01788-21 Brewerton v express.co.uk

Decision of the Complaints Committee – 01788-21 Brewerton v express.co.uk

Summary of Complaint

1. Keith Brewerton, acting on his own behalf and on behalf of his son Aled Brewerton, complained to the Independent Press Standards Organisation that express.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment), Clause 4 (Intrusion into grief or shock), and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Bad-tempered parish council Zoom meeting descends into CHAOS - ‘She’s kicked Barry out!’”, published on 5 February 2021.

2. The article, which appeared online only, reported on the response to a parish council meeting – which the article referred to as being held by the “Planning and Environment Committee” – which had a few earlier days gone “viral” on social media and been covered widely by the press. The article included a thirty-second clip of the meeting, and referred several times to the “clerk” of the meeting, Jackie Weaver. It included a brief summary of the events of the meeting, and reported that: “Other parts of the meeting involve a councillor taking a phone call with their friend in the middle of the meeting”, and that “[a]t the start of the 7pm session, one councillor accidentally unmuted appears to make an explicit remark […] [t]hroughout the session members accuse each other of ‘appalling behaviour’, and one claims another is ‘sitting there like a laughing hyena’.” The article then reported that “[Ms Weaver] said at one point: ‘The chairman simply declared himself 'clerk' and notified everybody of the case.’”

3. The article also stated that the council had posted minutes of the meeting on its website, and that the meeting was “one of only five held a year”. It went on to report that meeting minutes “alleged that [a councillor] ‘proceeded to disrupt the proceedings’ and was ‘removed from the meeting and put into the virtual waiting room’” and that the complainant’s son and another councillor “were also removed to the waiting room”.

4. Prior to the complainant making a complaint to IPSO, his son contacted IPSO to request that it make the press aware that he was “very concerned about unwarranted and unsolicited approaches from the Press including: emails, telephone calls and visits to my home” and that he “do[es] not wish to speak to the Press and wish that journalists do not come into the area surrounding my home”. This notice was circulated by IPSO to the press – including express.co.uk – on 5 February 2021, at 5:41pm.

5. The complainant said that the article was inaccurate in breach of Clause 1. He noted that the meeting had not been held by the Planning and Environment Committee, as reported by the article. This meeting had, in fact, directly preceded the meeting which had “gone viral”; the “viral” meeting was an Extraordinary meeting of the full council. He then said that the video of the meeting included with the article had been altered, with sequences changed and interactions omitted. He said that these alterations meant that the video was not an accurate or correct record of what had happened during the meeting. He also said that the article was inaccurate in its references to Ms Weaver being a “clerk” as she was not a clerk for the council; the article also, he said, omitted the fact that his son and his fellow councillors had been “illegally evicted” from the meeting, which he considered to represent a further inaccuracy in breach of Clause 1.

6. The complainant said that the article was also inaccurate because a councillor did not take a phone call with their friend in the meeting, as reported by the article. He also said that it was not the case that “[a]t the start of the 7pm session […] a councillor […] appears to make an explicit remark” as the remark was made at around 7:45pm, when the meeting started, and it was not a councillor who had sworn. Turning to other alleged inaccuracies within the article, he said that no one in the meeting had been “sitting there like a laughing hyena”; he had in fact, without his knowledge, been recorded in his home laughing at a TV show and this is what the comment referenced – he had not been laughing at the meeting.

7. The complainant also said that it was inaccurate for the article to report that “[Ms Weaver] said at one point: ‘The chairman simply declared himself 'clerk' and notified everybody of the case’”, as the chairman had declared himself clerk to address a situation in which the council had been left without a clerk, and was attempting to volunteer his services. The complainant then said that it was not the case that only 5 such meetings were held by the council each year, and that the references to the minutes within the article were inaccurate, as the minutes themselves were inaccurate: the referenced councillor had not “attempted to disrupt the proceedings” and the removed councillors had not been placed into a virtual meeting room. Rather, they had been ejected from the meeting.

8. The complainant also considered that the video included in the article breached Clause 2, as he appeared in the video and said that he had not been informed at the time that the meeting was being recorded. Both complainants had been in their home when the video was recorded, therefore the complainant said that the use of the video intruded on their private life; they did accept, however, that the video had been uploaded to Youtube prior to the article’s publication. The complainant further noted that, while the public were able to watch the meeting, this was via a link only, and approximately 5 to 6 members of the public attended the meeting.

9. The complainant then said that he considered that Clause 3 had been breached, as a journalist from the publication had attempted to call his home. The call, the complainant said, was made sometime between 5 February 2021 and 8 February 2021.

10. The complainant also said that he considered that Clause 3 had been breached by the article itself, as it included material which was not compliant with the terms of the Clause; namely, the video, which he considered had been recorded illegally.

