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ASA Ruling on Free Speech Network

Free Speech Network


Date:

25 June 2014

Media:

National press

Sector:

Non-commercial

Number of complaints:

3

Complaint Ref:

A13-248849

Background

Summary of Council decision:

Four issues were investigated, of which one was Upheld and three were Not upheld.

Ad

A press ad for the Independent Press Standards Organisation (IPSO), published 25 October in The Times, was headlined “READY TO GO: A TOUGH NEW REGULATOR FOR THE PRESS”. Text stated “Today sees the launch of a tough new regulator for the press - the toughest in the Western world. The new Independent Press Standards Organisation (IPSO) will be up and running early next year, and will deliver all the key elements Lord Justice Leveson called for in his report. It will guarantee the British public enjoy the standard of journalism they deserve. And it will ensure Britain remains not just the birthplace, but the home of free speech. This is how it works: …”. The ad listed seven subheadings: “TOUGH SANCTIONS ... UPFRONT CORRECTIONS ... INVESTIGATIVE POWERS ... GENUINE INDEPENDENCE ... NO COST TO THE PUBLIC ... THE SUPPORT OF THE NEWSPAPER AND MAGAZINE INDUSTRY ... FREE SPEECH GUARANTEED”, with additional information provided under each one.

Text under the subheading “GENUINE INDEPENDENCE” stated “The Board of IPSO will have a majority of independent members and an independent chair, chosen in a transparent and open process”.

Text under the subheading “FREE SPEECH GUARANTEED” stated “Politicians are trying to force the press to sign up to a royal charter written by politicians, imposed by politicians and controlled by politicians. IPSO is entirely independent of all political parties”.

Issue

The Media Standards Trust (MST) and two members of the public objected to the ad. They challenged whether:

1. the claim “The new Independent Press Standards organisation ... will deliver all the key elements Lord Justice Leveson called for in his report” was misleading and could be substantiated, because they maintained there are a number of elements in the report which IPSO would not deliver;

2. the claim “GENUINE INDEPENDENCE” was misleading and could be substantiated, because MST maintained IPSO was not entirely independent of all political parties, and MST and the two members of the public maintained it was not independent of the newspaper industry;

3. the claim “Politicians are trying to force the press to sign up to a royal charter” was misleading, because the Royal Charter system was voluntary; and

4. the claim “Politicians are trying to force the press to sign up to a royal charter ... controlled by politicians” was misleading, because politicians were explicitly excluded from the recognition body that was set up by the Royal Charter.

CAP Code (Edition 12)

Response

The Free Speech Network, which comprised UK, European and global newspaper, magazine, print and online publishers, editors and other groups who shared concerns over protecting freedom of expression against threats to introduce a statutory backstop to press regulation, confirmed they had placed the ad to announce the launch of the IPSO. They stated the Free Speech Network was a separate body to IPSO, which was not established at the time of the ad’s publication.

They provided information about the background to the ad, namely that Lord Justice Leveson had been appointed to lead an inquiry into the press in July 2011 and had published his report on the inquiry in November 2012, which had included numerous suggestions and recommendations in respect of press regulation. They stated that, following the publication of his report, two principal rival schemes had been proposed in respect of regulation of the press: a self-regulatory body, IPSO, as proposed by the newspaper and magazine industry to address Lord Justice Leveson’s recommendations; and a Royal Charter drawn up by the main political parties and the lobby group Hacked Off. Free Speech Network stated that, as far as they were aware, no newspaper or magazine had stated it would join a regulator operating under the rules of that charter.

They stated that the structure of the press industry’s scheme was finalised in October 2013 and the ad was published to announce IPSO’s launch. The ad was a one-off ad and was not part of an ongoing repeat ad campaign. They stated that publishers representing more than 90% of the national press and the vast majority of the regional press had signed contracts with IPSO, binding themselves to its scheme and regulations.

1. Free Speech Network said the ad stated that IPSO would “deliver all the key elements Lord Justice Leveson called for in his report” and highlighted the term “key”. They stated that the ad did not state “deliver all the elements” which Lord Justice Leveson had called for. They stated that “key” was not a categorisation used by Lord Justice Leveson, and, rather, Lord Justice Leveson had set out numerous recommendations and suggestions for a new regulator in his 2000-page report and had produced a set of 92 recommendations in an Executive Summary.

Given the use of the qualifying term ‘key’, they considered that the claim could not be interpreted on a wider basis, namely that IPSO would deliver every aspect of every recommendation and suggestion in the 2000-page report. They considered that the ad prominently set out what Free Speech Network considered the key elements to be, namely: “tough sanctions”, “upfront corrections”, “investigative powers”, “genuine independence”, “no cost to the public”, “the support of the newspaper and magazine industry” and “free speech guaranteed”. They considered that readers would not need to seek a deeper interpretation of the meaning of the “key elements”, as it was set out in the context of the ad itself.

