13129-22 A man v Mail Online

Decision of the Complaints Committee – 13129-22 A man v Mail Online

Summary of Complaint

1. A man complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 4 (Intrusion into grief or shock) and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “IBM software engineer who made 'puzzling' accusations including that his managers performed 'black magic' on him and that his colleague using the word 'blacklist' was racist loses his discrimination case”, published on 9 November 2022.

2. The article – which appeared online only – reported on claims brought by the complainant against his former employer, IBM, before an Employment Tribunal. It reported that the complainant had sued the organisation for “race, disability and religious discrimination and victimisation”, with the tribunal ruling that all his “allegations were unfounded”. A series of bullet-points beneath the headline identified the complainant by name, age, and profession. In doing so, it reported that the “software engineer” had lost his claim. The sub-headline bullet-points also reported that the complainant had “blasted a colleague at IBM in Warwick for using [the] word ‘blacklist’”; “alleged 30 acts of discrimination with incidents of ‘black magic’ and ‘voodoo’”; and the tribunal “found his view was ‘every individual he interacted with was racist’”.

3. The text of the article reported that the complainant – who was “based at IMB’s UK office in Warwick – made “widespread and unsubstantiated allegations of racism against his colleagues”, claiming that he was the victim “of more than 30 acts of discrimination”. The article went on to detail the various claims made by the complainant at the tribunal, including that a “colleague’s use of the word 'blacklist' was racist” and he was “being denied promotions and opportunities to further his career due to his race”. The text of the article also reported that the complainant – which identified him as a Muslim – “argued unsuccessfully that one colleague called him a 'f****** Indian' twice and also inaccurately stated he had to work on Eid when he was in fact off”.  It also reported that the complainant had “claimed [at tribunal] ‘IBM was carrying out a sort of voodoo” against him and “alleged that his manager was ‘performing some black magic on him’ to deliberately target him”. The article reported that the judge found no evidence that “race played any part in promotion decisions” and was unable to find anything sinister in the way the words “blacklisting” or “black” had been used, with the judge saying that “although this grievance was confused and adopted a scattergun approach […] the claimant did have a genuine belief that the reason he was being treated differently in his perception, was because he was Asian.”

4. The article was accompanied by a photograph of the complainant as well as an image showing the exterior of IBM’s UK office. The article detailed the complainant’s employment history at IMB, including his salary (“£55,000”), his job title and the department in which he worked (“cyber consultant”, and “part of a team codenamed X Force Red), and his start date (“October 2015”).

5. 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.

6. 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.

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

8. The complainant said that the article represented an unjustified intrusion into his private life, in breach of Clause 2. He said that the article, including the photograph and his personal details – such as his name, age, and salary – had been published without his consent. He confirmed that the photograph in the article had been shared on an internal platform at IBM.

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

10. The publication did not accept a breach of the Editors’ Code. It made clear that newspapers were entitled to report on employment tribunals. While the complainant might dispute the accuracy of the tribunal’s findings, it said that the article was a fair and accurate summary of the publicly available judgment, which it provided to IPSO. It said that the tribunal clearly set out how the complainant had alleged that the word “blacklist” was racist and that colleagues had performed “black magic” and “voodoo” on him. Further, it noted that the judgment found that an “allegation” of racial discrimination “had been constructed after the event by the [complainant] as a way to bolster his claim and to support his views that every individual he interacted with was racist” at the organisation. It added that the judgment also stated that the complainant had been based at the organisation’s “Warwick” office.

11. Further, the publication did not accept that its description of the complainant as a “software engineer” was significantly misleading where the tribunal described him as a “Security Consultant within the Cloud and Cognitive Software business unit” and where the article focused on the tribunal’s consideration of his allegations of racial discrimination.

12. Notwithstanding this, in an effort to resolve the complaint, it offered to amend the online article in its description of the complainant’s job title. Further, the publication offered to update the article to reflect the outcome of complainant’s appeal against the judgment, if necessary.

13. 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, particularly in circumstances when all these details – including his name, age, salary, and employment history – were taken from the publicly available tribunal judgement. It also noted the inherent public interest in reporting on legal proceedings.

14. In addition, the publication did not accept that the complainant had a reasonable expectation of privacy in relation to the photograph published: it showed only the complainant’s likeness and had been sourced from his employer’s website. Though it said that this image had since been removed from the IBM forum, it maintained that it was publicly available at the time of the article’s publication. It also noted that the complainant had willingly posted similar images of himself on social media on a number of occasions.

15. In relation to Clause 12, the publication said that the complainant’s ethnicity and religion were raised in the tribunal – which was convened to conder his claims of direct and indirect race discrimination – and was, therefore, genuinely relevant to the article.

16. Finally, 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

17. 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 judgement 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.

18. 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.

19. 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 – details regarding the complainant’s claims against his employer, his name, his salary and employment history – related to a professional context, 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. It also noted that the photograph showed only the complainant’s likeness; it did not reveal any private information about him or show him engaged in any private activity. In addition, the image already been shared on an internal platform at a large, multi-national organisation. 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.

20. 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 and religion were considered genuinely relevant and not pejorative or prejudicial. There was no breach of Clause 12.

21. 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)

22. The complaint was not upheld.

Remedial action required

23. N/A

Date complaint received:  15/11/2023

Date complaint concluded by IPSO:  04/04/2022