One day, IPSO the glove puppet will tell the truth about An Industry Talking B******s about its commitment to high editorial standards. But not today. Today, IPSO will say its decision to hold The Sun accountable for ‘a serious breach of the Editor’s Code of Practice’ (Lord Faulk’s words) demonstrates that it is the tough regulator it has claimed to be since its inception in 2014; that it can force newspaper editors to publish prominent adverse adjudications ‘whether they like it or not.’ Today, IPSO will say, it has shown the Press Recognition Panel was wrong to claim it is nothing more than the trade’s complaints handling service.

For, one day soon, Lord Faulks, IPSO’s Chair, is bound to say, in the House of Lords, that IPSO is working. He will say this result shows that IPSO can make tough decisions; that it can render even the most powerful newspapers contrite despite their emphatic denials of wrongdoing. And he will say, as he addresses the various press barons occupying the seats around him, and without any sense of irony, that government-mandated changes to the newspaper regulatory system would be despotic, for it would amount to insidious state interference to let politician’s control or, even, influence the workings of an ‘independent’ regulator.

Of course, to those that know, this is all bollocks. The decision to uphold, but only partially, the separate complaints by the Fawcett Society and the WILDE foundation against The Sun for its publication of Jeremy Clarkson’s tirade against Meghan Markle is a victory for IPSO, first and foremost.

Why? Because the mystique of tough regulation that this decision creates is unsupported – in fact, contradicted – by the underlying facts, for several reasons.

First, there is the nature of The Sun’s recalcitrance. It denied that its story had breached the Editor’s Code of Practice in relation to the two separate allegations of discrimination under Clause 12(i) (on grounds of sex and race), an allegation of harassment under Clause 3, and an allegation of inaccuracy under Clause 1. Showing the same profound ignorance of intentionality as a legal principle that many Conservative backbenchers have trotted out in recent weeks, The Sun said that IPSO could make no findings on whether the writer’s motivation to attack Meghan Markle was driven by sexism and/or racism since this ‘would veer into a decision based on “psychic divination.”’ [18]. Moreover, The Sun appealed against IPSO’s decision to partially uphold the complaint. This appeal was dismissed by the Independent Complaints Reviewer.

This activity gives the strong impression that The Sun stood by its right to publish the story; that there was an important matter of principle at stake. What this principle might be is not entirely clear. For, even before any investigation of the complaint had been launched, The Sun had removed the story from its website and had published a fulsome apology, online and in print, in which it said: ‘We at The Sun regret the publication of this article and we are sincerely sorry’ [9]. This apology followed Clarkson’s own admission of regret: ‘I’m horrified to have caused this much hurt,’ he tweeted [8]. Accordingly, by the time that IPSO came to investigate, both the journalist and publisher had, through their own actions, projected a profound sense of culpability and shame about the story.

This makes The Sun’s position even more fascinating. It accepts, at [17], that it ‘had fallen short of its high editorial standards’ and that the story ‘should not have been published.’ Yet, it maintains that it ‘did not accept the article breached the Editors’ Code.’ And, of course, we can say, now, that, according to IPSO, it was right to do so, for the complaints under Clause 3 (harassment), Clause 1 (accuracy), and Clause 12 (racial prejudice) were dismissed as unfounded. But why should The Sun be so resistant to an adverse finding on Clause 12 (sexism) given that it accepted as much in its original public apology in which it referenced the many good works it has done for women’s causes? For the apology that appears on News UK’s pages after the IPSO decision is more or less the same apology that appeared before.

A cynic might think that The Sun’s recalcitrance was contrived. Certainly, regardless of its motivations, its protestations put IPSO in its best light. For The Sun’s denials gave IPSO the opportunity to act robustly after it received a historic number of complaints. And, given that The Sun had already admitted to being in the wrong, IPSO was presented with the perfect opportunity to project strength through a decision that does no more than recycle The Sun’s own admissions about the perceptible sexism in Clarkson’s account and presents them as if they were weighty principles that IPSO had forced upon a recalcitrant member. Accordingly, the decision itself gives IPSO credibility, especially if one overlooks the token resistance offered by The Sun’s protestations.

Secondly, there is the nature of IPSO’s ‘power’ to hold the press to account. Here, this power manifests in coercive terms, as seen in IPSO’s statement that The Sun ‘must inform its readers of the finding against it.’ The use of the categorical imperative, here, is fascinating. It begs the question: or else what? As we know, IPSO backtracked on its promise to fulfil Lord Justice Leveson’s recommendation that an independent press regulator should have the power to fine members for serious OR systematic breaches of the Code. Instead, it can only fine members for serious AND systematic breaches. So, the fact that The Sun has committed a ‘serious breach’ (Lord Faulks’s words) is not, of itself, sufficient. It is unclear what the consequences of insubordination would be, if The Sun refused to follow IPSO’s instructions. Clause 53.2 suggests that a standards investigation could be initiated in that event (ie, following ‘one or more… failures to comply with the requirements of the Regulator’s Board’). This could lead to a fine (under cl 66.2) but only where the event is deemed ‘sufficiently serious’ under cl 67. This is all very lawyerly but nothing that screams ‘you must or else!’

