01646-22 Boreland v Sunday Life

Decision of the Complaints Committee – 01646-22 Boreland v Sunday Life

Summary of Complaint

1. Ben Boreland complained to the Independent Press Standards Organisation that the Sunday Life breached Clause 1 (Accuracy) and Clause 2 (Privacy) of the Editors’ Code of Practice in an article headlined “UDA boss Boreland accuses rivals of dirty tricks over son’s ‘cocaine’ vid”, published on 6 February 2022.

2. The article reported on “a ‘prank’ video”, showing the complainant “pretending to cut cocaine [which] was circulated among loyalists”. It went on to report that “[i]n the widely-shared recording, Ben Boreland can be seen leaning over a tiled counter with a line of white powder visible. He then chops the powder with what appears to be a credit card before turning and smiling as a pal roars, ‘Ben, you’re a bad article’.”

3. The article included comments from a “North Antrim UDA member” as well as the complainant’s father. The former was quoted as saying “now you have [the complainant] filmed letting on to cut lines of cocaine in a pub toilet. […] The video is the talk of loyalists in Ballymoney at the moment”. The complainant’s father was quoted as having said: “That there (video) is a pile of p**s, it was a joke. Of course it is (being used to get at him). I’m aware of it, it was sent to me. It was a joke among mates, it’s a pile of p**s.”

4. The article was accompanied by a still of the video in question, showing the complainant’s head and shoulders.

5. The article also appeared online in substantially the same form under the headline: “Antrim UDA boss Marcus Boreland accuses rivals of dirty tricks over son’s ‘cocaine’ video”.

6. The complainant said that the article intruded into his private life in breach of Clause 2. He said that, contrary to the article’s assertion that the video had been “widely-shared”, it was not widespread and had not been published on any open forums or social media platforms. He also said that the video which the article reported on had been taken in a private space: a toilet cubicle into which an individual – who the complainant did not know – had forced themselves. Therefore, he considered that the publication of a screenshot taken from a video filmed in such circumstances intruded into his privacy.

7. The complainant provided IPSO with a copy of the video; this showed that the video had been published on Snapchat by a third party. He said that videos posted to Snapchat were only shared with the account holder’s contacts, and were then deleted after 24 hours: in this case, the Snapchat video had been shared with only 12 individuals. He believed the video had also been shared with a number of journalists via private messages from a fake Facebook account but, to his understanding, this had not resulted in any reporting other than the article under complaint. The complainant, therefore, considered that the video was not in the public domain.

8. The complainant also said that the article was inaccurate in breach of Clause 1; he considered this to be the case where the video was described in the headline as a “’cocaine’ vid”, and the body of the article claimed that the video showed him “chop[ping…] powder”. He said that this was hyper-sensational, and that no drugs or anything that could be construed as such were at any time present in the video.

9. The publication said it did not accept that the article had breached the Code. Turning first to the question of whether the video was in the public domain, it said that once a video is shared on Snapchat it can be copied and shared on other platforms. It said that its journalist had obtained the video via WhatsApp, and that the source who had provided the video had told them that he had received it from a WhatsApp group which comprised of 30 people – the source had, in turn, shared it with more than a dozen people. According to the publication, the source had said that it was “the talk of the [Ballymoney] area and spreading like wildfire”. The journalist had also received the video from a second source via email, and the newspaper said that the second source had also said that “it was the talk of loyalist sources”. It further noted that the complainant’s father had said that he was aware the video was “doing the rounds” and that he himself had been sent the video. It supplied a transcript of the conversation with the complainant’s father to support its position on the point; the relevant portion of the transcript was as follows:

Journalist: I just wanted to let you know, you know, are you aware that it [the video] was doing the rounds aye?

Complainant’s father: Of course I was, it was sent to me!

Journalist: Oh was it, were you aye and it was just your wee lad having a laugh? There was no, there was no…

Complainant’s father: Listen mate, it was a joke among mates it was a pile of piss that’s what it is

10. The publication also did not accept the complainant’s assertion that the video had been taken after someone had forced themselves into the toilet cubicle. It said that the complainant could be heard laughing in the video as the person filming it referred to him as a “bad, bad article”. It also said that it did not consider that the video showed the complainant engaged in any private activity; by the complainant’s own description he was joking with friends, and the video was filmed in a location where there was no cubicle door or partition preventing the person from filming – or anyone else in the bathroom at the time – from approaching the complainant. At no time in the video did the complainant ask the person recording it to leave. It therefore considered the location in which the video was taken – a toilet cubicle – to be irrelevant in terms of privacy.

