IPSO analysis: How Clause 12 (Discrimination) works

Under the Editors’ Code of Practice, Clause 12 deals with discrimination against an individual on the basis of certain characteristics.  

It is divided into two parts. First, Clause 12 (i) states that the press must avoid making prejudicial and pejorative references about individuals based on their race, colour, religion, sex, gender identity, sexual orientation, physical or mental illness or disability. 

Clause 12 (ii) states that references to any of these characteristics must not be included unless genuinely relevant to the story.  

There is no public interest exception to Clause 12. 

This clause is worded to protect individuals from direct discrimination against them, personally – not to limit what publications can say about these issues more broadly.   

The Editors’ Codebook says: “the Code is striking a balance between the rights of the public to freedom of speech and the rights of the individual – in this case not to face personal discriminatory abuse. Freedom of expression must embrace the right to hold views that others might find distasteful and sometimes offensive.” 

Clause 12 protects individuals from harm and provides them a way to seek accountability if they have been subject to direct discrimination in the press with regards to one of the listed characteristics. 

This focus on the individual in the wording of the Code protects individuals from harm and supports the free exchange of views about important social issues. The nuances of this can be seen in IPSO’s rulings.

Clause 12 (i) in practice 

The distinction between individuals and groups is an important one.  

It led to IPSO upholding a complaint against The Sun newspaper, following the publication of a column which expressed a hatred of the Duchess of Sussex by the columnist “on a cellular level”. In addition to reference to a “dream” of the columnist, in which the Duchess was subject to humiliation and degradation, he also cited three people as objects of their hatred: the Duchess, Nicola Sturgeon and Rose West. The one common factor between all three was their sex. IPSO’s Complaints Committee found this to be a pejorative and prejudicial reference to the Duchess’s sex and upheld a finding of Clause 12 (i) of the Editors’ Code of Practice. 

By contrast, a 2023 complaint about reporting in The Daily Telegraph was not upheld under Clause 12 as the reference to a protected characteristic in question was not directed at an individual but was part of an article about LGBTQ+ education in Scottish schools.

The complainant, who had also challenged the accuracy of the reporting under Clause 1 (Accuracy), said the article breached Clause 12 by implying that teaching children about gender identity could indoctrinate or convince them they were “queer”. 

However, as Clause 12 prohibits prejudicial, or pejorative references to the protected characteristics of specific individuals “unless genuinely relevant” – as the complaint related to a broader concern about reporting of sexuality, the clause was not engaged. 

Clause 12 (ii) in practice 

As explained, while Clause 12 (i) deals with the question of whether the language used is prejudicial or pejorative to an individual, Clause 12 (ii) is concerned with whether a reference to that individual’s characteristic (eg race, sexuality) is relevant to the story. 

In the ruling on Two complainants v The Courier (2024), a complaint invoking Clause 12 was not upheld in relation to a story about a fundraiser set up by the complainants and allegations of missing donations. 

Part of the complaint invoked Clause 12, on the grounds that the status of one of the complainants as a wheelchair user was referenced in the copy, despite being irrelevant to the fundraiser and not part of any police enquiries. 

This was not upheld, on the grounds that the reference in question was a summary of previous coverage regarding their achievements as a wheelchair user, which had been published with the complainant’s consent. In such a circumstance, where the complainant had cultivated a public profile in relation to both their disability and the fundraiser, the committee considered this brief reference to be genuinely relevant. 

For a counterexample of this clause being upheld, we can look to Evans v The Argus (2018). 

The complainant complained to IPSO about coverage of a court case involving his guilty plea to possession of indecent images of children. The complainant said that repeated references to his status as an amputee in the headline and body were not justified or relevant to his crimes. 

The Committee was extremely concerned by the handling of this coverage – given that it appeared a trainee journalist had published an account of the case without appropriate oversight or awareness that Clause 12 would apply.  

Clause 12 can be particularly relevant in crime reporting, as there is the risk that including irrelevant references to a characteristic like disability might create a link in a reader’s mind between that characteristic and the defendant’s criminality. As such, the Committee found a breach of Clause 12 (ii). 

Clause 12 is, in keeping with all IPSO’s work, a question of striking a fair balance among different rights, including the rights of individuals to be free from discrimination, and the rights we all have to freedom of expression. 

This can be an extremely challenging exercise but in each case IPSO’s approach is to apply the Editors’ Code impartially, based on a careful analysis of the particular circumstances of the Code.