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Section 40, Crime and Courts Act 2013, threatens our work for you

Reader appeal The government is about to commence a piece of legislation that will seriously affect The Register’s ability to Bite The Hand That Feeds IT. You have until 5pm today to tell the government it should be stopped.

Most British readers will have seen news coverage about Section 40 of the Crime and Courts Act 2013.

This is a dangerous piece of law that will prevent El Reg, as well as the rest of the British news media, from being able to publish stories about bullshit merchants, con artists and criminals.

Section 40 forces all news media publications to pay for the lawyers of both sides in any court case, even if the journalists win the case - but see below under "Press regulation and neutrality" for the state-approved method of avoiding this.

There are no restrictions on what types of news organisations are caught by this (except the BBC, which – bizarrely – has an absolute exemption from this madness both for broadcast and written web output*), meaning it applies to The Register just as surely as it applies to the showbiz desk of the Mail Online.

There are plenty of good explanations out there already on how Section 40 works in a legal sense. This detailed explanation from campaign group Index on Censorship is the most readable long version, while the Metro newspaper’s** version is the best short read.

Legal eagles should read media lawyer David Allen Green’s summary of it on his blog. Although it was written last April and refers to previous Culture Secretary John Whittingdale, all the issues are still the same.

So what’s the relevance here, you ask? Surely commencing Section 40 into law will only take down The Sun and the Daily Mail and the rest of the celeb-obsessed MSM and their lies. Why am I reading this on The Reg?

Section 40 will hamstring The Register

At heart, El Reg is a trade magazine, in terms of style and tone. We cover the enterprise IT and computer networking industries in a no-nonsense, tell-it-as-it-is manner, along with a fair sprinkling of offbeat stories about stuff that makes us (and you, dear reader) laugh, cry or get your thinking caps on. We are a broad church and we aren’t afraid to call a Cat 6 patch cable a Cat 6 patch cable – something which makes us a unique voice in the enterprise IT world.

When we write about companies like Quadsys, a security reseller whose directors pleaded guilty to various computer misuse and blackmail offences after hacking into a rival firm, we do so because this stuff is important to our readers. You and your clients may have done business with Quadsys and with similar companies, and you have a right to know what's going on in the criminal justice system. We tell you that news.

If Section 40 had been in force when we were covering Quadsys, the accused could have used it to disrupt and ultimately stop us from being able to cover their court hearings. All they would have had to do is threaten to sue us for publishing malicious falsehoods. It wouldn’t matter if that threat was utterly groundless. We would have had to sit back and work out whether the story would have been worth the thousands or even tens of thousands of pounds in lawyers’ fees to get to the point where a judge could throw it out of court.

We publish around 60 news and feature stories a day. We would have to make that assessment for every single story we run. It’s not even a question of risk versus reward: we bear all of the risks, and all of the costs, of any vexatious complaint made. A complainant with a chip on his shoulder could drag us through the courts without being liable for a penny himself.

Even stories like our ones about the King’s College London IT meltdown would be caught by Section 40. We have had people representing King’s phoning up all manner of people from across El Reg making loads of hilarious and utterly unjustifiable demands, from editing accurate details to deleting the whole series of stories outright.

Can you imagine what would happen if King’s had been armed with Section 40? A public institution would have been in a position to strong-arm us into not writing about their screwups by using the threats, explicit or implied, of being able to use limitless public funds to hire expensive lawyers and effectively drain us of cash until we caved in. That is the blunt truth about what will happen if Section 40 is commenced.

In the event described above, we just double-checked our facts, confirmed they were correct all along, and told King’s to go away and get back to fixing their IT. We wouldn't have had that option under the Section 40 regime.

Section 40 is not only going to affect showbiz tittle-tattle and the infamous Mail Online sidebar of shame. This is going to stop you, the Register reader, from hearing what’s going on in your own industry.

What do you think happens when we report on things like Oracle’s licensing policies, or layoffs at large companies such as IBM? We get angry company PR flacks ringing us up to nitpick and moan and generally make it clear that they’d prefer we hadn’t written anything at all. Handing them Section 40 would make it far easier for big corporations to make vexatious claims about our reporting – which we would be forced to treat seriously, just in case they decided to file suit against us to prove a point. Section 40 concentrates power into the hands of the powerful when it comes to writing about big companies and rich individuals.

(By the way, we don’t mention IBM and Oracle here to single them out above the rest of the industry. This is just a non-specific example to illustrate the point.)

Press regulation and neutrality

The Crime and Courts Act 2013 does allow news publishers to avoid all this nonsense by signing up to a state-approved press regulator. That press regulator is Impress.

Impress is funded, through a convoluted structure, by former Formula One boss Max Mosley. Mosley’s battles with the press have been reported extensively over the years. He is not a man in a position to claim to be impartial or neutral on the topic of media regulation, given his words and actions, though doubtless others in his position may feel equally aggrieved.

Mosley’s regulators at Impress are neither impartial nor neutral. Almost all of them have publicly said they hate the Daily Mail and/or The Sun. Submitting to regulation by these people would take us outside the certain rule of law and instead put us at the mercy of an organisation that is compromised both by the source of its funding and by the views of its employees. Impress is no Ofcom; Impress is a pack of hungry hyenas eyeing up a chained-down dog and waiting for its master to turn his back.

The alternative regulator is IPSO, the Independent Press Standards Organisation, which makes a point of not applying for state approval. IPSO is funded by its members, who are news media publishers. There are many problems with IPSO, but it is not staffed or funded by people with a vendetta to avenge. Instead it is funded by the news media industry itself, which creates the problem that it is accused of pandering to publishers’ views instead of imposing tough regulation.

The Register is a member of neither organisation. We are neutral when it comes to joining press regulators, but joining a regulator under threat of having any future court case massively skewed against us is wrong on every level. We have had serious threats of legal action in the past and we take a lot of time to make in-house and external legal compliance checks on our bigger stories. All of that work, for obvious reasons, is out of the public eye.

What can I do?

You can write to the government before 5pm on Tuesday January 10. You can do this via the official consultation website, which is here on GOV.UK, or via the Free the Press campaign website, which has a pre-written consultation response where all you have to do is add your name and email address.

Either way, if you enjoy reading The Register and want to read more of the same in the years to come, please say “no” to implementing Section 40 of the Crime and Courts Act 2013. Our future and the ability of wrong’uns in the enterprise IT world to be held to public account rest on this not coming into force. ®

* Broadcasters are also exempt, at least for their streamed, TV and radio output, because that is regulated by Ofcom. Their written output on their websites, however, will be caught by Section 40.

** The Metro newspaper and the website are two completely separate operations, though stories from the paper are posted on the website. The website is a training ground for web reporters who later make the step up to Mail Online and its reporters do not write for the free newspaper.

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