More spin from IPSO, Part 2 – Jonathan Coad

9 03 2016

IPSO-is-a-shamThe irrefutable evidence that IPSO is and was always intended to be the same kind of sham regulators as its three un-illustrious predecessors emerges clearly from how it administers its primary remedy. If IPSO had any intention of actually uncovering any wrongdoing on the part of the press it would not have instigated a 28 day period in which the press can cover up its wrongdoing. If it had any intention of deterring the press from breaching even its self-written code of practice then it would permit it to publish corrections and apologies which are a fraction the size of the offending article.

Does IPSO ensure that its primary remedy is administered promptly?

The answer to this question is absolutely not, and here it indulges the press in exactly the same way as did the PCC.  The PCC proclaimed itself to be “Fast, Free and Fair”. It was none of those things. The PCC the remedy could take the best part of a year to administer if – as it invariably did – the PCC indulged the press by allowing it to abuse its process and thereby delay any granting of any remedy to which the complainant was entitled.

IPSO’s website tells you this; “We operate a new complaints procedure that is designed to achieve speedy and fair resolution of your complaints.” As so often with IPSO its actions contradict its propaganda. No-one who really wanted a system which provided a “speedy and fair resolution of…complaints” would adopt the IPSO procedure. By contrast the defamation pre-action protocol recommends a period of 14 days for a response – less than half the period which is practice is granted to the press by IPSO. By further contrast with IPSO the defamation pre-action protocol stipulates a “cards on the table” approach; “If the claim is rejected, then the Defendant should explain the reasons why it is rejected, including a sufficient indication of any facts on which the Defendant is likely to rely in support of any substantive defence”.

One of the new “improved” elements of IPSO therefore, from the point of view of the press, is that it becomes even more of a “see no evil, hear no evil” regulator than was the PCC.  It does not want to find out whether a newspaper published code breaching material deliberately or by error.  It does not want to find out whether it engaged in deceit in publishing the relevant material.  It does not want to put a newspaper in a position where it has to own up to its wrongdoing. It does not want to support a complainant during the 28 day period.  It does not want to monitor the way in which the newspaper deals with complaints during that period.  It does not want to put any brake on the inevitable obfuscation, salami slicing, deceit, covering up of wrongdoing; all of which are endemic in the manner in which newspapers respond to complaints against them.

The Editors’ Code obliges newspapers to “take care not to publish inaccurate, misleading or distorted information or images…”.  It is axiomatic therefore that the press is required to seek to ensure the accuracy of its copy prior to its publication, rather than seeking means of justifying it thereafter. In practical terms that means that if a newspaper is not able to provide corroboration for its story at the point where that corroboration is required of it, the Code has been breached whether or not it is able to subsequently to do so because evidently care has not been taken by the newspaper that it has a proper basis for the publication in issue. This means that even if the story is correct, it is only by chance rather than by observance of the IPSO Code.

It follows then that in order to conduct the complaints process in a way consistent with its own Code, IPSO must insist on short periods within which a newspaper must either produce the probative material of which the story was written, or provide a remedy in the form of a correction.  Unfortunately that is not how IPSO operates, but rather it favours the press even more than did the PCC by permitting a lengthy period (twenty-eight days) – and indeed even longer – to spin out the procedure.  Its systematic failure of complainants therefore begins right from the outset.

You will discover that despite copying a newspaper with the complaint letter to IPSO, so far as IPSO is concerned the “clock” only starts once IPSO has decided whether the complaint falls within its remit.  This will be despite the fact that it is blindingly obvious that it does, and in particular it is plain as day to the newspaper.  IPSO will sometimes however further slow the process by its staff making bad points on behalf of the paper to try to avoid the complaint being granted entry into the IPSO procedure at all. IPSO usually requires a lay complainant to identify and specify in writing the exact code breach which they are citing, even if this is obvious (the newspaper got this wrong” is clearly an alleged breach of clause 1 on accuracy) or even if it would require the expertise only available to a regulator which had the experience of many complaints. A current complaint I am making on behalf of a client took nearly a week just to get that far. If you point out to IPSO that the newspaper has in fact since the receipt of the complaint letter to deal with its content, you will be told by IPSO in response that the newspaper was only notified by IPSO of its obligation some days later.

