13065-22 A man v The Daily Telegraph

Decision of the Complaints Committee – 13065-22 A man v The Daily Telegraph

Summary of Complaint

1. A man complained to the Independent Press Standards Organisation that The Daily Telegraph breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 4 (Intrusion into grief or shock) and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “IBM engineer loses tribunal over claim 'blacklist' is racist”, published on 10 November 2022.

2. The article – which appeared on page 3 – reported on claims brought by the complainant against his former employer, IBM, before an employment tribunal. It reported that the complainant – identified as “an Asian engineer” in the opening paragraph and then as a “cyber security expert based at IBM’s office in Warwick” – had sued the organisation, claiming that “he was victim of more than 30 acts of discrimination”. It reported that the tribunal heard the complainant made various allegations to support “his views that every individual he interacted with [at the organisation] was racist”. This included the allegation that his managers were using “black magic” and “voodoo” against him; and that the use of the term “blacklist” by co-workers during a team call had “been used to attack him”. The article reported that the tribunal had “dismissed the allegations [by the complainant] as either being made-up or unfounded”, finding that the use of the term “blacklist” was “entirely innocuous” and not racist. It went on to report that the judge said the tribunal had heard evidence from IBM’s witnesses that blacklisting related to a “specific list of IP addresses” and that the complainant himself had used the term, noting: “We found this a puzzling allegation as the only reference to blacklisting at this time we saw in messages was made by [the complainant himself] and there is no evidence [the colleague] was involved in any of these”.

3. A similar version of the article also appeared online, under the headline “Using the word ‘blacklist’ is not racist, rules employment tribunal” and sub-headline “Asian IBM engineer claimed the term was used to attack him, but judge says the expression was ‘entirely innocuous'”. The online article reported that the complainant “claimed that he was being denied promotions” at IBM, and “thought this was because of his race”, saying: "I am the only Asian person in the group – I have seen other talented individuals of Indian heritage leave or be forced out for similar reasons”. It also reported that the complainant had “falsely claimed a colleague had called him a “f—--- Indian” twice”, with the judge finding that there was no evidence that “race played any part in promotion decisions”.

4. The complainant disputed that the tribunal judgment – and by extension the article – gave a fair and true account of the matter. He said that his decision to appeal the judge’s ruling rendered the article inaccurate and misleading. He denied that his concerns at the tribunal related to the use of the term “blacklist”. Instead, they related in part to the emphasis placed on the word “black” by colleagues during a call. He added that the term “blacklist” was never mentioned in his claim and denied that he claimed it was a racist term.

5. The complainant also denied that he made allegations that his managers performed “black magic” and “voodoo” on him. He also denied that he considered every individual he interacted with at the organisation racist; his claims were against a specific number of individuals at the organisation.

6. The complainant also said that he was a “cyber security consultant”, rather than a “engineer” as reported. He also denied being “based at” the organisation’s offices in “Warwick”, as he worked remotely.

7. The complainant said that the article represented an unjustified intrusion into his private life, in breach of Clause 2. The article had been published without his consent, and he had not given permission for his personal details to be published.

8. Further, the complainant said that the article was discriminatory, in breach of Clause 12, to refer to him as “Asian”. He said that the publication of the article caused him distress, in breach of Clause 4.

9. The publication did not accept a breach of the Editors’ Code. It made clear that newspapers were entitled to report on Employment Tribunals, and its coverage was an accurate summary of proceedings. It said that the copy had been supplied by an agency and used in good faith; it was based on the hearing and the publicly available judgment, which it provided to IPSO. It said that this document made clear the complainant’s claims related to “direct race, disability and religious discrimination”; “discrimination arising from disability”; “harassment related to race and victimisation”; and all his claims were dismissed. The publication noted that the term “black-list” was included in the complainant’s claim for direct race discrimination, with the judge finding “any use of the word ‘blacklisting’ or ‘black’ in any interactions [with colleagues] was entirely innocuous and descriptive [and] this was a contrived allegation by the claimant as a way to bolster his own case, made after the event.” Further, the publication noted that the judgment detailed specific allegations put forward by the complainant that individuals were performing “voodoo” and “black magic” on him. It added that the judgment also stated that the complainant had been based at the organisation’s “Warwick” office. Nor did the publication consider that an appeal by the complainant against the judgment rendered the article inaccurate or misleading.

