OPINION: If IPSO is a tough regulator, then why is it so soft on intrusions into grief and shock?

Professor Paul Wragg

IPSO should be applauded for its phenomenal success in convincing gullible politicians that the press is properly regulated. Recently, IPSO’s chair, Lord Faulks, speaking in the House of Lords (he is a politician, after all) embellished further to say that not only are the press ‘properly regulated’ but also ‘accountable’. This success is matched only by the press itself which has, it seems, convinced politicians and public alike that unwanted press attention is something that affects only the rich and famous or, as Paul Dacre had it, ‘the corrupt and the crooked’. Hacked Off’s latest campaign, on the devastating effects of intrusive grief reporting, reminds us that, actually, the press will ruin the life of anyone, rich or poor, known or unknown, to turn a quick profit. Sadly, this includes those at their lowest ebb, whose suffering is only heightened by ghoulish stories and headlines like ‘KILLED BY A YORKSHIRE PUD’, ‘SCIENTIST STABBED HIMSELF TO DEATH AFTER WORK ERROR’ or ‘SCHOOLBOY FOUND HANGED’.

No one should have to endure such callous, calculated press reporting, not least because the press, themselves, are obliged, under Clause 4, Editors’ Code of Practice, not to intrude upon grief and suffering. And yet they do. The scale of the problem can be seen in IPSO’s own statistics. Since its inception in 2014, and as of June 2022, IPSO has adjudicated on 257 complaints under Clause 4, which represents about 10% of all its adjudications to date. Complainants are not rich and famous, or crooked and corrupt, they are simply individuals whose misfortune it is to suffer unendurable loss. Why would a newspaper cause unnecessary distress to those already suffering the worst imaginable pain? Why would they write about individuals the public has never heard of? Because: grief sells newspapers’.

To add insult to injury, the chances of succeeding with a complaint under clause 4 are vanishingly small. Of those 257 complaints, only 7 were upheld. Seven. That’s less than 3%. You begin to see, then, why it is ludicrous to suggest that the press is ‘properly regulated’ and ‘accountable’ for the needless despair it inflicts on those suffering unimaginable loss. In this blogpost, I explore the reasons for this low percentage so as to argue that IPSO’s approach to clause 4 complaints is wrong. It should be upholding complaints at a much greater rate for the reasons I will outline. To give the blogpost focus, I will concentrate only on those complaints that relate to the free reporting of coroner’s inquests since this draws out the mistaken reasoning that, I say, clouds IPSO’s decision-making. This accounts for 96 of those 257 adjudications. Only three of these complaints was upheld (also 3%). 

Reason One: A resolved complaint cannot be a breach 

IPSO operates a strange rule that, unwittingly for sure, acts as something of a wheeze: if, during investigation, the newspaper resolves the complaint, to the complainant’s satisfaction, then IPSO concludes the investigation without ruling on breach. Naturally, resolutions are not an admission of culpability but nevertheless the rule is perplexing. Why, if IPSO is committed to being a tough regulator, that is prepared to fine newspapers for serious and systematic breaches of the code, would it let newspapers off the hook in these circumstances?

Remember, IPSO only commences an investigation if the newspaper denies culpability. Remember also that the adjudication process is slow. Hacked Off’s analysis of complaints in the calendar year 2020 showed that, on average, adjudication took around six months. So, newspapers subject complainants to this gruelling, arduous process, in which the complainant themselves bear all the evidential burden, only to offer to resolve matters at the eleventh hour. Imagine that you have lost your child in horrific circumstances, and are then wrongly accused by the Mail Online of causing his death. You complain to IPSO about the intense distress this has caused and five months later it concludes its investigation by noting that the publisher has agreed to make an unspecified contribution to a memorial garden. Despite the publisher admitting its wrongdoing and acknowledging the immense, unnecessary distress caused, IPSO decides that it has no determination to make. In what twisted sense is this proper regulation?

This wheeze bears upon the number of breaches. For, although there were only 3 complaints upheld (of the 96 we are examining), there were 21 resolutions in that period, which means that up to 24 complaints might have been upheld, taking the success rate from 3% to 25%. Suddenly, it becomes clear why it is in the newspaper’s best interests to deny culpability until the last moment and then offer a resolution so as to eliminate the possibility of tarnishing its record on breaches. As tricks go, it is as clever as it is cruel.

Reason Two: A confused understanding of private and public 

The second reason for the poor success rate is IPSO’s unsophisticated approach to the ‘publicness’ of coroner’s inquests. According to IPSO, newspapers are entitled to report on everything said at an inquest because they are ‘public hearings’. Consequently, IPSO says, ‘the information revealed during proceedings is therefore already in the public domain, and is not private to the family of the deceased.’ This reasoning relies upon false assumptions about the availability of coroner’s reports, which is then compounded by a category mistake on the nature of privacy. 

Coroner’s inquests are not ‘public’ in anything other than an especially narrow sense of that term. Inquests are open to those members of the public who can attend, physically. This is a highly limited number of people. Although coroners must keep a record of hearings, they are not published routinely. In fact, only in very limited circumstances will a coroner publish her findings, such as a death in custody. So, the idea that these findings are in the ‘public domain’ is nothing short of hyperbole. 

Allied to this is IPSO’s category mistake that privacy, conceptually, is nothing more than an antonym to public, such that something seen or heard by other people cannot be private. This, though, is not consistent with the law, which, as we know, recognises that the right to be free from intrusive newsgathering practices and from distressing privacy-invading publication survives publication. Accordingly, IPSO’s view that intimate messages of condolence posted on a Facebook wall showed that ‘the matter was already being discussed in the public domain by members of the community’ and, therefore, could not be private is hopelessly wrong. IPSO should not dismiss complaints, automatically, simply on the basis that the information was disclosed at an inquest – there is a qualitative and quantitative difference between revealing information discreetly to a handful of people at an inquest and publishing it to the world at large in lurid detail. If complaints about grief reporting were brought as misuse of private information claims, the court would draw a finer distinction based on such obvious discrepancies. There is no reason why IPSO cannot do the same. 

