04631-19 Conway v dailyrecord.co.uk

Decision: No breach - after investigation

Decision of the Complaints Committee 04631-19 Conway v dailyrecord.co.uk

Summary of Complaint

1. Shawn Conway complained to the Independent Press Standards Organisation that the dailyrecord.co.uk breached Clause 1 (Accuracy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Illegal cannabis flowers sold by rogue Scottish vape shops flaunting drugs laws”, published on 9 June 2019.

2. The article reported that vape shops had been breaking drug laws by selling cannabis flowers, which it said contained “mind-altering tetrahydro-cannabinol (THC)” and could be “vaped, smoked, or eaten by users to get a high”. It said that “vendors face jail by offering customers the Class B substance” and that “cannabis flowers are illegal to sell under the Misuse of Drugs Act 1971”. It said that the police had been informed of a number of outlets selling the flowers; when a reporter from the publication visited a shop in Glasgow, she was able to buy 3.5g of dried cannabis plant cuttings for £30. It said that the shop assistant told the reporter “You can smoke this, put it in a dry vape, or even eat it if you want”.

3. The article included a number of quotes – including from a cannabis reform group, an MSP, the CEO of the Scottish Drugs Forum – stating that the sale of cannabis flowers was illegal. There was also a quote from Police Scotland, stating that “Anyone selling cannabis flowers is committing an offence. We’d encourage vendors to make sure they know exactly what they are selling”. The article also included a comment from the owner of the shop visited by the reporter, who said that the cannabis flowers he sells in his shops are “legal to the highest extent of the law” and that the Misuse of Drugs Act 1971 was outdated, adding “If we ever got taken to  court for something like this, we’d appeal the case to the High Court and then UK Supreme Court. Then it would go to the EU Supreme Court. They’d chuck the case out like a rotten tomato.”

4. The complainant, the owner of the shop visited by the reporter, said that the article was inaccurate to report that his business was acting illegally by selling cannabis flowers. He said that the flowers sold by his business contained less than 0.2% THC, and as such had been ruled by the EU Supreme Court as to be exempt from criminal drugs laws. He acknowledged that there was a conflict between the Misuse of Drugs Act 1971 and EU law in relation to cannabis products such as the flowers, however he said that EU law overrides UK law, and so would render any prohibition set out by the Misuse of Drugs Act invalid. He also said that he had received assurances from both Police Scotland and the Scottish Government that after inspecting his products, they had “no plans to execute any seizures or investigation into [complainant’s business]”. However, he declined to provide any written evidence of this.

5. He also said that it was not the case that the flowers could get people “high” as the level of THC they contain is too low to have any mind-altering affect. He said that these points were explained to the publication in a phone call prior to publication. Finally, the complainant said that the article had fabricated a quote attributed to one of his employees; the shop assistant told the reporter when she asked if she could smoke the flowers that due to the current legislative grey area, “the products are not for human consumption”, and it was in fact a member of the public who had overheard the conversation who told the reporter that he had tried smoking and eating the products. The complainant also commented on a recent UK court case in which a person appeared to have been convicted for selling cannabis flowers, and recent Home Office guidance which appeared to state that the flowers were illegal; he said that this guidance was inaccurate in light of the recent EU ruling, and should the person wish to appeal his conviction, this would be overruled by the EU Supreme Court.

6. The complainant said that the article and approach by the reporter breached Clause 10. He said that the reporter visited his shop, posed as a customer, and made journalistic enquiries about the flowers, including asking a shop assistant if she could smoke the products and whether the product was cannabis. He said that at no time did the reporter identify herself as a journalist.

7. The publication did not accept that there was any breach of the Code. It said that it had received information from Trading Standards that a number of vape shops had started selling cannabis flowers. It said that the Misuse of Drugs Act clearly listed “cannabis and cannabis resin” as a class B controlled drug, and this included cannabis flowers. It said that the level of THC in the flower was irrelevant; it constituted part of the cannabis plant and was therefore illegal. Furthermore, the publication provided guidance issued by an organisation which campaigned to end the prohibition of cannabis entitled “WARNING: CBD Flowers, Buds, Weed, Hash Are NOT Legal In The UK” and noted the statement from Police Scotland included in the article which made clear that the sale of cannabis flowers was an offence. In relation to the complainant’s reference to EU law, the publication said that it was not automatic that an EU ruling should override a member state’s domestic policy, in particular with regards to topics of national security such as drugs policy. It also provided specific guidance from the European Monitoring Centre for Drugs and Drug Addiction which made clear that Member States’ responses to the legality of cannabis can vary.

