Is Section 40....

[SeriousSam]

I'm using "religious fervour" in the sense of "this is the way that it is and I brook no other interpretation"; Free means absolutely Free. As opposed to the fact that you and I may defend the principle, even vociferously, but we're willing to discuss the practicalities. Now I'll not deny that the press are one of the largest groups that defend their position in this fashion. However, the same is true of a number of social and political pressure groups. Though I'll admit it's probably more prevalent across the Atlantic than it is here, at least so far. In the UK it is the NHS / Human Rights ideologues that have been making the most noise, but I digress.

Personally I think western governments are only just waking up to the other issues surrounding social media, besides bullying. In part due to the recent election shenanigans in the US. Though that's just my opinion based on observations.

Perhaps I'd have done better to express myself that the whole issue needs to be looked at in a holistic fashion, before chopping it into bits to start regulation. As that was sort of where I was going initially, before I wandered of track later on. Partly because I firmly believe that advertising needs to be dragged, kicking and screaming, into the freedom of speech debate. Seeing as they also wantonly abuse the privilege. If we don't have some consistency of approach that leaves routes for the unscrupulous to try and unpick things later.

[Xlucine]

I'd like to see corrections mandated to occupy exactly the same space as the headline of the original story. So if the original story had the front page, and that story was found to be seriously factually inaccurate, then you get a box on the front page that's the same size & shape as the headline of the first story with a correction. I don't think this would seriously improve the reporting accuracy of the press, but it'd be funny. If for some reason several corrections end up having to be printed on the same day and both lay claim to the same bit of page, then the correction boxes could be shuffled around on the page to fit. If they can't fit all the required correction boxes on the required page then the paper gets shut down and everyone involved barred from journalism

[Ttaskmaster]

But when is The Press not The Press?
Don't actual journalists and so on have to carry ID, a Press Pass or something, including independent writers of articles?

I'd say, if you're not an officially recognised member of The Press in some capacity, you don't get Freedom of The Press and are instead subject to Freedom of Speech, are tried as an individual under libel laws and so on, same as if you had posted something libelous on social media.

[Saracen]

But when is The Press not The Press?
Don't actual journalists and so on have to carry ID, a Press Pass or something, including independent writers of articles?

I'd say, if you're not an officially recognised member of The Press in some capacity, you don't get Freedom of The Press and are instead subject to Freedom of Speech, are tried as an individual under libel laws and so on, same as if you had posted something libelous on social media.

No. We don't.

The "press card" is, in reality, a union (NUJ, mainly) membership card. It carries with it quite a lot of benefits including legal help, contract hrlp and so on and, yes, will gain you access to many events and places as possession indicates you are, effectively, earning a significant proportion of your income from journalism.

There is no "official" recognition as such, of that status and certainly none whatever that exempts you from libel laws. There are also other "recognitions" that give some journalists access that others don't get. Two obvious examples would be Westminster "lobby" status, giving you access to the Houses of Parliament lobby area, and the official briefinfs that go along with that, and in a similar vein, White House press card. Try rolling up to the White House outer security checks with an NUJ "press card" and see how impressed they are.

Looking at it from the other perspective, there are some exemptions from laws which put journalists in a mildly orivileged position, and copyright law us one example. Within limits, news and reporting us a "fair use" exemption to copyright BUT .... you don't have to hold a press card to get it. It's about the use, not the person.

As a journalist, I've written thousands of articles gor newspapers and magazines, mostly in the UK but some all around the world. I've worked for publishers all here will know, including some national papers, and a lot of magazines, including quite a few computing mags. I've lost count of how many press launches I've been to, including all over Europe, the US and Far East. I've got files full of non-disclosure agreements, regularly had access to development labs with products sometimes 12 minths or more away from launch, and often had "preview" items months before launch, and had board briefings from numerous CEO's, from Epson to Lexmatk, IBM to Microsoft. I've even had some involvement with the White House (Clinton era) and dinner invitations to Downing Street.

And I've yet to need a "press card".

Sometimes, access has required confirmation of status from a publication's editor, but a lot of the time, previoys contact or even sometimes name recognition does it.

The 'prsss card" is often helpful, and yes, gains access to many places. It has benefits, but at a cost. It isn't required to make you a journalist, though is very useful convincing people you really are, but itvisn't "official" in the sense of a licence, or qualification, like a lawyer, accountant, architect, etc would have.

[Saracen]

As for section 40, I'm entirely in favour.

"The Press" has had repeated chances to sort out their mess, over decades. And their response is always the same - we'll "regulate" ourselves .... and then don't.

Well, enough is enough, and the way the press has treated many people, and the phone hacking scandal, is once too often, and WAY too far.

The Press always comes up with the same cobblers to defend themselves - "we're the guardians of democracy" and a free press is necessary.

