14369-23 The MacDougall family v Mail Online

Decision of the Complaints Committee – The MacDougall family v Mail Online

Summary of Complaint

1. James MacDougall, acting on his own behalf and on behalf of his parents, complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment), Clause 10 (Clandestine devices and subterfuge) and Clause 12 (Discrimination) of the Editors’ Code of Practice in the following articles:

• Article 1: “EXCLUSIVE ‘He just wanted to help these women fulfill their dreams’ Family of sperm donor who fathered 15 children with lesbian mothers despite incurable genetic condition claim he did it because he’s ‘kind hearted’ and ‘would do anything for anybody’”, published on 31 May 2022;

• Article 2: “EXCLUSIVE: Sperm donor with incurable condition that leads to low IQ who fathered 15 children to lesbian mothers and then fought them for parental access is unmasked by judge to stop more women responding to his online ads”, published on 30 May 2022;

• Article 3: “EXCLUSIVE Sperm donor, 37, who fathered 15 children to lesbian mothers despite having incurable condition that leads to low IQ is banned by judge from contacting one woman he impregnated twice”, published on 12 October 2022;

• Article 4: “EXCLUSIVE: Lesbian mother says sperm donor with Fragile X syndrome never told her about incurable genetic condition before he fathered TWO of her children - and she now fears at least one of them may have inherited it”, published on 1 June 2022;

• Article 5: “How could they all be so reckless? Mother who had two daughters with an unregulated sperm donor she found on social media tells FRANCES HARDY she failed to read the small print which warned of his incurable genetic condition”, published on 10 June 2022;

• Article 6: “‘I did a good thing by helping these women have children’: Sperm donor who fathered 15 children with lesbian mothers despite incurable genetic condition insists he has done ‘nothing wrong’ as his parents claim he ‘would do anything for anybody’", published on 31 June 2022.

2. All of the articles under complaint concerned a family court case involving the complainant – who has autism and is a carrier for a genetic condition called fragile x syndrome. The complainant had acted as a private sperm donor for multiple women. He had subsequently applied to the court for parental responsibility orders in relation to some of the children, and some of the women had sought to prevent him from contacting the children they had conceived using his sperm. During the case, these women had claimed the complainant had not made them aware that he was a carrier of the gene for fragile x syndrome, though the complainant disputed this. At the end of the court case the judge had made the complainant’s identity public.

3. Article 1 reported that, “the family of a Facebook sperm donor who has fathered fifteen children to lesbian women without telling them he has a genetic condition that can be inherited have claimed that he was offering his services because he’s ‘kindhearted’.”

4. Article 2 reported that the complainant “advertised as sperm donor without revealing his incurable genetic condition” and that he was a “sperm donor who offered his services via social media [and had] fathered fifteen children to lesbian women without telling them about his inheritable condition, a court today heard”.

5. Article 3 reported that the complainant “went ahead with private sperm donations to a number of lesbian women after advertising himself on social media without fully revealing his condition” and that the “judge found that MacDougall showed ‘fundamental irresponsibility’ by not being upfront about his condition”.

6. Article 4 contained quotes from women who had conceived children using the complainant’s donor sperm. It reported that a “lesbian mother says sperm donor with fragile x syndrome never told her about incurable genetic condition before he fathered TWO of her children”. It also contained the following direct quote from the woman: “I feel angry that [the complainant] may have passed this on to my daughter. He never mentioned it. He should have told me about his condition but he didn’t and I blame him.” It also reported that one of the women “told MailOnline that she had no idea he had the condition when she spoke to him about helping her and her female partner to conceive” and that she “now realise[d] that a reference to his genetic condition was in the paperwork, but says [the complainant] never flagged it and she did not have the life skills to identify the issue.”

7. Article 5 said that one woman – who had conceived a child using the complainant’s sperm – had, “when considering the credentials of a father to her children, barely scanned the closely-typed three page document he presented her with — in which was buried the fact that he has fragile x — before agreeing to pay him £5 travelling expenses for supplying his sperm”, and that another had “failed to read the small print which warned of his incurable genetic condition”. The article also alleged that “he had fathered 15 children to lesbian women without making clear to them that he has an incurable genetic condition.”

8. Article 6 contained quotes from an interview with the complainant. The complainant was quoted as having said that he “did a good thing by helping these women have children” and that he hadn’t “done anything wrong’”. He had reportedly said that “the full truth will come out” and that he was “very angry and upset”. It also reported a “sperm donor who has fathered fifteen children to lesbian women without telling them he has a genetic condition”.