They did not consider that the ad suggested that Lord Justice Leveson had expressly set out “key” elements in his report and did not consider that readers would reasonably assume that from the wording of the ad. They pointed out that the ad stated “This is how it works” and listed seven sub-headings. It did not state that the sub-headings were key elements set out by Lord Justice Leveson. They considered that the sub-headings should be considered in the context of the headline claim “READY TO GO: A TOUGH NEW REGULATOR FOR THE PRESS”. They stated the sub-headings explained how IPSO worked and helped the reader understand what Free Speech Network believed to be the most important elements.

They noted that MST maintained there were a number of elements in the report which IPSO would not deliver, but considered that IPSO would nonetheless meet those elements, which they also believed were selective.

2. Free Speech Network said the ad stated “The Board of IPSO would have a majority of independent members and an independent chair, chosen in a transparent and open process”, which they considered a clear explanation of the claim “genuine independence”, which would be understood by readers and seen in that context.

They considered that the claim “genuine independence” was clarified by the accompanying qualification and that in any event IPSO met the standards of independence proposed by Lord Justice Leveson in his report. They stated that the criteria were set out in the section of his report entitled “Independent Governance” and emphasised that the criteria were not intended to be prescriptive. They stated that Lord Justice Leveson envisaged that the Independent Board of the Regulator would have a “majority of people independent of the press”. They stated those criteria were reflected within the recommendations in the Executive Summary.

They provided details about the appointments process for IPSO, which was underway, and stated the appointments were selected on the basis of merit, fairness and openness and free from the influence of government and industry; they therefore complied with Lord Justice Leveson’s recommendations and Article 26 of the IPSO Articles which specified the process for the appointment of the Appointment Panel.

They stated that the appointments process for IPSO was under way. Lord Phillips of Worth Maltravers (the former President of the Supreme Court) had established a Foundation Group which he chaired, to oversee the establishment of an independent appointments system and to appoint the Chair and members of the Appointment Panel. The Foundation Group comprised Lord Smith of Finsbury, Lord Butler of Brockwell, Sir Simon Jenkins, Trevor Kavanagh and Dame Sue Tinson. The Foundation Group had appointed Sir Hayden Phillips as the Chair of the Appointment Panel. The Foundation Group and Sir Hayden Phillips had appointed Lord Brown of Eaton-under-Heywood, Paul Horrocks, Dame Denise Platt and John Witherow as the other members of the Appointment Panel.

They stated that the IPSO Articles provided for a majority (a minimum of seven out of twelve) of the directors to be “Independent” and, in addition, neither the Chairman (who was one of the directors) nor any of the other directors could be serving editors of bodies that were or could be publishers who were regulated by IPSO. They stated that the definition of “Independent” in the IPSO Articles had wide ambit and excluded all directors, employees, agents, anyone with a shareholding of 5% or more in a regulated publisher, and anyone who otherwise owed any duty of loyalty to the IPSO Regulatory Funding Company (RFC) or any regulated entity or body capable of being a regulated entity. They stated that it was clear from the IPSO Articles that IPSO was controlled by its board and comprised a majority of Independent Directors (as defined in the IPSO Articles). They stated that that definition included a requirement that a Director was not connected with the RFC. The RFC was the body which raised the levy in an administrative function, but that did not mean that IPSO was answerable to the RFC and the definition of the RFC in the IPSO articles provided expressly stated that the RFC “represents the interests of the Regulated Entities [as defined] in relation to [IPSO]". They added that Lord Justice Leveson did not state that serving members of the House of Lords should be excluded, simply that any serving member of the House of Commons should be excluded.

They added that Lord Justice Leveson had not made any recommendations as to the precise meaning of “independent” and reiterated that the wording following the claim “genuine independence” in the ad clarified the meaning.

3. Free Speech Network stated that the Government had enacted provisions, through passing the Crime and Courts Act 2013 (CCA), for the award of exemplary damages and costs against publishers who did not participate in a regulatory scheme which was recognised by a Recognition Panel established under the Royal Charter. They stated those provisions were included in the CCA by politicians in an attempt to force publishers to join a regulator recognised by the Royal Charter. They stated it did not include broadcast, internet or book publishers and was clearly targeted at the newspaper and magazine industry.

They said that Section 34 of the CCA set out the provisions in relation to exemplary damages, which were designed to punish publishers who had not joined the Government’s regulatory scheme.

