Brooks Newmark Sunday Mirror case: IPSO decision

IPSO has found that an article headlined: ‘Tory Minister quits over sex photo’, published by the Sunday Mirror in September 2014, did not breach the Editors’ Code, in a decision published today. The journalist had deployed subterfuge, but IPSO found that the investigation was initiated on sufficiently credible grounds and the use of subterfuge and misrepresentation and the level at which it was used at each stage of the investigation was justified in the public interest.Brooks Newmark made no complaint to IPSO, but the article and the newsgathering techniques used to obtain it raised issues under the Editors’ Code and were a matter of public concern. IPSO decided to make inquiries of the Sunday Mirror to ensure that it had complied with its obligations under the Editors’ Code of Practice. Mr Newmark was invited to cooperate with these inquiries but declined to do so.

The investigation was carried out by a freelance journalist, but the Sunday Mirror accepted that, in publishing the article, it accepted responsibility for ensuring that the article and the investigation were in line with the Editors’ Code.

Matt Tee, Chief Executive of IPSO said:

“The Editors’ Code prohibits subterfuge unless in the public interest and only then where there is no other practical means of obtaining the story. This case raised public concerns and it was important that IPSO make inquiries, whether or not there was a complaint. After a lengthy investigation we have found that the subterfuge used was justified at each stage of the investigation and publication was in the public interest.”

IPSO’s report of its inquiries confirms that all published items are bound by the Editors’ Code, irrespective of their source. It also restates IPSO’s determination to conduct such inquiries whether or not a complaint is received from one of the involved parties.

Matt Tee added:

“I hope IPSO’s report into this issue is helpful for journalists and editors seeking to understand our approach to the use of subterfuge and misrepresentation. It is most important that IPSO has the freedom to undertake inquiries of this sort and we are clarifying this power with the industry.”

Issues arising from an article in the Sunday Mirror on 28 September 2014

Background to these inquiries

1. On 28 September 2014, the Sunday Mirror published an article headlined “Tory Minister quits over sex photo”. The article reported that Brooks Newmark MP had resigned as Minister for Civil Society the previous day, after the newspaper had informed him it intended to report that he had sent an explicit image of himself to an undercover reporter posing as a female Conservative Party activist.

2. The article was based on material obtained by a journalist, Alex Wickham, who worked for the Guido Fawkes blog, which was subsequently offered to the newspaper for publication.

3. Mr Wickham set up a Twitter account under the false name ‘Sophie Wittams’, described as a “twentysomething Tory PR girl”. The ‘Sophie’ account followed 88 Twitter users, including MPs, political organisations, celebrities and newspapers.

4. The initial phase of his investigation was limited to following other Twitter users, retweeting messages and commenting on tweets published by others. Mr Newmark subsequently initiated private contact with ‘Sophie’ via direct messages, which culminated in an exchange of explicit images. This exchange was the subject of the article.

5. Mr Newmark made no complaint to IPSO, but the article and the newsgathering techniques used to obtain it raised issues under the Editors’ Code of Practice and were a matter of public concern. IPSO decided to make inquiries of the Sunday Mirror to ensure that it had complied with its obligations under the Editors’ Code. Mr Newmark was invited to cooperate with these inquiries but declined to do so.

6. The Sunday Mirror maintains that IPSO does not have the power to make formal inquiries, leading to an adjudication, about this matter, in the absence of a complaint from a directly involved party. It emphasised, however, that it did not seek to avoid addressing IPSO’s concerns. The newspaper cooperated with the investigation, making full submissions. IPSO does not accept the newspaper’s contention, but does acknowledge that this power needs to be more explicitly stated in its regulations. Accordingly, this is the determination of the Committee and is not an adjudication under the existing rules.

Relevant Code Provisions

Clause 10 (Clandestine devices and subterfuge)

(ii) Engaging in misrepresentation and subterfuge, including by agents and intermediaries, can generally be justified only in the public interest and then only where the material cannot be obtained by other means.

Public interest

1. The public interest includes, but is not confined to:

i) Detecting or exposing ….. serious impropriety….

(iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2. There is a public interest in freedom of expression itself.

