28275-20 Sanftenberg v Spectator.co.uk

Summary of Complaint

1. David Sanftenberg complained to the Independent Press Standards Organisation that Spectator.co.uk breached Clause 1 of the Editors’ Code of Practice in an article headlined “Why didn’t the EU punish Germany when it broke international law?”, published on 14 September 2020.

2. The online article was an opinion piece, in which the columnist, a barrister, suggested that the UK government will “uphold international law in principle” but break it if it considers that it conflicts fundamentally with its own constitution. In the course of the article, he said both the UK and Germany had previously broken international law, with the former breaking the Geneva Convention on the Sea. He stated that the UK government had ratified this treaty on 10 September 1964, adding that “from then the UK was bound forever by [it] and bound by international law”, before stating: “On 25 September 1964, we were not. No explanation was given. No explanation was asked.” The article then included a quote from Lord Diplock, who it reported “ruled in favour of the government when it broke” the treaty: “the Crown [the Government] has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before.” According to the columnist, this incident and the others highlighted, demonstrated that breaches of international law were a political question rather than a legal one.

3. The complainant expressed concern that the article had made two separate inaccurate and misleading assertions in breach of Clause 1. First, that the UK government “ratified” the Geneva Convention on the Sea on “10 September 1964". He said this was incorrect. Whilst the treaty had come into force on that day it had, in fact, been ratified by the UK government on 14 March 1960. Second, that the UK was no longer “bound” by this treaty and international law from 25 September 1964. He said this assertion was incorrect – the UK was never released of its obligations under the treaty and never withdrew from it. He argued this was misleading, with the thrust of the article suggesting that it was a “commonplace event” for sovereign nations to break international law.

4. The publication accepted that the date the treaty was ratified was inaccurate, amending the online article and publishing the following footnote clarification upon receipt of the complaint, in a gesture of goodwill, to remove any ambiguity on this particular point:

“An earlier version of this article stated that the government ratified the Geneva Convention on the Sea on 10 September 1964. In fact, that was the day the Convention came into effect.”

5. Whilst the publication accepted the complainant’s first point of complaint represented an inaccuracy, it did not accept that this inaccuracy was significant in the context of the article as whole and did not, therefore, raise a breach of the Code. In addition, it did not accept that his further concern raised a breach of the Code either.

6. The publication said that the disputed statement should not be viewed in isolation but rather in the context of the whole article. It explained that the columnist was not making the point that from 25 September 1964 the UK was no longer bound to the Geneva Convention on Sea in international law, but rather that the UK did not follow the treaty and did not, as a result, suffer any significant repercussions; as such, the UK “was not, in any sense, ‘still bound’ to obey it”. Given this, the UK can, if it chooses to do so, break international law. It maintained, however, that the broader focus of the article was on domestic rather than international law. It said the article was clearly presented as a comment piece, reflecting the columnist’s own perception and interpretation of the limits to the application of international law as opposed to domestic law, adding that the former was itself a rather vague and contentious concept compared to the latter. It said that the columnist attempted to address this, clarifying his own view on international law and on the ramifications of breaching an international treaty. The publication said this position was made clear in the article by the quotes from Lord Diplock and by suggesting that breaches of international law were more a “question of politics” and diplomacy than law.

Relevant Code Provisions

Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee

7. The first point of complaint related to the statement contained in the article that the “[UK] government ratified the Geneva Convention on Sea on 10 September 1964”. Both parties acknowledged that this was incorrect: while the treaty had come into force on this date, it had, in fact, been ratified by the UK government on 14 March 1960. The question for the Committee was whether this inaccuracy was significant such as to require correction under the terms of the Code.

8. On balance, the Committee did not consider this point to be significant in the context of the article. The treaty had been referred to as an example of the UK breaking international law in the past; the exact date of the treaty’s ratification by the UK was not central to this point. The fact remained, and was not in dispute, that only a short time after this date – fifteen days later – the UK had broken the terms of the treaty. Furthermore, the subsequent inclusion of an extract from the relevant judgement in the following paragraph clarified the situation: it stated that the international convention had “come into force so recently as fifteen days before”. There was no breach of the Code on this point.

9. The Committee then considered the second point of complaint: that it was incorrect to state that on 25 September 1964 the UK was not bound by the Geneva Convention on the Sea or by international law. The Committee acknowledged the complainant’s concern that, reading the sentence in isolation, readers might understand it to mean that the UK was released from its obligations or withdrew from the treaty. However, the Committee had regard to the article as a whole. The article made clear that, from the date of ratification, the UK was bound forever by the treaty and made several references to the UK having broken the treaty. The columnist said that on 25 September 1964 the UK was no longer bound, without any explanation having been given at the time, and included a passage from the court of appeal judgment of Lord Diplock by way of explanation for this apparent contradiction. The passage explained the reason why the court had ruled in favour of the government: “the Crown [the Government] has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before”. The columnist suggested that the Judge had been silent on whether or not he thought breaking international law was right or wrong because it was a question of politics. The article further noted that the domestic law of the country must be followed and this may mean that, by obeying domestic law, the UK can break international law. Taken in this context, the Committee was satisfied that readers would not be misled into thinking that the UK had withdrawn from the Geneva Convention on the Sea, but rather would understand that the English court did not make a finding against the government after it had broken the treaty and that, in this sense, on 25 September 1964 the UK was not “bound” by the treaty or by international law. There was no breach of Clause 1 on this point.

Conclusion

10. The complaint was not upheld.

Date complaint received: 28/09/2020

Date complaint concluded by IPSO: 20/04/2021