02643-21 James v Mail Online

Decision of the Complaints Committee – 02643-21 James v Mail Online

Summary of Complaint

1. Lily James complained to the Independent Press Standards Organisation that Mail Online breached Clause 2 (Privacy) and Clause 3 (Harassment) of the Editors’ Code of Practice in a series of 51 articles, published between 12 October 2020 and 2 February 2021.

2. The complainant is a well-known actor, and the articles under complaint reported on various aspects of the complainant’s life, including her personal and social life and her work commitments.

3. Of the 51 articles under complaint, seven were published in a single day – 13 October 2020 – and 18 were published in a one-week period, between 12 October 2020 and 19 October 2020. All of the articles published in this period of time either centred around, or contained references to, photographs of the complainant with another actor abroad. The articles speculated on the nature of the relationship between the complainant and the actor, and whether it was romantic in nature. Further articles were published outlining the response of the other actor and his wife to the speculation; including one which featured comments from a friend of the actor’s wife. In this one-week period, a set of photographs showing the complainant with the other actor were republished 14 times. After 19 October 2020, this set of photographs was published, in full or in part, in a further 28 articles; in total, the set of photographs appeared in 46 articles published over a 4-month period. Later coverage centred on the complainant cancelling public appearances, and speculation that she was romantically involved with another actor.

4. Additional sets of photographs of the complainant were also published in the articles under complaint. A set of photographs showing the complainant at an airport with the same actor who appeared in the first set of photographs was published in an article on 18 October 2020, and was republished in an additional 9 articles within a week of their first publication. There was no further republication of this set of photographs after this time period.

5. A set of photographs, showing the complainant on a public street and entering a taxi-cab with a second person, also an actor, were published in an article on 4 November 2020. This set of photographs was republished only once, in another article on the following day.

6. A set of photographs, showing the complainant with the second actor and on the same night, showed the complainant seated at a table inside a restaurant, with a third, unnamed, individual. This set of photographs was first published on 5 November 2020, and was republished on the same day in a separate article, and an additional 3 times within one week of first publication. There was no further republication of this set of photographs after this time period.

7. Articles published on 25 October 2020, 15 December 2020, and 24 January 2021 included photographs which showed the complainant on a film set; all these articles included different sets of photographs. The set of photographs in the latter two articles appeared to show the complainant filming on a public street.

8. Prior to making a complaint to IPSO about these articles, the complainant contacted IPSO on three separate occasions to make it aware of what she considered to be persistent and intrusive approaches from the press. On all three occasions, IPSO circulated a privacy notice to the press – including Mail Online – to make the press aware of the complainant’s concerns and to remind the press of its obligations under the Editors’ Code, with particular regard to Clause 2 and Clause 3 of the Code. The three notices were circulated on: 30 March 2020, 6 months prior to the publication of the first of the articles under complaint; 13 October 2020, after the publication of two of the articles under complaint and on the same day that an additional 7 articles were published; and 27 November 2020, after the publication of an additional 35 articles under complaint.

9. The first notice of 30 March 2020 circulated by IPSO made reference to the complainant’s concerns regarding the presence of photographers around her home, and instances where she said she had been pursued by photographers. The notice said that the complainant “is concerned about the constant presence of photographers in the area around her home. In recent weeks she has been pursued by photographers on a number of occasions and has been photographed without her consent. She has found this distressing and intrusive. [The complainant] would like to ask that photographers leave the area around her home and desist from following her.”

10. The second notice, circulated on 13 October 2020, again flagged concerns about the presence of photographers around the complainant’s home, saying that the complainant “would like to make clear that the increased level of media intrusion [at her home] is neither acceptable or welcome. They feel harassed and anxious by this activity. They ask that members of the press leave the areas around their […] home[…] immediately.” The second notice was accompanied by a top note from IPSO, which stated that the complainant “ask[ed] that reporters and photographers leave the area outside their homes and do not attempt to contact them there”.

