The press watchdog has ruled against journalists reporting evidence given in open court, in a decision that senior lawyers, media organisations and campaign groups including the FSU say is a dangerous intrusion on free speech, and sets a precedent that could seriously curtail reporting in the future (Telegraph, Telegraph, GB News).
In its ruling, the Independent Press Standards Organisation (Ipso) concluded that a report by the website Aberdeen Live on the court case of a man who had pleaded guilty to the rape and assault of a woman not previously known to him had been an “intrusion into grief or shock” of the victim in the case.
The victim, a woman whose identity is protected by law, had complained to Ipso that Aberdeen Live had breached several clauses of the Editors’ Code of Practice (‘the Code’), including Clause 4, which states: “In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively,” but adds the important caveat that: “These provisions should not restrict the right to report legal proceedings.”
The Code sets out the rules that newspapers and magazines regulated by Ipso have agreed to follow as part of the voluntary system of press self-regulation established by Royal Charter in the wake of the 2012 Leveson Inquiry.
Part of the victim’s complaint to Ipso was that the article in question included details of what the defendant said during the attack and “quoted the prosecutor, who had described the complainant’s reactions during the attack”.
The victim also complained to the watchdog that “whilst she understood the story should be reported, the level of detail included in the article intruded into her grief and shock” and that this “re-traumatised her”.
During Ipso’s subsequent investigation, Aberdeen Live pointed out that all of the information featured in its article “had been heard in open court, including the details of the attack, the complainant’s reaction to the attack, and the word used by the attacker”. The publication also said that much of the detail under complaint was taken from a quote from the prosecutor, which it considered it was entitled to report under Clause 4 of the Code.
In its ruling, Ipso said their committee “made clear that the publication was entitled to publish the article: journalists’ right to report on court proceedings is an essential part of open justice, and is also in the public interest. Reporting on criminal matters will, in some cases, lead to the publication of information that might be distressing to victims and others connected to the case.”
However, the regulator went on to say that Clause 4 was relevant to the article’s references to the complainant’s physical reaction to the attack, which had been quoted by the prosecutor during the attack.
While recognising “that in some circumstances the publication of such personal and intrusive details may be justified,” the Committee concluded that “in the context of the crime and article, the inclusion of this extremely personal information about the complainant’s physical reaction to the attack amounted to an unnecessary level of detail which intruded into her grief and shock. There was a breach of Clause 4 on this point.”
In a previous case in which Ipso ruled that a publication had intruded into grief and shock by publishing an “emotive description” of a suicide heard during an inquest, the Committee said that while there was no means of drawing a clear black line between details which may be published and those which may not, it was “able to provide guidance through its decisions”.
Ipso’s safetyist interpretation of Clause 4, which appears to prioritise ‘sympathy’, ‘discretion’ and ‘sensitivity’ over and above press freedom, therefore raises serious concern that the right of journalists to report criminal cases – which are often deeply upsetting for victims – will now be hampered.
Following the ruling, the Telegraph said that while “many publications, including this one, would not have used all the detail set out in open court”, this is “an editorial judgment, not one for a regulator to make”, adding: “Ipso needs to avoid straying into areas that even its own code says should be beyond its remit.”
FSU General Secretary Toby Young told the Telegraph: “Ipso acknowledges that journalists’ right to report on court proceedings is an essential part of open justice and in the public interest.
“Why then is it seeking to curtail that right? How much detail to include in a newspaper report about proceedings in open court is an editorial judgment and not a matter for the regulator.
“I worry that if Ipso crosses the line in this area, what’s to stop it interfering in other editorial judgments?”
Mark Stephens, one of the UK’s leading media law experts and a partner at Howard Kennedy law firm agreed, warning that the case could create “a slippery slope” if the regulator starts interfering in reporting on public court cases.
Nazir Afzal, a former chief crown prosecutor who sat on Ipso’s complaints committee for six years until June last year, said there was now a “danger” that future reporting could be “stifled” as a consequence.
Mr Afzal said: “Each case is, of course, dealt with on its own merits and the trauma experienced by the victim must always be at the forefront of our minds, but there is a danger that this outcome will stifle the public interest in accurate court reporting.”
A senior lawyer familiar with the complaint told the Telegraph: “What the Ipso ruling has effectively done is introduce reporting restrictions where there previously weren’t any. Ipso is warning that reporters may have to keep details in a case out of the public domain because of the risk of upsetting a person. That seems jarring given the law on open justice.”
The source said it was inevitable that in almost all criminal cases, victims are upset at giving evidence and having that evidence reported. The source said: “But it is much more important that justice is carried out openly rather than any worry that the reporting might cause feelings of distress.”