3. Whenever the public interest is invoked, the Regulator will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time.

Findings of the Committee

The issues

7. In considering whether there had been a breach of Clause 10 of the Editors’ Code, IPSO examined the following questions:

a. Was there misrepresentation and subterfuge when the ‘Sophie Wittams’ Twitter account was set up, followed other accounts, tweeted and re-tweeted?

b. If there was misrepresentation or subterfuge, was the decision to launch the investigation using such methods based on pre-existing credible information?

c. Was there misrepresentation and subterfuge after Mr Newmark contacted ‘Sophie’ privately with a direct message?

d. If there was misrepresentation and subterfuge, had the editor of the Sunday Mirror demonstrated fully that she had grounds for a reasonable belief that (i) both the investigation and publication of its outcome were in the public interest and how, and with whom, that was established at the time; and (ii) that the material could not have been obtained by other means?

e. Did a sufficient public interest justify the investigation and publication?

The setting up of the Twitter account

8. The ‘Sophie Wittams’ Twitter account was set up by Mr Wickham. A confidential source had told him that they had spoken to a number of women who claimed to have been approached on social media by members of Parliament, including Mr Newmark. The women alleged that the MPs acted on the pretext that the contacts were professional, but in fact were attempting to initiate inappropriate relationships. Based on conversations with other sources, Mr Wickham believed that there were grounds to suspect a pattern.

9. Mr Wickham considered that there was a significant public interest in investigating this further, given the imbalance of power between an MP at the top of the political ladder, and a woman involved at a low level in party politics. None of the sources was willing to speak on the record, and Mr Wickham therefore concluded that it would not be possible to corroborate the allegations without using subterfuge. He elected to set up the Twitter account to test whether it would receive contacts of the kind that his sources had described.

10. The Sunday Mirror says that the 88 accounts followed by ‘Sophie’ included some, but not all, of the MPs about whom he had received information about inappropriate contacts with women, including Mr Newmark. This activity was open and visible to other users, and was intended to ensure that the profile appeared credible. The newspaper asserts that the account did not initiate private correspondence. While Mr Wickham had received information about several individuals, the focus of the investigation, from the start, according to the Sunday Mirror, was Mr Newmark.

11. The Sunday Mirror contends that the subterfuge and misrepresentation at this stage, if indeed it amounted to subterfuge and misrepresentation, was minimal – because Mr Wickham did not initiate private communication with any other user – and necessary to establish the credibility of the Twitter account.

12. The decision to launch an investigation using clandestine means must be based on credible information that the person or persons to be investigated have previously behaved in the manner suspected, or that there are specific reasons to believe they would do so. Those who decide to cast a net that involves misrepresentation or subterfuge for the purposes of initiating an investigation must be in possession of such information before they do so, if they are to comply with Clause 10.

13. Mr Wickham said that he had a confidential source who had spoken to several women who had been approached on social media by MPs, including Mr Newmark. The Editor of the Sunday Mirror has provided a statement to IPSO as part of the newspaper’s response to IPSO’s inquiries in which she describes a meeting she held with the newspaper’s political editor to discuss the investigation. She says in her statement that, following this meeting, she resolved to double check the validity of the source and to “put more detail around who the source was and the validity of previous tips.” She probed the strength of this source and was convinced that the source was sufficiently credible to have justified initiating the investigation.

Conclusions

14. Although many people set up Twitter accounts under false names, when journalists conceal their identities in an attempt to obtain information which would not otherwise be provided, they are engaged in misrepresentation and subterfuge. The purpose of setting up the account was to see whether a Tory MP or Minister would be tempted into improper communication. Accordingly, the setting up and use of the Twitter account was within the scope of Clause 10 and required a public interest justification.

15. Under the terms of the Editors’ Code, subterfuge can only be justified if it is deployed to obtain information which cannot be obtained by other means. The nature of the justification required depends on the nature of the subterfuge to be used. In relation to the setting up of the Twitter account and the public exchanges, IPSO considered that the subterfuge was only slight; there was no direct enticement, nor was there any direct contact. At this stage, accordingly, the information relied upon did not need to have been as substantial as it would have needed to be, had Mr Wickham directed any inducement to act indiscreetly against a particular individual. Given that Mr Wickham’s source was not prepared to go on the record, IPSO accepts that there was no alternative to subterfuge to investigate the story, and the initial phase of the investigation did not breach Clause 10.

