00359-22 Kay v express.co.uk

Decision of the Complaints Committee – 00359-22 Kay v express.co.uk

Summary of Complaint

1. Anthony Kay complained to the Independent Press Standards Organisation that express.co.uk breached Clause 1 (Accuracy), Clause 3 (Harassment), and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “Antivaxxers are dumb as breeze blocks - it's time we stopped tolerating them PAUL BALDWIN”, published on 11 January 2022.

2. The article – which appeared online only – was an opinion piece, setting out the writer’s view on “[a]ntivaxxers” – people who have chosen not to receive a Covid-19 vaccine. It stated that people “are fed-up of seven out of 10 Covid-infected people taking up hospital beds not being vaccinated”. It also stated that the writer “like all sane people with a vague concern for self-preservation, […] ha[s] no problem with vaccine passports.”

3. The complainant said that the article contained several inaccuracies in breach of Clause 1. He said that, while the article reported that “seven out of 10 Covid-infected people taking up hospital beds” were unvaccinated, the actual figure was closer to 3 out of 10. He provided statistics from December 2021 to support his position on this point: Statistics from Public Health Scotland showing that 541 vaccinated people were hospitalised versus 168 unvaccinated (2 out of 10); statistics from NHS Wales showing that 433 vaccinated people were hospitalised versus 79 who were unvaccinated (2 out of 10); and figures from the UK Health Security Agency reporting that 8,566 vaccinated people were hospitalised versus 4,738 unvaccinated people (4 out of 10).

4. The complainant also said that the article was inaccurate as the latest figures from the UK Health Security Agency (UKHSA) indicated that 4 out of 5 Covid-19 deaths in the month leading up to 11 January 2022 had occurred amongst the double and triple vaccinated; the Covid-19 vaccine was “experimental” and would not be authorised until 2023; and that the article omitted to state that Covid-19 vaccinations did not prevent either infection or the transmission of Covid-19. He then said that the article could not simply be the comment of the article’s writer, given that the publication had – in his view – adopted the writer’s position in its headline, and therefore it was not distinguished as comment in line with the terms of Clause 1 (iv).

5. The complainant also said that the article breached Clause 12 and Clause 3, as he believed the headline and article was intended to shame people who had chosen not to be vaccinated.

6. The publication did not accept that the article breached the Editors’ Code. Turning to the complainant’s Clause 1 concerns, it said that that the BMJ had – on the 4th of January 2022 – published a fact check, addressing the question of how many patients in UK intensive care units who had Covid-19 were unvaccinated. The fact check had found that in December 2021 the proportion of patients admitted to critical care in December 2021 with confirmed Covid-19 who were unvaccinated was 61%, having fallen from a 75% in May 2021. It also noted that not all patients who are admitted to hospital would use a hospital bed, and that occupied hospital beds within critical care settings were the most crucial.

7. The publication also noted that the BMJ’s Fact Check had found that the highest rate of unvaccinated patients in intensive care was 66% and, in north-east London in December 2021, 80% of critical care patients had not received two doses of the vaccine. With this in mind, it considered that there was sufficient basis for the article that “seven out of 10 Covid-infected people taking up hospital beds” were not vaccinated.

8. While the publication did not accept that the “7 out of 10” reference was inaccurate, it did offer to amend the article as a gesture of goodwill to refer specifically to critical care beds, rather than hospital beds. It also said that it would be content to add a line to the article, clarifying the sources of the “7 out of 10” figure.

9. Addressing the complainant’s Clause 12 concerns, it said that these concerns did not engage the terms of the Clause and therefore it could not have been breached. The publication did not address the complainant’s Clause 3 concerns.

10. The complainant said that amending the article on a single point would not be sufficient to address his concerns; he said that, in publishing the figures in the first place, the publication was “following uncritically the [government] narrative”.  He also said that, even if one assumed that the 6 out of 10 figure from the BMJ was correct, this was not the same as 7 out of 10, as the article reported.

11. He also said that IPSO should not take a narrow, legalistic view of the terms of Clause 3 and Clause 12, and should accept that his concerns fell under the terms of these Clauses and should be addressed. He also said that the article should make clear that only 20% of critical care beds were utilised. Finally, he noted that he would perhaps be content to resolve his complaint should the publication publish some form of wording which accepted that the article was “provocative” and had gone too far.

