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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 at the time said it offered the potential for future governments to interfere with press freedom, by exercising influence through the role of, or powers granted to, the recognition body. Critics argued, 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 said ‘recognition’ oversight could help ensure that a regulator was 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 set 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 still 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 does still 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 some national newspapers—including the Financial Times, The Guardian, and The Observer, as well as the website-only 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. See 2.5 in McNae’s and Useful Websites, below, for more detail about Impress.
Law created to drive the press into ‘recognised’ regulation
Section 34 of the Crime and Courts Act 2013 created a position that meant that any press organisation not signed up to a Panel-recognised regulation system could be 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 won 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 to join regulators offering ‘recognised’ arbitration schemes. . 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 feared that the comparative cheapness of arbitration would encourage spurious complaints which are time-consuming to deal with, or would 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 come into force if it was activated
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.
There remains however support in Parliament, and outside it, for there being such a law designed to drive the mainstream press into Panel-recognised regulation.
However, it remains the case that section 40 was never actually implemented and in February 2024, the Government included provisions in the Media Bill to repeal it. Culture minister Lord Parkinson of Whitley Bay praised the “strengthened independent self-regulatory system” of Ipso and told peers that repealing Section 40 is “removing a threat to freedom of the press”. Labour peer Lord Lipsey, who was previously the deputy editor of two national newspapers, branded Ipso a “phoney regulator” and accused ministers of cynically tabling this repeal in an election year to get the press on side. It remains to be seen whether section 40 will, finally, be repealed.
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.
Publications which led to Ipso adjudicating that clause 1 was breached have included:
- A Daily Star front page headline referring to the death of jockey Lorna Brooke which mistakenly referred to her as Laura Brooke, a mistake which four days later was acknowledged in the newspaper’s corrections column, but the ‘correction’ misspelled her surname as Brookes (Chambers v Daily Star, 18 August 2021).
- A caption to a photo of a man smoking a shisha pipe which referred to the ‘smell of drugs’ drifting to nearby homes—he said he was smoking tobacco. The publisher had no evidence of use of illegal drugs (A man v Thurrock.nub.news, 17 February 2021).
- A Daily Telegraph report which in its headline and opening sentences said that ‘half of Britain’s imported coronavirus cases originate from Pakistan’, which Ipso ruled was misleading because there was no reference until later in the report to the limited period (three weeks) to which the statistic related (The Centre for Media Monitoring v The Daily Telegraph, 26 November 2020).
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).
2.4.4 Deception (subterfuge and misrepresentation) (Clause 10 of the IPSO Code)
In January 2024, IPSO ruled that a Daily Mail undercover operation against an immigration solicitor did not breach the Editor's Code. Rashid Khan complained to IPSO that the Daily Mail breached Clause 1 (Accuracy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in articles headlined “Lawyers charging up to £10,000 to make fake asylum claims” and “‘Don’t admit you came here to work – they will send you back’”, both of which were published on 25 July 2023. Khan’s firm was shut down by the Solicitors Regulation Authority after the investigation. He also disputed the accuracy of the Mail’s translation and transcript of the recordings and provided his own versions to IPSO.
“20. The newspaper gave an explanation of the origins of its investigation, how it came to include the complainant, and how the decision was reached to engage in undercover reporting. It said its Investigations Editor had received confidential information from a source, alleging that a number of solicitor firms were facilitating false asylum claims – a potentially criminal offence as well as breach of legal regulations. The source, whom the publication believed to be credible, also had knowledge of a government intelligence report which listed 40 solicitors’ firms believed to be involved in a range of ‘abuses’ of the asylum system. The source had identified the complainant’s firm as one of these organisations. Given this, and in circumstances where the newspaper said it was unable to report on the basis of the source’s claims, due its obligations under Clause 14 of the Editors’ Code – to protect confidential sources of information – the newspaper considered that ascertaining whether these claims had a basis was a subject worthy of investigation, and that any such investigation would be in the public interest.
