Chapter 2 Additional material

Section numbers from the book are used when relevant. The book should be read too. Its content provides fuller explanations and context.

2.1.1 Fragmentation of press regulation

A deep concern among the ‘mainstream’ press organisations and many journalists was that Leveson’s proposed regulatory system included an overseeing ‘recognition body’, to be created by statute (and therefore in a form decided by politicians). Leveson’s aim was that this body would decide whether to approve (‘recognise’) any regulator funded by the press, and therefore how the regulator would operate. The idea was that - if recognition was granted - there would be periodic reviews of the regulator’s effectiveness in promoting standards in journalism, to check if its recognised status remained merited. Leveson did not recommend that such recognition should be compulsory for any regulator the press established. But, as explained below, he designed a legal framework which could financially penalise press organisations – potentially very heavily - if they did not sign up to a ‘recognised’ regulator.

Critics of the recognition concept say it offers potential for future governments to interfere with press freedom, by exercising influence through the role of, or powers granted to, the recognition body. Critics argue, for example, that the Government could give the recognition body powers to insist that a regulator, to retain recognition, impose tighter rules on the press, with harsh penalties for breaching them. Supporters of the concept say ‘recognition’ oversight can help ensure that a regulator is completely independent of any press group funding it when it makes decisions on complaints against the press,

In late 2013, the Government, with cross-party support in the House of Commons, put in place a Royal Charter creating a legal framework for a model of regulation close to that proposed by Leveson. This led to the formation in 2014 of the Press Recognition Panel to serve as the type of body which Leveson wanted. For more details of the Charter, the Panel and its role - see Useful Websites, below.

The Charter sets out criteria which the Panel must consider when deciding if a regulator deserves recognition for how it will handle or is handling complaints against the press organisations in its membership. For example, the Panel must consider whether the regulator is effective, fair, has objectivity of standards, independence and transparency of enforcement and compliance, and has credible powers and remedies, reliable funding and effective accountability.

But the Royal Charter model, and therefore its recognition process, continue to be shunned by all major newspaper and magazine publishers. They see that process as a step closer to state-run statutory regulation, which they argue could interfere with press freedom. As ch. 2 of McNae’s explains, after the Press Complaints Commission was discredited, most major newspaper and magazine groups - including the vast majority of the regional and local press - agreed to establish, fund and be bound by the decisions of the Independent Press Standards Organisation (Ipso). Since 2014,
Ipso has operated in the self-regulatory system created by these press groups to adjudicate on complaints against their journalism or journalistic activity. Ipso has no connection to the Charter model, and therefore is not recognised by the Press Recognition Panel. But Ipso has some of the features Leveson wanted a regulator to have.

As stated in 2.1.1 of McNae’s, even among major press organisations regulation is now fragmented because five national newspapers—the Financial Times, The Guardian, The Observer, the Independent and the Independent on Sunday—and the London Standard are owned by groups which have so far decided against joining the Ipso system.

In 2016, the Panel recognised (approved) the Independent Monitor for the Press – known as Impress - to be a regulator under the Charter model. By 31 March 2021, Impress had 109 publishers as members, and had issued adjudications on complaints made against a few of them. Its members are in general small organisations, including ‘hyperlocal’ news sites. As indicated above, Impress has no power to adjudicate on complaints against any of the UK’s major press organisations as they have either joined Ipso or decided to run their own complaints systems. See 2.5 in McNae’s and Useful Websites, below, for more detail about Impress.

2.1.1.1 Law created to drive the press into ‘recognised’ regulation
Section 34 of the Crime and Courts Act 2013 created the position that any press organisation not signed up to a Panel-recognised regulation system was, from November 2015, exposed—to some extent—to a greater likelihood of having to pay ‘exemplary’ (punitive) damages in cases it might lose in the courts because of news-related publication. These could be, for example, privacy or defamation cases – see McNae’s chs. 20-23 and 27 for general explanation of these fields of law.

Also, section 40 of the Act could have led to a press organisation which wins such a case being deprived of the right to recover its costs from the losing party, unless that press organisation is in such a ‘recognised’ system. So, for example, a newspaper may have published an exposure of the crimes of a major criminal, and won the defamation case in which he sued it over the exposure, because it proved the truth of what it published, but it could be unable if section 40 was in force to recover its costs from the criminal unless it was part of a ‘recognised’ regulation system. As explained in 20.3.4 in McNae’s, each side’s costs in defamation cases can be huge – for example, more than £1 million.

