Decision of the Complaints Committee 11533-16 Miller v Mail Online
Summary of complaint
1. Gina Miller complained to the Independent Press Standards Organisation that the Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 12 (Discrimination) of the Editors’ Code of Practice in relation to articles headlined “The South-American born former model and her “arrogant” bid to derail Britain’s democracy: Wealthy investment fund manager is behind landmark legal bid to block Brexit being triggered”, published on 13 October 2016, “Wife of Mr Hedge Fund wins massive Brexit victory a decade after he lost £5m in divorce payout when his lawyer said 'it'd be cheaper to run over' his previous partner”, published on 3 November 2016, “KATIE HOPKINS: Three judges think they know better than the British voters – but will MPs be so brave? Bring it on Theresa and DARE them to defy the will of the people”, published on 3 November 2016, and in relation to user-generated content on an article headlined “Mrs Hedge Fund, a £5m Divorce and a Touch of Jackie Collins”, published on 4 November 2016”.
2. The articles concerned the complainant’s Article 50 legal challenge. The 13 October article was published when those proceedings were heard in the High Court. It provided details about that hearing, and details of the complainant’s life and background: it described her as “wealthy”, noted that she is a “former model” who is “married to a multi-millionaire fund manager”, and founder of an investment firm herself. In a panel headed “Who is bringing the challenge? Former model Gina Miller is married to a multi-millionaire who was involved in one of Britain’s fiercest divorces”, it described her as “glamorous, Guyanan-born Gina Miller” and reviewed her professional history, previous public comments she has made on topical issues, and a legal case involving her husband.
3. The 3 November column was published on the day the High Court handed down its ruling, in favour of the complainant. It denounced the decision as a “court judgment by three old men in fancy dress, argued by lawyers paid for by the wife of a hedge funder, applauded by wealthy remoaners”, and referred to those involved as “filthy individuals”, “the Establishment”, and “clever people who think they are paid to have power”. It described the complainant as “the woman with the cash” and a “Guyanan-born wife of a multi-millionaire, laughing in the faces of ordinary Brits”.
4. The final article, also published on 3 November, reported on the complainant’s success in the High Court, and included a lengthy professional and personal profile of the complainant, including her childhood, education, career, previous marriage, children and previous campaigning. It described her as the “wife of a millionaire financier nicknamed ‘Mr Hedge Fund’, and a “glamorous, feisty and impeccably well-connected, South American-born former model” and a “Guyanan-born ex-model”. It also quoted “friends” describing her as “sharp-witted” and a “natural fighter”, and reproduced tweets from “fans” calling her a “hero”.
5. The article published on 4 November was the online version of a Daily Mail article. As such, the Daily Mail was responsible for its editorial content, but as the operator of the website, readers’ comments fell within the remit of Mail Online.
6. The complainant said that the reference to her as “Guyanan-born” was discriminatory, in breach of Clause 12 (i) and Clause 12 (ii). She said that the Code is to be taken in the full spirit in which it was intended. While Clause 12 does not explicitly refer to nationality, it was engaged in this case. In any event, the complainant said that by referring to her as “Guyanan-born”, the publication was also referring to her race and colour. In support of this position, she noted that white people represented 0.06% of Guyana’s population. The complainant said that her place of birth was not relevant to any debate about the EU, and that these references therefore represented a breach of Clause 12 (ii). She said that the references to her place of birth were prejudicial and pejorative references to her race and colour, in breach of Clause 12 (i).
7. The complainant said that she came to the UK when she was ten years old, and that she was a British citizen. She said that the articles’ emphasis on her place of birth, without reference to her British citizenship, suggested that she was a foreigner, at odds with the British people. She said that this was misleading, in breach of Clause 1.
8. The complainant said that the four articles incited a large number of readers’ comments which discriminated against her on the grounds of her race, colour and sex. She said that where these comments contained explicit threats to her life, they represented a risk to her personal security, such that her movements were curtailed. She said that this impacted on her private life, in breach of Clause 2.
9. The publication said that the complainant was a central figure in a controversial legal action. The public had a right to information about her background, and to comment on her role the case. It said that an individual’s place of birth is not a protected characteristic under the Code, and the complainant’s assertion that the reference to her place of birth was a proxy reference to her race or colour was tenuous. It noted that there were a number of ethnic groups that make up the population of Guyana, none of which made up the overall majority. The publication said that one of the central issues in the referendum campaign was the free movement of people. The fact that the person leading the opposition to the referendum result was born outside of the UK was genuinely relevant. The publication noted that on the website of the complainant’s True and Fair Foundation, her biography referred to her as having grown up in Guyana, and that she had referred to her place of birth in a number of interviews.
