However, the PCC now faces a huge challenge to rebuild public confidence in a judgement that is likely to be unpopular and misunderstood. It’s not the PCC’s fault that it received more complaints about that article than it had received over the previous five years. But many of those who complained will be dissatisfied by the process. And this case does pose challenges for the PCC to address, partly through its governance review.

The Editors Code itself needs further thought. That newspapers are free to offend should be beyond doubt. But the code allows discrimination against groups rather than individuals. This is out of step with the law, the definition of racism post-Macpherson, and societal norms. It’s also a bit silly. The code’s distinction is equivalent to allowing me to write ‘all newspaper editors are liars’, or ‘all Daily Mail journalists are homophobic’ as long as I don’t single out individual journalists.

The process by which the code can be amended has been opened up in recent years but still lacks transparency, independence and accountability. By enabling the public in to the process, the code committee recognises the importance of the code in instilling public confidence in the standards of journalism – surely a vital part of any economic recovery for the sector. But no member of the public can sit on the committee, the consultation takes place in secret and the rationale for revisions is not made clear. Until last week, the PCC still distributed the press releases for this apparently independent body.

The PCC’s lack of clarity on who is an eligible complainant meant – in this case – that it required a complaint from the grieving Andrew Cowles – for the investigation to proceed. Otherwise the complaints of 25,000 others may have been rejected. One can only imagine how the Daily Mail would have reacted if complaints by its readers about Celebrity Big Brother had been rejected because they weren’t Shilpa Shetty.

The PCC’s decision-making processes also require reform. It’s odd that we don’t know which members of the commission were present to consider the Jan Moir complaint. We’re told that despite being a member of the commission, the Mail on Sunday editor wasn’t involved in the decision. The PCC said:

“This is in line with the PCC’s normal procedures when a title edited by a Commission member is subject to a PCC complaint.”

For the avoidance of doubt, the editor of the Mail on Sunday is not the editor of the Daily Mail. Should we therefore conclude that the PCC’s normal procedures mean that the editor of the News of the World is not involved in complaints against the Sun? And with no formal minutes published, how could we find out?

With a commission that meets in secret we don’t even know when the decision was made, let alone what case was made in the prosecution or defence. The PCC argues that one of it’s benefits is that it avoids the costs of lawyers. But we may never know if Andrew Cowle’s complaint (made through a team of solicitors) was challenged by the Daily Mail’s lawyers.

We don’t know how much the Daily Mail pays for the PCC (the funding is passed through intermediaries) or whether the PCC has sufficient resource to run a system which attracts this volume of public concern.

Baroness Buscombe was brave – and right – to come out and defend the decision in other media. And hearing her defence may go some way to instilling confidence in the judgement. But I was concerned by her argument that the context of the piece was important, particularly that it had appeared in page 37. It did, of course, but there was also a banner on the frontpage drawing attention to the article. So what if the case had gone the other way? Would a ruling four months after the event have made an impact? Would an apology on page 37 – or in Moir’s column – been enough?

The PCC’s governance review – although tightly defined – is the opportunity to address these issues. Unfortunately, the submissions it has received are still awaiting publication. If this opportunity for reform is missed, confidence in self-regulation of the press will be diminished.

Related posts:

1. Why Jan Moir’s apology shouldn’t be ‘case closed’
2. Why Jan Moir and the Daily Mail will escape disciplinary action
3. Paul Dacre must speak out over phone hacking

The apology itself was only a partial apology. Ms Moir apologised for giving offence, for wrongly giving the impression she was homophobic and causing distress by the timing of the article. She maintained that:

“The point of my article was to suggest that, in my honest opinion, Stephen Gately’s death raised many unanswered questions. What had really gone on?”

And reiterated her support for same-sex marriages. She also criticised the “hysterical overreaction” and the “orchestrated campaign” against the article.

It was also offered a strange justification. Jan Moir made a public interest defence for her article, despite one not being relevant under the press code of practice:

“Stephen was a role model for the young and if drugs were somehow involved in his death, as news reports suggested, should that not be a matter of public interest?”

