It feels like only yesterday that the largest newspaper groups were claiming to have set up, in IPSO, the “toughest [regulator] in the Western world” with the power to award “fines of up to £1million”.
That was in 2014. But as far as the press are concerned it might as well have been yesterday, because in the last six years IPSO has not fined a newspaper so much as 50p, let alone a million pounds.
The reality is that IPSO was set up as a sham from the outset: a body designed to provide the perception of accountability, whilst shielding its members from any meaningful regulation.
This has been evident in its ongoing refusal to put itself forward for the test of Recognition; the examination of press regulators carried out by the independent Press Recognition Panel. The Recognition test, which is based on recommendations from Part One of the Leveson Report, assesses the independence and effectiveness of press regulators according to specific criteria.
With IPSO refusing to submit itself for review by the body established to consider regulators’ compliance with the Leveson criteria, the impartial thinktank the Media Standards Trust carried out its own review in 2013. It found IPSO satisfied 12 of 38 recommendations; failing 20, and with the status of the remaining 6 unclear on the basis of a lack of information being available.
The same analysis was repeated in October 2019, and again published by the MST. Unsurprisingly, it showed IPSO had made no meaningful progress towards meeting the Leveson criteria. As well as reevaluating the findings for 2013, it was able to determine the status of the 6 criteria which had previously been unclear; finding that overall IPSO satisfied 13 recommendations and failed 25.
Subsequently, IPSO has published a “response” to that Report, which seeks to rebut its findings.
Not only does it fail to engage with many of the MST’s findings, where it does engage it is unable to find error or overturn any of the MST’s conclusions.
Any regulator with an ounce of independence would use a report like the MST’s to demand further changes from the Regulatory Funding Company; the newspaper executives which control IPSO’s rules and have hamstrung the organization. They would amplify and repeat the findings of such a report. Instead, IPSO launches a defence of the RFC’s command of the regulatory regime and shows no interest in improving itself.
Analysis of IPSO’s response is below.
This document is a response to the Media Standards Trust report “The Independent Press
IPSO welcomes external scrutiny and is committed to transparency in all of its work.
If it welcomes “external” scrutiny, then why has IPSO not submitted itself for review from the Press Recognition Panel? The PRP are better placed than anyone to confirm a body’s compliance with the Leveson criteria.
IPSO are terrified of putting themselves forward for such a rigorous and independent examination.
We regularly and openly engage with groups and individuals interested in matters related to press regulation and editorial standards.
At no point during the research or writing of this reassessment did the Media Standards Trust approach IPSO for information or comment to give them insight into the organisation. Therefore, this report pays no regard to the actual practice or reality of IPSO’s regulation.
It would be wrong to judge a complaints-handler’s compliance with the Leveson criteria on an anecdotal basis. The point of criteria is to avoid that. The principle of the Leveson approach is that regulators should be free to practice as they see fit within the confines of clearly set criteria for independence and effectiveness, which IPSO fail.
In any case, the anecdotal experience of engaging with IPSO has been well-covered, and does not assist IPSO’s claims of operating as a legitimate regulator.
In comparison, Sir Joseph Pilling’s independent external review, which the report “considers unpersuasive”, had full access to IPSO as well many external stakeholders, including those critical of the organisation; his report is a more accurate snapshot of IPSO’s effectiveness and independence.
The “Pilling Review” was neither “independent” nor truly “external”. An old acquaintance of former Mail editor Paul Dacre, Sir Joseph Pilling was personally hired by IPSO to review the organization according to terms of reference set by IPSO.
They may not have been marking their own homework on this occasion, but they did set the homework and effectively paid their mate to mark it.
As he carried out his Review, Pilling consulted dozens of newspaper editors and executives. He did not speak to a single IPSO complainant.
The MST’s report examines the detail of the Pilling Review in its Appendix, and comprehensively exposes the Review’s flaws. In any case, Pilling meekly made some limited proposals for reform, which IPSO could have implemented without compromising the industry’s firm grip on the complaints-handler – yet it didn’t even implement those.
Standards investigations and financial sanctions
IPSO has powers to impose appropriate and proportionate sanctions. Financial sanctions can only be issued as a result of a standards investigation.
