Decision of the Complaints Committee – 16959-23 A man v express.co.uk
Summary of Complaint
1. A man complained to the Independent Press Standards Organisation that express.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy), and Clause 4 (Intrusion into grief or shock) of the Editors’ Code of Practice in an article headlined “British backpacker 'lucky to be alive' after plunging down 130ft Thai waterfall”, published on 26 December 2022.
2. The article, which appeared online only, reported that the complainant had “was suspected to have shattered his hip when he plunged 130ft from a waterfall in Thailand”. It stated that he had “hiked to the top of the Na Muang waterfall on the island of Koh Samui ‘to get a better view’”. The article said that “[t]here were warning signs telling people not to go any further, which had been put in place following several deaths on the same waterfall. But [the complainant] and seven of his friends simply walked past these signs as they walked up to the summit”. The article stated the fall had left the complainant “with a deep wound on his head and a suspected broken hip, leaving him unable to walk”. The article also referred to the complainant’s hometown, and included an image of him with a bandage being around his face.
3. The complainant said that the article was inaccurate in breach of Clause 1 because he had not fallen 130 feet. Rather, he said he had fallen approximately 10 feet. He also said that he had not broken his hip in the accident but had instead fractured his coccyx and skull. The complainant further stated he had not said he had hiked to the top of the waterfall “to get a better view”; he had gone there to film footage.
4. The complainant said the article also breached Clause 2 and Clause 4 because it contained graphic pictures of him immediately after his accident; he said he was clearly in pain when he had been photographed. He said that he had not given his consent for the publication of these images. He also said the article had publicised a time of trauma when he and his family were already distressed; he also said the article included private details including his name, age, hometown, medical information, and clear facial images.
5. The publication did not accept a breach of the Code. In relation to the distance fallen by the complainant, the publication stated that the sub-headline immediately made clear that it was the waterfall that was 130 feet tall by stating, “…he plung[ed] down 130ft Thai waterfall”. While it did not consider this represented inaccurate information in breach of Clause 1, it said it amended the headline and body of the article to clarify that the reference to “130ft” was a reference to the waterfall’s height, rather than the distance of the fall.
6. The publication did not accept the article inaccurately reported the injuries sustained by the complainant. It provided the reporter’s notes that it said showed paramedics at the location believed at the time he had likely broken his hip. It also provided other reports by Thai press that predated the article under complaint; these reports referred to the complainant’s hip when reporting on his injuries. These reports were in Thai, and the publication provided an English translation. It also shared a YouTube video from a Thai news source, which was available to view in the UK, that appeared to be the source of the photographs of the rescue operation included in the article under complaint. The video was available to view in the UK. The publication said, in any event, it was not significantly inaccurate where the coccyx was in the same general region of the body as the hip.
Notwithstanding the above, the publication published the following footnote correction on 28 February, 11 days after being made aware of the complainant’s concerns:
“A previous version of this article stated that [the complainant] fell 130ft from a waterfall in Thailand. In fact, while the waterfall is 130ft tall, [the complainant] fell a much shorter distance. The article also reported that [the complainant] shattered his hip as a result of the fall. We have since learned that although he was suspected to have suffered an injury to his hip in the immediate aftermath of the fall, [the complainant] actually suffered an injury to his coccyx. The article finally stated that the reason for the tourists’ presence at the top of the waterfall was “to get a better view”. [the complainant] since clarified on his social media that he and his friends were in fact filming footage at the site. We are happy to set the record straight”.
7. Regarding whether the complainant had travelled to “get a better view”, the publication stated that the complainant had said on social media that the group of people he visited the waterfall with had hiked to the top to obtain footage. It had assumed, therefore, that they were wanting to film the view from the top of the waterfall. As such, it argued it was not significantly inaccurate to say they were trying to get a better view. However, as a gesture of goodwill, the publication removed this reference from the article.
8. The publication also did not accept a breach of Clause 2. It said unpixellated and unobstructed footage of the rescue operation had been widely available via Thai media, including on national television, prior to the article being published. The publication’s position was that pictures and videos of the incident had been widely reported in Thailand and had therefore entered the public domain prior to the publication of the article. The publication also said that most of the pictures included in the article simply showed the rescue operation more generally, rather than focusing on the complainant. Nevertheless, following the receipt of the complaint from IPSO on 1 February, on 21 February the image showing the man’s face wrapped in a bandage was pixellated.
9. It also said that the complainant had referred to the accident on social media and provided a video from the complainant’s Instagram account where he had spoken about his experience. It said that, while the video was later removed, it had previously been available to the public. As such, the publication asserted that there was a significant level of material available in the public domain regarding the accident, which meant that the complainant did not have a reasonable expectation of privacy over the fact that he had been involved in the accident.
10. The publication also said the article was in the public interest because it informed its readers of the dangers of trips of this nature, especially in relation to this specific waterfall which was well-known for similar accidents. It also said the article stressed the warning signs that alerted people to the danger of such excursions. It said this had been considered by the relevant editors before the article and the photograph were published.
11. The complainant acknowledged that the accident had been reported by Thai media outlets. However, he said such reports would have had limited exposure in the UK – particularly where the articles were written in Thai and had needed to be translated by the publication. The complaint stated that the article under complaint had significantly increased the reach and impact of the story. Regarding whether the article was in the public interest, he said that the location was already known for such accidents and so any danger of visiting these attractions would have been a factor for consideration for tourists before the article.
