The FT has already bailed out of UK press self regulation. The appointment of distinguished judge Sir Alan Moses today as the first chairman of new industry-backed press regulator the Independent Press Standards Organisation could well be enough to persuade the Lebedev titles and Guardian Media Group to sign up to the new body.
They have previously voiced concerns about IPSO lacking independence from the industry. Together with the formation of a funding body for IPSO which has no representatives from either the Telegraph or Mail titles, this choice of chair could assuage their fears
If they don't sign up to IPSO (which due to launch on 1 June) the new system of press self regulation will be fatally flawed at the outset.
The Guardian/Observer, Evening Standard and the Independent titles are respectively the fifth, eighth and ninth most read newspaper brands in print and online in the UK. Their exclusion from press regulation would be even more severe than the 'Richard Desmond problem' which afflicted the PCC (his Northern and Shell titles boycotted the old press regulator for many years) and it would prove Sir Brian Leveson's point that a degree of statutory compulsion is necessary for press regulation to work.
IPSO must now establish that it can be the sort of independent and effective press regulator that Leveson called for in his report of November 2012.
The chairman is crucial to this independence because he holds the balance of power between the six independents and the five industry representatives on both the IPSO board and the complaints committee itself.
Moses said today:
To those who have voiced doubts as to the ability of IPSO to meet the demands of independent regulation, I say that I have spent over 40 years pursuing the profession of barrister and judge whose hallmarks are independent action and independent judgment. I do not intend to do away with that independence now."
His track record as a Court of Appeal judge since 2005 bears this out.
In 2012 he backed an Appeal Court ruling in favour of the ITN allowing it to resist a police production order forcing it to hand over unbroadcast video of the Dale Farm travellers’ camp evictions.
But in Attorney General versus Associated Newspapers and News Group in 2011 (full judgment) he sided with the Government upholding a contempt ruling against The Sun and Daily Mail for publication of a picture of man posing with a gun on the first day of his trial for murder. Although the picture was only up for between five and 19 hours his ruling said "instant news requires instant and effective protection for the integrity of a criminal trial".
In Flood versus Times Newspapers in 2010 (full judgment) he sided against the press again.
Police officer Gary Flood sued over a Times article from 2006 which alleged he was under investigation for leaking information about police extradition matters to rich Russian exiles.
Moses said The Times was wrong to publish the allegations against Flood without taking steps to verify that they were true and that it should have given more coverage to him being ultimately cleared.
I agree that publication without investigation of the details on which the allegation was based was not in the public interest. The newspaper must be left to justify any imputation, as yet undetermined, without protection of qualified privilege.
Lest it be thought that the conclusion of this court impedes attempts to add interest and colour to a story, the newspapers and their readers have only themselves to blame. That a person is accused is generally of far greater interest than his or her subsequent triumphant acquittal. Once an accusation is dismissed, the blaring headline of accusation on page 1 becomes a tepid reference in the graveyard of page 2.”
In his time at the Court of Appeal Moses also “presided over many cases about the regulation and discipline of solicitors and barristers” (according to his CV).
As a High Court Judge from 1996 to 2005 he heard the trial of Ian Huntley for the murder of two schoolgirls in Soham in 2003.
He notes in his CV:
At the time. no modern criminal trial was so closely followed and reported, day to day, with a special court to enable the press, who could not be accommodated in court, to follow the proceedings. The trial required strict control over the manner in which the case was reported. I gave a number of rulings before the trial started relating to suggestions of contempt as to pre-trial reports, which threatened the fairness of the proceedings.”
He also presided over the trial of former MI5 spy David Shayler in 2002 in which he imposed controversial restrictions on what Shayler could tell the jury. Shayler was sentenced to six months after leaking secrets to the Mail on Sunday. At the time pressure group Liberty said the former agent was a whistleblower who was jailed for telling the truth.
As a QC between 1990 and 1996 Moses led on the prosecution of Matrix Churchill in 1992 for breach of the arms embargo to Iraq and took the decision to abandon the case after it emerged that government officials had withheld information. He was candid in his criticism of the government during the subsequent Scott inquiry.
The appointment of a third Tory peer in a row to head up the press regulation body (after Lord Hunt and Baroness Buscombe) would have been fatal.
Private school and Oxford-educated Sir Alan is an establishment figure. But his time as an Appeal Court judge since 2005 handing down judgments both for and against the media provides evidence that he will be a robust and impartial IPSO chair. He will be no industry stooge.
Guardian News and Media and the Lebedevs may yet decide (like the FT) that membership of IPSO is an expensive irrevelance for their increasingly global media brands.
But after the appointment of Moses I it becomes harder to argue that IPSO will lack independence or backbone.