Here's the thing. Neither s.40, nor the regulator, prevents them publishing ANYTHING. There's no watchdog, other than their own lawyers, saying "you cannot print that".

And, any paper that fears s.40 simply has to sign up to an approved regulator, and it doesn't apply.

Why is s.40 an issue? Because, and ONLY because, the press are fully aware that the vast majority of people have absolutely NO recourse to law if the papers defame them, because most people cannot afford the huge bills it entails, while the papers can.

This is not about a press being "free" from government interference, it's about bring free from being held to account for damage they do, or lives/careers they wreck, among ORDINARY PEOPLE.

It's not about protection from the very wealthy. They know, full well, that the likes of business tycoons, premiere league footballers, major music stars, etc, are more than capable of affording a few hundred grand for a defamation case, so they check and recheck, and get lawyers to check, before they publish.

But that takes time, and costs money. So, dear reader, do we think they exercise that same due diligence before traducing some ordinary working pleb? Why should they, when they and their pals are their own regulator, and the only other recourse is so expensive that Joe (or Jo) Public can't afford it.


Without s.40, we the public have no recourse against unfair press coverage, and the press really are free .... free from responsibility for their own actions.

If the press are so scared, sign up to an independent regulator we arbitration costs a couple of hundred quid, not several hundred grand. After all, if your coverage is true, fair and correct, you have nothing to fear.

So what are you afraid of? Having to print retractions and apologies as prominently as you print the defamation? Only if you defame people in the first place. And that ought to tell us, their pool of potential victims, all we need to know to support s.40.

[opel80uk]

Excellent post Saracen...... but alas I fear the Government does not going to have the cojones, or indeed the will, to enact Section 40.

[peterb]

Do you mind me asking, without naming any names or anything like that, how a non celebrity ended up on the front page of a newspaper because of an indiscrete photo? How is that in anyway in the public interest?!

The person was a member of the services, but the photograph was taken at a private function. It wasn't particularly revealing, but it was embarrassing. It was published purely to cause embarrassment and ptomote sales with a 'shock, horror scandal' headline. Typical hypocrisy from the publication involved.

[Saracen]

Excellent post Saracen...... but alas I fear the Government does not going to have the cojones, or indeed the will, to enact Section 40.

Thanks.I admit it was a bit of a rant, but I get so fed up with the usual talking heads that appear arguing the press side. They're usually so sanctimonious and holier-than-thou, as if their function were sacred protector of democracy. No, you bleep-wits, you sell papers.

Besides, things they are a-changing.

For good or bad, the way Trump has effectively bypassed traditional media to get his message, such as it is, direct to the people, without being held to ransom by the filter traditional media always apply, points to a decreasing role for press.

The downside to that is that it makes the true essence of "free press", true investigative journalism, much harder to finance.

While the muck-raking antics of the gutter do need to be held higher standards, proper investigative journalists are a very different breed.

[Corky34]

My biggest concern is not s40 but the regulator, will it be truly independent, non partisan, etc, etc, or will it be like Ofcom and many other regulators that are all bark with no bite.

[Ttaskmaster]

Because, and ONLY because, the press are fully aware that the vast majority of people have absolutely NO recourse to law if the papers defame them, because most people cannot afford the huge bills it entails, while the papers can.

That's kinda what I meant with the question above - At what point are you no longer a Facebooker, Twitterer, independent blogger, high school newspaper writer or whatever... and instead considered a member of The Press, the papers, the news and thus subject to any protections and/or liabilities as anyone else within the companies that can afford the huge bills mentioned above?

My biggest concern is not s40 but the regulator, will it be truly independent, non partisan, etc, etc, or will it be like Ofcom and many other regulators that are all bark with no bite.

Well, if the aim is to facilitate peasants like me taking The Sun to court and suing their bums for defaming me, surely it'd have to be supported by the courts and thus an actual law of some kind?
Therefore, if The Sun don't turn up or pay up or anything, they're in contempt and probably open to all manner of other legal issues that could see them getting fined or worse...?

[Corky34]

My understanding maybe wrong but AFAIK s40 basically says sign up to a recognised regulator if not peasants like us can take you to court and win or lose your going to be the one paying the legal fees, I'm assuming the paying of legal fees win or lose isn't going to apply if they're signed up to a regulator and in turn the regulator would be the first port of call for peasants like us, if we weren't happy with the result we could still take it to the courts but the costs would then be on us if we lost.

[Saracen]

My understanding maybe wrong but AFAIK s40 basically says sign up to a recognised regulator if not peasants like us can take you to court and win or lose your going to be the one paying the legal fees, I'm assuming the paying of legal fees win or lose isn't going to apply if they're signed up to a regulator and in turn the regulator would be the first port of call for peasants like us, if we weren't happy with the result we could still take it to the courts but the costs would then be on us if we lost.

