08086-19 ESE Group and EVO Energy Solutions v Daily Mirror

Decision of the Complaints Committee – 08086-19 ESE Group and EVO Energy Solutions v Daily Mirror

Summary of Complaint

1. The ESE Group and EVO Energy Solutions complained to the Independent Press Standards Organisation that the Daily Mirror breached Clause 1 (Accuracy) and Clause 2 (Privacy) of the Editors’ Code of Practice in an article headlined “Time to give solar sellers the old Evo”, published on 23 January 2020.

2. The article reported on the reporter’s experience investigating a complaint made to him by a reader following their experiences with a particular solar company. The article contained claims relating to the experiences of both the reporter, as he contacted the company, and the son of a customer who the article alleged had “responded to a junk-mail offer of a ‘free health check’ for her home solar heating system”. The article reported that following this response, the customer was “sold a replacement battery for £4,285, around twice the going rate.” The article also claimed that the reporter had written to the company claiming that they had “charged an 89-year-old £4,285 for what the family says is a second-hand overpriced battery that was sold following a misleading letter about a ‘free’ and unnecessary solar heating system health check”. The response from the company’s solicitor was also included in the article and stated that “tests by a qualified engineer showed that her old battery was faulty and it was replaced with a new one at her request, but the order has now been cancelled”. The article also reported that “For weeks ESE Group has been insisting that it has not received any complaint from the reader or her family. So I se[n]t it a copy of its online complaint form, as completed by her son”.

3. The article reported that the exchange between the journalist and the company had taken place after the reporter had “obtained written permission from the reader to look into the matter on her behalf”.  It also reported that the company had initially responded that it “was concerned that ‘[the customer] has given a member of the press whom, we assume, she has no connection to, permission to effectively make decisions on her behalf’”.

4. The article also discussed the mailing practices of solar companies generally, and reported that this solar company had, under a former name, been in breach of the Energy Consumer Code after sending out mailshots. It also named the British Trading Solar Association (BTSA)”, which it said had sent out “similar mailings”. The article stated that Evo Energy Solutions had sent out mailshots which stated that the person’s inverter may have expired and offered a “free MOT and service on your system”. The article reported that “All you need to know about inverters is this: they do not need servicing”.

5. The article also appeared online in substantially the same format under the headline “Beware offers of a free service on your home solar heating system”. This version of the article also reported that the ESE Group had been tweeting in relation to an article which it said that another newspaper had published, which praised the company and its CEO.  However, the article under complaint stated that the journalist could not “find an[y] evidence that this article was published in the [other newspaper]” and, therefore, the columnist presumed that it was an advertisement. The online version of the article also reported that a company which claimed to be a member of the BTSA had sent “similar mailings” offering a free health check to one that had been banned by the Advertising Standards Authority. It went on to say that “another organisation has surfaced with an identical logo to the one used by the BTSA, Evo Energy Solutions”, and also queried whether it existed.

6. The complainant, the solar company which had been the subject of the reader’s complaint, said that the article contained numerous inaccuracies in breach of Clause 1.  Firstly, it said that it was inaccurate to report that the woman in the article had received “junk-mail” as the woman had been a customer for several years and the only letter she had received was a free system health check reminder, which was received by all of the complainant’s maintenance customers annually and that customers consented to this as part of their policy and could not therefore be characterised as “junk-mail”. Further, it said that the article’s references to the mailing practices of other companies within the solar sector gave the misleading impression that its practices were questionable and may also be against ASA rules, which was not the case.

7. The complainant said it was inaccurate to report that the woman had been charged around twice the going rate for the replacement battery and maintained that their price was competitive. It said that the newspaper had not put this allegation to them prior to publication, and had reported as fact that the battery was sold at double the price without them being able to deny this or put forward their position. It said that the source which the publication cited as providing the information relating to the cost of the battery was not reliable. The complainant provided a breakdown of the costs of both the battery itself and installation in the specific case discussed in the article, which amounted to £3,300. It provided an online article which quoted installation as being between £2,500 and £7,000. The complainant also said that it was impossible to assess the costs of installing a battery without having knowledge of the specific property. The complainant also provided an email from the supplier who stated that the battery had been new, not second hand, and said that the article failed to include the company’s denial on this point. The complainant also said that it was inaccurate to report that the woman would not be charged for the battery, as she still owed the balance for the removal of her old battery and the replacement of the new one; request for the payment was simply on hold until the complaint was examined.