12. The publication did not consider that it would be appropriate to publish the wording suggested by the complainant, but said that it would be happy to add further wording to the article – beyond simply amending it – in the form of a footnote, elaborating on what amendments had been made and why. It proposed to publish the following footnote:

This article has been amended to make clear that the statistic of 'seven out of 10 Covid-infected people taking up hospital beds' relates to those in critical care, and taking up hospital beds long term. We are happy to clarify this.

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.

Clause 3 (Harassment)*

i) Journalists must not engage in intimidation, harassment or persistent pursuit.

ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.

iii)  Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.

Clause 12 (Discrimination)

i) 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.

ii) Details of an individual's race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.

Findings of the Committee

13. While the Editors’ Code acknowledges that the press is entitled to publish the view of individuals, there remains an obligation under Clause 1 to take care not to publish inaccurate, misleading or distorted information. The article included the claim that “seven out of 10 Covid-infected people taking up hospital beds [are not] vaccinated” and – while the claim had appeared in a comment piece – the publication had not disputed that the claim was a claim of fact.

14. The Committee noted that there were a wide-range of figures, all of which were from reliable sources – devolved governments, medical journals, and local NHS trusts – regarding how many individuals in critical care with Covid-19 were unvaccinated, with the lowest estimates ranging from 30% and the highest being recorded as 80%. The Committee noted that it was not in a position to resolve the discrepancy in these figures; rather, its role was to determine to what extent, if any, the publication had a factual basis for stating that “seven out of 10 Covid-infected people taking up hospital beds [are not] vaccinated”, and whether it could establish any inaccuracy requiring correction.  The Committee noted that there were differences in methodology between the sources, with some sources defining “unvaccinated” as someone who had not – in December 2021 – received two doses of a Covid-19 vaccination, and other sources defining it as someone who had received no doses at all.

15. The publication had provided figures which showed that the proportion of people who had received no vaccinations at all who were being treated in a critical care setting in a hospital had peaked at 75% in May 2021, before dropping then rising again to 61% in December 2021, according to the BMJ. The Committee also noted the wider context at the time that the article was published, which was that critical care bed occupancy, and the pressure on critical care units – rather than overall hospital bed admissions – was a key component of reporting and debate. The data demonstrated, therefore, that the figure varied, and that at times it had been the case that 7 out of 10 people occupying critical care beds who were unvaccinated. There was, therefore, a basis for the “7 out of 10” figure, and no breach of Clause 1 arose from reporting this figure.

16. The complainant had also said that the article breached Clause 1 as it omitted to refer to the following points: that figures from the UK Health Security Agency (UKHSA) indicated that 4 out of 5 Covid-19 deaths in the month leading up to 11 January 2022 had occurred amongst the double and triple vaccinated; that the Covid-19 vaccine was “experimental” and would not be “authorised” until 2023; that Covid-19 vaccinations did not fully prevent either infection or the transmission of Covid-19; and that only 20% of critical care beds were in use during the pandemic. Newspapers have the right to choose which pieces of information they publish, as long as this does not lead to a breach of the Code. In this instance, there was no obligation for the article to refer to the information flagged by the complainant, where not doing so did not render the thrust of the article – that the writer believed there should be more measures in place to discourage people from refusing the Covid-19 vaccination – inaccurate. There was no breach of Clause 1 on this point.

17. While the complainant considered that the scope of Clause 12 and Clause 3 should be widened to deal with his concerns, the Committee noted that its role was to adjudicate on complaints based on whether the terms of the Clauses have been breached; it would not be possible, or desirable, for the Committee to unilaterally expand its remit to address concerns which do not relate to the Code as written.

18. With this in mind, the Committee did not consider that the terms of Clause 12 or Clause 3 had been breached, where the former Clause relates to specific references to an individual’s protected characteristic – and the article under complaint included no such reference – and the latter Clause generally relates to contact from journalists during the newsgathering process. There was therefore no breach of Clause 12 or Clause 3.

Conclusion(s)

19. The complaint was not upheld.

Remedial Action Required

20. N/A

Date complaint received: 11/01/2022

Date complaint concluded by IPSO: 06/06/2022

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