Decision of the Complaints Committee 03509-19 McEleny v The Times
Summary of complaint
1. Christopher McEleny complained to the Independent Press Standards Organisation that The Times breached Clause 1 (Accuracy) of the Editors Code of Practice in an article headlined "SNP body split over listing of candidate in Salmond row" published 24 April 2019.
2. The article reported that the Scottish National Party's Executive Committee was "split" over a decision to let the complainant, a council leader, pass party vetting after he "commented on allegations" of sexual misconduct made against a politician, while the legal case was ongoing. The article reported that the complainant had made the list of approved candidates for the European elections after two rounds of interviews. However, according to senior party figures the decision was not unanimous as concerns had been raised about his suitability. Firstly, over his recent conduct at the National Executive Committee and, secondly, over his use of social media. The article went on to report that the complainant had "shared social media posts in support" of the politician and "that it is considered inappropriate to comment on active legal proceedings because it could prejudice court hearings". The article featured a comment from the complainant in which he said that "none of this was raised with me when I was interviewed".
3. The article was also published online with the headline "SNP body split over listing of candidate Chis McEleny in Alex Salmond row", the article was substantially the same as it appeared in print.
4. The complainant said that the article was inaccurate as he had never made any posts on social media that discussed or commented on the politician's ongoing criminal case, and therefore he had not prejudiced legal proceedings or brought them into disrepute.
5. The complainant also denied that any allegations that he had shared social media posts regarding the politician had been put to him during the interview process referenced in the article.
6. The publication provided a post the complainant had shared on Facebook, originally written by one of his Facebook friends who commented on the politician’s case; the publication maintained that it was not significantly inaccurate to report that he had commented on the allegations, when he had shared the content from his account. It highlighted the general position that an individual who shared a comment on social media is responsible for its content and there is no significant distinction between commenting and sharing a comment.
7. The publication said that while the law in this area continued to evolve, individuals who posted material which relates to active legal proceedings were at risk of being found in contempt of court. It highlighted that this working principle had been established in respect of recent cases of libel and contempt in relation to social media use. It emphasised that proceedings in the politician's case were active and that while it is for the court to determine whether the comment was prejudicial, the publication noted that the post had referenced matters which, in the publication’s view, put the risk of prejudice beyond doubt. The publication said that there was no significant distinction, and certainly not in law, between commenting and sharing a comment; the complainant was responsible for the content of the material he shared.
8. The publication said that three separate sources on the SNP's National Executive Committee, who made decisions on vetting candidates, confirmed the Committee was split over its decision to approve the complainant as a potential candidate due to him sharing material on Facebook that could be seen to undermine the upcoming court case against the politician. It said that the information received from the publication's sources, and by extension, its understanding of the concerns were put to the complainant prior to publication to comment on their accuracy; including the post in question. The publication emphasised that the complainant made no reference to the Facebook post prior to publication and that it had still not been taken down the day before publication.
9. Notwithstanding its position that there was no breach of the Code, the publication offered to publish a clarification in print in its Corrections & Clarification column on the letters page and in the online Times corrections column on its website; it would also feature with the online article. The publication offered the following wording:
"We said that Christopher McEleny had "commented" on allegations against Alex Salmond during a live legal case (Scotland, Apr 24). In fact Mr McEleny shared a Facebook post which commented on the case with his Facebook followers."
10. The complainant rejected the publication's offer. He said that he had no recollection of "sharing" the post on Facebook. In any event, accepting that he may have shared the post, the complainant refuted the publication's allegation that this equated to an endorsement of the subject matter and that sharing another person's views did not equate to him commenting on the case. Further, the post itself did not speak of material facts or make any specific reference to the case. The complainant said that the reference to "honey pots" acknowledged the politician's previous warnings to people not to be seduced by the Westminster lifestyle. He also highlighted that the suggested clarification was inadequate by virtue of the article also being published online, and as a result any remedy would need to feature online and on the publication's social media channels.
Relevant Code provisions
11. 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.
Findings of the Committee
12. The post which had been shared by the complainant referenced the ongoing legal proceedings and made a number of comments about the case in support of the politician. The article made clear that the basis for reporting that the complainant had commented on the case was that he had shared this post and the article did not report that the complainant endorsed the views within the post. Given that the complainant had shared the post, it was not misleading for the article to report that the complainant had commented on allegations against the politician and that commenting on ongoing legal cases on social media had the potential to prejudice court proceedings. In circumstances where the article did not categorically state that the complainant had prejudiced the proceedings by sharing the post, the article was not was not inaccurate in the manner alleged. There was no breach of Clause 1.
13. The claims that the National Executive was split over the decision to approve the complainant as a potential candidate, and that this concern resulted from his social media use, were clearly presented as the claims of the publication's sources; they were not reported as categorical fact. The Committee noted that the publication had contacted the complainant for comment prior to publication and had set out the basis of the claims it intended to publish. The complainant's position that he was not asked about the published claims in the interview process was included in the article and readers would understand that the published claims of unnamed sources were not accepted by the complainant. The Committee was, therefore, satisfied that the publication had complied with its obligation to take care not to publish inaccurate information; there was no breach of Clause 1.
14. The complaint was not upheld
Remedial action required
Date complaint received: 24/04/2019
Date complaint concluded: 12/08/2019