21. The newspaper considered that subterfuge at each stage of its investigation was justifiable and proportionate. It said there had been no alternative means by which the necessary information could be obtained: lawyer-client discussions were privileged and confidential, and without the involvement of a first-party to these discussions, it would have been unable to uncover the scope and nature of the advice the complainant was giving to his clients. It also noted that, as the source’s information concerned potentially illegal activity, the complainant was highly unlikely to have ‘shown his hand’ if approached openly and directly by the newspaper – it was therefore necessary for it to engage in subterfuge. It also suggested that former clients of the complainant’s law firm were highly unlikely to go on the record, in the event that they had gained asylum under false pretences.
22. In these circumstances, which the newspaper said it had carefully considered prior to commencing its undercover investigation, the newspaper considered that it was reasonable and proportionate to engage in subterfuge and misrepresentation. It therefore engaged two experienced freelance journalists for the purposes of the investigation. It was decided that one of these reporters would pose as a recently arrived illegal migrant, with no legitimate reason to claim asylum, while the other would pose as their uncle. The reporters would ask the complainant whether there was anything they could do to normalise the nephew’s stay in UK. The newspaper also said that it considered it necessary to make a secret recording of these conversations to ensure that it kept an accurate record of what was said, adding that it would have been impractical for the undercover reporters to have taken notes during these meetings.
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24. The newspaper said that the subterfuge had revealed information of significant public interest, as its investigation had found that the complainant had been acting in the highly unethical way its source had alleged. It said that, despite the reporters making clear – during both conversations – that the nephew was an illegal immigrant who had entered the UK for work and to improve his economic status, the complainant not only failed to advise the reporters that they had no valid claim for asylum – he had encouraged them to make a claim. The newspaper said it was necessary to make a secret recording of the reporters’ conversations with the complainant to ensure that it kept an accurate record of what was said and to convey the nature of the complainant’s wrongdoing to its readers.”
After considering all versions of the translations, the Code Committee decided it was not inaccurate to report that Khan had told the reporter to ‘make up something‘ for the immigration authorities and to ‘lie to the Home Office’. It also deemed the use of undercover filming and publication of the footage to be in the public interest, and said the camera enabled the publication to ensure matters were correctly reported. Given that the investigation had the potential to uncover evidence that the complainant was engaging in behaviour which might contravene the law as well as the Solicitors’ Code of Conduct, the Commitee found that there was a clear public interest in verifying the claims made by the source and establishing the nature and scope of the advice the complainant was providing to his clients. The Public Interest portion of the Editors’ Code explicitly references exposing crime, the threat of crime, and unethical conduct concerning the public as an element of public interest reporting.
“37. The newspaper had detailed the considerations which had taken place between senior editorial executives prior to engaging in the subterfuge. It had also shared with IPSO copies of the internal memos and e-mail correspondence, at each stage of the investigation, demonstrating that it had considered whether engaging in subterfuge would serve, and be proportionate to, the public interest it had identified. In addition, given the nature of the source’s claim about the complainant’s conduct and his firm’s working practices, the Committee was satisfied that the newspaper could not have obtained this information without engaging in subterfuge; it was reasonable for the newspaper to believe that it would be unable to ascertain his true advice to clients without employing subterfuge and misrepresentation. The reporters therefore posed as potential clients to gather first-hand evidence of this advice and recorded these conversations, which provided the newspaper with an accurate account of these conversations, and which had involved two separate languages.
38. The Committee considered that the publication had demonstrated that the decision to use undercover reporters served the public interest; it turned next to the question whether it served the public interest in a proportionate way. In considering what was proportionate, the Committee noted that, after the first visit to the complainant’s office, further internal discussions had taken place at the publication before approaching the office a second time, as demonstrated by the memos the publication had provided to IPSO. This demonstrated that the publication had balanced the weight of the allegations against the complainant against the evidence it had already obtained, not just prior to the investigation but during the investigation – keeping in mind the proportionality of the exercise throughout. The Committee noted that the subterfuge had been extensive, however – given the nature of the services that the complainant provided – the Committee considered that the publication had demonstrated that the use of undercover reporter was proportionate to the public interest served, as the information could not have been otherwise obtained. The use of undercover reporters did not breach the terms of Clause 10.
