At the Protecting the Media conference on 24 September 2015 one of the speakers was the IPSO Chief Executive, Matt Tee. He was given a slot to make his case that IPSO was fit for purpose as a genuinely independent and effective regulator. Despite the assumption that he had crafted the best possible case for this proposition, what emerged was further cogent evidence to the contrary.
Independent regulation – three acid tests
One acid test for any independent regulator is whether the code of conduct that it administers has been the product of a process that has any semblance of independence. If it does not, then the regulator falls at the first hurdle.
A second acid test is whether the regulator does its job in a way which strikes a fair balance between the interests of the industry that it is supposed to regulate, and the victims of failures by that industry to conduct itself in a way which accords with generally accepted societal norms – such as not saying things about people that are untrue and then refuse to correct them. If it fails to do that, then no one need look further as to whether it is truly independent or not.
The third acid test is whether the adjudications that it generates will stand up to independent scrutiny in the form of a substantive review. If no such review is even permitted then the regulator has very obviously failed that test.
The first acid test applied
More than a year after its foundation, and much longer after its conception, IPSO is still administering the same Code as that used by the PCC. This was written exclusively by newspaper editors – a fatal flaw to any aspiration to independence. The PCC was belatedly consigned to the dustbin of history because of its abject failure as a regulator.
This glaring defect must be obvious to IPSO’s Chairman, Sir Alan Moses. If he were sitting in court to determine a dispute and the defendant’s representative handed up to him the legal principles which he had to apply, which had in turn been written by the defendant, Sir Alan would not require very long to discern that he could not possibly be administering any form of independent or fair justice. This however appears to have escaped his notice as the Chairman of IPSO.
The second acid test applied
The easiest way to discern whether IPSO’s claim to be independent is true or false is where in its regulatory work it acts in a way which both serves society as a whole but is also tangibly undesirable to the industry which both funds it and created it. In the case of IPSO the litmus issue is the one of prominence.
The issue of prominence is a big one for the press because it impacts on two issues very dear to its collective heart. The first is its determination never to admit fault, or be seen to be admitting fault. The second is to ensure that nothing impedes its efforts to maintain its market position as against its rivals.
The purpose of the front page of the newspaper is not primarily to convey news; it is the poster board for the advertisement by which the newspaper hopes will secure the highest number of sales that day. If there were any infraction into the editorial licence to deploy the front page billboard for its intended purpose, then that is where the true test will lie of any regulator that claims to be independent.
Assuming that the IPSO personnel (including its Chairman, Chief Executive and Board members) are no different from the rest of us, they well know that the content of front page of a newspaper is communicated to millions every day because (inter alia) it is held up during news programmes, read out on the radio, displayed on news and press aggregation websites, seen by millions of commuters passing news stands etc.
Proportionately therefore those publications are seen by people numbering hundreds of times the amount who would see small “news in briefs” at the bottom of the front page, or any copy elsewhere in the newspaper. Proportionately the power of such front-page publications both to mislead the public and to wrong victims is immense. Consequently, as a matter of proportionality, an independent regulator must ensure that where a newspaper has erred on a front page splash, it has to be via a front page splash that that error must be corrected; otherwise the remedy is wholly ineffectual and the regulator has failed.
The cover up
That then would be what the head of any truly independent regulator would say about the obligations of his organisation in administering its primary remedy. Matt Tee however used the term “proportionality” as IPSO’s justification for not obliging newspapers to correct what he alluded to as “front page splashes”, with the result that the vast proportion of those millions who had been misled by the front page splash never learnt the truth. IPSO thereby totally fails both the general public and the victim in order to fulfil its mandate to preserve the interests of the press.
Mr Tee therefore deployed the word “proportionality” to try to justify IPSO acting in a way which was the antithesis of “proportionality”. He thereby adopted another of the traditional means whereby corrupt organisations defend themselves (expelling critics being an earlier expedient); the use of disingenuous and/or meaningless phrases to conceal glaring deficiencies which betray the truth about that organisation.
The third acid test
A third stratagem favoured by such organisations is evasion. So it was when I asked Mr Tee why, despite being headed by an ex-Lord Justice of Appeal, IPSO did not permit any form of substantive review of its adjudications.
Rather than frogmarching me out of the building as he did on an earlier occasion when I asked him a difficult question, Mr Tee responded not by answering the question but by describing the process where a mere internal procedural review was available. It took my repeating the question to oblige him to concede that IPSO permitted no substantive review of its adjudications. Presumably if he had not recognised that this was a deficiency on the part of IPSO and/or betrayal of its true nature, he would have felt able to respond to the question first time round.
What Mr Tee then said was however truly extraordinary. He justified the lack of a substantive review as part of the IPSO adjudication process on the basis that it was not “allowed” to have a substantive review; a statement from someone who earns his salary as the Chief Executive of an organisation which describes itself as “independent”.
This statement was all the more remarkable because it followed a number of personal remarks during the course of his speech stressing that he wished that people could know of the experience that he had working at ISPO whereby he had complete confidence in its independence.
How could Mr Tee possibly claim that any regulatory organisation is independent when its decisions are not subject to independent, or at least external, review (unlike, for example, the ASA) by virtue of a prohibition imposed by very the industry which IPSO is supposed to regulate?
Sir Alan Moses and Matt Tee are therefore masquerading as independent regulators despite the fact that the code that IPSO administers has been written exclusively by the press, IPSO’s primary remedy is administered with no regard to proportionality, and the press has banned the organisation headed up by a Lord Justice of Appeal from permitting any substantive form of appeal.
One of these two disingenuous IPSO apologists previously served the public in his capacity as a judge, and one as a civil servant. The greatest service they can do the public now is to renounce the denial and obfuscation in which they currently indulge and admit that their employers have no more intention of IPSO being an effective independent regulator than they did its three predecessors. That would pave the way for a truly independent, effective and Leveson-compliant regulator and would therefore be a huge public service.
If the behemoths of the press had wanted genuinely independent regulation then they would have achieved it decades ago and/or would have accepted the moderate, carefully considered and universally (apart from the press) lauded Leveson principles. IPSO is merely another attempt by the press to feign respect for the unanimous desire of the electorate and parliament for truly independent press regulation – thereby betraying the utter contempt that the press has for very the public it purports to serve. It is very difficult to believe that Sir Alan Moses and Matt Tee really believe otherwise.
Jonathan Coad is a partner in the Media Brands and Technology Group at Lewis Silkin LLP and acts for both Claimants and Defendants.