11. The final notice, circulated on 27 November 2020, said that the complainant had been pursued by photographers in cars, and that she felt unable to go about her daily life due to press contact and the presence of photographers. Written by a representative of the complainant, the final notice read in part as follows:

M[y] client is currently greatly distressed by the continuous presence of photographers and members of the press as she attempts to go about her daily life. She has been under constant surveillance by the press and this is having a serious impact on her wellbeing, health, and ability to move on with her life. My client would like to draw editors’ attention to the fact that this unprecedented level of attention has been unceasing for over a month. She now considers this conduct to constitute intimidation and harassment. This behaviour by members of the press and photographers has caused her to feel very frightened and anxious at a very vulnerable time in her life.

There have been several very serious recent incidents in particular which have prompted my client’s request, including being pursued by car which was extremely intimidating and dangerous. At the moment my client feels she cannot live her life in a normal way without fear of being followed, approached, or photographed.

Given that the unceasing actions of the press have resulted in my client’s inability to go about her daily life and potentially put her in danger with regards to being pursued, she requests that press desist from attempting to approach and photograph her. This behaviour up until now has greatly intruded into my client’s daily life and has caused her fear. For the avoidance of doubt, this request includes leaving the area outside my clients’ home, not to follow my client, and to desist in attempts to photograph or contact my client as she goes about her daily life. She also asks editors not to publish photographs which have been taken in circumstances she considers to constitute harassment.

12. Prior to making the complaint to IPSO, a representative of the complainant contacted the publication directly on several occasions. On 26 October 2020, an email was sent from the representative to the publication stating: “The coverage of [the complainant] by the MailOnline has been absolutely incessant and your harassing behaviour is nothing short of bullying. […] . Since October 12th (two weeks ago), the Mail Online have published 40 articles about [the complainant]. Please be responsible and desist.” On 5 November 2020 the representative emailed a journalist working for the publication who was seeking comment in relation to a story: “I have already written to the Mail [O]nline regarding the excessive harassment and bullying of [the complainant…] Please stop.” A further email sent on 19 December 2020 from the representative to a journalist at the publication said, “I am not sure why you are bullying her so much.” A final email sent on 12 January 2021 from the representative said that there had been “unnecessary, inaccurate and scrupulous attention” on the complainant from the publication’s publisher, and requested “help on this matter”. The publication responded to the complainant’s email of 12 January 2021 by removing a line from an article “with no admission of liability”; otherwise, the publication did not respond to the representative’s concerns.

13. On 11 March 2021, the complainant made a complaint to IPSO that the 51 articles breached Clause 2 and Clause 3 of the Editors’ Code of Practice. The complainant said that the articles, and the republication of photographs of her, were harassing in breach of Clause 3, given the number of the articles and the nature of the coverage. The complainant also said that she considered that a further breach of Clause 3 arose from the publication creating a market for photographs of her – given the volume of coverage – which, she said, directly led to harassing behaviour from photographers. She said that in the period complained of: a photographer had pursued her while she was in a removal van, in an attempt to discern the location of her new home; another photographer had approached a driver to ask them where she lived; and she had been photographed in the grounds of a private hotel. While the complainant was not in a position to state that it was photographers working on behalf of the publication who engaged in this behaviour, she said that, at the height of the coverage, she had been unable to return to her home due to the presence of photographers and, as a result, was forced to move address.

14. The complainant said that the set of photographs showing her having dinner in a restaurant had been taken and published in breach of Clause 2. She said she had intentionally sat in a corner towards the back of the restaurant so that she was not readily visible to other diners; therefore, she said, she had a reasonable expectation of a privacy, where she had taken steps to seat herself away from public view. The complainant provided a floorplan of a restaurant, in which she circled the approximate location where she had been sitting when the photographs were taken; this was at the rear corner of the restaurant, against a wall.

15. The complainant also said that Clause 2 had been breached by the large number of articles published by the publication about her in a 4-month period, which she said demonstrated a lack of respect for her private life. She also said that the volume of photographs demonstrated that photographers had engaged in activity which intruded on her private and family life, in breach of Clause 2.

16. The publication did not accept a breach of the Code, in relation to either individual  articles and photographs, or the full series of articles. It noted that, while the complainant had alleged specific breaches of the Code in relation to one set of photographs showing her in a restaurant, her complaint appeared to centre on her dissatisfaction with appearing in a large number of articles in a relatively short period of time. It did not accept that the complainant’s concerns about the behaviour of the photographers could “be laid solely at the feet of” the publication, noting that the original set of photographs – showing the complainant and her fellow actor abroad – had not been commissioned by the publication and that they appeared in several other publications.

