11546-16 Miller v Daily Express

Decision of the Complaints Committee 11546-16 Miller v Daily Express

Summary of complaint

1. Gina Miller complained to the Independent Press Standards Organisation that the Daily Express breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 12 (Discrimination) of the Editors’ Code of Practice in relation to an article headlined “We must get out of the EU”, published on 4 November 2016. The article was also published online with the headline “After judges' Brexit block now your country really needs you: We MUST get out of the EU”.

2. The article reported on the complainant’s Article 50 legal challenge. It was published the day after the High Court handed down its judgment in favour of the complainant, who was the lead claimant in the case.

3. The article was presented as an editorial that described the decision as a “crisis as grave as anything since the dark days when Churchill vowed we would fight them on the beaches” and a “shattering blow for the cherished concept that the ballot box reigns supreme”. It described the referendum result as “a popular revolt against the elitists who deem we are too stupid to know what’s best for us”, and the judgment as a decision by the “the highest legal minds in the land […] to hand back to that Westminster cabal the very power the people believe they should not be trusted with”. It described the complainant as “a woman who makes no secret of her bias towards all things European but tries to cloak it in the pretence that she is acting for the greater good of the British constitution” and described the result of the case as “the Guyana-born former model […] convincing the courts that the votes of 17, 410,742 British people in the referendum do not count”. The article contained further criticism of the complainant’s claim to have taken court action “for reasons of process, not politics”.  It claimed that “as a fabulously wealthy investment manager in the City, she and her husband have millions at stake”, and claimed that this would explain her belief that “we owe it to Europe not to rock the boat”.

4. The article claimed that “the rich and powerful want to dictate to the peasants again”, and appealed to readers to lobby their MPs on their vote on the issue. It said that “some of them may howl that this is political blackmail, that it is unconstitutional and undemocratic. It cannot be any worse than the way a South American millionairess nicknamed “Mrs Wham Glam” by her friends had ridden roughshod over British voters”.

5. The online version of the article was substantially similar to the print version, except that it was accompanied by a slideshow headlined “Who is Gina Miller?”. The slideshow contained a number of images of the complainant, with captions containing biographical details. The caption to one image was “Born in Guyana, she grew up in Britain and is now based in London where she works for SCM Private, the firm she co-founded in 2014.”

6. The complainant said that she has lived in the UK since a young age, and is a British citizen. She said that the article omitted details of her British citizenship, and juxtaposed the fact that she is “Guyana-born”, with “the votes of 17,410,742 British people”. She said that this presented her as a foreigner, and was misleading. She said that her legal claim challenged the Government’s power to trigger the mechanism by which the UK is to leave the EU without Parliamentary approval. It was therefore inaccurate to claim that the case was about “convincing courts that the votes of the British people in the referendum do not count”. She said that the newspaper failed to distinguish between factual reporting and its editorial position on exiting the EU.

7. The complainant 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 “Guyana-born”, the publication was also referring to her race and colour. In support of this position, she noted that white people represented a very small proportion of Guyana’s population.

8. During her complaint to IPSO, the complainant raised concern about a number of readers’ comments on the article. She said that these comments contained inaccuracies. She said that they contained threats, which caused her to fear for her safety, and had an impact on her private life. She said that they contained highly pejorative references to her place of birth, her colour and her gender.

9. The newspaper said that it was true that the complainant was born in Guyana, and denied that the article was inaccurate in reporting this fact. It said that the phrase “will of the British people” had been in common usage to describe those wanting to leave the EU since the announcement of a referendum. It denied that it suggested that the complainant was distinct from the British people because she was born in Guyana. The newspaper said that its description of the complainant’s legal action was not significantly inaccurate.

10. The newspaper said that the terms of Clause 12 are designed to protect individuals against discrimination on the basis of race and colour, amongst other characteristics. It said that the article did not refer to any of these characteristics of the complainant.

11. The newspaper denied that the reference to the fact the complainant was born in Guyana was a reference to her race, and noted that Guyana was ethnically diverse. The newspaper said that information about the complainant’s place of birth would have been reported wherever the complainant was born. It said it was common practice for newspapers to report such background information, and the terms of Clause 12 should not generally prohibit the publication of biographical details, such as nationality.  The newspaper said that it published a lengthy article about the complainant in the same edition as the article under complaint, and that this article included the fact that she grew up in Britain. It said that this article was included in the online version of the article under complaint.

12. All the readers’ comments were removed from the article under complaint when the newspaper was provided with the list of readers’ comments to which the complainant objected.

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. The article was extremely critical of the complainant, and the Committee therefore considered carefully whether the references to her country of birth had been employed in this context as a pejorative reference to her race or colour.

16. The article under complaint argued in the strongest terms that the judgment represented an attempt by elites, including the complainant, to take back control after the referendum, a “popular revolt” by British voters; this followed from lengthy debates around the issues of national identity that had taken place during the EU referendum campaign.  The article had sought to contrast the complainant and others involved in the case with the “peasants” of the general public, and had referred in this context to her wealth and her profession, as well as the country of her birth. Having considered the article, the Committee did not find that there was any basis to conclude that the reference to the complainant as Guyana-born, or the inclusion of the information about her country of birth in the online version of the article, constituted references to her race or colour, so as to engage the terms of Clause 12. Rather, this formed part of broader catalogue of criticisms which sought to undermine the complainant's position, as being unrepresentative of the British public. It was in that context that it referred to her connection to another country. There was no breach of Clause 12.

17. In the context of the article, the reference to the complainant being “Guyana-born”, or the reference to her being “South American”, 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.

18. The complainant’s legal action sought to prevent the Government providing notification to leave the EU under Article 50 by exercise of the royal prerogative, and to guarantee a further vote on the issue by Parliament. The article explained that the High Court had ruled that “the decision on whether we trigger our departure from the EU can only be taken by MPs”. In these circumstances, it was not significantly misleading to claim that the complainant had “convinced the courts that the votes of 17,410,742 British people in the referendum do not count”. This aspect of the complaint did not raise a breach of Clause 1.

19. 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’. When the complainant identified the readers’ comments she objected to, they were removed promptly. The Committee considered that the publication was not editorially responsible for the comments in question, and did not consider this aspect of the complaint further.

Conclusions

20. The complaint was not upheld.

Remedial Action required

21. N/A

Date complaint received: 30/11/2016
Date complaint concluded: 25/04/2017