IPSO: the Inconvenient Truth, Part Two – Jonathan Coad

As I explained in the Inforrm article that prompted Sir Alan Moses to invite me for a brief visit to his office before his terse invitation to depart it, the touchstone both of whether IPSO has any independence from the press industry and whether it will therefore be an effective regulator is on the issue of prominence.

On this issue you can readily determine whether the PCC’s successor is going to prioritise the interests of the general public and the complainant, or those of its creators and funders. The interests of the press are to keep the evidence of its failings to a minimum both to maintain is power to influence public opinion and medicate its hubris. It is therefore in the interests of the press alone that the corrections of its errors be a small fraction of the prominence of those errors. It is however in the interests both of the public and wronged party that corrections be of equivalent prominence.

Aware that its manner of dealing with the prominence most clearly betrayed it abject failure as a regulator, the PCC set out to conceal this – and its bias in favour the press – by writing its adjudications in such a way not to inform the reader about what it was really doing but instead so that they were misled into believing the lie that the PCC (the third incarnation of press self-regulation) was in fact an independent and effective regulator. This is also the way that the fourth incarnation of press self-regulation (IPSO) is trying to perpetuate the same lie.

IPSO’s stated obligations

This is what IPSO tells us about its role;

“IPSO is the independent regulator for the newspaper and magazine industry in the UK. We uphold the highest standards of journalism by monitoring and maintaining the standards set out in the Editors’ Code of Practice, and provide support and redress for individuals seeking to complain about breaches of the Code.”

Unfortunately, IPSO is not an independent regulator. It does not uphold the highest standards of journalism, and it does not provide redress of any significant value for victims of breaches of the PCC Code. It has already shown itself to be a failed regulator; as the press always intended that it should be.

If the press had any intention of creating a form of self-regulation that actually worked it would not already have failed to do so three times before offering us IPSO. It knew that the PCC was failing not least because it was set up to fail – just to do so in a way of which only the press was aware. The PCC spent an enormous amount of time and effort trying to persuade everyone else of the contrary. IPSO clearly intends to do likewise.

PCC’s methodology to conceal its failings

The PCC engaged in a plethora of tactics to persuade both the electorate and the elected that it was a tough, independent and effective regulator – all of which we now all know was untrue. One of the ways in which the PCC tried to ensure that it did not betray its obvious press bias was via its minutes/adjudications.  They were often disingenuous and/or otherwise misleading and written not as a fair account of the arguments that were before it but in a way which sought to justify adjudications replete with intellectual dishonesty. The PCC adjudications therefore often constituted breaches of paragraph 1(i) of the PCC’s own code of practice. Because the PCC permitted no appeal against its judgments – neither does IPSO – there was no remedy except via the courts.

The PCC adjudications would also omit key information which would otherwise enable anyone reading those adjudications to realise that the PCC was anything but an effective and independent regulator. This expedient was adopted particularly when it came to the most compelling evidence of the press bias of the PCC; its attitude to the issue of the prominence that should be given to the publication of corrections/apologies. IPSO has adopted the same methodology.

The unique impact of front page articles

This practice emerged most clearly when the PCC published an adjudication concerning a front page article.  Front page articles (especially those in national newspapers) are a unique form of the press publications because they are read by millions of individuals who would never buy the newspaper via the broadcast media.  This includes the front page being held up to the TV camera on late night and early morning TV news programmes; radio programmes where the newspaper headlines are read out, and news aggregation websites, the BBC News website etc.

Millions of people also see the front page when passing racks of newspapers at tube stations, railway stations, petrol stations, newsagents etc. Front page articles will also read by visitors in the lobby of the IPSO offices, where full array of UK newspapers are displayed in a neat rack with all the front pages readily visible at a glance.

So it is that Sir Alan and all of the IPSO Committee/staff are regularly reminded, as they enter the IPSO Offices, of the unique impact of the front page article in newspapers. That raises the question of what they do with that knowledge. The answer is set out clearly in an important IPSO adjudication of 20 February 2015; which also reprises one of the key vices of the PCC adjudication methodology.