8. The complainant also said the system was not a solar heating system but instead a solar PV system, which generated electricity rather than thermal panels which heat hot water as per a solar heating system. The complainant also said that the reference to inverters not requiring servicing was misleading. An inverter is a device that converts the electricity generated by solar panels into a form that is usable by the standard electrical grid. The complainant said that the letter quoted in the article had offered a free MOT and service on the solar system as a whole, rather than just the inverter, and was not offered to the customer whose complaint was outlined in the article.

9. The complainant had concerns regarding how the journalist had gained consent from the woman in the article to research the story. This was in part due to the fact that the signed letter from the woman had used the phrase “power of attorney” when referring to the journalist. The complainant said that, therefore, it was a breach of Clause 1 to report that written permission from the reader had been obtained. Further, the complainant also said that it had not received a complaint with the appropriate consent until November, when it had received a complaint from her son. It had then engaged with the family about this matter.

10. The complainant also said it was inaccurate for the online article to report that the journalist could find no evidence of the article published by another publication and provided a pdf of an article. The complainant also said it was misleading for the article to report that the journalist had not heard anything from the press regulator, as they had contacted IPSO prior to the publication of the article.

11. Finally, the complainant also said that the publication had breached Clause 2 by failing to investigate if the letter had been signed by the customer. It said that the ESE Group had an expectation of privacy over its interactions with customers.

12. The publication did not accept that the Code had been breached. The publication initially stated that the annual free system health check reminder the complainant had said it sent to all its maintenance customers could be characterised as junk mail. It provided a copy of this letter, with the address redacted, that it alleged the complainant had sent to the woman in the article which was addressed to “homeowner” rather than the woman in the article specifically, and was sent out on a mass scale. It also noted that one can be a customer of an organisation, and still receive junk mail from it for further services. It said that in any case, the complainant accepted that the woman had become a customer as a result of a “junk phone call” from the complainant.

13. The publication said that it had taken care over the claim the customer had been charged “around twice the going rate” for the battery.  It had contacted the Solar Trade Association, which claims to be a leading voice of the UK’s solar industry, which had placed the estimate at around £2164 including VAT. The email exchange with this organisation also suggested that it was unlikely that the battery would have degraded to such an extent that it would be required to be changed. The publication also shared an email from a family member of the woman in the article, which stated that an independent solar engineer had stated that the product should not have cost £4500. The family member had also said he had researched the types of batteries and found that the price offered was not competitive. The publication said that the complainant’s breakdown of the price of the battery, which was £3300 and took into account labour and other costs, also did not explain why the woman was charged £4285. The information provided by the Solar Trade Association also disputed the complainant’s claims about the amount of time and labour it should take to install the product. The publication said that whilst it did not put the allegation that the battery was double the expected price to the complainant, it had put that the battery cost £4285 to the company, and this had not been disputed. It said that the Solar Trade Association had confirmed that the battery should have cost half the amount charged, and therefore that it was not possible that it was inaccurate to report that it was “twice the going rate”. In the same email provided by the publication from the woman’s family member, the independent solar engineer the family had contacted was also said to have said that the battery was scratched and second-hand.

14. The publication said it had received an email from the complainant prior to the publication of the article in which it said that “The order was subsequently cancelled and [the woman in the article] has not paid for the product or services she received”, which it had understood to mean that the complainant would not be charged. In addition, it was confused by the complainant’s position, as during IPSO’s investigation it had provided an email which offered to remove the installed product and re-install the original product and refund the deposit. However, once the position was clarified it offered to publish the following correction in print on the journalist’s page, or in their established corrections and clarifications column on page 2:

Our article 'Time to give solar sellers the old Evo', 23 Jan, reported of a 89year-old widow who'd responded to a junk-mail offer of a "free health check" for her home solar heating system, which resulted in her being sold a replacement battery for £4,285. The article stated that 'The good news for my 89-year-old reader is that although she was invoiced for £4,285, she will not be charged.' ESE Group has asked us to clarify that in fact, the 89-year-old will still be charged.

And the following as a footnote clarification to the online article:

A previous version of this article stated that 'although the 89-year-old reader was invoiced for £4,285, she will not be charged.' ESE Group have asked us to clarify that in fact the 89-year-old will still be charged.