9. All of the articles under complaint also contained quotes from an interview with the complainant’s parents. They described the complainant as “‘kind-hearted’ but ‘gullible’” and were reported as having said that he “just wanted to help those people, help those women in a gay relationship fulfil their dreams and become parents.”

10. The complainant said that the articles were inaccurate in breach of Clause 1, as they each said that he had not told the women that he was a carrier for fragile x syndrome. He said that he had told the women, as it was in the contract the women who used his sperm all signed. He supplied a copy of this contract to IPSO to support his complaint. The contract was three pages long with 23 numbered paragraphs. Paragraph 18 of the contract stated: “The RECIPIENT of and the PARTNER of the RECIPIENT understand that the donor is a carrier for fragile X”; there were no other references to fragile x syndrome within the document.

11. The complainant also said the articles breached Clause 1 because they were biased against him and did not tell his side of the story.

12. The complainant also said that article 6 included a further breach of Clause 1, as the article included quotes from an interview with him. He said that he had misspoken during this interview, and not said what he actually meant – therefore, the inclusion of these quotes was inaccurate, though he did not dispute that he had said them.

13. The complainant also said the publication had breached Clause 3 and Clause 10 by obtaining the quotes from the interview with his parents in circumstances of harassment, and through the use of subterfuge. In support of these complaints, the complainant’s parents provided two statements to IPSO which outlined their version of events.

14. The complainant’s parents said a journalist had come to their door and said she was there to “help” their son. She asked whether the complainant was at home and was told he was not. She went on to say that the judge had released the complainant’s name. She told the parents not to worry about this as she was there to help them and the complainant, as it was unusual for a judge to release a person’s name. The parents said this interaction gave the impression that the journalist was from the court. There was a discrepancy between the two statements provided by the parents as to whether the parents had assumed that the journalist was from the court, or whether the journalist had explicitly said that this was the case. The parents then told her some more information about the complainant. She showed them two pictures, and they identified one as showing the complainant. At this point, as the journalist was writing, she asked for the complainant’s phone number - she said she would talk to her editor. It was at this point that the parents said they realised she was a journalist; the parents asked her who she worked for, and she said the Daily Mail. She asked for pictures of the children and a more recent picture of the complainant. The parents declined to provide this and said that they did not want anything published. They said that they repeated this “a couple of times”. The parents said, “they should finish now”, and the journalist left.

15. The parents alleged in their first statement that the journalist then phoned at least three to four times in the week following this interaction; though they did not specify what had been said during these calls, and in their later statement this allegation was removed, and it was alleged that another publication had called the parents.

16. The complainant also said that the contents of article 6 breached Clause 3, because he said the quotes from him included in the article had been obtained during a phone call which he felt harassed by. He described the phone call as follows: he told the journalist to leave him alone, but they kept asking questions; he said he did not want to speak to the journalist and that he did not want anything published. The complainant said that he was not aware that the contents of this phone call would be published.

17. The complainant also said that all six articles were in breach of Clause 2 because they contained photographs from his Facebook account, which he considered private.

18. The complainant also said article 6 was in breach of Clause 2 because it contained details about his thoughts and feelings regarding his court case – that he was angry and upset – which he considered private.

19. The complainant also said article 6 was in breach of Clause 12 because the publication did not consider he was a vulnerable adult with autism when it interviewed him.

20. The publication did not accept a breach of the Code in relation to any of the articles under complaint, or any of the alleged behaviour complained of.

21. Turning first to the alleged breach of Clause 1, the publication said it was not inaccurate to report that the complainant had not told the women he was a carrier for fragile x syndrome. While it accepted that the complainant had included reference to the condition in the contract, it said he had not offered even a basic definition of the syndrome, or explained the implications of him being a carrier and what that might mean to the prospective mothers. It also said judgment referred to one woman, KE, who had connected with the complainant through social media and had never entered a written agreement with the complainant. It said the crux of the judge’s reasoning for making public the complainant’s identity – which is not normal practice in family courts – was that he had not fully explained the implications of his condition. The publication referred to the case’s public judgment where the judge had said: “I […] have no confidence in him fully explaining to any woman the true implications of his fragile x syndrome.”