39. The Committee next considered whether filming the complainant using a hidden camera breached the terms of the Clause. The Committee noted that the use of such devices is prohibited by the Code, but that their use may be justified, provided the tests set out by the Public Interest portion of the Code are met. The Committee was, for the reasons previously explained, satisfied that the publication had demonstrated that there was a public interest served by the story itself. In terms of whether the use of a hidden camera was proportionate to the public interest, the Committee found that the camera both enabled to publication to keep a record of the interaction – a crucial part of ensuring that matters are correctly reported, and which is of vital importance when reporting on matters in the public interest – and the publication of limited portions of the video served to illustrate a matter of public interest to the article’s readers. The Committee further noted that it was only the meetings with the complainant – rather than, for instance, the waiting area or exterior of the office – that had been recorded, which it considered to be a proportionate approach. There was, therefore, no breach of Clause 10.”
(Decision of the Complaints Committee – 20233-23 Khan v Daily Mail https://www.ipso.co.uk/rulings-and-resolution-statements/ruling/?id=20233-23)
2.4.4.1 ‘Fishing expeditions’
In 2011, Ipso’s predecessor, the PCC ruled that the Daily Telegraph had breached Clause 10 when it published a series of articles about the Liberal Democrats and its then leader Vince Cable, based on secretly recorded conversations in which reporters posed as constituents. The PCC ruled that the stories the Telegraph published as a result did not justify the methods it employed because it did not have sufficient reasons for its initial investigation, which was described as a “fishing expedition”.
2.6 The importance of ‘audit’ trails, including in legal cases
Case study
In 2019 Ipso cleared the Mail on Sunday of Colin Luck’s complaint that it breached the Code’s clause 10 by using subterfuge for an article headlined: ‘Exposed: The Sex For Rent Landlords’. Mr Luck, a landlord, had placed an advert online offering female students free accommodation ‘in exchange for your intimacy and companionship’. On that evidence the newspaper—which argued such an offer is illegal—authorised a woman reporter to contact Mr Luck undercover as a potential tenant, using a false name which she did. Ipso said the newspaper had given appropriate internal consideration before making use of subterfuge, and that it was limited subterfuge, clearly proportionate to the public interest in the investigation. The newspaper said Mr Luck then sent the reporter messages referring to sexual acts. Ipso said this provided a sufficient public interest justification for further subterfuge in which the reporter, still undercover, met him at a cafe where—Ipso noted—what he proposed appeared to support that he was offering accommodation for sex. The Mail on Sunday’s article revealed what he said at that meeting. Ipso said the newspaper had a reasonable basis for considering that Mr Luck was engaging in serious impropriety. Ipso was satisfied that the material could not have been obtained by other means (Luck v The Mail on Sunday, 23 May 2019).
Being able to prove from an audit trail the existence of ‘reasonable belief’ about a public interest justification could also be important for media organisations seeking to rely on the public interest defence in defamation law, explained in ch. 23. In 2021 in the Lachaux case, explained in more detail in that chapter, Mr Justice Nicklin said of the reference to audit trails in the Impress Code: ‘As an explanation of the importance of contemporaneous documents, it can hardly be bettered. Lachaux concerned a decision by two media organisations to publish seriously defamatory allegations made by a woman against her former husband which were later discredited. The husband successfully claimed damages. The trial including probing of whether any of the journalists involved held a reasonable belief at the time of publication that the public interest would be served by what was published. The judge ruled that the public interest defence presented could not apply, and was highly critical that the journalists could not produce any satisfactory contemporaneous evidence that such a belief was held.
2.7 The European context
In the case of Stoll v. Switzerland (2007), the Court said “all persons, including journalists, who exercise freedom of expression, undertake ‘duties and responsibilities’, the scope of which depends on their situation and the technical means they use”. The Court emphasised that anyone enjoying Article 10 safeguards when reporting on issues of general interest are expected to act in good faith and “provide reliable and precise information in accordance with the ethics of journalism.” And in Bedat v. Switzerland (2016), where the Court ruled that a criminal conviction of a journalist for having published documents covered by investigative secrecy in a criminal case was not a violation of Article 10, it said that that protection “is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means (...); the concept of responsible journalism also embraces the lawfulness of the conduct of a journalist, and the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly”.
Postcript: Ethical implications of artificial intelligence for journalism and journalists.
