Sir Alan Moses has been propagandising again about the merits of IPSO, and in particular its alleged superiority over its predecessor, the Press Complaints Commission (“PCC”). He told the Guardian that IPSO is “much better than before” – by which he presumably means the PCC. I will demonstrate that he is plainly wrong about this.
He also says; “…as long as both sides are unhappy, it’s an indication … that we’re doing our job.” Presumably he means by the term “both sides” the press and the general public – who want a Leveson compliant regulator. This is not an equivalence that most people (save those employed by the press) would recognise.
For IPSO to represent any practical improvement on its utterly failed predecessor there are two measures that matter above all to those who complain to it having been wronged by the press according to the self-set standards of the Editors’ Code. Those are that the primary remedy provided by IPSO in the form of a correction is administered (to quote paragraph 1(ii) the Editor’s code) “promptly”, and that it enjoys “due prominence”.
As to the former; the correction has to be published while the story is still fresh because – as any Fleet Street editor will tell you – news has a very short life cycle. As to the latter; that must mean of equivalent prominence to the offending piece (or the inaccuracy within the piece) to seek to ensure so far as possible in that sufficient antidote is administered to the newspaper’s readership, and thus to public opinion, to counteract the prior poison. This has two elements; ensuring that the subject of the misleading statement secures their entitlement to a correction, and that the public who read the false statement is disabused. On both measures IPSO fails completely – just as did its predecessor.
This is primarily because IPSO has adopted in all material respects the failed, grossly biased and discredited methodology to resolve complaints of its predecessor the PCC. The processes which the PCC crafted for its complaints process were entirely for the benefit of the press, to ensure that at every turn the interests of the paper was prioritised over both the complainant and the public. When there was no wording in its rules to assist the newspaper respondent then the PCC would make some up. This permitted papers to engage in a variety of subterfuges which the PCC would then fully indulge. This larceny of the interests of the complainant has been adopted wholesale by IPSO, although its rules favour the press even more blatantly than did the PCC.
Two examples of abuse by the press of the PCC process
The Independent fought a PCC complaint that I conducted, denying a Code breach right up the eve of an adjudication. The paper claimed throughout the process that it would be vindicated by the adjudication; only then to assert on the eve of the adjudication for the first time that the PCC process might prejudice its position in subsequent legal proceedings, at which point the PCC promptly aborted the complaint. This decision was taken despite the fact that the majority of PCC rulings risk prejudicing the legal prospects of both sides because of the overlap between the terms of the Editors’ Code and parallel legal rights such as privacy which was covered by paragraph 3 of the Editors Code and protected by Article 8 of the ECHR. There was no PCC rule which justified this decision, but the PCC did it anyway. The Independent then promptly admitted the Code breach when confronted by legal proceedings; i.e. a fair forum to determine the dispute that the press neither owned nor controlled.
In another PCC complaint that I made on behalf of a celebrity client against The Sun, it denied the falsity of the allegation throughout a complaints process which the PCC permitted it to string out for the best part of the year, during which the paper tried every trick in the book to derail the PCC process; including making demonstrably false allegations of deceit against my client. It also failed to disclose its journalist’s notes, and maintained throughout that it had not breached the Editors’ Code. No criticism of this abuse of its process was even made by the PCC. The Sun eventually admitted the Code breach in the subsequent legal proceedings in which the paper would have been required to disclose those journalist notes which doubtless would have proved that it had known the allegation was false from the outset.
The contrast with the defamation pre-action protocol – a regime to resolve publication disputes not drawn up by the press
The grossly biased nature of the IPSO process emerges with equal clarity when set against the defamation pre-action protocol; a methodology for the resolution of publication disputes which was not drawn up by the press for the benefit of the press. The reason why newspapers will readily “stand by their story” in the PCC/IPSO process only promptly to abandon when confronted with a legal process that they do not own and control is because it is fair to both sides. The knowledge, for example, that the disclosure process will lay bare the lie that there was any basis for the allegations at issue, is often enough for a paper to undertake an abrupt volte face. This was activity by the press which demonstrated the contempt which the press had for the PCC but which the PCC simply swept under the carpet.
