04524-18 McAlpine v The Scottish Sun

Decision: No breach - after investigation

Decision of the Complaints Committee 04524-18 McAlpine v The Scottish Sun

Summary of complaint 

1.    Tommy McAlpine complained to the Independent Press Standards Organisation on his own behalf, and on behalf of his mother, that The Scottish Sun breached Clause 2 (Privacy), Clause 3 (Harassment) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in relation to 3 articles: 

·         “NICK OFF Prison bigwig suspended from Addiewell nick amid racist post storm after defending EDL founder [Name]”, published online on 6 June 2018; 

·         “NICK SHAME Scandal hit Scots jail sack senior wardens after one bullied staff and another posted hate filled anti-Muslim rant to Facebook”, published online on 16 July 2018; 

·         “Nick Knackered”, published in print on 17 July 2018. 

2.    The articles reported that the complainant had been suspended, and ultimately dismissed, from his job as a senior prison officer after allegedly writing posts on Facebook which claimed that Islam “incites hatred”. The articles included a photograph of the complainant, taken in the front doorway of his home. 

3.    The first article reported that the complainant had been suspended following the allegations which had been made against him. The further two articles were follow up pieces, which reported that the complainant had been dismissed from his position. 

4.    The complainant said that he had a reasonable expectation of privacy whilst standing inside his home. He said that he did not consent to his photograph being taken and its publication in the articles under complaint represented an intrusion into his private life. He said that he was not made aware of a photographer’s presence and speculated that the image had been taken by using a hidden camera, in breach of Clause 10. 

5.    The complainant also said that journalists acting on behalf of the newspaper had harassed himself and his mother, without justification, in breach of Clause 3. 

6.    The complainant said that on 4 June 2018, a reporter had attended his home address and had asked his mother, who had opened the door, whether he was at home. The complainant said that the reporter did not introduce himself to his mother, but accepted that she did not ask who he was, or who he represented. The complainant said that the reporter had only identified himself once the complainant had come to the front door; he said that had he known that the individual at the door was a reporter, he would not have made his way downstairs. The complainant said that his interaction with this first reporter was brief, and he did not provide any substantive comments. The complainant said that he had told the reporter that he didn’t want to talk to him, and had refused his business card. The complainant also said that the journalist had told him that he was a reporter from another publication. 

7.    The complainant said that he had only become aware that his photograph had been taken during this exchange, when the photograph was published in the first article. 

8.    The complainant said that a second reporter attended his address on 13 July. The complainant said that he had answered the door; asked who the caller was, and after being informed that they were a journalist, had closed the door immediately. The complainant said that he did not engage in any further conversation with the journalist. 

9.    The complainant said that on the same evening he had written to the publication, to request that its journalists desist from contacting him at his home or otherwise, and stated that he did not wish for his photographs to be taken or published without his consent. The newspaper responded to the complainant and confirmed that it would not contact him again in relation to his dismissal. The complainant provided a copy of this correspondence. He said that the republication of his photograph following this email amounted to a further breach of Clause 3. 

10. The newspaper did not accept that it had breached the Code. It said that the first reporter had introduced himself to the complainant’s mother as a reporter working for the Scottish Sun and had asked to speak to the complainant. The newspaper said that the reporter identified himself again to the complainant, explaining why he was there. The newspaper said that, rather than close the door without speaking, the complainant had listened to the journalist fully explain why they were there, before telling the journalist: "well obviously, I'm not going to talk about that". The reporter then offered to leave a business card, which the complainant declined, and left the premises. 

11. The newspaper said that while the reporter was speaking to the complainant, a photographer, who was in a car parked in a layby opposite the complainant’s house, had taken a picture of the complainant. The newspaper provided an image taken from Google maps, which showed the complainant’s house and the parking spaces opposite it. It said that no hidden camera was used and the terms of Clause 10 were not engaged. The newspaper noted that the reporter had first, unsuccessfully, attempted to find a picture of the complainant online; it said that there was no other reasonable way it could have obtained a photograph of him, other than attending the complainant’s home. 