When the Parliament created these sections to have these effects, the (Leveson-inspired) rationale was that they would help drive the press into ‘recognised’ arbitration schemes – that is, ongoing participation in such a scheme would be integral to being a member of a ‘recognised’ regulation system. Leveson favoured such arbitration as it is cheaper for claimants with a valid case to gain financial compensation through such a scheme than by seeking redress by suing – for example, for defamation - in the courts. But much of the press has feared that the comparative cheapness of arbitration will encourage spurious complaints which are time-consuming to deal with, or will encourage people with valid complaints to seek the financial redress which arbitration can provide, rather than be satisfied by adjudications and/or published corrections and/or apologies.

In 2018, Ipso introduced an arbitration scheme which it has made compulsory for national press organisations in its membership – see 2.2 in McNae’s and below for context about this scheme. But the other organisations in Ipso – for example, those in the regional press – do not have to offer arbitration to complainants.

The ‘costs’ provisions in section 40 of the 2013 Act – which, as explained above, are adverse to any press organisation not in a ‘recognised’ system of regulation – would only have come into force if the Secretary of State for Digital, Culture, Media and Sport activated this law.

However, when in March 2018, the Government announced it was abandoning the plan for the Leveson Inquiry to re-open for a Part 2 of its investigations into the phone-hacking scandal, it said too it would repeal the ‘costs’ provisions in section 40 of the 2013 Act. This reflected the fact that most of the press had continued to lobby against section 40. A press group hit financially by these ‘cost’ provisions—through refusal to join a ‘recognised’ regulator - could have decided to argue in the UK courts, and possibly in the European Court of Human Rights, that such financial discrimination breaches the right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights.

When making the announcement Matt Hancock, as the relevant Secretary of State, told the House of Commons that completion of prosecutions arising from the renewed police inquiries into phone-hacking, and other events meant that the terms of reference for Part 2 had largely been met. He said that reopening the ‘costly and time-consuming’ public inquiry was not ‘the right way forward’. He said there had been improvements to press regulation and reforms to the police, and that – rather than having Part 2 - priority should instead be given to dealing with the challenges of the modern media landscape, such as the economic pressure on the news media, the rise of clickbait, fake news and social media.

Mr Hancock also said that a consultation had found serious concerns that section 40 ‘would exacerbate the problems the press faces rather than solve them’, and impose further financial burdens, especially on the local press.

He said then that the Government would repeal section 40 ‘at the earliest opportunity’. After months of political turmoil over Brexit, another General Election and then the COVID-19 crisis, the section had not been repealed by June 2022, but the Government had repeated the repeal pledge. The underlying issue remains ‘live’ because there remains some support in Parliament, and outside it, for there being such law designed to drive the mainstream press into Panel-recognised regulation. The fact that Ipso set up an arbitration scheme which is compulsory for national newspapers in its membership may count in favour of any such press group should there be any future ‘Article 10’ battle in the courts over law which discriminates - between press groups in a ‘recognised’ system and those which are not- in how costs are awarded in cases of alleged defamation, breach of privacy, etc. However, by June 2022 (when this additional material for ch. 2 was completed) no-one had pursued a case to a conclusion in the Ipso arbitration scheme.

2.2 The Independent Press Standards Organisation

As chapter 2 of McNae’s explains, Ipso has replaced the Press Complaints Commission. In some respects it operates in a similar way to the PCC as regards considering and deciding on complaints. Also, the Regulatory Funding Company – the company run by press industry representatives which provides the levy mechanism whereby Ipso is funded by the industry, and which sets Ipso’s annual budget – operates in a similar way to Pressbof, the body through which the industry funded the PCC. The Editors’ Code of Practice Committee, which reviews the terms of the Code, and can propose changes, was a sub-committee of Pressbof and under the new system is convened by the Regulatory Funding Company rather than by Ipso.

The structure and powers within the Ipso system are set out in Articles of Association for Ipso and those of the Regulatory Funding Company, and in Ipso’s regulations. See Useful Websites below. Under its Articles the Company’s directors can only approve changes to or replacement of the Code - and therefore changes to the ethical rules it enshrines - if they reasonably believe there is a consensus for this among the press groups which, through the Company, fund (and are members of) the Ipso system, or there is a majority vote from those groups for such change or replacement.

