So what are the human rights and legal imperatives which make it so vital that there is effective regulation of the press via the fourth incarnation of self-regulation which has been served up by the behemoths of Fleet St. – who would (if they had their) be permitted to operate entirely free of any legal or regulatory restraint whatsoever?
The Human Rights context
If we want a better quality press then we must have a press which faces sufficient sanctions to prevail on it to check stories properly and neither mislead its reader nor infringe the human rights of others. The Article 8 right to privacy and reputation is one which should be respected by the press as much as it should by the society that it claims to serve. At present that vital human right is routinely ignored by the press. But while the abuse by the press, and its creature IPSO, of Article 10 is more subtle – it is no less detrimental to the general public.
The public interest section of the PCC Code (written exclusively by the press but adopted by the supposedly independent IPSO) stresses the public interest in freedom of expression; “There is a public interest in freedom of expression itself.” This is the press attempting to use Article 10 as a parry to any effective mechanism for holding it to account for its transgressions – despite its determination that it should have the right to hold everyone else to account for their transgressions
However, as is so often the case, the press (directly or via IPSO) only tells you half of the story when its own interests are engaged. Here is the full wording of Article 10:
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society….for the protection of the reputation or rights of others, …” [emphasis added]
There are two significant parts of Article 10 about which you will hear much less spoken by the press. One is that the Article 10 Right not only applies to the dissemination information, it also imports a right to receive information; the other is that with freedom of expression comes responsibility to respect the rights of others.
On the right to receive information; the public have a right to be told when they have been misled by a newspaper. If (as in the case of the Daily Record adjudication) the hundreds of thousands who read the offending material on the front page are not told that they had been misled, then their Article 10 right to receive this vital information has thereby been breached both by the paper and by IPSO.
The practical consequence of the obligation on the part of those enjoying freedom of expression to be responsible, is when they make mistakes and mislead the public they should ensure that (as far as is reasonably possible) the same section/proportion of the public which they misled also learn the truth and are disabused of the false information. This is required both for the paper exercising its Article 10 right to fulfil the responsibility that comes as part of that right; and for the public whose Article 10 right to receive information is also engaged.
Front page stories are inevitably ones which the paper has judged to be of the highest public interest or reader interest; they have not only – in the case of national newspapers – been read by millions of non-purchasers of the paper the same story will also almost certainly have been reproduced in the inside pages of many of the competitors to the original publication. A small page two correction in the original paper – as in the Daily Record – is of virtually no value as a remedy. The Article 10 right of hundreds of thousands that entitles them to learn that they have been misled has thereby been breached by both the Daily Record and IPSO, as has the Article 10 responsibility of the Daily Record.
Furthermore most IPSO complaints will also engage Article 8; “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is now settled by the European Court of Human Rights that the Article 8 right not only protects with what we call the right of privacy, but also the right to reputation. In practical terms the this right should entitle those who have been the subject of false statements by the press and whose reputation has therefore suffered to be granted an effective remedy by the press regulator, which means that (as far as possible) those to whom false information about the complaint has been communicated are disabused of that false information.
None of these stipulations in any way interfere with the right of free expression on the part of the press which is not thereby prevented from saying anything. The PCC Code written by the press acknowledges the responsibility of the press to correct its mistakes “promptly” and with “due prominence”. However the press was able to rest in the knowledge that the PCC would not actually enforce the Code with any rigour and its chairman would both publically claim that the PCC was doing a great job and rubbish anyone who dared say otherwise. On that basis its seems that the £150,000 that the press pays Sir Alan for his part time job as IPSO’s chairman is going to be money well spent (see Part One of this Article).
Being obliged to correct their mistakes is however all that is asked of the press in order that the Article 10 rights of their readers are preserved. No Article 10 infringement would arise by IPSO electing to be an effective regulator as it claims to be (but is not) and actually enforcing the Code which the press has itself penned because Article 10 imposes an obligation of responsibility on the press to tell its readers that they have been misled.
The legal context
On the issue of the legal setting for the work of IPSO; we also know from the seminal speeches of the House of Lords in the ground breaking 1999 Reynolds case which created the Public Interest defence which is the origin of section 4 of the 2013 Defamation Act that there is no public interest in the dissemination of misinformation. Furthermore, the wrongful stripping of the reputation of important/high profile individuals is obviously contrary to the public interest. This too has been recognised by the senior Appellate Courts.
However the new Defamation Act has made libel actions more difficult; which inevitably has the effect of reducing the proportion of press errors that will be corrected by the threat or use of the legal process. The effect of the Public Interest defence is that where deployed by the press false and defamatory information that has been published by the press can remain uncorrected if the court finds that its publication was reasonably considered to have been in the public interest. This is not an anomaly I have ever understood in the light of the declaration by the law the no public interest is served by the dissemination of false information and the acknowledgement in the PCC Code that it should be corrected.
This defamation defence which makes the correction of the false information on public interest issues more difficult means the need for an effective press regulator is far greater now than it was in 1991 when the PCC was formed because at that time there was no defence of public interest (by common law or statute) which permitted the public to be left in the dark when it had been misled on matters of high public interest. There was also a law of defamation which did not further require claimants to establish that their reputation has suffered “serious harm” before being entitled to correct, or otherwise remedy, false and defamatory publications about them.
Sir Alan and his committee need to wake up to the weight of responsibility that now rests on their shoulders in the form of the importance of upholding Articles 8 and 10 of the ECHR and ensuring that the public is not misled by the huge commercial industry comprised by the press, which wields such power as we now only post Leveson more fully understand. The early signs are that IPSO will do the bidding of the press just as faithfully as did the PCC, with all the adverse consequences for society that we know come from an unregulated and irresponsible press.
Let us hope that in the future IPSO bears in mind that it is supposed to be independent of the press and so not prioritise its agenda over that of the general public; and that it will live up to its stated purpose which is to “uphold the highest standards of journalism by monitoring and maintaining the standards set out in the Editors’ Code of Practice, and provide support and redress for individuals seeking to complain about breaches of the Code”. If IPSO is going to do so then it needs radically to change the way that it has operated to date. If its creator/funder the press will not allow it to do so then then its chairman and committee should do the honourable thing and resign.
Jonathan Coad is a partner in the Media Brands and Technology Group at Lewis Silkin LLP and acts for both Claimants and Defendants.