05446-18 Devine v dailyrecord.co.uk

Decision: No breach - after investigation

Decision of the Complaints Committee 05446-18 Devine v dailyrecord.co.uk 

Summary of Complaint 

1.  Stephen Devine complained to the Independent Press Standards Organisation on behalf of himself and his wife, that dailyrecord.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment), Clause 9 (Reporting of crime) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Fraud cops launch probe into roadwork deals as two council workers quit after whistleblower claim” published on 24 September 2017. 

2. The article reported that the complainant, a former council worker, had been the subject of an investigation by South Lanarkshire Council into claims that council roadwork contracts were being awarded to companies with links to an employee.  The article reported that a “police probe” had been launched into the complainant’s activities. The article noted that the complainant was formerly a director of two plant hire companies, Temporary Traffic Solutions Ltd and Traffic Sign Services Ltd. The article included a photograph of the complainant, taken whilst he was standing in the front doorway of his home. 

3.  The article named the complainant’s wife and published her photograph; it reported that she was formerly a director of Traffic Sign Services.  

4.  The complainant said that the article had contained the false and damaging claim that he had been the subject of a police investigation in relation to allegations of fraud. The complainant explained that in October 2016, he had been suspended from South Lanarkshire Council while it investigated allegations of misconduct against him arising from the award of council contracts. The complainant also explained that a number of other individuals were being investigated by the council at that time. The complainant said that the council’s investigation related to Temporary Traffic Solutions Ltd and not Traffic Sign Services Ltd. The complainant denied that the allegations made against him had been investigated by the police, and noted that the police had never contacted him. 

5. During the course of IPSO’s investigation, the complainant provided the response to a Subject Access Request which he had made to Police Scotland, dated 18 September 2018. The complainant had requested the disclosure of his personal data relating to “Allegations from South Lanarkshire Council reported to Police Scotland”. The police’s response to the Subject Access Request was: “I can confirm that our searches, based on the information provided, returned no information”.  

6. 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 article under complaint represented an intrusion into his private life, in breach of Clause 2. He said that he was not made aware of a photographer’s presence and speculated that the image had been taken through the use of a hidden camera, which he said breached Clause 10. 

7.  The complainant’s wife said that her identification in the article was misleading, as it suggested that she had been the Director of a company which had been investigated by the Council and the police. This was inaccurate, and she said that on that basis, she was not genuinely relevant to the story. 

8. The complainant’s wife said that the company of which she was listed as Director (of which the complainant was also a Director), Traffic Sign Services, did not have any contracts or dealings which related to Council work.  She said that the procurement practices of Traffic Sign Services were never assessed as part of the Council’s investigation into her husband; she said that it was not an active company and never traded in any capacity.  

9. The complainant’s wife said that the publication of her name, age, occupation, and a un-pixelated photograph in which she was clearly identified, represented a breach of Clause 9, because there was no justifiable basis for identifying her in an article which reported on allegations of misconduct against her husband, for the reasons set out above.  

10. The complainant’s wife also expressed concern about the conduct of the journalist who had written the story. She explained that the journalist had attended her home and asked for her husband; when she asked who it was and what it was regarding, the reporter had identified himself by his first name only, and asked whether her husband was home. The complainant said that the reporter had failed to identify himself and who he represented, when requested to do so, in breach of Clause 3(ii).  

11. The publication said that it had received a tip off regarding an allegation that the complainant was being investigated by the council in relation to corrupt business practices involving companies of which he was a Director. It said that the journalist verbally contacted the council and requested its comment regarding an investigation into the complainant and his companies, and had asked whether an investigation was ongoing. The council’s response, which was reported in the article, was: “We can confirm we are investigating this matter. It would not be appropriate to comment further at this time. To do so could potentially prejudice the investigation.” 

12.  The publication provided an email chain between the journalist and the council. The spokesperson from the council had referred to a woman, and had said “If you give her a couple of hours I am sure she will have a statement for you”. The publication said that this woman was a spokesperson for Police Scotland, who subsequently provided a verbal comment to the journalist, which was reported in the article: “We can confirm that information has been received regarding potential fraudulent activity. The information is currently being assessed to establish if there is any criminality”. The publication said neither the statement received from the council, nor the verbal statement given by the Police spokesperson, denied that an investigation was taking place into the complainant. 

13.  In relation to the response to the Subject Access Request which the complainant had provided to IPSO, the publication said that as far as it was aware, it is not usual police procedure to confirm to an individual if they are currently the subject of an investigation. The publication did not accept that the response was evidence that no investigation had taken place.  

14.  The publication said that the complainant’s wife was a director of one of the two companies of which her husband was a Director, both of which were engaged in road engineering-type activities. It said that given that the investigation into her husband involved at least one of his companies, the complainant’s wife had clear relevance to the story. The publication said that when the reporter visited the complainant’s home to seek his comment from him, his wife had said: “If the police are involved, then we’ll hear from the police and deal with that”. The publication said that the complainant’s wife’s decision to answer media enquiries on behalf of her husband made her relevant to the story. 

15.  The publication did not accept that the publication of the complainant’s photograph represented an intrusion into his private life. It said that the photograph revealed no private information about the complainant, other than his identity. While the publication did not accept that the published photograph was intrusive, it noted that there is a public interest in identifying the complainant as the subject of a Police Scotland and South Lanarkshire Council investigation into corrupt business practices.  

16.  The publication said that the complainant’s photograph had been taken by a photographer who was located a short distance away from his house, and no hidden camera had been used.  