You are then sent a standard communication which includes this sentence; “In line with IPSO’s complaints procedure, we have therefore sent a copy of your complaint to the publication. This is to provide it with the opportunity swiftly to resolve the matter to your satisfaction, directly, if possible.  You should expect the publication to contact you in due course in response to your complaint”. The sleight of hand which typified the PCC’s is clear from the last two sentences.

The complainant is told that the newspaper is provided with an opportunity “swiftly to resolve the matter to your satisfaction”, but also that the publication will “contact you in due course in response to your complaint”. Fleet Street seeks to cover up its wrongdoing by a process of attrition so the mere obligation to contact a complainant “in due course” in circumstances when a newspaper is obliged to ensure the accuracy of its copy prior to publication is a further betrayal of IPSO as a faux independent regulator.  No one who has been dealing with newspapers for any length of time would have entertained the possibility that a Fleet Street title is ever going to want “swiftly” to acknowledge error on its part; but then IPSO apparently decided not to consult anyone who had extensive experience in dealing with the press before devising its complaints procedure.

In the standard IPSO communication to a new complainant there is then this alarming paragraph: “If the matter cannot be resolved to your satisfaction, IPSO is able formally to consider your complaint after the publication’s internal complaint process has been exhausted or, at the latest 28 days from the date of this letter, unless we determine that our early involvement is essential.  The publication may also request IPSO to begin its investigation with the complaint sooner”. (emphasis added)

The bias towards the press emerges with yet more clarity in this emphasised sentence and from the IPSO website page dealing with the conduct of complaints; “Alternatively, the publication may request during the referral period that we begin investigating the complaint without waiting for the end of the 28 days.” (emphasis added). Evidently then there is one rule of the paper and another for the complainant who apparently is not permitted to ask for IPSO to begin an investigation before the end of the 28 day period; or if they do make such a request IPSO’s answer bitter experience informs me that IPSO’s answer will be “no”.

 

The long stop period of 28 days is wholly irreconcilable with the stated need of the Code to resolve inaccuracies “promptly”.  If you add the period between the notification to IPSO of the complaint to it determining that it falls within its remit, then the point at which IPSO will adjudicate a complaint goes back to around a minimum of 35 days.  By this time the offending article is in media terms ancient history.  The suggestion that the publication “may also request IPSO to begin its investigation of complaint sooner” is risible. This is a provision which is needed by complainants – who the IPSO Code says should get their remedy “promptly”; but it is granted only to the press.

In practice, a newspaper will spin out the complaint process, seeking to grind down a complainant by inadequate offers of a correction, refusal of an apology etc.  The practical reality is clear to see on the IPSO website.  The first adjudication that I found was made some 15 weeks after the complaint was made.  The second complaint was around the same period.  So was the third.  The fourth took the best part of 20 weeks to be determined.  The average appears to be 16 weeks.  IPSO therefore utterly fails to conduct itself according to the stipulation of its own code so far as promptness is concerned.

Does IPSO ensure that its primary remedy is administered effectively?

The second critical factor for any credible regulator to address is the issue of prominence.  The first justification for the gross disparity between the prominence which is applied by IPSO to the remedy as against the infraction was based on the concept of “proportionality”.  I have dealt with that in an earlier Inforrm article; https://inforrm.wordpress.com/2015/09/28/ipso-chief-executive-descends-to-double-speak-in-an-attempt-to-mask-its-failure-jonathan-coad/. In short, on the issue of proportionality, the correction of the article ought to be at least as prominent as the original error to ensure that a proportionate number of individuals who read the inaccurate and misleading material are disabused, and that the subject of that wrongdoing has therefore derived genuine benefit from the IPSO process.

