09504-22 Hunter v Mail Online

Decision of the Complaints Committee – 09504-22 Hunter v Mail Online

Summary of Complaint

1. Carl Hunter complained to the Independent Press Standards Organisation that the Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “'This is lawfare': David Davis warns libel action by Russian oligarchs and rich 'with deep pockets' is having 'chilling effect' on free press after Putin's People book case cost journalist £1.5million”, published on 24 January 2022 and an article headlined “Millionaire Conservative Party donor Mohamed Amersi begins libel proceedings against ex-Tory MP Charlotte Leslie claiming she has been trying to damage his reputation”, published on 8 April 2022.

2. The first article reported on a debate on “lawfare”, which the article described as “wealthy foreign businessmen using British courts to pursue their critics”. It reported on comments made by a former Conservative cabinet minister, which had been made in Parliament, and who gave several examples of what he considered to be “lawfare”. The article also stated that the Commons debate “saw a Tory tycoon and a senior Conservative adviser accused of trying to 'bully' [a] former MP”, and noted that several MPs “criticised [the] prominent Conservative adviser”. The article said the debate followed a “disclosure by the Daily Mail of shocking leaked phone calls” between the adviser and the former MP, including that the former MP “needed to 'consider being able to walk the dog at night' if she refused to apologise”. It also said the former MP had “complained to the police about the 'sinister' calls” and that another former Conservative cabinet minister had said the advisor had “engaged in bullying and egregious behaviour” when he “tried to broker peace between” the former MP and a Conservative donor.

3. The second article, published nearly three months after the first article, stated that the Conservative donor was issuing libel proceedings against the former MP. It stated that the former MP had “said she had a 'sinister' phone conversation in which she was told by [the government adviser] to consider whether she could 'walk the dog at night and sleep well' following her fallout with the [Conservative donor]”. It described the advisor as “acting as a ‘mediator’” during the phone calls. The full quotes given in the article reported that: “'You need to consider your position – being able to walk the dog at night, being able to sleep well at night'”; the advisor had “insisted she was 'alone' and faced 'a world of pain' unless she backed down”; that the former MP “was 'in the eye of the storm... it's you they seem to be after' and claimed: 'It's like a volcano.'”; and that the issue ”would 'monopolise your life for as long as it lasts... it just weighs on your mind so much... I don't want to see you photographed in some tabloid standing on the steps of somewhere.'” The article contained a four and a half minute audio recording of the phone call which included the quotes in the article.

4. The complainant, the adviser accused of being “sinister” during the telephone calls, said that the articles were inaccurate in breach of Clause 1. He accepted that he had spoken the words in the audio recording in the second article and which were quoted in the articles, but noted that the calls had been far longer than the clip published in the second article and that neither article had published the full transcript of the calls. He said, therefore, the articles missed much of the surrounding context of the quotes and that this rendered them misleading and was particularly concerned as the former MP had expressed her appreciation to the complainant during the calls for his attempts to reconcile the parties. He said that she had not stated that she found the conduct inappropriate, offensive or threatening during the telephone call itself nor when she met him at a later date. The complainant said that the omission of this context led to the articles being unbalanced and unfair: he said his aim was to assist her, and he was a neutral party. He said that the full recording would have demonstrated that the calls were not “sinister”.

5. The complainant also considered that the articles amounted to an unjustified intrusion into his private life. He said that the telephone calls were private and confidential and that neither the recordings of them nor quotes from them should have been published without his consent.

6. The complainant also said that he had been unaware that the telephone calls he was having with the former MP were being recorded, and that he had not consented to this. He said, therefore, the recordings had been obtained by subterfuge and clandestine means in breach of Clause 10.

7. The publication did not accept a breach of the Code. It noted that it had reported the matter subsequent to the publication of articles by another newspaper in January which had initially revealed the nature of the phone calls to the former MP, and that its reporting of the complainant’s comments, and the video clip, had come from this publication. It also said that several of the quotes in the article had been referred to in a debate in Parliament.

8. The publication said it had accurately reported the remarks made by the complainant, and said that he had not set out what qualifying elements were omitted that would have rendered the article misleading. It said that, given the recording of the phone call, it did not consider that it was feasible that any context would have undone the effect of the call in general, which had led the former MP to call the police. In addition, the publication said it had attributed any allegations that the phone call was “sinister” to the former MP. The publication said it was not inaccurate that it had not included that the former MP had thanked the complainant at the time – it said that this was not evidence that the conversation was not alarming to her and that there were many reasons, such as fear or alarm, why someone who has been subject to intimidation might choose not to highlight this to the person whose actions they found to be menacing. The publication also said that the complainant had declined to comment prior to the publication of the article.

9. The publication said that, as the phone call and video clip were already in the public domain due to being published by another newspaper, as well as being referred to in Parliament, that the complainant had no reasonable expectation of privacy over the information and there was no breach of Clause 2. It supplied the debate by Parliament, which included the quote in the first article. It also said that as it had not initially revealed the information, but instead had taken it from both another publication and the Parliamentary debate, Clause 10 was not engaged. It said that, in any case, the former MP had not utilised a clandestine device, and was entitled to record the phone call made to her. It said this was synonymous with making contemporaneous notes.

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 their private and family life, home, physical and mental 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.

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.

Findings of the Committee

10. The Committee noted that selection is a matter of editorial discretion and the publication was entitled to select sections of the telephone calls between the complainant and the former MP for publication, as long as it took care that this was not inaccurate, misleading or distorted. The Committee noted the complainant’s concerns that the full context of the calls had not been reproduced within the articles; he had said the former MP had thanked him during the telephone calls and that this had not been included in the articles, which he considered rendered the account of the conversation misleading. However, the Committee did not consider that omitting these comments rendered the published material to be misleading; the complainant accepted that he had said the quoted words in the article, and the woman who he had called had explained that she found the comments quoted to be threatening. She was entitled to express this view, and the basis for this view – those comments – was included in the article. Comments made by the complainant during the call that were different in tenor, or the way that the woman had responded as the conversation was ongoing, did not affect this. There was no breach of Clause 1 on this point.

11. The Committee noted that the comments made by the complainant were established in the public domain: a separate newspaper had published them, alongside a recording of the call. In addition, several of the quotes included in the article had also been discussed in Parliament. The quote from the first article had been made public in Parliament and the quotes from the second article had been made in Parliament, as well as in and article, published in another national newspaper almost three months prior. Where the quotes were already in the public domain in these respects, the complainant did not have a reasonable expectation of privacy, and there was no breach of Clause 2.

12. Similarly, the publication had not engaged in any subterfuge nor had it used any clandestine means to obtain the information. It had instead taken the information from the public domain, and therefore Clause 10 was not engaged.

Conclusion(s)

13. The complaint was not upheld.

Remedial Action Required

14. N/A

Date complaint received: 20/05/2022

Date complaint concluded by IPSO: 18/11/2022