Frequent publication of council freesheet ‘unacceptably compromises’ local press, says judge

The Town Hall is considering its next move in the long-running battle over the future of Hackney Today after a judge ruled it was “difficult to see” how its frequent rate of publication would not compromise the aim of protecting the local press.

The council had been ordered to follow the guidance of the Publicity Code and put out the freesheet only on a quarterly basis rather than fortnightly, amid concerns that a regularly-published council newspaper delivered to every household in the borough could harm the prospects of the local press.

The Town Hall unsuccessfully fought that decision in the High Court last month, arguing that it lacked proportionality and was an abuse of power by the Ministry for Housing, Communities and Local Government, alongside Hackney resident Christine Moore who argued that lack of access to a fortnightly council freesheet was a violation of her rights.

Matt Abbott, communications and project officer for the Centre for Community Journalism and the Independent Community News Network said: “This judgment is great news for independent community news publishers.

“The decline of local newspapers has meant many independent publishers are faced with a myriad of issues. Not least among their difficulties is a lack of funding.

“Having to compete with a local authority for a share of traditional advertising revenue could have been the nail in the coffin of many of these titles.”

In her judgment, Mrs Justice Andrews DBE agreed with the MHCLG that money from advertising would be taken up by Hackney Today and similar freesheets which would otherwise be available to local media.

Mrs Justice Andrews said:  “What matters here is whether it was rationally open to a decision maker to conclude that if an advertiser who was going to use a print medium had the choice between placing his advert in a free newssheet delivered to all households every fortnight, or in a paid-for newspaper that appeared weekly, he would be likely to opt for the former. Plainly it could.”

The judge also demolished the argument that the government needed to show “empirical evidence” of Hackney Today‘s frequent publication representing unfair competition, pointing out that the local government secretary’s powers to enforce the Publicity Code were not restricted to situations where it was possible to prove that local papers had been prejudiced.

The secretary of state for local government, James Brokenshire, states in the judgment that he felt that the very frequent publication of a local newssheet delivered to every household in the borough was likely to “hinder the market for independent local newspapers”.

In Ms Moore’s part of the case, the Hackney resident argued that receiving the council freesheet less frequently than she did before constituted a violation of her human right to freedom of expression, and her related right to receive ideas or information.

The judge found that even if having the freesheet published quarterly, as the Publicity Code specifies, did constitute an interference with Ms Moore’s rights, that such interference was “extremely limited”.

The justice argued that Ms Moore will still have access to the same information via the internet or through public notices, and that much of the news published by Hackney Today would also appear in the local press.

Mrs Justice Andrews added: “There seems to me to be considerable force in [the] argument that the enforcement of the restriction on local authority publications promotes freedom of expression by protecting and encouraging the development of the local independent press.”

The council also came in for judicial criticism for arguing that it was unfair not to enforce the Publicity Code against other local authorities who published their freesheets monthly, with Mrs Justice Andrews saying that “it is not an attractive argument (and it does not logically follow) that because someone whose behaviour is not as serious a departure from the Code as yours has not yet been made to comply, it is unfair to make you do so”.

It is not clear whether the council will now stop publishing Hackney Todayfortnightly, as the Town Hall is said to be considering its options and reserves its right to appeal.

Mayor of Hackney Philip Glanville said: “We’re disappointed with the outcome of the judicial review. Taking legal action was not something the council did lightly.

“However, our priority has always been about informing and empowering our residents, as well as making the most of our reduced funding, and we believe the strong case for continuing fortnightly publication of Hackney Todayjustified this judicial review.

“As well as saving the council tens of thousands of pounds by not having to pay to advertise statutory notices in the local press, Hackney Today has always been by far one of our most effective and popular ways to communicate with our diverse communities.

“We know it is especially valued by our older residents, social housing tenants, young families, less affluent communities and people with disabilities.

“We have always disputed the government’s argument that council publications are damaging to local newspapers. Hackney Today publishes content our local press would not.

“Forcing Hackney Today to publish just four times a year will not herald a return to some golden age of local newspapers. It will just mean less money for council services, and risks residents being less aware about what’s going on in the borough, less aware of opportunities which could benefit them, and less aware of the fantastic diversity which makes Hackney so special.”

In an earlier statement, the borough leader said that the freesheet’s publication was “never about competing with our excellent local newspapers the Hackney Gazette and Hackney Citizen – indeed I’m on record saying how invaluable they are and the important role they have in holding public services and politicians to account.”

Mayor Glanville went on to state that Hackney Today had never been found to contravene the guidelines laid in by the Code on objectivity, even-handedness, or cost-effectiveness, which were not issues under debate during the judicial review.

Alongside these strictures, the Code also calls for local authority publications to “be appropriate”, including to be published only quarterly.