However, by apologising the Daily Mail and Jan Moir have reduced the likelihood of action by the Press Complaints Commission. The commission is constituted as a “complaints resolution body” and does not have any wider regulatory role.

If the complainant (Stephen Gately’s record company rather than the third parties) is satisfied with the apology, the PCC’s job is done. If the complainant is unsatisfied, the matter can be brought before the full commission and it can rule for or against the article. However, as I wrote previously the precedent in this area is thin and the most likely outcome is that the commission would rule that the newspaper had made a sufficient offer of amends (give the speed and prominence of the apology).

The process may have served Stephen Gately’s representatives well, but not the public. There remains public dissatisfaction with what is being done in “the public interest”. In the words of Niki from London who commented on Jan Moir’s apology:

“To call this ‘apology’ disingenuous would be an epic understatement. I really did not believe my opinion of Jan Moir could sink any lower: I was wrong.

“Jan, do you think we are stupid? Do you think we didn’t read your hateful, bigoted original article? Don’t try to tell us now that it meant something else, that we all ‘got the wrong end of the stick’?

“What is really sleazy, is your continued attempts to wriggle out of taking responsibility for your vile, hateful words. I strongly suggest that, if you really can’t manage a sincere, unconditional apology, you shut up about this subject altogether.

The apology means that there will be no judgement about whether Jan Moir or the Daily Mail has broken the press code. Compliance with that code forms part of her contract of employment. But in the absence of a ruling from the PCC, she is neither exonerated nor held to account for her article.

If the PCC is an “independent self-regulator”, its job is to serve the public. If it is an ombudsman its role is just to deal with a complainant – but that may open calls for a new body to fill the gap. That’s why the PCC’s governance review is so important: it needs to be empowered to do the job of self-regulation, rather than just complaints resolution.

A code of practice is only meaningful if cases are examined, and breaches are logged such that, cumulatively, they have some impact on future newspaper articles. Currently, in the 13 years of cases on its website, the PCC only has a handful of cases which were adjudicated that touch on this part of the code. And the Daily Mail only has three upheld complaints recorded against it.

Without regular assessment, there can be no clear understanding of whether the code is satisfactory. The editors’ code committee (chaired by Daily Mail editor Paul Dacre), advises on compliance with the code – and regularly amends it. However, it cannot advise the industry on the issues this case throws up about the tricky balance between free speech and the public interest because it does not consider resolved cases to have breached the code.

In a wider sense, there is no industry-led debate about whether it is acceptable for the Daily Mail – or any other newspaper – to speculate about the death of a public figure, after an autopsy. Or whether it is justifiable – in the public interest – to intrude upon someone’s grief or malign someone’s reputation without any basis of evidence.

So neither the press nor the public are any wiser as to whether the Mail broke the PCC code, or indeed whether the code has any relevance to pieces such as this. All at this at a time when fewer people buy newspapers, and trust in journalism scrapes along the floor of public opinion at a time when some in the industry call for public subsidies.

Related posts:

1. The PCC got it right on Jan Moir complaint
2. Why Jan Moir and the Daily Mail will escape disciplinary action
3. Taxpayers Alliance: a case study of poor journalism

So what will happen next? I examined the PCC’s precedent in the handful of similar cases over the last 13 years. My prediction is that Jan Moir and the Daily Mail will escape any disciplinary action.

The PCC always acts through the newspapers, rather than the individual journalists. Only once has a journalist been named by the PCC: Matthew Parris, for an article which attracted the previous record number of complaints. That article offended cyclists. He wrote: “A festive custom we could do worse than foster would be stringing piano wire across country lanes to decapitate cyclists.”

The PCC will not necessarily act against the Daily Mail on the basis of the number of complaints that it received. Regulatory bodies and complaints ombudsmen do not work like that. The PCC did not uphold the complaint against The Times for Matthew Parris’ article.

The complaints against Jan Moir were focussed around a possible breach of three clauses of the press code of practice: clause 1 (accuracy), clause 5 (intrusion into grief or shock) and clause 12 (discrimination).