Just in case any reader is unaware of the relevant PCC Code rule (now administered by IPSO); where the paragraph 1 (i) obligation not to publish inaccurate or misleading material is breached, paragraph 1(ii) requires that the correction be published “promptly” and with “due prominence”. Here then is how Sir Alan and his committee applied those principles in this recent IPSO adjudication.

The Daily Record adjudication

In the run up to the Scottish referendum which took place on 18 September last year David Cameron and the other main party leaders jointly pledged significantly greater powers for the Scottish Assembly in the event that Scotland elected to remain a part of the Union. On the day after the referendum David Cameron announced that Lord Smith of Kelvin would oversee the process to take forward the devolution commitments on further powers for the Scottish Parliament. On 26 (electronically) and 27 September (in print) the Daily Record published an article, reporting on the recommendations of the Smith Commission, which was grossly misleading.

The seriously wayward nature of the article which was dealing with highly significant constitutional issues for both Scotland and the UK as a whole was reflected in this part of the IPSO adjudication;

“…in stating that the Scottish Government budget would ‘nearly double’, or that it would be ‘boosted by over 50 per cent’, the newspaper was making significant claims … As a consequence of the inaccuracy, the article significantly misrepresented the fiscal consequences of the Smith Commission’s recommendations.”

One of the vices of the PCC adjudications that where they concerned a front page article they – to the best of my recollection – never informed the reader of that fact. This was doubtless because in all of its twenty-three years the PCC so far as I am aware never ordered a newspaper which had transgressed on the front page to publish a correction on the front page. The expedient of not stating the prominence of the original article was adopted to conceal the massive discrepancy between the prominence of the original article with that of its PCC sponsored remedy. This practice has now been adopted by IPSO as it follows in the footsteps of PCC in concealing from as many people as possible its calculated failure as a regulator.

This is the opening paragraph of the adjudication dealing with the print edition of the Daily Record article;

“Six complainants complained to the Independent Press Standards Organisation [about] an article headlined ‘The Vow delivered’, published by the Daily Record on 27 November 2014 …”

The reader of the adjudication is however not told the key piece of information that the article which was the subject of the complaint was published on the front page; let alone that it effectively comprised the entirety of the front page with misleading headlines that could have been read from about 100 yards away. Here is a link to a page which helpfully carries both the Daily Record article and the IPSO adjudication:

The IPSO adjudication does allow the reader to be privy to the prominence of the correction; “The newspaper … accepted that it had misunderstood the information provided to it on this point [and] offered to publish a correction in the “Corrections and Complaints” column on page 2 of the Daily Record.” But it does not inform the reader of the vast and unexplained discrepancy between the prominence of the original article and the IPSO sponsored correction.

Given what the Chairman, Chief Executive, staff and Committee of IPSO know from the rack in their own lobby the natural (and perhaps honest) response would be that just as someone who had read the front page article in the IPSO office rack – rather than buying the paper – would need to learn that they had been misled via the front page. So should those who read the front page article which was the subject of the adjudication via the television, on newsagent racks at railway stations, petrol stations etc.; or who read the article on news aggregation websites or who were told of its content via the radio.

Alas not. The adjudication tells us that IPSO concluded that “The article was therefore significantly inaccurate in a manner that required correction in accordance with Clause 1 (ii)”; i.e. “with due prominence”. IPSO nonetheless deemed that “due prominence” for the correction to this serious PCC Code breach comprised “a correction in the ‘Corrections and Complaints’ column on page 2 of the Daily Record.” This is despite fact that according to IPSO the paper was guilty of “a significant misunderstanding of the information provided to it, [and that it had] demonstrated a failure to take care not to publish inaccurate information”; i.e. the breach of the PCC Code was both significant and culpable.

