01984-21 A woman v Mail Online

Decision of the Complaints Committee – 01984-21 A woman v Mail Online

Summary of Complaint

1. A woman complained to the Independent Press Standards Organisation that the Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 4 (Intrusion into grief and shock), Clause 11 (Victims of sexual assault) and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article published in 2021.

2. This decision is written in general terms, to avoid the inclusion of information which could identify an alleged victim of sexual assault. The complainant was the spouse who alleged to have been abused.

3. The article reported on a court case between two spouses. It included statements from lawyers and attributed various claims to the spouse making the complaint. It reported that this spouse alleged they had been subject to abuse, which the judge did not make findings on. It also reported that the judge had heard information about the marriage. Information regarding the spouse’s profession was included. The article contained a quote from the other spouse’s barrister and an application this spouse made to the judge which was denied. The article named the complainant’s profession.

4. The complainant, one of the spouses referred to, said that the article was inaccurate in breach of Clause 1. They said one of the statements attributed to lawyers had not been heard in court, and was not accurate. The complainant said it was inaccurate to report that no findings had been made over the allegations of abuse, as this had not formed part of the case, was not the purpose of the hearing, and gave the impression that their allegations against their spouse were dismissed. The complainant also said they had not spoken in court, and therefore the article should have attributed claims to their barrister. The complainant also said that the article suggested inaccurately that the information heard by the judge was true,  which they disputed. They accepted that their spouse’s barrister had said this information in court, but that the judge had not made findings on it. They also said that the quote from the spouses’ barrister was not adequately attributed, and that the claim was not true, though they accepted this had been part of the court hearing.

5. The complainant also said that the article represented an unjustified intrusion into their privacy in breach of Clause 2, as it identified their profession, their religion and that they considered themselves a victim of abuse.

6. The complainant said that the article breached Clause 4 and Clause 11 by identifying them as a victim of sexual assault. The article named the complainant and included their allegations that their spouse had abused them. The complainant said the application by the complainant’s spouse, which was refused by the judge, amounted to them being a victim of sexual assault and therefore they should not have been named. The complainant said that being named in the same article as their alleged abuser was highly distressing and inappropriate in further violation of Clause 4, and that they had suffered injuries to their mental health as a result of the publication of the article.

7. The complainant said that by identifying their profession, their religion and that they considered themselves a victim of abuse, the article had discriminated against them in breach of Clause 12.

8. The publication stated that the court report had come from a press agency, and that a reporter had been present at court. The publication said that it had taken care not to publish inaccurate information by relying on this report. It provided an email from the agency stating that the disputed sentence had not come from the court, but a phone call with the complainant’s barrister afterwards, which resulted in a misunderstanding. The agency amended its copy of the article. On receipt of the complaint, the newspaper amended the article, and offered to amend it further during IPSO’s investigation to reflect a further email sent by the complainant’s barrister. Nonetheless, it did not believe that this was a significant inaccuracy and therefore it did not offer a correction.

9. The publication said that it was a statement of fact that the judge had not made a ruling on the allegations of abuse, and that the article did not imply that it was a domestic abuse hearing. It said that the complaint’s spouse’s barrister’s skeleton argument had contained the information about the marriage, and that the judge confirmed this information. It said it therefore was not inaccurate to report that the judge had heard the information about the marriage. The publication also said that it was convention to attribute statements made in court to the relevant parties where made by the parties’ legal representatives in court on their behalf, with their full knowledge and consent as the legal representatives speak for the party concerned. It said that the article made clear that the details were taken from what was heard and from the legal representatives’ position statements, and did not claim that the complainant represented themselves.

10. The publication said that the complainant’s profession, religion and allegations of abuse against them were heard in public court, and therefore the complainant had no reasonable expectation of privacy over the information. On this basis, it said it was not a breach of Clause 2 to report this.

11. The publication said the claims made by the complainant during the proceedings that they were a victim of abuse did not constitute claims that they were a victim of sexual assault. It said, therefore, that Clause 11 was not engaged.

12. The publication said that, in addition to the above, the article was a fair and accurate report of a public hearing with no reporting restrictions, and that therefore Clause 4 was not engaged.

13. The publication also stated that the complainant’s religion, profession and the allegation that they were a victim of abuse, though not sexual abuse, were raised in the court case and was therefore genuinely relevant to the article. It said, therefore, that Clause 12 was not engaged.

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 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 11 (Victims of sexual assault)

The press must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification and they are legally free to do so. Journalists are entitled to make enquiries but must take care and exercise discretion to avoid the unjustified disclosure of the identity of a victim of sexual assault.

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

14. The Committee noted that the complainant’s spouse denied the allegations of abuse and made clear that its role was to consider whether the article complied with the Editors’ Code as a report on the proceedings, rather than to make findings on the veracity of claims heard as part of the proceedings, including the allegations of abuse which were in dispute between the parties.

