Decision
of the Complaints Committee – 11471-21 Phillips v Mail Online
Summary
of Complaint
1. Zoe
Phillips complained to the Independent Press Standards Organisation that Mail
Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment),
Clause 4 (Intrusion into grief or shock), Clause 10 (Clandestine devices and
subterfuge), Clause 12 (Discrimination), Clause 14 (Confidential sources), and
Clause 15 (Witness payments to criminal trials)
of the Editors’ Code of Practice in an article headlined “Businesswoman,
53, who claims she was 'pushed' by her lawyer to admit harassing MoD worker
ex-lover and his fiancée weeps in court as she is refused permission to change
her plea”, published on 17 May 2021.
2. The
article, which appeared online only, reported on a Magistrates’ Court hearing
involving the complainant. It said that she “had admitted two counts of
harassment without violence last July and was sentenced to a 12 month community
order, but now claims she is ‘not guilty’ and ‘never has been’.” It then
reported that she had “bombarded her ex-lover and his fiancée with messages
after he announced their engagement”. The article said that at a sentencing
hearing previously the Magistrates Court “heard that following the end of [a]
relationship [the complainant] went to [the victim’s] workplace and fired off
messages to her company email account after ‘following [another victim] around
all evening’ at a charity ball”; and referred to what “Prosecutor Johnathan
Bryan earlier told the court”. It also stated that the complainant had “posted
a selfie outside of [the victim’s] family castle”.
3. The
article then went on to report that the complainant, a “brand manager for
Nestle and Biogen […] broke down in tears while she maintained her innocence”.
It also said that, when the two victims had “announced their engagement in the
Telegraph newspaper, [the complainant] commented on the piece on the website”
and that she had “threatened to kill herself” after the end of a relationship.
The article also included two photographs: one showing the complainant on a
public street, and another showing a woman – who the caption referred to as the
complainant – wearing a mask, sunglasses, and a headscarf.
4. The
article also included a statement from one of the victims which it said had
been read at the sentencing hearing, in which he had said: “’She infiltrated my
social circle and manipulated my friends in order to get to me. This has
negatively impacted every aspect of my life. It also included comments from
another victim, who was reported to have said: “It has led me to lock all of
the doors and check under the car. She systematically made it her mission to
force herself into our lives, this was unasked for and unwanted. She has
written a number of times how she’s going to turn up. What she will do next is
the question spinning in my mind almost all the time.’” It also said that the
complainant had contacted a man “on Facebook after the victim blocked her on
social media”.
5. The
complainant raised a number of concerns of inaccuracy relating to: what the
article claimed had happened during the hearing itself; details of the crime to
which she had pleaded guilty; details about the victims and witnesses, as well
as their witness statements; and photographs which accompanied the
articles. She first noted that she had
not cried during the hearing which the article reported on, and therefore it
could not be accurate to state that she had “w[ept] in court” or that she
“broke down in tears”. She also said that the prosecutor during the court
hearing had been a woman, while the article referred to them using a man’s
name.
6. The
complainant said that the article inaccurately reported on her circumstances
and raised concerns about the photographs accompanying the articles. She said
that she was not a “wealthy businesswoman”, and – although she had worked for
Nestle and Biogen as a contractor – she was not employed by these companies,
and therefore it was inaccurate to refer to her as a “brand manager for Nestle
and Biogen”. Turning to the photographs which accompanied the article, she said
that she did not consider the photograph of a woman in a headscarf to be
accurate – although she could not say with certainty that it wasn’t her. She
also said that the photograph which definitely showed her breached Clause 1, as
it showed her rushing to an appointment.