17. Turning to the complainant’s Clause 3 concerns, the publication said that it was not possible for the number of published articles to amount to a breach of Clause 3, arguing that an upheld ruling on such grounds would be in contravention of the publication’s fundamental right to freedom of expression as protected by Article 10 of the European Convention on Human Rights. It noted that an earlier IPSO ruling, following a complaint brought by an individual in 2014 who complained of the publication of 8 articles about him in an unspecified period of time, had stated that “the publication of a number of articles about the same person would not usually amount to harassment under the terms of the Editors’ Code”. The publication also noted that the Editors’ Codebook states that “[i]t is not usually the case that publishing a number of articles on one issue constitutes harassment”.

18. The publication said that, in addition to ensuring that all staff comply with the Editors’ Code, all freelance contributors to the publication are required to adhere to the Contributors’ Standard Terms and Conditions which include, at clause 5.2, a requirement to abide by the Editors’ Code of Practice; it also provided an example of an invoice – such as those provided to photography agencies – which also included a reference to the Editors’ Code and an agreement to abide by it. The publication then provided emails demonstrating that the IPSO notices (see paragraphs 9 – 11 above) had been circulated to all staff; in a response to the notice circulated on 27 November 2020, a picture desk editor had replied “not us” to the circulated email which raised concerns about the complainant being pursued in a car by members of the press.

19. The publication also provided an email chain in which the picture desk had approached the managing editor’s office, to seek pre-publication advice before first publishing the restaurant set of photos. In the email from the picture desk, it confirmed that “there was no follow involved” in the photographs – that is, that the photographs had not been obtained after pursuit. Turning to specific instances in which the publication had engaged freelance journalists to look and watch for the complainant, it provided a table showing that it had made 12 payments to freelancers to watch and look for the complainant: one payment had been made prior to the circulation of the second privacy notice, with 11 further payments being made after its circulation. The publication said that the instructions had been prompted by the breaking story of the complainant being photographed with another actor in Italy; the story ‘broke’ on 13 October, the same day that the second notice was circulated. Journalists had been commissioned to watch for the complainant: at a residential address in London, in Rome, and in a different London residential area. It confirmed that none of the commissions had resulted in photographs of the complainant being published, and further noted that the journalists did not seem to have been able to locate her and that the number of commissions were relatively small and limited to a period of less than three weeks. Therefore, the publication was satisfied that there could be no compelling suggestions that the complainant was harassed by journalists working on behalf of the publication.

20. It noted that the complainant had not alleged that photographers working for the publication had engaged in behaviour which constituted harassment, and she had not linked specific instances of harassing behaviour on the part of photographers of the photographs which were included in the articles under complaint. Regarding the specific allegation of pursuit in vehicles, it said this had been flagged by the complainant at the time and, subsequently, raised internally at the publication, which was able to confirm that it was not photographers working for the publication who had engaged in such behaviour. It provided IPSO with an email which it said demonstrated this. It was therefore satisfied that it had taken care to ensure that photographs taken by freelance contributors had not been taken in circumstances constituting harassment.

21. Addressing the complainant’s concerns regarding the publication of the photographs of her dining inside a restaurant, it noted that the complainant must have been visible from the street, otherwise the photographer – who was an agency photographer, rather than a member of the public – would not have been able to photograph her from there, as he had shot the photographs from a public street and through the windows of the restaurant. Nevertheless, it said that there was a public interest in the publication of photographs showing the complainant at the restaurant, as it considered that they appeared to show the complainant congregating inside a restaurant with a friend, in contravention of the Covid-19 regulations in force at the time, which allowed only for meetings between people from different households for the purposes of business. It said that, while it had contacted the complainant’s representative prior to the article’s publication, who had said that the picture showed a business meeting between friends who were also colleagues, no evidence existed to demonstrate this was the case. The publication said that it had not been provided with notes from this meeting, and that the complainant’s dining companion had left the restaurant holding a bottle of wine. An internal discussion via email had taken place prior to the article’s publication; whether publication of the pictures may be in breach of Clause 2 had been raised in the discussion, but the publication considered that the public interest in reporting a potential breach of Covid-19 regulations was sufficient to justify publication. The emailed discussion took place prior to the publication being informed that the complainant was at a business meeting when she was photographed. The first publication of the photographs was in an article which explicitly centred around the possible breach of Covid-19 regulations; this, it said, made clear the public interest in the reporting.

