IPSO Blog: How Clause 12 (Discrimination) works

Complaints Officer John Buckingham shares his thoughts on some of the difficult issues around Clause 12 (Discrimination).

Publications regulated by IPSO must follow the rules set out in the Editors’ Code of Practice. 

Clause 12 of the Code deals with discrimination. It says that the press must avoid prejudicial or pejorative reference to an individual’s race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability. It also states that these details should not be included in a story unless they are genuinely relevant. 

My work as a Complaints Officer gives me a great deal of insight into this challenging issue and I’m often asked questions by the public about how this Clause of the Code works, and who it protects. 

Protection for individuals                                                 

Clause 12 prevents publications from making discriminatory references about individuals based on the ‘protected characteristics’ listed above. It also prevents them from making reference to any individual’s protected characteristics unless they are genuinely relevant to a story. If you feel that an article makes a discriminatory reference to you based on a protected characteristic or includes an irrelevant reference to one, I would strongly advise you to make a complaint. 

For Clause 12, complaints can only be taken forward from the party directly affected. This blog about third party complaints explains some of the reasons why – including that it might involve personal and sensitive information about that person or that we might not be able to investigate the complaint properly without their input. But the individual affected can and should complain if they wish to. 

IPSO can and does take forward complaints from representative groups on behalf of individuals where any alleged breach of the Code is significant and there is a public interest in doing so. More on this here. 

What about groups? 

Groups of people are not currently protected by Clause 12. This means that a complaint which says, for example, that an article was discriminatory against gay people in general, autistic people in general or transgender people in general wouldn’t engage the terms of this clause. So why does the Code protect individuals, but not groups? 

For me, there’s a difference between directing a pejorative (contemptuous or disapproving) term at a specific, named person, and directing it at a group as a whole: the effect of the language on any one member of the group is diluted. 

Interpreting Clause 12 in this way also helps to protect freedom of expression by promoting valid debate in society. It’s important in a free society that no group is considered above criticism, and that journalists are able to challenge the beliefs, practices, actions, opinions and traditions of different groups for the benefit of us all. 

It’s true that sometimes articles are published that some people find hurtful, upsetting, distressing, unpleasant or infuriating. But is the alternative a media which doesn’t ask uncomfortable questions, doesn’t challenge or hold people to account, which is scared to voice certain views to avoid offence, and which draws its opinions only from within ‘acceptable’ boundaries? Hearing diverse opinions, even if we disagree with them in the strongest possible terms, is part of living in a democratic free society. 

Clause 12 tries to strike a balance which ensures that groups in society can be challenged while ensuring that individuals are never singled out for abuse. That’s not to say that stories that criticise groups or report them in a bad light don’t have an impact on individuals and on society as a whole. These are difficult issues with no easy answers. 

There is a wider conversation to be had about what more IPSO can do in these situations. We are currently undertaking research about reporting of transgender issues and the impact of press reporting, and we regularly meet with charities, NGOs and others for discussions about this. 

But what about ‘hate speech’? 

People who complain to IPSO under Clause 12 often talk about ‘hate speech’. By this, they usually mean ‘incitement to hatred’. Under English law, incitement to racial hatred, incitement to religious hatred and incitement to homophobic hatred are criminal offences. As is clear from the guidance from the Crown Prosecution Service, these are complex legal matters. IPSO is not a body that’s tasked with policing and law enforcement; its job is to enforce the Editors’ Code of Practice. 

There may be times where an article does not breach the Code, but is very offensive. Under the law, if published material is “threatening, abusive or insulting” about a racial group, or “threatening” about a religious group, then you may have grounds for considering it to amount to incitement to hatred. If you do, we would recommend reporting the matter to your local police force using this form. 

If we believe an article might have broken the law in this way, we would also report it to the police.


Originally published 16 March 2018.