Case Preview: R (on the application of Coulter) v IPSO: Ground breaking judicial review challenge to IPSO

11 04 2018

One of the many people who have seen their complaints about bad journalism in the national press swept aside is taking his case against the sham press regulator, IPSO, to the High Court.  The hearing will take place in the Administrative Court on 17 April 2018.

Background

In December 2016, a group of 30 people complained in vain about articles in the Times and Sunday Times that misreported a meeting they had attended in the House of Lords.  One of the complainants, Jonathan Coulter, is challenging three fundamental elements of IPSO’s modus operandi:

  • rejection of complaints on the grounds that the ‘wrong person’ has brought them;
  • allowing papers to publish misleading and inaccurate information so long as it appears in ‘opinion articles’, and;
  • the limited way in which IPSO seeks to establish the facts of a case, including refusal to consider evidence favourable to complainants.

IPSO was established by the corporate press in defiance of the recommendations of the Leveson Inquiry. This is its first court test.

How the case developed

The 30 complainants complained about two articles in the Times and one in the Sunday Times which purported to describe this meeting which had been organised by a group called the Palestinian Return Centre and chaired by Baroness Tonge.

Their complaint said, in summary, that the articles unjustifiably represented the meeting as anti-Semitic in character. IPSO upheld one aspect of the complaint, but dismissed the rest.

Coulter applied for a judicial review of IPSO’s handling of the original complaints.  The High Court accepted the case for consideration last October, and it will be heard on 17th April 2018.

IPSO was established and designed by the press industry on lines closely modelled on the failed Press Complaints Commission, lines that were explicitly rejected by the Leveson Inquiry as tending to put the interests of the industry before those of the public.  The three elements of Coulter’s case challenge that bias, as follows.

1. Complaints brought by ‘the wrong person’

The judicial review case goes to the heart of the shortcomings of the so-called regulator – in particular its eagerness to filter out complaints without even considering their merits. IPSO often rejects complaints – as it mostly did in this case – because they have not been brought by what it considers to be the right person.

In other words, even if there is a flagrant breach of the Editors’ Code that IPSO is sworn to uphold, IPSO often won’t look into the matter if the complainant does not meet its criteria.  You might think, on the contrary, that the identity of the complainant is insignificant beside the question of whether there has been a breach.

In this case IPSO refused to rule on whether Baroness Tonge had been misrepresented, because she herself did not bring the complaint.  Coulter’s claim is that this decision was wrong and arbitrary – and didn’t even conform to IPSO’s own rules.

2. Irrational decisions

The case also challenges a common approach of IPSO to complaints relating to opinion articles, which is that even where such articles mislead – in the sense that they present information that is inaccurate or distorted – IPSO will reject complaints about accuracy on the grounds that it must protect the freedom to express opinions.

In reality these articles made all sort of factual statements, some of which were both inaccurate and offensive. Indeed one of the articles falsely claimed that it had been stated at the meeting that “Israel should be wiped from the map”.

The case attacks this attitude on several fronts, most notably that IPSO’s own code, the Editors’ Code, offers no such exemption from the requirements of its very first paragraph, which states that “the press must take care not to publish inaccurate, misleading or distorted information”.

3. Lack of investigation

And the third principal element of Coulter’s case is that IPSO did not investigate the subject properly – in particular in refusing on arbitrary timing grounds to take proper account of a detailed House of Lords report on the matter.  This had dismissed outright the claim that the meeting had been organised to promote anti-Semitism or that it had been taken over by people promoting such an agenda.  In refusing to consider this evidence, IPSO acted inconsistently with its normal approach.

IPSO also confused concepts of ‘careless’ and ‘significant’ inaccuracies, giving the newspapers undue latitude for inaccurate reporting according to its own standard.

What will a win mean in this case?

The High Court ruling, that this case against IPSO is worthy of hearing, was itself unprecedented. If Coulter is successful the regulator will have to consider the complaints afresh, but in practice the significance will probably be much greater, requiring substantial change to the way IPSO goes about its business.

The timing of this case is also auspicious, as it comes just before the House of Commons votes on amendments to the ‘Data Protection Act’.  This seeks to reverse the Government’s recent decision to shelve the second part of the Leveson Inquiry and ‘Section 40’ of the Crime and Courts Act 2013; the latter is designed to relieve complainants and the Press from excessive legal costs.

Above all, a win would strike a blow for freedom of expression in this country.  As Jonathan Coulter puts it:

We have a magnificent tradition of free speech going back over 300 years, despite which, people often refrain from speaking up on contentious topics for fear of being attacked or smeared in the press, while lacking the financial means to secure redress.

They often face powerful business and political interests with large PR budgets and the means to get their ‘stories’ planted in multiple news outlets at once.  This tends to stifle freedom of expression, and frustrate democratic processes.  

However, a win in this case will send a warning shot across the bows of newspapers, encourage them to check their facts before publishing, and help Hacked Off and Parliament to advance the cause of press reform.

This post originally appeared on the Hacked Off Blog and is reproduced with permission and thanks.


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