18439-23 Spain v Mail Online

Decision of the Complaints Committee – 18439-23 Spain v Mail Online

Summary of Complaint

1. Luna Spain complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 6 (Children), and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Starbucks manager sacked for ranting at woman she accused of 'transphobia' is an outspoken trans activist whose neighbours are terrified of 'offending by mistakenly saying the wrong thing'”, published on 13 May 2023.

2. The article – which appeared online only – reported on an incident in a coffee shop involving the complainant, who was a staff member at the time. It reported that the complainant “is an outspoken campaigner for trans rights” and included the following information about the complainant: the degree she was studying towards and the institution where she was studying; the town where she was raised; the fact that she had attended secondary school in this town; the name of the secondary school; the town where she was living at the time of the article’s publication; her parents’ names; and a brief description of her parent’s house, including the type of building and the kind of road it was located on, and which town the house was in.

3. The article also said the customer involved in the incident had “claimed that she was in fear of her life after being physically thrown out of the café by [the complainant] and that she then attempted to attack her partner […], who was filming the altercation.”

4. The article then reported that “[n]eighbours along the quiet road where Luna lives […] described her as ‘unique.’ One told MailOnline: ‘Luna has a partner, and they seem a nice enough couple but don’t say a lot to us. Nobody around here has a problem with her sexuality, but people are quite scared of offending her if they say the wrong thing.’” It also quoted a former classmate of the complainant: “Luna was always a big, outspoken character, even at school. She was never afraid to call things out and let’s just say, she wasn’t everybody’s cup of tea. A lot of us have seen the video and have spoken about it”.

5. The article also stated that “Luna is well known within [her current hometown’s] trans community and is an outspoken campaigner on trans issues” and “she attended a vigil for transgender teenager Brianna Ghey”. It then quoted from the complainant’s social media posts: “A fire has been placed in my belly. I’m going to be louder and prouder than ever before. Each day I live as my true self, each day every trans and non-binary person lives as their true self is justice”; “We will not be stopped, we won’t be silenced we won’t be forced in to hiding. Trans people have always been here. AND WE ARE NOT GOING ANYWHERE!! RIP Brianna. We all love and mourn you dearly”; and “Labels are important with gender identity because without labels we wouldn’t have identity. Labels are not the problem. Bigotry and intolerance of difference is the problem. Labels should be celebrated and used to build one’s character and sense of self.”

6. The article included several images of the complainant, including three which showed her with a child – the child’s face was pixelated in the photographs. It also included a video which showed the coffee shop incident.

7. When making her complaint to IPSO, the complainant confirmed that she was also acting on behalf of the child’s guardian.

8. The complainant said the article contained several breaches of Clause 2. Firstly, she said the article had included: several images of her that had been obtained without her consent; unnecessary biographical details; as well as social media posts she had posted. She said that including this level of information meant it would be easy to track her down, and met the threshold for ‘doxing’, which made her vulnerable to physical attack and harassment. She said this information was not easily accessible in the public domain.

9. She said that the article included three images of her with a child, whose face she said had been “poorly pixelated”. She said these images revealed the child’s ethnicity, hair length and colour, and eye colour. She said the child had a right to a private life, and that including these pictures intruded upon that right in breach of Clause 2.

10. The complainant also said that the images published in the article were obtained from a private Facebook account. She said the images were not public at the time of publication nor had they ever been. She provided a screenshot of a Facebook activity log which showed the privacy settings on the images in the article on certain dates. The log showed that the images had been shared with friends only, and that one had been used as a profile picture.

11. The complainant also said that the publication had breached Clause 6 by publishing images of the child. She stated that, although the images were pixelated, the child was identifiable and it was clearly the same child in all the images. The complainant explained that the article had caused distress to the child and that they had been identified by members of the public following the article. She said the child had become the subject of curiosity and unwanted attention at nursery following publication of the article, and she believed the article put the child at risk of harm. She said it was unnecessary to include pictures of her with the child and that their inclusion was intended to be provocative. She also said that the publication could have cropped the image to remove the child, but had chosen not to – it was not necessary to reference the child in the article.

12. The complainant further believed that the publication had breached Clause 10, as she believed that it may have obtained private Facebook images through clandestine means; the images published in the article had not been publicly available, she said.

13. The complainant also said that the headline was inaccurate and misleading, in breach of Clause 1. She said she was not an “outspoken trans activist”, and that this headline claim was not supported by the text of the article. She said that the article had quoted a social media post she had made in memory of Brianna Ghey - a transgender teenager who had been murdered - but this did not prove she was an activist. Rather, she said it showed that she was affected by this tragic murder. She further said that the article’s reference to an opinion of someone who had attended school with her a decade ago did not prove that she was an outspoken trans activist.