The IPSO Chief Executive (Matt Tee) has advanced another justification for IPSO failing the public on this issue.  He said this: “It is often the case that the text that we require for a correction is a lot shorter than the original article, and actually to require it to occupy the same amount of space would frankly look a bit daft in terms of design and layout of the newspaper.” The utter priority given to the interests of the press by IPSO could not emerge more clearly than it does from this very telling sentence, which is the second disingenuous justification offered by Mr Tee for IPSO not acting in accordance either with common sense, or the express will of the public.

Taking the first part: IPSO permits newspapers to draft their own corrections.  When you read those produced by the newspaper you are reduced to stunned admiration at the economy of wording which is used.  You are also struck by the stark contrast in the literary style between the correction and the original article.  Newspapers have developed a fine art of producing minimal corrections precisely to ensure that the prominence is kept as disproportionate as possible from the original article, which tactic is hereby endorsed by Mr Tee.  The original article will also very often include photographs/illustrations etc.  These have the effect of giving far greater prominence to the original article, all of which is omitted from the correction.

Mr Tee then expresses his concern about the aesthetic damage which corrections may inflict on the “design and layout of a newspaper”.  This is clearly not a problem to a newspaper when its own interests are engaged – which is the case when it carries advertisements which never accord with the “design and layout” of the paper. If a correction/apology were to stand out in a newspaper in the same way as an advertisement then that would have the effect of drawing the attention of the reader to the correction, therefore ensuring that the remedy provided by the IPSO process has some practical value.  Here again, IPSO blatantly prioritises the aspirations of the industry that created and funded it over that of the general public who (according to Sir Alan Moses) IPSO is tasked to serve, and the complainant to whom IPSO is tasked to provide a remedy.

On the issue of front page breaches of the IPSO Code; Matt Tee has said that IPSO does not require front page corrections for front page code breaches because the front page is valuable to a newspaper. Of course it is; because the front page is read by millions of people who do not buy the paper; which is why front page breaches of the Code must be corrected on the front page. IPSO again prefers the interests of the press over both that of the complainant and the public, and its chief executive is prepared to fight the press’s corner by making bad points on this issue too.

Free expression – one rule for the rich and another for the poor

When it comes to human rights in the fantasy world of IPSO, to quote the pigs of Animal Farm; “Some are more equal than others”. This is a right to which the press makes constant reference to justify not being accountable to anyone but itself. It is also a right in which the press is rich; whereas all those that take issue with the press are poor. ISPO therefore prioritises the Article 10 rights of the press as against the Article 8 rights of the individual. However one of the rights guaranteed by Article 10 of the European Convention on Human Rights is the right to receive information; a right which IPSO abrogates by means of its policy on prominence –as it does the Article 8 right which includes a right to a reputation.

This element of the Article 10 right comes into sharp focus when the public has been told things which are untrue.  According to Article 10, they then should take the benefit of the right to be disabused of false information which they have been fed by the commercial press – one of the Article 10 rights being the right to receive information. This right obviously arises when the public has been misled because it then has the right to learn that it has been misled and then told the truth. If the paper has acted in deliberate contravention of its own code of practice then then public also has the right to be told that too. On the issue of the front page; that means that when millions of people are misled by a front page article they are entitled to be told so by virtue of Article 10; and the complainant is entitled to a front page correction by virtue of Article 8. IPSO rides roughshod over both of those rights by means of its “no front page corrections” policy.

IPSO makes much of the Article 10 right of its sponsors to free expression.  But its practices ignores both the rights of the public to receive information by the continued and telling refusal by IPSO to adopt any principle of equivalence for corrections as against the impact of the offending publication. This is the litmus test for IPSO. If it favours the interests on the press on this readily measurable issue and in direct contravention of the applicable human rights then the ugly feline of gross press bias is has fully exited the IPSO bag.