10. Further, the publication did not accept that its description of the complainant as an “engineer” was significantly inaccurate or misleading where the tribunal described him as a “Security Consultant within the Cloud and Cognitive Software business unit” and where it detailed his various responsibilities in this role, including “penetration testing (pen-testing) and offensive security, searching for security risks or holes within a client’s IT networks, applications, hardware and systems looking at how hackers could exploit any vulnerabilities”.

11. With regard to Clause 2, the publication did not accept that the complainant had a reasonable expectation of privacy over the information included within the article. In this instance, all these details – including his name, ethnicity, age, salary, employment history, and specific claims of discrimination – were taken from the publicly available tribunal judgment and heard during legal proceedings instigated by the complainant and which were not subject to any reporting restrictions.

12. In relation to Clause 12, the publication said that the complainant’s race was raised in the tribunal – which included claims of direct and indirect race discrimination – and was therefore genuinely relevant to the article. Further, it said that the reference to the complainant’s ethnicity was neither prejudicial nor pejorative. Rather, it was necessary to ensure that its coverage of his tribunal was accurate.

13. The publication said that the terms of Clause 4 were not engaged: it did not restrict the reporting of legal proceedings.

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 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 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 made clear that the publication was responsible for accurately reporting the findings of the tribunal; it was not responsible for the findings made by the tribunal. In this instance, the article accurately reported the tribunal’s findings regarding the complainant’s claims of “direct race and religious discrimination” and “race related harassment and victimisation”: the complainant alleged that a colleague’s use of the term “black-listing” at the time of George Floyd’s murder in the US was “racist”; alleged a colleague was performing “black magic” and a “sort of voodoo” on him; and found that a specific “allegation” of discrimination had been “constructed” by the complainant “after the event [to] bolster his claim and to support his views that every individual he interacted with was racist”. The judgment also stated that the complainant’s team was “based” in the organisation’s “Warwick” office. In these circumstances, the Committee did not consider that the article’s coverage of the complainant’s claims or the findings of the tribunal were inaccurate or misleading – even in circumstances where the complainant sought an appeal of the judgment. As such, there was no breach of Clause 1 on these points.

15. Further, the Committee found that the article was not significantly inaccurate or misleading to describe the complainant’s job title as “software engineer”, in the context of the article as a whole, which focused on his discrimination claims, and where the tribunal stated his title as a “Security Consultant within the Cloud and Cognitive Software business unit”. There was no breach of Clause 1 on this point.

16. The Committee next considered the concerns raised under Clause 2. This Clause is designed to ensure that an individual’s private life is respected. In this case, the information included within the article – including his name, ethnicity, age, salary, employment history and specific claims of discrimination – were referenced during his employment tribunal and had been placed in the public domain. Nor did the Committee consider that the complainant had a reasonable expectation of privacy in relation to his age. For these reasons, the Committee did not consider that the complainant had a reasonable expectation of privacy in respect of the information contained within the article and its publication did not represent an intrusion into his private life. There was no breach of Clause 2.

17. Clause 12 bars irrelevant and pejorative references to certain, protected characteristics of an individual. In this case, the article covered the complainant’s employment tribunal which ruled on his claims of direct and indirect race discrimination. In this context, reference to the complainant’s race was considered genuinely relevant and not pejorative or prejudicial. There was no breach of Clause 12.

18. The Committee next considered the complainant’s concerns under Clause 4. The Committee noted that the article was a report of Employment Tribunal proceedings. Clause 4 makes clear that it does not restrict the right for publications to report on legal proceedings. The Committee understood that the publication of the article was upsetting for the complainant, but it was an accurate report of his employment tribunal and there was no breach of Clause 4.

Conclusion(s)

19. The complaint was not upheld.

Remedial action required

20. N/A

Date complaint received:  15/11/2022

Date complaint concluded by IPSO:  04/04/2023