In December 2017, the Press Association launched RADAR (Reporters and Data and Robots), which provided an automated news service. It involves a team of reporters using official databases and story templates to generate automated reports about subjects such as health, crime and employment. At the time, the editor-in-chief of RADAR said: “RADAR has evolved from a Google-backed experiment in data journalism to a subscription-based business providing an essential service to local and regional media in the UK. Our model makes the service equally accessible to small hyperlocals and larger operations with many titles to cover.”
Generative artificial intelligence
Jump forward to the end of 2022 and the beginning of 2023, and generative AI was suddenly everywhere. Generative AI refers to models or algorithms that create new output, which can include text and photos and videos, which have usually been “trained” (for free) on the vast amounts of data and content that is available online. In November 2022, OpenAI launched ChatGPT, a natural language processing chatbot, driven by generative AI technology that allowed questions to be answered, and helped with tasks, such as composing content. Others quickly followed into this space, including Google (initially with Bard, and later Gemini), and Microsoft with Copilot which replaced Cortana. Artificial intelligence, and particularly generative AI, has quickly transformed how the public access and consume information.
In 2023, however, stories started to emerge about the ways in which artificial intelligence was being used in the publishing sphere, and the wider ethical and legal implications this had for journalists and journalism. While AI technology opens up new possibilities for newsrooms, unlocking the potential for greater creativity and efficiency, concerns have been expressed about the ethical and legal issues such use poses. Automated news algorithms can generate stories at an unprecedented speed, sifting through vast amounts of data to create news pieces within seconds. However, critics say that such content often lacks context and proper verification. Publishers see it as potentially freeing up time for journalists to do more “proper” journalism, utilising AI to enhance efficiency and accuracy, unions worry about the impact on employment, ethical concerns are raised around disclosure policies when using AI tools, and legal concerns have been raised around intellectual property rights where AI has been trained on other’s original content, and around liability, where false information is published. One of the biggest problem areas is the production, by ChatGPT and other AI text generators, of what are called “hallucinations” – made up information or the introduction of false “facts” that were not in the original source material.
Some problems
In January 2023, US news outlet CNET issued corrections on 41 of 77 stories, it had published, that were written using an AI tool. CNET defended the use of the AI writing tool but said that an internal review of stories uncovered numerous errors in the articles at the centre of the controversy. The errors appear to consist mainly of factual matters requiring clarification or correction, but there was also a suggestion that some material had been plagiarised: “We’ve replaced phrases that were not entirely original”.
The Verge reported at the time that automated tools have been in use at CNET for much longer than the article-writing robot and that staff sometimes didn’t know if content was written by a machine or a human co-worker. According to the Verge, the AI-written articles were designed to maximise the use of Google searches with search engine optimisation friendly keywords, to make the most of lucrative affiliate ads on the pages. While CNET said at the time, it use of the AI robot would be “paused, for now”, its editor-in-chief Connie Guglielmo, in a memo to staff said “Expect CNET to continue exploring and testing how AI can be used to help our teams as they go about their work testing, researching and crafting the unbiased advice and fact-based reporting we’re known for. The process may not always be easy or pretty, but we’re going to continue embracing it – and any new tech that we believe makes life better.”
In April 2023, a German news publisher apologised to ex Formula One motor racing champion Michael Schumacher’s family over an AI-generated interview. The magazine printed a photo of the former racing driver on its front page along with the words: "Michael Schumacher, the first interview!” The parent company of the Die Aktuelle magazine fired the editor of the title over what it described as a "tasteless and misleading" article.
In May 2023, the Irish Times apologised and took down an AI-generated opinion article. The paper's editor said it got it "badly wrong" when it discovered an opinion column about Irish women using fake tan being problematic was written, at least in part, by artificial intelligence. In the article, which was supposedly written by a 29-year-old healthcare worker called Adrianna Acosta-Cortez, there was an argument suggesting the use of fake tan by Irish women was cultural appropriation. However, people began questioning whether the author's name was real, and after investigating, the Irish Times said it appeared that the article and the accompanying byline photo may have been produced, “at least in part, using generative AI technology.” "It was a hoax; the person we were corresponding with was not who they claimed to be. We had fallen victim to a deliberate and coordinated deception.”
Also in May 2023, Reading Today issued a warning about the use of AI after a robot produced inaccurate information and cited “fictitious” sources after an experiment in which it was asked to write news in briefs for the newspaper.
