There are many things wrong with the way the national press reports legal matters, especially matters relating to the Family Court and the Court of Protection. But they are not going to get better unless and until the so-called regulator, IPSO, takes firmer action to enforce the Editors Code of Practice.

Better still, we should have a genuinely independent and proactive regulator, capable of upholding higher standards of conduct and enforcing them when they are breached. But IPSO is very far from being that.

Following a disappointing response to a recent complaint to IPSO by a group of individual lawyers (including two of our trustees), we decided to examine it in more detail.

What is IPSO?

IPSO was set up in the wake of the Leveson Inquiry into phone-hacking and other forms of press misconduct. Prior to that, there was something called the Press Complaints Commission. It was not very effective. If it had been, all the mischief at which the Inquiry was aimed would not have happened – or not to anything like the same extent. The press were running wild. They had gone feral. The Leveson Report recommended a new form of regulation, more independent of the newspapers and publishers whom it was supposed to regulate. But that hasn’t happened, at least not yet.

Instead, some of the mainstream press (The Sun, The Mail, The Telegraph) clubbed together to form a self-regulatory body, called the Independent Press Standards Organisation, or IPSO. It now has 81 members, including many local newspapers and most of the big national ones (except The Guardian, Independent and Financial Times).

How independent is it?

Despite the name, IPSO is not truly independent. It is funded by the publishers it regulates, through something called the Regulatory Funding Company (RFC), all of whose directors are industry insiders. Moreover, half of the members of IPSO’s board, and half of its Complaints Committee, either work in or have worked in the media, some of them in the very organisations they are supposed to regulate.

Nor is the perception of cosy familiarity dispelled by having, as the chair of the Editors’ Code of Practice Committee, the editor-in-chief of the Mail group, Paul Dacre. He has been chair for the last eight years, since March 2008, when it was under the auspices of the PCC. That suggests a degree of continuity that rather belies IPSO’s claim to represent a new departure. Moreover, the Editors’ Code Committee is even more industry-dominated than IPSO’s board – 10 of its 15 members are employed by newspaper or magazine publishers.

IPSO’s overall chairman is a retired Lord Justice of Appeal, Sir Alan Moses, a man of undoubted energy and ability, whose judicial objectivity is surely beyond doubt. But even he admits that IPSO is far from perfect. “We are much, much better than nothing”, he has said. Reading between the lines, it’s clear he thinks it could be much, much better still.

Complaints  

IPSO’s main task is to enforce the Editors’ Code of Practice by hearing and determining complaints of alleged breaches.  Although both the Code of Practice and the Codebook (a sort of handbook that provides editors with guidance on the application of the Code) had their origins in the old Press Complaints Commission, that’s not necessarily a bad thing. The problem with the PCC was not its code, but its woeful feebleness in enforcing it — as we learned in the Leveson Inquiry. IPSO’s enforcement of the Code has been rather better, but it is still where most of the criticism of IPSO is directed.

IPSO gets a lot of complaints. Its annual report for 2015 records that it received more than 12,000 complaints. However, these individual complaints may often relate to the same story: for example, 3000 of them in 2015, almost a quarter, were concerned with the “1 in 5 Muslims support ISIS” story in The Sun. Where they relate to a single story, IPSO treats them all as a single “case”. So the number of cases it deals with is rather smaller than the number of complaints it receives. It then attempts to resolve the case directly with the publisher, and only if the publisher rejects the complaint does IPSO’s own complaints committee hear and resolve it.

In 2015, of the cases dealt with by IPSO, 205 were resolved directly which the publication, and 307 were accepted by IPSO. But many complaints are rejected right at the start. One of the main reasons is that the publisher in question is not a member of IPSO. That’s because its jurisdiction comes solely from the contract it has with each of the members who have signed up.

Even if the publisher is a member of IPSO, it won’t deal with a complaint if it concerns something that is not covered by the Code of Practice. The Code doesn’t cover things like taste or decency, for example. What it concentrates on is accuracy (you shouldn’t print something that simply isn’t true, or is based on a false representation of the facts) and things like discrimination, respecting privacy and confidentiality, avoiding unnecessary harassment of victims, and so on. It also provides a definition of “public interest” for the purpose of ascertaining whether that might justify publishing a story in spite of other considerations to the contrary. (It’s also important to note that IPSO is not there to enforce legal restraints on publishers, such as court reporting restrictions, contempt of court rules, or the law of defamation. Those need to be enforced through the courts.)