A rough calculation of the size the correction deemed adequate by IPSO to this constitutional howler can be made from totting up the number of words (115) which will then tell you approximately the area it will occupy of the paper. On that basis the prominence of the correction (i.e. its size) was slightly less than the word “VOW” in the headline of the offending article. According to Sir Alan and his “hear no evil” committee “due prominence” meant a correction which will be been seen by a minute fraction of those who read the original article because of where it was printed; which renders somewhat academic the fact that the correction was also in size a mere fraction of just the headline of the original article.

So it is that a visitor to the IPSO offices who had read the Daily Record’s grossly misleading front page article in the IPSO newspaper rack, had that visitor happened to return to IPSO’s offices on the very day that the correction had been published would have been none the wiser; unless he/she had both elected to pick up that paper from the dozen or so others in the rack and happened to read the corrections and complaints column.

Paragraph 1(ii) of the PCC Code also stipulates that the correction should also be published “promptly”. This correction was published more than twelve weeks after the original publication. It seems then that IPSO also interprets the word “promptly” differently from how others might do so as it does the term “due prominence”. This IPSO adjudication was therefore neither prompt and nor did it enjoy “due prominence”. It therefore constitutes an abject failure by IPSO to do its job as prescribed by a Code written exclusively by press editors – as the PCC Code was. IPSO will however doubtless send out propaganda in its first anniversary misleadingly citing this adjudication as evidence of its success – exactly as the PCC had done previously.

Conclusion

The sense of deja vu reading this IPSO adjudication was acute. The front page article about which I gave evidence to the CMS Committee which had falsely suggested that the then teenage Peaches Geldof was selling access to her bed for £5,000 a night. Apart from a photograph and the paper’s masthead the article took up the whole of the front page and the headline which made the allegation could have been read from about 100 yards away.

Despite this the PCC had determined that a sufficient remedy for both Peaches and the grossly misled readers of the paper was a correction on page 2 the size of which was considerably smaller that the area taken just by the word “Peaches” on the front page. As a result, my client sued the paper and secured a Statement in Open Court [pdf] which then gave adequate prominence to the fact that the paper had grossly breached its obligations under the PCC Code because the PCC had failed to do so.

This IPSO adjudication is however a substantially more egregious dereliction of its responsibilities than the Peaches adjudication by the PCC. At the least the PCC merely wronged Peaches and her family (though grievously and cruelly) and enabled the paper to mislead the millions of readers of its front page headline on a matter of great importance to the complainant and those close to her but of scant broader public interest.

IPSO has however gone further than the PCC by helping to ensure the millions of readers of the Daily Record front page remain deceived on an important constitutional subject by the newspaper because that paper does not want to admit too publically to its error – the same reason why Peaches Geldof had to turn to the court after having been failed by the PCC. To Sir Alan and his committee it is clearly more important to spare the blushes of their funders than it is to inform the general public that they have been seriously misled on a matter of high public interest by a newspaper in IPSO’s charge. In this assessment they have both replicated and exceeded the mischief of their predecessors.

The sense of deja vu in engaging with IPSO after dealing with the PCC is also overwhelming. After watching Sir Christopher Meyer turning puce on having his own words on the issue of prominence before the CMS Committee quoted back to him (as I did over a PCC lunch) the angry reaction of Sir Alan to being confronted with the same inconvenient prominence issue was strikingly familiar. So are we safe in the hands of Sir Alan’s IPSO any more than we were in those of Sir Christopher’s PCC; alas no.

IPSO currently enjoys a monopoly in press regulation so it is the only option (as was the PCC) where either the lack of a legal alternative or lack of funds mean that press wrongdoing can only be addressed through a regulator for which the press refuses any oversight save its own. So why and how much does this matter? I will deal with those issues in Part Three of this article.

Jonathan Coad is a partner in the Media Brands and Technology Group at Lewis Silkin LLP and acts for both Claimants and Defendants.