01721-20 Waine v Galloway News

Decision: No breach - after investigation

Decision of the Complaints Committee – 01721-20 Waine v Galloway News

Summary of Complaint

1. Heather Waine complained to the Independent Press Standards Organisation that the Galloway News breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment) and Clause 4 (Intrusion into grief or shock) of the Editors’ Code of Practice in two articles headlined:

  • “Council urged to step in over right of way dispute” published on 26 December 2019.
  • “Anger after fencing blocks walking route” published on 9 January 2020.

2. The second article appeared in substantially the same format online under the headline “Concerns grow over access along public track through Laurieston forest”, published on 14 January 2020.

3. The first article reported on “a dispute over access through a forest” with concerns that a “path had been blocked mid-way along its length at Nether Crae [a house]”. It mentioned that “According to [named individual], a stone dyke has been erected across the forest road”.

4. The second article similarly reported on “Concerns…over access along a public track through a Laurieston forest”. It stated that “Ramblers [had] discover[ed] metal barriers on [a] forest pathway”. It reported that “Balmaclellan man [named person] and regular visitor [named person], from Leeds, discovered the new barrier”; and that according to the latter person, ““The path now has a double barricade – a stone wall with wire on top and a two-metre mesh fence with four-centimetre spikes along it…””. The article stated that the path “forms part of an eight mile route round Woodhall Loch” “advertised as “Woodhall Loch circuit” in leaflets given out to guests by holiday let owners in the area”. Finally, the article stated "The Waine family [who own Nether Crae] could not be contacted by phone on Monday or Tuesday". The article contained two pictures of the “barrier”, one of which showed the complainant on the other side of it, in conversation with the “ramblers”.

5. The complainant, whose family owned the property, said that both articles were inaccurate. The articles had referred to there being a “public track”, “walking route” and a “right of way dispute” which she said was inaccurate. Whilst she accepted that members of the community council had argued there was a track; Dumfries and Galloway Council and the complainant’s solicitors had confirmed there was no public right of way. They had also confirmed that there was no right to roam under the Land Reform (Scotland) Act 2003 in the area immediately around the house, as this was a designated privacy zone where the statutory right to roam under the 2003 Act could not be exercised (hereafter referred to as the “privacy zone”). The first article mentioned that the “Council has been asked to intervene in [a] dispute over access through a forest” and the second article used the term “forest pathway”. The complainant said these descriptions were inaccurate as the alleged track ran through the family’s garden rather than a forest. The first article mentioned that “According to [named person], a stone dyke has been erected across the forest road” and the second article claimed that “The path now has a double barricade – a stone wall with wire on top and a two metre mesh fence with four-centimetre spikes along it. It is completely and utterly unacceptable”. The complainant said that these statements were inaccurate as the new barricade is not illegal and constitutes an anti-climb fence rather than a stone wall; although she did not dispute that there was an 80-year-old stone wall at the boundary. The complainant disputed the first article’s claim that “It [the track] forms part of an eight-mile route round Woodhall Loch to Laurieston and back via the A762 south from Mossdale”. Whilst she accepted that such a route was advertised by a local holiday let owner, there was no such official route. The complainant disputed the second article’s claim that “The Waine family could not be contacted by phone on Monday or Tuesday”. She said this was inaccurate as no call was received during this time. The second article claimed that “​'Balmaclellan man [named person] and regular visitor [named person], from Leeds discovered the barrier”. The complainant said this was inaccurate as other people had discovered the barrier before them and the second named person had never been at the property before, so could not be termed a “regular visitor”. Finally, the complainant said the second article was inaccurate as it claimed that “Ramblers discover metal barriers”. She said these individuals were not “ramblers” as they had travelled part of the way by car and some of these individuals were reporters.

6. The complainant said the publication breached Clause 2 (Privacy) as the second article pictured her on private land and was taken without her knowledge or consent. She said that at the time the photograph was taken she was in the garden of her family home on private land. She went down to the boundary fence on the quad bike after a camera detected that a vehicle had approached the boundary. At the boundary there were four individuals standing on public land, one of whom was a photographer. The complainant engaged in conversation with two of these individuals for around 10 minutes. At some point, one of these individuals took a photo of the complainant without her knowledge. Some of the individuals were critical of the complainant’s family and the complainant then left the boundary as she did not feel comfortable. The complainant confirmed that this interaction took place outside the home’s privacy zone. She also said both articles intruded into her privacy by mentioning her name and the name of the house. The complainant said the articles breached Clause 3 (Harassment) and Clause 4 (Intrusion into grief or shock) as they were negative about and biased towards her family.  

7. The publication did not accept that the articles breached the Code. With regard to the claims that there was a “public track”, “walking route” and a “right of way dispute”; it stated that community council documents mentioned that “the original path remains as the bona fide route”. It said it did not claim that the path was a right of way but noted that, apart from the small privacy zone just around the home, the path was in an area where the right to roam was allowed in accordance with the Land Reform (Scotland) Act 2003. It stated that the two individuals who visited the barrier described themselves as “ramblers” and “regular visitor[s]”. It said that the claim that the new barrier was partly made up of a stone “wall” or “dyke” was clearly the views of named individuals mentioned in both articles. It also said that it appeared that the track went through a wooded area, which it said was confirmed by a satellite map of the area. Finally, it said that it was not inaccurate to state that “The Waine family could not be contacted by phone on Monday or Tuesday” as a reporter had called and received no answer. It since came to light that the reporter had an incorrect phone number for the family which he had taken from a public phonebook. Regarding Clause 2, the publication said that the name of the house had featured consistently in public community council documents, was discussed at public meetings and was central to the story. The community council minutes had recorded a vote in favour of reinstating an “original route for walkers/cyclists to use” at a public meeting. The publication also said that the photo of the complainant was justified. It portrayed the dispute between the walkers and the landowner, with the barrier in between, which had been the central focus of the articles. It also said that whilst the complainant was on private land; the photo was taken from public land. It did not dispute the complainant’s factual account of the interaction but disputed that those present were in any way abusive towards the complainant.

