Decision to the Complaints Committee 01724-18 Nightingale v Mail Online
Summary of complaint
1. Rebecca Nightingale complained to the Independent Press Standards Organisation that the Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment), Clause 4 (Intrusion into grief or shock) and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “Female police officer, 38, who quit force after being repeatedly groped by sex pest inspector who asked her for 'alone time' wins £70,000 payout as his wife stands by him”, published on 19 February 2018.
2. The article reported that a police officer had been awarded compensation for sexual harassment by the complainant’s husband while they had worked together for the British Transport Police, after a six-day employment tribunal. In addition to the reference in the headline, the article contained a picture of the complainant with her husband, and a second picture only of the complainant. The caption to the second picture was “Mr Nightingale’s wife Rebecca (pictured) is understood to be standing by him and was at the employment tribunal on Monday”. The article concluded by reporting the nature of the complainant’s business, and stated that “she is understood to be standing by [Mr Nightingale] and accompanied him to the tribunal today”.
3. The complainant said that she had attended the tribunal to hear both sides of the story; she said it was unclear how it had been assumed that she was “standing by” her husband. She said that she was not relevant to the case, and that the use of photographs from her Facebook account, which had full privacy settings, was an invasion of her privacy. She said that it was an intrusion into her privacy to report the nature of her business.
4. The publication said that the reference to the complainant “standing by” her husband was based on the fact that she had attended with him almost every day of the six-day proceedings. The publication said that she had sat next to him, and that it was clear from her body language, including leaning against each other, and supportive glances, that she wanted to project to the tribunal that she was supporting him. It said one reporter who had attended had said that they were “all smiles” during lunch.
5. The publication said that the complainant was relevant to its article reporting the tribunal. It said that the she had continued to live with her husband, and had attended the tribunal hearing, including the final remedy hearing, a week after the tribunal found he had sexually harassed the claimant. In addition, it said that where the tribunal was considering sexual harassment allegations on the part of a married man, his wife was plainly relevant to the story; it said that this was particularly the case where the respondent had said that he believed he and the claimant were embarking on an affair.
6. The publication said that the photographs accompanying the article were taken from the complainant's and her husband’s public Facebook accounts on 11 January, a month before the tribunal. It provided screenshots of the images as they were stored in the agency’s internal database, which showed that they had been created on this date. It said that at that time, the photographs were visible to the general public, but that the accounts had now been set to private, although it noted that the complainant’s Facebook profile picture was still accessible. The publication said that the complainant did not have a reasonable expectation of privacy in relation to the photographs, where they had been publicly disclosed. The publication said that the information about the complainant’s business had previously been published by a national newspaper, in an article reporting an entirely unrelated matter. It said this information was not private. The publication denied a breach of Clause 2.
7. The complainant denied that she was “all smiles” with her husband at lunch. She said that they did not go out for lunch together; each day the Police Federation representative collected sandwiches, and brought them back to the respondents room, where no reporters were allowed. The complainant said that there were only rooms for claimants and respondents in the tribunal building. She said that on some days she used the same room as her husband, and other respondents not involved in the case. She said that there were only 16 seats in the tribunal room, 8 of which were on the respondent side. She said that half were occupied by representatives from the police; that left four seats for her mother, her husband, his representative and herself. She said the fact she was sat by her husband did not indicate she was “standing by him”. The complainant maintained that her Facebook profile had privacy settings applied to it. She denied her husband had told the tribunal he believed he had been embarking on an affair.
8. The publication said that if the complainant was saying she was not “standing by” her husband, it would have to accept her word for it. The publication said that as a gesture of goodwill, and if it would resolve the complaint, it would remove all references to her from the article, including the images, and to remove all the reader comments on the article. It also offered to publish the following wording as a footnote:
An earlier version of this article stated that [the respondent’s] wife was standing by him throughout the employment tribunal hearing. She has told us that, while she did attend the court proceedings, this is not the case, and we are happy to clarify this and set the record straight.
Relevant Code Provisions
9. 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 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.
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 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.
Clause 12 (Discrimination)
i) The press must avoid prejudicial or pejorative reference to an individual's, race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability.
ii) Details of an individual's race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.
Findings of the Committee
10. Journalists acting on behalf of the publication had attended the tribunal, and observed the complainant and her husband together on almost every day, including the remedy hearing. It was not in dispute that they had sat next to each other at the tribunal, or that they had eaten lunch together in a room allocated to respondents. The Committee considered that it was not a failure to take care not to publish inaccurate information, to infer from this conduct that she was “standing by” her husband in the tribunal hearing. There was no breach of Clause 1 (i).
11. In her complaint, the complainant explained that she had not in fact been “standing by” her husband. She explained that she had only sat next to him because these were the only seats available, and that she had attended the tribunal in order that she could hear both sides of the story. The publication said it was reasonable for it to have “understood” that the complainant was “standing by” her husband, but it did not maintain as a matter of fact, that the complainant was “standing by” her husband. The Committee considered that in light of the further explanations provided by the complainant, which were accepted by the publication, it was a significant inaccuracy to state that she was “standing by” her husband. The clarification offered by the publication made clear the correct position. It was offered sufficiently promptly, and in conjunction with the offer to amend the article, publication of the wording as a footnote to the article represented due prominence. There was no breach of Clause 1 (ii). In order to avoid a breach of Clause 1 (ii), the publication should now amend its article as offered, and add the clarification as a footnote.
12. It was not an intrusion in to the complainant’s privacy to report that she had attended the public employment tribunal. The nature of her business did not represent private information about her, and the Committee noted that this information was already in the public domain via a previous national newspaper article. This aspect of the complaint did not raise a breach of Clause 2.
13. One of the photographs in the article simply showed the
complainant’s head, and the other showed her with her husband. On the
publication’s account, both photographs were obtained from the complainant and
her husband’s publicly accessible Facebook accounts. The Committee acknowledged
the complainant’s position that her account had been set to private for some
time, although noted she did not comment on how long her husband’s account had
been private. In addition, the Committee noted that the complainant’s Facebook
profile picture, which was also a headshot, remained publicly accessible. The
Committee was not in the position to determine how the photographs had been
obtained, and emphasised that where journalists take content from social media,
taking screenshots of the material to be published, showing the date and any
privacy settings, can demonstrate how the material was obtained. In this case,
the complainant’s connection to her husband was not private information, and
the photographs did not contain any particularly private information about her.
For these reasons, publication of these images did not breach Clause 2.
14. Clause 3 generally relates to the conduct of journalists in the news gathering process. Publication of information would only represent a course of conduct such as to represent harassment under the terms of Clause 3 in exceptional circumstances. Publication of the article under complaint, did not represent harassment of the complainant. This was not a case of personal grief or shock, such that the terms of Clause 4 were engaged. The complainant did not raise a concern that the article contained a pejorative, prejudicial or irrelevant reference to one of the characteristics protected under the terms of Clause 12. The terms of Clause 12 were not engaged.
15. The complaint was not upheld.
Remedial action required
Date complaint received: 21/02/2018
Date decision issued: 23/05/2018
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