15. The publication had relied on a court report from a press agency, which had been written by a journalist who was present at the court. In addition to the information heard in court, the journalist had contacted the complainant’s barrister to provide clarity on one aspect of the case. Newspapers are entitled to use reports provided by agencies, but in doing so they adopt responsibility for the care taken to ensure that information contained in the published copy is not inaccurate, misleading or distorted.

16. The first point considered by the Committee was the disputed statement attributed to the complainant’s barrister. The publication said that this had not been said in court, but rather in a subsequent telephone conversation between the journalist and the complainant’s barrister. The complainant said that their barrister had denied this, and pointed out the statement was not, in any case, correct. There was clearly a conflict in the two accounts given; in such instances the Committee would generally expect the publication to support its account in order to demonstrate it had taken sufficient care over the disputed claim. The publication did not provide any record or contemporaneous notes of the conversation with the complainant’s barrister, but only the recollection of the journalist, obtained subsequent to the complaint. This was not sufficient to demonstrate that care had been taken not to publish inaccurate or misleading information, and the Committee found a breach of Clause 1(i) of the Code.

17. The publication said that there had been a misunderstanding. It appeared to be accepted that there had been some discussion between the journalist and the barrister regarding the disputed statement, but that there had been a misunderstanding as to what this impact would be. This claim was significant and required correction under Clause 1(ii). The publication had not offered to publish a correction and there was a breach of Clause 1(ii).

18. The complainant had accepted that the court had heard that they were a victim of abuse, but that the court case was not a fact finding case on these points. It was therefore accurate for the article to report that the judge had not made findings on the allegations of abuse; this did not imply that the allegations had been discounted. The article reported that the judge heard information about the marriage. Where the complainant accepted that this was their spouse’s position in court, the article was not inaccurate on this point. The Committee noted that the complainant believed it was inaccurate to report that they had said anything during the trial, as their barrister had been the one to speak. The barrister had been representing the complainant in the proceedings; in this context, it was not inaccurate to refer in general terms to the claims made in support of the complaint’s case, on their instructions, as having been attributed to the complainant. It was also not inaccurate to report what was written in the complaint’s spouses case outline, even in the complainant disputed the validity of the claim. There was no breach of Clause 1 on these points.

19. With regards to Clause 11, the Committee made clear that it was not making a finding as to whether the complainant was a victim of sexual assault, but whether the article had identified them as such a victim. The complainant had been named in court without reporting restrictions. During the proceedings, there were allegations that they had been subjected to abuse. Neither of these allegations constituted an allegation of sexual abuse, and there was no mention of sexual assault in the article. In these circumstances, the complainant had not been identified as a victim of sexual assault and there was no breach of Clause 11.

20. The complainant’s religion, profession and the allegations of abuse against their spouse were heard in public through the court proceedings and were not subject to reporting restrictions. It was, therefore, not a breach of their privacy under Clause 2 to repeat this information.

21. The complainant also said the publication of the article was intrusive in breach of Clause 4. The Committee noted that the article was a report of the court proceedings. Clause 4 makes clear that it does not restrict the right for publications to report on legal proceedings. The Committee understood that the publication of the article was upsetting for the complainant, but it was a report of contemporaneous proceedings that had been heard in court, and there was no breach of Clause 4.

22. Clause 12 bars irrelevant and pejorative references to certain characteristics of an individual. As stated, the Committee did not consider that the complainant had been identified as a victim of sexual assault, and job titles are not a protected characteristic. There was no breach of Clause 12.

Conclusions

23. The complaint was partly upheld under Clause 1.

Remedial Action Required

24. Having upheld a breach of Clause 1, the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or an adjudication, the terms and placement of which is determined by IPSO.

25. The Committee found that the newspaper had published a significant inaccuracy. In circumstances where it was accepted by the parties this appeared to have arisen from a misunderstanding of a discussion that the journalist had initiated for the purpose of clarifying the complainant’s position, the Committee considered that the appropriate remedy was the publication of a correction to put the correct position on record.

26. The Committee then considered the placement of this correction. This correction should be added to the article as a footnote. This wording should only include information required to correct the inaccuracy. The wording should also be agreed with IPSO in advance and should make clear that it has been published following an upheld ruling by the Independent Press Standards Organisation. If the publication intends to continue to publish the online article without amendment, the correction on the article should be published beneath the headline. If the article is amended, the correction should be published as a footnote which explains the amendments that have been made.

 

Date complaint received: 01/03/2021

Date complaint concluded by IPSO: 17/09/2021

 

Independent Complaints Reviewer

The complainant and the publication complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Independent Complaints Reviewer decided that the process was not flawed and did not uphold the either of the requests for review.

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