02495-16 Mwembamba v The Sun

Decision of the Complaints Committee 02495-16 Mwembamba v The Sun

Summary of Complaint

1. Halfan Mwembamba complained to the Independent Press Standards Organisation that The Sun breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 10 (Clandestine devices and subterfuge) and Clause 12 (Discrimination) of the Editors' Code of Practice in an article headlined "Exscamination", published on 11 January 2016. The article was also published online with the headline "Sun investigation: £1,000 gets a diploma for bogus student .... who can use it to get degree places or NHS jobs".

2. The article reported that an undercover reporter had paid a £1,000 to the complainant, referred to as a "fixer", for a Level 4 diploma in Health and Social Care Management from the British Institute of Resource Development (BIRD). It reported that when the reporter had contacted the complainant, he had promised him a diploma by saying he would receive a "guaranteed pass, 100 per cent". It reported that the reporter had asked the complainant "I just bring the money and you do the rest for me?", and that the complainant responded "yes, yes". It reported that after paying £1000, the reporter was given the diploma by BIRD "despite no experience, no lectures, no coursework or exams". It reported that the complainant offered a £50 bonus for "every new fake student he could bring in".

3. The article reported that the complainant used the diploma to obtain a place for the undercover reporter on a BA degree course at a named university after forging paper­work and coaching the reporter through an interview. It reported that the complainant "filled in a UCAS uni application and forged a personal statement supposedly from [the reporter]". It reported that after he had been awarded the diploma, his place on the BA degree course was confirmed. It reported that "when confronted, [the complainant] insisted he had only introduced [the reporter] to the college and never completed paperwork or assignments". It reported that the head of BIRD had said that he was "shocked", that BIRD was "going to strengthen the whole system", and that the complainant would be banned from the premises. The article was accompanied by images of the complainant at BIRD, and an image of the diploma certificate.

4. The online version of the article was accompanied by a video setting out the nature of the newspaper’s investigation and its purported findings. This video included footage of the complainant interacting with the reporter while he was undercover. The online version of the article was otherwise substantially similar to the print version of the article.

5. The complainant said that he was a volunteer at BIRD, and that the reporter's agreement was with BIRD, rather than with him. He said he had passed the £1,000 the reporter had given him to BIRD, and the receipt for this sum bore BIRD's name, rather than his own. The complainant said that he provided the undercover reporter with a standard personal statement from a BIRD computer in order that the reporter could prepare a new one according to his circumstances. He provided IPSO with a copy of the personal statement he gave to the reporter. The complainant denied that he prepared a diploma certificate for the undercover reporter.

6. The complainant denied that he had coached the undercover reporter through an interview as part of the university admissions process. He said that university staff only checked applicants' documentation, and that there was no interview with the university; it therefore did not make sense for him to have coached the reporter through an interview. The complainant denied that he had promised a diploma to the undercover reporter. The complainant denied offering the reporter a money-back guarantee should he be unsuccessful in applying to university. He said that BIRD told him to tell the reporter that he would get back 70% of the cost of the diploma if he did not obtain a university place.

7. The complainant said that, acting on instructions from BIRD, he told the reporter he could get a bonus of £50 for bringing in a qualified student; he denied that he had offered this bonus for bringing in "fake students". The complainant denied making the reporter's UCAS application. The complainant said that the reporter asked for his advice after finishing his application because he did not know how to send it. The reporter provided his login details, which the complainant said he used to check the application. The complainant said that he then explained to the reporter that he needed to click send, and make a payment.

8. The complainant said that the newspaper used a hidden camera, a listening device and secretly filmed him. The complainant said that the material obtained via clandestine devices and subterfuge could have been obtained by other means, including interviewing students who had obtained their university places through BIRD.

9. The complainant said that while he appeared in the video, the video did not show or name individuals from the university. He said that this was because he is black, and they were white, and that this represented discrimination against him because of his race.

10. The newspaper said it received allegations from a confidential source that it was possible to obtain diplomas from BIRD without having to study or take any assignments. These diplomas would then allow the recipient to go to university. The newspaper said that source provided the complainant's contact details as a recruiter for the course. It said that there was a clear public interest in investigating and exposing the alleged wrongdoing at an academic establishment. It said that if the allegation was verified, it would call into question the credibility of some respected universities, and would show abuse of the student grants and loans system. The newspaper said it viewed the allegation as serious in the context of the large number of students who miss out on degree places because they fall short of the required A-Level grades.