11. Turning to Clause 4, the complainant said that he considered this Clause had been breached as he did not consider that publication of the article had been handled sensitively. He believed that the publication should have done so, where the viral video had led to great shock amongst his close and extended family.

12. The complainant then said that he considered that the use of the video breached Clause 10, as he believed it had been recorded illegally on a secondary device, such as an iPad; he said he knew this was the case as had it been recorded directly from a computer, it would have shown a recording logo and there wasn’t one present in the video. He said that the press had a duty to ensure the video had not been recorded illegally, and that it had not done so in this case.

13. The publication said it did not accept that the article breached the Editors’ Code. It accepted that the viral video which the article reported on showed an Extraordinary meeting of the full council, rather than the Planning and Environment Committee meeting. It noted that the two meetings had taken place consecutively over Zoom, with the latter meeting starting at 7pm and the former beginning immediately after, at 7:40pm. However, it did not accept that this represented a significant inaccuracy, where all participants in the 7pm meeting were also present at the 7:40pm meeting. It did, nevertheless, offer to amend the article on this point, to make clear that the meeting showed the full council.

14. It went on to state that the video of the meeting showed an individual receiving a phone call, and provided a timestamped link to the video which showed this. In the video, an unseen individual was heard saying “I am just in a meeting at the moment, can I call you back when it finishes?” Notwithstanding this, it said it would be happy to amend the article to make the identity of the individual receiving the phone clear, and if it was not a councillor it would make this clear in any amendments, as a gesture of goodwill. The publication also accepted that the explicit comment made during the video occurred at approximately 7:45pm, rather than at 7pm as reported by the article, and offered to amend the article on this point – though it did not accept that this represented a significant inaccuracy. It said that given the “aggression, tone and behaviour” of the councillors present during the meeting, it was reasonable for the publication to assume that it was a councillor who had made the explicit remark; however, it would be happy to, as a gesture of the goodwill, amend the article to make clear who did make the explicit remark, should the complainant be able to tell it who had sworn during the video.

15. The publication then said that the accuracy of the video could be supported both by viewing the full video of the meeting – which was publicly available and showed the events of the meeting – and the council’s minutes of the meeting. It did not accept, therefore, that the video could be said to be inaccurate, nor did it accept that the video had been altered – it was simply a 30-second clip of the meeting. It also did not accept that the article breached the Code by omitting to state that the complainant’s son and his fellow councillors were “illegally evicted” from the meeting, noting that this suggestion appeared to be the opinion of the complainant and was not supported by the minutes of the meeting itself.

16. The publication further noted that it could not be inaccurate for the article to report that “one [councillor] claim[ed] another is ‘sitting there like a laughing hyena’” or that “[Jackie] said at one point: ‘The chairman simply declared himself 'clerk' and notified everybody of the case’”, where the video clearly showed: someone laughing; that a councillor had made the hyena comment in response to the laughter; and that Jackie had made the comments attributed to her by the article. The publication then noted that, at the time of the article’s publication, the council’s public website had shown only 5 videos of similar meetings, therefore it had been reasonable for the publication to conclude that only 5 such meetings were held each year – and it did not consider that this could be said to be a significant inaccuracy within the context of the article. However, it proposed to amend the article to make clear that it was not the case that only 5 such meetings were held each year, and to also add a footnote correction to the article to make this clear.

17.  In addition, the publication said it was not inaccurate to state that some meeting participants had been placed in a virtual meeting room, where the meeting minutes – which it provided – stated that the Council chairman “was therefore removed from the meeting and placed into a virtual waiting room” and that other meeting participants were subsequently placed in the virtual waiting room.

18. Addressing the complainant’s Clause 2 and Clause 10 concerns, the publication noted that the video was both publicly available and viral at the time of the article’s publication, and that the council’s meeting minutes made clear that a recording of the meeting could be made available on request. The publication also said that it could not comment on how the video was recorded, as it was not in a position to know the circumstances in which the recording was made; it also, therefore, could not be said to have sought to obtain a video recorded by a hidden camera. With these factors in mind, it did not accept that the article or video could represent a breach of Clause 2 or Clause 10.

19. The publication confirmed that it had circulated the IPSO privacy notice internally 1 minute after it was received – at 5:42pm – and also said that it had not attempted to contact the complainant, via telephone or otherwise.

20. The publication did not accept that the complainants’ concerns framed under Clause 4 engaged the terms of the Clause, where the article under complaint did not relate to a case of grief or shock.

