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REPEAL THE GAGGING CLAUSE
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Why Section 40 should be repealed
Imagine exposing corruption, winning a court case in which it is proven that you told the truth, but then being landed with hundreds of thousands of pounds worth of costs run up by the corrupt individual who sued you.
That’s what will happen to newspapers and campaigning groups if Section 40 of the Crime and Courts Act is not repealed.
This gagging clause will chill investigative reporting and prevent campaigning groups from exposing the truth. That was not the intention of the Leveson Inquiry nor is it something that anyone has voted for.

Section 40 was in fact snuck through parliament in just 13 hours after a cross-party stitch-up. At that time, some MPs complained they hadn’t even seen the draft of the text they were voting on. The clause arguably breaches human rights to free speech and is legally questionable.

The Gagging Clause will not encourage publishers to join a controversial state-recognised regulator. It will only achieve the collateral damage of chilling free speech.

This consultation should ensure stories that the public need to hear about are not silenced. From NHS mismanagement, to local council corruption, to fraud by big business and tax dodging by the global elite.

There is only one way to achieve this, please repeal Section 40.
The government's consultation has now closed. Thanks so much for your support for free speech.
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CASE STUDIES
The dictator’s son
Award-winning campaign group Global Witness published the credit card records of Denis Christel Sassou Nguesso, the son of the president of Congo Brazzaville. Sassou Nguesso attempted legal action against Global Witness in the UK, which he lost. Under Section 40, Global Witness could have been liable for the full legal costs of the action by Nguesso. This punishment would occur despite the judgment finding a clear public interest in the case.
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Stephen Lawrence
In 1993, teenager Stephen Lawrence was murdered in a racist attack in Eltham, South-East London. The police knew who the suspects were within days, but did not make any arrests for two weeks. In April 1994, the Crown Prosecution Service stated they did not have sufficient evidence for murder charges and the case became a byword for institutional racism and police failings.

In February 1997, the Daily Mail took the unprecedented step of publicly naming the five suspects as “murderers” on the front page of the newspaper. The headline read, "Murderers: The Mail accuses these men of killing. If we are wrong, let them sue us." Underneath this headline appeared pictures of the five suspects.

Under Section 40, all five named men could sue the Daily Mail for libel and have all of their legal costs paid for by the newspaper, even if, as happened in the case, two of the men were later convicted of murder. The Daily Mail would be forced to pay these legal costs for printing the truth.

Stephen’s Lawrence’s mother Doreen said: "When the Mail first published their faces, up until that point nobody – apart from those in their local neighbourhood – really knew what those boys looked like. It makes a big difference to have that support because you don't want to be this lone voice." The campaigning by the Mail on the Stephen Lawrence murder led to significant public and political pressure which resulted in a public inquiry and finally in 2012 (nearly 20 years after Stephen’s murder) convictions for the murder.

Section 40 would make that unprecedented step extremely costly and give the racist gang the comfort and protection of having their costs paid to bully and chill public interest journalism.
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MPs expenses
The MPs expenses scandal is one of the most significant pieces of investigative journalism seen anywhere in the Western world. It told the British public the scale to which parliamentary expenses were being abused by MPs at a time of deep economic crisis in the country.

When the Daily Telegraph broke the MPs expenses scandal in 2009, it did so after painstaking evidence gathering that took its investigative and political journalists a long time to piece together. If the Gagging Clause in force, the Telegraph would have to pay the costs of every single person named in the paper’s reporting of the MPs expenses scandal.

The Gagging Clause would have led to the possibility that some of the MPs who misused public money would never have been exposed.
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FIFA corruption
In June 2014, the Sunday Times reported that it had received hundreds of millions of documents which revealed that former FIFA executive committee member Bin Hammam made payments to football officials in return for votes for the Qatari bid to host the 2022 World Cup tournament. It wasn’t until May 2015 that US state officials conducted dawn raids and arrested seven FIFA officials in Zurich for allegations of racketeering, wire fraud and money-laundering.

Had Section 40 been in force, the wealthy individuals and organisations involved in the corruption could have sued the paper for reporting financial details, safe in the knowledge that their legal costs would be paid for. This could have had a big impact on the ability of journalists to surface complex, historic, institutional corruption that had a huge global reach.
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Rotherham sexual abuse
Beginning in 2011, The Times published a series of investigations into sexual abuse of young girls by groups of older men in Rotherham. The newspaper highlighted a series of failings by police and social services, leaving girls easy prey for sexual predators.

In 2013, The Times named Arshid Hussain as a serial abuser of young girls. Inquiries, investigations and convictions followed, but only after The Times had taken the brave decision to identify the guilty men, in spite of attempts by police to gag the newspaper.

