02538-22 A woman v Mail Online

Decision of the Complaints Committee – 02538-22 A woman v Mail Online

Summary of Complaint

1. A woman complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy) and Clause 2 (Privacy) of the Editors’ Code of Practice in an article published in June 2021.

2. The article reported on legal claims brought by the complainant against her former employer for sex discrimination, unfair dismissal and victimisation. The article reported that the complainant – a “£60,000-a-year audit manager” – had been dismissed from her role in 2019 and detailed the substance of her claims. It reported that the complainant alleged she “suffered detriments” and was still made to work long hours which she claimed had “impacted her health”. The article reported that the judge had ruled the claims should be heard at a “full hearing”.

3. The complainant said the article’s coverage of her claims – including its reference to her health – represented an unjustified intrusion into her private life, in breach of Clause 2 (Privacy). She said that the preliminary hearing had been conducted in private, noting Rules 53 and 56 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: 

53. (1) A preliminary hearing is a hearing at which the Tribunal may do one or more of the following – (a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing); (b) determine any preliminary issue; (c)consider whether a claim or response, or any part, should be struck out under rule 37; (d) make a deposit order under rule 39; (e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation).

(2) There may be more than one preliminary hearing in any case.

(3) “Preliminary issue” means, as regards any complaint, any substantive issue which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed).

56. Preliminary hearings shall be conducted in private, except that where the hearing involves a determination under rule 53(1)(b) or (c), any part of the hearing relating to such a determination shall be in public (subject to rules 50 and 94) and the Tribunal may direct that the entirety of the hearing be in public.

4. The complainant said that a summary of her case had inadvertently been published on HM Courts and Tribunal Service (HMCTS) website in June 2021 and subsequently removed in August 2021. This was confirmed, in writing, to the complainant, by HMCTS on 21 April 2022:

“it seems that an order, not a judgement, was incorrectly placed on the website by HMCTS staff. This was not a judicial decision [and] the error has now been rectified”.

5. The complainant also said the article was inaccurate in breach of Clause 1 (Accuracy) to report that she earned “£60,000” a year when, in fact, she earned “£66,000”.

6. In December 2021 – and 6 months after the article was published – the complainant wrote to the publication and requested the removal of the online article. In November 2022 – and following a separate complaint to the Information Commissioner’s Office – the publication removed the online article, with no admission of wrongdoing.

7. The publication did not accept a breach of the Editors’ Code. It denied that the complainant had a reasonable expectation of privacy over the matter: all information included within the story was already in the public domain; the order had been published on HMCTS website in June 2021, and had remained accessible for several weeks. Given that the story had been based on this publicly available resource, and the reporter had not attended proceedings in person, the publication said that it was unable to state whether the hearing had been conducted “in private”. Though, it accepted the complainant’s position that some preliminary hearings were conducted in private in certain circumstances. Notwithstanding this, it said that no orders to restrict the disclosure of any aspect of proceedings by the complainant were made under Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, nor did it receive any notification from HMCTS on this matter. In addition, the publication suggested that the complainant had conflated her “private life” with a “private hearing”, adding that the two were not comparable. It also noted that the article included no specific details concerning the complainant’s health. Instead, the article reported the complainant’s claim – which was outlined in the order uploaded to the HMCTS website – that her health had been adversely affected by the alleged wrongdoing of her former employer.

8. With regard to Clause 1, the publication accepted that it had, due to an error introduced in editing, incorrectly reported the complainant’s salary. However, the publication did not consider that this amounted to a significant inaccuracy requiring correction in the context of the article as a whole and where the difference between the figures was only 10 percent.

9. Notwithstanding this, upon receipt of the complaint from IPSO, and in an effort to resolve the matter, the publication offered to publish a standalone clarification on this point in its Corrections and Clarifications column. It further offered to provide the corrective wording in the form of a private letter.

10. In a further gesture of goodwill, the publication also offered to engage an agency to contact third-party websites that had reproduced the published material, and request that they remove the content.

11. The complainant, however, did not consider this sufficient. As such, the matter was passed to the Complaints Committee for adjudication.

Relevant Clause 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.

Findings of the Committee

12. It is a fundamental principle of ‘open justice’ that court proceedings may ordinarily be reported by the media in an open and transparent way, but this is not absolute: notably, when reporting restrictions are in place.

13. In this instance, it did not appear that a specific reporting restriction had been ordered by the court. Rather, the complainant said that the preliminary hearing – upon which the article reported – had been conducted in private, pursuant to the Employment Tribunals Regulations. HMCTS had also acknowledged that the order made at the hearing had been uploaded in error and should not have been made public. Therefore, the question for the Committee was whether in these circumstances the publication of the information contained in the article amounted to an intrusion into the complainant’s private life.

14. The Committee noted that the article had concerned the complainant’s professional life: it had reported on the claims she had made against her former employer. Further, it did not publish specific details about the complainant’s health. Rather, it had reported her position that her health had been adversely affected by the alleged actions of her former employer. It was accepted, by both parties, that the order which contained the information set out in the article had been uploaded in error to the website on which tribunal judgments appear; that the website is the resource by which the tribunals service regularly makes information about tribunal proceedings public; and that the order had remained available on the website for several weeks before it was removed. Given the nature of the information itself which related to the complainant’s professional life, and the extent to which the information was already in the public domain as a consequence of the order having appeared on the employment tribunal website (albeit in error), the Committee concluded that publication of the information about the complainant’s claim did not represent an intrusion into her private life. There was no breach of Clause 2.

15. It was accepted by both parties that the article had misreported the complainant’s salary. However, the difference in the remuneration did not amount to a significant inaccuracy in the context of an article as a whole, which focused on the claims made against her employer and where the figure was under-stated by less than 10 per cent. This did not require correction under the terms of the Code, and there was no breach of Clause 1 on this point.

Conclusion(s)

16. The complaint was not upheld.

Remedial action required

17. N/A

Date complaint received:  17/04/2022

Date complaint concluded by IPSO:  09/05/2023