Decision of the Complaints Committee – 04659-21 A woman v The Times
Summary of Complaint
1. A woman complained to the Independent Press Standards Organisation that The Times breached Clause 2 (Privacy) and Clause 11 (Victims of sexual assault) of the Editors’ Code of Practice in five articles headlined:
· “Martyn Percy, dean of Oxford’s Christ Church college, steps aside after new complaint”, published on 19 November 2020.
· “College dean Martyn Percy faces sex investigation despite police not pressing charges”, published on 9 December 2020.
· “Is the war of Christ Church v the dean at an endgame?”, published on 16 December 2020.
· “Oxford college accused of ‘toxic’ bid to paint dean Martyn Percy as a sex pest”, published on 9 January 2021.
· “Can there be a truce in the bitter battle of the dean v Christ Church”, published on 17 March 2021.
2. This decision is written in general terms, to avoid the inclusion of information which could identify the complainant.
3. The articles reported on an investigation into a complaint made by the complainant and an ongoing dispute between the subject of the complaint and his employer.
4. The second article reported that an individual had been “accused of sexually assaulting a woman in Christ Church Cathedral after a Sunday service in October” and stated that the police had concluded there was not enough evidence to prosecute him. It also contained a quote from the Thames Valley police which stated that its investigation was concluded and gave the precise date of the alleged sexual assault. The article included a statement from Christ Church Cathedral.
5. The third article appeared online and gave the details of the allegation, saying that the Dean “paid her a compliment about her hair and stroked it for ten seconds without permission”. It also reported an indication of the time of the alleged assault; named the specific location in which it allegedly occurred; and gave information about the woman’s professional role. It described the police investigation in which both parties were interviewed and that a sample of the woman’s hair was taken for DNA analysis. The article reported on the woman’s complaint and quoted directly from evidence she gave as part of the process about her emotional reaction to the event. It noted that an investigation had been undertaken by the employer of the subject of the complaint which had concluded that “on the balance of probabilities it is more likely than not that the incident did occur as alleged and that this is a safeguarding allegation”. The article also reported that the allegations were denied. Furthermore, it also commented on the ongoing employment law disputes between the subject of the complaint and his employer and the tensions between them over his approach to his professional role.
6. The fourth article appeared online and reported on accusations against the employer and how it was handling the allegations. It repeated the details, location and gave an indication of the time of the alleged assault.
7. The fifth article appeared in print and reported on the employer’s annual general meeting and the allegations which had been made against the employee, describing the detail of the allegations in addition to the location and indication of the time of the alleged assault.
8. The fifth article also appeared online in substantially the same format.
9. The complainant was the woman who had made the complaint. She said that in this series of articles, information had been published which would lead to the identification of her as a victim of sexual assault in breach of Clause 11. She said this information included: her gender; the date of the alleged assault; the specific location of the alleged assault; more precise information about her job role; specific details of the alleged assault; and that a sample of her hair had been collected by the police for DNA analysis. The complainant also said that other publications had published further details that could identify her: indicating her age and further information regarding her professional role. The details published in the articles under complaint were more likely to identify her as a result of this, via jigsaw identification.
10. The complainant said that the details enabled a wide circle of people with knowledge of the Cathedral and the way in which it was run, as well as those who regularly attended services at the Cathedral, to identify her. The complainant provided a detailed explanation as to how she considered that the information included in the series of articles, such as the location and timing of the alleged assault and other details of the circumstances surrounding the incident, was sufficient to enable those with this knowledge of the cathedral to narrow down the identity of the victim to her.
11. The complainant also stated that the third article intruded into her privacy in breach of Clause 2, as it quoted from the evidence she had provided in support of her complaint and the investigative report of the employer of the subject of the complaint, both of which she said were highly confidential and not available to the public. She said that she had a reasonable expectation of privacy in relation to the information contained in the report, including the comments she had made about her reaction to the incident, which had been quoted by the publication. She noted that a redacted version of the complaint was published online on 1 June 2021 which did not include the published information.
12. The publication did not accept a breach of Clause 11 of the Code. It said that the information in the articles, whether considered separately or cumulatively, could not lead to the likely identification of the complainant as a victim of sexual assault. It emphasised that the word “likely” in Clause 11 indicated that there must be a real risk of this being the case.
13. The publication said that the date and nature of the incident had been taken from the police and employer’s public statements on the incident. The publication said that the Sunday services were well-attended and frequented by clergy, choristers, other singers and musicians, liturgical assistants, as well as cathedral staff and volunteers, and therefore giving the date and location of the assault would not lead to the likely identification of the complainant, given the large number of other attendees on the day. Further, it stated that anyone likely to identify the complainant from the articles would have to have special knowledge that would help them to deduce her identity. This was a very small pool of people who would likely already be aware of the complainant’s identity through other means.
