Broken promise #1

IPSO will be a ‘tough, new regulator’ and ‘will be a complete break with the past, and will deliver all the key Leveson recommendations’

The wonderful thing about the term ‘regulator’, from IPSO’s perspective, is how ambiguous it is. Anyone who has ever done research on the subject knows that there is no universally agreed definition. Given that IPSO’s principal objection is to the label of ‘mere’ complaints handler, we can at least measure IPSO according to its own rules and regulation which stipulate what it, as a regulator, is obliged to do. In this way, we see how far the rhetoric falls short of actuality.

 

Transparent complaints handling?

 

IPSO also makes much of its so-called ‘transparency’. Thus, it says ‘IPSO transparently reports its complaints figures’ and that it is ‘committed to transparency’.

If IPSO is committed to transparency, then why does it claim to have handled 100,000 complaints and enquiries when its own documentation show it has only handled 56,766?

IPSO says, as proof of its robust approach to regulation, that ‘in six years of operation, IPSO has dealt with 100,000 complaints and required 25 front-page references to corrections and adjudications, protecting the public and upholding the highest standards of professional conduct for regulated newspapers and magazines’.

As the PRP points out in its response, IPSO’s 2018 report states that since its inception in 2014, ‘we have dealt with over 47,000 complaints and enquiries from the public’ whilst the 2019 report says it has handled 9,766 in that year. ‘This figure infers that IPSO received around 43,000 complaints in 2020’. In fact, the gap is wider than the PRP suggests, for since there is a material difference between enquiry and complaint, the assertion of 100,000 complaints compared to 47,000 complaints and enquiries, means that IPSO claims to have handled more than 43,000 complaints since 2019.

If IPSO is committed to transparency, then why does it gag complainants from speaking publicly about their complaint during the complaints process?

Annex C of its Regulations contains rules governing the complaints process. Clauses 5-7 impose confidentiality obligations on parties to the dispute. Specifically, clause 5 contains the obligation: ‘Neither party to the complaint should publish material provided to the Regulator as part of the investigation and mediation of a complaint; disclose such material to third parties except as is reasonably necessary in order to engage in the complaints process; or otherwise use it except for the purposes engaging with the complaint [sic].’

Clause 6 stipulates the consequences of breaching clause 5: ‘Should either party publish or disclose such information without consent, the Regulator may decline to consider a complaint further, or may consider the disclosure when reaching a determination on remedial action under Regulation 30.’

If IPSO is committed to transparency, then why are all of its decisions on complaints not publicly audited or verifiable?

Whereas IPSO’s adjudications are publicly accessible (subject to the operation of clause 5.3 which allows IPSO to refrain from publishing such information, as it determines in its absolute discretion), these adjudications account for a staggeringly small fraction of its remit. As the PRP notes, in 2019 alone, IPSO rejected 93.7% of the complaints and enquiries it received. Of the 6.3% which were investigated, only 0.6% were upheld.

It is hard to conceive that any other “independent” regulator would boast of success in circumstances where it upholds less than 1% of received complaints. For comparison, Ofcom, in the same period (2018-19), upheld complaints in 64% of the cases it investigated (87 of 136 cases). (Of the remaining cases, 14% were resolved without regulatory action being required).

Since there is no public scrutiny of its decisions to reject, then there is no verifiable means by which its ‘commitment to protecting the public’ can be verified. Indeed, the statement is plainly meaningless without such public, independent auditing in place.

 

Protecting the public and holding the press to account

If IPSO is committed to ‘protecting the public and upholding the highest standards of professional conduct for regulated newspapers and magazines’,[1] then why does it not investigate complaints of its on volition or on behalf of the complainant instead of rejecting them as ‘not pursued’?

