Decision of the Complaints Committee 13165-16 Mason v thesun.co.uk
Summary of complaint
1. Paul Mason complained to the Independent Press Standards Organisation that thesun.co.uk breached Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Working class zero: Paul Mason, Jeremy Corbyn’s celeb guru, admits he wants to oust hapless leftie as he doesn’t appeal to ordinary Brits”, published on 13 October 2016.
2. The article reported that a “bystander” had overheard and recorded a conversation that had taken place at the Labour party conference between the complainant, described as Jeremy Corbyn’s “firebrand celebrity guru”, and a “confidante”, in which he “revealed his true feelings” about the leader of the Labour party. The article reported a number of comments that the complainant had made during the conversation, including that Mr Corbyn didn’t “appeal to the mainstream working class vote,” and that “the person who [he] would replace Corbyn with eventually is this guy called Clive Lewis”. The article included a recording of the conversation, and photographs of the complainant and his companion. The article reported that, when “confronted”, the complainant had admitted having the conversation and had said that he was “proud to have played a part in Jeremy Corbyn’s re-election as leader”.
3. A separate article, about which no complaint was received, appeared in print.
4. The complainant said that a freelance reporter and photographer had deliberately chosen a table next to him in a restaurant where he was having a private conversation with a journalistic source. He said that they had used clandestine devices in order to record his conversation, and to photograph him. The complainant said that he had a reasonable expectation of privacy in relation to his conversation and to the views he expressed. He noted that, while he had advocated a vote for Jeremy Corbyn in the Labour party leadership elections, he had publicly acknowledged his political differences with Mr Corbyn, and had openly discussed potential successors to the leadership. He said that the conversation reported in the article did not contradict his previous public statements, and there was no justification for the intrusion into his privacy. The complainant said that his conversation has been recorded opportunistically by the reporter, and that no prior consideration had been given to whether his conduct was justified in the public interest. He argued that, as the newspaper had not given any consideration to this issue, it could not argue that the journalist’s conduct was compliant with the terms of the Code.
5. The newspaper said that the freelance reporter and photographer were in Liverpool to cover fringe events at the Labour party conference. They had gone to the restaurant for lunch, and had been seated at a table close to the complainant. They were able to clearly hear his conversation. The reporter had heard the complainant begin to talk about Jeremy Corbyn in a disparaging fashion, and had started to record the conversation on his mobile phone at that stage. Once the conversation had moved away from Mr Corbyn, the reporter had stopped recording. The photographer had taken photographs of the complainant, using his mobile phone, as proof that the conversation had taken place.
6. The newspaper did not accept that the terms of Clause 10 were engaged. The reporter had not sought to obtain material using clandestine devices; rather, he had recorded a conversation that was audible to anyone nearby. The recording was used as an aide memoire, and had the same status as a written note of the over-heard conversation. The reporter was keen to ensure that he was able to demonstrate that the conversation took place, and would be able to defend the accuracy of any report of it. He believed that a recording would provide a more accurate record of the conversation than a written note.
7. The newspaper did not accept that the complainant had a reasonable expectation of privacy in relation to his conversation. He had been at a public restaurant, during the Labour party conference, a time when the area was known to be particularly busy. The restaurant had not been reserved for any specific conference events, but had been open to the general public. The complainant was speaking at a level audible to bystanders, and had made no effort to conceal his conversation.
8. In any case, the newspaper argued that there was a public interest in reporting the complainant’s comments. The complainant was possibly the best known polemicist from the hard left, and an unofficial advisor to Jeremy Corbyn who had a large and powerful following among left-wing activists. He had campaigned publicly for Mr Corbyn to be elected as leader of the Labour party, had appeared at rallies in support of him, and had addressed a Momentum meeting shortly before the conversation reported. There was therefore a clear public interest in reporting the discrepancy between his public support for Mr Corbyn as the future Prime Minister, and his private views. The newspaper did not consider that the reservations that the complainant had previously expressed publicly about Mr Corbyn were relevant. He had never previously stated that Mr Corbyn had no appeal to the working class, or that he would support Clive Lewis as a future leader. The newspaper noted that the complainant had written articles and given interviews in which he criticised others for disloyalty to Mr Corbyn, and had characterised support for the Labour leader in black and white terms without nuance. Given his influence, there was a strong public interest in reporting new information which could be perceived as disloyal.
9. The journalist had taken the decision to record the conversation after several minutes, once it became clear that the complainant was discussing Jeremy Corbyn in a negative light. At this stage, the reporter had considered the terms of the Code, and had decided that there was a public interest in his recording the complainant’s conversation. There was not time for him to call his editor to request permission to commence recording, and so he had relied on his own assessment of the situation. Prior to publication, the newspaper’s Managing Editor and legal department had given further careful consideration to the public interest, and decided that it was sufficient to justify publishing the content of the complainant’s conversation, and the recording.
Relevant Code Provisions
10. 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 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 only be justified in the public interest and then only when the material cannot be obtained by other means.
The public interest
There may be an exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
iii. Protecting the public from being misled by an action or statement of an individual or organisation.
vi. Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
Findings of the Committee
11. The terms of Clause 10 seek to prevent members of the press from using clandestine devices or subterfuge to obtain information to which they would not otherwise have had access. There was no dispute that the complainant’s conversation was audible to the journalist without the use of a listening device. He had chosen to use his mobile phone to create a record of what was said, as an alternative to making a contemporaneous note. In circumstances where the conversation was audible without the use of technology, the mobile phone had not been used as a clandestine listening device to obtain information.
12. The images of the complainant were obtained by the use of a mobile phone camera. Although the complainant had not been aware that the photographs were being taken, the photographer had not used a hidden camera, or engaged in subterfuge, to obtain the material.
13. For these reasons, there was no breach of Clause 10.
14. The conversation had taken place at a restaurant in central Liverpool, close to the Labour party conference and shortly after an event nearby where the complainant had been speaking. The restaurant had bench seating, and the complainant was sitting on the same bench as, and next to, the reporter. The complainant, a political commentator, had been discussing politics with a professional contact, and had not spoken about personal or private matters. There may be circumstances in which an individual has a reasonable expectation of privacy in a restaurant. Whether privacy may reasonably expected in a restaurant will depend on all the factors relevant to a particular case, including the nature of the conversation and the role of the speaker. Given the complainant’s professional role, the nature of his conversation, its timing and its location, in the environment of the party conference, the Committee did not consider that he had a reasonable expectation of privacy in relation to that conversation at the time the recording was taken. The publication of the conversation did not represent an intrusion into the complainant’s private life. The photographs were not taken, for the reasons the Committee has given, in circumstances where the complainant had a reasonable expectation of privacy. For these reasons there was no breach of Clause 2.
15. As there was no breach of the Code, it was not necessary for the Committee to consider whether there was a public interest in recording the complainant’s conversation, and publishing it and the photographs, either in the context of Clause 10 or Clause 2.
16. The complaint was not upheld.
Remedial action required
Date complaint received: 10/11/2016
Date decision issued: 10/03/2017
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