15. The publication also said that referring to the solar PV system as a “home solar heating system” was not significantly misleading as the solar system generated power which can be used for home heating.

16. The publication provided a copy of the letter that had referred to the inverters. The letter stated that “Our records indicate that you have not received your free M.O.T and service on your system. Almost all inverters that have been installed during the last 7 years had a 5 year warranty as standard. This means that a significant proportion of these solar installations in the UK have now expired." The article had reported that the letter offered a “free MOT and service on your system” and went on to say that “All you need to know about inverters is this: they do not need servicing”. The publication said that this was not an inaccurate report of the content of the letter. In addition, it referred to an email from the Solar Trade Association which reported that “inverters never need servicing” but would simply need replacing if they no longer worked.

17. The publication said that the customer had given written consent to the journalist, which he had provided to the publication. It said “power of attorney” was just a phrase used by the customer when allowing the journalist to ask questions to the complainant.

18. The publication noted that the complainant had confirmed that a complaint had been made on behalf of the customer. It said, therefore, it was not a significant inaccuracy to report that the complainant had insisted it had not received any complaint from the reader or her family.

19. The publication said that the article could not represent a breach of Clause 2 as the complainant had not been personally or directly affected by the alleged breach.

20. The complainant disputed that the letter provided by the publication had ever been sent to the complainant, and that the customer had been recruited by a phone call. Firstly, it said that the woman had become a customer after renewing an existing maintenance package which had been taken out in her husband’s name. The publication stated that the husband had joined, over two years prior to the battery replacement, after a phone call, but that it was misleading to say that this was the “junk mail” described in the article. The complainant said that the free health check it offered annually was in fact offered by a phone call, with a follow up letter sent confirming the appointment. The complainant noted that the phone call could not be considered “junk” as it was part of the woman’s agreed maintenance package, and that the letter which followed was written confirmation of a service which was part of her pre-existing package, and an appointment the complainant had agreed to.

21. At the end of IPSO’s investigation, the publication apologised and acknowledged that the letter addressed to “homeowners” had not in fact been sent to the woman in the article. It accepted the complainant’s position that the health check had been booked by a phone call and follow up letter. It did, however, believe that this phone call could be classed as a “junk phone call” as, even though she was a pre-existing customer, the purpose of the phone call was to advertise additional services. The publication stated that it was not a significant inaccuracy to report a “junk phone call” as “junk-mail”. However, it offered to publish the following wording in order to resolve the complaint: 

Our article 'Time to give solar sellers the old Evo', 23 Jan, reported of a 89-year old widow who'd responded to a junk-mail offer of a "free health check" for her home solar heating system, which resulted in her being sold a replacement battery for £4,285. In fact, this service was sold to the 89-year-old via a telephone call to 'discuss services they offer'. The article also stated that 'although the reader was invoiced for £4,285, she will not be charged.' ESE Group has asked us to clarify that in fact, the 89-year-old will still be charged. We are happy to clarify this.

Relevant Code Provisions

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 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

22. The article had characterised the contact from the complainant that led to the maintenance check as “junk-mail”, which the Committee considered referred to unsolicited written correspondence. Despite the newspaper’s repeated insistence throughout the course of IPSO’s investigation that the customer had indeed received such correspondence, it accepted at the end of IPSO’s investigation that she had in fact received a phone call. This phone call was part of the maintenance package the customer had signed up to with the complainant, and the complainant was contractually obliged to offer this service. Where the publication was only able to demonstrate the customer had received a phone call, as contractually agreed with the complainant, it had not taken care over accuracy of the claim that the customer had responded to “junk mail” and there was a breach of Clause 1(i) of the Code. Where the use of the term “junk-mail” suggested unsolicited contact which is generally viewed as a bothersome marketing tactic deployed by companies, this was significantly inaccurate when in fact the contact was a personal phone call, as agreed to in the customer’s contract with the complainant, and therefore required  correction under Clause 1(ii). The publication had offered to correct this point to say that “this service was sold to the 89-year-old via a telephone call to 'discuss services they offer’”. This did not accurately reflect that the telephone call, and annual check the customer had agreed to, was part of a service she was already subscribed to, and there was a further breach of Clause 1(ii).