A key principle of regulation is that all regulators act proportionately to the seriousness of the issue that they are investigating. Standards investigations are one of many interventions available to IPSO to address standards concerns. The purpose of a standards investigation is to address serious and systemic problems within the industry. Given that the potential outcome of such an investigation is a significant financial penalty on a publisher, combined with the likelihood of significant reputational damage, it is right and proper that the test for launching such an investigation is set high. IPSO does not agree that there is a significant difference between ‘serious or systemic’ and ‘serious and systemic’: both imply serious wrongdoing at a publisher.
In the last five years publishers have been responsible for demonization of immigrants, serial inaccuracies about transgender people, abuse of nomadic communities, a tidal wave of inaccuracies about the subject of a profoundly consequential public referendum, consistently abusive and inaccurate coverage of Muslims, smearing and intruding on countless innocent people, and misreporting on suicide and domestic violence which is believed to lead to further deaths.
One newspaper even repeated a phrase relied on by the Nazi Party, applying it to Muslims instead of Jewish people, on one occasion in the last few years.
It is troubling in itself that IPSO considers none of these to represent “serious wrongdoing”. One wonders what a newspaper would have to do to warrant an investigation.
There is no requirement to fine a newspaper a million pounds at the end of an investigation in any case. They could be fined £100. Or some other sanction. So the suggestion that it is a £m fine or nothing is absurd.
IPSO is effectively confirming its position is that the transgressions described above are not “serious” and that none merit even a fine of £20.
IPSO claim there is no material difference between serious “or” systemic, and serious “and” systemic. In which case, why not change it? Or rather, as is the case with IPSO who do not control their own rules, why not ask the newspaper executives on the Regulatory Funding Company to change it?
However, it is important to note that “serious and systemic” breaches of the Editors’ Code are not the only test for launching an investigation. IPSO’s Board can launch a standards investigation in one or more of the following circumstances:
1. IPSO reasonably believes there may have been serious and systemic breaches of the Editors’ Code
2. there has been one or more failure or failures to comply with the requirements of IPSO’s Board
3. where IPSO’s Board believes that an investigation is necessary because substantial legal or Code compliance issues are raised about a publisher
4. an annual statement identifies significant issues of concern
5. an analysis of statutory authority reports identifies significant compliance issues.
Although any of these can trigger a standards investigation, they cannot trigger a fine (only the first of these can). The others cannot trigger meaningful sanctions – not even the second point, which ought to guarantee the bare minimum of regulated publishers; that they do what they’re told.
Points 3-5 also require external processes or action to trigger an investigation; limiting the ability of IPSO to proactively launch an investigation. It is not clear what kind of concern could be identified in an annual statement to provide grounds for an investigation in respect of the fourth point, given how little information is provided in such reports.
Publishers cannot intervene in the decision to launch a standards investigation; it is a decision
that can only be made by IPSO’s Board.
Publishers have six opportunities to intervene throughout the process; complainants have none (as conceded by IPSO below).
In order to carry out a standards investigation effectively, IPSO must engage with both the entity under investigation and those who have raised concerns. The reassessment identifies six areas, where it asserts publishers could “intervene” in the process of a standards investigation, which we have responded to below.
- At the commencement of an investigation IPSO will notify the Regulated Entity of the terms of reference and “will take into account any comments received in response before finalising the terms of reference” (Regulation 55). This corresponds to Regulation 42 original 2013 IPSO Regulations, which also set out a 14-day time limit for Regulated Entities to respond; this limit has been removed. It is not clear whether this serves to prolong or shorten the investigation process.
It is right that an entity under investigation has the opportunity to see and comment on the
terms of reference. Any changes to the terms of reference are a decision for IPSO’s Board.
- The Regulated Entity is invited to attend a meeting where they can make oral representations to the Investigation Panel (Regulation 59; previously Regulation 46).
It is right that an entity under investigation has the opportunity to make representations on its behalf.
- At any stage during the investigation the Regulated Entity can dispute “matters including the scope of the investigation or the need for documentary evidence” (Regulation 61; previously Regulation 48).
It is right that an entity under investigation has the opportunity to make representations on its behalf. The final decision is made by IPSO’s Board.
- The Investigation Panel provides a draft report to the Regulated Entity which then has 28 days to respond (Regulation 63; previously Regulation 50).
It is right that an entity under investigation has the opportunity to provide comments on the investigation report. Changes to the report must be agreed by the independent investigation panel.
- When a decision has been made the Regulated Entity can request that the decision be reviewed (Regulation 71; previously Regulation 53).
