Decision of the Complaints Committee 00844-17 Moss v The Sun
Summary of Complaint
1. Daniel Moss complained to the Independent Press Standards Organisation that The Sun breached Clause 2 (Privacy), Clause 3 (Harassment) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Sicknote Cop Sells Threesomes”, published on 3 December 2016. The article was also published online with the headline: “‘We can be as filthy as you want’ Shocking secret sideline of sleazy PC selling three-in-a-bed romps for £210 an hour after being signed off work for ‘stress’”.
2. The article reported that the complainant, a serving police officer, “has been selling threesomes with his girlfriend for £210 an hour” on an adult escorting website. The article included quotes from the advert: “look at us as a couple and we’re a young energetic couple who you could pass on the street…get us in the bedroom and we can be as filthy as you want”. It said that an undercover reporter from the newspaper had posed as a client and had met the complainant and his girlfriend at their home, after he had booked a “half hour threesome” through their profile on the website.
3. The article reported that “after handing over £120 in cash, our man was led to a bedroom” where he was told by the complainant’s girlfriend to “do what you want within reason”, before the reporter left the flat.
4. The article reported that this had taken place whilst the complainant had been signed off sick from work, and Sussex police had subsequently launched an investigation into his conduct. The article acknowledged that the activity was not illegal but continued by reporting that “the police code of ethics states that officers must ‘avoid any activities (work-related or otherwise) that may bring the police service into disrepute and damage the relationship of trust and confidence between the police and the public’”. The article included a statement from the ex-head of Scotland Yard’s flying squad: “people have a right to expect the conduct of our police to be beyond reproach. Therefore the behaviour of this officer and his partner demands that the police service acts robustly and quickly to deal with it”.
5. The online version of the article included a two-and-a-half minute video of the journalist visiting the complainant’s home, obtained with a hidden camera. This video recorded the conversation which the complainant had with the journalist and showed the journalist handing money to the complainant’s girlfriend, before being led into the bedroom. Aside from the inclusion of the video, the online article was substantively the same as the print version. The online and print articles included images, taken from the video, of the complainant and his girlfriend.
6. The complainant said that he had a reasonable expectation of privacy in relation to the activities he chose to carry out within his own home. He said that he had not been on duty as a police officer when the journalist had entered his home. His position as a serving police officer did not amount to him being a public figure and he had the same expectation of privacy as a member of the public. The website profile was his girlfriend’s and any reference to the involvement of a male did not disclose his identity. He said he was present at the flat in order to assist his girlfriend. He said he did not handle the money, and was not running a business from the address.
7. The complainant said that when the journalist entered his home, he had recorded a video of him without his knowledge or permission. He said that given his identity was not disclosed on the escort website, he had not placed his involvement in the activities into the public domain.
8. The complainant did not accept that the newspaper’s intrusion into his private life and the use of subterfuge and a hidden camera, to obtain and publish the material, was justified in the public interest. He said that there was no public interest in reporting what a police officer, who was off-duty, did in his private home. He said he had been dismissed by Sussex police on the basis that he had breached force policy. He said the chief constable had considered giving him a final warning, rather than dismissing him, but said he could not due to the public nature of the exposé. He denied that he had been advertising his sexual services online, nevertheless he said it would not have been a criminal offence to do so. Further, given that he had not undertaken any illegal activity, he had not placed himself in a position in which he could be blackmailed, and he was not receiving sick pay from the tax payer.
9. The complainant said that the publication of the article amounted to harassment because of the distress caused to him and his family.
10. The newspaper accepted that it had engaged in subterfuge by posing as a client and using a hidden camera, in order to obtain material about the complainant’s activities with his partner. It said that whilst the terms of Clause 10 were engaged, its actions were justified in the public interest.
11. The newspaper said that the reporter had been tipped off by a ‘source’ that the complainant and his partner were offering services on the adult website, and that he was a police officer on long term sick leave. The source had provided the newspaper with the advertisement posted by the complainant on the website. It said that because the advert did not identify the complainant or his partner it was necessary for the reporter to use a hidden camera in order to verify the complainant’s status as a serving police officer.
12. The newspaper provided a summary of the internal correspondence which had passed between the journalist and the newsdesk both prior to the journalistic activity and publication. It said that this correspondence demonstrated that the reporter had considered the terms of the Code and decided that there was a public interest in obtaining the information by subterfuge and use of a hidden camera. The internal memo recorded that the public interest was “exposing this illegal activity as Moss is a serving officer with Sussex Police. His activities also expose him to potential blackmail by criminals”. Prior to publication, the newspaper said its managing editor and legal department had given further careful consideration to the public interest, and decided that it was sufficient to justify publishing the video recording.
13. In response to the complaint, the newspaper said that there was overwhelming public interest in reporting that a serving police officer, on sick leave, was providing sexual services.
14. It said that the complainant was in breach of his duties by falling below the standards expected of serving police officers, and such standards applied to the complainant even when he was off duty. This was reflected by the statement released by Sussex police, released in response to the newspaper’s investigation, which said: “police officers must behave in a manner that does not discredit the police service or undermine public confidence, whether on or off duty”.