23. The article had reported that the customer had been sold a battery at “around twice the going rate”. The publication had based this claim on an email exchange with the Solar Trade Association, who expressed the view that “the cost of the materials would be £2164 inc. VAT. A battery might take a couple of hours to install, so accounting for labour, shipping, admin and such, £4,285 seems rather steep”. However, the Committee did not consider that this was sufficient evidence that a like-for-like service would normally be half of what the complainant charged. The publication had not put this claim to the complainant prior to publication and had stated that the service was “twice the going rate” as a fact. Whilst the publication had evidence to suggest that the service had been expensive, it could not demonstrate the specific claim that it was “twice the going rate”. The Committee therefore found that the newspaper had failed to take care not to publish inaccurate information under Clause 1(i). This was a serious charge against the complainant which suggested they had deliberately overcharged a customer, this amounted to a significant inaccuracy which required a correction under Clause 1(ii). The publication had not offered a correction on this point and there was a further breach of Clause 1(ii).

24. The articles had referred to the British Trading Solar Association (BTSA) and a company which the article said claimed to be one of its members which it reported had sent out “similar mailings to one which had been found to be in breach of the Energy Consumer Code”.  The article noted that the BTSA had a similar logo to the complainant. The Committee were concerned as to why the BTSA/its member had been reported on in an article about the experiences of a customer of the complainant and that the reference, without any further explanation, suggested a connection between the complainant and the BTSA/its member. Where the article had not included an explanation as to how the complainant was said to be connected to either organisation, the publication had failed to take care not to publish misleading information under Clause 1(i); the references implied that there was a connection between the complainant and the BTSA/its member which the publication had not substantiated during the course of the investigation into the complaint. This was significant in the context of the article, and added to the impression that the complainant had acted dishonestly by sending junk mail to the customer, and required correction under Clause 1(ii). The publication had not offered a correction on this point and there was a further breach of Clause 1(ii).

25. The complainant said it was inaccurate to report that the customer would not be charged. The Committee noted that there had been confusion over the correct position as to whether the customer would be charged after the complainant had said that the customer’s order would be “cancelled”. The position of the complainant on this point was ambiguous, and on this basis it was found that the publication had taken care not to report inaccurate information under Clause 1(i). However, during IPSO’s investigation the publication was given the correct position that the customer’s payment was on hold during IPSO’s investigation, and that the complainant had offered to remove the battery they installed and replace it with her previous battery. This situation was significantly different to the assertion that the customer would not be charged. In order to avoid a breach of Clause 1(ii), the publication was required to correct this under Clause 1(ii). The publication had offered a correction on the point, but its correction said that the customer would “still be charged” which did not reflect the accurate position. This wording was inadequate to satisfy the requirements of Clause 1(ii).

26. The article had included an allegation, which was attributed to the customer’s family, that the replacement battery was second hand. The Committee considered that the claim was a very serious allegation. This claim had been put to the complainant, and its position that the battery was “new” was included in the article, but its denial that the battery was second hand was omitted. Although the article referred to the complainant’s comment that the customer’s “old battery was faulty” and was “replaced with a new one”, this was not sufficient to reflect that the complainant had denied that the battery was second hand. The term “new” in this context could be interpreted to mean “replacement”, rather than necessarily unused. The omission of the complainant’s denial in the article represented a failure to take care not to publish misleading information which amounted to a breach of Clause 1(i). As this was a serious accusation against the complainant that it had acted dishonestly, this was significantly misleading which required correction under Clause 1(ii). The publication had not offered a correction on this point and there was a further breach of Clause 1(ii).

27. The article had described the customer as possessing a “solar heating system”, when she had a “solar PV system”. The Committee found that this was not a significant inaccuracy in the context of the article, and did not breach Clause 1.

28. The articles reported on a mailshot sent by the complainant’s second company, which was not sent to the customer who was featured in the article. The article made clear that this had been sent by “another” company and did not suggest that the letter was sent to the customer in the article. There was clearly a link to this company which was accepted by the complainant, as it was complaining on behalf of the company used by the customer, and this company. The article quoted directly from the letter and on this basis the publication had not failed to take care not to publish misleading information.

29. The online article had reported that the journalist was unable to find another article which had been published in a print newspaper which discussed a director of the complainant. The article did not state as a matter of fact that the article did not exist, and where there was no evidence to suggest that the journalist had been able to locate this article, there was no breach of Clause 1 on this point.

30. The complainant had said that it was inaccurate to report that it had denied receiving a complaint from the customer or her family. It said it had believed that a family friend, rather than a family member, had made the complaint. Where the complainant accepted having denied that a family member had made the complaint, there was no breach of Clause 1 to report the complainant’s denial on this point.

