11319-22 Maclennan v dailyrecord.co.uk

Decision of the Complaints Committee – 11319-22 Maclennan v dailyrecord.co.uk 

Summary of Complaint

1. Stuart Maclennan complained to the Independent Press Standards Organisation that dailyrecord.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Scots Elvis impersonator took £5k Covid grant despite working full time as cop”, published on 28 November 2021.

2. The headline of the article was followed by the sub-headline: “The PC also broke lockdown rules by performing as Elvis at a 21st birthday party as part of his second job.” The opening sentence reported that a “firm owned” by the complainant received a “£5000 Covid support grant”. It stated that the company – Fresh Entertainments – had received “the cash from a fund for wedding businesses hit by coronavirus restrictions last year” according to public records on the Scottish Enterprise website. The article then said that more “2800 businesses received money from the Scottish wedding industry fund”, adding that the then CEO of the Scottish Enterprise said it “was for small business people” who faced losing their livelihood during the pandemic. It then stated that “[p]eople earning incomes from other work were ineligible for the grant”. The article also included the following comments by an unnamed source: “These loans were for small business owners who were in danger of losing their livelihood. They were not for people who already had well-paid jobs”. Adding: “I don’t think the intention was to line the pocket of people who already had well-paid full-time jobs in the public sector who were not under any threat. It definitely wasn’t supposed to be for people who ignored Covid restrictions and continued to work, so there are questions to be answered.”

3. The article also reported that the complainant – who served as a police officer – had “broke[n] lockdown rules by performing as Elvis at a 21^st birthday party as part of his second job” in June 2022, adding that “two-metre social distancing was not observed at the party, where [the complainant] provided the entertainment”. It reported that the complainant was also “sole director of Companies House-registered Subsafe Audio Ltd, a performing arts and manufacturing business”. The article also reported the area where the complainant was from and said that his “mobile number [was] listed” on the company’s website.

4. The article was accompanied by several photographs of the complainant, including two photographs of the complainant dressed as Elvis Presley and one photograph of him walking down the street.

5. The complainant said that the article was inaccurate in breach of Clause 1. He said that the article inaccurately reported that people earning “incomes from other work were ineligible” to receive the grant from Scottish Enterprise. He said that that while a sole trader would not be entitled to a grant if in full-time employment, this criterion did not apply when a limited company applied for the grant, which were the circumstances in which he had applied. The complainant said that this reference, together with the comments made by the source, suggested that by being in full-time employment he had acted improperly in applying for – and receiving – the grant from Scottish Enterprise on behalf of his company.

6. The complainant also said that the article was inaccurate to report that he had received the grant “for the second job as Elvis impersonator" as the application for the grant was not made as an “Elvis Impersonator” but on the behalf of “Subsafe Audio Ltd t/a Fresh Entertainments”. He said that this company was not a tribute in any way to Elvis Presley.

7. Further, the complainant said that the use of the two photographs which depicted him as an “Elvis impersonator” were misleading; the photographs had been taken several years ago and did not relate to the events referenced in the article.

8. The complainant also expressed concern that he had not been approached for comment in advance of the article’s publication.

9. The complainant also said that the article intruded into his private life, in breach of Clause 2. He said that the photographs had been published without his consent or permission. He said that the third photograph, which had been taken without his knowledge, showed him outside his family home where he had a reasonable expectation of privacy. He said that the publication of this photograph, together with the name of the town, identified where he lived and put him – as a serving police office – at risk. Further, while he accepted that his mobile number appeared on his company’s website, he said that publishing information about where his mobile number could be found online was in breach of his privacy.

10. In addition, the complainant said that he had not seen the photographer outside his family home. He therefore believed that the picture had been taken from a vehicle that had disguised the photographer’s presence. He was concerned that this was a breach of Clause 10.

