08901-16 Kelly v Express.co.uk

Decision: No breach - after investigation

Decision of the Complaints Committee 08901-16 Kelly v Express.co.uk

Summary of Complaint

1. Tracey Kelly, acting on behalf of her son Joseph Kelly, complained to the Independent Press Standards Organisation that Express.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “First pictures: Vile thugs who put teen in coma ‘for being Jewish’ named and shamed”, published on 5 October 2015.

2. The article reported the complainant’s son’s conviction for inflicting grievous bodily harm with intent, assault occasioning actual bodily harm and two counts of assault by beating, following an attack on four friends. It included an image of the complainant’s son and he was identified by name. The article referred to comments made by the father of one of the victims and a local MP; both of whom argued that the case should have been treated as a religiously aggravated hate crime. The article also included references to the ruling made by the judge at Manchester and Salford Youth Court on 2 October 2015, where it was decided that the attack was not to be treated as a religiously aggravated hate crime.

3. The article explained that reporting restrictions, which prevent the identification of juvenile defendants, had been lifted by the judge so that the defendants in the case could be identified by the media.

4. The complainant expressed concern that the newspaper’s reference to the phrase, “for being Jewish” in the headline and the use of the word “Jewish” throughout the article created the inaccurate impression that the attack had been a religiously aggravated hate crime and discriminatory. She relied on the ruling made by the judge, in which he had stated that “throwaway remarks that were anti-Semitic were made”, but ruled that the victims had not been attacked because they were Jewish, rather they had been “in the wrong place at the wrong time”.

5. The complainant also expressed concern that the image of her son included in the article had been taken from his personal Facebook profile. She said that at the time of publication, her son’s Facebook page had privacy settings in place. She said that no permission had been sought by the newspaper to use the image, nor had any permission been given by her or her son.

6. The newspaper did not accept any breach of the Code. It said that the inclusion of the comments from the victim’s father and a local MP had been a matter of editorial discretion; the comments had not given the inaccurate impression that the complainant’s son had been convicted of a religiously aggravated hate crime. The newspaper said that these comments were opinions, and they had been clearly identified as such in the article. The newspaper said that these opinions were presented alongside the ruling of the judge, which made clear that the attack was not to be treated as a religiously aggravated hate crime. Furthermore, the use of the word “Jewish” was relevant to the extent that the issue of alleged anti-Semitism had been part of the investigation into the attack. Therefore, the newspaper did not consider that the inclusion of “Jewish” had been inaccurate or discriminatory in nature.

7. The newspaper did not dispute that the image of the complainant’s son had been taken from his Facebook page. It said that the image used in the article had not been accessed by their editorial team; it had been provided by the Manchester Evening News. As such, it could not provide the original screen shot of the Facebook page as it had appeared when the image was obtained. It also considered that it was difficult to properly investigate how the Facebook image had been obtained, given that the article had been published a year before the complainant raised her concerns.

Relevant Code Provisions

8. 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.

v) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

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. Account will be taken of the complainant's own public disclosures of information.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

Clause 12 (Discrimination)

i) The press must avoid prejudicial or pejorative reference to an individual's, race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability.

ii) Details of an individual's race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.

Findings of the Committee

9. In publishing a report of proceedings in which the judge had decided to lift reporting restrictions, the newspaper had been entitled to report the facts of the case as they had been heard by the court. It was not misleading to report that the victims were Jewish in circumstances where this had been relevant to the arguments of the case.

10. The article had explained that the judge had ruled that the attacks were not to be treated as a religiously aggravated hate crime, and it had accurately reported the offence for which the complainant’s son had been convicted. In that context, reporting the views expressed by the victim’s father and local MP did not raise any breach of Clause 1, particularly in circumstances where it was not disputed that the judge had found that anti-Semitic language had been used at the time of the offence. The Committee noted that the article’s headline had stated that the friends had been attacked “for being Jewish”; however, this assertion had appeared in inverted commas, which when read in context with the article as a whole, clearly indicated that it had referred to the opinion expressed by one of the victim’s fathers and the local MP and represented their characterisation of the crime committed. The article had not given the significantly misleading impression that the complainant’s son had been convicted of a hate crime. There was no breach of Clause 1.

11. The image under complaint showed the complainant’s son’s face and upper body. The Committee noted that the newspaper had obtained the image from the Manchester Evening News, which was also subject to an IPSO complaint relating to a similar article. The Committee noted that in respect of the complaint against the Manchester Evening News, it had been provided with similar images to that complained of, which remain available – without privacy settings – on the complainant’s son’s Facebook page. The Committee noted the complainant’s position that her son had – at the time of publication – limited the extent of his disclosure of the image on Facebook by the use of privacy settings. In addition, it noted the newspaper’s position that had privacy settings been in place, it would not have been able to see or use the image. However, given the nature of the photograph, the Committee did not consider that it was material in relation to which the complainant’s son had a reasonable expectation of privacy. Neither did the inclusion of his home address raise any breach of Clause 2, in the context of a court report.

12.  The complainant had not complained that the reference to the victims being “Jewish” discriminated against her son; instead she was concerned that the reference suggested that his offence had been religiously motivated. There was no breach of Clause 12.

Conclusions

13. The complaint was not upheld.

Remedial action required

N/A

Date complaint received: 04/10/2016
Date decision issued: 19/01/2017

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