The approach of the UK press
Early in 2023, Reach plc, publisher of major national papers such as the Mirror and the Express, as well as local titles such as BelfastLive and the Manchester Evening News, announced that it was experimenting with AI technology. In February 2023, Reach announced that it had formed a working group to determine the extent to which chatbots, programmes that allow robots to hold direct online conversations with humans, could help in aiding reporters covering topics such as weather and traffic reports. Reach’s chief executive Jim Mullen, said at the time that any use of AI by Reach would be as a “tool to support our editorial teams”, In April, Reach confirmed it had begun testing the ability of chatbots, to aid its coverage. In early 2024, Reach announced that it was rolling out a new in-house AI tool, called Gutenbot, that enables its journalists to quickly rewrite stories which have already appeared on other sites within its network. Since January 2024, it has been holding weekly drop-in training sessions for staff on how to use Guenbot. Reach describes Gutenbot as “a Reach-owned AI product” that assists editorial staff by generating “titles, headlines, lead text and body copy. Rather than rewriting an entire article, Gutenbot makes a selection of changes, for example swapping in synonyms or re-phrasing passages, without changing the meaning of the text. According to an article in Press Gazette in March 2024, Reach had told staff in January that “Guten “utilises AI to free up time spent on repetitive tasks” and that where already in use it had “supported an increase in page views and article volume, as well as [helping] to break news quicker than competitors””. Press Gazette said it understood that as well as rewriting its own content, the new technology was also being used to rewrite wire agency copy and some police press releases.
In April 2023, Newsquest said they were recruiting an AI-Powered Reporter who they said would be “at the forefront of a new era in journalism.” The job description for the role included utilsing AI technology to create national, local, and hyper-local content, and helping to help integrate AI-generated content into the publisher’s newsrooms. The job description concludes: “This is an exciting opportunity for someone who is passionate about journalism and the potential for AI to transform the way we produce and consume news, without losing sight of the importance of quality reporting and writing.
In April 2023, the Guardian was reporting that ChatGPT was making up fake Guardian articles. The author of that piece, the Guardian's head of editorial innovation, Chris Moran, wrote “Huge amounts have been written about generative AI’s tendency to manufacture facts and events. But this specific wrinkle – the invention of sources – is particularly troubling for trusted news organisations and journalists whose inclusion adds legitimacy and weight to a persuasively written fantasy. And for readers and the wider information ecosystem, it opens up whole new questions about whether citations can be trusted in any way, and could well feed conspiracy theories about the mysterious removal of articles on sensitive issues that never existed in the first place.”
Moran went on to say that the Guardian had also created a working group and small engineering team “to focus on learning about the technology, considering the public policy and IP questions around it, listening to academics and practitioners, talking to other organisations, consulting and training our staff, and exploring safely and responsibly how the technology performs when applied to journalistic use.” He later talked about the “massive” ramifications for news publishers’ business models of AI-generated search results giving people so much information in response to their queries that they will no longer need to click through to the original articles. “You effectively have Google’s AI intermediating between your content and the user, and bypassing your website… What’s interesting is if that intermediation also carries a health warning which says none of this may be true, you start to ask interesting questions, I think, about whether or not gen AI is a good technology to apply right now in a search environment in particular.”
In June 2023, the Guardian published its three “principles” on generative AI:
- for the benefit of readers,
- for the benefit of our mission, our staff and the wider organisation
- With respect for those who create and own content
These principles stated that “A guiding principle for the tools and models we consider using will be the degree to which they have considered key issues such as permissions, transparency and fair reward.” The principles also say that before they use generative AI in any way, a Guardian journalist must make the case for why it benefits readers, have it signed off by an editor, and ensure it is transparently signalled to the user. Any use must also only take place if it improves the quality of work and supports The Guardian’s mission.
Most of the ethical issues highlighted by these three principles remain as publishers embrace these news technologies.
Legal developments
In December 2023, the New York Times announced that it had sued OpenAI and Microsoft for copyright infringement accusing them of infringing on its copyrights by using millions of its articles to “train” their chatboxes. The legal claim says the companies ‘seek to free-ride’ on paper’s investment in its journalism. The newspaper is among a number of prominent copyright owners including authors, visual artists and music publishers, who have sued tech companies over the alleged misuse of their work in AI training.