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.
v) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.
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.
The Public Interest (*)
There may be 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:
2. There is a public interest in freedom of expression itself.
3. The regulator will consider the extent to which material is already in the public domain or will become so.
4. Editors invoking the public interest will need to demonstrate that they reasonably believed publication – or journalistic activity taken with a view to publication – would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time.
5. An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.
Findings of the Committee
12. The Committee first considered whether it was significantly inaccurate in breach of Clause 1 to report the man fell 130ft instead of 10ft. The publication did not dispute that this information was inaccurate, though they disputed it was in breach of the Code. However, the Committee considered that this reference breached the terms of Clause 1 (i), where it was inaccurate, and the publication were not able to demonstrate that they had verified the accuracy of this statement prior to publication.
13. Where the inaccuracy appeared in the headline and exaggerated the level of danger and severity of the fall, the Committee considered it to be significant, and therefore in need of a prompt and prominent correction under the terms of Clause 1 (ii).
14. The inaccuracy regarding the height of the waterfall was amended and a footnote correction was offered within 11 days of the publication being made aware of the complainant’s concerns. Allowing for the time the publication needed to ensure its correction was accurate, the Committee considered the correction to have been offered sufficiently promptly. It also considered a footnote correction to be sufficiently prominent, taking into account the fact that the publication had taken prompt steps to resolve the complaint and had amended the article to remove the inaccuracy. The footnote also put the correct position on record, which was that he had not fallen 130ft – and had in fact fallen a much shorter distance. There was no further breach of Clause 1(ii).
15. The Committee then considered whether it was significantly inaccurate to report the man had fractured his hip when it was actually his coccyx and skull that were fractured in the accident. The Committee noted the article did not state as fact that the man had broken his hip, it said he had “reportedly” broken his hip. Where it was not in dispute that at the time of publication this had been reported it other news outlets, the Committee did not consider this to be inaccurate. There was no breach of Clause 1 on this point.
16. The Committee then considered the question of whether it was inaccurate to report the man hiked to the top of the waterfall “to get a better view” – his position was he went up to film footage. Where it was not in dispute that the complainant had hiked further up to see more of the waterfall – either “to get a better view” or to take more footage – the Committee did not consider significantly inaccurate or misleading to refer to this decision as being in order to “get a better view”. There was no breach of Clause 1 on this point.
17. The Committee then turned to the complainant’s Clause 2 concern that the article had breached his privacy by publishing a photograph of him during the rescue operation without his consent. The photograph in question had been taken in a public place, in a location where the complainant’s injuries would have been visible to any passers-by. In addition, while the photograph showed the complainant’s head being bandaged it did not disclose the precise nature of the injuries the complainant had suffered. The Committee also accounted for the fact the complainant, post-publication, made public disclosures of information about the incident through his social media. The fact that the complainant had willingly put information about the incident into the public domain – albeit post-publication – indicated that he was willing to put certain elements pertaining to the incident into the public domain, and did not consider it completely private. Considering these factors, the Committee did not consider the images represented an intrusion into the complainant’s private life. It also noted the publication had taken additional steps to protect the man’s privacy, such as not including images of him where his whole face was visible – some of his face was obscured by bandages in the image of him in the article. Therefore, the Committee did not consider the article to have breached Clause 2.
18. The Committee also considered the complainant’s concern that including his name and hometown was a breach of his privacy. Clause 2 is engaged when information which an individual has a reasonable expectation of privacy over has been published. The fact of an individual’s name and hometown, was not, in the Committee’s view, private information as defined by Clause 2 – this is basic biographical detail, rather than – in and of itself – detail about the complainant’s private and family life. There was no breach of Clause 2 on this point.
19. Although Clause 2 was not ultimately breached, the Committee noted that the publication had not demonstrated that it had considered whether the publication of information about the complainant served, and was proportionate to, the public interest. It had only said that the relevant editors had considered that the article itself was in the public interest prior to publication, which was not a sufficient defence under the public interest portion of the Code – as there was no reference to whether the publication had considered whether public interest served was proportionate to the alleged breach of the Code. The Committee also noted there is no public interest exception for possible breaches of Clause 1 or Clause 4.
20. The Committee next considered whether the publication of a photograph of the man receiving medical treatment breached Clause 4. While the Committee acknowledged that the articles’ publication had caused the complainant and his family distress, it did not consider the image of the complainant made light of the incident or minimised its importance. The image, taken in conjunction with the article as a whole, conveyed the seriousness of the incident and that the man had received treatment, but did not go as far as to show any graphic details of his injuries. Additionally, while the Committee acknowledged the severe distress the accident had caused, it did not consider that the seriousness of the event reached the high bar set by the terms of Clause 4, which generally relates to serious and fatal incidents. Taking this into account, the Committee did not consider the reporting of the incident to be in breach of Clause 4.
21. The complaint was partly upheld under Clause 1.
Remedial Action Required
22. The published corrections clearly put the correct position on record, and were offered promptly and with due prominence. No further action was required.
Date complaint received: 26/01/2023
Date complaint concluded by IPSO: 26/10/2023
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