Reason Three: The covert Public Interest  exception 

Some clauses are subject to a public interest exception. This means that the relevant clause is not breached if the invasion is justified by some larger public interest. This approach mirrors legal doctrine. For example, a story about Boris Johnson’s alleged love-child was in the public interest because recklessness in his private life spoke to his credibility as a politician. 

Although clause 4 is not subject to a public interest exception, it does contain the caveat that the clause ‘should not restrict the right to report legal proceedings’. IPSO reads this generously, as if it were a public interest exception. Any and all of an inquest’s findings can be published, according to IPSO, even if that selectivity is misleading and unbalanced, due to the principle of open justice. IPSO does not expand on what it understands open justice to mean, which is regrettable given that its conventional treatment is very different to that which IPSO wishes to defend. Put simply, open justice is about ensuring justice is administered transparently as a means of checking on (ab)uses of power. Open justice is a public interest matter, but these ideas are very different to matters that are simply interesting to the public because they, for example, assuage public curiosity. IPSO’s reasoning, though, is not sufficiently robust or sophisticated to demonstrate that it recognises the difference. So when it says grief reporting ‘play[s] an important role in informing readers about evidence heard during proceedings’ or that there is a public interest in reporting on a death, the circumstances of which affect communities’ it does not clearly separate fascination from functionality, curiosity from citizenry, entertainment from education. It does not show why it is in the public interest to know of this coroner’s inquest.

Open justice is vital, of course, but the situation of coroners is very different to judges. Coroners are not the ultimate bearers of coercive power, as judges are: they cannot incarcerate nor issue fines. They have investigative powers but they cannot make findings of guilt or liability. At most, the coroner’s findings are but an intermediate step in the process of justice. This is not to say that the open justice principle has no bearing on the coroner’s office – there will be situations in which families are grateful for the publicity raised through sympathetic grief reporting. What we cannot say is that open justice is always at stake, for the claim gains its greatest purchase only in those limited circumstances where the newspaper seeks to hold the coroner to account – and none of 96 complaints involved that scenario. 

Time for change

IPSO is convinced that journalists have a right to report the fact of a person’s death, even if surviving family members would prefer for there to be no reporting’ because ‘the fact of someone’s death is not private, and there is a public interest in reporting on death’.

I take issue with every word of these statements:

  1. The assertion of a rights-claim assumes that either there is no corresponding right (such that there is nothing to prevent grief reporting) or, instead, that there is (a right) but it is trumped by the greater right of public interest journalism. 
  2. The denial of any corresponding privacy right is premised on two false assumptions: a) that coroner’s findings are in the public domain routinely – this is incorrect: usually, they are not published or publicly available (except to those in physical attendance); b) that something said ‘in public’ cannot be private – this is wrong as a matter of law. 
  3. Although it is a question of fact, grief reporting is more than capable of engaging the right to privacy should publication cause distress. IPSO realises that unwanted grief reporting has this effect because it says, in its general guidance: IPSO recognises that media attention during a court case or inquest can be distressing to the families and friends of those involved’. Occasionally, it is sympathetic to complainants: ‘inquests can be very upsetting for the families of the deceased. The proceedings necessarily involve revisiting the events leading up to a person’s death in detail, and may reveal information of which family members had previously been unaware, or which family members would otherwise consider to be extremely private.’ What it does not recognise, although it sees the problem, is that sensitive information is, by its nature, likely to be private. Its attitude, though, is captured by this non-sensical entry in the Editors’ Codebook: Clause 4 does not mean newspapers should not publish sensitive material; it means that they should not do so insensitively.’
  4. Clause 4 is not subject to the public interest exception. The assertion of some unspecified, general public interest in grief reporting is fallacious.
  5. Clause 4 contains a limited exception relating to the reporting of legal proceedings. This is justified, by IPSO, as an application of the open justice principle. That principle, though, only has real bite when used to hold power to account. Typical grief reporting, though, serves no such purpose – it documents the tragic circumstances of a person’s life and death; it has no pretensions to serve a public watchdog function in speaking truth to power. 
  6. In any event, the open justice argument is misguided – the coroner’s powers are incomparable to those of a judge. The coroner’s findings are an intermediate step in the process of justice and not an end itself as the court’s powers are. 
  7. Accordingly, when complaints under Clause 4 are adjudicated upon IPSO could – and should- consider ..
    • The fact, extent, and nature of coverage of sensitive information.
    • The evidence of the complainants concerning the distress caused.
    • Once satisfied that the information disclosed contains sensitive information (and is not simply the report of the bare fact of death) which causes distress, then it should consider:
    • Whether the open justice principle is at stake on the facts of the inquest, such that the process itself is being held to account.
    • If, and only if, the information disclosed a) engages the public watchdog function and b) does so in a manner proportionate to the impact on private and family life, then it should dismiss the complaint. Otherwise, it should be upheld.
    • Even if the complaint is resolved to the complainant’s satisfaction, there is a public interest in holding the press accountable for breaches of the code. This is meant to be IPSO’s function. It should reach a conclusion on breaches in all adjudications and not simply those that are unresolved between the parties. Only then can it hold the press accountable for its wrongdoing. 

Paul Wragg is a Professor of Media Law at University of Leeds and Hacked Off Board Member 

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