When Jonathan Heawood came up with the idea of setting up a new press regulator four years ago friends counselled him to watch his back.
“You are going to make some very powerful enemies and it might damage your career prospects,” he says he was told. The prospect of intimidation only made him more determined and he went ahead with his plans for Impress, which in October became the first body to be recognised by the royal charter on self-regulation of the press. “I have never liked the idea of not doing something because you are frightened. So it stiffened my resolve to do it.”
Around 50 news organisations and websites have so far signed up to Impress but not a single one of Britain’s major publishers has joined, with most aligning themselves with the Independent Press Standards Organisation (IPSO), which shuns the Royal Charter and its Press Recognition Panel (PRP), regarding it as a form of state interference in the fourth estate.
Given its lack of scale, Impress would not appear to constitute a great threat to large newspapers over which it has no influence. But that hasn’t meant that the warnings given by some of Heawood’s friends were without substance. Even with his resolve stiffened to face down criticism, he says he has been taken aback by the ferocity of the attacks. “I expected there to be some opposition, I didn't expect it to be as extreme or as personal as it has sometimes been.”
The reason for the assault is that Impress represents the vehicle by which section 40 of the Crime and Courts Act 2013 could become viable, exposing all publishers outside its remit to paying the legal costs of those who sue them, even if those claims fail in court. Publishers ranging from the Daily Mail to the Guardian and Private Eye have denounced the measure – which is still awaiting a final green light from parliament – as a grave threat to the future of a free press.
At the end of last month, the Sun branded those behind Impress as “sinister zealots”, and made dark claims, reminiscent of a Dan Brown novel, saying that the organisation was linked to Nazism, religious “sects” and antisemitism.
The article appeared to be partly a score-settling exercise with Max Mosley, the former motor racing chief who is funding Impress through a charitable foundation. Mosley took £60,000 off the Sun’s now defunct sister paper, the News of the World, after it pictured him with prostitutes in 2008. He won the case then because the paper falsely accused him of being a Nazi fetishist, and he has been pursuing a campaign to curb the excesses of the tabloids ever since.
A few days after the Sun’s piece, the Daily Mail fetched down its hatchet and, in a piece targeting “the men who want to shackle the press”, claimed Heawood was pursuing a leftist agenda. It described him as a “would-be Labour politician”, and argued that Impress was “backed by (press reform campaigners) Hacked Off and many others on the left”.
Heawood says he finds it “quite difficult to make sense” of the accusations. “The strange thing about those attacks is that we are apparently both a liberal left organisation and have links to fascism,” he says. “I think there’s a wide range of political opinions on the board and executive team.”
The chair of Impress is Walter Merricks, the first chief ombudsman of the Financial Ombudsman Service. Its board also includes an actuary, two lawyers, a leading anti-smoking campaigner and a couple of journalists (former Smash Hits editor Emma Jones and Martin Hickman, co-author with Tom Watson of ‘Dial M for Murdoch’, a book about the hacking scandal).
Regarding Hacked Off, Heawood says: “We have very different characteristics as organisations. We agree about certain things such as section 40 but we may not agree about everything.”
Max Mosley was one of several prominent figures to offer financial support to Impress in its early days. Others included the writers JK Rowling, Ian McEwan and Michael Frayn. Heawood met Mosley and the Impress board agreed to take his money “on the condition it came from a charity and there were guarantees in place to put beyond all reasonable doubt that neither Max Mosley nor his family nor anyone involved with his family trust could put any pressure on Impress”. Heawood says he would be happy to take money from Rupert Murdoch on the same terms.
What is not in doubt is that Impress and the PRP which oversees it face an existential threat. It will be hard to justify the continued use of public money to fund a panel that inspects a lone small regulator that has yet to handle a single complaint. Impress must find a way to expand what the Mail calls its “motley collection of members”, or it will surely die (despite Mosley’s generous provision of a £3.8m budget to cover four years).
