Full case report

Jonathan Coulter v Independent Press Standards Organisation CIC

Reference [2018] EWHC 1017 (Admin)
Court High Court, Queen’s Bench Division (Administrative Court)

Judge Warby J

Date of Judgment 27 Apr 2018


Summary

IPSO – Judicial Review – Jurisdiction – Third Party Complaints – Accuracy –Irrationality


Facts

The Independent Press Standards Organisation (“IPSO”) is an independent regulator of the press in the United Kingdom, including the publisher of The Times and The Sunday Times, who submitted to IPSO’s jurisdiction by a set of contractual arrangements. Accordingly, one of the functions of IPSO is to rule on complaints against publishers it regulates for infringements of the Editors’ Code of Practice.

On 25 October 2016, there was a meeting at the House of Lords to launch the second phase of the “Balfour Apology Campaign” (“the Meeting”). The Balfour Declaration was issued in 1917 by the British Government, announcing its intention to assist in establishing “a national home for the Jewish people” in Palestine.

On 26 October 2016, The Times published an article with the headline “Jews blamed for Holocaust at ‘shameful’ House of Lords event”.  On 28 October 2016, The Times published a second article with the headline “Tonge’s obnoxious ideas on Jews set a terrible example”. On 30 October 2016 The Sunday Times published an article entitled “Peace be upon Israel – the Lib Dems have cut off their Tonge”. All of the articles were published online and in hard copy.

On 3 December 2016, C and 29 other signatories filed an IPSO complaint in relation to the Times articles for “gross misreporting”, presenting a misleading picture, containing factual inaccuracies, and making unjustified and unfair accusations against Baroness Tonge. On 6 December 2016 C filed an addendum to complain about the Sunday Times article.

In March 2017, the House of Lords Committee for Privileges and Conduct published a report, which assessed Baroness Tonge’s conduct at the Meeting (“the Report”).

In April 2017, IPSO made a decision on the complaints in relation to the Times articles, finding that the first Times article had inaccurately reported that an audience member had been applauded after suggesting that “Hitler only decided to kill all the Jews after he was provoked by anti-German protests led by a Rabbi in Manhattan” when in fact the applause was in relation to subsequent comments made by Baroness Tonge about the importance of a campaign to boycott Israeli goods and services. IPSO concluded that this was a significant inaccuracy, and that an appropriate remedy would be for the newspaper to publish a correction and amendment, as The Times had already proposed. The Times published the correction. IPSO did not uphold C’s complaint about the second Times article as it was “clearly […] an opinion piece” and was not significantly misleading. It determined C was a third party in relation to the claims about Baroness Tonge’s conduct at the meeting and accordingly did not consider these aspects further.

IPSO did not uphold the complaint about the Sunday Times article, adopting the same approach about C being a third party in relation to Baroness Tonge’s conduct as it had in the Times complaint.

C sought an independent review of the determinations. In June 2017, the Independent Reviewer made written determinations against the claimant, ruling that the process in each decision “was not substantially flawed”, noting that Baroness Tonge was offered and refused to accept the opportunity to make a complaint in her own name. After this, IPSO wrote to Baroness Tonge notifying her of the decisions and elements of these that related to her. The Baroness made no reply.

C sought for the decisions to be judicially reviewed, with IPSO resisting the application for permission on its merits, but not jurisdiction. Goose J granted permission in respect of all three grounds of challenge in October 2017.


Issue

(1) Was it unlawful for IPSO when dealing with the complaints to refuse to assess the third party complaints about the reporting of Baroness Tonge’s behaviour?

(2) Was IPSO in breach of a duty of sufficient inquiry, by failing to take into account the Report?

(3) Did IPSO act unlawfully by applying an incorrect and therefore irrational standard of review to the complaints?


Held

The claim was dismissed (assuming, without deciding, that decisions of IPSO’s Complaints Committee and its Independent Reviewer are amenable to judicial review in public law).

(1) IPSO’s decision and that of the Independent Reviewer were lawful.

IPSO has no investigation process to determine the truth of statements about those who are not complainants. Therefore, adjudications on third party complaints have the potential to create significant problems for the complainant, the newspaper(s) concerned and may affect the wider public interest. In the instant case, the articles complained of included serious criticisms of the Baroness and there was potential for conclusions on those criticisms to have a severe impact on her reputation. Input from the Baroness herself was “highly desirable, and potentially crucial” on these issues, and she had been given an opportunity to complain.

(2) There was no breach of duty by IPSO for not taking into account the Report.

The Report was published several months after the complaints were first lodged and while adjudication was well advanced. It was a matter of case management for IPSO as to whether the Report was of such significance it could justify the disruption and delay that would be caused by its introduction, and with hindsight it did not satisfy that criterion. The conclusions in the Report were tangential, and in any event such a challenge only succeeds if the matters were so obviously material that they cannot be ignored and it would be an error of law to leave them out of account. The Report cannot be categorised as such. It followed that IPSO’s decision not to take into account the Report for reasons of proportionality was not a breach of duty.

(3) The standard of review by IPSO was appropriate.

There was no flaw in IPSO’s approach. While it would be irrational to suggest that a factual proposition ceases to be because the article overall is an opinion piece, IPSO legitimately came to the conclusion that, when assessing the passages complained of in context, they were expressions of opinion. IPSO did not suggest that the statements were not factual but that in context they were not significantly inaccurate. Nor did IPSO misdirect itself as to the difference between Clauses 1(i) and 1(ii) of the Editors’ Code of Practice. Clause 1(i) does not impose an absolute duty of accuracy. The extent to which the duty of accuracy is determined is closely connected with the question of whether due care has been taken. IPSO’s approach was “unimpeachable” and the findings that other parts of the articles were “not significantly misleading” should be understood that the newspaper was not in breach of the duty imposed by clause 1(i).


Comment

Warby J resolved not to decide the issue of jurisdiction in light of his conclusions on the grounds of challenge, but noted that for any future judicial review brought against IPSO, where jurisdiction remains uncontested, the Court should give active consideration to the appointment of an amicus curiae. He noted the “highly persuasive” obiter remarks of Lord Woolf MR in Stewart-Brady that if a court might have jurisdiction over the Press Complaints Commission (a predecessor to IPSO) that it is reserved “where it would be clearly desirable for this court to intervene”.

It was also noted, in respect of the second issue, that were IPSO to have evaluated the Report this might be argued to infringe Parliamentary Privilege. Warby J did not decide this as he decided the second issue on other grounds.


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Instructing Solicitors

Irvine Thanvi Natas for the Claimant; Sheridans for the Defendant.