Opportunity for review is a proper part of any functioning, proper process. A request for review can only be made where there has been a substantial procedural flaw or the decision of IPSO’s Board to impose a sanction is manifestly unfair.
- The appointed Reviewer (previously Review Panel) will prepare a note of the decision and send it to the Regulated Entity, which has 14 days to comment on the draft (Regulation 76; previously Regulation 60).
It is right that the regulated entity is able to comment on any review.
There are many reasons why IPSO’s rules here are inappropriate:
- At none of these junctures are complainants or those affected, or the general public, invited to respond and participate. The process is lopsided; giving publishers opportunities to engage at every point, while the complainant and the public are kept in the dark.
- Several of these junctures for engagement from the entity are superfluous for a reasonable investigatory process, and just add unnecessary further opportunities for publishers to intervene.
- Publishers employ experienced lawyers to handle these sorts of matters, while the publishers themselves are far larger and more powerful than IPSO. Every caveat in the process, and every opportunity for publishers to intervene, is another opportunity for well-paid lawyers to find fault and resist any just result.
IPSO is confident that we have the required funding and resources in order to carry out a standards investigation independently and effectively.
Donald Trump claims to be confident that Mexico will pay for his wall. Declarations of confidence are no substitute for reality.
Any fines paid as a result of a standards investigation would be paid directly into the enforcement fund to be used for future standards investigations.
No fines have ever been paid. As above, conduct never appears to be serious enough to warrant a fine. Ringfencing funding in this way is meaningless if it never comes in.
We are proud to have a large and diverse membership: from the biggest national newspapers, almost all local newspapers, household-name and niche interest magazines, to small hyperlocal online-only publishers. These can be viewed on our website.
The vast majority of IPSO-member titles, especially among locals, are those owned by corporate behemoths. Few are independent publications. The number of publishers which are represented in IPSO’s membership is far smaller.
Membership of IPSO is open to all on fair, reasonable and non-discriminatory terms, regardless of sector. This includes those publishers that are “digital-native”.
Except, to become a member, a publisher must be a member of the RFC. Controlled by a politician and press executives, publishers with a commitment to freedom of expression would always be reticent to join the RFC.
In any case, when it comes to RFC membership, some publishers are more equal than others. The RFC somewhat arbitrarily categorizes publishers and has the power to set subscription fees, which ultimately affects what voting rights they have. The wealthiest have the biggest say – that does not represent “fair terms”.
In 2019 we signed up six new members, many of whom are online-only. We are satisfied that the existing membership structure is fair and functional, but do not rule out future changes to reflect the diversity of the industry that we regulate.
It is not IPSO’s choice – the RFC are in control.
Annual statements and compliance
IPSO requires the senior individual responsible for compliance to be named in a publisher’s annual statements which we publish on our website annually. Failure to name this individual would make a publisher non-complaint with the process.
By publishing annual statements on our website, we provide all the information in one place, in a way that is easily accessible to the public.
The requirements for annual statements have changed, as a result of our learning from administering the process for the last five years. We do not consider these changes a dilution. In previous years the statement requirements focussed on narrow aspects of good journalistic practice and compliance with the Code. We have broadened these requirements so that the annual statement looks more thoroughly at how publishers comply with the Code. We will continue to assess the statements rigorously and thoroughly and work to address any compliance failures identified through this process.
Under IPSO, reports on publishers’ code compliance are woefully inadequate. Loopholes in the complaints-handling process allow many different types of complaint to slip through the cracks and not even get counted.
IPSO has operated an arbitration scheme since 2016. In 2018 we introduced a new compulsory scheme. All IPSO’s national newspaper publishers [GR7] are members of the compulsory scheme, which means they must agree to arbitrate if a claim is made against them.
MailOnline are not covered. In any case, not a single arbitration case has yet been handled. There is a total lack of confidence in the system.
IPSO has agreed a five year budget with the Regulatory Funding Company to run to the end of 2024. The agreement makes provision for an annual review of IPSO’s budget to check whether any of the assumptions on which the five year budget was based have changed. This is the only sense in which the budget is annual.
Once the RFC has agreed the budget with IPSO it is for the RFC to decide the subscriptions it charges IPSO members in order to fund that budget.
A budget which is subject to review and change on an annual basis is an annual budget.
Further, the RFC retain the power to set an annual budget in any case in the body’s Articles of Association. It is not clear that the RFC cannot simply overrule the “five-year settlement” at will.