Conclusion

Just as it was with the PCC, dealing with IPSO on behalf of a complaint is like playing football uphill on a sloping pitch with the wind against you and where the referee is the best mate of the manager of the opposing team, and that team also writes the rule-book. As well as the massive logistical imbalance that confronts you when you confront a newspaper, you also know that every refereeing decision is going to go against you.

IPSO states this as one of its core aims; “We uphold the highest standards of journalism by monitoring and maintaining the standards set out in the Editors’ Code of Practice…” If it meant what it said IPSO would administer the complaints process with proper rigour; it would require a paper to justify its story from the outset, where it emerges – as it often will – that the paper never had any basis for the article then it would truly be “monitoring and maintaining the standards set out in the Editors’ Code of Practice”. It has elected not to do so but rather adopt a process whereby IPSO closes its eyes to the wrongdoing of the paper for some 35 days, with the result that cover up and denial is still rife.

The PCC was never meant to be an effect or independent regulator.  Its processes were carefully constructed by the newspaper industry to serve the interests of that industry and to rob the general public of the rights and remedies which a genuinely independent regulator should provide.  All the indications were, prior to IPSO beginning its work, that the same pattern would be followed by this new regulator as had characterised its predecessor; only IPSO has skewed its procedures to favour the press even more comprehensively than the PCC.  The evidence is already overwhelming and continues to accumulate that in IPSO, the press has precisely the same staunch ally as it did in the PCC; and in Sir Alan Moses and Matt Tee it has the same richly remunerated disingenuous apologists for a failed regulator as its predecessor.

Postscript

Regular readers of Inform will recall how I was invited by Sir Alan Moses and Matt Tee to attend a meeting to discuss (as I assumed) how IPSO could better serve those who sought its assistance. After being told by Matt Tee in no uncertain terms that IPSO committee members were not interested in what I had to say, and my observing that this was a somewhat alarming assertion on his part, I was then frogmarched out of the offices by a fulminating Matt Tee after being told by Sir Alan Moses that I had somehow been rude to Mr Tee. This is what the IPSO website says on this issue; “Our Executive staff should be accessible and courteous to everyone who comes into contact with us.”

Imagine my astonishment that while drafting this article I received an email from Charlotte Dewar, who is the head of complaints at IPSO (who formally held the same position at the PCC), objecting to an email which I had sent to one of the complaints staff suggesting that he was allowing himself to be “conned” by the newspaper respondent to an IPSO complaint by my client. This was part of an email exchange where I pleaded in vain with the individual concerned to expedite the complaints process because the article in question had been exhibited to a witness statement in some multi-million dollar litigation. I explained that the reason why I made this observation was that the newspaper was guilty of mendacity (as it plainly was) prior to the publication, and was seeking the assistance of IPSO in order to cover that up.  IPSO duly provided that assistance.

But rather than address the failure of IPSO to heed the complainant’s requests for expedition I received an email from Ms Dewar which included this sentence; “I understand that you have concerns about the way in which IPSO’s procedures have been applied in this instance.  You are entitled to express these views and expect a response.  This does not, however, justify making insulting personal remarks in correspondence to a member of staff as you have done in the opening paragraph of that email [where I suggested that the staff member was letting himself be “conned”].  IPSO has a policy on inappropriate behaviour by Claimants, which also covers Complainants’ representatives.  It is published on our website here … I would be grateful if you would keep this in mind for future reference.

Even more remarkable was that this email was copied to Matt Tee, who after telling me that IPSO committee members were not interested in what I said about IPSO processes, had frogmarched me to the door of the IPSO offices in front of all the IPSO staff. It seems that so far as IPSO is concerned the staggering discourtesy of telling a guest that IPSO isn’t interested in what he has to say and then kicking him out of the building is acceptable and consistent with its policy of being “accessible and courteous to everyone who comes into contact with [IPSO]; but suggesting to an IPSO staff member that they are being “conned” by a newspaper is not.

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


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