22. The publication also provided information about the location of the photographer at the time the photographs showing the complainant inside the restaurant were taken: he was standing across the road from the restaurant, and had used a 200mm lens to obtain the photographs which – according to the publication – was not a particularly large focal length.

23. Regarding the subsequent republication of the restaurant photographs, the publication said that it was not necessary to demonstrate a public interest to re-publish the photographs; following their first publication, they were firmly in the public domain and the newspaper was therefore entitled to republish the photographs regardless of whether there was a specific public interest in their republication.

24. The publication said that the wording of Clause 2 made clear that it was designed to prevent specific instances of intrusion into an individual’s private life. Therefore, it did not accept that a breach of Clause 2 could be established solely from the number of articles published. Noting the complainant’s concerns that the number of articles published by the publication had led to contact from freelance photographers, it said it did not consider that the blame could be laid solely at the door of the publication; it said that the photographs showing the complainant abroad with another actor had not been commissioned by the publication, and had since been republished worldwide in a number of media outlets.

25. While the publication did not accept that the Code had been breached, it said that it regretted any distress felt by the complainant. It further said that it wanted to offer the complainant its assurances that any future photographs of the complainant offered to the publication by freelance photographers would be subject to additional consideration, with the complainant’s previous concerns in mind, before any decision is made to publish them.

26. The complainant noted that the residential address where the photographer had been engaged to look for the complainant was her home address at the time of the commissions, though she had been staying with a friend at the time; therefore, she considered that the publication had acted in contravention of her request to desist circulated through IPSO. She also shared concerns that she had been followed in the vicinity of her home to the restaurant.

Relevant Code Provisions

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.

The Public Interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

(1.) The public interest includes, but is not confined to:

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

- Protecting public health or safety.

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

- Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

- Disclosing a miscarriage of justice.

- Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

- Disclosing concealment, or likely concealment, of any of the above.

(2.) There is a public interest in freedom of expression itself.

(3.) The regulator will consider the extent to which material is already in the public domain or will become so.

(4.) 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.

(5.) An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.

Findings of the Committee

27. Clause 3 (ii) of the Editors’ Code makes clear that journalists must not persist in pursuing individuals once a request to desist has been made, while Clause 3 (iii) that publications must ensure that the principles of Clause 3 are observed by those working for them. The complainant had made repeated requests to desist to the publication, both directly to the publication through her representative and via IPSO privacy notices, advising publications of her concerns. The notices and direct contacts from the representative made clear that coverage of the complainant was having an impact on her, and included references to the complainant feeling “harassed and anxious”. When assessing whether the publication had breached the terms of Clause 3, the Committee was mindful of both the wording and timing of these requests to the publication, and what steps the publication had taken in response to these concerns.

28. The Committee noted that the publication had measures in place to make contributors aware of the Editors’ Code, where both the Contributors’ Standard Terms and Conditions and the invoices given to freelancers include a reference to the Editors’ Code, and the publication was able to demonstrate that the IPSO privacy notices had been circulated internally. However, the Committee considered that these generic measures were not sufficient in circumstances where the complainant had, several times both directly and through IPSO notices, flagged concerns that she was facing an undue amount of press contact which she found to be distressing and intrusive and made requests for this to cease, in accordance with Clause 3.

29. The Committee then noted that an IPSO notice, circulated on 13 October 2020, made a specific request for members of the press to leave the area around the complainant’s home and refrain from attempting to contact and photograph her. After the circulation of this notice, the publication had made further payments to a journalist, who was commissioned to look for the complainant in the vicinity of her home; it was clear that the payments related to the period after the notice was circulated because the publication’s account was that they related to attempts to follow up on a story which broke on the same day that the second notice was circulated. In the view of the Committee, in directing a journalist to attend the area around the complainant’s house to “watch” for her in the immediate aftermath of the circulation of the notice, the publication had ignored the terms of a request to desist from attempting to contact and approach the complainant in the vicinity of her home, and the request for members of the press to disperse from the area around her home. The publication had not sought to argue that there was a public interest in persisting with its approaches or that there had been an interval of time such that the request could no longer be considered to reasonably apply. While the publication had argued that the approach was motivated by fresh developments in the story – namely, the photographs of the complainant with a colleague in Italy – this consideration did not outweigh the clear request to desist. Where the publication had disregarded the terms of a clear request to desist, there was a breach of Clause 3.