7. The
complainant also said that the article had inaccurately reported details about
the victims and witnesses. She said that the article was inaccurate as the two
victims had not become engaged until 2020, and were not engaged when they had
contacted the police. She then said that the article breached Clause 1 by
including subjective witness statements which had not been independently proven
by CCTV, and by not referring to allegations about one of the victims which she
had made in court. She also said that there were no journalists present in the
courtroom at the time of the hearing; therefore, the article could not be said
to be an accurate report of the court proceedings in question. She also said
that, as a “castle” was not specifically referenced during the proceedings, it
was inaccurate for the article to refer to a castle. Finally, she said that the
article had inaccurately quoted a witness, as he had not spoken in court; this
was the man who the article said the complainant had contacted “on Facebook
after the victim blocked her on social media”.
8. The
complainant said that the inclusion of her age, address, companies she had
worked for, and a photograph of her intruded into her privacy in breach of
Clause 2.
9. The
complainant also said that she had been pursued and photographed by the press
on 12 March 2020, 2 July 2020, and 17 December 2020 in a manner which she
considered breached Clause 2, Clause 3, and Clause 10. She also said that the
article itself was not compliant with the terms of Clause 3.
10.
Turning to Clause 4, the complainant said that this Clause had been breached as
she considered the article did not report on her legal proceedings with
sensitivity, where she had other ongoing legal proceedings which had caused her
grief and shock. She also said that the article included gratuitous detail;
namely, the colour and style of suit she had worn to earlier court proceedings.
She then said that Clause 10 had been breached, as she considered that the
publication had engaged in subterfuge to misrepresent her.
11. The
complainant also said that Clause 12 had been breached, as it referred to her
as a “wealthy businesswoman”, and this would lead to subconscious bias on the
part of the reader. She also considered that the article inferred that she was
“mentally unstable”, in breach of Clause 12. Turning next to Clause 14 and 15,
she said that these Clauses had been breached where, respectively, she
considered the publication had a moral obligation to protect the sworn
statements of witnesses, and she believed that witnesses may have been paid to
provide information to the newspaper.
12. The
complainant also expressed concerns that she had been unable to respond to
“trolling” and one-sided comments beneath the article, though she did not say
that the comments themselves breached the Editors’ Code.
13. The
complainant first called the publication to discuss her concerns. In an email
following the phone call, send on 15 November 2021, the publication told the
complainant that they couldn’t comment on the court case “save to say [we]
appreciate it must be of source of huge anxiety for you”. It then changed the
article by: altering the headline to remove the reference to the complainant
“weep[ing] in court”; adding a reference to the complainant speaking in court
“on Friday (14 May)”; altering
“Prosecutor Johnathan Bryan earlier told the court” to “previously told
the court”; and removing the photograph of the woman in the headscarf and mask.
14. The
publication said it did not accept that the Code had been breached, and said
that it was its firm position that the article was an accurate representation
of the court hearing. It emphasised that information heard during court
proceedings is placed into the public domain and may be reported on. To support
its position that the article was an accurate report of court proceedings, it
provided contemporaneous reporter’s notes, as well as correspondence from the
agency reporter, affirming that he had been in court and had seen the
complainant crying: he said that there were tears in her eyes; her voice broke
as she spoke; that the Judge in the case had said to her that they “realise[d]
the depth of feeling”; and that she “was without a doubt very emotionally
distressed”.
15.
Nevertheless, it said it would be happy to further amend the article to make
clear that the complainant was not directly employed by Nestle or Biogen,
notwithstanding the fact that it did not consider this to be a significant
inaccuracy in need of correction.
16.
Turning to the complainant’s Clause 2 concerns, it said that the complainant’s
age, name, and description of attire worn to court would not be considered to
be private information, and that the photographs included in the article were
taken outside of court, in a location readily accessible to the public. In such
circumstances, the publication did not accept that the complainant had a
reasonable expectation of privacy over either the information included in the
article or the photographs. It also noted that taking photographs of
individuals outside of court would not be considered harassment as defined by
Clause 3.
17. The
publication did not consider Clause 4 to be engaged, where the report related
to a court case rather than a case of grief or shock. It also said that, in
circumstances where no one at the publication had approached the complainant in
relation to the story, it could not be said that a journalist working on behalf
of the publication had engaged in subterfuge or misrepresentation; the
publication had simply published a contemporaneous report of legal proceedings.
