In June 2019, Brian Cathcart and Paddy French published a report which accused Andrew Norfolk and The Times of an anti-Muslim bias in its reporting.  They mention three articles specifically.  Of these, two resulted in complaints to IPSO, both of which were upheld.  In the first, Tower Hamlets v The Times, the newspaper was ‘ordered’ to publish a summary of the adjudication.

In the second, Just Yorkshire v The Times, IPSO was satisfied that a correction to the online version of the article and a notification in the Corrections and Clarifications column was sufficient to remedy the breach of the code.  As Cathcart and French note, IPSO’s responses in both cases was fairly tame, but not unusually so.

These may not count as ‘serious’ breaches of the code, such as to warrant sanctions being applied. But could they count as evidence demonstrating, in part, a systematic breach of the code?  You will recall (because who could forget?), that IPSO was described, in the press release announcing it, in these terms: ‘The Independent Press Standards Organisation will be a complete break with the past, and will deliver all the key Leveson recommendations’.  Specifically, the press release said, IPSO will have ‘the power to impose £1m fines for serious or systemic wrong-doing’ (This replicates the wording of the Royal Charter on Self-Regulation of the Press at para 19, sch 3).

The IPSO website, in its rulings section, now contains a handy feature called ‘statistics’ which provides users with a breakdown of rulings according to outcome.  As we know, breaches of the code can be categorised in one of five ways: Breach – sanction: action as offered by publication (B1); Breach – sanction: publication of adjudication (B2); Breach – sanction: publication of correction (B3); Resolved – directly with publication (R1); Resolved – IPSO mediation (R2).  According to IPSO’s website, The Times has breached the code 69 times during IPSO’s tenure (ie, 2014 to date).  This is comprised of 9 B1 breaches, B2: 5, B3: 2, R1: 17, R2: 36.

And the clause it breaches the most?  Overwhelmingly, the accuracy clause – 55 times.  The Sunday Times struggles with the same clause.  Over the same period, it has breached the code 30 times, of which, breaches of accuracy accounts for 26 of these cases.  This might not sound like much, until one considers that The Sunday Times is published at 1/6th of the frequency of The Times.  Moreover, when we add these figures together (to produce 99 breaches), we see that News UK performs poorly compared to say, Reach plc where, if we take only the national titles from its wealth of publications (240 regional titles), we see that it has breached the code only 175 times (Reach plc, you will recall, publishes Daily Mirror, Sunday Mirror, Sunday People, Scottish Sunday Mail, Daily Record, Daily Express, Sunday Express, Daily Star, OK! Magazine, Scottish Sunday Express, Scottish Sunday Mirror and the Daily Star Sunday).  On this evidence, the claim that The Times is systemically breaching the code seems nailed on.

So why, then, has IPSO not issued sanctions against it?

As we also recall, only too well, industry representatives told the Leveson inquiry that mandatory, statutory regulation of the press was unnecessary (as well as being unjustified) because the press had learnt its lesson and would reconstitute the Press Complaints Commission to create a tougher, more meaningful scheme of regulation.  ‘The effectiveness of a standards regime’, said Leveson, summarising Lord Black’s evidence, ‘depends on the active support of the participants, that a mandatory scheme would not have the support of those compelled to comply and consequently would not be as effective as a voluntary system could be’ (Leveson report, vol IV, [4.4], 1656).  Moreover, there was broad agreement amongst those representatives that, as Lord Hunt put it (then chairman of the PCC), ‘“tinkering around the edges” would not be sufficient and that this was an opportunity for the press to come forward with “the sort of system Sir David Calcutt was asking for.”’ (Leveson report, vol IV, [1.2], 1595).

But, so far, IPSO has not issued any sanctions against any of its publishers.  One possibility is that IPSO has not yet encountered a sufficiently serious breach of the code.  Given, though, that it has found 1702 code violations, so far, that claim seems hard to believe.  Of course, this is the great thing about the word ‘serious’: its flexibility.  No matter what damage is caused, it can always be said that the breach is not serious enough; that it could have been worse.  That, though, does not explain the absence of investigations into systematic breaches of the code…

A partial explanation for this – the failure to fine – may due to the impossibility of regulation by means of contract (an issue I discuss in my forthcoming book, A Free and Regulated Press (Hart Publishing, 2020)).  Since contract depends upon agreement, and its obligations can be escaped at will, it can only ever amount to discipline by consent.  ‘Would you mind if we disciplined you?’ is the subtext to every adverse regulatory decision, as Brian Cathcart has noted previously.  This is one reason why IPSO has never issued a fine (and I seriously doubt it ever will), despite Sir Joseph Pilling’s claim that it is ready and waiting to do so ([115-116]).  For what is the point of issuing a fine that they know, and we know, can only jeopardise its existence?

chief reason, though, lies in an apparently unnoticed spot of duplicity.  For, when we turn to IPSO’s regulations, we see that, despite claims to the contrary, IPSO has not reserved to itself the power to issue sanctions for serious or systematic breaches of the code, but, instead, only for serious and systematic breaches.  According to clause 53, ‘The Regulator may require that a Standards Investigation takes place… where the Regulator reasonably considers that there may have been serious and systemic breaches of the Editors’ Code (a Systemic Failure)’.  (There are five other circumstances in which an investigation can be commenced, but none of these allows for investigation of either a single instance of a serious breach or systematic breaches).  Clause 67 further states that ‘The Regulator’s Board will only impose fines or costs where the Regulated Entity’s conduct is sufficiently serious’.  Thus, we see the problem clearly.  IPSO cannot investigate repeated breaches of the code unless each of these represents a serious breach (which, by its nature, must be evidenced by something greater than the fact of breach alone) and it cannot issue a fine unless the newspapers conducted is judged sufficiently serious, ie, something of a much higher magnitude than simply ‘serious’.  Indeed, Pilling has advised IPSO that ‘it would be a serious mistake’ to initiate an investigation in anything other than the most ‘exceptional’ circumstances [117].

This inability represents not only a serious failing in IPSO’s capacity to act as a regulator, in any meaningful sense, but also undermines the public’s ability to trust it.  If it won’t stand by the promises it has made openly, then how can the public be certain that it will determine cases independently and without industry interference?

Dr Paul Wragg, Associate Professor of Law, University of Leeds, Associate Fellow of the Honourable Society of the Inner Temple, Outgoing Editor of Communications Law

This post will appear in the September issue of Communications Law and is published here with kind permission.