30. The Committee turned next to the question of whether the number of published articles and the nature of the coverage represented harassment in breach of Clause 3. The complaint related to a significant number of articles, 51 in total over a period of 4 months, with 7 being published in a single day.

31. The Committee acknowledged that the publication of a large number of articles would not ordinarily constitute harassment in breach of Clause 3 of the Code. In reaching its decision in this case, the Committee therefore considered several factors: the number of published articles; the time period over which the articles were published; the extent to which the complainant might be considered a public figure and the extent to which her activities might arguably have prompted the coverage; the extent to which the articles might reasonably be said to have solely targeted the complainant; whether the published information could reasonably be said to be intrusive or offensive; whether the subject matter of the articles was a matter of legitimate interest for readers; the extent to which republication of the photographs or the publication of the further articles could be said to be prompted by a fresh newsworthy event; whether a reasonable editor could regard the repetition of earlier content and images as relevant; the extent to which the coverage could be expected to cause alarm or distress to a reasonable person in the complainant’s position; and whether publication could be regarded as an abuse of media freedom  in light of the right to freedom of expression.

32. The Committee noted that 51 articles had been published over a period of three months and three weeks. The Committee understood that the number of articles, and the frequency with which they had been published, had caused the complainant a great deal of distress, and that this distress had been flagged directly with the publication. The coverage had begun after the complainant, a well-known actor, had been pictured in the company of another well-known, married actor and the coverage had initially speculated upon the nature of the relationship between the two. The coverage continued by reporting on comments made by an individual described as a “friend” of the other actor’s wife in response to the photographs. Further articles were published following a public statement made by the actor and his wife. A number of articles reported on the complainant’s TV and film roles, with one commenting on a video interview which had been given by the complainant to an international magazine to promote the release of a programme on a well-known streaming service. Some of the further coverage returned to the speculation about the nature of the relationship between the complainant and the actor when photographs emerged of them together at an airport.

33. The coverage in the second half of October 2020 appeared to be prompted by the fact that the complainant had cancelled a scheduled performance to promote one of her forthcoming projects or by statements she had made about her projects, or which had been made by her co-stars. The complainant also featured in coverage about the relationship of another actor with whom the complainant had previously worked. In November 2020, a number of articles reported on the complainant having dinner with another actor inside a restaurant were published with accompanying speculation as to whether Covid rules had been broken. Later that month, further articles were published reporting on the marriage of the first actor with whom the complainant had been pictured, in which the complainant was featured. The articles published in December 2020 reported on the complainant’s return to work and the professional work with which she was engaged. In each of these articles, one or more photographs from the various photosets were published.

34. The Committee reviewed each article and gave consideration to the extent to which the complainant was the principal focus of the coverage, the newsworthiness of each and the nature of the articles. The Committee did not consider that, individually, the articles were intrusive or intimidating, noting that the articles reported on photographs which had been taken whilst the complainant was in a public place, reported on her professional life or featured the complainant because she was incidental to the principal focus of an article. The Committee also took into account that the coverage was generally prompted either by new developments in the story speculating upon the relationship of the complainant with the actor with whom she had been photographed, or by stories about the complainant’s professional activities which, for editorial reasons, the publication considered would be of interest to its readers. The Committee also considered the tone of the articles which was not dissimilar to the tone adopted by coverage of such matters by other publications and was not gratuitously offensive. 

35. On balance, and having taken into account all of the factors noted above, the Committee concluded that the publication of the articles, taken as a whole, did not constitute harassment, and did not breach Clause 3. The Committee also did not find that a breach of Clause 3 arose from the publication creating a market for photographs of the complainant, where the publication could not be reasonably held responsible, under the terms of the Code, for the actions of journalists or photographers working on behalf of other publications.