18. The
publication also said that publishing a general description of the
complainant’s circumstances could not be said to be discriminatory in breach of
Clause 12. It noted that the terms of Clause 12 relate to references to
protected characteristics of individuals which could be said to be irrelevant,
prejudicial or pejorative, and the article included no such reference. It then
noted that Clause 14 could not be engaged, where the article was not based on
any information from confidential sources, but rather a public court hearing.
Finally, it said that Clause 15 was not engaged, where the publication had not
paid any persons related to the court proceedings which the article reported
on.
19. In
response, the complainant reiterated her position that no reporter was present
on the court date referred to. She also said that the article was inaccurate as
it implied that the date of the court hearing was the 17th of May 2021 (the
date of publication), when it was in fact held on the 14th of May 2021. She
then said that it was not heard in court on 14 May 2021 that she had threatened
to commit suicide – instead, it was an allegation taken from one of the victim’s
witness statements – and that it was irresponsible for the newspaper to report
this. Finally, she said that the article also inaccurately reported her age,
and that she was 54 at the time of the hearing – rather than 53, as reported by
the article.
20. The
publication said it did not consider the article to be inaccurate to refer to
the complainant threatening to commit suicide, where this was referred to
during court proceedings by a prosecutor. It also said that it did not consider
it to be significantly inaccurate to report that the complainant was 53, rather
than 54, as this information did not alter the crux of the story.
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 3
(Harassment)*
i)
Journalists must not engage in intimidation, harassment or persistent pursuit.
ii) They
must not persist in questioning, telephoning, pursuing or photographing
individuals once asked to desist; nor remain on property when asked to leave
and must not follow them. If requested, they must identify themselves and whom
they represent.
iii) Editors must ensure these principles are
observed by those working for them and take care not to use non-compliant
material from other sources.
Clause 4
(Intrusion into grief or shock)
In cases
involving personal grief or shock, enquiries and approaches must be made with
sympathy and discretion and publication handled sensitively. These provisions
should not restrict the right to report legal proceedings.
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.
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.
Clause
14 (Confidential sources)
Journalists
have a moral obligation to protect confidential sources of information.
Clause
15 (Witness payments to criminal trials)
i) No
payment or offer of payment to a witness – or any person who may reasonably be
expected to be called as a witness – should be made in any case once
proceedings are active as defined by the Contempt of Court Act 1981. This
prohibition lasts until the suspect has been freed unconditionally by police
without charge or bail or the proceedings are otherwise discontinued; or has
entered a guilty plea to the court; or, in the event of a not guilty plea, the
court has announced its verdict.
*ii)
Where proceedings are not yet active but are likely and foreseeable, editors
must not make or offer payment to any person who may reasonably be expected to
be called as a witness, unless the information concerned ought demonstrably to
be published in the public interest and there is an over-riding need to make or promise payment for this to be done;
and all reasonable steps have been taken to ensure no financial dealings influence the evidence
those witnesses give. In no circumstances should such payment be conditional on
the outcome of a trial.
*iii)
Any payment or offer of payment made to a person later cited to give evidence
in proceedings must be disclosed to the prosecution and defence. The witness
must be advised of this requirement.
Findings
of the Committee
21. The
complainant had said that, as to the best of her knowledge, there were no
journalists at the hearing, the article could not be an accurate report of the
hearing. The Committee noted that this point raised a discrepancy between the
complainant’s position and the publication’s position, where the publication
stated that a journalist had been present in the courtroom. However, the
publication had been able to provide contemporaneous reporter’s notes and the
Committee was therefore satisfied that it had demonstrated that sufficient care
had been taken over the accuracy of the information heard at the hearing. The
Committee noted that the publication had been able to provide contemporaneous
shorthand notes of the hearing, which referred to the complainant crying; it
had therefore taken care not to publish inaccurate information with regard to
this point, and the notes recorded the reporter’s observations of the
proceedings they were present for. In addition, the Committee noted that the
notes provided by the publication included a reference to the judge recognising
the complainant’s “depth of feeling”. There was therefore no breach of Clause 1
on this point.