8. The publication did not accept that it was inaccurate to report that the flowers could be consumed in order to “get a high”; it noted that the product description for the flowers available on the complainant’s business’ website claims it “delivers a soothing, creative euphoria”. The publication said that there was no recording of the quote attributed to the shop assistant, and did not provide any notes to support the article’s claim.

9. The publication did not accept that the terms of Clause 10 were engaged. It accepted that the reporter visited the complainant’s business in a journalistic capacity for the purposes of writing an article, however it said that there were no clandestine devices used by the reporter, or deceit or subterfuge in her simply entering a shop and making a purchase, the same way any other member of the public would. There was no requirement for the reporter to discuss, hide or reveal her identity to the complainant by making a transaction in his shop, and said that Clause 10 would only have been engaged if she had denied being a reporter after being asked directly by the complainant. Nevertheless, it said that there was a public interest in exposing the illegality of selling cannabis flowers.

Relevant Code Provision

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.

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.

Findings of the Committee

10. In relation to the claim that the cannabis flowers which the complainant offered for sale were illegal, the article had explained that it was illegal to sell cannabis flowers under the Misuse of Drugs Act 1971. The article also included  a quote from Police Scotland, that “Anyone selling cannabis flowers is committing an offence. We’d encourage vendors to make sure they know exactly what they are selling”. Whilst the Committee noted the complainant’s position that the flowers he sold contained less than 0.2% THC and his reliance upon EU law, the article had explained the legal position under the Misuse of Drugs Act 1971; it was not inaccurate to report that the cannabis flowers sold by the complainant’s business were “illegal”. There was no failure to take care over the accuracy of the article on this point and no breach of Clause 1(i). The report did not contain a significant inaccuracy which required correction under the terms of Clause 1(ii).

11. The article had explained that the buds from cannabis flowers contained THC and could be used to “get a high”; the reference was not made specifically in relation to the products which were sold by the complainant. Further, the Committee noted that the complainant advertised the flowers he sold as delivering “a soothing, creative euphoria”.  In these circumstances, it was not misleading for the article to report that cannabis flower buds could give “a high”. There was no breach of Clause 1 on this point.

12. The Committee was concerned that the publication had been unable to provide any notes or record of the quote attributed to the shop assistant. The Committee noted the complainant’s position that his products  were not sold for human consumption, but the Committee also noted the advertising for the product which claimed that they could produce a “soothing, creative euphoria”. Furthermore, the Committee took into account that the alleged inaccuracy did not affect the central claim that the sale of cannabis flowers in the complainant’s shop is illegal under the Misuse of Drugs Act 1971  regardless of whether they were being sold for consumption. In this context, the attribution of the quote to the shop assistant did not represent a significant inaccuracy, and there was no breach of Clause 1 on this point.

13. The Committee then considered the complaint brought under Clause 10. The publication had argued that the terms of Clause 10 were not engaged. However, the reporter had asked questions in her capacity as a journalist, in preparation of an article on the topic of cannabis flowers; the employees of the complainant’s business were under the impression that the reporter was a member of the public, and so the Committee was satisfied that the terms of Clause 10 were engaged.

14. The Committee considered that the level of subterfuge or misrepresentation a reporter may engage in falls on a sliding scale. In this instance, the reporter had engaged in a very low level of subterfuge; she had simply acted as a customer, and had not used hidden cameras or clandestine listening devices or accessed information not accessible to the general public. Furthermore, she had not actively concealed her identity as a journalist by constructing a false identity or denying she was a journalist.

15. Clause 10 requires a proportionate public interest defence. Therefore having found that the Code was engaged to a limited degree, the Committee then turned to whether the journalistic activity engaged in, and subsequent publication of the story, both served and was proportionate to the public interest. The reporter had received information from Trading Standards informing her that businesses had been openly selling cannabis flowers, and the complainant’s business was identified as one of these businesses through the advertising which appeared on its website. It was reasonable for the reporter to pose as a customer where the business was suspected of acting illegally; an open approach may not have resulted in the same information being gathered that a customer would have received. There was a public interest in publishing the information which had been acquired by the approach, namely that cannabis flowers were being sold openly in the complainant’s shop. For these reasons, the actions taken by the reporter, and the decision to publish the information she gathered, was justified in the public interest. There was no breach of Clause 10.

Conclusions

16. The complaint was not upheld.

Remedial Action

17. N/A

 

Date complaint received: 10/06/2019

Date decision issued: 12/11/2019

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