The pre-action protocol for defamation sets out the framework which could and should have been adopted by IPSO;
“This Protocol is intended to encourage exchange of information between parties at an early stage and to provide a clear framework within which parties to a claim in defamation, acting in good faith, can explore the early and appropriate resolution of that claim.” It also; “aims to encourage both parties to disclose sufficient information to enable each to understand the other’s case and to promote the prospect of early resolution.”
By contrast IPSO does not encourage the paper to disclose any information, and allows a newspaper at least 35 days to bluff, lie, obfuscate, conceal evidence of its own wrongdoing and thereby negotiate an unjustly favourable resolution while at the same time covering up the wrongdoing of which it is generally guilty in publishing the offending article; i.e. publishing a story which it well knew was untrue. Or it can publish a unilateral correction the appropriateness of which IPSO will judge without knowing what was the evidential basis of the offending article. IPSO therefore eschews this golden opportunity for actually to find out what the entity which it is supposed to regulate as actually up to.
The IPSO methodology of requring complainants – many of whom will be lay – to take on the trickery and dishonesty with which the press will routinely defend its wrongdoing via a lax regulatory process; to deal with the paper unaided, is absurd. It is alike asking the diminutive victim of an assault to sit alone in a room with his much larger abuser to try to thrash out a resolution of the victims problem, and then endorsing the outcome and characterising it as a success for the system. As to what the complainant is asked to confront in this process, the editor of the Sun (Tony Gallagher) said this recently describing the paper’s ethos; “We want to take no prisoners every day, no friends, no fear or favour.”
One of the many myths on which the IPSO process is founded is that the press will be prepared to acknowledge its wrongdoing when confronted with that wrongdoing and then offer to the complainant a fair remedy under the Code. Nobody who has any experience of confronting the press would labour under that delusion. You will nonetheless see this mendacious commitment to abide by the Editors’ Code at the conclusion of communications from the Sun over an IPSO complaint; “We are committed to abiding by the Independent Press Standards Organisation (“IPSO”) rules and regulations, and the Editors’ Code of Practice that IPSO enforces.” It seems that IPSO is prepared to believe this just as the PCC was prepared to believe News International when it said that there was no widespread phone-hacking.
However as anyone who has dealt with the British tabloid press or The Sun in particular knows, this claim is utterly false, and – if published – would itself a breach of the IPSO code for that reason. Breaches of the Editors’ Code by the press are in my 25 years’ experience almost invariably culpable. They were deliberate in all three of the IPSO complaints I am conducting as I draft this article. The response of newspapers such as the Sun and Mirror is to deny any wrongdoing – no matter how disingenuously – for as long as possible and only concede it at the last possible moment; and only when every trick in the book has been attempted to cover up that wrongdoing.
One favourite newspaper trick in the PCC process was to offer to a complaint the remedy to which they were entitled under the PCC Code – but only on condition that they abandon their legal rights. This abuse of the system is now a feature of the IPSO process. In a complaint that I am currently conducting the managing editor of a Fleet St title sent a letter to my client offering him the correction and apology to which he is obviously entitled and which the IPSO Code obliges the paper to provide; but only on condition that he abandons he legal rights. So this title seeks to hold the complainant to ransom and leaves its readers misled in an attempt to evade legal liability for its wrongdoing. This is one of the many reasons why Fleet St it not fit to regulate itself.
While Matt Tee’s ignorance of the procedure established for the resolution of publication disputes via the legal process can be excused, Sir Alan Moses must have elected to adopt a procedure which places all the cards in the hands of the press knowing a fellow senior judge (Lord Woolf) had many years previously instigated a procedure to resolve publishing disputes that was fair to both sides. Given the choice between the procedure preferred by the failed PCC and the successful CPR Sir Alan has accepted the former. As should have been plain to him, the sole beneficiary of that decision was the press; the victims of that decision were the public and the complainant. How this decision favours the press at the expense of both the public and the complainant is dealt with in Part 2 of this post.
Jonathan Coad is a partner in the Media Brands and Technology Group at Lewis Silkin LLP and acts for both Claimants and Defendants.