07397-18 Lewin v Mail Online

Decision of the Complaints Committee 07397-18 Lewin v Mail Online

Summary of Complaint

1. Michelle Lewin complained to the Independent Press Standards Organisation that Mail Online breached Clause 2 (Privacy) of the Editors’ Code of Practice in an article headlined “Outrage as transgender child groomer who is ‘legally female’ is put in women’s jail leaving inmates terrified”, published on 18 September 2018.

2. The article reported that a “transgender paedophile” [the complainant] had been moved to a named women’s prison despite having been jailed in 2007 for “grooming underage girls”. It said that the complainant had “legal certification of being female”, but that female inmates were said to be “’terrified’” of her appearance. The article gave the complainant’s birth name, and said that she was “awaiting gender reassignment surgery”. The complainant’s husband was quoted as stating that “’She’s been moved because she is legally female’”. The article said that it was believed that there had been no issues with the complainant in the prison.

3. The complainant said that the article breached Clause 2 (Privacy) by revealing her pre-transition male name, and the fact that she had a gender recognition certificate (GRC). She said that the link between her current and former names had not previously been placed in the public domain, and that revealing this link was illegal under the terms of the Gender Recognition Act – as was revealing the fact of her GRC. She said that her most recent name, arising from her marriage, had not previously been placed in the public domain, for instance on her marriage certificate.

4. The publication denied any breach of Clause 2 (Privacy). It said that its article had been based on one in another publication, which had already published the complainant’s full previous name and gender history; in addition, a 2011 article had reported on the complainant changing her name from her previous male name to a different female name (used prior to her subsequent marriage). The publication also noted that the terms of the Gender Recognition Act, relating to a prohibition on disclosing the fact of an individual having a gender recognition certificate, applied to individuals acting in an official capacity; this was not the case in this instance, where the information regarding the GRC had been obtained from the article in the other publication.

5. The publication also argued that individuals have no reasonable expectation of privacy in relation to their names, whether past or current; this did not represent private information about them. It said that, in any event, there was a strong public interest in the publication of the article. The article had been published following sex attacks being committed by a transgender female prison inmate, and following government action in relation to the subject of transgender prisoners; the article was therefore relevant and topical, and served to open up a conversation regarding the rights and placement of transgender inmates. The publication said that there was also a public interest in referring to the complainant’s “legal certification of being female”, as this was what had prompted her to be moved to the female prison estate.

Relevant Code Provisions

6. 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.

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

7. IPSO is not tasked with dealing with any legal issues arising from the protections afforded by a Gender Recognition Certification. However, a change of name associated with a GRC could be viewed to be distinct from a change of name resulting from a deed poll or arising through marriage, in that it relates to the potentially personal and sensitive matter of an individual’s decision to change their legal gender. Consequently, while no expectation of privacy is likely to attach to any one name in isolation, the link between an individual’s former name and current name, in circumstances where it also revealed a change of legal gender, could represent private information about them.

8. In this instance, the complainant’s new first name (and by implication, the fact of her change of gender presentation) had previously been placed in the public domain in the 2011 article. Where this fact was previously in the public domain, the publication was not in the position of revealing for the first time the complainant’s gender history. While the other publication had been in the position of placing the connection between the complainant’s past and current names into the public domain for what appeared to be the first time, Mail Online was nevertheless obliged to have consideration for any potential intrusion into the complainant’s private life arising from the repetition of this connection.

9. While the Committee accepted that revealing this connection carried the potential for intrusion, in this instance, there was a clear justification for doing so: the complainant had been convicted of a serious crime under her previous name and was serving a custodial sentence as a result, which was a matter of public record. It was therefore a matter of public interest that there be a record of the link between her current name and the crimes committed under her former name. There was a clear justification for reporting the link between the complainant’s past and present names, so there was no breach of Clause 2 (Privacy) on this point.

10. The information regarding the complainant’s GRC had not previously been placed in the public domain, other than in a similar article published in a different publication, and this had the potential to be private information about her, in that it related to her gender history. However, again, there was a clear justification for the inclusion of this information in the article, which reported on issues concerning the most appropriate prison for trans prisoners. The article focussed on the complainant's case and concerns raised after she was moved to a women's prison. The full circumstances relating to the complaint’s case were, therefore, relevant to the debate, including that, by virtue of the GRC, she had changed her legal gender. In circumstances where there was a clear justification for reporting this information, in the context of the broader debate reported on, there was no breach of Clause 2 (Privacy) on this point.

Conclusion

11. The complaint was not upheld.

Remedial action required

12. N/A

Date complaint received: 22/10/2018

Date decision issued: 08/03/2019