Why Jan Moir and the Daily Mail will escape disciplinary action

The Press Complaints Commission has indicated that it is investigating Jan Moir’s article about the death of Stephen Gately, after receiving more complaints in three days than the previous five years combined. This has been one of the hottest topics on the Bloggers Circle this week. Currybet wonders if it will change the way the PCC handles third party complaints whilst Mark Pack believes that it challenges the remit of the PCC.

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
  4. PCC adjudication against Scottish News of the World inconsistent and a threat to press freedom
  5. Press Complaints Commission’s farcical investigation of Keith Vaz affair

9 thoughts on “Why Jan Moir and the Daily Mail will escape disciplinary action

  1. The PCC is not consistent – but neither is the public in what they want of the press.

    One of the interesting things about the recent twitter storms about #janmoir and #trafigura, which were link in a lot of reporting, is that they’re both asking for very opposite things.

    With regard to Jan Moir the plea is for more restrictions on the press, with Trafigura, they’re asking for less.

    • but as the self-regulatory body for the press, it’s the PCC’s duty to be consistent. regulation performed inconsistently will distort the market and not leave a level playing field.

  2. Very useful piece of analysis. It sounds like you’ve put together some broader statistics on number of PCC complaints against different titles and their outcomes. Any chance of sharing those?

  3. The difficulty is also presumably that the public is not particularly consistent. The #Janmoir twitterstorm was a plea for restrictions on press freedom; the #Trafigura one was to have more freedom. Yet the two were linked on Twitter as a generic grievance against the press.

    • Good point (sorry, got trapped in my spam filter). And of course Twitter is a very small section of society which is unusually wealthy and well educated. But as the RSA recognises, the frequent inconsistency of the public isn’t reason enough to treat people with caution.

  4. Pingback: Best of the web 22/10/09 | www.the-vibe.co.uk

  5. Pingback: Why Jan Moir’s apology shouldn’t be 'case closed' | Matthew Cain's blog

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