The Daily Mail should not be able to justify the article as being in the public interest, despite the definition: “There is a public interest in freedom of expression itself.” The public interest defence is not available for breaches of clause 1 or clause 5.

The case against clause 1 is unlikely to stand up. Although some thought it cast doubt on the findings of the autopsy, it is not inaccurate to suggest that healthy people do not die in the night. And the article reported the findings of the autopsy correctly: “A post-mortem revealed Stephen died from acute pulmonary oedema, a build-up of fluid on his lungs.”

The newspaper clearly presented the article as a comment piece, distinguishing between comment, conjecture and fact – as required by clause 1. Finally, in the case of Anne Peck v Time Out the commission found that “Although some might have judged them in dubious taste, they would be recognised by regular readers as Mr Mosby’s own particular style.” Regular readers of Jan Moir know what to expect.

The case against clause 5 may also not stand up. In the case of Deidre Manchanda v The Independent the commission ruled: “It did not consider that the information was gratuitously graphic or out of proportion to what was already in the public domain, or that the tone of the account was insensitive or unsympathetic.” Jan Moir’s article did not publish anything that was not already in the public domain although the tone was insensitive but possibly not sufficiently one-sided to be considered unsympathetic.

The commission has only upheld one complaint about clause 12 in the last nine years. In that case, A woman v News of the World (Scottish edition) the PCC set two tests for the complaint about a reference to a person’s sexuality: was it pejorative; and was it relevant? In Jan Moir’s article his sexuality is likely to be deemed relevant because of the visit to a gay club on the night of his death.

However, the article may be considered in breach of clause 12 for its references to Stephen Gately “we would have to admit that the circumstances surrounding his death are more than a little sleazy” may be in breach.

It is not likely to be in breach for the wider implications it drew for civil partnerships:

“Another real sadness about Gately’s death is that it strikes another blow to the happy-ever-after myth of civil partnerships” is probably not in breach because the code allows the press to be discriminatory against groups of people.

So what will happen next?

The case of Kelliher v British Medical Journal may be the most similar. The editors codebook (the committee which draws it up is chaired by Paul Dacre) reports:

Although the Code does not cover the privacy of the dead, a critical obituary in the British Medical Journal, describing a doctor as “the greatest snake-oil salesman of his age”, brought a complaint from the man’s family. The PCC said it was not unacceptable to publish criticisms of the dead — but that the sensitivity of the family had to be taken into account. No adjudication was necessary as the editor offered to publish an apology for the distress caused.”

My best guess is that the Daily Mail will apologise for the offence caused, although not the article itself. The commission will not, then, be able to adjudicate so no offence will be recorded. The apology may even become a case study for effective self-regulation. This will all take several weeks in which time the heat will be taken out of the issue. And Daily Mail editor Paul Dacre appears not to accept that a resolved complaint can constitute a breach of the code – he only considers an adjudication against the paper a matter of embarrassment.

Few complaints ever make it to adjudication. Of the 222 Daily Mail articles which have attracted complaints since 1996, only three have made it to adjudication. That’s a similar proportion to the rest of the industry. On average, about half of all cases that go to adjudication are found against the newspaper. But of the three cases against the Daily Mail two were not upheld and in the other, the PCC ruled that the paper had already offered sufficient remedy. The PCC has not ruled against the Daily Mail for all the 13 years that it has put cases on its website. This is not correct – I apologise. The full data is available at www.pcc.org.uk

This is a challenge for the PCC, which is constituted only to resolve complaints or adjudicate on them when they cannot be resolved. It is not able to perform the sort of independent self-regulation that some complainants, and the wider public, might expect. This critical issue must be at the heart of the PCC’s forthcoming governance review or else public confidence in the industry will be weakened further.

This article first appeared on journalism.co.uk

Related posts:

1. Why Jan Moir’s apology shouldn’t be ‘case closed’
2. Daily Mail and the public interest
3. The PCC got it right on Jan Moir complaint