It's not quite that categoric, but that's the essence of it. s.40 does, however, provide some wriggle room over costs.

[Saracen]

That's kinda what I meant with the question above - At what point are you no longer a Facebooker, Twitterer, independent blogger, high school newspaper writer or whatever... and instead considered a member of The Press, the papers, the news and thus subject to any protections and/or liabilities as anyone else within the companies that can afford the huge bills mentioned above?

You don't have to be a member, or employee, of one of those big companies to be "press". I've always been freelance. I work for anybody I want, whenever I want, subject only to getting a commission. What protection I got depended very much on my contract with the publisher. Usually, provided I'd done my job properly, done due diligence on a story and could back it up, the publisher would stand behind it, and if need be, me. Occasionally, a publisher would srnd a contract where they expected me to indemnify them against any legal costs. Right. So I get paid anything from a couple of hundred to a few thousand, and if it bliws up, I'm going to pay their half million in legal fees? That kind of contract isn't worth having. Help with contracts is one place where the NUJ can help.

But some of the benefits, and issues, start as soon as you start getting journalistic work printed, and paid for, certainly on a regular basis. If I remember correctly, full NUJ membership requires a minimum amount, or percentage of income, to come from journalism. I just don't remember how much. Also, IIRC, there was some kind of associate card.

So posting on Twitter, Facebook, etc doesn't, IMHO, count unless someone's paying you .... and that doesn't include being paid for fake reviews, etc. For that matter, my posting on here isn't journalism, because nobody asked me to do it, and I'm not getting paid fit.

[Ttaskmaster]

I work for anybody I want, whenever I want, subject only to getting a commission. What protection I got depended very much on my contract with the publisher. Usually, provided I'd done my job properly, done due diligence on a story and could back it up, the publisher would stand behind it, and if need be, me.

That's the bit I was trying to nail down - The part where I'd no longer be taking you to court, but an actual company, who might have thousands or millions with which to fight against (and so likely thrash) me in court.

[Saracen]

That's the bit I was trying to nail down - The part where I'd no longer be taking you to court, but an actual company, who might have thousands or millions with which to fight against (and so likely thrash) me in court.

And there's no simple answer.

As a freelancer, you gould be taking me, the publisher, or both, to court. If I am an employee, then you'd be suing the company, but even as a freelancer you might well find that, provided I exercised due diligence in writing an article, my contract with the company that published, be it newspaper, magazine, online media, whatever, may well indemnify me against legal action resulting from publication.

So, you could find yourself apparently suing little old me, freelancer, and find the multimillon pound multinational publishing company's team of lawyers fighting it. Why? Well for a start, if you sue me, the writer, and win, it makes a subsequent victory against the publisher all the easier and more likely, giving the publisher incentive to fight earlier.

I'm not writing the kinds of material that's very likely to get me sued. Even so, a couple of times it's been threatened when somebody didn't like what I had to say. The result was a call from the editor, and subsequent discussion about due diligence. What evidence did I have? Have I confirmed from multiple, independent sources? Are those sources credible. Do I have hard evidence, or just accounts from witnesses? An so on.

In my cases, it was about either product claims not met, or test results companies were happy about. So, I sat down with the relevant company staff, discussed my testing protocols, equipment used, printed results, contemporaneous notes taken, details gathered, etc. If especially bad results were obtained, were tests completely re-run, to ensure the bad result wasn't a one-off aberration? Etc.

In other words, if it comes to a court case, can I back up any adverse comments I made? Is the company confident I can? Because they have a choice of retraft and apologise, or back me and risk getting sued. I have yet to have them retract anything.

You are, of course, very right to be concerned about taking on wealthy companies, or for that matter, wealthy individuals, because going to law over things like defamation is NOT anythjng like a small claims court for a few hundred or even thousand, in unpaid debt. It is a potentially extremely expensive business. A barrister friend told me, years ago (about 20 years ago) that a simple defamation case (or as simple as they get because none are truly simple) is unlikely to cost less than about £30k, and could hit 10x or 20x that sum for complex ones. Another lawyer friend told me recently that even starting a case was probably going to need a minimum of about £10k up front, to prepare a case, and that's before a barrister's daily rates kick in.

It's also worth remembering that ANYONE publishing defamatory statements can be sued, and as 'publishing', in it's widest context, could mean communicating to any third party, it's pretty broad. I mean, I could say snything I like to you, about you, and it's not defamatory but if so much as ONE other person hears it, then it at least potentially is.

Which is one reason we insist on HEXUS members treating each other within minimum standards ... because otherwise, both the person making the defamatory remarks AND Hexus could get sued.

[SeriousSam]

Article in New Scientist...

http://www.newscientist.com/article/...ime=1484352369