14. The complainant expressed further concerns about the headline; namely, that the headline’s claim that her neighbours were “terrified” of her was inaccurate and not supported by the article. She said that describing her as “unique” and part of a “nice enough couple” was not the same as being terrified of her. While she acknowledged they were concerned following the incident, she said it was disproportionate and sensationalist to describe them as being “terrified”.

15. The complainant further said the article was one-sided and biased in favour of the customer involved in the coffee shop incident. She said it had omitted details which were not caught on camera during the incident and that it was inaccurate to state that the customer had been “in fear of her life”.

16. The publication did not accept a breach of the Code. Turning first to the alleged intrusion into the private lives of the complainant and the child, it said that the article did not contain information which breached Clause 2: it had not published the street name where the complainant resided and the other basic biographical details included in the article could be readily accessed via social media, for example on Facebook or LinkedIn.

17. The publication also said the images included in the article had been posted publicly on the complainant’s Facebook account. It said an album containing the complainant’s profile images (current and previous) was accessible prior to the article’s publication and that it would not have been able to access these images if they were restricted. It provided a screenshot which showed a photograph of the complainant, which it had obtained on Facebook; it said that this image was available to view to the general public. Although this image did not appear in the article, it said that this was from the same Facebook account where the other photographs had appeared – though it did not provide screenshots showing that the photographs which appeared in the article were open to the public. The publication said that Facebook’s privacy settings had various levels of access and that the website’s users may not always realise that some parts of their profile remain accessible even if they had restricted other parts.

18. The publication said the photograph of the child had been heavily pixelated prior to publication, and the child was therefore unidentifiable. For this reason, it said the publication of these images did not intrude into the child’s private life in breach of Clause 2. It also did not accept that the photographs of the child breached Clause 6. It said that the child had not been named and had been heavily pixelated to avoid identification or any intrusion into their schooling. It said that an image of the child’s pixelated face would not have prompted any unwanted behaviour directed towards the child.

19. Turning to the specific terms of Clause 6 (iii) of the Editors’ Code, the publication said that neither the child’s welfare nor another child’s welfare was the subject of the images and, as the child’s likeness had been significantly obscured through pixelation, the child had not been ‘photographed’ as defined by the terms of Clause 6 (iii).

20. The publication did not accept a breach of Clause 10. It reiterated its position that the images included in the article had been obtained from the complainant’s Facebook profile and were accessible to the general public at the time of publication. The publication provided an email from the editor of the article to the picture desk, sent on 11 May, requesting that they save the images via the link provided. It said that, if the publication had procured the images by clandestine means or by subterfuge, the editor would have provided the picture desk with the images to save into the system, rather than sending them a link to the images which they would not have been able to access. It said the email not only demonstrated the editor was able to access the images without hindrance using the supplied link but also indicated that the picture desk had similar access, thus illustrating that the photos were publicly available.

21. The publication did not consider the article had described the complainant in an inaccurate manner in breach of Clause 1. With regard to the headline’s claim that the complainant was a “trans activist”, the publication said this was supported by the article which quoted the complainant’s social media posts:

“fire has been placed in my belly. I’m going to be louder and prouder than ever before. Each day I live as my true self, each day every trans and non-binary person lives as their true self is justice. ‘We will not be stopped, we won’t be silenced we won’t be forced in to hiding. Trans people have always been here. AND WE ARE NOT GOING ANYWHERE!! RIP Brianna. We all love and mourn you dearly.”

In another social media post, she wrote:

“Labels are important with gender identity because without labels we wouldn’t have identity. ‘Labels are not the problem. Bigotry and intolerance of difference is the problem. Labels should be celebrated and used to build one’s character and sense of self.”

22. It then said the story came to the attention of the media following her “aggressive” behaviour toward a customer who had made “an honest mistake”. It said that a neighbour was quoted in the article, and that the full quote from the neighbour was: “…people are quite scared of offending her if they say the wrong thing. You saw what happened in the Starbucks and people don’t want that happening to them.” The publication said it was “a reflection” of the aggressive behaviour exhibited by the complainant in the coffee shop. It also said that the article had provided a quote from someone who attended school with the complainant who said to the journalist: “Luna was always a big, outspoken character, even at school. She was never afraid to call things out and let’s just say, she wasn’t everybody’s cup of tea. A lot of us have seen the video and have spoken about it.” Therefore, the publication considered that the article clearly set out the basis for the headline’s claim that the complainant’s neighbours were “terrified of 'offending’ [her] by mistakenly saying the wrong thing”.

