why the Leveson reforms he hates so bitterly are exactly what this country needs.

Paul Dacre’s paper has been at the forefront of the hysterical press campaign to prevent the implementation, or ‘commencement’, of the last of the measures approved overwhelmingly by Parliament in 2013 following the recommendations of the Leveson Inquiry.

This final measure is Section 40 of the Crime and Courts Act, and it relates to costs in libel and privacy cases. Although the press portrays Section 40 as punitive, it is in fact an ingenious and liberal measure that would enhance both freedom of expression and access to justice. That is what the Dacre-Byline matter illustrates so well.

Byline is a member of IMPRESS, the regulator that meets the Leveson standards of independence and effectiveness and has consequently been spurned by the big national press groups.

When Dacre and two other senior Mail figures made their libel complaint a couple of weeks ago, Byline promptly suggested that the complaint should be taken to IMPRESS. If that had been done it could have been resolved as a standards complaint or through the arbitration process offered by IMPRESS.

Arbitration would cost Dacre £70 and Byline a few thousand. It would be swift and binding, and the arbitrator would have the power to impose exactly the same penalties as the courts. Compare this with possible court proceedings potentially costing half a million or more and taking perhaps a couple of years. As they say, what’s not to like?

It depends on your motivation. If all you want is to clear your name there is nothing not to like about arbitration. You may receive damages and perhaps a public apology if you win, and even at the very worst you will not risk those nightmarish court costs.

But if your objective is different – if, say, you are determined to gag a troublesome small publisher, or even crush it forever under the weight of legal activity, financial risk and ultimately, perhaps, ruinous court costs – then arbitration through IMPRESS holds no attraction at all. Precisely because it is cheap for both sides, it robs wealthy bullies of their advantage.

Dacre and his colleagues Peter Wright (a former editor of the Mail on Sunday) and Liz Hartley (the Mail’s head of legal affairs) have not approached IMPRESS and instead appear to be taking Byline down the path towards the High Court. The site is now crowdfunding for support – a modern Goldenballs fund, recalling the 1970s battle between Private Eye and Sir James Goldsmith. You can help them here.

This brings us to Section 40. If this small measure had been commenced a year ago as Parliament intended, and not stalled by a Conservative government in awe of Dacre and his ilk, Byline (and freedom of expression) would have been in a far better position.

Leveson wanted to protect news publishers of all sizes from bullies and his wishes were expressed in law through Section 40. Under its terms, Dacre and Co would know that denying Byline the option of cheap justice through arbitration would have heavy consequences for them. They could have their day in court (or more likely several days, strung out over many months), but at the end, win or lose, they would probably have to pay not only their own costs but Byline’s.

It’s by no means cut and dried – the terms of the law leave the final decision to the judge – but all other things being equal Dacre and co, having insisted on the costly path to justice, would have to pay all of those costs whatever the verdict. Their power to intimidate Byline using the risk of costs (which they could afford but Byline could not) would simply be removed.

Imagine how differently this case would now appear if this government had commenced Section 40.

Dacre (a very wealthy man) might genuinely want to sue, but the small publisher in his sights would not automatically be facing bankruptcy, nor need it be deterred from publishing further articles about the Mail. Instead Byline could reply to Dacre’s lawyers: ‘We will see you in arbitration, and if that’s not good enough for you and you insist on going to court you had better be prepared to pay all our bills as well as your own.’

No fair judge would make Byline pay court costs when a far, far cheaper solution was available to both parties from the outset.

For Dacre and the Mail read Russian oligarchs, big energy companies, retail chains and all the Robert Maxwells of our time – many of whom want to gag good reporting using legal threats. And for Byline read any decent news publisher that is not part of a wealthy corporation. Without Section 40, they are all vulnerable.

The Dacre-Byline case demonstrates almost perfectly that the absence of Section 40 today is bad for freedom of expression in this country. The government should commence it without delay.

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