They stated that section 40 (3) of the CCA set out the provisions in relation to costs awards against publishers, which provided that the Court must award costs against publishers who have not joined the Government’s regulatory scheme, even where they successfully defended the scheme. They considered the financial implications could easily result in publishers going out of business and that certain publishers might find in time that they had no alternative but to join the Government’s scheme. Free Speech Network provided information about the Government’s consultation paper on proposals for costs protection, in addition to, not instead of, an alternative to any mechanism for dispute resolution as Lord Justice Leveson had recommended, and how those proposals would exclude newspapers and ensure that section 40 would prevail.

They had received a joint legal opinion from three leading QCs that the provisions for exemplary damages were inconsistent with legal authorities and incompatible with Article 10 of the European Convention on Human Rights. They provided a link to a newspaper article which referred to the legal advice.

Free Speech Network submitted that enactment of those provisions in relation to exemplary damages and costs were a clear attempt by politicians to force publishers to join a regulator recognised by the Royal Charter, by imposing financial penalties on publishers that were not regulated under that Charter.

4. Free Speech Network stated that the Royal Charter was agreed by the Government, the Opposition and Hacked Off in private on 18 March 2013 without any consultation with the publishing industry. They added that a draft of the Royal Charter had been published in February 2013 and the industry had believed that the Government then intended to engage with the industry on the issue of press regulation. They stated that on 11 October 2013 a “final draft of the Royal Charter” was published on the Department for Culture, Media and Sport’s (DCMS) website, with a note that it “followed further discussions by all three main political parties”. They stated that in each case the accompanying notes on the DCMS website had made it clear that the Royal Charter had been agreed by politicians. They added that the final version was published on 30 October, some minor amendments were made, and the Royal Charter was put forward to the Queen for approval at a Privy Council meeting attended only by politicians: Nick Clegg, Jeremy Hunt, Maria Miller and Lord McNally. Free Speech Network considered this was an unprecedented use of the Royal Charter process to force regulation on an industry, rather than grant a charter for which the industry had itself petitioned.

They added that the Royal Charter provided that it could only be amended by a two-thirds majority in both Houses of Parliament. They considered that that would, in practice, be extremely difficult for the press industry to achieve and would require politicians to agree with any amendments suggested by the press. They stated that this requirement was also in the Enterprise and Regulatory Reform Act 2013 and that this Act could be amended or repealed by a simple majority in Parliament, following which the Privy Council (controlled by the Government) could unilaterally amend the Royal Charter.

Free Speech Network therefore considered that the Royal Charter was controlled by politicians, written by politicians, imposed by politicians and, in practice, could only be amended by politicians.

They considered that the Government themselves acknowledged political ownership of the Royal Charter by describing it as the “Cross-Party Royal Charter” and that Hacked Off had used the same description.

Assessment

1. Upheld

The ASA acknowledged that the complainants believed there were elements in the Leveson report which IPSO would not deliver, and that the advertisers believed that those specific elements were met.

We considered the claim in the ad, which stated that IPSO would “deliver all the key elements Lord Justice Leveson called for in his report”. The ad set out seven sub-headings which provided further information about the proposed IPSO model for regulating the press. However, Lord Justice Leveson had not determined specific “key” elements in his report.

We considered that the ad’s readers, whilst familiar with the general issues relating to press regulation, would be unlikely to have detailed knowledge of the content of the Leveson report. We thought it likely they would assume from the ad, wrongly, that the sub-headings formally set out those issues which had been expressly defined as “key elements” in the Leveson report, and which should be implemented by a proposed press regulator. We did not consider whether the specific elements raised by the complainants were or were not met, but considered that the ad implied more certainty around which might be the “key elements” than was the case and therefore concluded that it was misleading on that basis.

On that point, the ad breached CAP Code (Edition 12) rules 3.1, 3.3 (Misleading advertising) and 3.7 (Substantiation).

2. Not upheld

One complainant maintained the claim was misleading because they understood that IPSO would be answerable to the RFC made up of the newspapers which supported it and believed it was therefore not independent of the industry. Another complainant maintained the ad was misleading as they believed the only requirement was that those employed by IPSO should not be employed by newspapers or magazines.

MST maintained that Article 26, which dealt with appointments to the Appointments Panel, had been dis-applied in November 2013, after the ad was published. They also maintained that appointments to the IPSO Board were made with an editor and a former editor (nominated by the industry), each of whom had a veto, since the decisions had to be made by consensus. The IPSO articles stated “The Appointment Panel shall comprise of five members and the Chair, including 2 members who have recent senior experience in publishing, of whom one shall be a serving editor of a body that is or could be a Regulated Entity. No person shall be nominated by the Appointment Panel unless in the view of a consensus of the members of the Appointment Panel”.