“Directly affected”

However, IPSO will also refuse to accept a complaint, even if the article in question offends the Code of Practice, where the person making the complaint is not directly affected. This may seem reasonable in many cases, but it is something that has particularly concerned a number of legal commentators because of its effect on, among others, the judiciary. And it was the basis for the rejection of the complaint which prompted this post.

It is a well observed convention of public life that judges do not respond to public criticism. But if the publisher has got the facts wrong or deliberately or carelessly skewed the meaning of what the judge said, shouldn’t it be possible for someone else to point this out and complain to the publisher? It should not be necessary for the judge him or herself to do so.

In theory, where it is a question of publishing inaccurate information, according to IPSO’s own procedural rules, anyone can complain. These are the factors they say they will take into account where the person complaining is not the person affected:

• Can IPSO properly investigate the factual position?
• Is the material in dispute in the public domain?
• Has the person/people directly affected complained and are they likely to complain on their own behalf? If not, what is the likelihood that they would cooperate with IPSO?
• What is the likely impact of a complaint on the person/people directly affected?
• Would there be a legal difficulty in publishing any findings?

In the recent example, the President of the Family Division of the High Court, Sir James Munby, issued a public statement about the current crisis in the management of care proceedings in the courts. It was widely mis-reported in the press, notably by the Daily Mail. When legal commentators complained about the inaccuracy, the response from the Daily Mail was essentially to deny having done anything wrong, and IPSO, to whom the case was then referred, refused to take the case up because the President himself (who they essentially characterised as the “alleged victim”) had not made or backed the complaint.

But that seems an absurd response. It was a clear case of an allegation of the publication of inaccurate information, which did not require any further input from the President, so it would not have been precluded from consideration by any of  the factors listed above. Yet IPSO rejected jurisdiction. What’s more, in a case of inaccurate reporting of a judge, there are significant restrictions on what further comment a judge can properly make. It would be highly unusual, although not perhaps impossible, for a judge himself to pursue a complaint about inaccurate reporting to a press regulator.

You can read here about this particular complaint, first to the Daily Mail, setting out the grounds of complaint;  and then, when it was rejected, to IPSO (which also rejected it). 

It is perhaps ironic that Sir Alan Moses himself, as a former judge, in a speech delivered around the time IPSO was established, suggested that judges in general needed better defence against misrepresentation and inaccuracy in the press, and recommended the appointment of someone, like they have in Holland, called a “press judge”. But in the absence of such a champion, would it not be reasonable for the body setting itself up as a regulator of the press to stand up for misreported judges? It seems that where Sir Alan speaks, the body which he chairs somehow fails to deliver. Although there is a Judicial Press Office, we are not aware of them ever performing the sort of advocacy role that Sir Alan Moses suggests in his speech.

Remedies

Even when IPSO accepts a complaint, and makes a finding against the publisher, the remedy is often not very effective. IPSO has the power to require a publisher to

1. Publish its adjudication
2. Publish a correction

In either case, the placement of the correction (e.g. on the same page as the original story, or somewhere else) and things like the type size and prominence, can be dictated by IPSO. It can also issue a written notice to the publisher notifying it that further remedial action is needed to ensure the publisher complies with the Editors’ Code.

The prominence of corrections and adjudications ordered to be published by IPSO is another source of criticism. Most people think that if a story which has been given massive prominence on the front page of a national newspaper is found to be inaccurate or otherwise in breach of the Code, the corresponding correction or adjudication ought to be given the same position and prominence, yet it is usually hidden away somewhere on an inside page, where it is printed in much smaller type. When the chair, Sir Alan Moses, was questioned about this in a recent grilling by the parliamentary Culture, Media and Sport Committee (which is conducting an inquiry into press regulation) he said IPSO had the power to require a correction of equal prominence, but had never done it because

“the judgment of 12 members of the committee has been so far that, provided … there is sufficient publicity to the fact of the ruling and the fact of the condemnation that has been sufficient”.