17.  The publication denied that the conduct of its journalist amounted to harassment. It said that the journalist had introduced himself by his first name, when he asked if the complainant was in. His wife advised that he was out but would be back soon. The publication said that at no point did the reporter refuse to identify himself, and the complainant’s wife asked no further questions once the reporter had stated he would return later in hope of speaking to the complainant.  The reporter returned a short time later and the complainant answered the door. The publication said that given that the complainant was the person the reporter wanted to speak to, the reporter showed the complainant his identity card and introduced himself by his full name and stated that he was from the Sunday Mail.   

18.  The complainant did not accept that the statement from the council, or Police Scotland, confirmed that he was being investigated by the police. The complainant said that, given that South Lanarkshire Council was investigating a number of individuals at the time, the statement from the council could have related to anyone. The complainant did not accept the publication’s claim of a verbal exchange with a woman from Police Scotland as constituting evidence that he was being investigated by the police. 

19.  The complainant’s wife said that the comments which she had made, and which were reported in the article, were directed towards her husband. She said that she had repeated these comments on several occasions whilst trying to get her husband to close the door. She said that she may have looked in the reporter’s direction at some point, but maintained that she was not making these comments for publication. The complainant’s wife said that at no point did the reporter mention her, or Traffic Sign Services Ltd.   

Relevant Code Provisions 

20. 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.  

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. 

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.  

Clause 9 (Reporting of crime) 

i)      Relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story. 

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. 

Findings of the Committee 

21.  The complainant accepted that at the time of publication, he had been investigated by the council in connection with claims that contracts were being awarded to a company of which he had been a director. Temporary Traffic Solutions. The newspaper was entitled to report on the council’s investigation into the complainant and to identify the companies in which the complainant had held directorships. The dispute under Clause 1 related to the newspaper’s further claim that the council had referred the matter to police and that they were also investigating the claims; this had originated from a tip-off from a confidential source. 

22.   Having received the tip-off, the publication had requested that the council provide a statement in response to its verbal inquiry regarding the investigation into the complainant and his companies. The statement which the publication had received in response did not explicitly confirm which of the companies was linked to the council’s investigation, but it acknowledged that an investigation was ongoing. The Committee did not conclude that there had been a failure to take care over the accuracy of the article; the article accurately reported that the council was investigating the complainant in connection with claims that  contracts were being awarded to a company of which he had been a director and accurately identified the companies in which the complainant had held directorships The reference to Traffic Sign Services and the complainant’s wife’s association with it, was not misleading in circumstances where the article had not stated which of the two companies was linked to the investigation and had not contained an allegation that the complainant’s wife was involved in  any wrongdoing. This aspect of the complaint did not represent a breach of Clause 1. 

23.  The claim that the complainant was being investigated by the police gave credibility to the allegation that the complainant was involved in improper practices, by implying that the police believed that there were grounds to investigate. The spokesperson from the council had referred the journalist to the police; the statement from the police spokesperson had confirmed that information had been received regarding alleged fraudulent activity, and did not contain any denial that the police had been contacted in relation to the matter. Furthermore, the nature of the alleged “probe” had been explained in the article: “council bosses have contacted police who are examining the information”. In these circumstances, the Committee concluded that the reference to a “probe” did not breach Clause 1. Where the newspaper had taken steps to clarify the involvement of the police, and had received on-the-record comments, which did not contain any denial, the Committee did not establish that the article contained significant inaccuracies, such as to require correction. 

24.  The Committee then turned to consider whether the complaint engaged the terms of Clause 9, given that the article had reported that police were “examining the information” received from the council and had not suggested that the complainant was accused or convicted of crime. The purpose of Clause 9 is to provide protection to family and friends of individuals allegedly involved in crime, and aims to ensure that these individuals are not unjustifiably tainted by their association to alleged criminals. The article reported on an investigation by the council and an alleged investigation by police into the complainant’s activities, and contained the clear implication that the police believed that there were grounds to investigate the complainant and his business practices; identification of the complainant as his wife in this context engaged the terms of Clause 9.  

25. The complainant accepted that he was under investigation by the council in relation to claims that contracts were being awarded to a  company of which he was formerly a director, Temporary Traffic Solutions Ltd. The publication’s pre-publication enquiries had not revealed which of the companies was involved and it was not misleading for the newspaper to identify each of the companies of which he had been a Director. Given that his wife had also previously been a Director of one of those companies, she was genuinely relevant to the story. There was no breach of Clause 9 in those circumstances. 

26.  The complainant had been photographed while standing at his front door, while answering questions put to him by a reporter. The published photograph had revealed the complainant’s likeness; this was not information in respect of which he had a reasonable expectation of privacy, and was, in any event, 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. In any event, there was a public interest in identifying him as the subject of the investigation. The publication of the complainant’s photograph did not breach Clause 2. 

27.  The Committee acknowledged the complainant’s wife’s position that the reporter had been unprofessional when he had attended the home. The question for the Committee was whether the conduct amounted to harassment under the Code. The Committee noted that on both occasions, the reporter had been seeking comment from the complainant, not his wife. The reporter had not directed any questions to the complainant’s wife which amounted to a journalistic inquiry; the interaction had been limited to a request to speak to the complainant. In those circumstances, the Committee did not establish that the conduct complained of amounted to a breach of Clause 3(ii). 

28.   The Committee noted the complainant’s position that he had been unaware that he had been photographed while stood at his doorway, and his position that the publication could only have been using a hidden camera as a result. However, the Committee did not conclude that the complainant had provided a sufficient basis to demonstrate that a hidden camera had been used by the publication. There was no breach of Clause 10.  

Conclusion 

29. The complaint was not upheld. 

Remedial Action Required 

30. N/A

Date complaint received: 12/08/2018

Date decision issued: 11/01/2019

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