Decision of the Complaints Committee – 01444-20 Ammann v thetimes.co.uk
Summary of Complaint
1. Karl Ammann complained to the Independent Press Standards Organisation that thetimes.co.uk breached Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) in an article headlined “Elephants ‘in trauma’ after illegal export to China from Zimbabwe”, published on 7 November 2019.
2. The article reported that “A group of 32 ‘traumatised’ juvenile elephants” were “being held in concrete pens at an unknown location in China after being spirited out of Zimbabwe as a court was considering their future”. The article went on to report that “a video clip acquired by animal rights activists who have tried for the past year to block the move” suggested that the elephants were showing signs of distress. The article featured a link to the clip in question which was shot inside the enclosure by the animals’ trainer who was commenting on their situation in Thai, without subtitles. The video was annotated with a description of the animals’ situation.
3. The complainant, a wildlife campaigner and photographer, said that the publication of the video represented an intrusion into his privacy in breach of Clause 2. He said that he had a reasonable expectation of privacy in regards to the video, citing its sensitivity and the fact that he owned it; he had arranged for another individual, an elephant trainer, to film it and its publication had led to the his informant’s identification by the Chinese authorities. The complainant said that as the owner of the video and because his source had been identified, his own ability to campaign against the trade of wild animals and elephants to China had been severely undermined. He said that campaigning on this issue was central to his personality and that development of one’s personality fell within Article 8 of the European Convention of Human Rights and therefore Clause 2 of the Code.
4. The complainant said that the publication of the video also represented a breach of Clause 10. He said that the publication had, without consent, published the footage acquired by his source using hidden cameras or clandestine listening devices and accessed digitally-held information. The complainant said that he would have consented to the publication of the video at the appropriate time but the newspaper had not contacted him to get his consent to publish the video; the Code did not provide that it could only be an individual or group working on behalf of a publication to mean the Clause was engaged.
5. The publication denied any breach of the Code. In regard to the complainant’s Clause 2 complaint it said that it had originally acquired the video because an individual the complainant had given the footage to had then shared it on a WhatsApp group containing at least 25 members, a number of whom then shared the Video with wider contacts; the publication also claimed that the video had been published on social media, although it did not provide evidence of this. Therefore, if the complainant considered the audio to have imparted private information it should have been reviewed before he chose to share the video in a scenario where it was foreseeable that it would be re-shared; there was no reasonable expectation of privacy in the circumstances. The publication also noted that for those who spoke the language of the complainant’s informant, the audio would have imparted further information relevant to the plight of the animals. Notwithstanding its position that the video’s publication did not represent a breach of the Code, it said it removed the video on receipt of the complaint.
6. The publication denied a breach of Clause 10 and noted that its provisions concern the use of subterfuge by the press, whereas the video was recorded by the complainant’s informant, and therefore did not apply in this case. The publication noted that the reference to “[accessing] digitally held information without consent” related to the hacking of information, for which there was no such allegation. The publication accepted that subterfuge was used to acquire the footage. However, as the complainant had acknowledged responsibility for the subterfuge and accepted that he would have consented to publication of the video without the audio had he been contacted prior to publication, it was not clear what the complaint was under Clause 10. The publication noted that complainant did not dispute that there was a public interest in the recording and that it was only the publication of the audio which he specifically disputed; a complaint which did not fall properly under the provisions of Clause 10.
7. The publication said that the distress caused to the elephants by their illegal export and conditions of captivity in China was and is a matter of high public interest, as acknowledged by the complainant. It emphasised that the owners of the facility would clearly not have consented to the filming and publicising of the elephants’ condition, had they been aware of the intentions of the activists, meaning that the footage could not have been obtained via any other means. The publication said that the subterfuge was clearly justified by the public interest in highlighting the plight of the animals. Similarly, there was a public interest in reporting on their condition and using the video to assist readers in understanding their situation.
8. The complainant said that he had passed the footage to only two contacts, making clear that he did not wish it to be published at that time, as it could be too easily associated with his recent visit and he did not want his informant to be implicated. In the same message he told his contacts that he could justify the “material getting out with a big bang in about a week”. He accepted that while there might be a sufficient public interest to justify the publication of the footage, there was no public interest in publishing the accompanying audio, which had led to his informant’s identification. The complainant noted that the publication’s removal of the video demonstrated that it was irrelevant to the story and represented an admission from the publication that it had made an error.
Relevant Code Provisions
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. 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.
10. 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.
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 material under consideration – the video and its accompanying audio – did not relate to the complainant’s private or family life; his home; his health; and did not amount to a piece of his correspondence. Indeed, it did not include any information about the complainant at all. Further, the complainant had provided the footage to two colleagues and in doing so had stated that he could justify the wider release of the material “with a big bang” after a week’s hiatus. This did not suggest that the complainant viewed the wider publication of the material as amounting to an intrusion into his private life; rather, his ambition for the footage was to generate significant levels of press attention. In light of the absence of private information about the complainant, and his own intentions for the publication of the footage – including the commentary, albeit in a subtitled rather than audio format - the Committee did not find a breach of Clause 2.
12. The Committee then considered the complaint under the terms of Clause 10 (Clandestine devices and subterfuge). The complaint was highly unusual, in that it was the complainant himself who had instructed an intermediary to engage in a covert filming operation, with a view to using the resulting material in his campaigning activities. He was therefore responsible for gathering the material about which he now complained. Given that the complainant did not appear to harbour concerns about the methods used to capture the footage and agreed there was a strong public interest in its publication, the Committee did not consider that the complaint engaged the terms of Clause 10 of the Editors’ Code of Practice.
13. The complainant sought to distinguish the publication of the audio commentary from the footage, asserting that there was no public interest to justify the publication of the former. He had, however, said that had the commentary appeared as subtitles or with modified audio, the public interest would have been satisfied. It was not, therefore, the content of the commentary about which he complained but rather the inclusion of his informant’s voice. Clause 10 was not the appropriate clause under which to consider this issue – it was at heart a question of confidentiality and the possible identification of a source, not about the news gathering methods used on this occasion. Therefore the terms of Clause 10 were not engaged on this point.
14. The Committee concluded by acknowledging the complainant’s concerns about the apparent consequences of the publication of the footage in this form for the trainer; it noted that these issues were addressed via a parallel complainant.
15. The complaint was not upheld.
Remedial Action Required
Date complaint received: 06/03/2020
Date decision issued: 30/11/2020Back to ruling listing