IPSO: The Inconvenient Truth, Part Three – Jonathan Coad

In the final two parts of this post I examine why the efficacy of press regulation matters and how much. The short answer as to “why” is that we rely on the media to be our eyes and ears on what is happening in the world around us for all the myriad of decisions that we need that information for.

As to “how much”; that goes to why we should and generally do treasure the Article 10 right of free speech of which the press claims ownership but in fact abuses daily. If that right is abused by the press – as it is routinely – then all society suffers. IPSO has, alas, set itself to sponsor that abuse.

A summation of the IPSO Daily Record adjudication

The Daily Record adjudication where the correction required was less prominent than the error by a factor of ten or more, which is the subject of Part Two of this article was published by IPSO in the following circumstances:-

1. The Chair of the IPSO Complaints Committee, who is an ex-Lord Justice of Appeal, has interpreted a provision of the PCC Code (i.e. the “due prominence” stipulation) in a way which is aberrant, but for which he permits no appeal other than on “process”.
2. Sir Alan and the IPSO committee have thereby ensured that millions of people who were misled on a matter of considerable public interest remain none the wiser that the newspaper article was both seriously wrong on a matter of constitutional significance and that the newspaper has been forced to acknowledge this.
3. All the press industry representatives (as IPSO describes them) on the committee (and hopefully the rest of them, if they have done their homework) know that the press industry sells prominence by the square inch because that determines how many people will take in the message of the advertisement. So it is that if their title had sold a full page advertisement to Pepsi Cola but accidentally ran and advertisement for Coca Cola they would not have dreamt of offering to a paying customer a correcting advert of a tiny fraction of the original to make good the mistake. These individuals who are on the IPSO committee to provide expertise on the press industry now, however, deem it appropriate to correct editorial mistakes via publications of a minute fraction of the original; and the lay members appear to accept this obvious departure from standard press commercial practice.
4. IPSO concealed in its adjudication the fact that its interpretation of the “due prominence” principle at Clause 1(ii) of the PCC Code was satisfied where an erroneous article which covered virtually the entirety of the front page of the newspaper was dealt with by means of a correction which was a tiny fraction of the size of the article and published in a place where it would have been seen by a minute proportion of those who read the offending article.
5. The remedy provided for at paragraph 1(ii) of the PCC Code which IPSO now administers also requires that the correction be “prompt“. As a result of the newspaper not offering a correction acceptably fulsome and prominent to the complainants, its evident unwillingness to publish it anyway, and the slow processes of IPSO, the IPSO sponsored correction was published some twelve weeks after the original article, and was therefore also not on any credible definition of the term “prompt“.
6. IPSO’s twin roles of regulator and decision maker in relation to of complaints will both be fulfilled only if it makes decisions on complaints fairly and in a way which provides effective redress to complainants. A press that is required to make proper amends for its mistakes will also make a lot less of them; at which point IPSO’s role as regulator will also be fulfilled. If IPSO fails in its role as an arbiter of mistakes it must also fail in its role as a regulator.

IPSO has therefore, in the important Daily Record adjudication, failed in its capacity both as a regulator and arbiter of complaints.  It has acted in exactly the same way as its predecessor, the PCC. All the claims made both by and on behalf of IPSO to be the other than a rebranded PCC in some more expensive offices are therefore untrue.

The inconvenient truths confronting IPSO

The primary inconvenient truths with which IPSO must wrestle are these:-

1. The fairness, independence and integrity of IPSO can readily be measured on the issue or prominence. If on this key issue IPSO favours the interests of the press as against those of both the complainants and the readers then no one need look any further in answering the question as to whether it is going to do its job properly or be yet another bulwark against any effective regulation form of the press as was the very purpose for the PCC was created by the press.
2. The issue of prominence is one which has long been settled by the newspaper industry via both the editorial and commercial measures that it applies. On the editorial side; newspapers assign to a story the appropriate prominence in the form of its size and position according to that story’s public interest or reader interest when that story is published. The prominence decision having been made at the time of publication there can be no legitimate justification for a volte face when the story needs to be corrected.
3. On the commercial side; newspapers sell prominence in the form of advertising by the square inch. As my Coke/Pepsi example illustrates, no newspaper would ask a wronged advertiser to accept a remedy in the form of a correction which is a tiny fraction of the prominence of the original advertising copy; yet they do so routinely to the wronged subject of editorial copy.
4. These principles must then be applied to the sole remedy which IPSO is ever going to impose (there being no conceivable basis that it is ever going to fine any newspaper due to the deliberate design by the industry of a non-credible investigations process [LINK to MST analysis]); namely the publication of corrections, adjudications etc. If they are not then IPSO remains exactly the same sham regulator as was the PCC.

Why and how much does it matter?

The only way in which any restraint is going to be applied to the press whose current business model includes the publication of ill-checked sensational stories affecting the human rights of others, is if there is a regulatory disincentive to get it wrong which the press fears. The editor of the tabloid which published a false and defamatory front page story about Peaches Geldof (see Part Two of this article) would not have done so if he had though he would have to correct it on his front page. Neither would the editor of the Daily Record have published a grossly misleading story on its front page concerning an important constitutional issue.

How can we make right decisions on how to vote, what goods to purchase, where to send our children to school, what causes to give our money to etc. if the information that we rely on for those decisions is routinely faulty? I have acted for elected representatives, manufacturers, schools and charities all of whom have been the subject of errant press coverage where the remedies that have been offered via press regulation have either been non-existent or hopelessly inadequate. It is not only the complainants that have lose out but society as whole which has been robbed of the proper benefits or Article 10; reliable information on which to base important life decisions.

It also matters because the human rights of individuals are engaged, both to receive information on which to make life decision and to have their integrity protected from the commercial imperative of the press. There have been crucial developments in the law which make effective regulation of the press even more vital than when the press offered us the PCC as its tough new independent regulator in 1991.

This is the third part of a four part post.  Part 1 was published on 29 April 2015 and Part Two on 1 May 2015.

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