14. The publication noted that the complainant wrote an anonymous letter to another publication, in which she described herself as “the woman who made the complaint about [named respondent]’s conduct in Christ Church Cathedral on October 2020” which was published in print and online. The letter repeated the date of the assault, specified who was able to enter the space in which the alleged assault occurred and indicated her approximate age. The publication emphasised that this letter would have been read by thousands of people, and repeated information about the date and location of the alleged assault which had appeared in its own coverage, and contained additional information about her age, connection with the Cathedral and the restrictions in accessing the place in which the alleged assault occurred. The publication said it could therefore be assumed that the complainant was satisfied that there was no likelihood of her being identified on the basis of the information in this letter, as she had chosen to disclose it herself.
15. The publication said it was clear from both the national and specialist press coverage it had attracted that the complaint was the subject of intense discussion amongst those interested in church affairs given the ongoing disputes between the subject of the complaint and his employer, and that knowledge of the alleged incident had been circulating amongst those close to the issues before any press reports were published. The college had felt obliged to release a statement on the subject on 9 January 2021, on the same date as the fourth article. This statement said that “since the complaint was made, there have been numerous attempts to identify, intimidate and gaslight the victim both directly and through the media”. The publication pointed to a number of Anglican blogs which stated explicitly what the college statement had implied: that the complainant’s identity was known beyond the small group with proper involvement in the complaints process, and that this knowledge was not a result of its press coverage.
16. In regard to Clause 2, the publication accepted that the documents from which it quoted were confidential. However, it did not consider that the complainant had a reasonable expectation of privacy over the fact of the allegation or the extracts from (anonymised) documents which related to the allegation. Provided the complainant was not identified, the publication considered itself free to report the substance of her complaint. It said that the extracts it reported from the documents explained the substance of the complaint and balanced the article in favour of those who raised and prosecuted it without making the identification of the complainant likely and without disclosing any personal or sensitive information.
17. The publication also advanced a public interest argument in relation to Clause 2. It stated that the public interest was carefully considered in discussions between the reporter and the head of its editorial legal department, along with senior editors involved as and when required. When the complainant made her allegation of sexual assault, careful consideration was given to its relevance in the context of a wider long-running dispute between the subject of the complaint and his employer, which involved allegations of harassment of him; a denial of natural justice to him; and a questionable use of his employer’s money. It was agreed that there was a clear public interest in reporting it in that context. The publication of the third article had been delayed by a week due to the legal department being busy so that the questions of public interest could be properly reviewed, which was done in a series of telephone conversations between the reporter and the head of the legal department before publication.
18. The complainant noted that she had written the letter referred to by the newspaper after four of the five articles under complaint had already been published. She also said that she felt forced to write this letter in the face of the public discussion of her case, which the articles under complaint had partly generated. She said that by the time her letter was published confidential information about her had already been placed in the public domain, and she had submitted the letter in order to counteract inaccuracies and leaked information that had been published in both the articles under complaint and other sources.
Relevant Code Provisions
Clause 2 (Privacy)*
i) Everyone is entitled to respect for their private and family life, home, physical and mental 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 11 (Victims of sexual assault)
The press must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification and they are legally free to do so. Journalists are entitled to make enquiries but must take care and exercise discretion to avoid the unjustified disclosure of the identity of a victim of sexual assault.
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
19. The complainant had made a complaint under Clause 11 of the Code, which the publication accepted was engaged, and the Committee noted that the clause states that newspapers must not publish material “likely” to lead to the identification of a victim of sexual assault. The Committee therefore considered whether the information contained in the articles under complaint would likely lead readers who were previously unaware of the complainant’s identity to identify her.
20. The information in the article that the complainant considered identified her was: her gender; the date of the alleged assault; the specific location of the alleged assault; information about her connection to the Cathedral; specific details of the alleged assault; and that police had collected a sample of her hair for DNA testing. The Committee did not agree that describing the details of the alleged assault, to which there had been no witnesses, or the sample that had been taken by police, which was generic in nature, identified the complainant. With regards to her gender and the date of the assault, these had already been put into the public domain by the police and by the statement issued by the employer of the subject of the complaint. The further information, which related broadly to the circumstances of the incident, was potentially identifying only to those with special knowledge of the cathedral, a subset of whom (the size of which neither the complainant nor the Committee was able to determine with certainty) were already aware of the complainant’s identity through other means.