10. The publication said that the readers’ comments on the articles under complaint were not moderated. It said that when it was alerted to the complainant’s concerns, it removed the comments in question. It said that the comments therefore fell outside of IPSO’s remit.
11. The complainant said that the publication was first put on notice of her concerns about the readers’ comments in a legal letter, sent to the Daily Mail, prior to her complaint to IPSO. In this letter, her representatives requested that certain comments be removed, and that the publication check for any others. In response to this legal letter, the comments identified in the letter were removed. However, the complainant said that the legal letter had the effect of placing the publication on notice of the readers’ comments which she subsequently identified in her IPSO complaint. The comments therefore fell within IPSO’s remit.
12. The publication said that the legal letter was directed at the Daily Mail, rather than Mail Online, and that it had not had sight of this before it received the IPSO complaint. It had simply been asked by the Daily Mail to remove certain readers’ comments from the online version of the newspaper’s article, which it did. By this time, the article was no longer accepting any further readers’ comments, and the publication said it therefore had no reason to believe that any further action was necessary.
Relevant Code provisions
13. 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 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
14. The Committee noted the complainant’s argument that, if taken in the spirit in which it was intended, nationality should be included in the characteristics covered by Clause 12. The preamble to the Code states that the Code “should be honoured not only to the letter, but in the full spirit”, and that it should not be interpreted “so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it infringes the fundamental right to freedom of expression”. However, Clause 12 contains a specific list of characteristics to which it provides protection, which has been revised over time, as the Code has been reviewed and updated. This list of characteristics does not include nationality.
15. While nationality is not a characteristic listed in Clause 12, a prejudicial or pejorative reference to an individual’s race or colour could be made by reference to nationality, and therefore such references should always be considered in their specific context.
16. All three of the articles under complaint, and in particular the column of 3 November, included criticism of the complainant. The Committee considered carefully whether the references to her as “South-American born” and “Guyanan born” had been employed in this context as a pejorative reference to her race or colour.
17. The two news articles under complaint had included extensive biographical information about the complainant, much of it focussed on her financial position. Debates around national identity figured prominently in the EU referendum campaign, and the fact that the complainant was born abroad was therefore relevant to coverage of her role as the lead claimant in the Article 50 legal challenge.
18. The 3 November article, which described the complainant in extremely pejorative terms as “laughing in the faces of ordinary Brits”, did so in the context of its vitriolic criticism of all of those concerned with the judgment, who the columnist portrayed as elitist and detached from the general public.
19. Having considered the coverage in detail, the Committee did not find that there was any basis to conclude that as part of a broader catalogue of criticisms which sought to undermine the complainant's position, the references to the complainant as Guyanan- or South American-born constituted references to her race or colour, so as to engage the terms of Clause 12. In some instances, this information was included as part of general biographical information about the complainant; in other instances, where her original connection to another country was referred to in a pejorative context, it formed part of a broader narrative which sought to criticise the complainant more generally as being unrepresentative of the British public. There was no breach of Clause 12.
20. In the context of the articles, the references to the complainant being born in Guyana, “Guyanan-born”, or “South-American born”, did not imply that she was not a British citizen. The lack of an explicit reference to the complainant’s status as a British citizen was not significantly misleading. This aspect of the complaint did not raise a breach of Clause 1.
21. The Committee noted the complainant’s concerns about the readers’ comment posted beneath the online article. User-generated material, such as readers’ comments, fall within IPSO’s remit when they have been reviewed or moderated. In this case, the comments had not been ‘pre-moderated’. The complainant first raised concerns about specific readers’ comments in a legal letter to the editor in chief of DMG media, and the head of editorial legal services. The concerns raised in the correspondence related to the operation of Mail Online, and the Committee rejected the publication’s argument that it was not a party to this correspondence. Nevertheless, following this initial correspondence, it removed the specific comments to which the complainant objected and notified the complainant that it had done so. When, in her IPSO complaint, the complainant specified further comments to which she objected, they were promptly removed by the publication. The publication did not therefore publish any of the comments complained about after it had reviewed or moderated them. These comments therefore fell outside IPSO’s remit.
22. The complaint was not upheld.
Remedial Action required
Date complaint received: 30/11/2016
Date complaint concluded 25/04/2017
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