23. The complainant said that the screenshot of the Facebook image the publication had provided was from an old account under her previous identity; she said this account had been inactive for two years. She also said this account had never included any of the photographs used in the article.

Relevant Clause Provisions

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.

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.

6 (Children)*

i) All pupils should be free to complete their time at school without unnecessary intrusion.

ii) They must not be approached or photographed at school without permission of the school authorities.

iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child's interest.

v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life.

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.

Findings of the Committee

24. The Committee first turned to the question of whether the information included in the text of the article represented an unjustified intrusion into the complainant’s private or family life in breach of Clause 2. While the Committee accepted that the information included in the article may have related to the complainant’s family life – for instance, the reference to her partner and parents – it did not follow that publishing these details represented an unjustified intrusion into the complainant’s private or family life. The Committee considered that the information was simply biographical detail. There was no breach of Clause 2 on this point.

25. The images included in the article depicted the complainant’s likeness and had not revealed any private information about her; publishing these photographs did not therefore represent a breach of Clause 2.

26. The Committee next considered whether the publication had breached the terms of Clause 6 or Clause 2 by including three pixelated images of a child. In reaching its finding, the Committee carefully considered whether the newspaper’s decision to publish the photographs represented an intrusion into the child’s privacy, related to their welfare, or intruded into their time at school. In this case, the Committee found that the pixelation was sufficient to prevent the identification of the child and, as such, the publication had taken clear steps to reduce the risk of an unnecessary intrusion into the child’s schooling. It further noted that the text of article had not referenced the child or any potential relationship to the complainant. It did not consider, therefore, that the child had been photographed on a matter relating to their welfare. Nor did the Committee consider that the images intruded into the child’s private life, for the same reasons noted above. There was no breach of Clause 6 or Clause 2 on this point.

27. The Committee turned next to the complainant’s Clause 10 concerns. It recognised the complainant’s position that the pictures included in the article were not publicly available at the time of the article’s publication. However, it does not necessarily follow that, because a complainant holds the honest belief that a social media photograph was private, it therefore must have been obtained via clandestine means or subterfuge. To reach a finding that a publication has engaged in such behaviour, the Committee must carefully examine the information it has before it, and be satisfied that there is a compelling reason to believe that a publication has engaged in clandestine activity or subterfuge.

28. The Committee expressed concern that the publication did not appear to have taken any steps to document how it had obtained the images included in the article – for instance, by taking screenshots showing they had been public – and had therefore been forced to rely on a single email, comprised only of a link to a Facebook profile, to demonstrate that the photographs had been legitimately sourced. The Committee noted that it is good practice for publications to keep a record of how images are obtained – for example, screenshots showing the relevant privacy settings. However, while the publication was unable to provide screenshots, the Committee noted the publication’s email to the picture desk, which had been sent prior to the article’s publication. This included a link to a Facebook account, which suggested that the link did contain accessible images. Therefore, on the balance of probabilities, the Committee did not consider that there was sufficient evidence before it to support a finding that the publication had breached the terms of Clause 10.

29. The complainant said the headline was inaccurate and not supported by the text of the article; she disputed that she was “an outspoken trans activist whose neighbours are terrified of 'offending by mistakenly saying the wrong thing'". The Committee noted that the article had quoted a neighbour who had said “people are quite scared of offending her if they say the wrong thing”. The Committee considered that this was sufficient basis for the headline’s characterisation and it was not a significantly inaccurate or misleading summary of her neighbour’s comments. It further noted that the complainant could not speak on behalf of her neighbour as to whether the article had misrepresented how they felt. There was no breach of Clause 1 on this point.

30. The Committee then turned to the headline’s claim that the complainant was an “outspoken trans activist”. It noted that the article had quoted several social media posts which the complainant had posted which related to trans issues; these made wider points about topics such as gender identity and the need for labels. In this instance, where “activist” could be interpreted in various ways, this characterisation was supported and clarified by the article, which made clear the basis for this characterisation: the complainant’s attendance at vigils and their social media posts. In any event, there was no breach of Clause 1 on this point.

31.The complainant had not alleged that the customer had been misquoted or that the article did not accurately reflect the views of the customer, and she was not in a position to say whether or not the customer had feared for her life. The article did not therefore breach the terms of Clause 1 by reporting that the customer “claimed that she was in fear of her life”.

32. The Committee noted that the Code does not address issues of bias or balance and therefore the complainant’s concerns that the article was one-sided and biased in favour of the customer’s perspective did not engage the Code.

Conclusions

33. The complaint was not upheld.

Remedial action required

34. N/A

Date complaint received:  15/05/2023

Date complaint concluded by IPSO:  22/09/2023