The Media Standards Trust has issued a highly critical follow-up report on its earlier assessment of the extent to which Independent Press Standards Organisation (IPSO) system of press regulation satisfies the requirements of the Leveson Inquiry Report 2012. The new report finds that, five years after it began its operations, IPSO still fails 25 out of Leveson’s 38 recommendations for a “genuinely independent and effective system of self-regulation”.
That IPSO continues to fail as an effective press regulator should come as no surprise to regular readers of the Transparency Project blog, as we have been unimpressed by its operations generally and its handling of our own complaints in particular.
See, for a general overview, Press regulation: why we are unimpressed by IPSO, and, for our experience of complaining, see Achievement unlocked : Our experience of the IPSO process. To learn more about the Leveson Inquiry itself, see the recently launched online resource, Discover Leveson.
The MST report therefore confirms what we already knew, which is that IPSO is really not living up to its name even as a “self-regulatory” body, let alone one that is (if such a thing is even possible) “independent” of the publishers it regulates. It may be, as its outgoing chair, Sir Alan Moses, once said “much better than nothing”, but that is not setting a particularly high bar for success.
The Leveson Report recommendations followed an inquiry into some really reprehensible conduct by sections of the press, mainly at the tabloid end of the market, including phone-hacking and other forms of unlawful conduct. But the purpose of regulation is not to prevent criminal conduct; the criminal law is designed to do that. It is to ensure that the press reports fairly and accurately and respects the rights of individuals in accordance with a proper balance against freedom of expression and the public interest.
The MST report, titled The Independent Press Standards Organisation (IPSO) — Five Years On, examines the regulator’s performance over its first five years of operations, comparing its compliance with the 38 recommendations of the 2012 Leveson Report with the findings of an earlier MST review dating from 2013. The 38 recommendations it refers to are set out in Appendix 1.
The 2013 report showed that IPSO satisfied just 12 of those 38 recommendations for achieving a “genuinely independent and effective system of self-regulation”, failing to satisfy 20, with six cases where there was insufficient evidence to decide whether IPSO satisfied the recommendation or not. The report also found an unnecessarily high degree of industry control over the IPSO system via its Regulatory Funding Company, which (as the present report notes) “substantially compromises” IPSO’s nominative claim to independence from the industry it supposedly regulates.
The 2019 report finds that, of the six cases for which there was insufficient evidence in 2013 to determine whether or not IPSO satisfied the Leveson recommendation, subsequent evidence shows that IPSO failed to satisfy any. There were two instances of changes to the IPSO system resulting in the regulator now satisfying recommendations it was previously judged not to satisfy; on the other hand, there was one case where IPSO now failed to satisfy a recommendation that was previously met. And in seven cases there have been changes to articles and regulations that relate to the satisfaction of recommendations, but in each case the regulator continues to fall short of doing so. So the score has gone up from satisfying 12 of the recommendations to satisfying 13, with all the rest unsatisfied.
We don’t propose to consider all of these failings in this post but have picked out some of the key problems.
Lack of independence
In relation to IPSO’s lack of independence, the MST report says:
“While changes to the regulatory system that empower the regulator at the expense of industry control are to be welcomed, the cumulative effect of these changes in most cases does not translate into IPSO satisfying the recommendations set out following the Leveson Report, and do not ameliorate the extensive control the industry can exert through the Regulatory Funding Company and through those aspects of the IPSO Articles and Regulations that present extremely high hurdles for standards investigations and which allow publications to repeatedly intervene in the investigations process.”
Lack of standards investigations
The report also notes that
“IPSO’s inability to implement a single standards investigation over five years of operation is one additional key indicator of its lack of regulatory powers and independence.”
The “standards investigation” referred to is one of IPSO’s additional powers, apart from the main one of adjudicating on complaints. 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.
This was based on Recommendation 19 in the Leveson report, which provides that a regulator “should have the power to impose appropriate and proportionate sanctions (including financial sanctions of up to 1% turnover with a maximum of £1m) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body.”
The MST report finds that IPSO have changed the provision for this in their regulations so that it no longer requires “serious or systemic” breaches of the standards code, but the rather harder to satisfy test of “serious and systemic” breaches. Moreover, “at no point in the IPSO documents … are ‘serious’ or ‘systemic’ defined.”
The clear implication is that IPSO has not only declined to carry out any standards investigation but, even if it were to do so, the criteria according to which it would be carried out now make it that much harder to find any of its members in breach. The process is already loaded heavily in favour of the publisher under investigation who, the report notes, has up to six opportunities to intervene in the process, while complainants have no opportunity to participate or make representations.
The report concludes that these factors mean that “the chances of IPSO imposing sanctions via this route remain vanishingly small.”
