00804-20 Smith v The Herald

Decision of the Complaints Committee – 00804-20 Smith v The Herald

Summary of Complaint

1. Marjory Smith complained to the Independent Press Standards Organisation that The Herald breached Clause 1 (Accuracy), Clause 2 (Privacy), and Clause 3 (Harassment) of the Editors’ Code of Practice in an article headlined “SNP trans row deepens as women's officer reported over 'hateful' remarks” published on 27 October 2019.

2. The article reported that the complainant, the women’s officer of a local branch of a political party, had been reported to party headquarters for making remarks which other members of her political party considered to be transphobic and offensive. The article reported comments the complainant had made on Facebook describing a transgender person as a “mental f*****g pervy git”, describing transgender women in general as “things”, and saying that transgender activists were “possessed by an evil dangerous cult”. It also reported that she said that a transgender woman looked like a named serial killer. The article then went on to quote from a message she had sent to a prospective councillor. The article explained that the complainant had initially contacted the prospective councillor via Facebook message to try to gain her support in relation to a gender related issue. When the prospective councillor indicated that she did not support the issue, in reply the complainant said that transgender women “…are and will always be nothing but men” and compared those who support transgender equality to Jehovah’s Witnesses. The article reported comments from the prospective councillor, who expressed her concern and said that it was “…very much coming from a place of transphobia”. The article also included a response from the complainant to the allegation that she was transphobic, in which she denied that she was transphobic, describing herself as a “transgender ideology heretic”.

3. The article also appeared online in the same form, with the headline “SNP women’s officer who called trans woman “mental pervy git” and compared another to serial killer [name] reported to HQ”.

4. The complainant said that quoting from her Facebook message to the prospective councillor constituted an intrusion into her privacy, in breach of Clause 2. She said that although the first Facebook message which she had sent to the prospective councillor was in the same terms as messages which she had sent to approximately 20 individuals, it was confidential. She said that the second message she had sent to the prospective councillor, in which she said that transgender women “…are and will always be nothing but men” and compared those who support transgender equality to Jehovah’s Witnesses, was not intended for public consumption, and revealed her own views on gender related issues. She also expressed concern that the article identified the local party branch where she held the post of women’s officer.

5. The complainant also said that the article was misleading in breach of Clause 1, because it had not included the context in which her comments had been made. She said that if this context were included, it would be clear that her criticisms of the transgender individuals and activists were justified; she considered that she was responding to “outrageous intrusion into women’s spaces by predatory, aggressive men”. She also raised concerns that the article did not adequately distinguish which comments she had made on social media, and which she had sent to the prospective councillor via Facebook message. Finally, she also said that the article breached Clause 3, as the reporter would have had to have “trawled” her public Facebook profile in order to find her comments about the transgender individuals, and that the article was a co-ordinated “attack” on her and those who shared her views.

6. The publication did not accept that there was a breach of the Code. It said that reporting the complainant’s comments did not constitute an intrusion into her privacy. The complainant accepted that her Facebook profile was open to the public and so the publication said that the reporter was free to report the comments she had made about the transgender individuals. In relation to the messages she sent to the prospective councillor, the publication did not accept that reporting these revealed anything private about the complainant– it only reported her views on transgender people. It noted that the complainant had sent her first Facebook message to approximately 20 other politicians to seek their support for her cause, and introduced herself as a woman’s officer for the political party to which she belonged – it was clear that she was not sending the messages in a personal capacity. Furthermore, the publication said that when the reporter contacted the complainant for comment, she made her aware that the article would be based on her social media comments and message conversation with the prospective councillor. She said that she was in shock when she received the message and was not sure how to respond. The complainant did not raise any concerns that this information was private, and instead gave a full response for publication defending her remarks. Nevertheless, the publication said that there was a public interest in reporting these comments, given the office held by the complainant, and that there was an ongoing high profile debate about transgender issues in Scottish politics, which it had been covering in several articles over the past two years. It said that the reporter had spoken with the assistant editor about the public interest in publishing the comments made by the complainant.

7. The publication did not accept that the article was misleading. It said that the complainant did not dispute that her comments had been quoted accurately, and it was not necessary for the article to include the full context of these comments for the article to be an accurate report of what she said. It said that the article made clear what the complainant had posted on social media, and what was said in the messages to the prospective councillor. The publication did not accept that it had harassed the complainant – it was allowed to report on the complainant’s publicly expressed views, as she was entitled to express them.

Relevant Code Provisions

8. 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.

9. Clause 2* (Privacy)

i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual's private life without consent. In considering an individual's reasonable expectation of privacy, account will be taken of the complainant's own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.

10. 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.

*The Public Interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

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

• Detecting or exposing crime, or the threat of crime, or serious impropriety.
• Protecting public health or safety.
• Protecting the public from being misled by an action or statement of an individual or organisation.
• Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.
• Disclosing a miscarriage of justice.
• Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
• Disclosing concealment, or likely concealment, of any of the above.

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

3. The regulator will consider the extent to which material is already in the public domain or will become so.

4. Editors invoking the public interest will need to demonstrate that they reasonably believed publication - or journalistic activity taken with a view to publication – would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time.

5. An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.

Findings of the Committee

11. The Committee had regard for the terms of Clause 2(i), which specifically reference respect for a person’s digital communications. The question for the Committee was whether the article, in reporting the comments made by the complainant in the Facebook message, had reported information about which the complainant had a reasonable expectation of privacy.

12. In the first Facebook message, the complainant had introduced herself as Women’s Officer of the local branch of a political party and raised a political issue in respect of which she had sought the prospective councillor’s support. The second message, from which the complainant's comments had been quoted, had continued the exchange and contained no indication that the complainant considered the exchange to be private. Further, the comments made by the complainant which had been reported in the article related to the political issue and not to an aspect of the complainant’s private life. In light of these circumstances, the complainant did not have a reasonable expectation of privacy in relation to the information contained in the messages and reporting the views which she had expressed on the political issue in the second message did not constitute an intrusion into the complainant’s private life. The complainant accepted that the comments she made about the transgender individuals had been posted on a publicly accessible Facebook page. As such, she did not have a reasonable expectation of privacy in respect of these comments, and the publication was free to include them in the article. The political office that a person holds, or the local branch of a political party to which a person belongs, is not information about which a person generally has a reasonable expectation of privacy. For all of these reasons, there was no breach of Clause 2.

13. The complainant did not dispute that the article had accurately reported the comments she had made on Facebook, and the message she had sent to the prospective councillor. Omitting her perspective on why her comments were justified did not make the article an inaccurate account of what she had said, and it was not inaccurate to report that others had found her remarks to be offensive and had raised the matter with the party to which the complainant belonged. There was no breach of Clause 1. Clause 3 generally relates to approaches made by journalists during the newsgathering process, and not the decision to publish an article or focus on a topic. As such, the complainant’s concerns under this Clause did not engage the terms of Clause 3.

Conclusions

14. The complaint was not upheld.

Remedial Action Required

15. N/A

Date complaint received: 12/02/2020

Date complaint concluded: 30/04/2020

The complainant complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Independent Complaints Reviewer decided that the process was not flawed and did not uphold the request for review.