11. The publication did not accept a breach of the Editors’ Code. It said that Scottish Enterprise had confirmed, in response to the publication’s enquiry prior to the article’s publication on 26 November 2022 – and which specifically identified the complainant and company – that ‘Subsafe Audio Ltd t/a Fresh Entertainments’ had received the grant. The publication said that Scottish Enterprise had also provided a copy of the eligibility question for the grant, which advised: “Please read each eligibility criteria carefully and confirm that it applies to your business” and included, as part of a checklist: “This business is my main income and I have no other full-time employment”. In these circumstances, and where the complainant had made the application on behalf of his company whilst he had been employed full-time by Police Scotland, the publication did not accept that the article was inaccurate or misleading.

12. In addition to contacting Scottish Enterprise, the publication said that it had contacted the complainant's employer – Police Scotland – about the matter prior to the article’s publication on 27 November 2022. It provided this email, which asked both whether the complainant or Police Scotland had any comment. Police Scotland made clear that “any allegation of criminality will be fully investigated”. In addition, the publication said that it had attempted to contact the complainant directly, via telephone – a point that the complainant disputed.

13. Upon receipt of the complaint from IPSO, the publication said that it contacted Scottish Enterprise again, who confirmed that the information it had provided prior to the article’s publication was accurate. In response, Scottish Enterprise also confirmed that Police Scotland concluded following a review of the case there was “no evidence to substantiate any criminal conduct” on the complainant’s behalf and that the matter was closed. Following this, and in an effort to resolve the matter, the publication offered to amend the online article and publish the following clarification:

Clarification: The previous version of this article stated that people earning incomes from other work were ineligible for the Scottish Wedding Industry Fund grant. In fact, the eligibility criteria stated that applicants were required to confirm that the business was their main income and they had no other full-time employment. We are happy to clarify this.”

14. The complainant did not accept this as a resolution to his complaint: he requested the removal of the online article. Further, the complainant said that the eligibility criteria actually stated that in order to be eligible that the business should “[b]e your main income (if you’re a sole trader). People with full-time employment who occasionally provide products or services to the wedding industry will not be eligible”. He said that, as he was applying on the behalf of a Limited company and not as a “sole trader”, the provision relating to full-time employment did not apply. He reiterated his position that ‘Subsafe Audio t/a Fresh Entertainments’ was the recipient of the grant and that the company met the necessary requirements: its main income was from the wedding industry and had no other income or employment.

15. The publication did not consider it was appropriate to remove the online article. The publication maintained that its report was accurate, noting that the article did not refer to the complainant as a sole trader. It also noted that the eligibility criteria wording provided by the complainant differed from the wording provided by Scottish Enterprise, which made no reference to whether the party was a sole trader or another legal body. However, as a gesture of goodwill, and in light of the complainant’s concerns, the publication said it would add an explanatory note to the article, making clear that the complainant had since advised that he made the application as a limited company, as he was entitled to do so.

16. Turning to the complainant’s other concerns under Clause 1, the publication said the headline was supported by the text of the article: the complainant had a documented history of impersonating Elvis to entertain guests at parties via his business – Subsafe Audio Ltd t/a Fresh Entertainments – for which he was the sole director, shareholder, and employee. It added that the images – depicting the complainant as Elvis – were used for illustrative purposes and were relevant the story: performance entertainment by the complainant had breached lockdown rules during the pandemic.

17. The publication also denied a breach of Clause 2. It said that the first two images of the complainant were sourced from publicly available websites. In relation to the third image, it said that the complainant had been photographed on a public street, where he had no reasonable expectation of privacy. It also said that the article did not identify or specify his full address, only the town where he lived. Further, it noted that that the complainant’s mobile telephone number appeared on his company’s website and as such was already in the public domain.

18. 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 Clause 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

19. The headline of the online article made the clear assertion that “despite working full time” as a police officer the complainant had obtained a “5k” grant from Scottish Enterprise. The opening paragraph of the article specified that it was the company “owned” by the complainant that had received this grant: he was identified as the only source of alleged wrongdoing in the article and he was the sole director of the business.