11. The newspaper said that an undercover investigation was the only way of investigating the allegation because an overt investigation may have enabled those involved to destroy the relevant documentary evidence. It said that a memo was prepared setting out the details of the tipoff, and proposing that given the inherent public interest, an undercover reporter test the veracity of the allegation. The newspaper said that this proposal was considered and authorised by senior editorial staff. It said that, throughout the investigation, the Head of News and the Head of Content were kept appraised, and the article was submitted for legal checking prior to publication.

12. The newspaper said that it was clear from BIRD's response following publication of the article that the public interest was served by the investigation. This included dismissing its compliance officer, a full audit for all learners on the Level 4 diploma programme and the verification of all applicants' previous qualifications. It said that as a result of the article, several other credible and well-placed sources had come forward to back up the story, and make further allegations that were in the hands of the police.

13. In response to this complaint, the newspaper provided IPSO with further footage obtained as part of its investigation, in addition to the footage which accompanied the online article. This included the full audio recording of a telephone conversation between the complainant and the reporter in which the complainant confirmed that the reporter would be given a "guaranteed pass". It also included videos taken with a hidden camera. In one of these videos, the complainant presented the reporter with a document, and told him that it was "like a test ... in mathematics", but that he would take the document, and drop it off the next day. Later in the same video, the complainant told the reporter to call him when he received an email assignment. Another student present took down the complainant's number, and asked the complainant whether he was going to "do all this for me, yeah?", and the complainant replied: "yeah".

14. In another video, the complainant explained that a university would be coming to BIRD that day to interview the students. The complainant went on to explain what the reporter should say in the interview. In another video, the reporter discussed bringing in further students to BIRD. The complainant confirmed that he could take additional students, that they would be given a "guaranteed pass", but that the reporter should ensure that any additional students were good at writing, and that they could speak.

15. The newspaper said that when it interviewed the head of BIRD at the conclusion of its investigation, it was provided with the coursework that was on its reporter's file. It said that the reporter had never seen the coursework before, and that it had not been sent to BIRD from the reporter's email address. The newspaper said that while the complainant denied preparing its reporter’s personal statement, he accepted that he had provided the reporter with a ‘standard’ personal statement.

16. The newspaper said that university staff did not feature in the video accompanying the article because they were not in shot. The newspaper denied that it had discriminated against the complainant on the basis of his race.

17. The complainant denied that he prepared or helped to prepare the reporter's coursework. He said that the reporter completed his own assignment. In relation to the numeracy exercise, the complainant said that it was part of a 'warm-up' in numeracy, and was not a test or exam. The complainant said that while the reporter had asked him for help, he did not complete the exercise. In response to the audio recording and video footage provided by the newspaper, the complainant said that they had been fabricated. In relation to the audio recording where he is heard referring to a "guaranteed pass", the complainant said on the reporter's request, he was providing an evaluation of his level of English, and that he used the words "guaranteed pass" on the basis of the reporter's performance at a previous interview. The complainant said that the fabrication of this audio recording represented a breach of Clause 2 (Privacy).

18. The newspaper denied that the audio and video material it provided had been fabricated. It said that the video was long, and had been edited for publication online, but that it had not been interfered with in any other way.

Relevant Code Provisions

19. 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. Account will be taken of the complainant's own public disclosures of information.

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

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.

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.

The Public Interest

The public interest includes, but is not confined to:

i) Detecting or exposing crime, or the threat of crime, or serious impropriety.

ii) Protecting public health or safety.

iii) Protecting the public from being misled by an action or statement of an individual or organisation.

iv)  Disclosing a person or organisation's failure or likely failure to comply with any obligation to which they are subject. 

Editors invoking the public interest will need to demonstrate that they reasonably believed publication - or journalistic activity taken with a view to publication - would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time.

Findings of the Committee

20. The Complaints Committee noted that it had previously ruled on a complaint from BIRD in relation to the material under complaint.

21. The Committee noted the complainant's position that he did not complete the reporter's UCAS application. However, he did not dispute that he had provided the reporter with a completed personal statement, albeit with the name and email fields left blank, and with a reference to a "Level 4/5 Diploma". The Committee noted that the personal statement was written in general terms, and apart from the name and email field, did not contain details which would be particular to a specific individual. In these circumstances, the reporter was able to present the personal statement provided by the complainant as his own, such that  it was not misleading to report that the complainant "forged a personal statement supposedly from our man", or that the complainant had obtained a place for the reporter at university by "forging paperwork". The Committee noted the complainant's position that while he had logged onto the reporter's UCAS form to provide him with advice, the reporter had already filled in the relevant details. However, given the centrality of the personal statement to the UCAS application form, it was not significantly misleading to report that the complainant had "filled in" the reporter's UCAS application.