21. While the complainant accepted that the minutes stated that a recording of the meeting could be made available on request, he also said that the original agenda of the meeting did not state that it was being recorded. He further noted that it was not common practice for such a meeting to be recorded and made public, and that this was a recent development. He then indicated that he was satisfied with the proposed amendments suggested by the publication, but that the amendments were not sufficient to resolve his complaint given his concerns with the article and reporting.

22. The complainant then said that he had in fact been contacted at his home by an individual who said that they worked for ‘the Express’, who did not show any identification which would confirm that he indeed worked for the publication. The complainant then expressed concern that the individual was in fact dishonestly posing as a reporter from the publication. He said that the man had come to his house late in the afternoon on 5 February 2021 – some time between 1pm and 6:45pm.

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.

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 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.

Findings of the Committee

23. The complainant had raised a number of points of inaccuracy in relation to the publication’s account of the meeting. Neither party disputed that it was an Extraordinary meeting of the entire council which featured in the viral video, rather than the Planning and Environment Committee; or that the meeting had begun at approximately 7:45pm, rather than 7pm. The article was inaccurate on these points, which the publication had accepted, and had proposed to amend. The Committee considered that these inaccuracies were insignificant, and they did not represent a failure to take care over the article, given that the two meetings had been held consecutively beginning at 7pm, and that the Planning and Environment Committee members were all present in the second meeting. Nonetheless, the Committee welcomed the publication’s offer to amend these points.

24. The complainant also denied that Ms Weaver was a “clerk”. While the Committee understood that the complainant disputed the accuracy of the official council minutes of the meeting, the publication was entitled to rely on these official documents as the basis for its reporting. This reference therefore did not represent a failure to take care over the article, or an inaccuracy requiring correction.

25. The complainant had said that the article was inaccurate as he considered that one of the participants in the meeting had acted “illegally”, and that omitting this rendered the article inaccurate. The Committee noted that none of the participants had faced any criminal or civil prosecution at the time of the article’s publication, and that the allegation of illegal behaviour was a serious claim which not supported by any publicly available information at the time of the articles’ publication. In addition, the Committee noted the context of the article; it was reporting on a widely available viral video and was not a report of any legal proceedings connected to the meeting, nor did it purport to examine the legal context behind the meeting. The Committee further noted that video which accompanied the article made clear that some participants believed that the meeting was being held illegally. With these factors in mind, the Committee did not consider that omitting the complainant’s allegations from the article rendered it inaccurate in breach of Clause 1.

26. The Committee also did not consider that it was inaccurate for the article to report that “[a]t the start of the 7pm session, one councillor accidentally unmuted appears to make an explicit remark […] [t]hroughout the session members accuse each other of ‘appalling behaviour’, and one claims another is ‘sitting there like a laughing hyena’” and that ”[Ms Weaver] said at one point: ‘The chairman simply declared himself 'clerk' and notified everybody of the case.’” The Committee noted that – while it was not in dispute that the expletive occurred at approximately 7:45pm, rather than 7pm – the remark did occur at the start of the meeting, as reported; a difference of 45 minutes did not represent a significant inaccuracy in need of correction. While the Committee also noted that the newspaper accepted that it was perhaps not a councillor who had sworn, the article reported that a councillor had “appeared” to make an explicit remark, therefore distinguishing this as conjecture on the part of the publication, rather than a claim of fact. There was no breach of Clause 1 on these points.

27. The Committee then noted that the Editors’ Code of Practice makes clear the press has the right to publish individuals’ views, as long as it takes care not to publish inaccurate, misleading or distorted information, and to distinguish between comment, conjecture and fact. In this instance, the quotes from the meeting participants reported were clearly presented as comment, and attributed to the individuals responsible for them. In the article, the quotes from Ms Weaver and the councillor were clearly attributed to them by way of the use of quotation marks, and the articles were framed as their view on the meeting featured in the video. The Committee was therefore satisfied that the publication had distinguished between comment and fact and had clearly attributed the comments of Ms Weaver and the councillor to them, in line with the terms of Clause 1 (iv). The Committee further noted that the video which accompanied the article demonstrated that there were opposing views, both on the legality of the meeting itself and Ms Weaver’s role as a clerk. There was, therefore, no breach of Clause 1 on these points.

28. The publication had accepted that it was inaccurate that the ‘viral’ meeting was “one of only five held a year”. However, in the context of an article which focussed on a single meeting, the Committee did not consider that this represented a significant inaccuracy: a discrepancy over the number of council meetings held a year did not alter the accuracy of the thrust of the article, which was that a contentious meeting had taken place and had subsequently gone viral. There was no breach of Clause 1 on this point.

