PCC-IPSO, third parties and representative groups
Few issues illustrate more clearly both the modest nature of the changes recommended by the Leveson Report and the intransigence of the big newspaper groups than the matter of representative and ‘third party’ complaints.
As a matter of general principle you might think that a body charged with upholding a code of practice would not care about the source of complaints but only their validity. That is to say, all that matters is whether the code is breached or not.
But the big newspaper groups have never seen it that way. They would rather that as few code breaches as possible were identified by their regulator, and one of the ways in which they achieve this is to give themselves the power to reject many complaints without even considering them.
It is with this in mind that they have long insisted that their self-regulator is not obliged to act on a complaint if it is not made by the individual directly affected. They justify this by saying that otherwise the system could be open to abuse by lobby groups wishing to gag the press.
The effect of this approach is that potential code breaches can be ignored – for example where the affected person does not wish or is not fit or able to make a complaint, or where there is no one affected person but instead a group such as an ethnic minority.
Lord Justice Leveson examined this closely and made a characteristically cautious recommendation:
‘The Board [of a press self-regulator] should have the power (but not necessarily in all cases, depending on the circumstances, the duty) to hear complaints whoever they come from, whether personally and directly affected by the alleged breach, or a representative group affected by the alleged breach, or a third party seeking to ensure accuracy of published information. In the case of third party complaints the views of the party most closely involved should be taken into account.’
In short, the self-regulator should normally hear complaints from whatever quarter they come, providing that the views of anyone directly affected are considered. But he went on:
‘The Board will need to have the discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a code breach or is simply an attempt to lobby, but they should, as a matter of principle, have the power to take up any complaint that is brought to them.’
This addresses fully the concerns of editors that the system might be open to abuse. The self-regulator can reject complaints wherever it ‘feels’ they are an attempt to promote an argument or are ‘without justification’. Note the word ‘feel’, a vague and subjective term, and note too that ‘without justification‘ is not defined; Leveson wanted to give the self-regulator generous discretion.
Close observers of the Press Complaints Commission (PCC) say that in practice this approach would produce only modest change. As things stand, the PCC does entertain some third-party and representative group complaints, though this is at its own discretion and the criteria applied are not clear. The Leveson recommendation chiefly adds a little clarity.
The Royal Charter on press self-regulation, which is intended to implement the Leveson Report’s recommendations on press self-regulation, generally follows the judge’s wording closely. Schedule 3, paragraph 11 deals with third party and group complaints, and it states:
‘The Board should have the power to hear and decide on complaints about breach of the standards code by those who subscribe. The Board will need to have the discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby. The Board should have the power (but not necessarily the duty) to hear complaints:
a) from anyone personally and directly affected by the alleged breach of the standards code, or
b) where there is an alleged breach of the code and there is public interest in the Board giving consideration to the complaint from a representative group affected by the alleged breach, or
c) from a third party seeking to ensure accuracy of published information.
In the case of third party complaints the views of the party most closely involved should be taken into account.’
A self-regulator recognised under Royal Charter, therefore, would be able to reject any complaint were it ‘feels’ it is ‘without justification’ or is an attempt to lobby. If a representative group makes a complaint it has to show both that the group is affected by the alleged breach and that addressing the complaint is in the public interest. And in the case of third party complaints the views of the party directly affected must be considered.
Some might consider these to be high hurdles, bearing in mind that identifying potential code breaches is what really counts, and that who draws attention to them is a relatively minor matter. For the people behind the PCC and IPSO, however, the hurdles are not high enough and they drafted the IPSO regulations accordingly. Here is what those regulations say (paragraph 8):
‘The Regulator may, but is not obliged to, consider complaints:
(a) from any person who has been personally and directly affected by the alleged breach of the Editors’ Code; or
(b) where an alleged breach of the Editors’ Code is significant and there is substantial public interest in the Regulator considering the complaint, from a representative group affected by the alleged breach; or
(c) from a third party seeking to correct a significant inaccuracy of published information.
In the case of third party complaints the position of the party most closely involved should be taken into account. The Regulator may reject without further investigation complaints which show no prima facie breach of the Editors’ Code and/or are without justification (such as an attempt to argue a point of opinion or to lobby) and/or vexatious and/or disproportionate.’
At first glance this appears to be a reshuffled version of what Leveson recommended, but as so often in IPSO documentation there are important subtleties. In particular, representative groups making complaints would need to show that the alleged breach in question is ‘significant’ and that there is a ‘substantial’ public interest in considering it. And third parties making complaints must satisfy the self-regulator that the alleged inaccuracy is ‘significant’.
These differences might appear to be minor, but two factors need to be borne in mind.
The first is that the people behind IPSO clearly see the distinction as very important, because they included those words ‘significant’ and ‘substantial’ even though Leveson, in his Report, made very clear that he was unhappy that they appeared to raise the complaint threshold too high. In other words, the papers backing IPSO have insisted on a threshold that the judge rejected as unfair.
The second factor relates to impartiality and independence. If it were possible to count on IPSO to apply the regulation in a fair way, with its eye on upholding the code at all times, the differences of language might not really matter. But IPSO as a whole is designed to be the servant of the editors and proprietors, just as the PCC was. It is not remotely independent from them and it can’t be counted upon to act impartially.
There can be little doubt that the intention of including those words ‘significant‘ and ‘substantial‘ is to make it harder than Leveson wished for third parties and representative groups to complain.
For many vulnerable groups this is bad news. At the Leveson inquiry, representatives of Travellers explained:
‘The result [of the PCC’s reluctance to accept third party complaints] is that as long as they are carefully worded, derogatory references to Travellers can be published repeatedly, as they were in the Sun’s ‘Stamp on the camps’ campaign, without committing any offence. Yet it is clear that articles of that sort do cause substantial damage to the rights and reputations of Travellers, fanning hostility against them in settled communities.’
For Travellers read women, Muslims, Poles, gay, lesbian and transgender people, those with eating disorders, the mentally ill, the disabled, those claiming benefits and many other groups in society that may sometimes be targets of hostile reporting.
Such groups are not above criticism – no one is – but they ought to be able to have their complaints heard if it appears that the code has been breached. IPSO threatens to block the path to regulatory remedy for many such complainants.
Fortunately, we are not obliged to accept IPSO, which is promoted by an isolated group of people who command no public trust, and which is their final weapon in the struggle to avoid accountability. If public opinion firmly rejects IPSO, the papers will be obliged to accept the Royal Charter.