22. The audio material provided by the newspaper supported the article's claim that the complainant had promised the reporter a diploma by telling him that he would be given a "guaranteed pass". The video material provided by the newspaper supported the article's claim that the complainant had coached the reporter through an interview with university staff. The Committee noted the complainant's position that the videos were fabricated. However, in the absence of any specific evidence in support of this position, the Committee did not consider that there was any reason to believe the videos were not an accurate record of his conversations. As such, the Committee did not establish that the article was inaccurate on these points, and these aspects of the complaint did not raise a breach of Clause 1.

23. The article's reference to a "money back guarantee" was not misleading in circumstances where the reporter was guaranteed 70% of his money back if he did not obtain a place at university. There was no breach of Clause 1 on this point.

24. The Committee noted the complainant's position that he did not complete the reporter's coursework. However, the article did not make this allegation, but merely reported that the reporter had obtained the diploma without completing any coursework. The Committee noted that the complainant had offered to take the reporter's numeracy exercise, and bring it back the next day. Later in the same video, he told the reporter to call him when he received the email assignment, and when another student asked if he would "do all this for me yeah?", he confirmed that he would. In all the circumstances, the Committee did not establish that it was inaccurate to report that the reporter was awarded a diploma without completing any coursework.

25. The Committee noted the complainant's position that he was a volunteer worker at BIRD, and that the reporter's agreement was with BIRD, rather than with him. However, the audio material and video footage supplied by the newspaper showed that the reporter interacted with the complainant during the investigation, including taking the reporter's cash payment. Having regard for the full nature of the interactions recorded in the videos, it was not inaccurate to refer to the complainant as "a fixer", and there was no breach of Clause 1 on this point.

26. It was not in dispute that the complainant had offered the reporter a bonus for bringing in new students. While the Committee noted the complainant's position that these students were not "fake", the video material showed the complainant saying that these additional students would receive a "guaranteed pass", but that the reporter should ensure that they are good at writing, and that they could speak. In these circumstances, and where the newspaper's reporter had obtained a diploma without doing any work, the newspaper was entitled to refer to these prospective students as "fake students". This aspect of the complaint did not raise a breach of Clause 1.

27. The newspaper had received a detailed allegation that it was possible, via the complainant, to pay money to BIRD and obtain a diploma without doing any studying or assignments. This diploma would then enable the recipient to obtain a place at university, to access student loans and potentially to obtain grants and other financial benefits. There was a clear public interest in verifying this allegation given the importance of detecting serious impropriety, the expectation that a diploma of this kind could not be dishonestly obtained, the importance of maintaining confidence in such qualifications, and the potential abuse of the university admissions system.

28. The allegation was of potentially serious misconduct. It was reasonable for the newspaper to decide that attempts to verify the allegation through open means would be unsuccessful given the possibility that it would allow those involved to destroy relevant evidence. The newspaper said it had prepared a memo for consideration by senior editorial staff, who considered that the public interest justified proceeding with the investigation.

29. The newspaper demonstrated that it reasonably believed that the undercover investigation would both serve, and be proportionate to, the public interest.

30. The newspaper's decision to use a hidden camera to film the reporter's actions in obtaining the diploma allowed it to ensure that it was accurately reporting how the reporter obtained a diploma, and to evidence the claims made in the article. This aspect of the undercover investigation was proportionate to the public interest served by the investigation as a whole.

31. The investigation had demonstrated that the allegation was true; it was possible, via the complainant, to obtain diplomas from BIRD without having to study or take any assignments. The public interest which justified the undercover investigation also justified publication of the material obtained. There was a public interest in illustrating how the complainant had obtained the diploma by publishing the audio recording and the video footage obtained by a hidden camera, which identified the complainant on account of his central role in obtaining the diploma. Publication of the material obtained as a result of the subterfuge and the use of clandestine devices did not raise a breach of Clause 10.

32. The Committee noted the complainant's position that the newspaper's fabrication of his telephone conversation with the reporter was intrusive. However, in light of the Committee's finding that there was no reason to believe that the newspaper had fabricated the audio recording of this conversation, this aspect of the complaint did not raise a breach of Clause 2. Furthermore, the Committee considered that any intrusion in to the complainant’s privacy resulting from the newspaper’s recording of its investigation was justified by the same considerations which justified the use of subterfuge and clandestine devices in this case.  There was no breach of Clause 2.

33. Clause 12 provides protection to individuals from pejorative or prejudicial reference to their colour or race, and from details of their race or colour being reported when they are not genuinely relevant to the story. The complainant's concern that he had featured in the newspaper’s video, when members of university staff who were white were not depicted, did not give rise to breach of Clause 12.

Conclusions

34. The complaint was not upheld.

Remedial Action Required

35. N/A

Date complaint received: 22/04/2016
Date decision issued: 16/09/2016