36. Clause 2 of the Editors’ Code makes clear that it is unacceptable to photograph individuals in public places where there is a reasonable expectation of privacy without their consent. The complainant had been sitting to the rear of the restaurant when the photographs were taken, which were obtained using a camera with a focal length of 200mm – longer than the standard focal length of 35mm. A question for the Committee was, therefore, whether the complainant had a reasonable expectation of privacy in these circumstances.

37. The complainant said that she had taken a clear step to protect her privacy by seating herself away from the window of the restaurant, and away from public view. The Committee noted that she was therefore not readily visible to passers-by, to the extent which the restaurant lay-out appear to allow. In addition, while the publication said that the complainant would have been visible from the street and therefore she did not have a reasonable expectation of privacy, it was not in dispute that a 200mm camera-lens had been used when obtaining the photograph. It was also not in dispute that it was an agency photographer who had taken the photos, rather than a member of the public; the photographs had not, therefore, been taken by chance by an individual who had happened to spot the complainant in a public place, though the Committee was satisfied that the complainant had not been followed to the restaurant nor that they had been “tipped-off” to the complainant’s presence. The Committee was also mindful of what the photographs showed; she was having dinner with two other individuals, away from the front of a restaurant. Whilst the complainant accepted that it was a working dinner, she was not engaged in ‘public-facing’ work and there was no suggestion that she was engaged in a public activity. The photograph had been taken surreptitiously from outside the restaurant and with the aid of a 200mmcamera-lens. Taking these factors into account, the Committee considered that the complainant did have a reasonable expectation of privacy in these circumstances.

38. The next question for the Committee was whether the public interest in publishing the photographs of the complainant was sufficient to outweigh the complainant’s reasonable expectation of privacy. The publication had argued that there was a public interest, as it considered that they appeared to show the complainant meeting others inside a restaurant, in contravention of the Covid-19 regulations in force at the time, which allowed only for meetings between people from different households for the purposes of business.

39. When assessing whether there was a public interest in the publication of the photographs, the Committee was mindful that, under the Code, Editors are required to demonstrate that they reasonably believed publication will both serve, and be proportionate to, the public interest. The terms of the public interest exemption further make clear that publication invoking the public interest will need to demonstrate how they reached that decision at the time; the publication must therefore demonstrate that it considered the public interest at the time that the journalistic activity which raises an alleged breach of the Code occurred. In this instance, the publication therefore had to demonstrate that it had considered the public interest – and how it reasonably believed that publication would both serve, and be proportionate, to the public interest – prior to the initial publication of the photographs.

40. While the publication said that it had considered the public interest prior to publication, the complainant’s representative had confirmed that the dinner was a business meeting and it was not in dispute that such meetings were permissible according to the regulations at the time. The publication had not challenged this explanation with the complainant’s representative and it appeared that it did not have any grounds to do so. There was no indication that any further discussions around the public interest had taken place after the publication had been made aware of the complainant’s position. The Committee accepted that, in certain circumstances, there may be a public interest in reporting on breaches of Covid regulations. However, it did not consider that the public interest had been satisfactorily established in this case where, prior to publication, the complainant’s position that the meeting complied with the rules in place at the time had not been challenged and where there were no other matters upon which the publication sought to rely. The Committee, therefore, did not consider that the publication had demonstrated that it had considered the public interest – and to what extent it could be said to have been proportionate to publish several photographs of the complainant sat inside the restaurant – having taken into account the fact that it had not challenged the complainant’s position that the gathering was allowed by Covid guidelines prior to publication. Taking all these factors into account, the Committee did not accept that there was a sufficient public interest in the publication of the photographs of the complainant in the restaurant, and there was therefore a breach of Clause 2 arising from their use in five articles under complaint.

41. The Committee acknowledged the complainant’s position that the sheer number of published articles was intrusive. However, the Committee did not consider that the fact that a significant number of articles had been published represented an intrusion into the complainant’s private life and a breach of Clause 2. This concern fell for consideration more appropriately under Clause 3, which the Committee had found had not been breached for the reasons explained above. The Committee further noted that the complainant’s concerns over the behaviour of photographers during the period complained of were addressed by the terms of Clause 3, which relates to intrusive behaviour on the part of journalists which occurs during the newsgathering process. There was, therefore, no breach of Clause 2 on these points.