Critics of the Ipso system – which include the Hacked Off group, whose website address is below - say this structure fails to meet Leveson’s criteria for a regulator independent of the industry – and, since Ipso started work in autumn of 2014, have slated it as being nothing more than a PCC Mark II.

In terms of the powers granted by major press organisations to their system of self-regulation, Ipso’s launch marked a new era, because of the differences between it and the old PCC system.

Ipso has the power – because of the contracts which press groups sign to be part of its system – to ‘fine' these groups up to £1 million for serious and systemic breach of the Editors’ Code, whereas the PCC could not impose financial sanctions.

Ipso’s contract with publishers makes clear that it places more specific responsibility than the PCC did on publishers having internal governance practices to ensure that editors and journalists comply with the Editors’ Code of Practice. Publishers are required to provide Ipso with annual statements so their ‘standards and compliance’ can be regularly monitored. These can be read on the Ipso website.

Ipso’s contract also gives it powers, in addition its consideration of individual complaints, to conduct more sweeping ‘standards investigations’ in various circumstances, including if it reasonably believes – for example, from ‘hotline’ information, see below, or the annual statements – that there may have been serious and systemic breaches of the Editors' Code by one or more of these publishers, or if ‘substantial legal issues’ are raised about their conduct. This means Ipso has specific powers to be more proactive than the PCC was to delve into suspicions of press misconduct, even when there has been no complaint from the public about a particular issue or case. Ipso’s regulations say that it can pursue a ‘standards investigation’ by means of an ‘investigation panel’ with the power to oblige publishers to provide documents and powers to question editors and journalists in taped interviews. However, Ipso had not seen sufficient cause to use this power by June 2022 (when this additional material for ch. 2 was completed).

Other differences:

the Editors’ Code Committee includes Ipso’s chair and director, and three other ‘lay’ people – who are not from the press – as well as 10 editors, whereas under the old PCC system all the committee members were editors.
Ipso offers an arbitration process as an alternative means of resolving a complaint against a member organisation, with the possibility of financial compensation for the complainant, whereas the PCC did not do this. But the Ipso system does not oblige most of its members to agree to arbitration being the means of resolving a complaint – see below. For more detail of the arbitration scheme, see ch. 2 in McNae’s and Ipso’s website
Ipso’s 12-member board does not include people who are currently editors, and neither does its complaints committee, whereas serving editors constituted a minority of the PCC board (which decided on complaints). This change means that Ipso, though its board may include former editors or former editorial executives among its five ‘industry’ members, can claim to be constitutionally more independent of the press industry than the PCC board was.

As was the case with the PCC board, the chair of and majority on Ipso’s board are ‘lay’ people who do not have press backgrounds.

Ipso provides a ‘confidential whistleblowing hotline’ so journalists who believe they have been requested by, or on behalf of an editor, to do something in breach of the Code can raise the alarm.

Ipso’s current chair is Lord Faulks, who as a barrister specialised in claims arising from the Human Rights Act, professional and clinical negligence, personal injury, education fields, police activity and public law. He was appointed to the House of Lords in 2010 and served as Justice Minister from 2013-2016. But by the time he was appointed as Ipso chair he had no political affiliations as a peer.

2.4.2. Accuracy and opportunity to reply

Sufficient care taken to be accurate?

Ipso’s adjudications show what it considers to be sufficient care to avoid publishing an inaccuracy or to maintain accuracy

Getting comment

Clause 1(i) of the Editors’ Code does not oblige a publisher to seek comment from a person or organisation before publishing material about them. But failure to do this may mean that Ipso rule that the clause was breached because insufficient care was taken to avoid inaccuracy (Abassi v Daily Mirror, 28 October 2021, a complaint not upheld in this respect because comment was sought; (Spinks v The Sun, 28 April 2015, not upheld). Ipso has ruled that it is acceptable in some circumstances for a publisher when seeking comment to give some specific examples of the allegations, and to make clear the general nature of the allegations, which may be published, rather than provide ‘an exhaustive list’ of them (Prevent Watch v The Sunday Telegraph, not upheld, 15 July 2016). In the event of a complaint that sufficient care was not taken, Ipso will consider, as regards an approach to a person before publication, the extent to which they have actually been told the substance of the allegation against them, and been given a ‘substantive’ opportunity to respond (Clarke v The Sun on Sunday, 10 May 2018). The Editors’ Codebook advises that if necessary ‘key points’ be put to the person about whom publication is planned. For the Codebook, see Useful Websites, below.

