by Brian Cathcart
For the fourth time since 2011 the owners of the big national press groups have published a new proposal for press self-regulation – and for the fourth time they have repeated what Lord Justice Leveson damningly called their ‘pattern of cosmetic reform’. Once again they talk the talk of ‘independent, effective self-regulation’, but the detail shows they still have no intention of walking that walk.
Here are 10 of the ways in which the latest scheme, cosmetically labelled the ‘Independent Press Standards Organisation’ (IPSO), falls short of what the Leveson Report and Parliament’s 18 March Royal Charter require.
1. IPSO would not be independent but would clearly be under the thumb of the big newspaper proprietors, just as the PCC was.
PressBoF is the committee dominated by big proprietors that controlled the old Press Complaints Commission (PCC). PressBoF was condemned in the Leveson report for starving the PCC of funds and by implication for operating the self-regulator for the benefit of the press and not the public. The proprietors now plan to reconstitute PressBoF as the Regulatory Funding Committee (RFC), once again with the biggest national newspaper groups in charge. The RFC would hold the purse strings of IPSO and its investigations arm, set the budget and board pay rates, have influence or a veto on key appointments and determine the rules for fines. (These powers are sprinkled through the Articles of Association and the Contract.) So just as PressBoF secretly ran the PCC in its own interests, so the RFC would maintain an iron grip on IPSO.
2. IPSO would not be subject to periodic inspection by an independent external body charged with protecting the interests of the public and ensuring basic regulatory standards are met.
At the heart of the Leveson scheme is the idea that, while the press regulates itself, its regulator must conform to certain basic standards. For that reason the judge proposed an independent ‘recognition body’ which would approve the regulator at the outset and then – to prevent slippage – carry out inspections at regular intervals after that. This scheme, designed to protect standards in journalism and at the same time safeguard the public from press abuses, is embodied in Parliament’s Royal Charter of 18 March, along with a clear list of essential criteria for a regulator (see Schedule 3). IPSO does not meet the criteria for independence and effectiveness and the press proprietors have made clear that they do not intend to put it forward for inspection by the recognition body as proposed by Leveson and endorsed in Parliament’s Charter. (In a separate initiative, PressBoF has even made a bid for ownership of the inspecting body, even though it is explicitly supposed to act on behalf of the public, not the proprietors.)
3. IPSO would not provide wronged members of the public with a quick arbitration service (unless proprietors were satisfied such a system suited their own interests).
Leveson insisted on a quick, simple arbitration service, free to access, for people who believe newspapers have breached their legal rights, and the proprietors actually advocated such a service at the Leveson Inquiry. But under the IPSO scheme all that is promised is a trial scheme, and after that trial it would not be the public who would get to choose whether it was a success or a failure but the proprietors. In other words if they felt ordinary citizens are getting their way too much, they could pull the plug (Section 5). Without arbitration, ordinary people will only be able to challenge newspapers about serious matters such as libel and breaches of privacy by going to court, with all the costs and stress that that entails.
4. IPSO would find it extremely hard to complete an effective investigation of an errant newspaper if that newspaper chose to be obstructive.
Everybody agreed at the Leveson Inquiry that the PCC should have had more investigatory powers because it had proved itself shockingly unable to establish the truth about phone hacking. The IPSO plan for investigations might look plausible at first sight, but built into it are no fewer than seven clear opportunities for a newspaper under investigation to obstruct, delay and challenge any investigators. (See regulations 39-65) Given what we know of the behaviour of national newspapers under any kind of investigation, we can be sure those opportunities would invariably be exploited to the point where clear findings were either delayed for years or rendered impossible. Further, the budget for investigations would be held by the powerful proprietors‘ body, the RFC (see point 1), which would thus be in a position to limit funding. See par 10.2.
5. Despite talk of £1m fines, IPSO would probably never be able to impose meaningful sanctions on newspapers.
IPSO would only be allowed to impose fines of any size on newspapers if those papers had already been subject to a full investigation and found seriously at fault. (Par 5.5) However, if (see point 4) investigations are rendered difficult to the point of near-impossibility, if follows that fines could not be imposed. So although proprietors frequently refer to million-pound fines as if they might actually happen, there is almost no chance that they will. And just in case, the IPSO rules on imposing and calculating fines will be written by the proprietors’ body – the RFC again – which would mainly represent the newspapers on which they might conceivably be imposed. Nor is a £1m fine mathematically possible for most papers because the cap on fines is either 1 per cent of the publication’s turnover or £1m – whichever is lower. For most newspapers the maximum is therefore far less than £1m.