20. The Committee noted the steps taken by the publication prior to the article’s publication. It had established that the complainant’s company had received a grant from Scottish Enterprise; the complainant was the sole director of the business and had submitted its application for the grant; and the complainant was employed full-time by Police Scotland. Further, it had been provided with the eligibility criteria for this grant by Scottish Enterprise, which specified that claimants needed to confirm the business was their “main income” and had “no other full-time employment”. The publication also contacted Scottish Enterprise and, Police Scotland. It also claimed to have contacted the complainant for comment prior to the article’s publication – although the complainant disputed this. In such circumstances, the Committee considered that publication had taken sufficient care not to publish inaccurate or misleading information, and there was no breach of Clause 1 (i).

21. However, it had later become evident that the eligibility criteria required by Scottish Enterprise was potentially more complex than initially suggested and that Police Scotland had stated there was no evidence of criminal conduct. While the text of the article made no reference to the company’s business structure – except that the complainant was its sole director – the article gave the misleading impression that the complainant had been obtained funding he was ineligible for which the publication, ultimately, could not show to be the case. This was serious, relating directly to the conduct of the complainant and his company. As such, the article required correction under the terms of Clause 1(ii). While the Committee recognised the efforts by the newspaper to resolve this matter, it did not consider that the newspaper adequately addressed or corrected the misleading impression created by the article. As such, there was a breach of Clause 1(ii).

22. The Committee next considered the complainant’s concerns regarding the article’s references to Elvis Presley and its inclusion of two photographs depicting the complainant as the famous American singer. In circumstances where the complainant had been found guilty of breaching lockdown rules by performing at a birthday celebration and where he had previously impersonated Elvis Presley to entertain guests, the Committee did not consider that the article was significantly inaccurate or misleading on these points. There was no breach of Clause 1.

23. The Committee next turned to the complainant’s concerns under Clause 2. The published photographs did not show the complainant engaged in intrinsically private activities. The first two images were sourced from publicly available website, and showed the complainant in a professional, rather than private, capacity and context: performing as an Elvis impersonator. Further, the third photograph revealed only the complainant’s likeness and had been taken in a location where the complainant did not have a reasonable expectation of privacy: a public road. 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.

24. The complainant said that the article also breached Clause 2 by revealing his address. The Committee noted that someone’s address is not generally private information. In this case, the complainant’s full address had not been reported. Rather, the article named the town in which he lived and for which the complainant did not have a reasonable expectation of privacy over. The Committee did not consider that the article contained sufficient information to identify the precise location of his home. Nor did it consider that the complainant’s home was identifiable from the photograph. As such, there was no breach of Clause 2 on this point.

25. The Committee next considered the complainant’s concerns in relation to his mobile telephone number – the article had stated that it was “listed” on his company’s website. Under the terms of Clause 2, the Committee takes account of a complainant’s own public disclosures of information, and the extent to which information is established in the public domain. In this case, it was accepted that the number had been published on the complainant’s company website prior to the article’s publication, and that the number had not appeared within the article. In these circumstances, where the complainant had publicly disclosed the information – including within a professional context – the Committee concluded that the publication of this information did not represent an intrusion into the complainant’s private life. There was no breach of Clause 2.

26. Though 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)

27. The complaint was upheld in part under Clause 1.

Remedial action required

28. Having partially upheld a breach of Clause 1 (ii), 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 an adjudication, the terms and placement of which is determined by IPSO.

29. The Committee found that the publication had published misleading information. While the clarifications offered by the newspaper had been inadequate, it had shown a willingness to resolve the complaint and correct the matter. Therefore, on balance, the Committee considered that the appropriate remedy was the publication of a correction which made clear that the complainant had not applied for the grant in a personal capacity, and the publication had been unable to substantiate the specific allegation that the company’s application did not fulfil the eligibility criteria required by Scottish Enterprise.

30. The Committee then considered the placement of this correction. As the inaccuracy had appeared in the headline, the correction should appear as a standalone correction in the publication’s online Corrections and Clarification’s column. It should also appear beneath the headline should it remain unamended. If, however, the text of the article is amended this correction may appear as a footnote, recording the alternations made. The wording of this correction should be agreed with IPSO in advance and should make clear that it had been published following an upheld ruling.

 

Date complaint received:  08/08/2022

Date complaint concluded by IPSO:  01/03/2023

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