Misrepresentation and subterfuge after Brooks Newmark initiated private communication

16. Mr Newmark initiated the private, direct message contact with ‘Sophie’. He had tweeted about Wimbledon tennis, in reply to which she had tweeted “Ha Ha”. He had then sent her a private message: “Glad you appreciate my sense of humour and how seriously I take my sport! :-)”.

17. After a number of messages had been exchanged, including a suggestion by Mr Newmark that they meet, he had asked ‘Sophie’ to send a photograph of herself.

Following an exchange of several pictures, ‘Sophie’ suggested that they “take it to the next level”. Mr Newmark agreed and, having received an explicit image, requested a further image in a different pose in exchange for “something in return”. The newspaper says that he later sent an explicit image of himself.

Conclusion

18. Mr Newmark’s decision to send a private message triggered an escalation of the degree of subterfuge and misrepresentation. Thereafter, it was he who decided to ask for a photograph in circumstances where, so far as any journalist might reasonably believe, there was no reason to do so other than to intensify the exchange. It was only after an exchange of pictures that ‘Sophie’ suggested they “take it to the next level”.

19. IPSO has considered whether this suggestion amounted to an acceleration of the subterfuge, unjustified by the previous exchanges. In the context of the messages as a whole, and, in particular the unnecessary request for and exchange of photographs which preceded this acceleration, it has concluded that the suggestion was justified by the preceding events. The level of subterfuge and misrepresentation used at each point of the investigation was justified and did not represent a breach of Clause 10.

20. During IPSO’s inquiries, the Sunday Mirror declined to provide full details of the messages exchanged between the reporter and Mr Newmark, without Mr Newmark’s consent. It did provide a redacted version of the exchange which supported the chronology of the messages published in the article, including those quoted above. Given its own duty of confidentiality, IPSO questions the need for the full exchange to have been withheld or redacted, but appreciates the need to take into account Mr Newmark’s privacy. Nonetheless, IPSO had sufficient information about the exchange of direct messages to reach the above conclusion.

The Editor of the Sunday Mirror’s belief that the investigation and the publication of its outcome were in the public interest

21. The question of whether there was credible information justifying the launch of the investigation is distinct from the question as to whether there was a public interest in pursuing the investigation and publishing its outcome. The following paragraphs cover the Editor’s treatment of these discrete issues.

22. The Editor of the Sunday Mirror said in her statement that she was aware of the requirements of the Editors’ Code, particularly Clause 10, and understood that the Sunday Mirror was responsible under the Code for the way the investigation was carried out by the freelance journalist.

23. The Sunday Mirror told IPSO that there were specific allegations about individual MPs, including Mr Newmark. Mr Wickham had a primary source that had been involved in discussions with several young women who had received private messages on social media which made them feel deeply uncomfortable and under pressure to agree to meet them.

24. The newspaper said that, although this amounted to solid grounds to investigate, Mr Wickham spoke to other sources, including a senior political journalist, who corroborated some of Mr Wickham’s information.

25. The newspaper said that there was clearly a continuing and consistent pattern of behaviour that had been causing concern and had provided solid grounds for the investigation. As a result of these initial conversations with contacts, Mr Newmark had become the main focus of the investigation.

26. The Editor of the Sunday Mirror says that, following an internal meeting, she resolved to double check the validity of the source and to put more detail around who the source was and the validity of previous tips. She believed that the credibility of the original source justified the investigation. She had been satisfied that the alleged behaviour had warranted investigation in the public interest, and that the allegations made to the journalist by the source were “credible and more than just repeated gossip”.

27. The Sunday Mirror did not provide evidence to IPSO to substantiate these claims on the grounds that to do so might reveal who the sources were, contrary to Clause 14 of the Editors’ Code, which states that “Journalists have a moral obligation to protect confidential sources of information”. It is also in the nature of story-gathering, especially at Westminster, that such contacts between journalists and contacts are not always recorded.

28. The Editor believed that the credibility of the original source justified the investigation. She had discussed with the newspaper’s Political Editor Mr Newmark’s position as a cabinet minister and a co-founder of Women2Win, a campaigning group that aims to increase the number of Conservative women in Parliament. She had been satisfied that his behaviour had warranted investigation in the public interest, and that the allegations made to the journalist by the source were “credible and more than just repeated gossip”. The journalist had spoken directly to some women making allegations about their own experiences in relation to Mr Newmark and other MPs, and had spoken to a regular source who was “relaying the concerns of several other women”.

