UPDATE 16 October: It is now reported that the NMA is lodging an appeal against the decision explained below. Details here.
The High Court has rejected NMA’s claim for judicial review of the PRP’s decision to recognise IMPRESS as an independent, charter-compliant press regulator.
Background to the claim
“to ensure that any organisation which regulates the press is independent, properly funded and able to protect the public, while recognising the important role carried out by the press.”
On 25 October 2016 the PRP decided to recognise IMPRESS as an approved regulator. We reported that decision in a post entitled Press regulation: what are we waiting for now? We also responded to a consultation by IMPRESS on its draft standards code for the press.
But the News Media Association (NMA) were unhappy about that decision, mainly because they support a rival regulator, IPSO, which has the support of most of the major national newspapers and many local press publications.
The Leveson Report in 2012 set out 29 criteria which it said any future approved press regulator should comply with. However, a key requirement for the members of IPSO was that it should NOT be Leveson-compliant to the extent of being approved by the PRP, because that seemed to them too close to the idea of being directly regulated by the government.
The News Media Association (NMA) represents the views of many members of IPSO. They decided to bring legal proceedings by way of a claim for judicial review (which is basically a claim that a decision made by a public body was unlawful because it was made for the wrong reasons or without the proper power). They argued that the PRP’s decision to approve IMPRESS as a regulator was unlawful and should be overturned because:
a. the PRP misinterpreted and misapplied the Charter; and
b. IMPRESS failed to meet the Charter’s Recognition Criteria.
In its judgment in R (on the application of NMA) v PRP  EWHC 2527 (Admin) the Queen’s Bench Divisional Court (Lady Justice Rafferty and Mr Justice Popplewell) disposed of a number of different points raised by the NMA in its claim.
NMA argued that it was implicit in Leveson’s recommendations that any regulator would have the support of a minimum number of or a proportion of the total body of publishers — something that cannot possibly be said of IMPRESS, whose roster consists mainly of smaller independent publishers and no major national titles.
But the court took the view that IMPRESS was clearly “an independent body formed by or on behalf of relevant publishers for the purpose of conducting regulatory activities in relation to their publications” within the definition established in para 1 of Schedule 4 to the Charter, and (para 28):
“The Charter nowhere restricts upper or lower size of the Regulator. Neither does it require proof of a substantial degree of industry support.”
Moroever, there was no reason to suppose the Leveson report required any single regulator to be responsible for a majority of the industry (para 30):
“Whilst Leveson envisaged as the desired outcome self-regulation of the entirety or vast majority of the industry, the fallacy in NMA’s submissions includes the assumption that it envisaged a requirement that any individual regulator should be regulating the industry as a whole.”
The NMA also argued that the funding arrangements for IMPRESS did not comply with the Charter, because they mainly relied on outside sources (derived from a charitable fund set up by Max Mosley, a former victim of press intrusion) rather than from those being regulated. Leveson, said the NMA, wanted regulation to be self-funded by the industry. But in the court’s view that point, too, had no merit (para 45):
“The Charter’s plain language shows that funding by the members of a Regulator is not required, only agreement as to funding from that section of the industry which agrees to be regulated by it.”
The NMA also argued that IMPRESS wasn’t truly independent, because it might be influenced by Mr Mosley, on whom it was dependent for funding; but the court found that “the PRP scrupulously considered the robustness of the structures and satisfied itself that they did not permit Mr Mosley to exert influence.”
The court also rejected arguments that some members of the IMPRESS board were not truly impartial, that it was not entitled to adopt its own editors’ code, and that it should have had a serving editor on its code committee.
Having lost the case and been ordered to pay costs, the NMA has issued a statement saying “We are deeply disappointed by the Court’s decision” and vowing to appeal. Not surprisingly, IMPRESS welcomed the court’s decision, which the PRP has also welcomed.
The decision (with which we agree) does not alter the fact that, as the NMA and IPSO never tire of pointing out, IMPRESS remains a minority regulator, whose conformity with the Charter and the Leveson requirements cannot obscure the fact that it has little effect in curbing the excesses of the popular press. IPSO, on the other hand, could do so, if so minded. It is certainly a highly competent and responsive communicator and administrator in dealing with complaints. But, partly by reason of the contractual relationship with its members, it remains in our view a less effective regulator than it might be, even in enforcing something as basic as factual accuracy.
Having pursued complaints against the press, the Transparency Project would like to improve the reach and effectiveness of press regulation, and is ready to engage with any regulator in the hope of promoting that aim.
Featured image (Isolated paparazzi equipment, by Vitezslav Valka) via Shutterstock.