Will the new arbitration process, IPSO facto, promote voluntary press regulation?

Set up in the aftermath of the Leveson Inquiry, the Independent Press Standards Organisation now has responsibility for ensuring that over 1500 print and 1100 online titles abide by the rules of the Editors' Code of Practice. However, IPSO has much to prove if its critics are to be persuaded that a regulator funded by its members who choose voluntarily to subscribe by contract to its authority, has real teeth.

What is IPSO?

The Leveson Inquiry was set up in 2011 to investigate the phone hacking scandal that seriously damaged the reputation of British journalism and public faith in it. The Independent Press Standards Organisation (IPSO) was created as a result of its findings and replaced the Press Complaints Commission as the press regulator in the United Kingdom. The Press Complaints Commission was found during the Leveson Inquiry to be unfit for purpose due to insufficient independence from the industry it was regulating and the paucity of sanctions to hold over miscreants.

Regulatory gaps – an inevitable problem of a voluntary system

Although not entirely Leveson-compliant, IPSO regulates the majority of UK news publications, including The Sun, The Times, The Daily Mirror, The Daily Express, The Daily Mail (and currently their online and Sunday titles) and the Spectator. However, a number of other, prominent publications, albeit sometimes with a smaller circulation, such as the Guardian, the Financial Times, the Evening Standard and the Independent, have decided to continue with their own self-regulation processes and internal complaints mechanisms, remaining distinct from the oversight of IPSO. The Financial Times was in favour of self-regulation, arguing that, as a publication with international reach, it could not put itself at the mercy of a national regulator in any particular jurisdiction.

It was deemed necessary for membership of IPSO to be voluntary in order to avoid concerns around censorship. It is essential that IPSO strikes the right balance between satisfying public concerns for rigorous monitoring and accountability of press behaviour on the one hand, and trampling on free speech on the other. If IPSO fails in either respect it will provide its current members with a reason to pursue self-regulation instead of relying upon a third party.

Overview of powers

IPSO has adopted a broad remit. It handles complaints from those who believe themselves to have been subjected to undue press intrusion, undertakes monitoring work and conducts its own investigations of the press. IPSO regulates articles pre and post-publication. It also provides non-harassment advise to individuals who do not want to be bothered by the press and can send advisory notices to the organisations that it regulates, notifying them of this request. With regards to IPSO's current complaints process, if the complaint has not first been made to the relevant press organisation, IPSO will generally forward this to the relevant editor in the first instance. However, if this approach does not reach a satisfactory outcome, IPSO will investigate and can act as a mediator in the dispute. It can adjudicate on whether the publisher has breached the Editors' Code. Complaints should be made within four months of the publication of the article or the relevant behaviour.

IPSO's most prominent power following a breach of the Editors' Code is arguably its ability to force its members to publish corrections or adjudications, including, if appropriate, forcing them to publish a notice on the newspaper's front page. If IPSO carries out an investigation into serious standards failings, it can also levy fines of up to £1 million in cases of serious wrongdoing. IPSO also operates a confidential, whistleblowing helpline for journalists who feel that they are being made to act against the Editors' Code. In addition, there is a 24-hour anti-harassment advice line for people who feel they are being harassed by journalists.

Taking Action on non-compliance with the Editors' Code

IPSO has intervened in a significant number of cases including high profile complaints, imposing sanctions on those newspapers failing to abide by the Editors' Code. McKenna v The Sun (2 June 2016) concerned an article entitled "Paul McKenna’s Brahms ‘n hypnotist: Telly star refused alcohol on BA flight". The piece claimed that passengers had reported McKenna "staggering around the cabin" and spilling his drink on a passenger. Mr McKenna said he had been unwell on the flight and not drunk. The Sun removed the online article and published a correction and apology in the newspaper and online. The complaint was received by IPSO on 8 February 2016, and a decision was issued on 2 June 2016.

The Daily Express recently defended a complaint concerning the accuracy of their article entitled"Europe's leaders have no plan to cut immigration", published on 18 January 2016 in advance of the UK's EU Referendum. The complaint made to IPSO argued that "it was inaccurate to report that 228,000 EU citizens born outside the EU gained access to Britain on an annual basis". The Daily Express accepted that the statement was inaccurate and amended it to say that 228,000 was the total known number of non-EU migrants that entered with European passports and not an annual figure. IPSO required the newspaper to publish a correction in its "Amplifications and Clarifications" column, saying that 228,000 should be taken to mean the total number and not the annual figure. More examples of recent cases can be found on the IPSO website.

The new, unpublished dispute resolution process: cutting costs for litigants

IPSO is currently developing a low-cost arbitration scheme in line with its wider strategic goals that would aid members of the public seeking to make legal claims against the press. A pilot arbitration scheme is expected to commence this summer. This new scheme was recommended by Leveson, stating within recommendation 22 that:

"The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious)."

Potential claims considered by IPSO for arbitration, will arise from e.g. allegations of libel, misuse of private information, breach of confidence, malicious falsehood, harassment or breach of data protection, in relation to a regulated press organisation. The scheme will aim to act as an alternative dispute resolution process, avoiding more expensive litigation. With this sizable addition to its role and powers on the way, IPSO may be about to find the relevance and credibility that it has been seeking since its establishment two years ago. If the arbitration process proves successful, the cost to individuals of resolving a dispute with a news publication is likely to be substantially reduced; certainly a resolution will now be more accessible to those who would not have the option of funding litigation against the press. In 2015 ISPO Chairman, Sir Alan Moses, stated:

“Arbitration is not just about reducing costs and delays associated with litigation…it is about widening access to justice for members of the public….”

Within the next few years it is likely to become apparent whether IPSO has earned the respect of the public and its regulated members in a way that helps to restore faith in the integrity of the British press.