Restrictions on membership
Another problem is the restrictive approach to which publishers can actually sign up to be regulated by IPSO. Leveson’s Recommendation 24 was that membership should be open to all publishers on fair, reasonable and non-discriminatory terms, including for different types of publisher.
That appeared to be reflected in IPSO’s articles of association and regulations, but clause 3.2 of the scheme membership agreement between IPSO and the regulated entities restricted membership to members of the Regulatory Funding Company (RFC), which was allocated at the discretion of the secretary to one of three sectors: (1) national newspapers, (2) regional newspapers, (3) magazines. Although under the scheme membership agreement the RFC had a discretion to establish new sectors, there was some confusion in the articles of association over whether this allowed the incorporation of new members that were not part of the traditional newspaper or magazine sectors.
The MST report finds that, in the five years since IPSO began operations, the RFC has not in fact created any new sectors and the list of publications continues to consist mainly of legacy print publishers, save for some digital native publishers in the regional newspaper sector. The report therefore concludes:
“To the extent that the RFC has not created new sectors, membership of the regulatory system in the current three-sector structure cannot be said to be entirely ‘fair, reasonable and nondiscriminatory.’”
Moreover, there remains a bias in favour of existing members from traditional print background in the way the voting system operates.
“Within the IPSO system, voting is not calculated on the basis of one member, one vote. Rather, the number of votes each member has is determined by how much they pay in subscription to the RFC. …
Digital native sites, on joining the system would – if operating at the national level – be allocated to a group in which legacy newspapers have overwhelming control over voting on the basis of their share of the sector budget…”
As a result:
“While the membership of the IPSO system is theoretically ‘open to all publishers’ as Leveson envisaged, the current structure of the RFC’s role in the regulatory system means that membership for new publishers is unlikely to be ‘fair, reasonable and non-discriminatory’.”
We pause to note that IPSO’s rival regulator, IMPRESS, is rather more flexible in its openness to digital native membership outside the traditional print publishing categories of national and regional newspapers and magazines, and has been found fully complaint with recommendation 24. (See PRP Board decision in respect of the application for recognition from IMPRESS, 25 October 2016.)
Public interest justification
Leveson Recommendation 43 was that a regulator “should consider being explicit that where a public interest justification is to be relied upon, a record should be available of the factors weighing against and in favour of publication, along with a record of the reasons for the conclusion reached”.
The earlier MST report found no provision for this in IPSO’s scheme, and the current report finds that position unchanged. Moreover:
“Definitions of the public interest as it relates to news content published by members of the IPSO system are determined by the Editors’ Code of Practice committee and incorporated into the Code. As the Editors’ Code of Practice Committee is convened by the Regulatory Funding Company (RFC Article 2.2) and the RFC also has the power to:
– Set the budget for the Code Committee (RFC Article 24.4);
– Determine the composition of the Committee including the balance of industry and independent members (RFC Article 10.9);
– Approve or veto changes to the Code (RFC Article 10.11)
It is evident that the regulator in this instance has no control over the application of public interest justifications and no capacity to provide a record of public interest applications, and therefore does not satisfy Recommendation 43.”
Sources and links
Leveson Recommendation 45 was that, to “encourage transparency”,
“A new regulatory body should consider encouraging the press to be as transparent as possible in relation to the sources used for stories, including providing any information that would help readers to assess the reliability of information from a source and providing easy access, such as web links, to publicly available sources of information such as scientific studies or poll results.”
We at The Transparency Project would certainly support and endorse that aspiration. All too often, the harm done by selective and sensationalised reporting of family law cases could be mitigated by providing a link to the publicly available judgment on which in all probability the story is mainly based, rather than using the cryptic formulation “detail of the case emerged on a legal database”, assuming any mention is made at all of the published source. (If released by the court, most such judgments would be available via the British and Irish Legal Information Institute, www.bailii.org )
The MST notes that no provision was made for this in the original IPSO system, and this remains the case. The report concludes:
“It is conceivable that the Editors’ Code Committee could provide supplementary guidance to IPSO regulated members on the issues covered by Regulation 45, but historically the Code has not been designed to serve this purpose. Even were it to do so, this would be under the powers of the Regulatory Funding Company and not the regulatory body, and therefore Recommendation 45 is not satisfied.”
The Pilling Review
Having found IPSO to have failed 20 of the 38 Leveson recommendations, the MST report compares its findings to those of a review conducted by Sir Joseph Pilling in 2016 at the behest of IPSO. The Pilling review found only six failures, in 2016, and all the other 32 satisfied. The MST report notes that Pilling’s review was based largely on interviews with employees of IPSO itself or with news organisations, and appeared not to have considered the role of the RFC at any level.
The MST concludes, with quiet devastation:
“The present analysis does not consider the arguments of the Pilling Review persuasive with regard to IPSO’s satisfaction of the Leveson recommendations.”