In the UK, Getty Images is bringing a lawsuit against Stability AI, the creator of Stable Diffusion, over a claim that Getty’s copyright library of material was used to train its AI model. The company said it trained the model using US-based cloud computing power from AWS. Getty Images is also bringing a separate copyright infringement claim against Stability AI in the US.
In January 2024, the UK’s Information Commissioner’s Office announced that it was launching a consultation series on how aspects of data protection law should apply to the development and use of generative AI models.
The questions it suggested needed to be looked at include:
- what is the appropriate lawful basis for training generative AI models?
- how does the purpose limitation principle play out in the context of generative AI development and deployment?
- what are the expectations around complying with the accuracy principle?
- what are the expectations in terms of complying with data subject rights?
The role of the UK’s press standards bodies
Going forward as far as journalism is concerned, much is going to rely on ethical conduct and transparency from the news publishers, (although that will not of course impact on the information that is published more widely by social media outlets). In the UK, both Ipso and Impress having been keeping a close eye on generative AI.
In 2022, Ipso commissioned former senior civil servant, Sir Bill Jeffrey, to conduct an independent external review of its governance, operations, and future direction. His report was made public in April 2023. One of its suggestions was that with the new introduction of AI into industry practice, Ipso should continue to contribute to the development of industry thinking on how the use of AI can advance high quality journalism. In May 2023, Ipso’s Chief Executive, Charlotte Dewar, issued a statement which said: “We are all grappling with the potentially enormous implications of artificial intelligence for journalism. At IPSO we are developing our thinking on this issue and how it relates to our regulation, but we know that editorial responsibility will remain a core principle: editors are accountable for their reporting and editorial standards, regardless of the technology they are using. “They need to be vigilant to ensure their content adheres to the Editors’ Code of Practice.” In December 2023, Ipso published its reflections on the recommendations of the Jeffrey Review and how they were taking them forward. Ipso said it had begun to consider how it could play a constructive role to support publishers and journalists to maintain editorial standards through this AI transition.
In March 2023, Impress altered its transparency requirements, particularly as they pertained to AI-generated content. Its Standards Code says at 10.5 “Publishers must ensure human editorial oversight and clear labelling of AI-generated content.” Impress’ Guidance on the use of artificial intelligence reminds journalists that while AI may bring several benefits to a publisher, it can also create issues with accuracy and transparency. It says publishers should “prominently” label content that has been recommended to people by automated systems based on their individual behaviour and data and “should clarify what editorial mechanisms or policies they have in place regarding their use of AI.” Impress’ guidance on the Standards Code’s accuracy requirements now says publishers need to “be aware of the use of artificial intelligence (AI) and other technology to create and circulate false content (for example, deepfakes), and exercise human editorial oversight to reduce the risk of publishing such content”. The Code requires publishers to be aware of the use of AI and other technology to create and circulate false content and to exercise human editorial oversight to reduce the risk of publishing such content;
Lexie Kirkconnell-Kawana, Impress’ chief executive said Impress’ guidance on AI reflected less on how AI is currently used in newsrooms, and more the working assumption that it will soon be much more widely rolled out. “We all know that as these tools become more accessible, newsrooms are just going to naturally acquire them… So it’s making sure that we’re being really future-focused, that we’re being proactive, we’re looking at what’s coming down the line in terms of evolving content practices, and that, again, those first principles still apply: editorial responsibility, oversight and accountability.”
Many newsrooms are in the process of developing guidelines on when and how AI can be used. The next two to three years are going to be key in terms of the development and use of all types of artificial intelligence in newsrooms and the impact it will undoubtedly have on journalism and journalists.
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
www.ipso.co.uk/arbitration/
Ipso arbitration scheme
http://www.regulatoryfunding.co.uk/
Regulatory Funding Company
http://www.editorscode.org.uk/index.php
Editors’ Code of Practice Committee
www.editorscode.org.uk/downloads/codebook/Codebook-2021.pdf
Editors’ Codebook
https://impress.press/
Impress
www.impress.press/downloads/file/impress-ciarb-arbitration-scheme-2018(1).pdf
Impress arbitration scheme
https://hackinginquiry.org/
Hacked Off