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October 26, 2016updated 02 Nov 2016 10:28am

Royal Charter-backed press regulation differs little from IPSO – but the state should not force publishers into it

By Dominic Ponsford

When it comes to their main complaints-handling functions there is a barely a cigarette paper’s worth of difference between rival press regulators Impress and IPSO.

At present they both follow exactly the same Editors’ Code, they both have the power to compel member publications to publish critical adjudications and they can both (in extreme circumstances) launch a standards investigation and issue fines of up to £1m.

Whereas IPSO is funded by its members (the big publishers), Impress is funded by the Alexander Mosley Charitable Trust (a charity set up by press reform campaign Max Mosley).

Both regulators claim their independence is guaranteed for the next four years at least because their funding agreements are in place and agreed.

Impress has been told by the Press Recognition Panel (PRP) that it meets the Leveson criteria as set out in the Parliament-backed Royal Charter on press regulation.

Last week IPSO’s own external review, carried out by a retired senior civil servant, found that it also was largely compliant with the Leveson report recommendations.

If anything, IPSO has a little more power over its members because it compels them to be bound into via a five-year contract.

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Both regulators operate a whistleblowers ‘hotline.

The one major difference between the two is in the provision of a libel disputes arbitration scheme.

The IPSO scheme is costly for claimants (over £3,000) and optional for publishers. In practice, it looks likely that no-one will use it and is probably overly weighted in favour of publishers.

The Impress scheme is free for claimants and more costly for publishers (up to £6,500 in fees alone). It looks likely to me that it could lead to a costly increase in the number of libel and privacy payouts for member publishers.

For the vast majority of publishers who aren’t members of Impress the impact of the Recognition Panel decision is that it makes it possible for this government (or a future one) to commence Section 40 of the Crime and Courts Act 2013.

This states that publishers who aren’t members of a Royal Charter-compliant press regulator (as judged by the PRP) must pay both sides’ costs in privacy and libel disputes that they win.

The current Government has indicated that it is not keen to commence Section 40, but it only has a majority of 16. The House of Lords could well force through legislation compelling the Commons to commence Section 40.

It is no exaggeration to state that the enaction of Section 40 would threaten many news publishers with oblivion.

The most serious legal claim I’ve seen at Press Gazette came from a publisher who objected to us mocking his appearance on multiple pages of one of his own magazines. He claimed £50,000 for breach of copyright.

Our advice was that we would be likely to win at court (but still be left substantially out of pocket) so we were able to negotiate the claimant down to settle for an apology and a retraction.

If Section 40 was commenced and we were to face a future such claim we might well have to pay it. Otherwise the claimant would take us to court secure in the knowledge that he had nothing to lose.

In fact we would certainly face many more legal claims from claimants with unwinnable cases who could hold us to ransome with the support of no win, no fee lawyers.

If Section 40 is commenced (and stands up to the inevitable legal challenge) it is difficult to see how news publishers who face frequent libel and privacy claims could do anything other than make IPSO fully Leveson-compliant PDQ or else sign up to Impress.

In practical terms I have no particular objection to Royal Charter-backed press regulation.

But in terms of principle I agree with those who feel that a Government which forces publishers into a state-backed regulator with a gun to their heads is exercising state control of the press.

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