Broken promise #5

A standards and compliance arm with investigative powers to call editors to account

If IPSO is committed to holding editors to account, then why is it so opaque on the circumstances that would trigger an investigation? Why has it made it so difficult for this power to be used?

  • According to its website, IPSO has the power to initiate a standards investigation in five different circumstances. Each of these is described in language employing both solitary and plural descriptions of events as well as varying degrees of seriousness. Stripping that language back to solitary events, or events of least significance generates the following minima:
  • Following ‘serious and systemic breaches of the Editors’ Code’;
  • Failure to comply with the requirements of the Board;
  • If the annual statement identifies a significant issue of concern in relation to a single incident or else a pattern of widespread breaches of the Editors’ Code;
  • ‘Statutory authority reports identify substantial Editors’ Code compliance issues’
  • ‘In exceptional circumstances, IPSO reasonably considers that an investigation is desirable because substantial legal issues or Editors’ Code compliance issues are raised.’
  • The PRP criticises IPSO’s continuing reluctance to initiate a standards investigation and questions its appetite to initiate one of its own volition: ‘As far as we are aware, it has never initiated an investigation into a breach of its standards code. IPSO places the burden of investigation on complainants, which makes it difficult for ordinary people to argue their case.’[1]
  • IPSO’s response to this is rather feeble. It claims that it is ‘ready to conduct a standards investigation’ but says that no publisher has yet met the threshold. That extraordinary statement would mean that since its inception in 2014, its 88 publishers, publishing multiple titles, across multiple platforms, over roughly seven years or around 2,500+ days, have never once given IPSO any cause for concern.
  • In his recommendations, Leveson was adamant that the process for initiating investigations should not be unduly procedural or bureaucratic. Specifically, he said:
    • ‘The new regulatory body must be able to undertake investigations when and where it thinks appropriate, and to rely on the cooperation of members. The investigation process must be simple and credible and, while I recognise the need for a level of reconsideration (whether by appeal or otherwise), this should be only at significant stages in order to ensure that the process can be operated effectively: ultimately, any decision is ultimately amenable to judicial review.’[2]
  • For example, he was highly critical of Lord Black’s proposals, which he found to be ‘so weighed down with process that it is difficult to see how the investigative powers could ever be used successfully.’ Sadly, IPSO’s heavily qualified conditions for triggering investigations combined with its opaque membership structures, render the prospects of a meaningful and substantial standards investigation fairly low.
  • The reasons for this reside in the complicated contractual arrangements that the IPSO documentation contains. Clause 53 of the Regulations, which determines the circumstances in which a standards investigation can be initiated, has to be read through clause 1.1 (glossary of terms) and clause 3.3 of the Scheme Membership Agreement.
  • These arrangements can be summarised in the following terms: although it is the Publisher (which is the signatory to the agreement) who enters into the agreement with IPSO, it does so on the understanding that it will enter into reciprocal arrangements with each regulated entity under its purview (clause 3.1.3).[3] For ease, you can think of the Publisher as the holding company and the regulated entities as the titles.
  • This distinction is important for the purposes of determining what constitutes a serious and systematic breach. According to clause 3.3, this threshold relates to the actions of the title and not the publisher. Thus, although holding companies like DMG Media, Telegraph Media Group, and Reach Plc own multiple national titles, (especially Reach plc),[4] multiple, significant breaches of the code by titles under this holding company would not be sufficient to trigger the ‘serious and systematic’ threshold test, even though, as we know, the behaviours and activities of sister titles tend to be co-ordinated. It is not unusual, for example, for multiple titles to be produced by journalists operating from a single location.
  • For example, if we consider all of the breaches by titles owned by Reach plc, then we start to generate large numbers. Using IPSO’s own search tool, if we search across the three different types of breach – that is sanction: action as offered by the publication; sanction: publication of adjudication and sanction: publication of correction, and if we search for the period 2014 to 2021, 383 results are displayed. Now, if we limit the search terms to the nine national Reach plc publications, 41 results are displayed.[5] In other words, these nine titles alone account for over 10% of recorded breaches of the Editors’ Code for the duration of IPSO’s lifespan. Serious? Systemic? Once we begin to delve into the detail, we start to see how slippery these criteria are, for how serious must a breach be to warrant the label ‘serious’? How many recorded breaches warranting sanction constitute ‘systemic’?
  • If IPSO is committed to holding editors to account, then why have there been no investigations given that the event of ‘a widespread pattern of breaches of the Editors’ Code’ has happened and is a condition for triggering an investigation?
  • Yet, remember that it is not only serious and systemic breaches that warrant investigation. It is also warranted, accorded to the third criteria, above, where there has been ‘a pattern of widespread breaches of the Editors’ Code’. Surely, this circumstance arises in relation to Reach plc (at least). Why has this not been investigated?

 

[1] PRP Report, 22.

[2] Leveson, 1766, [4.34].

[3] clause 3.1.3, ‘the Publisher shall procure the performance by each PGRE of its obligations under this agreement’ and that, by the same clause, ‘the Publisher shall be jointly and severally responsible and liable with each PGRE for each such PGRE’s obligations and liabilities under this Agreement’.

[4] For example, Telegraph Media Group owns the Daily Telegraph and the Sunday Telegraph. DMG Media, owns the Daily Mail, Mail on Sunday, mailonline, Metro, metro.co.uk, i newspaper, and inews.co.uk. Alternatively, it could be Reach PLC, which owns a 110 regional titles, from the Accrington Observer to the Yateley News & Mail, 70 online brands, and NINE national titles: Daily Mirror, Sunday Mirror, Daily Express, Sunday Express, Daily Star, Daily Star Sunday, Daily Record, Sunday Mail, The Sunday People.

[5] Daily Mirror, 4; Sunday Mirror, 1; Daily Express, 15; Sunday Express, 2; Daily Star, 3; Daily Star Sunday, 5; Daily Record, 9; Sunday Mail, 1; Sunday People, 1.

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