22. The publication cited other parts of the court judgment to support its position that the complainant had not made the women aware that he was a carrier for fragile x syndrome. This included the following passages:

“I also take into account the fundamental irresponsibility of [the complainant] acting as a sperm donor whilst knowing that he had fragile x syndrome, an inheritable condition, without at the very least making it entirely clear to the mothers concerned the implications of Fragile X. [The complainant] knew that he could not be a sperm donor through a clinic because of his condition. He told the [court-appointed] Guardian that he thought fragile x syndrome was not serious and it was for the mothers to do the research. Even if [the complainant] does not understand the true implications of Fragile X, he does know it prevents him acting through a donor clinic.

“On page 3 of the agreement it is recorded that JM has fragile x syndrome, however there is no explanation of what this means. [One of the women] said that she has difficulty reading, which was clear from her oral evidence. She said that she did not read that far into the agreement and therefore did not read the part about fragile x. [A second woman] said that she did read more of the agreement but either did not see or did not appreciate the significance of the reference to fragile x syndrome.

“Although the agreement does refer to fragile x, [the complainant] took no steps to explain the condition to [either woman] and no steps to ensure they understood. [The complainant] took advantage of these young women’s vulnerability and their strong desire to have children.

“The position in respect of KE is rather different. I will not set this out in any detail given that I cannot reach any conclusions on the facts of her case or make final orders at this stage of the proceedings. However, the undisputed evidence is of some relevance to the determination in the other two cases. KE contacted JM as a sperm donor via the social media page. There was no written agreement between KE and JM. B was born in July 2018. In September 2018 JM and KE commenced a relationship. JM had contact with B throughout 2019’.”

23. The publication also did not accept that article 6 had breached Clause 1 by reporting the comments made by the complainant – regardless of his intentions when speaking to the journalist, it was not in dispute that he had said what the article reported.

24. The publication did not accept that the journalist had harassed the complainant’s parents in breach of Clause 3. It said that it was not the case that the reporter had not told the parents that she was a journalist – it said the reporter introduced herself as a “Midlands based freelancer making inquiries on behalf of the MailOnline,” and the parents had subsequently volunteered positive comments about their son in the hopes they would be published. The publication said at no point did the parents ask for their comments to be off-the-record, and that the parents gave the reporter her son’s mobile telephone number so that the journalist could contact him. It also said that the complainant’s mother offered to assist the reporter in finding the names of the mothers of the complainant’s children. The publication provided the reporter’s shorthand notes of the encounter which were fourteen pages long and handwritten. The notes included the son’s name and phone number.

25. The publication then said that, following the visit to the parents’ home, the reporter had called “a few times” the following week to see if the complainant was home and available to speak. The publication noted that the parents had not said that they felt harassed or intimidated by these phone calls, or by the in-person conversation, and had not requested that she desist from contacting them.

26. The publication also did not accept that the journalist’s interaction with the parents breached Clause 10, as the journalist had misrepresented herself or who she worked with – she had introduced herself and made clear she was working on behalf of the publication.

27. The publication did not accept a breach of Clause 2. It said the images included in the articles came from the complainant’s publicly accessible Facebook profile pictures and were therefore in the public domain. The publication also did not accept that article 6 intruded into the complainant’s private life by publishing his thoughts and feelings about the case against him. It noted that it was entirely expected that someone would be upset by a court ruling against them and that it failed to see how his feelings in the matter – freely given to the publication as part of an interview – could be regarded as information over which the complainant had a reasonable expectation of privacy.

28. The publication did not accept a breach of Clause 3 regarding the additional phone calls made to the parents in the week following the meeting. It said the reporter called a few times the following week to see if the complainant was home as she had been told by his parents that he sometimes stayed with friends who lived nearer his place of work. She was also hoping to get contact details of the mothers of the babies from the sperm donations, that had been promised by the complainant’s mother. The publication said the reporter was not asked to desist contact.

29. The publication did not accept that the complainant’s concerns about the articles being biased against him engaged the Code.

30. The publication did not accept that article 6 was discriminatory in breach of Clause 12. It said if the complainant’s intention was to suggest that the story should not have been reported at all in respect of his autism, this did not engage the Clause.

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 3 (Harassment)*

i) Journalists must not engage in intimidation, harassment or persistent pursuit.

ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.

iii) Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.

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 be justified only in the public interest and then only when the material cannot be obtained by other means.

