08376-19 Malone v The Scotsman

Decision of the Complaints Committee – 08376-19 Malone v The Scotsman

Summary of Complaint

1. Thomas Malone complained to the Independent Press Standards Organisation that The Scotsman breached Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Trumps ‘frustrated’ by foreign projects ban” published on 26 October 2019.

2. The article reported on a meeting hosted at an evangelical church in Glasgow, in which the executive vice president of Trump International and her husband – who researched a book about President Trump – addressed approximately 120 people. It gave details of the speeches made by these two individuals, including their views on the President Donald Trump and his business dealings in Scotland.

3. The article also appeared online on 25 October 2019 with the headline “Trumps ‘frustrated’ at inability to pursue ‘foreign investment’ deals, says Trump Org executive”. This article was much longer than the print counterpart and provided much more information about what was said at the event, and the backgrounds of the executive vice president and her husband. As part of this biographical detail, it referred to the executive vice president’s father, who was named and described as a former councillor and church elder.

4. The complainant, the man named in the article as the father of the executive vice president, said that the actions of the reporter in preparation of the article breached Clause 10. He said that he had attended the event and was unaware of the presence of the reporter. Having established post-publication that the reporter had gained entry to the event by using a false email address and name and that he had made an audio recording of the event, the complainant said that there was no public interest which justified these measures. Furthermore, he said that he found the conduct of the reporter insulting and distressing as the event had taken place in a church.

5. The complainant also said that the article intruded into his privacy. He said that there was no justification in naming him in an article primarily focussed on his daughter, or referencing the fact that he was a former councillor and church elder.

6. The publication did not accept that there was any breach of the Code. It accepted that Clause 10(ii) was engaged to a limited degree, but said that there was a sufficient public interest to justify the behaviour of the reporter, which had been discussed between the reporter and the news editor prior to the reporter attending the event. It said that it was understood to be the first time that any employee of the Trump Organisation had given a public address in Scotland since Donald Trump was elected President, and the publication had considered it necessary for the reporter to attend and record proceedings in order to ensure that the event was accurately reported. It said that the reporter had previously reported on Trump International Scotland’s activities and, as a result, had been blocked on social media by the business, and had been told by the husband of the executive vice president, the man who had also spoken at the event, that he had “no interest in talking to [named reporter] for any future articles”. It said that as such, it was reasonable to assume that if the reporter took an open approach, he would not have been granted admittance to the event. The event was ticketed but open to the general public; the journalist used a false name to book the tickets, but the newspaper said that at the event he was not challenged and had not taken any steps to disguise his identity. It said that the complainant’s opinion that the intrusion was exacerbated by it taking place in a church failed to take into account that the reporter was not attending a church service, but a ticketed event where the speakers were discussing the President Donald Trump and trying to sell their books. It noted that the article did not report that the complainant was in attendance at the event, or reported anything he may have said at the event.

7. The publication did not accept that the article breached Clause 2. It said that the information about the complainant’s involvement in the council and his local church was already in the public domain. It said that the complainant had declared his role in the church via the Register of Members’ Interests at the council, and provided several articles detailing his work in association with his daughter.

Relevant Code Provisions

8. 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.

9. 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

i. Detecting or exposing crime, or the threat of crime, or serious impropriety.
ii. Protecting public health or safety.
iii. Protecting the public from being misled by an action or statement of an individual or organisation.
iv. Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.
v. Disclosing a miscarriage of justice.
vi. Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
vii. 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

10. The reporter had attended the event in a journalistic capacity, for the purposes of writing an article. He had obtained a ticket using a false name and the organisers of the event were under the impression that he was a member of the public. As such, the terms of Clause 10(ii) were engaged. However, the nature of the complaint under Clause 10(ii) insofar as it concerned the complainant was limited. The article had referred to him in the context of providing biographical information about the speakers; it did not report that he had attended the event or report any comments which he may have made; and the complainant had not complained that the reporter had spoken to him at the event. Clause 10(ii) was, therefore, engaged to the limited extent that the reporter had misrepresented his identity to gain entry to an event which the complainant had also attended.

11. The Committee considered that the level of subterfuge or misrepresentation a reporter may engage in falls on a sliding scale. In this instance, the public interest in reporting the event had been discussed at senior editorial level before the reporter had attended: high profile speakers would be discussing their experience of working with the President of the United States, Donald Trump, and his business dealings in Scotland. It was reasonable for the publication to believe that an open approach would not have been successful; the reporter had previously been blocked from the organisers’ social media accounts after he had written about their business dealings and the reporter had been named specifically by one of the speakers as someone he had “no interest in talking to”. In attending the event, the reporter had engaged in a very low level of misrepresentation; he had used a false email address and name to book a ticket to the event which was open to the general public and which promoted a book written by one of the speakers. The reporter had not obtained any information that was not made available to any member of the public who attended the event and the article did not report any information about the complainant which had been obtained as a direct result of the subterfuge. The action taken by the reporter to gain entry to the event was proportionate to the public interest served by reporting on the comments made by the speakers about the activities of Trump International Scotland, and the speakers’ views on President Trump, as set out in the article. For all of these reasons, there was no breach of Clause 10(ii).

12. The Committee then considered the complainant’s concern that the reporter had used a clandestine listening device, and whether the terms of Clause 10(i) were engaged. The Committee was mindful of the requirement of Clause 1(i) to take care over the accuracy of information which is reported and recognised the benefit of creating an accurate, contemporaneous record of events. In this instance, the Committee considered that the audio recording had been made to serve as a contemporaneous record of what was said at a public meeting of approximately 120 people. The audio recording equipment was not being used as a covert recording device to obtain confidential information. As such, the Committee considered that the reporter did not use a clandestine listening device, and the terms of Clause 10(i) were not engaged.

13. The article reported that the complainant had formerly been a councillor and was a church elder, and reported his familial connection to the speakers. The complainant had been an elected public official, which was a matter of public record, and this was not information in respect of which the complainant had a reasonable expectation of privacy. Similarly, his role in the church and his familial connection to the executive vice president of Trump International was in the public domain prior to publication, as demonstrated by the articles provided by the publication. As such, the complainant did not have a reasonable expectation of privacy over this information and reporting it did not constitute an intrusion into his private life. There was no breach of Clause 2.

Conclusions

14. The complaint was not upheld.

Remedial Action Required

15. N/A

Date complaint received: 29/10/2019

Date complaint concluded: 06/04/2020

The complainant complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Independent Complaints Reviewer decided that the process was not flawed and did not uphold the request for review.