21. When taking into account the information within the articles, the information already in the public domain prior to its publication, and the fact that the complainant’s identity was already known to some of those with direct knowledge of the circumstances, the Committee did not consider that the articles were likely to lead to the complainant’s identification. In circumstances where the information published was not likely to identify the complainant to anyone who was not previously aware of her identity, there was no breach of Clause 11.
22. The Committee then turned to the complaint under Clause 2. Both parties accepted that the complainant’s identity was known to a number of people for reasons unconnected to the press coverage the case had attracted. These included those connected to the Cathedral who knew, in an official capacity, about her complaints to the police, the employer and the Church of England, and others who were or had been made aware of her identity through other means. Therefore, for the purposes of Clause 2, the Committee considered that the information contained in the articles would be associated with the complainant by those who were able to identity her. The question for the Committee was whether, given that the complainant was already identifiable to a number of people, the publication of extracts from confidential documents in support of her complaint intruded into her private life.
23. The information in the third article under complaint came from a confidential report, and included the complainant’s comments on her emotional reaction to the alleged assault. Where these comments related to the complainant’s personal emotions and had been made during confidential proceedings on the assurance that they would not be published, the Committee found that she had a reasonable expectation of privacy over this information. The disclosure of this personal account to those able to identify her, with whom the complainant might not necessarily have chosen to share her personal feelings about the alleged assault, represented an unjustified intrusion into her private life. This raised a breach of Clause 2.
24. The Committee then considered whether there was an overriding public interest in the publication of this information which would justify the intrusion into the complainant’s private life. It noted that the publication had engaged in discussions prior to the publication of each article regarding the public interest in reporting the allegations in the context of the long-running dispute between the subject of the complaint and his employer. The Committee accepted that the subject of the article, an allegation of criminality by a senior leadership figure at a public institution and controversy over the handling of this allegation, was in the public interest, and that the publication of certain information taken from the documents had the potential to contribute to public debate about this issue. On balance, however, the Committee did not consider that there was a public interest sufficient to justify the publication of the quotation from the complainant’s evidence about her emotional reaction to the incident. In the view of the Committee, the quotation of this material in this verbatim form did not contribute to the broader debate about the allegation and the employer’s handling of it to an extent that was sufficient to justify the intrusion into the complainant’s privacy, given the sensitive nature of the material and the circumstances in which the complainant had made the disclosure: as part of a process that she believed would remain confidential. The Committee upheld the complaint under Clause 2.
Remedial Action Required
25. Having upheld the complaint under Clause 2, the Committee considered the remedial action that should be required. Given the nature of the breach, the appropriate remedial action was the publication of an upheld adjudication.
26. The Committee considered the placement of this adjudication. The adjudication should be published on the newspaper’s website, with a link to the full adjudication (including the headline) appearing on the top half of the newspaper’s homepage, on the first screen, for 24 hours; it should then be archived in the usual way. A link to the adjudication should be published with the article, explaining that it was the subject of an IPSO adjudication, and explaining the amendments that have been made. The headline to the adjudication should make clear that IPSO has upheld the complaint, refer to the subject matter and be agreed with IPSO in advance of publication. The publication should contact IPSO to confirm the amendments it now intends to make to the article to avoid the continued publication of material in breach of the Editors’ Code of Practice. If the article remains online un-amended, the full adjudication (including the headline) should appear below the headline.
27. The terms of the adjudication for publication are as follows:
A woman complained to the Independent Press Standards Organisation that The Times breached Clause 2 (Privacy) in an article headlined “Is the war of Christ Church v the dean at an endgame?”, published on 16 December 2020.
The article reported quotes from confidential documents regarding the woman’s comments she had made about her reaction to an alleged assault against her.
The complainant said the article intruded into her privacy as it quoted from highly confidential documents which were not available to the public. She said that she had a reasonable expectation of privacy in relation to the information contained in the documents, including the comments she had made about her reaction to the incident, which had been quoted by the publication.
found that, whilst not named in the article, it was accepted that the
complainant’s identity was known to a number of people for reasons unconnected
to the press coverage the case had attracted. The published information came
from confidential reports, and included the complainant’s comments on her
emotional reaction to the alleged assault. Where these comments related to the
complainant’s personal emotions and had been made during confidential
proceedings, IPSO found that she had a reasonable expectation of privacy in
respect of this information. The
disclosure of this personal account to
those able to identify her, with whom the complainant might not necessarily
have chosen to share her personal feelings about the alleged assault,
represented an unjustified intrusion into her private life. IPSO did not
consider that there was an overriding public interest in the publication of
this information which would justify the intrusion. Publication of the
information raised a breach of Clause 2.
Date complaint received: 11/05/2021
Date complaint concluded by IPSO: 11/10/2021Back to ruling listing