29. The Editor said that she had satisfied herself that there had been no alternative means by which the story could be obtained. The source was not prepared to go on the record and had the journalist approached MPs openly about the allegations, they would have been denied. She felt that the subterfuge at each stage was a justifiable and proportionate development in the investigation

30. The Sunday Mirror noted that following publication, other newspapers had published claims about Mr Newmark sending a series of explicit images to a woman via social media and allegations that he had had an affair with a woman he met on Facebook. The newspaper further asserts that Mr Newmark had accepted publicly that he had been involved in “a series of flirtations in response to approaches from women on social media” and that the exchange with the journalist was only “one of these episodes”. He had stood down as an MP. This supported the original source’s claim that Mr Newmark had engaged in a pattern of behaviour.

Conclusion

31. It is important to underline the responsibilities of the Editor when approached by Guido Fawkes and Mr Wickham with their story. By then the whole investigation had been completed. It was not the newspaper’s investigation, but the Sunday Mirror Editor was as responsible for ensuring that the investigation complied with the requirements of Clause 10 as if she had initiated it herself. The Editor rightly accepts this obligation.

32. There is always a danger that a newspaper relying on confidential sources will not convince the regulator that it had sufficient grounds for the investigation it conducted. In this case, however, IPSO found that the description of the exchanges between the journalist and his contacts was credible and the processes the Editor used to confirm the credibility of the sources were those IPSO would have expected.

IPSO’s view of the Editor’s judgement

33. In cases involving subterfuge, IPSO will have regard to the strength of any evidence which would justify deploying this tactic in the first place; evidence that escalation of the deception was justified at every stage by the actions and reactions of the subject of the investigation; and evidence that at the outset and at all key stages of the subterfuge the newspaper, or its agents, reviewed and gave heed to whether or not it was reasonable to continue the subterfuge.

34. The investigation cannot be justified by its outcome. Clause 10 deals with journalistic practices and prohibits the use of clandestine methods save in the circumstances identified. For those reasons, the mere fact that the investigation leads to a story the publication of which is in the public interest does not provide justification after the event. The events following Mr Newmark’s resignation and events after publication are not material to the question of whether the investigation was justified and cannot be relied upon by the Editor.

35. The matter of whether the evidence could not be obtained by means other than the subterfuge used in this investigation is not just for the judgement of the Editor; after the fact, it is for IPSO to judge whether the process was consistent with Clause 10. Any existing or aspirant worker in the political field would be highly unlikely to jeopardise their future careers by disclosure. IPSO is satisfied that the Editor was correct in her judgment that this information could not be obtained openly.

36. The public interest is a separate question. Again, the matter is not merely for the Editor, even if she demonstrates that she reasonably believed the investigation and publication to be in the public interest. These are also matters, after the fact, for the judgement of IPSO. IPSO accepts that the Editor had given proper consideration to the requirements of the Code in deciding to proceed with publication of the story. The material obtained showed that a Government Minister who had made public his commitment to promoting a positive role for women in politics and was subject to a duty to uphold the highest standards in public life had engaged in an exchange of messages of a sexual nature with a woman he believed to be a junior party activist. IPSO is satisfied that both the investigation and publication were in the public interest.

Conclusion

37. The use of subterfuge in the investigation was justified at each stage, and the investigation and article were in the public interest. Subterfuge was found to be justified as:

• there was sufficiently credible evidence of a story in the public interest
• there were no alternative means of pursuing the story
• it was proportionate to the initial evidence and then to the escalating behaviour of Mr Newmark
• it was compliant with the obligations placed on editors.

Publication was found to be justified by the public interest in the material obtained under:

• public interest test i) exposing serious impropriety by an MP
• public interest test iii) preventing the public from being misled by: Mr Newmark’s purported commitment to the “highest” standards of behaviour for a Minister; Mr Newmark’s purported commitment to promoting, at a very senior level, an environment in which Conservative women can be appropriately encouraged and supported in achieving political success.

38. There was no breach of the Editors’ Code.

Remedial Action Required

N/A

Originally published 26 March 2015