31. The complainant also expressed doubt as to whether the customer had given the journalist permission to act on her behalf. The complainant had not demonstrated that the customer did not support the newspaper’s involvement and the customer’s son clearly accepted the newspaper’s intervention; in these circumstances, it was not misleading to report that the journalist had obtained the customer’s permission. In any case, any concerns regarding this point would necessitate the involvement and consent of the customer. There was no breach of Clause 1 on this point.

32. The complainant had also said the behaviour of the journalist had breached its privacy under Clause 2. The Editors’ Code refers to and applies to specific individuals and not corporate entities. Corporate entities do not have privacy rights under the Editors’ Code, and therefore Clause 2 was not engaged.

Conclusions

33. The complaint was upheld under Clause 1.

Remedial Action Required

34. Having upheld the complaint, the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or adjudication, the nature, extent and placement of which is determined by IPSO.

35. The Committee considered that there was a serious breach of Clause 1(i). The article had made very serious allegations against the company by reporting that it had sold a “second-hand battery” for “twice the going rate” and had failed to include the company’s position. It had misleadingly referred to communications that formed part of the customer’s existing package as “junk-mail”. The article had also referred to two other bodies and misleadingly suggested they were connected to the complainant, which it did not have evidence to support. Finally, although it had taken care not to publish inaccurate information, it had failed to correct the inaccurate assertion that the woman would not be charged so as to accurately represent the complainant’s position. In light of the newspaper's failure to take care over the article's accuracy, and its failure to correct the inaccuracies in line with its obligations under Clause 1(ii), the Committee concluded that an adjudication was the appropriate remedy.

36. The Committee considered the placement of this adjudication. The article had been published on page 27. The Committee therefore required that the adjudication should be published on page 27 or further forward in the newspaper. The headline to the adjudication should make clear that IPSO has upheld the complaint, give the title of the newspaper and refer to the complaint’s subject matter. The headline must be agreed with IPSO in advance.

37. The adjudication should also 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. If the newspaper intends to continue to publish the online article without amendment to remove the significantly misleading statements identified by the Committee, the full text of the adjudication should also be published on the article, beneath the headline. If amended to remove the inaccurate and misleading statements, 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.

38. The terms of the adjudication for publication are as follows:

Following an article published in print on 23 January 2020 headlined “Time to give solar sellers the old Evo”, and online headlined “Beware offers of a free service on your home solar heating system”, the ESE Group and EVO Energy Solutions complained to the Independent Press Standards Organisation that the Daily Mirror breached Clause 1 (Accuracy) of the Editors’ Code of Practice.

The article reported that the customer in the article had received “junk-mail” which had led to her paying “around twice the going rate” for a replacement battery and which a relative of the customer had claimed was second hand. The article also named a solar association, the BTSA, and a company which the article said claimed to be one of its members which it reported had sent out “similar mailings” to those which had been found to be in breach of the Renewable Energy Consumer Code. Both versions of the article contained a quote from the complainant saying that the order had been “cancelled”.

The complainant said the article was inaccurate: there had been no junk mail, but a personal telephone call which was part of the contract between the complainant and the customer; that the battery’s price was not twice the going rate; that it was misleading to discuss the BTSA and its member in the article to which it said it was unrelated; that the order had not been “cancelled” but the customer’s payment was on hold during IPSO’s investigation, and that they had offered to reinstall her old battery and that the battery was not second hand.

IPSO found it was significantly inaccurate to characterise a phone call, which the complainant was contractually obliged to make, as “junk mail”. It also found it was significantly inaccurate to state as fact that the battery had been sold at “around twice the going rate” when this was not a like-for-like comparison, without putting this to the complainant first for an opportunity to comment. The Committee found that it was misleading to have referred to the mailings sent by the BTSA/its member in an article which reported on the experiences of one of the complainant’s customers without also including an explanation as to how the complainant was said to be connected to these two organisations. It was also inaccurate to report that the customer’s order had been “cancelled” when in fact the customer’s complaint was on hold. Finally, it was significantly misleading to print claims that the battery was second hand without printing the complainant’s denial of this. IPSO found that the publication had failed to take care not to publish inaccurate information in breach of Clause 1.

 

Date complaint received: 10/02/2020

Date complaint concluded by IPSO: 19/01/2021

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