The claim “GENUINE INDEPENDENCE” was supported by clarifying text which stated “The Board of IPSO will have a majority of independent members and an independent chair, chosen in a transparent and open process”. We considered consumers would therefore understand that the claim “GENUINE INDEPENDENCE” related to the make-up of IPSO’s board.

We therefore referred to Article 22 of IPSO’s Articles of Associations, which set out the “Methods of appointing Directors”, and the Schedule which set out the “Interpretation” and “Defined terms”, including the “Appointment Principles” under section 1.3.

That documentation set out that appointments were selected on the basis of merit, fairness and openness and free from the influence of government and industry, and made clear that some members would be part of the industry.

The RFC was the body which raised the levy in an administrative function and was intended to represent the interests of the Regulated Entities in relation to IPSO. We acknowledged that the RFC played a significant role in the proposed self-regulatory process, but did not consider that the RFC’s powers were intended to allow undue influence over the core elements of IPSO’s regulatory process and the implementation of its Code.

Moreover, we considered readers would understand that the ad was providing clarifying information about the IPSO board and that the ad set out why the advertisers considered that IPSO and the proposed self-regulatory process would be independent. We did not consider that the clarifying information contradicted the bolder headline claim “GENUINE INDEPENDENCE”.

We considered that, in light of the clarifying information in the ad, readers would not be misled by the claim “GENUINE INDEPENDENCE” in relation to IPSO’s relationship with the industry.

MST maintained that IPSO allowed for party-political peers to sit on the Board, the IPSO Appointment Panel and the IPSO Complaints Committee, whilst the Royal Charter-based alternative to IPSO explicitly forbade party-political peers to participate in regulation in any way.

The ad stated, under the claim “FREE SPEECH GUARANTEED” that “IPSO is entirely independent of all political parties”. Although we understood that party-political peers could sit on the IPSO board, we considered that readers would not interpret the claim to mean that no person with party political affiliations or views could be employed by IPSO, but would understand that IPSO was not the regulatory scheme supported by the government, with cross-party support, and that sitting MPs would not be involved in establishing or running IPSO.

We considered they would further infer from the ad’s claims that the members of the IPSO board, or those involved in establishing IPSO, were expected to be impartial in the work they carried out.

We therefore considered the claims “GENUINE INDEPENDENCE” and “IPSO is entirely independent of all political parties” were unlikely to mislead.

On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1, 3.3 (Misleading advertising) and 3.7 (Substantiation), but did not find them in breach.

3. Not upheld

We considered readers would understand from the ad that IPSO was one proposed scheme for press regulation and that that scheme was not the same scheme as that proposed by the government, with cross-party support.

We considered that readers would infer from the claim “Politicians are trying to force the press to sign up to a royal charter” that the advertisers were expressing their view that politicians favoured the proposed Royal Charter scheme and were working to ensure it was established as the model for the regulation of the press, for example, by exerting political and/or economic pressure.

The ad did not provide further detail about how publishers were “being forced” to sign up to the Royal Charter. However, we understood that non-membership of that scheme could have financial implications because only those publishers who participated in a scheme which was recognised by a Recognition Panel established under the Royal Charter were provided immunity from exemplary damages under Section 34 (2) of the Crime and Courts Act 2013 (CCA).

Given that, we concluded that the view expressed in the ad was unlikely to mislead.

On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1, 3.3 (Misleading advertising) and 3.7 (Substantiation), but did not find it in breach.

4. Not upheld

We understood from Article 9 of the Royal Charter that changes to the Charter required that a draft of any proposed change must have been laid before Parliament, and approved by a resolution of each House, including the Scottish Parliament if a proposed change was within its legislative competence, and that that proposed change must also be ratified by a resolution that had been passed unanimously by all of the Members of the Board of the Recognition Panel.

We considered that the claim “Politicians are trying to force the press to sign up to a royal charter written by politicians, imposed by politicians and controlled by politicians” would be understood by readers to relate to the influence of politicians in the drafting and implementation of the Royal Charter establishing a body for press regulation, as opposed to any potential political influence in setting that body up in practice, such as the recognition body, appointments panel or regulatory board.

Politicians were excluded from the recognition body that was set up by the Royal Charter, as well as being excluded from the appointments panel, the staff, and any regulatory Board. However, politicians had been responsible for drafting the relevant documentation establishing the proposed Royal Charter and we understood that amendments to the Royal Charter could not be made without Parliament’s approval.

We therefore concluded that the claim was unlikely to mislead.

On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1, 3.3 (Misleading advertising) and 3.7 (Substantiation), but did not find them in breach.

Action

The ad must not appear again in its current form.

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