Not only does IPSO place the evidential burden on the complainant, it offers no support to victims on the rare occasions that it has agreed to investigate the complaint. Instead, its rules on the complaints procedure stipulate that parties to the complaint have seven days to respond to correspondence (clause 9). Clause 10 stipulates that ‘should the complainant fail to respond to correspondence the Regulator shall provide the complainant with a reasonable deadline after which the complaint may be closed as not pursued.’ What constitutes ‘reasonable’ is left undefined, of course. The review procedure in such circumstances is also modified – so whereas a rejected application can ordinarily be reviewed under clause 32 of the Regulations, clause 12 of Annex C stipulates that ‘the Regulator will not generally reopen a complaint which has been closed as a consequence of a failure by the complainant to provide a timely response’. Instead, ‘the Regulator will only reopen a complaint where, taking account of the reasons given and the full circumstances of the complaint, to refuse the request would be unreasonable’. Like ‘reasonable’, no explanation or list of indicative factors are provided to determine what ‘unreasonable’ means in these circumstances.

These onerous conditions are unnecessarily complex and hard to follow, being spread across so many clauses, and are entirely inappropriate for a process that is supposed to be accessible to ordinary citizens without legal advice. Indeed, they could be said to have been designed to fail and provide a plausible explanation for why the number of ‘not pursued’ complaints is so much higher than those that are pursued by IPSO.

Thus, in 2019, of those 9,766 complaints and enquiries that IPSO admits to, only 621 complaints were concluded whilst 1,466 were rejected as ‘not pursued’. Meanwhile, 254 (of these 9,766 complaints and enquiries) are categorised, mysteriously, as ‘other actions’ – as distinct (apparently) from the 2,140 items labelled as ‘miscellaneous enquiries’ (whatever that means).

Indeed, even the claim that IPSO reports the annual number of breaches of the code is an exaggeration. The truth that IPSO does no more than report the number of complaints, doggedly pursued by complainants (who, as the PRP remarks, bear the evidential burden), in circumstances where IPSO cannot resile from the complainant’s claim that the code has been breached.

If IPSO is committed to ‘protecting the public and upholding the highest standards of professional conduct for regulated newspapers and magazines’, then why is its ‘obligation’ to investigate so heavily caveated?

IPSO asserts that it ‘protects the public’ from newsgathering and reporting that breaches the Editors’ Code. It is, it says, ‘committed to running a free, fair and easy-to-access complaints process which protects individuals’. What it fails to mention, though, is how heavily qualified this ‘commitment’ is.

 

The nature of IPSO’s oversight powers

The rhetoric

IPSO says this on its website: ‘we hold newspapers and magazines to account for their actions’ because (amongst other things) ‘we make sure that member newspapers and magazines follow the Editors’ Code’. ‘We monitor press standards’, it claims.

This monitoring is said to be far-reaching: ‘we have a broader commitment to press standards which goes far beyond complaints handling’.

Specifically, IPSO describes its ‘broader commitment’ in these terms: ‘we use knowledge and data from daily work with complaints, wide monitoring of the media landscape and engagement with groups interested in coverage of particular issues to track patterns and identify areas of potential concern to provide targeted interventions to raise press standards’.

The reality: the ‘commitment’ to act on ‘patterns of concern’

Cutting through the rhetoric, though, we see that this ‘broader commitment’ is fairly spurious. The only ‘commitments’ that IPSO has reserved itself are those described at clauses 5 & 6 of its Regulations and, in so far as they relate to monitoring, they are heavily qualified. Indeed, the only ‘power’ IPSO has to tackle these problematic ‘patterns’ and ‘areas of potential concern’ is to issue ‘guidance’ to miscreant publishers. Such guidance being ‘confidential and non-binding and shall not restrict the freedom to publish’.

The power to investigate breaches of its own volition (absent complaint)

Clause 17 stipulates the narrow circumstances in which IPSO can investigate apparent breaches of the Code in circumstances where there has been no complaint.

  • Once ‘aware’ of an ‘alleged breach of Clauses 6.4, 15, or 16 of the Code’ (which relates to the payment of children, witnesses in criminal trials, and convicted criminals for stories), or Clause 13 (which relates to financial journalism), or ‘a prima facie breach of any other Clause except Clause 1’ (the use of alternate terms ‘alleged’ and ‘prima facie’ is not explainable, nor obvious)…
  • AND, according to IPSO, that alleged or ‘prima facie’ breach is ‘reasonably consider[ed] to be serious’
  • THEN IPSO ‘may recommend the Complaints Committee make inquiries’
  • IF there is ‘substantial public interest’ in IPSO acting where there has been no complaint AND ‘in respect of Clauses other than 6.4, 13, 15, and 16 of the code, such decision is taken by unanimous decision of the Regulator’s Board at a board meeting’
  • AND ‘if appropriate, other than in respect of clauses 6.4, 13, 15, and 16, having first obtained the express consent of any party or parties most closely involved’.