Heawood believes that the much-loathed section 40 will be the answer to this problem. Not because publishers will be frightened into joining by the big stick of punitive court costs but because they will come to see that the legislation is actually helpful to journalists.
This is because membership of Impress (or another approved regulator) would indemnify the publisher against a claimant’s legal costs in cases where the claim was pursued in court and not through a cheap and fast arbitration service that this new watchdog offers the public in accordance with Lord Justice Leveson’s recommendations on press reform. Arbitration is seen as an alternative remedy for claimants in libel and intrusion of privacy cases who cannot afford to go to court.
This should be a major incentive to publishers, Heawood believes. “The carrots are fantastic. For any journalist or news site that takes on anything faintly risky, whether it’s dealing with a local business, politician or football club, or an oligarch or international corporation, to have protection against the costs in a libel or privacy action is potentially really liberating.”
This, I think, will not assuage the concerns of investigative journalists such as David Pegg of the Guardian, who has argued that section 40 could mean that papers outside the charter system are exposed to “unscrupulous libel lawyers” deliberately racking up “exorbitant fees”, and groups of claimants coordinating legal actions against a title. The legislation could “sound a death knell for public interest investigations”, he suggests.
Some papers have even suggested that the brilliant investigations into the Rotherham child abuse network (published by the Times), and into cheating in sport (the Sunday Times and others), would have been punished by any resulting legal claims. Heawood says the court would take into account the wider circumstances of the case. “It’s inconceivable that a court is going to award costs against a publisher who has exposed that kind of fraud or criminality.”
Intriguingly, he speaks of a “more nuanced position” adopted by some observers, whereby the incentives of section 40 are activated but the punitive element of legal costs remains uninvoked but on the statute book as a warning against a future press scandal. The Impress founder and chief executive describes this as “an interesting position”.
But the regulator’s official position is that it wants Theresa May to enact section 40 in full, with parliament having approved it by an overwhelming majority as long ago as March 2013. “It’s very hard to know what has changed between March 2013 and January 2017 that means that the government can’t commence section 40. All that has happened is that the memory of Leveson has faded slightly and that in 2013 the politics was slightly different.”
He admits that the uncertainty is inhibiting new members from joining Impress.
In the meantime, the regulator is in discussion with insurance companies to make its terms more attractive by insulating members further against legal costs. “We are talking to insurers about developing insurance packages that would be cheaper for publishers which are signed up to a recognised regulator because insurers can see that that’s a fantastic way of minimising risk.”
But all of this will be of little consequence if Impress continues to represent only a small number of tiny publishers.
Heawood says the bigger players need to consider the bigger picture, which is the vast terrain of online publishing, with its minefields of fake news and organised propaganda. If journalism is to thrive, he argues, it needs to improve its levels of public trust, which “seems to have declined steadily over the years”. He says the press needs to show greater transparency. He claims that the Impress approach of “performance dependent oversight” is “a more flexible and resilient model”, more suited to the complex future of online publishing than the extremes of “comprehensive statutory” regulation or a “total free-for-all” with no regulator.
But he doesn’t expect all the big news groups to share that vision. “There are some publishers who don’t like change and are happier fighting these old battles about regulation than they are grappling with the changing realities of 21st century news publishing.”
Whatever the potential damage to public interest journalism of Section 40, Heawood is not a sinister zealot. When he was at English PEN he campaigned hard for reform of Britain’s libel laws in favour of publishers and he shared in the news industry’s rejoicing at the introduction of the Defamation Act 2013. Some of his fellow free speech campaigners are less than supportive of his new role at Impress but he is hurt by the suggestion that he is hostile to the press.
“My background shows that that is not where I am coming from. Half of us (at Impress) have got backgrounds in journalism and I suppose our motivation is to improve the reputation of journalism and help it do its job,” he says.
“So it’s frustrating to be described as anti-press when in fact we are pro-journalism.”
Ian Burrell's column, The News Business, is published on The Drum each Thursday. Follow Ian on Twitter @iburrell