Committee Findings

31. The Committee first considered whether the articles had – as alleged by the complainant – inaccurately reported that he had not told the women about his carrier status. It was not in dispute that the complainant had provided a number of the women who used his sperm with a contract that disclosed that he had fragile x, although there was one woman who had not received any written agreement. The complainant’s position was that this showed he had told the women of his status; the publication’s position was that he had not informed one woman at all, and the other women, who had received the contract, had not had the condition explained to them, or been made fully aware of its implications. It considered its position was supported by the Family Court judgment. The Committee therefore took the judgment provided by the publication into account.

32. The judgment made clear that, while the contract had included the name of the condition, this was not enough to ensure the women fully understood its implications. In addition, while the judgment made clear that at least one woman had not received the contract, it did not appear to be in dispute that the majority of the women referred to in the articles had received a copy of the contract which included a reference to his condition. As such, the Committee considered that some of the articles had gone too far by reporting in absolute terms that the complainant had not told any of the women about his status as a carrier, where this had been disclosed in the contract. These articles were: article 1, which described the complainant as “sperm donor who has fathered fifteen children to lesbian women without telling them he has a genetic condition”; article 2, which said the complainant “advertised as sperm donor without revealing his incurable genetic condition”; and article 6, which similarly described the complainant as “sperm donor who has fathered fifteen children to lesbian women without telling them he has a genetic condition”. Where the publication had access to a court judgment that made clear the complainant had shared a contract with at least some of these women, this represented a failure to take care not to print inaccurate information. These articles therefore breached the terms of Clause 1 (i).

33. Where the inaccuracies pertained to the serious matter of whether the complainant had deceived the women he had donated sperm to, and also related to a legal judgment, the Committee considered the inaccuracies to be significant and in need of correction under the terms of Clause 1 (ii). No correction had been offered and so there was a breach of Clause 1 (ii) on this point.

34. Articles 3 and 5 did not state explicitly that the complainant had not told the woman about his condition. Article 3 reported the complainant donated sperm “without fully revealing his condition” and that he’d not “be[en] upfront about his condition”. Article 5 referenced the “small print which warned of his incurable genetic condition” and that the complainant “had fathered 15 children to lesbian women without making clear to them that he has an incurable genetic condition.” It also referred to “the closely-typed three page document he presented her with — in which was buried the fact that he has Fragile X”. The articles either made clear that the contract existed or qualified its claims by noting the complainant had not “fully” revealed his condition. These articles were not inaccurate, and did not breach Clause 1.

35. Article 4 focused on one of the women who had used the complainant’s sperm. The article was an interview where the woman gave a first-person account of her experiences, which she was entitled to do. While the article did report that the woman said the complainant “never told her about incurable genetic condition before he fathered TWO of her children”, it mentioned the contract and made clear why the complainant felt she had not been told about the condition by reporting “the mother now realises that a reference to his genetic condition was in the paperwork, but says MacDougall never flagged it and she did not have the life skills to identify the issue.” As such, the article made clear that there had been some disclosure of the complainant’s condition and did not breach Clause 1.

36. The Committee then turned to the question of whether Clause 3 or Clause 10 had been breached during the journalist’s interactions with the family. The crux of the parents’ complaint appeared to be that the journalist had not identified herself to them before they had shared the information that appeared in the articles under complaint – though they acknowledged that she had identified herself at a later point during her visit to the property. The journalist denied she had withheld the fact she was a reporter. The Committee was not in a position to know exactly what happened during the interaction, and whether the reporter had identified herself on entry to the property. However, in any event, the terms of Clause 3 make clear journalists must identify themselves and whom they represented when asked. It was not in dispute that at some point during the visit, the reporter had willingly volunteered that she had an editor and who she worked for. In terms of Clause 10, as it was not in dispute that at some point during the interaction the reporter had explained she was a journalist, the Committee did not consider that she had engaged in misrepresentation as defined by the terms of Clause 10. As such, this interaction did not raise a breach of Clause 3 or Clause 10.

37. The Committee also considered whether the publication had breached the Code by phoning the parents three or four times in the week following the interaction with the journalist. Clause 3 stipulates that publications must not persist in contacting individuals after being asked to desist, but it does not prevent journalists from calling individuals to seek their comment or asking further questions. It was not in dispute between the parties that the journalist had called the parents a number of times in the week following their initial interaction. However, the parents did not state that they had asked the reporter to stop contacting them; the reporter also denied she’d ever been asked to desist contact. On this basis, there was no breach of Clause 3.