Conclusion(s)

42. The complaint was upheld under Clause 2 and Clause 3.

Remedial Action Required

43. Having upheld the complaint under Clause 2 and Clause 3, 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 adjudication. Given the nature of the breach, the appropriate remedial action was the publication of an upheld adjudication.

44. With regard to the placement of the adjudication, the Committee considered the nature of the breaches of the Code which had been established. In relation to the breach of Clause 3, the Committee had found that the publication had commissioned journalists to engage in behaviour that went against the terms of a clear request to desist, and had not ensured that the principles of Clause 3 were observed by those working on its behalf. In relation to the breach of Clause 2, the publication had intruded into the complainant’s privacy by publishing a set of photographs in five separate articles. The Committee therefore decided that a link to the full adjudication should be linked on the top half of the homepage of the publication’s website for at least 24 hours, and should then be archived in the usual way. The headline of the adjudication must make clear that IPSO has upheld the complaint, and refer to its subject matter; it must be agreed with IPSO in advance.

45. The terms of the adjudication are as follows:

Lily James complained to the Independent Press Standards Organisation that Mail Online breached Clause 2 (Privacy) and Clause 3 (Harassment) of the Editors’ Code of Practice in a series of 51 articles, published between 12 October 2020 and 2 February 2021.

The complainant said that the publication had harassed her by continuing to approach her after she had made it aware of her concerns on several occasions about what she considered to be persistent and intrusive approaches from the press and her request that these approaches should cease.

The complainant also said that the publication had breached her privacy by taking and publishing a set of photographs showing her eating dinner in a restaurant with two colleagues. She said she had been sitting towards the back of the restaurant and was not readily visible to passers-by; therefore, she said, she had a reasonable expectation of privacy, which was not overridden by any public interest.

IPSO found that Mail Online had breached Clause 3 of the Editors’ Code of Practice. An IPSO privacy notice, circulated on 13 October 2020, made a specific request for members of the press to leave the area around the complainant’s home and refrain from attempting to contact and photograph her. After this request had been made, a public interest was required under the terms of Clause 3 to justify persisting in attempts to contact and photograph the complainant. The publication had then commissioned a journalist to look for the complainant in the vicinity of her home. The decision to direct a journalist to attend the area around the complainant’s house to “watch” for her in the immediate aftermath of the circulation of the notice broke the terms of the request to desist from attempting to contact and approach the complainant in the vicinity of her home, and the request for members of the press to disperse from the area around her home. There was, therefore, a breach of Clause 3 in relation to the repeated approaches to the area of the complainant’s home. A separate complaint under Clause 3 about the volume of the coverage relating to the complainant was not upheld.

IPSO also found that the publication had breached Clause 2 of the Editors’ Code, by publishing a set of photographs showing the complainant seated and eating in the back of a restaurant. Clause 2 of the Editors’ Code makes clear that it is unacceptable to photograph individuals in public places where there is a reasonable expectation of privacy without their consent, and the Committee concluded that the complainant did have a reasonable expectation of privacy at the time that the photographs were taken, with a 200mm camera-lens. The complainant had taken clear steps to seat herself away from public view, and the photographs had been obtained surreptitiously from outside the restaurant using professional equipment.

Mail Online had said that there was a public interest in publishing the photographs, which outweighed any reasonable expectation of privacy which the complainant might have had – because in its view they appeared to show the complainant engaged in an activity which contravened the Covid-19 guidance which was in place at the time. However, the complainant had told Mail Online prior to publication that the photographs showed her engaged in a business meeting – which was allowed, according to guidance at the time, which Mail Online was not in a position to dispute. It did not appear to have given further consideration as to whether there was a public interest in the photographs’ publication, having been made aware of this information. There was, therefore, a breach of Clause 2.

IPSO upheld the complaints under Clause 2 (Privacy) and Clause 3 (Harassment) and required publication of this adjudication as a remedy.

Date complaint received: 11/03/2021

Date complaint concluded by IPSO: 28/01/2022

Independent Complaints Reviewer

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 request for review.

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