A denial of an allegation must be included

Failure to include that a person denies an allegation may be a serious breach of clause 1(i) (Wass v The Mail on Sunday, 20 July 2017).

Including a denial may not be enough if a serious allegation is unsubstantiated

An article which publishes a serious and unsubstantiated claim could be ruled to have breached clause 1(i) even though the person's denial of the allegation was included. Ipso said this when upholding a complaint from a parish councillor about publication of an allegation that he had not paid around £4,500 in VAT. The article made clear he disputed the claim (Fellows v warringtonguardian.co.uk, 8 March 2022).

It must be made clear if allegations are unproven

Ipso requires what is published to make clear when allegations cited are unproven. For example, it upheld part of a complaint made by a woman against a newspaper concerning a report of allegations that she used a Twitter account to ‘stalk’ a man. Ipso said the newspaper was unable to point to evidence that it had obtained at the time of publication that proved that she was the operator of that Twitter account. Ipso added: 'In these circumstances, reporting as fact that the complainant was responsible for the Twitter account and had “stalked” the man constituted a failure to distinguish comment, conjecture and fact in breach of clause 1 (iv). Furthermore, presenting these claims as fact constituted a failure to take care not to publish misleading information; the coverage was significantly misleading as to the status of these serious allegations' (Sharp v Daily Record, 22 April 2020).

Notes or recordings are needed to verify quotes or that the person was contacted

Ipso expects a publisher to be able to produce notes or a recording of quotes published (Reed v Mail Online, 16 September 2021) and of the points the journalist put to a person or organisation being given opportunity for comment on allegations (Brighton and Hove City Council v The Argus, 22 May 2017).

‘Read-back’

Ipso has said that if - before publication - text or quotes are read back to a person to check accuracy, there should be ‘a proper record’ of the read-back having been completed satisfactorily (Owens v That’s Life, 26 June 2015). The content of the adjudication suggests that a ‘proper record’ could be created by the journalist signing and dating a written record of the text/quotes checked in the read-back, noting any changes, or audio-recording the read-back.

Contradictory information in a press release must be checked

Ipso ruled in 2021 that a newspaper had failed to take sufficient care to be accurate because an article about a court case was based on a police press release which contained contradictory information. The article’s headline was: ‘Glum-looking pimp used threats to keep his sex enterprise secret’. Ipso’s ruling followed a complaint from the defendant in the case. In it he pleaded guilty to two charges of controlling prostitutes for gain. But the article added from the police press release that he had 'on at least one occasion blackmailed the victim to prevent her contacting police'. The press release also contained a quote from a spokesperson for North Yorkshire Police which said 'he used the threat of blackmail to avoid being brought to justice'. The man told Ipso that the claim he had blackmailed one of the escorts had been referenced in court, but the blackmail charge had been dropped and so he had not been found guilty of it. Ipso said: ‘The publication had relied solely upon a police press release for its information about the court proceedings. However, the press release was contradictory: it explained that an allegation had been made that the complainant had blackmailed one of his victims and later stated, without qualification, that he had blackmailed the victim on at least one occasion. Further, the charges in respect of which the complainant had pleaded guilty were made clear in the press release, and did not appear to include a charge of blackmail. The status of the blackmail allegation was, therefore, not clear from the press release. However, the article had reported, as fact, that the complainant had blackmailed his victim, without taking any steps to confirm whether the offence to which the complainant had pleaded guilty had included a charge of blackmail. Given the seriousness of the claim, this represented a failure to take care not to report inaccurate information about the offence committed by the complainant in breach of clause 1(i).’ Ipso added that because the article was a report of the complainant’s court case and conviction, this was a significant inaccuracy that required a correction under clause 1(ii) (Enticknap v The Gazette (North East, Middlesbrough & Teesside, 14 May 2020).

Absence of relevant information

The omission of relevant information can render an article misleading or inaccurate (Sokal v kentlive.news, 11 March 2022, not upheld).

The nature of sources

Ipso expects factual information cited to be from a ‘credible’ source (A woman v Daily Star Sunday, 10 July 2017, not upheld). Ipso has said that if ‘claims of significance or of a potentially damaging nature’ are to be published from information provided ‘off the record’ (that is, from confidential sources), it will generally expect the publisher to have taken further steps – such as an approach to the individual against whom the claims are made, to give him/her opportunity to comment, or the obtaining of other, corroborative, on-the-record information – to seek to ensure that the material is accurate (Spinks v The Sun, 28 April 2015, not upheld; Solash v The Times, 30 November 2015). For the ethical obligation to protect the identity of a confidential source, see 33.1 in McNae’s.

