JonathanCoadWhen I read of the appointment of Sir Alan Moses to the vital role as chairman of IPSO, as a media lawyer I felt an inevitable sense of optimism.  I hoped that the gross intellectual dishonesty which characterised so many of the PCC’s adjudications (some of which I have then had to turn around via the legal process) would come to an end. 

I hoped that there would be no more disingenuous and empty rhetoric which came out of the PCC via such long forgotten and ineffectual exercises such as its vaunted 2010 Governance Review which I participated in, as what turned out to be a mere window dressing exercise – as I fear is the mutation of the PCC into IPSO. Would the appointment of Sir Alan usher in a new era where, in crisp judicial language, he identified the problems which rendered IPSO’s predecessor such an abject failure as an effective parry to the immense power it wielded by the British press and then went on to set out a recipe for a successful press regulator?

The other signs of “change” at IPSO were not encouraging; the same director, same staff, same building, same Code, same opaque superstructure; and even doubtless the same desks, seats, computers etc.  IPSO needed the new broom that an expert in sifting evidence and ascertaining truth should bring; along with a determination that any quasi judicial process for which he was responsible would be fair and effective.

It was for these reasons that I read the recent speech of Sir Alan Moses to the LSE Media Policy Project with increasing gloom.  I struggled to see anything in it which suggested that the besetting modus operandi of the PCC, which was to say much and do little, had truly been departed from.

The recipe for an effective regulator requires very few words to describe:

  1. The proper, truly independent forensic judicial-style sifting of the evidence submitted by both the newspaper and the complainant;
  2. A fair and robust judgment at the conclusion of that process;
  3. An effective means of independent appeal for errant IPSO judgments;
  4. The proper application of IPSO’s primary remedy; namely a correction which truly enjoys “due prominence”; i.e. a prominence which ensures that the correction is at least as impactful as the offending publication.

Based on my dealings with the PCC since its inception in 1991 until its welcome demise in September last year and replacement with IPSO that is all that is needed to provide a hedge for individuals and organisations against the predilection of the British press to publish destructive and ill-evidenced stories to medicate the hubris of Fleet Street and enhance circulation.  A press which is the subject of a fair and effective complaints mechanism is one that will then abide by its self-written Code out of self-interest; there being no other interest that really operates in Fleet St. So far as I am aware no one has to date pointed out the thumping irony that even though IPSO is chaired by an ex Lord Justice of Appeal it still allows no appeal against its adjudications.

Surely the time has come for such glaring anomalies to be the dustbin of history which should be further filled with the much-cherished PCC principle that it is appropriate for a newspaper to undertake a volte face on its editorial decision as to prominence of the original article when it comes to the publication of its correction.  As the PCC well knew (as presumably does IPSO) Fleet Street sells prominence by the square inch; a principle which was however consistently disapplied by the PCC when it came to correcting press errors.

If IPSO wants effectively to regulate and improve press standards then it will only achieve that by holding it to account for its transgressions in a way that motives the press to cease those transgressions. An editor deciding on a front page story which will serve as its title’s billboard advertisement for that day will consider the terms of the PCC Code with a great deal more respect if he or she knows that it is on his/her front page that any correction must be published.

The only encouraging thing that Sir Alan Moses said in his speech was that the new regulator must earn the confidence of its consumers.  Unfortunately, there was nothing in that speech that was likely to engender any confidence in those professionals such as I who operate the press regulation process routinely at the coal face (as I have for nearly twenty-five years), and who have observed the subtle but effective manner in which the PCC process robbed victims of press abuse of the modest remedy that false assertions are made of them being corrected by the perpetrator in a way which comprises some equivalence in impact to that of original wrong.

On the issue of prominence, which was the touchstone of the PCC’s failure show any degree of independence the three interest groups are as follows:-

  1. The newspaper;
  2. The general public/readers; and
  3. The complainant.

Of those three the interests of two are that the correction should be published with at least the same prominence as the original article.  It served only the interests of erring newspaper for its failings to be exposed to the slightest possible degree.  It was however the invariable practice of the PCC to favour the interests of the newspaper as against both the complainant and general public and frequently authorised the publication by the newspapers of corrections which were a mere five per cent in size of the offending article or section of the offending article which was the subject of the complaint.  While the PCC’s failure to act fairly is more difficult to discern in its adjudications (although it often came through clearly) it was in the administering of its sole remedy that betrayed its utter lack of independence.

The prominence issue will therefore be the acid test for IPSO’s independence and effectiveness. If it favours the interests of its funders over the consumers and victims of press abuse then you need look no further to know that it lacks the key quality and will theefore fail as surely as its predecessor  Only if it ensures that its funders do not place their own interests above both those of their readers and their victims, who do not depart from the editorial decision on prominence when it comes to the correction, and also do not depart from the commercial measure for “prominence” when it comes to publishing corrections will we know that Sir Alan Moses has brought genuine change to IPSO by comparison to the previous occupants of its premises and employers of its staff.

Sir Alan says that he is not surprised at the lack of faith in IPSO by its critics. My informed lack of faith in its predecessor (same staff/offices/Code etc) was borne out of my very frequent interactions with it and sharing the frustration of clients of whom false and misleading allegations were made in substantial articles with pictures and headlines who were then expected to be content with corrections which covered less of the newspaper than just the headline of the offending article. In one case a national newspapers was permitted to correct a story which took up nearly the entirety of a front page not one word of which was true via a correction the size of a large postage stamp on page two. For front page stories which are seen by millions of non-purchasers of a paper via news stands, TV breakfast news, aggregator sites etc no antidote that is not administered on the front page has any efficacy whatsoever.

If Sir Alan fails to tackle the issue of prominence and bring equivalence to corrections then IPSO should be consigned to the same scrap heap as its three self regulatory predecessors. At that point the persistent determination of the press to ensure that all incarnations of self regulation that it instigates lack independence, fairness and effectiveness should be recognised in the form of the light-touch statutory regulation (such as via a new division of Ofcom to cover the press) which has not restricted the broadcast media’s right of free speech in the slightest; anyone who listens to the beatings meted out to politicians from the BBC, Channel 4 and Sky can readily recognise. It is also hard to see that a website such as the Mail Online that carries audio material, video footage, pictures as well as text should be regulated differently from a TV channel that carries audio material, video footage, pictures and text such as Channel Five.

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