8. 85 days into IPSO’s investigation, the publication offered to amend the second article’s reference to there being a “public track”. It also offered to publish the following correction as a footnote to the amended online article:

“A previous version of this article referred to a dispute of a 'public track'. We have been asked to clarify that it is a dispute over the public access along the track.”

9. The complainant did not accept this offer.

Relevant Code Provisions

10. 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 correction, promptly and with due prominence, and –where appropriate- an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

11. 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.

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

12. 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.

13. Clause 4 (Intrusion into grief or shock)

In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.

Findings of the Committee

14. Neither article claimed that there was an official public right of way running through the property. However, the community council had described there being an “original route [path] for walkers/cyclists to use” and it was not disputed that the right to roam under the Land Reform (Scotland) Act 2003 applied to all but a small section of the disputed track. As such, it was not misleading to describe the alleged track as “a public track” or “forest pathway”, or to use the phrase “right of way dispute”; especially as the articles made clear that access to the track was in dispute. The publication had not failed to take care over the accuracy of its descriptions of the disputed path. Nor did the article contain a significant inaccuracy or misleading claim relating to this. There was no breach of Clause 1.

15. The complainant said it was misleading to state there was a dispute about access “through a forest” and to describe the track as a “forest pathway” as the alleged path went through the property’s garden. The satellite image showed that the alleged path ran through a forested area regardless of whether it also went through the garden. There was no breach of Clause 1.

16. That the barrier partly consisted of a “stone dyke” or “stone wall” was clearly presented as the views of a named individual. The Editors’ Code makes clear that the press has the right to publish individuals’ views as long as it does so accurately and takes care to distinguish between comment, conjecture and fact. In any event, the complainant had not disputed that part of the barrier consisted of an old stone wall, even if the new barrier was a metal anti-climb fence. Therefore, the named individual’s descriptions of the barrier were not significantly inaccurate. There was no breach of Clause 1.

17. The complainant expressed a concern that the new barricade was not illegal. However, the article did not make this claim explicitly or implicitly. There was no breach of Clause 1.

18. The second article stated that the disputed path forms part of a “route…advertised as “Woodhall Loch circuit” in leaflets given out to guests by holiday let owners in the area”. The complainant had not disputed that these leaflets had been created, rather she stressed that the route was not official. Where the article did not claim this route was official and made clear that this route was the creation of a local “holiday let owner”, there was no breach of Clause 1.

19. The publication had confirmed that two named individuals in the second article had described themselves as “ramblers”, which the complainant had said was inaccurate as they had driven to the barrier on that day. However, this word did not necessarily mean that these individuals had walked to the barrier on that very day; rather it conveyed the notion that these individuals were interested in and practiced rambling, something which was not disputed. There was no breach of Clause 1.

20. The second article stated that “Balmaclellan man [named person] and regular visitor [named person], from Leeds, discovered the new barrier”. The words “regular visitor” did not necessarily mean that this individual was a regular visitor to the property; rather, it may have meant a regular visitor to the local area. Similarly, the word “discovered” did not necessarily mean that these individuals had been the first people to find the barrier; rather, it may have meant that they had simply become aware of the barrier on that day. In any event, these details were not significant in the context of the article as a whole. There was no breach of Clause 1.

21. The second article had claimed that “The Waine family could not be contacted by phone on Monday or Tuesday”. During the complainant’s complaint to IPSO it transpired that the reported had had an incorrect telephone number. This phrase that the “Waine family could not be contacted by phone” meant only that the complainant’s family could not be reached in the way the reporter had attempted, which was true. There was no breach of Clause 1.

22. The Committee next considered whether the photo of the complainant related to the complainant’s private life such that it engaged the terms of Clause 2. It was accepted that the complainant was in her garden, on the threshold of her home, when the photograph was taken. This setting meant that Clause 2 was engaged. The Committee then turned to the question of whether the whether the complainant had a reasonable expectation of privacy in these circumstances. The complainant had chosen to engage and converse with the individuals at the boundary for some 10 minutes. The complainant herself was located outside the home’s privacy zone; outside of which there was a right to roam. Finally, the published photograph had not disclosed private information about the complainant; it had revealed only her likeness, which was information which would ordinarily have been seen by members of the public, should they have been walking past the property at the time. In these circumstances, there was no reasonable expectation of privacy over the photo. As such, she did not need to give her consent to be photographed. There was no breach of Clause 2.

23. In general, people do not have a reasonable expectation of privacy regarding their name or address. In this case, the publication had also demonstrated that the address, in the context of the dispute, had been included in public community council documents and discussed at public meetings. There was no breach of Clause 2.

24. Clause 3 (Harassment) generally relates to the way journalists behave when researching a news story and is meant to protect people from being repeatedly approached by the press against their wishes. As the complainant’s concern did not relate to this and related instead to concerns that the article was negative and biased, the terms of Clause 3 were not engaged.

25. Clause 4 generally relates to the sensitivity of the approaches journalists make to, and the information they publish about, individuals who have been bereaved or are in state of shock following a distressing event. As the complainant’s concern did not relate to this and related instead to concerns that the article was negative and biased, the terms of Clause 4 were not engaged.

Conclusions

26. The complaint was not upheld.

Remedial Action Required

27. N/A

 

Date complaint received: 12/3/2020

Date complaint concluded by IPSO: 23/12/2020

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