04626-18 Smith v Mail Online

Decision of the Complaints Committee – 04626-18 Smith v Mail Online

Summary of Complaint 

1.    Bradley Smith 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 headlined “Revealed: British tourists arrested over Ibiza ‘gang rape’ of woman, 29, include professional boxing brothers recently trained by Ricky Hatton”, published on 23 July 2018. 

2.    The article reported that two brothers, who were named, had been arrested and jailed pending trial for “the alleged gang-rape of a British holidaymaker in Ibiza”. It said that a third man [the complainant] “was released on bail pending an ongoing criminal probe along with a fourth Brit”. The complainant was described as a “professional boxer”, and his full name, age and home town were included. The article stated that “all four men are understood to strongly deny the allegations”, and went on to describe how the conditions attached to the release of the two men “have not been made clear”. The article also stated that the two men who had been released had checked out of their holiday apartment, and that it was “not immediately clear” if they had yet left Ibiza. A photograph of the complainant in his boxing kit was included in the article; its caption repeated information previously reported in the article, including his name and home town. 

3.    The complainant said that the article breached Clause 1 (Accuracy) because he said it was not accurate to say he’d been released “on bail”: he said that, in fact, no conditions had been attached to his release, no charges had been laid against him, and he had been free to return to the UK. He provided an email from his solicitor in which they stated that they were requesting the “end of the case” against him. 

4.    The complainant also said that the article breached Clause 2 (Privacy) because it had included his image, name, home town and profession, despite the fact that the case had been heard in a ‘closed’ preliminary court hearing in Spain. He said that the photograph had been taken from his social media account without consent, and expressed concerns about the impact of the article on his career. 

5.    The publication denied any breach of Clause 1 (Accuracy). It said that its reporter had been told, by a court official, that the complainant had been released after questioning and given “libertad provisional” - ‘provisional freedom’ – by the Spanish court. It said that in Spain the standard practice was to bring charges – or dismiss a case – once the court investigation was complete; during the investigation period, the accused would be given “libertad provisional”. The publication said that this status was akin to “bail” in that it often required that a person report back to the court when requested to do so by the judge; like bail, it was a form of conditional release, provisional on the outcome of the investigation. It also said that the fact that the complainant’s solicitor had been requesting the “end of the case” against him indicated that the investigation had been ongoing, and that it was not the case that he had simply been released without any further action or investigation. Nevertheless, the publication offered to amend the article to state that the complainant had been “freed pending an ongoing criminal probe”, instead of “released on bail”. 

6.    The publication also denied any breach of Clause 2 (Privacy). It said that, while the press had not been allowed to attend the hearing into the complainant’s case, there had been no reporting restrictions or secrecy order in place. The publication argued that, while the ‘closed’ nature of the proceedings reflected the standard practice in Spain for preliminary hearings, this local convention did not prevent it from naming the complainant, as there was no legal restriction on doing so. It said that irrespective of the local practice, there was no expectation of privacy for an individual making a court appearance following an arrest in relation to a serious crime. In addition, the publication said that the photograph of the complainant had been taken from an open social media account, where it was clearly used to promote his career and name, and that the complainant’s home town did not represent private information about him. Nevertheless, the publication offered, as a gesture of goodwill, to remove the identifying details relating to the complainant from the article. 

Relevant Code Provisions 

7. 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. 

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. 

Findings of the Committee 

8. The publication had been informed, by a court official, that the complainant had been given “provisional liberty”: he had been released while an investigation was ongoing, with no charges against him. This appeared to be in line with the standard legal process in Spain, and the complainant had not provided any grounds for disputing that he had been given this status. Given that this status appeared to represent a conditional release pending an ongoing investigation, it was not misleading to refer to it as “bail”. There was no failure to take care over this claim, and no misleading impression that required correction; consequently, there was no breach of Clause 1 on this point. The Committee noted that the article made clear that the allegations were denied; that the complainant had not been charged; and that he had been released after questioning.

9. The complainant’s name had not been released by the court official, and the hearing had taken place ‘behind closed doors’, in line with the standard Spanish practice. the complainant had not, however, provided any basis for considering that there were any reporting restrictions in place, or that there were any legal restrictions in relation to naming him. The article had reported the fact of the complainant’s arrest, his appearance in court, and his conditional release. This was not information about which he had a reasonable expectation of privacy.  Publishing this information did not therefore represent a breach of Clause 2 (Privacy). The complainant’s photograph had been publicly available on his social media profile, and publishing it did not therefore reveal any information not already in the public domain; there was no breach of Clause 2 (Privacy) on this point. Finally, the complainant’s profession and home town were already in the public domain, and did not represent private information about him; reporting this information was not a breach of Clause 2. 

Conclusions 

10.  The complaint was not upheld.

Remedial action required 

11. N/A

Date complaint received: 22/07/2018

Date decision issued: 30/11/2018