The example cited was the “Queen backs Brexit” story, which the Sun stood by despite being required to publish (not very prominently) the result of the adjudication, namely that the headline was not supported by the story. So it published the adjudication, but no correction or apology.

“Nobody can have been unaware of what the result of the “Queen backs Brexit” [adjudication] was” said Sir Alan, “but we were criticised because it wasn’t equal prominence.”

This seems hardly surprising, and one of the recommendations of the otherwise somewhat bland Pilling Review into IPSO, published earlier this month, was that IPSO should produce guidelines on its application of the concept of “due prominence” so the public could understand what to expect (or not to expect) when a complaint is upheld.

Other activities

IPSO also collects annual statements from its member publishers, reporting on their own adherence to the Editors’ Code and standards. If a publisher persists in failing to comply with the Code, or for some other reason IPSO has serious concerns about its behaviour or actions, it can mount a “standards investigation”. If it finds serious wrongdoing, it can impose a fine of up to £1m, or even expel the member.

IPSO has also set up a Whistleblowing Hotline, for journalists who are concerned about the conduct or culture of their employer, which is now managed by a third party rather than in-house. It also issues, from time to time, Privacy Advisory Notices, where requested by someone to prevent them being harassed or their privacy invaded by journalists covering a story. 

Finally, IPSO is now piloting a low-cost arbitration scheme as an alternative to litigation, where a complaint cannot otherwise be resolved. However, no one appears to have used it yet.

Transparency

IPSO is generally transparent about its activities. It has a good website, on which it is easy to find information about its governance and funding, the Editors’ Code, and information about how to complain. More importantly, it publishes all its rulings, from which it is possible to see what sort of complaints do or don’t succeed, and what sort of action IPSO does or doesn’t take.

For a good example of a recent ruling against a newspaper, see Dartington v Daily Mail  which concerned the front page story that a “lorryload” of illegal immigrants had arrived saying “we’re from Europe, let us in”. (In fact they were not from Europe, but had come from Iraq and Kuwait. The story was skewed to make a bad point about freedom of movement.)  The newspaper had already published a correction, and apart from making an adjudication (which you can read) IPSO took no further action.

Scrutiny

IPSO has recently come under the spotlight for a number of reasons. First, there is that parliamentary Culture, Media and Sport Committee investigation, for which Sir Alan Moses, IPSO’s chair, and Matt Tee, its chief executive, were summoned to give evidence. They gave their oral and written evidence on 13 September 2016.

Then, just last week, two things happened. First, Sir Joseph Pilling published a review, commissioned by IPSO, into its performance over the last two years. Broadly, The External IPSO Review (pdf) concludes that IPSO is independent, effective and largely compliant with the recommendations of the 2012 Leveson Report. However, there are some areas where Pilling finds IPSO wanting, and there are some rather surprising recommendations. (We will analyse the Review more fully in a separate post.)

Then, a day or so later, came Press Recognition Panel’s first annual report on the  effectiveness of the Leveson system. The PRP is the body set up, under Royal Charter in accordance with the Leveson Report recommendations, to assess and approve an independent press regulator. IPSO’s members do not want it to be approved by the PRP, nor do they want the PRP to approve any other regulator, such as IMPRESS, for reasons which we have explained in two earlier blog posts: see

• What happened to the Leveson inquiry into press standards? 
• IMPRESS – ‘blazing a trail for a fairer, better kind of press regulation’? 

Conclusion

The Transparency Project aims to promote the publication of “balanced, accurate and accessible information about the work of family courts” and one of its key activities is to correct or explain cases which have been misreported in the media. Clearly, where a newspaper publishes skewed or inaccurate information about something a judge has said, and the judge himself is not in a position to complain, it should be possible for IPSO to take action against the newspaper in response to a complaint made by a group of lawyers or legal commentators, or other concerned individuals, who don’t happen to be the “directly affected” by the publication.

IPSO’s failure even to consider the complaint, in the example in which we were concerned, for reasons which don’t appear to chime with its own procedural rules, suggests it has some way to go in demonstrating that it is an effective regulator.