Press regulation: theory over practice? – Rhory Robertson and Tristan Goodman

27 04 2016

Sir Alan Moses“What fun it must be a theoretical regulator. The triumph of theory over practice needs does it not our admiration.” These are the words of Sir Alan Moses, the Independent Press Standards Organisation (IPSO) Chairman, poking fun at rival press regulator, IMPRESS, when speaking at this year’s London Press Club Awards lunch.

To date, IMPRESS is subscribed to by a small handful of relatively minor publishers. It has, therefore, only dealt with an equally insignificant number of complaints. Casting a large shadow over its regulatory initiatives is IPSO, to which most UK newspaper and magazine publishers have signed up, and to which most complaints are directed.

You might wonder what it is that IPSO offers that IMPRESS does not. The answer might be power and control.

IPSO is funded by the press through the Regulatory Funding Company (RFC). IPSO’s budget, its rules, its code, its sanction and its investigations, are all controlled by its funding body.

IMPRESS, on the other hand, is funded on a charitable basis. As Walter Merricks CBE, Chair of IMPRESS, said in a public speech at the LSE on 20 January 2016, “we are not and never will be beholden to anyone, and we can never be in a position where our funding could be removed if we offended a funder.”

Independence is crucial for the effective role of any regulatory body. As the Leveson Report emphatically stated:

‘By far the best solution to press standards would be a body, established and organised by the industry, which would provide genuinely independent regulation of its members…’ (p.1,758).

Indeed, central to the lack of independence of IPSO’s predecessor, the Press Complaints Commission (PCC), was the dominance of its funding body, the Press Standards Board of Finance (PressBoF), the RFC’s predecessor. The Report found that ‘the funding made available to the PCC is barely sufficient to enable it to conduct its complaints handling functions effectively…[and] was unable to exercise other functions that might be properly expected of a regulator’.

With a regulatory body for the press being held to ransom by a press-sponsored funding body, the trumpeting of IPSO’s practice as a regulator is undermined by a clear conflict of interests.

Dependent on a funding body more powerful than itself, IPSO’s role as a regulator seems to be more of a theoretical ideal than a practical reality.

What’s more, Sir Alan Moses’s portrayal of IMPRESS as a “theoretical regulator” may soon turn against him.

Unlike IPSO, IMPRESS has submitted itself for official recognition under the Royal Charter process. The practical implications of this are highly relevant. The Secretary of State for Culture, John Whittingdale, tasked with the implementation of press regulation based on recommendations from the Leveson report, stated at last year’s conference for the Society of Editors:

“The costs provisions in the Crimes and Courts Act, when brought into force, will have the effect that publishers who are not members of a recognised self-regulator will normally lose the ability to claim back their own costs in libel and privacy cases – whether they lose or win.”

This provision, found in section 40 of the Act, was devised to punish newspapers if they forced people to sue in the libel courts without offering a cheaper alternative.

Access to justice was a key tenet of the Leveson Inquiry, and an arbitral arm of a new regulator was recommended on the basis that it could ‘provide such a mechanism which would benefit the public and equally be cost-effective for the press’ (p.1576).

However, Whittingdale went on to state during the same conference that “at the moment, I am not convinced that the time is right for the introduction of these costs provisions”.

With tales emerging of his philandering with a female dominatrix and ex-Page 3 girlfriends, Whittingdale may well have had the Sword of Domacles held over his head by the press, who for a long period of time said nothing about the Cultural Secretary’s colourful sex life; somewhat out of character for a press that is rife with speculation about the sexual appetites of many a public figure.

Whilst the press remains silent, a House of Cards narrative is writing itself.

That said, if section 40 is signed into law, and if IMPRESS, or an alternative regulatory body, is officially recognised as a regulator by the Royal Charter, then newspapers and magazines would face the possibility of libel actions from the public that would be effectively risk free for claimants and enormously expensive for the papers.

Those publishers signed up to IPSO, who currently have no obligation to give the public access to cheaper arbitration proceedings, are likely to jump ship to those regulators that do provide such an obligation. IMRESS, being one of them, will welcome a new crew seeking a more seaworthy vessel.

In such a case, IPSO would lose the “practice” it currently enjoys, with its defiant captain, Moses, going down with his sinking ship. IPSO’s role as a regulator would no longer be theoretical; rather, it would be relegated as an afterthought of the Leveson Inquiry.

By this point, Sir Alan Moses’s comments may have lost their ironic charm, and the largesse afforded to the IPSO will be no more credible than a fisherman’s tale.

Rhory Robertson is a partner in the Media and Privacy Team and head of the Cyber Investigation Unit (CIU) at Collyer Bristow LLP. Tristan Goodman is on secondment to the CIU.


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