22. The
article did not state that the victims had become engaged prior to 2020,
therefore the article was not inaccurate in the way the complainant suggested
on this point. The Committee also noted that there was no obligation under
Clause 1 for the article to include everything that was heard in court, as long
as omitting information did not render article inaccurate, misleading, or
distorted. In this instance, the Committee did not consider that omitting
allegations made by the complainant in court rendered the article inaccurate,
misleading, or distorted, where omitting the information did not render the
crux of the article – that the complainant had been denied permission to change
her plea – inaccurate. There was no breach of Clause 1 on these points
23. The Committee then noted that, while the
focus of the article was the reporting of the hearing in which the complainant
requested to change her plea, it referred to the previous sentencing hearing to
provide context. The fact that a previous court hearing was at times being
referred to was made clear by way of a reference to the “sentencing hearing
last year” preceding comments from the victim and the male prosecutor. The
complainant did not appear to dispute that the prosecutor at this prior hearing
was male. The publication was entitled to refer to matters heard in court
previously, including witness statements read out in those proceedings. There
was no breach of Clause 1 on these points.
24. The
article under complaint did not refer to the complainant as a “wealthy
businesswoman”, therefore there was no possible breach of Clause 1 on this
point raised by the complainant. Turning to the question of whether the article
was significantly inaccurate in its reference to the complainant being a “brand
manager for Nestle and Biogen”, where she said she was a contractor and was not
directly employed by these companies, the Committee noted that it was not in
dispute that the complainant had performed work for these companies on a paid
basis. In such circumstances, it was not inaccurate to describe the complainant
in these terms.
25. The
complainant could not say with certainty that the photograph which accompanied
the original version of the article, showing a woman in a headscarf and mask,
was not her. In any event, the article was also accompanied by a photograph of
the complainant that was not in dispute, and people would not be misled as to
her appearance. The Committee also did not consider that it was inaccurate to
include a photograph of the complainant on her way to appointment, where she
did not dispute that this picture showed her rather than another individual.
26. The
Committee, furthermore, did not consider that it was significantly inaccurate,
distorted, or misleading to refer to the complainant having “posted a selfie
outside of [the victim’s] family castle”, where she did not dispute that she
had taken a selfie outside of the home in question. The Committee also noted
that the article did not claim that the home had been described as a “castle”
during court proceedings, and that the complainant did not dispute that the
home could accurately be described as a castle. While the article had been
published on 17 May 2021, it did not state that the hearing had taken place on
this date and the amended version of the article made clear the exact date of
the hearing: 14 May 2021. There was no inaccuracy in relation to the date of
the hearing. The article under complaint also didn’t include a quote from the
witness the complainant had referred to; rather, it referred to the complainant
having “contacted [him] on Facebook”, which the complainant did not dispute.
There was no breach of Clause 1 on this point.
27. The
Committee noted that both parties were in agreement that the article had
incorrectly reported the complainant’s age, and that she was in fact 54 rather
than 53. However, in circumstances where the article also included the
complainant’s name, photograph, and a summary of the crimes for which she was
convicted, a discrepancy of one year did not constitute a significant
inaccuracy: it did not affect the accuracy of the thrust of the article, and it
was unlikely to result in her misidentification. In addition, the complainant
did not dispute that a witness statement which was referred to during court
proceedings referred to her having threatened to commit suicide, and the
publication was allowed to refer to this; it was not responsible for the
accuracy of what was heard and introduced in court, only for ensuring that the
information was reported accurately. There was no breach of Clause 1 on these
points.
28.
Turning to the complainant’s Clause 2 concerns, the Committee noted that the
complainant’s age and address would generally have been heard in court.