If quotes are altered the change must not misrepresent

Ipso accepts that an editing process might, on occasion, mean that verbatim comments by individuals are altered for publication, but has said that the Code requires that any such changes do not misrepresent the comments of the individual. Ipso said that in some instances, this may mean that the interview subject should be contacted to clarify their intended meaning or follow up on specific points. It said this concerning a woman’s complaint that a newspaper had changed male pronouns to female pronouns in her quotes referring to a transgender woman who she alleged had sexually assaulted her in a women’s prison. The newspaper said the change to pronouns was necessary in order to avoid inaccurate and discriminatory reference to the transgender woman. It did not consider that these changes rendered the article inaccurate or misleading. The article made clear the gender identity of the attacker, including that the attacker had previously lived as a man, had been placed in a women’s prison after receiving a Gender Recognition Certificate, and retained male genitalia. The newspaper said that readers would not be misled as to the complainant’s experiences or her views in circumstances where the sub-heading and text of the article made clear that she did not believe that male-bodied sex offenders should be allowed in women’s prisons. Further, it said that the reporter had contacted the complainant prior to publication to seek her consent for the altered quotations, and the she had agreed to the change. The newspaper said too that that quotes were not generally reported absolutely verbatim; amendments were a necessary and practical part of the editing process for publications, notably for style and brevity as well as other legal and editorial considerations. It added that flagging such changes to readers would be unnecessary and potentially confuse readers (A woman v Daily Mail, 11 Feb 2022, not upheld). Ipso upheld a complaint that a report of a crime victim’s testimony in court which presented what were merely her ‘yes’ or ‘no’ replies as if they were fuller, direct (verbatim) quotes was inaccurate. The newspaper created the quotes by attributing to her words paraphrased from questions put to her in court. Ipso said this had given a significantly misleading impression of the manner in which the complainant had given her evidence to the court. It said: ‘The accurate reporting of evidence given in court is fundamental to the principle of open justice’ (Goring v Press and Journal, 16 May 2017).

Notes of what is said in court cases or some other documentary proof is required

If a complaint is made that a report of a court case is inaccurate, Ipso expects the publisher to produce notes made of the case by a reporter, or other documentary evidence, to show sufficient care was taken to be accurate (Agius v Hull Daily Mail, 16 March 2021). Ipso expects shorthand notes of a court case to be clear about what was said (Gatt v Ayrshire Post, 8 March 2017, not upheld).

If notified, a publisher must report the outcome of a court case previously covered

Clause 1(ii) of the Code will be breached if publisher which has previously reported an ongoing court case does not publish its outcome, if the publisher is notified of it (for example, Stainer v Folkestone Herald, 28 February 2020, not upheld in this respect).

A necessary correction must be promptly published

Clause 1(ii) of the Editors’ Code says that a significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence. A complaint was upheld against mirror.co.uk because it had taken 25 days to add a correction to the text of an online article, to state that an earlier headline was misleading. Ipso said this was not prompt enough. The earlier headline, published on 31 December 2021, said there had been 332 Covid deaths in the UK within 24 hours, when in fact the period in which these deaths occurred was the 24th to 29th December. The correction in the article’s text was added on January 24, 2022, after contact from Ipso. The headline itself had been corrected much earlier, within two hours of it first being published (Various v mirror.co.uk, 17 March 2022). In another case, Ipso ruled that clause 1(ii) had been breached because a newspaper’s offer to publish a 'clarification' to an article about A-level examination grade data was not made until 56 days after Ipso had begun its investigation into the complaint (Shadforth v The Sunday Times, 18 February 2020).

Useful Websites

www.gov.uk/government/publications/leveson-inquiry-report-into-the-culture-practices-and-ethics-of-the-press

Leveson Report

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06535

House of Commons Library 2014 briefing paper on implementation of the Leveson Report, including how this led to the Royal Charter ‘recognition’ model

https://commonslibrary.parliament.uk/research-briefings/cbp-7576/

House of Commons Library 2018 briefing paper ‘Press Regulation After Leveson’

http://pressrecognitionpanel.org.uk/

Press Recognition Panel

https://pressrecognitionpanel.org.uk/the-royal-charter

The Royal Charter

http://www.ipso.co.uk/
Ipso