Andrew Norfolk, the Times journalist who won several awards for his brave work on the story, says: “In the brave new world of section 40, the August 2013 article might never have been published. We might not have dared to name Hussain because when that decision was taken we had no expectation that any inquiries would result. We would have faced the prospect of being sued by a man who knew we would be ordered to pay his legal costs, even if we won the case. No story, no inquiries, no justice. Is that what the government really wants?”

http://www.thetimes.co.uk/edition/comment/a-law-that-loads-the-dice-in-favour-of-criminals-m6w93gqcm
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Panama papers
In April 2016, newspapers including The Guardian began to publish stories based on the Panama Papers, a collection of over 11.5 million leaked files detailing the financial for over 200,000 offshore entities. The papers revealed dubious practices by some of the world’s richest and most powerful people. If the Section 40 Gagging Clause had been in force, The Guardian could have been legally liable for all the costs of every single person named in the papers, or even legally identifiable in any of the stories, who decided to sue for breach of privacy - regardless of the fact the stories were true and in the public interest. Up against some of the wealthiest people on earth, including presidents, prime ministers and oligarchs, it is hard to see how any UK based newspaper could have taken this risk.
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SECTION 40
1. Punishes newspapers for printing the truth
Section 40 makes no distinction as to whether a publication is true, in the public interest or is honest comment. So even if what you publish is entirely truthful, you can be forced to pay the full legal costs of anyone who decides to sue you. Rich bullies will use the knowledge that they will never have to pay their expensive legal bills, to intimidate and silence public interest journalism.
2. Sets a dangerous global precedent
Imagine if Vladimir Putin designed a draconian new press law after a private meeting with anti-press lobbyists and pushed the law through the Russian parliament in just 13 hours? Imagine the international reaction if this law forced newspapers and NGOs to sign up to the Russian government’s ‘approved’ press regulator, because, if they didn’t sign up they would pay the full legal costs of any shadowy oligarch or corrupt Russian official who sued them. That is what has happened here in the UK.
3. Punishes people, not just the national press
There is a lack of clarity over who is required to join the state-backed regulator. The punishment for not joining the state-backed regulator under the Gagging Clause is so severe it may force everyone from campaign groups to political parties to parenting websites to join or face financial ruin. Writers’ charity English PEN in their report, ‘Who joins the regulator?’ showed that prominent campaign groups such as Global Witness, Index on Censorship and Which? could be affected by the Gagging Clause. Such unintended consequences also impact on the relationship between citizen bloggers, NGOs and online/print newspapers who may not cover important public interest investigations over fears of legal costs.
What people are saying about the Gagging Clause:
Rachel Jolley
Index on Censorship

“the Government is considering triggering Section 40 of the Crime and Courts Act, which will ratchet up pressure to self-censor. This repressive legislation would pressurise newspapers to avoid the controversial and not publish things others would rather were not heard. If such laws were introduced in another country, British politicians would be speaking out against such shocking media censorship.”
Gavin Millar QC
Leading human rights lawyer

“In fact, section 40 (3) would create, not solve, a problem… Drastic state penalties of this sort are incompatible with free speech. They inhibit investigative journalism and allegations of misconduct against powerful people who might sue.”
Rob Rinder
ITV Judge Rinder, BBC 5 Live Raising the Bar

“If the press is to be free, the state has no role in regulating what is published. While signing up to a regulatory body is supposed to be voluntary, Section 40 sets out the enormous financial burdens that would be placed on publications that want to remain independent.

The only way we will truly understand the value of press freedom is when it is gone. Only then will you know the full horror of what it means to live in a state where the government seeks to regulate, control and cajole the press, where scandals and abuses go unheard, and lies go unchallenged.”
Alastair Machray
Liverpool Echo

"Under Section 40 villains just have to threaten legal action, safe in the knowledge that the thought of paying the costs – win or lose – is a massive barrier to us as we seek to publish the facts.
“It makes me shudder to think of the stories that might never have seen the light of day had Section 40 been in operation."
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Section 40 is a rich man's charter, a gagging act. It will cover-up wrongdoing including serious criminal offenses.

This isn't happening in Putin's Russia, it is happening here in Britain, a country with a proud 300-year tradition of press freedom. In just weeks, the draconian punishment of Section 40 could be triggered, marking the end of Britain’s free press. At the stroke of a Ministerial pen, three centuries of press freedom will be consigned to the dustbin of history. Investigative journalism will be near impossible and shackles will be imposed on our heroic local press and brave campaigning organisations. All of this will be greeted with cheers by people who think of themselves as liberal, but are blinded by their hate of certain popular newspapers.

If you want the freedom to hold the powerful to account, please share this campaign: