11061-22 Maclennan v dailyrecord.co.uk

Decision of the Complaints Committee – 11061-22 Maclennan v dailyrecord.co.uk

Summary of Complaint

1. Stuart Maclennan complained to the Independent Press Standards Organisation that dailyrecord.co.uk breached Clause 2 (Privacy), Clause 9 (Reporting of Crime) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Scotland's highest-paid public transport boss pictured driving illegal cloned car”, published on 15 August 2021.

2. The article reported on the conduct of a senior public official (the complainant’s father) who had been accused of driving an illegally cloned car. The article gave details of the alleged crime. It stated that the publication had photographed the official “driving a cloned silver Passat” on the Isle of Lewis while “at the same time an almost identical blue Passat car with the same reg[istration number] was pictured at his office” in Glasgow. It included photographs of the two vehicles, with the captions detailing the time that the photographs were captured, the vehicle type and registration number.

3. The article also reported that the publication had photographed the official and the complainant, described as the official’s “police officer son”, leaving a property and “driving three miles” to a separate location. It said that the complainant – a serving police officer – had been observed by the publication “sitting in the passenger seat” of the silver vehicle. It also contained a photograph of the complainant entering this vehicle, captioned “Maclennan with son Stuart in car park near church on Lewis”, and another whilst he was sat in the passenger seat.

4. The complainant said that the article identified him as a relative of someone accused of a crime in breach of Clause 9. He said that he had not consented to being named and photographed in the article. He also denied that he was genuinely relevant to the story: he did not own, drive, insure or maintain any of the vehicles in question. He confirmed that his father had subsequently been charged with, and pleaded guilty to, the offence.

5. The complainant also said that the article intruded into his private life, in breach of Clause 2. He said that the photographs were published without his consent or permission, and showed him outside his family home and completing daily activities. He said that the publication of these photographs, which showed him leaving the family property and which clearly showed the vehicle make and model, were intrusive particularly in circumstances where he was not the subject of the article.  

6. Further, the complainant said that despite the photographer clearly having been present at his family’s home address taking photos of the vehicle type, he had not seen the photographer. He therefore believed that the pictures had been taken from a vehicle at the end of his driveway that had disguised the photographer’s presence. He was concerned that this was a breach of Clause 10.

7. The publication did not accept a breach of the Editors’ Code. While it accepted that the complainant had been identified in the article, it stated that he was genuinely relevant to the story and had not been referenced unnecessarily: the photographs, including those of  the complainant, illustrated the circumstances of the crime; the complainant – who was a serving police officer – had been present whilst his father was seen driving the cloned vehicle; and had been photographed both entering and sitting in the passenger seat of the vehicle.

8. The publication also denied a breach of Clause 2. It said that the complainant had been photographed in a public place, where there was no reasonable expectation of privacy. It also said that the existence of a familial relationship was not private information.

9. In addition, the publication denied a breach of Clause 10. It said that the complainant’s concerns did not suggest any subterfuge had taken place or clandestine devices used. It said that the fact that the complainant did not observe the photographer did not in itself engage the terms of this Clause.

Relevant Code Provisions

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 9 (Reporting of Crime)*

i) Relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story.

ii) Particular regard should be paid to the potentially vulnerable position of children under the age of 18 who witness, or are victims of, crime. This should not restrict the right to report legal proceedings.

iii) Editors should generally avoid naming children under the age of 18 after arrest for a criminal offence but before they appear in a youth court unless they can show that the individual’s name is already in the public domain, or that the individual (or, if they are under 16, a custodial parent or similarly responsible adult) has given their consent. This does not restrict the right to name juveniles who appear in a crown court, or whose anonymity is lifted.

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 article reported on an investigation by the publication into the conduct of a senior public official. It included the details of the crime to which they had subsequently pleaded guilty to: cloning a vehicle. The complainant had been photographed travelling in the cloned vehicle, with the article naming him and explaining his familial connection to the official. The fact that the complainant had been pictured in public riding as a passenger in the vehicle made him genuinely relevant to the story. As such, identifying him as a relative of the official was not a breach of Clause 9; the complainant was relevant to the story.

11. The Committee next turned to the complainant’s concerns under Clause 2. The published photographs did not show him engaged in a private activity and had been taken in locations where the complainant did not have a reasonable expectation of privacy: entering a vehicle in a public car park; sitting in the passenger seat of a vehicle travelling on a public road; and leaving his family property in view of a public road. The Committee noted that the photograph, in conjunction with the text of the article, had identified the complainant as a relative of the official. However, a familial connection is not generally information in respect of which an individual has a reasonable expectation of privacy. Further, the photographs did not show the complainant engaged in any intrinsically private activity. It also noted that the vehicle’s registration number or type was not information relating to the complainant and which he had an expectation of privacy over; the vehicle belonged to his father. As such, the publication of this information did not therefore represent an intrusion into the complainant’s private life. There was no breach of Clause 2.

12. While the photograph had been taken from a location not obviously visible to the complainant, the photographer had not engaged in misrepresentation or subterfuge, and the camera was not “hidden” within the meaning of Clause 10. There was no breach of the Clause 10.

Conclusion(s)

13. The complaint was not upheld.

Remedial Action Required

14. N/A

Date complaint received: 08/08/22

Date complaint concluded by IPSO: 22/12/22

Independent Complaints Reviewer

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.