Thirdly, let us consider the dismissed portion of the Clause 12 complaint. Clarkson had said ‘Along came Meghan, who obviously used some vivid bedroom promises to turn him into a warrior of woke,’ which, by its reference to ‘woke,’ the Fawcett Society argued was a pejorative reference to race. The Sun denied this, claiming, instead, that to uphold a complaint on these grounds would be to apply ‘subjective value judgements by particular people’ [19] and that ‘the harm which the complainants said the article caused to groups – women and, more specifically, women of colour – was not a proper consideration under Clause 12’ [29]. IPSO concluded that ‘the phrase “warrior of woke” did not amount to a pejorative reference to… race’ despite acknowledging that ‘the reference could have connotations beyond the plain meaning of the words.’ (emphasis added) [36]. The phrase ‘woke,’ it said, ‘is used in association with a wide range of social issues, not limited to issues concerning race’ [36] albeit it did not care to elaborate on what that ‘wide range of social issues’ might include.

This evaluation begs a vital question. What does IPSO mean when it says it will uphold ‘high editorial standards’? Surely, the admission that the phrase ‘warrior of woke’ could be understood pejoratively should mean that it is, if we are speaking of high editorial standards, for otherwise what is this elevated sense of ethical conduct that the term refers to? This is where, I think, IPSO still exhibits something of a serious identity crisis. It cannot decide whether it is a moral arbiter or a quasi-judicial force. If it is the latter, then, of course, it can speak, as it does, to the importance of balancing individual rights against freedom of speech. Yet, if that is so, and it is a guardian of rights, then the reference to ‘high editorial standards’ is disingenuous. The law sets a minimum standard (of rights) that must be adhered to – not a maximum; certainly, the law has no pretensions at establishing ‘high ethical standards.’ This is why IPSO’s approach is so perplexing because clause 12 has no clear parallel in law. Thus, IPSO’s statement that ‘The Code acknowledges that the right to freedom of expression includes the right to shock and challenge, but it also provides protections for individuals from discrimination’ is mysterious because it reads as if IPSO believes that freedom of speech is so restricted. Yet, it isn’t. There is no law that would prevent a person from making ‘prejudicial or pejorative reference to an individual’s race, colour, religion, sex…,’ etc. Clause 12 is an ethical statement. It is an ambition that goes beyond the necessity of law. So, if IPSO is committed to enforcing so-called ‘high editorial standards’ why shouldn’t the mere possibility of being understood pejoratively count as a material breach of the Code?

Finally, consider the dismissal of the Clause 3 complaint concerning harassment. It would have been easiest for IPSO to say that Clarkson’s story could not count as a material breach because, as The Sun maintained, it is a standard of conduct (newsgathering), not content. After all, this is more or less what the law says about the Protection of Harassment Act 1997. Instead, it reiterated the tantalising view that Clause 3 can apply to content [38]. Nevertheless, it dismissed the complaint on the grounds that a) ‘the publication of a single article was [in]sufficient’ and b) that it had no ‘evidence from the Duchess of how publication… had affected her personally.’ [39] This conclusion is intriguing, not least because IPSO admits that it had had contact with Meghan prior to commencing its investigation (to see if she objected to the investigation or not) [4] and, further, in light of its conclusion, at [45], that ‘the imagery employed by the columnist was particularly vivid and made the Duchess the subject of humiliation and degradation,’ which clearly contradicts its own view that it could not comment on how she had been affected by the story. Moreover, given that IPSO has the power to investigate potential breaches of the Code of its own volition (clause 17 of its Regulations), and that Prince Harry has been vocal about the sustained and disproportionate level of interest in him and his wife, IPSO’s claim that there was insufficient evidence to justify further investigation of clause 3 is untenable.

Taken together, then, these four issues provide considerable reason to doubt any claim that IPSO can, and does, provide sufficient independent oversight of regulatory standards. I would not like to speculate on its motivations but it does give a strong impression of being the industry’s warrior of smoke (and mirrors) to make us think the industry is a prisoner of the Editors’ Code, forced to talk about nothing but embroidered contrition and paraded naked through the streets to the cries of ‘shame!’

Professor Paul Wragg, Professor of Media Law, University of Leeds, Associate Fellow of the Inner Temple Director, Hacked Off, Code Committee Member, IMPRESS