Where are we with the story of press regulation?

Senior associate Michael Patrick and associate Jennifer Agate of Farrer & Co update us on the story so far in relation to press regulation.

What impact is the Independent Press Standards Organisation (IPSO) having on protecting both journalists and the public?

In practical terms little has changed. The new regulator has the power to impose stronger sanctions on the media including fines of up to £1m. However, IPSO chair Sir Alan Moses has publicly stated that he does not envisage that these powers will be fully used. To date, there have been no fines. On a practical level, IPSO is based in the same offices as the Press Complaints Commission (PCC), employs many of the same staff and even holds the same company number. This has led to inevitable criticism that IPSO is simply the PCC under a different name.

One important distinction is that unlike the PCC, IPSO will consider complaints from third parties, not simply those directly affected by the publication of a story. IPSO’s first major test came in September 2014 when MP Mark Pritchard filed a complaint against the Sunday Mirror in relation to entrapment and the ‘sex sting’ which lead to the resignation of fellow Conservative MP Brooks Newman.

The complaint was subsequently withdrawn after Mr Pritchard reached an ‘amicable settlement’ with the Mirror. Under the old PCC regime, this would almost certainly have been the end of the matter. However, Sir Alan Moses and IPSO have made it clear that they intend to pursue an inquiry regardless, and have further stated that they would have pursued the investigation whether or not a complaint had been made. That being said, we are now several months on and there is no sign of that investigation concluding.

Who has signed up to IPSO and who hasn’t?

As at February 2015, over 1,400 national and regional print titles and 1,000 online titles had signed up to be regulated by IPSO, including titles published by Associated Newspapers, News International, the Telegraph Group, Bauer, Conde Nast and IPC. A full list of titles regulated by IPSO is available on its website.

Publishers including the Guardian, the Independent, the Financial Times, the London Evening Standard and Private Eye have declined to sign up.

Who is paying for IPSO?

The regulated companies themselves. IPSO is funded by the Regulatory Funding Company (RFC), via a levy raised on the newspaper and magazine publishers.

Who is controlling IPSO and the RFC?

IPSO is overseen by a board of 12 members (including the chairman), of which the majority of seven members are independent and have no connections with the newspaper and magazines industries. The remaining five members are appointed from the newspaper and magazine industries.

The current chair of IPSO is Sir Alan Moses, a former Court of Appeal judge.

The RFC is overseen by a board comprised of members from magazines and regional and national newspapers. The current chair is Paul Vickers, secretary and group legal director of Trinity Mirror.

It is intended that the two boards will operate independently of each other and thereby ensure the independence of IPSO.

What’s the current state of play with the Royal Charter framework?

The Royal Charter on self-regulation of the press was sealed by Her Majesty Queen Elizabeth II on 30 October 2013.

What’s the role of the Press Recognition Panel (PRP) under the terms of the Royal Charter?

The PRP was established by the Royal Charter as an independent body intended to consider whether any press regulators meet the recognition criteria recommended by the Leveson Report and set out within the Royal Charter.

The PRP was finally constituted on 3 November 2014 (over a year after the Royal Charter was sealed) and is currently chaired by barrister Dr David Wolfe.

What’s the position on any press self-regulators?

IPSO does not meet the recognition criteria and its chairman, Sir Alan Moses, has announced that it does not wish to seek recognition, citing ‘theological objection’ to the Royal Charter as the reason of the members.

An alternative regulator, ‘IMPRESS’, is in the process of being established, funded by grants and donations. It is currently unclear whether IMPRESS will meet the recognition criteria or indeed whether any media organisations will sign up to it.

How will the new rules for legal costs contained within the Crime and Courts Act 2003 (CCA 2013) play out?

CCA 2013, ss 3442 established financial incentives for publishers to sign up to a regulator meeting the requirements of the Royal Charter framework. Specifically, CCA 2013 provides protection to publishers who have signed up to a qualifying regulator in certain legal claims (eg defamation and privacy cases), in particular from paying all of a claimant’s legal costs if they lose and allowing exemplary damages to be awarded against those who did not do so.

CCA 2013 provides for these provisions to come into force one year after the establishment of a recognition body under the Royal Charter, so November 2015, being a year after the establishment of the PRP.

As IPSO has not met the requirements of the Royal Charter framework, publishers who have signed up to the regulator would not benefit from the costs provisions contained within CCA 2013.

Will the new regime for press self-regulation be effective?

The effectiveness of the new regime remains to be seen. Although IPSO have made a number of rulings since it was set up in September 2014, the majority of complaints have not been upheld and there have been no significant decision announced to date. As we state above, IPSO’s ruling on the Sunday Mirror’s investigation into Brooks Newmark MP is likely to be the first indicator as to whether IPSO will be a more vigorous regulator than its predecessor. If it is seen to fail its first test, IPSO may find it difficult to gain credibility. If, however, it is seen to have acted firmly and independently, it will have set off in establishing itself as a regulator worthy of the name.

What is the practical significance for lawyers and their various clients such as publishers or those bringing claims relating to intrusion of privacy or defamation against a publisher?

On a practical level, publishers who have signed up to IPSO are required to comply with a number of contractual provisions contained in the scheme membership agreement, including the establishment of an internal complaints procedure. Before bringing a complaint to IPSO, there is a requirement on members of the public (and their legal teams) to go through those complaint mechanisms. This is an extra hurdle for complaints and may only encourage them to seek the advice of lawyers at an earlier stage to help them navigate through this process.

It is worth noting that the more significant change in publishing law since the Leveson Inquiry has been the implementation of the Defamation Act 2013 (DA 2013) (in force since 1 January 2014). DA 2013 established that a statement will only be defamatory where it actually causes, or is likely to cause, ‘serious harm’. To date this has proved difficult for some claimants in cases where previously they would have had no trouble establishing a cause of action.

Interviewed by Catherine Baksi.

‘The views expressed by our interviewees are not necessarily those of the proprietor.’

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