29. The Committee did not consider that the publication had inaccurately reported that meeting minutes “alleged that [a councillor] ‘proceeded to disrupt the proceedings’ and was ‘removed from the meeting and put into the virtual waiting room’” and that the complainant’s son and another councillor “were also removed to the waiting room” where the minutes of the meeting specifically referenced the removed councillors having been placed “in a waiting room”; the meeting minutes, provided by the publication, did state this. Moreover, the Committee did not consider that there was a material difference between removing an individual from a meeting and placing them in a virtual waiting room; both courses of action will mean that an individual is excluded from a meeting.  The Committee also noted that neither party disputed that there had been laughter during the meeting. The article did not specify what triggered the laughter, and it was therefore not inaccurate in the manner suggested by the complainant. There was no breach of Clause 1 on these points.

30. The Committee noted first that it was not in dispute that the thirty-second clip of the meeting included with the article was an excerpt from the recording of the meeting. It was clear from the description of the meeting included in the text of the article that it was only an excerpt, rather than an unedited recording of the meeting in full, and that it had been included as an illustration of some of the exchanges which had taken place during the meeting. In these circumstances, the Committee did not consider that the publication of the video in this format was significantly inaccurate, misleading, or distorted;  there was no breach of Clause 1.

31. The terms of Clause 2 make clear that, when considering individual’s reasonable expectation of privacy, account will be taken of the extent to which the information complained of is in the public domain. In this instance, the complainant considered that the video included in the article – showing him and his son in their home – breached the terms of the Clause. However, the video showed proceedings at a public meeting held by a public body. Further, the video was available on Youtube at the time of the article’s publication, and had been viewed well over a million times. In these circumstances, the Committee did not consider that the complainant had a reasonable expectation of privacy over the video. There was, therefore, no breach of Clause 2

32. The complainant had alleged that the publication had made a call to his house. The publication said that this was not the case, and the complainant did not appear to dispute this. He also contended that an individual purporting to be from ‘the Express’ had come to his home on the day that IPSO had circulated a request to desist on the part of his son, although he was not sure what time this visit had taken place and had expressed doubt as to the person’s identity. The complainant could not say with certainty whether the alleged telephone call and approach to his home had happened after the request had been made for publications to desist from contacting his son. The Committee further noted that the terms of the notice circulated to IPSO applied to Aled Brewerton only, and not his extended family. In circumstances where the complainant was uncertain about the timing of the contact and identity of the person who had made the contact, and where the publication denied that any journalist acting on its behalf had contacted the complainant, there were no grounds to identify a breach of Clause 3.

33. While Clause 3 (iii) makes clear that Editors should ensure that the principles of the Clause are observed by those working on its behalf, the principles of the Clause relate to behaviour by journalists which could constitute harassment. The complainant did not allege that the video which he considered breached Clause 3 had been obtained by the publication – or individuals working in its behalf – engaging in harassing behaviour towards him. There was no breach of Clause 3 arising from the use of the 30-second video.

34. While the Committee understood that the video going “viral” had caused distress to the complainant, it noted that the terms of Clause 4 generally relate to cases involving bereavement, injury, and crime. Where the content of the article under complaint related to a parish council meeting, the Committee did not consider that the article related to the complainant’s personal grief or shock, and there was no breach of Clause 4.

35. The terms of Clause 10 make clear that the press should not seek to publish material obtained by using hidden cameras; the purpose of the Clause is to regulate the publication acquisition of material obtained using clandestine devices and misrepresentation. In this case, the publication did not know exactly how the video had been recorded; however, neither party disputed that at the time the article was published, the video was widely available in the public domain. The basis advanced by the complainant for claiming the video had been obtained using a clandestine recording device was that it appeared not to have been recorded using the internal recording mechanism in the computer programme used to host the virtual meeting. While the Committee could not establish with certainty how the meeting was recorded, it did not agree that the use of a secondary device to make the recording amounted to a “clandestine” device for the purposes of Clause 10. The video depicted a publicly accessible meeting, and whether it had been recorded using an in-program recording function or a secondary recording device had no bearing on the content of the video. Explicit reference was made in the course of the meeting to the fact it was being recorded, when a participant referred to a copy being sent to a monitoring officer. Furthermore, the minutes of the meeting stated that a recording of the meeting was available. The Committee did not, therefore, consider that any subterfuge or misrepresentation appeared to have been engaged in order to make the recording of the meeting.

36. Furthermore, at the time the article was published, the video from which the clip was extracted was widely circulating in the public domain and had been viewed over one million times; the newspaper had not, therefore, been engaged, either directly or through an agent, in making or procuring the recording. It could not therefore be said that the newspaper had sought to obtain material obtained by using a hidden camera, and there was breach of Clause 10.

Conclusion(s)

37. The complaint was not upheld.

Remedial Action Required

38. N/A

Date complaint received: 02/08/2021

Date complaint concluded by IPSO: 09/02/2022

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