02837-15 Lavington v Birmingham Mail

Decision of the Complaints Committee 02837-15 Lavington v Birmingham Mail

Summary of complaint 

1. Allan Lavington complained to the Independent Press Standards Organisation that the Birmingham Mail had breached Clause 3 (Privacy) and Clause 4 (Harassment) of the Editors’ Code of Practice in an article headlined “Church Leader and deacon husband in legal war which began with unholy row at wedding reception”, published on 2 February 2015. 

2. The article reported that the complainant had claimed unfair dismissal from Gospel Express Academy, a business run by his former wife. It said that the employment tribunal judge had ruled that the complainant had not been employed by the business, and could not proceed with his claim. The article reported both the complainant’s and his former wife’s comments on their relationship.  It included a photograph of the complainant which showed the complainant’s face against plain background. 

3. The complainant said that the photograph was taken from his confidential personnel file, and was his property.  He said that the use of the photograph intruded into his private life. He said that following the employment tribunal hearing, a reporter from the newspaper called him three times on his ex-directory number. In the second call, the reporter asked the complainant whether he had another partner. The complainant said that he told the reporter that this was private, and asked him not to call again. He then ended the call. The complainant said that he made this request as the reporter’s enquiries were becoming personal. 

4. The complainant said that the reporter then called a third time, and he told the reporter that he had asked him not to call again. The complainant said that the reporter then apologised, but asked if he wanted to respond to further comments by his former wife.  The complainant responded by saying that he was not interested in his former wife’s further comments as he doubted that her comments were true. They then discussed the use of the complainant’s photograph, and the journalist said that he did not require the complainant’s permission to take a photograph. The complainant cautioned the reporter against taking a photograph of him, and ended the call. He said that the journalist’s comment was intimidating. 

5. The newspaper said that photograph of the complainant was provided by his former wife, following the tribunal hearing. It said that it believed that the photograph belonged to her, and it was published in good faith.  The newspaper said that the journalist believed that he called the complainant twice, but could not say with certainty that he did not call a third time. However, the reporter denied being asked to desist from contacting the complainant, and the newspaper noted that the complainant had commented freely throughout his conversations when he was free to end these calls at any time. It said that the second phone call was on 13 March, the purpose of which was to provide the complainant with an opportunity to comment in advance of a further article. The reporter was correct to tell the complainant that he did not require his consent to photograph him outside the public tribunal. 

Relevant Code Provisions

6. Clause 3 (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 in private places without their consent. Note - Private places are public or private property where there is a reasonable expectation of privacy. 

Clause 4 (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 their 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. 

Findings of the Committee

7. The photograph of the complainant was a straightforward portrait, which contained no information about the complainant beyond his likeness. Identification of the complainant via this photo, in the context of reporting on his hearing at an employment tribunal, did not disclose any private information about him; it did not intrude into his privacy, and there was no breach of Clause 3 on this point. 

8. The Committee noted the newspaper’s position that, from the reporter’s recollection, he called the complainant twice, but that he could not state with certainty that he did not call Mr Lavington a third time. The newspaper had not provided any records to support its position that there were only two calls. The Committee considered this complaint on the basis of the complainant’s account of the number of calls made. 

9. The complainant said that he had asked the reporter not to call again at the end of the second call, and that the third call was therefore a case of harassment. However, the newspaper denied that such request had been made. Given the conflicting accounts, and the absence of any evidence on whether the reporter was asked not to call again, the Committee was not in the position to make a finding on this point.  Nevertheless, it noted that the complainant had previously provided comments in response to the journalist’s enquiries, and that on the complainant’s own account, the conversation in the third call was not, on its face, harassing or intimidating. The journalist was free to inform the complainant of the fact that under Code, there are circumstances in which photographs can be taken and published without consent. In these circumstances, and in light of the content of the third call, while recognising it had not been able to determine whether the complaint had asked the journalist not to call again, the Committee did not uphold the complaint under Clause 4. 

Conclusions

10. The complaint was not upheld. 

Remedial Action Required

N/A 

Date complaint received: 20/05/2015

Date decision Issued: 02/09/2015