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Law Column: Two stand-out developments at IPSO

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It’s been a busy few weeks for the Independent Press Standards Organisation and as ever, its activities and announcements will, sooner or later, have a direct effect on journalists and their day to day work.

A campaign to counter fake news has begun; the President of the Royal Statistical Society gave the annual IPSO lecture (and what an unexpectedly brilliant and funny presentation that turned out to be); and in conjunction with The Samaritans, journalists are being given guidance on how to produce safe and informative coverage of suicide and self-harm.

But from a legal perspective, there have been two stand-out developments.

First was the decision by Mr. Justice Warby to dismiss an application for Judicial Review brought by a Jonathon Coulter against IPSO.  Mr. Coulter wanted the High Court to set aside a decision by IPSO’s Complaints Committee and Independent Reviewer.  As ever, the background facts are complicated, but essentially, Mr. Coulter went to the High Court after IPSO rejected a complaint against the Sunday Times over its reporting of a meeting at the House of Lords to launch what was described in Court as the second phase of the “Balfour Apology Campaign”.

The application was dismissed.  The Court held that IPSO’s decisions (and those of the Independent Reviewer) were rational, did not breach any of its duties of enquiry, and were lawful.

In one sense, this is not a surprising outcome.  It would have been shocking had the Court decided that IPSO’s procedures were not rational, or had breached the normal rules of fairness and proper investigation.

For journalists, the decision means they know that if their work is to be investigated by IPSO, they can be sure (as can complainants), that the issues will be looked into properly, carefully, and fairly.

But to the legal eye, it is striking that IPSO did not dispute that its decisions could be subject to a Judicial Review.  Judicial Reviews can only be brought against a body “which exercises a public function”.  No doubt there were good reasons why IPSO made this concession, though in the end, nothing turned on it.  The Judge concluded that he did not need to decide whether IPSO performs a public function, and indeed, he went so far as to say that on this occasion, “it is better not to do so”.

However, he concluded that if another Judicial Review is brought against IPSO, and the parties themselves do not contest the Court’s jurisdiction, nevertheless, there should be “a full adversarial examination of the question”.

So it looks as though this might well not be the end of the debate as to whether the regulator exercises a public function.  Certainly, it seems that Mr. Justice Warby thinks a fuller investigation is appropriate.

The second legal development, which has the potential to affect every journalist and editor whose employer is signed up to IPSO, was the announcement that it is creating a compulsory version of its low cost arbitration scheme.

It’s fair to say that there has not been much of a take-up of previous versions of the arbitration scheme.  However, IPSO clearly wants this to change, and in its own words: “this will mean that someone who has a genuine claim against a newspaper who could have gone to court (for example for libel, invasion of privacy, data protection or harassment) can ask for arbitration of their claim and the newspaper cannot refuse”.

And last Friday, IPSO announced that the scheme will cover national newspapers published by News UK, Trinity Mirror, Associated, Telegraph, and Northern and Shell, a total of 15 titles in all.  It seems regional and local papers are not be part of the compulsory scheme, though perhaps they will follow suit in due course.

In his Report, Sir Brian Leveson stressed the importance of the public having access to a low-cost compensation scheme, and so avoid the expense of court and legal fees.

Despite complaints from IPSO’s critics, the cap on damages £60,000 under the new scheme (in contrast the theoretical maximum libel damages that from a successful High Court claim of about £300,000), is at the upper end of most libel settlements and awards.  It feels about right for the vast majority of claims.

But the biggest advantage for both complainants and publishers is that successful parties can only claim a maximum of £10,000 in costs.  This rule is clearly designed to ensure that Leveson’s call for low cost arbitration is just that – low cost.  It will prevent excessive legal costs being run up on either side, and prevent cases where the damages are dwarfed by the costs.

One of the most notorious examples still remains the case of the MP who settled his libel case against a publisher for £5,000 plus costs, only for his lawyers to demand £345,000 in costs.  Not even IPSO’s sternest critic could justify that kind of abuse of the legal process.

So IPSO’s arbitration scheme is not only another step down the Leveson compliance road, but it will also provide financial certainty to both complainant and publisher, come what may.

And for journalists who continue to work to the highest standards in a harsh economic climate, certainty as to the cost of a legal complaint is something to be welcomed.

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