11. The publication also said that – while it did not consider that the Code had been breached, and that therefore a public interest defence was not necessary – it was its position that highlighting a reporting on the “prank” video was a matter of public interest, given the complainant’s father’s alleged links to criminality.

12. Turning to the complainant’s Clause 1 concerns, the publication noted that the word “cocaine” appeared in single quote marks in the headline, and that the article described the video as a “prank”. It further noted that the article included references to the complainant “letting on” (pretending) to cut cocaine; it did not claim, as fact, at any point that the video showed the complainant cutting cocaine. It said that it was also satisfied that the video showed white powder.

13. The complainant said that he did not accept that the video was in the public domain. He said that the definition of something being in the public domain was that it is widely available on the internet. He said that this was not the case with the video, as WhatsApp is a highly secure messaging service which is end-to-end encrypted, and Snapchat videos are deleted after 24 hours. He also noted that the publication had not shown that the video could be found on any “public platform”.

14. The complainant agreed that the video showed him participating in a prank between friends, but did not accept that jokes between friends did not represent a private activity. He said that the dynamic between friends was not for public consumption, and that what is done in private between friends should remain private. He said that this was especially the case as he was not a public figure, and was not participating in a criminal activity.

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 2 (Privacy)*

i) Everyone is entitled to respect for their private and family life, home, physical and mental 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.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

Findings of the Committee

15. In coming to a decision as to whether Clause 2 was breached, the Committee noted first that the location in which the video was recorded – a toilet cubicle – is generally a location where an individual would have a reasonable expectation of privacy. However, the Committee was mindful that the door of the cubicle in this instance was open. It was evident from the audio recording of the video (and supported by the complainant’s account of the incident) that a number of people were present and interacting with the complainant during the brief period of the filming. The complainant was participating in a social interaction, and was aware of the presence of the person filming, as well as the fact that they were filming. In addition, the cubicle was part of a pub’s toilet facilities and would therefore have been accessible to members of the public. Taking these factors into account, the Committee considered that the complainant’s expectation of privacy in this location was significantly diminished. 

16. There were other factors to consider beyond the location in which the video had been filmed when establishing whether the complainant has a reasonable expectation of privacy – and, by extension, whether publishing the article reporting on the video intruded into the complainant’s private life. The video showed the complainant, by his account, engaged in a prank with friends. While the Committee understood that the complainant would have preferred that the prank had remained confined to a small group of friends, this did not mean that it was a private activity or that reporting on the “prank” represented an intrusion into the complainant’s private or family life: details of a ”prank” do not necessarily relate to an individual’s private or family life, or reveal anything private about an individual.

17. In addition, the video had been posted on social media. While the Committee acknowledged that the original group to which the video was sent to was comprised of 12 individuals, there was no dispute that it had subsequently been circulated much more widely, to the point that the complainant’s father had acknowledged to the reporter before publication that it was “doing the rounds” and had in fact been sent to him. Taking the nature of the video and the extent of its previous circulation into account, the Committee did not consider that the complainant had a reasonable expectation of privacy over the video, or that reporting on its contents represented an intrusion into his private or family life. There was, therefore, no breach of Clause 2.

18. Turning to the alleged breaches of Clause 1, the Committee noted that the phrase “cocaine” in the headline appeared in inverted commas. This was clarified in the text, which reported that it was “a ‘prank’ video”, showing the complainant “pretending to cut cocaine”, which was the position shared by the complainant. Where the article reported the complainant’s position that the video was a prank which showed him pretending to snort a cocaine-like substance, and clarified that this was the meaning of the headline – and therefore the complainant’s position aligned with the article’s reporting on this point – the Committee did not consider that the complainant’s concerns on this point represented a breach of Clause 1.

19. The complainant had also said that it was inaccurate to report that the video showed him “chop[ping…] powder”. However, in circumstances where both parties accepted that the video showed the complainant bent over a surface and “pretending to cut cocaine”, the Committee did not consider it to be significantly inaccurate, distorted, or misleading to report that the video showed the complainant “chop[ping…] powder”, regardless of precisely what the video showed. There was no breach of Clause 1 on this point.

Conclusion(s)

20. The complaint was not upheld.

Remedial Action Required

21. N/A

Date complaint received: 14/02/2022

Date complaint concluded by IPSO: 04/10/2022

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