38. The Committee then considered whether Clause 3 had been breached by the journalist’s phone interview with the complainant, where the complainant shared information included in article 6. The complainant had alleged that when he answered the phone he had told the reporter to leave him alone, but she had kept on asking him questions. He did not dispute that he had shared information with the reporter at this point. He also said he specified he did not want anything he said published. The reporter denied the complainant said he did not want information published and once the complainant made it clear that he was not interested in a detailed interview, said she made no further contact. As the accounts of the complainant and the reporter differed, it was not possible for the Committee to establish exactly what had happened during the call. However, it was not in dispute between the complainant and the publication that only one phone call had taken place, and the complainant did not allege that any further attempts to contact him had been made after that phone call. The complainant did not hang up the phone, but stayed on the line to the reporter and shared information with her, implying that he was, at least to an extent, willing to speak to the reporter. Clause 3 is designed to protect individuals who do not wish to engage with the press from being repeatedly contacted. Where there was evidence that the complainant had been willing to speak to a journalist and share information about his feelings with her, the Committee did not consider there to be enough to suggest the complainant had been harassed by the reporter. There was no breach of Clause 3 on this point. Additionally, Clause 3 does not make any stipulations about subjects giving their permission for information to be published, and so the complainant’s concerns on that point did not engage the Clause.

39. The Committee considered the complainant’s concerns that the articles were inaccurate because they were biased against him. Biased articles do not, in and of themselves, represent a breach of the Code; the Code does not prohibit the publication of biased or one-sided information. There was no breach of Clause 1 on this point.

40. The Committee then turned to the complainant’s concerns that the articles’ inclusion of his photographs breached the terms of Clause 2. The Committee first noted that it was not in dispute that the pictures were publicly available Facebook profile pictures. Given that the images of the complainant had been publicly accessible on social media, the Committee considered the images to be in the public domain and that the complainant therefore did not have a reasonable expectation of privacy over them. The Committee further noted that the images simply showed the complainant’s likeness; they did not reveal anything private about him. There was no breach of Clause 2 on this point.

41. The Committee considered the complainant’s concern that article 6 breached Clause 1 because he had misspoken during his interview. The complainant did not allege that the article had inaccurately reported on what he had said, just that the words themselves were not what he had intended to say. The publication’s obligation under Clause 1 of the Code was to report the complainant’s words accurately, and it was not in dispute that it had done so. There was no breach of Clause 1 on this point.

42. The Committee then turned to the complainant’s concern that article 6 breached Clause 2 because it contained details about his thoughts and feelings about the court case, which he considered private. In circumstances where the complainant had willingly shared information about his feelings about the court case with the journalist, the Committee did not consider that the publication’s decision to publish the comments constituted a failure to respect the complainant’s private life or represented an intrusion into his privacy. There was no breach of Clause 2.

43. The Committee considered whether article 6 breached Clause 12. Clause 12 stipulates the press must avoid prejudicial or pejorative reference an individual’s disability and details should avoided unless they are genuinely relevant to the story. The complainant had not said that any of the articles under complaint included any such reference to a protected characteristic, and as such there was no breach of the Clause.

Conclusions

43. The complaint was upheld under Clause 1.

Remedial action required

44. Having upheld the complaint under Clause 1(i) and Clause 1 (ii), the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or adjudication, with the terms and placement determined by IPSO.

45. The individual breaches of Clause 1 in articles 1, 2, and 6 occurred in the text of the article rather than the headline. As such, the Committee considered a correction to each article to be the appropriate remedy to this breach. The corrections should set out the inaccuracy and make the correct position clear, stating the complainant had mentioned he had fragile X syndrome in the contract he had shared with the women who used his sperm. Each article found to have breached the Code should be individually corrected as each one contained slightly different inaccuracies.

46. The Committee then considered the placement of these corrections. If the publication intends to continue to publish the online articles without amendment, the corrections to the article should be published beneath the headline. If the articles are amended, the correction should be published as a footnote.

47. The wording should be agreed with IPSO in advance and should make clear that it has been published following an upheld ruling by the Independent Press Standards Organisation.

Date complaint received: 22/10/2022

Date complaint concluded by IPSO: 11/08/2023

Independent Complaints Reviewer

The publication complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Reviewer found there was a procedural flaw in the Committee’s ruling as it did not appear to have taken the full judgment on the complainant’s court case into account. The complaint was therefore returned to the Committee to reconsider. The Committee reconsidered the complaint, but did not alter its findings.