Newspapers are allowed to report information which is heard in open court, and
doing so did not represent an intrusion into the complainant’s private life. In addition, reporting on companies which the
complainant had worked for did not represent an intrusion into the
complainant’s private or family life. There was no breach of Clause 2 on these
points.
29. The photograph included in the article clearly
showed the complainant on a public street, and did not reveal anything about
her beyond her likeness; it served to identify her as involved in the
proceedings, which was a matter of public record. In such circumstances the
Committee did not consider that the complainant had a reasonable expectation of
privacy over the photograph, and did not find a breach of Clause 2 on this
point.
30. IPSO
can accept complaints about the behaviour of photographers provided the
complaint is made within 4 months – either to the publication or directly to
IPSO – of the behaviour complained of. While the Committee understood the
complainant had concerns over the behaviour of journalists who had photographed
her, it noted that these alleged incidents had occurred at least 11 months
prior to the complainant contacting the newspaper with their concerns. The
Committee was therefore unable to determine whether these alleged approaches
raised a breach of the Editors’ Code, where they were out of time and therefore
outside of IPSO’s remit.
31. The
complainant had also said that the article was harassing in breach of Clause 3.
Generally, Clause 3 is engaged by approaches by journalists, rather than
material which complainants consider to be offensive or objectionable. This was
a report of court proceedings brought by the complainant, and the Committee did
not consider that the complainant’s concerns raised a possible breach of Clause
3.
32. The terms of Clause 4 make clear that it
should not restrict the right to report on legal proceedings. In addition, the
article reported on a court hearing, and did not involve a case of the
complainant’s personal grief or shock; rather, it was a hearing pertaining to
the complainant’s conviction. While the Committee acknowledged that the
complainant found the experience upsetting, in such circumstances, the
Committee did not consider that the terms of Clause 4 had been breached.
33.
While the complainant considered that the article misrepresented her, there was
no suggestion that anyone working for the publication had engaged in subterfuge
to obtain the information heard in the article. The terms of Clause 10 were
therefore not engaged.
34. The terms of Clause 12 make clear that it
relates only to prejudicial, pejorative, or irrelevant references to an
individual’s race, colour, religion, gender identity, sexual orientation,
physical or mental illness or disability. The complainant said that the article
had referred to her as a “wealthy businesswoman” in breach of this Clause.
However, the Committee noted that the article under complaint did not contain
any such reference, and that being wealthy was not, in any case, a characteristic
protected by the Clause. The complainant had also said that the article
breached Clause 12, as she considered the article inferred she was “mentally
unstable”. The Committee understood that the complainant considered to article
discriminatory on this point, however it noted that the terms of the Clause
relate to specific references, rather than inferences. Upon reviewing the
article, the Committee did not identify any references to the complainant’s
health, and therefore there was no breach of Clause 12 on this point.
35. The
complainant was not acting as a confidential source of information from the
newspaper, and the publication was allowed to refer to witness statements which
had been introduced as evidence in an open court. In such circumstances, the
complainant’s concerns did not represent a breach of Clause 14.
36.
While the complainant had speculated that the publication had paid witnesses in
breach of Clause 15, she had not provided any information to support her
speculation on this point, and the Committee noted that the information in the
article had been heard in open court. The Committee did therefore not consider
that there was any basis for finding that the publication had made payments to
witnesses in a criminal trial, and did not find a breach of Clause 15.
37.
Regarding the complainant’s concerns that she was not able to respond to what
she considered to be “trolling” comments, the Committee noted that there is no
requirement within the Editors’ Code to allow readers to comment in response to
articles. In addition, while the Committee noted that the complainant found the
comments to be offensive and amount to trolling, the Editors’ Code does not
address issues of taste or offence. Therefore, while the Committee understood that
the complainant found the comments to be offensive, this concern did not raise
a breach of the Editors’ Code.
Conclusion(s)
38. The
complaint was not upheld.
Remedial
Action Required
39. N/A
Date
complaint received: 23/11/2021
Date
complaint concluded by IPSO: 06/06/2022
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.
Back to ruling listing