Unwrapping IPSO's surprising hijab ruling

The Original Article

Earlier this year, the world was in mourning following the horrific terror attacks in Nice in July. This prompted Kelvin MacKenzie, the columnist and one-time editor of The Sun, to question whether it was "appropriate for [Fatima Manji] to be on camera when there had been yet another shocking slaughter by a Muslim" in his article headlined "Why did Channel 4 have a presenter in a hijab fronting coverage of Muslim terror in Nice" (the Article).

In the Article, Mr MacKenzie described his reaction to the news coverage, stating that he could "hardly believe [his] eyes" that a "young lady wearing a hijab" was reporting on the attack that took place the day before. Mr MacKenzie wrote that the decision not to remove Ms Manji from anchoring (by reason of her wearing the hijab) was "massively provocative". The Article blamed "editorial stupidity" that, given all the major terrorist attacks throughout the world "currently being carried out by Muslims", there was no one in the studio who was "representing [his] fears".

The Article was published in The Sun on 18 July 2016. As a result, Ms Manji complained to the Independent Press Standards Organisation (IPSO) that by publishing the Article, The Sun had breached Clause 1 (Accuracy), Clause 3 (Harassment) and Clause 12 (Discrimination) of the Editors' Code of Practice (the Code). IPSO received an additional 1,900 complaints about the Article.

Shortly after the Article was published, Ben de Pear, editor of Channel 4 News, described Mr MacKenzie's comments as "offensive, completely unacceptable, and arguably tantamount to inciting religious and even racial hatred". The Article was also labelled "gutter journalism" by Baroness Warsi.

The Complaint

In her complaint to IPSO, Ms Manji set out her concerns that the Article had inaccurately claimed that Islam was "a violent religion" and had given the misleading impression that she had been chosen to present the coverage as part of a "TV news game". Ms Manji said that she believed the purpose of the Article was to rouse hatred against Muslims in general and her specifically.

She argued that the Article discriminated against her on the basis of her religion because she believed it suggested that her appearance on screen wearing a hijab was as distressing as witnessing a terrorist attack and specifically that, given Mr MacKenzie's ostensible apprehension that nobody in the studio was "representing [his] fears", her sympathies lay with the terrorists simply for the reason that she is Muslim.

The Ruling

On 19 October, IPSO published its ruling in Manji v The Sun. It cleared Kelvin MacKenzie of any wrongdoing in relation to the Article because, while it conceded that its content was "deeply offensive" and clearly caused "widespread concern and distress" to Ms Manji and the 1,900 other complainants, it only contained prejudicial and pejorative references to the Islamic religion as a whole rather than Ms Manji specifically (or indeed any other distinct and identifiable individuals).

Clause 12 prohibits prejudicial or pejorative references to an individual's race, colour, religion, gender, identity, sexual orientation or to any physical or mental illness or disability. It does not specifically provide protection against prejudicial or pejorative remarks made against groups or categories of people. IPSO acknowledged that the Article "contained pejorative references to Islam" but did not deem it within their power to sanction the newspaper for doing so. Critics have argued that this is an astonishingly narrow interpretation of Clause 12 given that hate speech inherently, and perhaps purposefully to create maximum offence, operates at group level – whether directed at an individual's (whether explicitly referred to or not) religion, race, creed, gender, sexual orientation or disability.

IPSO conceded that while the Article did refer to Ms Manji, it was only to trigger the wider discussion about whether newsreaders should be allowed to wear religious symbols. Even so, Ms Manji and her supporters argue that Mr MacKenzie's questioning of whether Ms Manji should herself be on camera following "another shocking slaughter by a Muslim" explicitly aligns her with the terrorists who carried out the attack given that each reference to Ms Manji contains reference to her religion.

The Sun (successfully) characterised the Article as a broader debate about religious dress. IPSO found that Mr MacKenzie was "entitled to express his view that, in the context of a terrorist act which had been carried out ostensibly in the name of Islam, it was inappropriate for a person wearing Islamic dress to present coverage of the story".

Comment

Ms Manji has described IPSO's ruling as "frightening". As she has explained since, a third of the victims of the Nice attack were Muslim. Irrespective of the fact that she was scheduled to appear ten days beforehand, the decision to anchor Ms Manji could be interpreted as a sign of compassion for the victims and a challenge to negative stereotypes. Mr de Pear said that "whilst [Channel 4] agree that freedom of expression is a fundamental right, we do not believe that it should be used as a licence to incite or discriminate".

It is perhaps noteworthy that shortly after the publication of the ruling Trevor Kavanagh, a columnist for The Sun and board member for IPSO, wrote an article (from which IPSO has distanced itself) in which he accused Ms Manji of "making a fool of herself" because her wearing of the hijab was a "provocative gesture" and that it wasn't Mr MacKenzie who singled her out, but that "in fact she singled herself out by dressing as she did". Kavanagh replaced Bill Newman on the board for IPSO, who left earlier this year because of his close connection to The Sun.

Critics have argued that the implication of this ruling it is that, in Ms Manji's words, it signifies "open season" for newspapers to write highly prejudicial and pejorative articles about groups, religions and categories of people provided that it does not make reference to a specific and identifiable person. In the months following Brexit, the UK has seen an exponential increase in hate crime against distinct groups of people. This is plainly to be discouraged, but if columnists are able to publish such remarks, it makes it more difficult to argue that the man in the street should also be silenced.

It will be interesting to see if IPSO amends Clause 12 to prevent this from happening again. Unfortunately for IPSO, and in the context of Impress recently being approved as the first officially recognised press regulator, the decision also plays into the hands of its critics who question its independence and viability as an effective regulator.

 If you require further information on anything covered in this briefing please contact Oliver Lock ([email protected], 020 3375 7201) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Defamation and Reputation Management page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2016