12. The newspaper said that on 13 July 2018 an agency reporter, working on its behalf, also attended the complainant’s address. It said that when the complainant had opened the door, the reporter had stated his profession and before he could say who he was working for, the complainant had closed the door. The newspaper said that the reporter had walked back to his car, which was parked away from the house across the road, and had called the newspaper to report back what happened. It said that no photographer had been present on this occasion. 

13. The newspaper said that the complainant was not approached following his request to desist which it received later that evening, and so there was no breach of Clause 3. The newspaper noted that the complainant’s request did not prevent it from publishing further stories about him, or from publishing photographs of him which it already had on file. 

14. The newspaper said that the publication of the image did not represent an intrusion into the complainant’s private life. It said that the complainant was standing just inside his doorway when the photograph was taken, and that he was visible to anyone who may have been passing on the street. The newspaper said that it did not require the complainant’s consent to take or publish the photograph, and in any event, the photograph did not reveal any private information about the complainant and merely showed his likeness. 

15. While the newspaper did not accept that the publication of the image represented an intrusion into the complainant’s privacy, the newspaper said that there was a legitimate public interest in picturing a public servant whose misconduct was so serious that he was suspended from his role, and ultimately dismissed – these were not private matters and the newspaper was entitled to report the story. 

16. The complainant said the reason he had kept the door open to the first reporter, and said that he didn’t want to talk to him and refused his business card, was because he didn’t want to be rude and just close the door on him. The complainant disputed that the photographer was in a car across from his house at the time his photograph had been taken, and alleged that the photographer had been hiding behind a bush.  

Relevant Code Provisions 

17. 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. 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.

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.

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 

18. The Committee noted the complainant’s position that the first reporter had not identified himself, or who he represented, to his mother; the newspaper denied this. However, it was accepted that his mother had not requested that the reporter do so. There was no breach of Clause 3(ii) in those circumstances. 

19. The newspaper denied that the first reporter had stated that they were from another publication, as had been claimed by the complainant; the Committee were unable to reconcile these conflicting accounts. However, it was accepted that the reporter had told the complainant their name and profession, when asked to do so. This aspect of the complaint did not represent a breach of Clause 3 (ii). 

20.  The first reporter had attended the complainant’s home in order to seek his comment on his suspension from his role as a senior prison officer. The complainant had told the first reporter: “well obviously I am not going to talk about that”. The reporter had then left the complainant’s property. The Committee considered that the complainant had made a “no comment” response to a request for comment on a particular story, his suspension, rather than a categorical request for the journalist to desist contact. In any event, the second agency reporter had attended the complainant’s home a month later, and had chosen to do so in order to obtain a comment from the complainant following a development in the story: the complainant’s dismissal from his position. In those circumstances, the Committee did not establish that the second reporter’s attendance at the complainant’s home in order to seek comment from him regarding a significant development in the story, represented a failure to respect a desist request. This aspect of the complaint did not represent a breach of Clause 3. 

21. The complainant had immediately shut the door after being informed by the second journalist that they were a reporter. The complainant had not told the reporter to stop asking questions, and he had not asked him to leave the property. The conduct complained of, including the publication of the photograph, did not amount to harassment under the terms of Clause 3. 

22. The published photograph had been taken whilst the complainant was standing in his front doorway, on the threshold of his home, without his knowledge or consent.  The Committee had regard to the potential for photographs taken in such circumstances to be intrusive. However, the Committee noted that, in this case, the complainant had been photographed while knowingly speaking with the first reporter, albeit briefly, and in circumstances which did not involve harassment. The published photograph had not disclosed private information about the complainant; it had revealed only his likeness, which was information which would ordinarily have been seen by members of the public, should they have been walking past the complainant’s house at the time.  The information disclosed about the complainant, was not information about which the complainant had a reasonable expectation of privacy in all the circumstances. The publication of the complainant’s photograph did not breach Clause 2. 

23. The newspaper had provided an image from Google maps of the road running passed the complainant’s home; this showed a layby opposite the house. The complainant had not been aware that he had been photographed in this location, however this did not provide a basis to demonstrate that a hidden camera had been used by the publication. The terms of Clause 10 were not engaged.

Conclusions 

24. The complaint was not upheld.

Remedial Action Required 

N/A

Independent Complaints Reviewer

The complainant 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. 

Date complaint received: 17/07/2018

Date decision issued: 13/11/2018

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