The sheer number of qualifications clearly gives the lie to this being anything like a power to monitor code compliance!

The power to protect the public from unwanted harassment

IPSO says that it also protects complainants through its ‘power’ to issue privacy notices. ‘In 2020 IPSO issued 48 privacy notices, protecting the public from unwanted approaches by the media and made nearly 20 proactive approaches to organisations we thought could benefit from our harassment advice.’

What it does not report, however, is that these notices are essentially meaningless. They purely advisory and inconsequential.

The ‘power’ itself is contained within clause 5.6, which is limited as follows: ‘Such notification and advice shall be confidential and non-binding and shall not restrict the freedom to publish.’

IPSO: The trade complaints-handling body

As this analysis shows, the very idea that IPSO conducts, or is even capable of conducting, rigorous, meaningful, proactive scrutiny of code compliance is sheer fiction. IPSO is not constantly scrutinising newspaper activity to ensure compliance with the code for the simple reason that IPSO has neither the authority nor the power to do so.

Instead, its complaints handling services are both reactive and limited to those rare moments when a determined complainant has pursued her claim doggedly enough so as to meet the high evidential burden that IPSO lays in front of her.

This proclaimed proactivity, then, – this constant monitoring of press standards – is nothing more than a myth. IPSO is not staring at the press – quite the opposite, it is staring back out onto the public with its back firmly turned to press activity.

Moreover, it is similarly fanciful to claim that IPSO operates an accessible complaints-handling service. Its only commitment to the public, as its regulatory paperwork shows, is to consider complaints that the determined complainant has doggedly pursued to the high evidential threshold that IPSO creates (see below).

It has not been established to investigate breaches of the Editors’ Code but, instead, to settle disputes ‘in cases where there is disagreement between a complainant and a Regulated Entity about whether the Editors’ Code has been breached’ (clause 7) — hence the PRP’s apt description that IPSO is ‘a trade complaint handling body with no independent oversight’.[2]

Worse still, this ‘commitment’ to uphold standards is further qualified by clause 8, which expressly states that IPSO has no obligation to even consider, let alone, investigate complaints even when the Code has been breached and individuals have been harmed: ‘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 Editor’s Code…’ Moreover, the evidential burden remains with the complainant throughout the process.

As clause 10 stipulates, for the complaint to be considered, it must contain:

  1. a copy of the article in question, if there is one;
  2. a written outline of the concerns by reference to the Editors’ Code; and
  3. any other documents which will help the Regulator to assess the complaint.

If IPSO is ‘not satisfied’ that the complaint ‘discloses a possible breach of the Editors’ Code’ then it ‘shall reject the complaint’, according to clause 12. This restrictive, passive approach to complaints handling is at odds with what Leveson envisaged. Those passages explaining and contextualising his recommendations capture an active role, whereby the regulator would ‘take up any complaint that is brought to them’ once satisfied that it relates to the code and is not an attempt to lobby, etc.[3] This is why he said that the regulator should have the power to investigate complaints, and that members should submit to such investigations.[4]

The obligation to record breaches of the Editors’ Code is also heavily caveated, such that it barely warrants the term ‘obligation’, if at all. A ‘licence’, ‘prerogative’, or ‘power’ would be a much more accurate description. In establishing IPSO’s ‘functions’, clause 5.3 of the Regulations includes this substantial qualification: ‘recording and publishing breaches of the Editors’ Code, save that the Regulator may in its discretion determine that there are circumstances where this is inappropriate.’ Why would any truly independent regulator not want to record and publish details of its enforcement actions, not least to serve as a guide to others? What constitutes ‘inappropriate’? In what circumstances is this discretion exercised? How often is it used? If IPSO were truly transparent, this information would be publicly accessible and verifiable.

References

[1] IPSO response to PRP Annual Report

[2] PRP Report, 14.

[3] See, eg, Leveson, 1765, [4.30].

[4] See, eg, Leveson, 1766, [4.34].

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