6. IPSO would make it even harder than it is now for ordinary people to make formal complaints about inaccuracy, unfairness or intrusion into grief.
The PCC was criticised for rejecting too many complaints by members of the public, but IPSO would have the power to reject more complaints than the PCC ever did. And when complaints are accepted for consideration, the process is extremely long and cumbersome, with many opportunities for the news publisher to obstruct and delay. The rejection problem is especially true of complaints by representative groups or third parties. This would include cases of general inaccuracy about, say, residents of a particular town, or Muslims, or employees of a company, and cases where a person written about was too frightened to complain on his or her own account. Under Parliament’s Royal Charter a self-regulator is able to reject a group complaint if, in its judgement, the complaint is an attempt to argue a point of opinion or to lobby, or simply if it is deemed unjustified, so abuse of the system by complainants would be difficult. (Schedule 3, clause 11). But that is not enough for the proprietors. In their IPSO scheme an alleged breach must also be ‘significant‘ and be of ‘substantial public interest’ before a representative group complaint is dealt with. (Clause 8). This may well amount to a total block on complaints by representative groups, in turn making it impossible to challenge newspapers on general inaccuracies in this category. Even the PCC did not set such high hurdles for complainants.
7. When IPSO agreed to accept a complaint, it would be heard by a committee whose members had all been vetted by proprietors, with press representatives able to block any decisions they didn’t like.
This committee, which is crucial to the fair enforcement of the code of standards, will have 12 members: the chair, six ‘independent’ people and five press representatives. But all 12 are only chosen after ‘taking into account the views ‘of the proprietors’ body, the RFC, (Rule 33) (Par 27.4) and all decisions of the committee have to be made by consensus – i.e. the press representatives could block a finding even if it was agreed by a simple majority. (Par 27.5)
8. IPSO could not prevent editors burying corrections on little-read back pages, even if the original mistake was made in a front-page headline.
A common refrain at the Leveson Inquiry was ‘Front-page apologies for front-page libels’. Leveson said that to be effective a self-regulator must have the ultimate power to ‘direct‘ the placing of corrections and apologies (Recommendations 15 and 16). IPSO would not have that explicit power to direct, and without it would certainly struggle to get its way in the teeth of resistance by editors. The word “apology” only occurs in the mediation stage section of the regulations (Paras 14-18). It does not appear in the succeeding “determination” or “remedial action” stage section of the regulations (paras 19-23).
9. IPSO’s code of standards would reflect the interests and views of editors – not of the public or working journalists.
The principal job of the new self-regulator will be to enforce the new code of standards, so (as Lord Justice Leveson pointed out) it is essential that the code be a good one, reflecting both the realities of the industry and the needs of the public. Parliament’s Royal Charter provides for a code committee with equal numbers of editors, working journalists and lay people. (Schedule 3, clause 7) The IPSO plan is not explicit, but all of the proprietors‘ previous schemes have involved a plain majority of editors over lay people, usually of 12 to 5. This means that editors would have control, as they always have in the past.
10. IPSO would be open to political manipulation because working politicians could be appointed to senior positions.
As in every previous proposal they have put forward, the proprietors insist in the IPSO scheme that party politicians such the current PressBoF chair, Lord Guy Black – a working Conservative peer who regularly votes in the Lords – must be eligible for appointment, even though this would obviously compromise the political independence of the self-regulator. See for example, here (clause 22.1.4), where several kinds of politicians are excluded, but not peers. (Four of the five PCC chairs were working political peers, three of them Conservatives like Lord Black.)
Proprietors claim that IPSO is ‘the regulator called for by Lord Justice Leveson’ even though they know exactly how closely it resembles the ‘Hunt-Black Plan’ they put to the Leveson Inquiry last year – and that plan was firmly rejected by both the judge and David Cameron (pp66-7) and here. So it would be more accurate to call IPSO ‘the new regulator for the press that has already been condemned as inadequate by Lord Justice Leveson and the Prime Minister’.
Professor Brian Cathcart is Executive Director, Hacked Off