15. The newspaper said that its position that the complainant was undertaking illegal activity, was articulated during internal correspondence and at a time where it was unclear to the journalist whether any illegal activity took place in the complainant’s home. The article did not claim the activity was illegal, and this reflected the newspaper’s changed position on the matter. However, the newspaper said the activity was immoral and exposed the complainant to blackmail in his role as a police officer.
16. It said that whilst the interaction with the journalist took place within the complainant’s home, it did not accept that the complainant had a reasonable expectation of privacy in relation to the activities that took place there. It said that the services which the complainant was offering were advertised on a public website; as such his home formed part of a commercial enterprise. In any case, the newspaper argued that any intrusion into the complainant’s private life was justified in the public interest for the reasons already articulated.
17. In response to the complaint, the newspaper said that the decision was taken to publish the video because it provided clear proof and corroboration of the story for its readers. It said that the publication of the video, which showed no sexual activity, was a legitimate editorial decision, taken in order to validate the story.
18. The newspaper said that the journalist did not engage in intimidation, harassment or pursuit when making his enquiries.
Relevant Code Provisions
19. 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. Account will be taken of the complainant’s own public disclosures of information.
(iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.
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 10 (Clandestine devices and subterfuge)*
(i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held information without consent.
(ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.
The public interest
There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
The public interest includes, but is not confined to:
i. Detecting or exposing crime, or the threat of crime, or serious impropriety.
ii. Protecting public health or safety.
iii. Protecting the public from being misled by an action or statement of an individual or organisation.
iv. Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.
v. Disclosing a miscarriage of justice.
vi. Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
vii. Disclosing concealment, or likely concealment, of any of the above.
viii. There is a public interest in freedom of expression itself.
ix. The regulator will consider the extent to which material is already in the public domain or will or will become so.
x. 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.
Findings of the Complaints Committee
20. The terms of Clause 10 were engaged: the journalist had posed as a client and had filmed the complainant through use of a hidden camera. The newspaper had credible evidence, based upon the information provided by the source and the public advert, that the complainant was engaged in the sale of sexual services to members of the public.
21. The public place trust in the police to conduct themselves in accordance with the police code of ethics and there was a clear public interest in verifying the claims of the source, in confirming the complainant’s identity as a serving police officer and in establishing the extent of his participation in the alleged activities. There was also a clear public interest in establishing whether the complainant’s conduct exposed him to potential blackmail as a result of engaging in the sale of sexual services to strangers.
22. The Committee noted that the advert did not identify the complainant; he could therefore have denied the claims made by the newspaper’s source, had they been put to him openly. Further, given the sexual nature of the alleged activities, it was reasonable for the newspaper to have concluded that the complainant would not be willing to verify his involvement in the alleged activities, if an open approach had been made. In those circumstances, the newspaper’s view that subterfuge would uncover material that could not be obtained by other means, was reasonable. Further steps were therefore justified in order to establish the extent of the complainant’s involvement as well as to test the veracity of the source’s claims.
23. The Committee noted that the journalist had engaged in only a brief interaction with the complainant, in order to substantiate his involvement in the provision of sexual services.. This interaction was limited to a discussion only and did not involve any sexual activity.
24. Given that the investigation had the potential to uncover evidence that the complainant was engaging in behaviour which might contravene the police code of ethics, the Committee considered that the newspaper’s actions had been proportionate to the clear public interest in undertaking the investigation.
25. The newspaper had given further consideration to whether publication of the information would serve, and be proportionate to, the public interest it sought to rely upon. The public interest was served by publishing the outcome of an investigation which confirmed that a serving police officer was engaged in activities which may contravene the police code of ethics. In reporting the outcome of its investigation, the newspaper had highlighted aspects of the complainant’s conduct which had the potential to expose him to blackmail, discredit the police service and raise questions which could seriously undermine public confidence in him. In circumstances where the investigation identified matters of a sexual nature, the Committee scrutinised the newspaper’s decision to publish the video and accompanying stills, carefully. The video provided confirmation of the complainant’s identity and the extent of his involvement in the activities; given the clear public interest in establishing this information the Committee did not conclude that the publication of this material was disproportionate.
26. In those circumstances, the publication of this information was therefore justified in the public interest the newspaper had sought to rely upon. There was no breach of Clause 10.
27. The journalist had entered the complainant’s home and had engaged in a conversation with him, which related to his sexual behaviour and preferences. The Committee acknowledged that such details, as well as an individual’s home, are generally considered to be private. It noted, however, that a reasonable expectation of privacy will depend on the circumstances relevant to a particular case.
28. Whilst the Committee noted that the conversation with the journalist took place at the complainant’s home and related to matters of a sexual nature, the complainant had used his home as a location to undertake a commercial transaction, having advertised these matters on a public website. There was no reasonable expectation of privacy in those circumstances. There was no breach of Clause 2.
29. There was no suggestion that the journalist had engaged in intimidation, harassment or persistent pursuit in making their enquiries. There was no breach of Clause 3.
30. The complaint was not upheld.
Remedial Action Required
Date complaint received: 01/02/2017
Date decision issued: 19/05/2017
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