20130-23 Rothon v mirror.co.uk

Decision of the Complaints Committee – 20130-23 Rothon v mirror.co.uk

Summary of Complaint

1. Benjamin Rothon complained to the Independent Press Standards Organisation that mirror.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy), and Clause 3 (Harassment) of the Editors’ Code of Practice in an article headlined “'My evil stalker ex leaked my naked pics on Instagram after planting tracker in my car'”, published on 21 March 2023.

2. The article – which appeared online only – reported on comments made by a woman, the complainant’s ex-partner, who the article said was “left ‘terrified’ by her ex-boyfriend as after she left him he turned into a stalker – and then shared intimate photos of her online, making sure her family and friends saw them.” It also reported that “[a]fter escaping the relationship […, the woman’s] family and friends were followed by an Instagram account Rothon had created, using her full name. The account posted ‘countless’ naked photos and videos”. It went on to report that the complainant had “been found guilty of one count of stalking causing serious alarm or distress, which included an offence for disclosing private sexual photographs with the intent to cause distress.”

3. The woman was named and pictured in the article, which went on to say that, during his relationship with the woman, the complainant “turned nasty and became insecure – accusing her of sleeping with coworkers.”

4. The article included further details about the relationship and the complainant, reporting that the woman “had been working in the accounts department for her local council” when she met the complainant, who “worked two floors above her”. It also reported that the woman “claims he would show up unannounced on her nights out with friends, and ‘repeatedly’ asked her if she’d slept with men at work. Then, after returning from a rugby match, [the woman] saw something appearing to be a ‘watch battery’ had fallen out of her boot – and realised she was being tracked”.

5. The complainant said that the article included several inaccuracies in breach of Clause 1. He said that there had never been any videos, nor was there any ‘metadata’ which had linked him to the Instagram account. He said that, as a result, he had not been convicted of an offence involving ‘revenge porn’, and the articles were inaccurate to report that he had been convicted of a crime in relation to the sharing of intimate images; in fact, he had been convicted of stalking causing serious alarm or distress contrary to section 4A(1)(b)(ii) and (5) of the Protection from Harassment Act 1997. He also said that he had not been “found” guilty; he had pleaded guilty on the advice of his barrister.

6. He also said the name used to identify the woman was not the one she had gone by when she knew him; this, he said, was inaccurate reporting. He then said that the woman had never worked for the local council, and disputed that he would “show up unannounced on her nights out with friends”, or that he had “’repeatedly’ asked her if she’d slept with men at work”. He also said that the woman had no way of knowing whether or not he felt “remorse”, and the article therefore inaccurately reported her view that he wasn’t remorseful.

7. The complainant then said that he had not placed a tracker in the woman’s car, and could not possibly have done so, as she did not own a car. He would also have no need to track her, he said, as he was the one who drove her to sports matches, and the police had never found any evidence that he had used a tracker. He also said that it was he who had ended the relationship with woman; she had not left him.

8. The complainant also said that the article breached Clause 2, as it included inaccurate information which he considered intruded on his private life. He further said that the article under complaint was one of “numerous spurious articles” about a crime for which he had not been convicted, and that this was harassment in breach of Clause 3.

9. The publication said that the original article had been provided to it by a reputable news agency and it had relied upon the copy it had provided in good faith. However, it said that it had since become aware, after enquiring with the press agency who supplied the story – who had in turn enquired with the court – that count 2 of the charges against the complainant, which related to “disclosing private images with the intent to cause distress”, had been quashed during the complainant’s sentencing hearing. The publication also accepted that the complainant had pleaded guilty, rather than having been found guilty.

10. In light of this, on 27 September 2023, over a month after receiving the complaint from IPSO, the publication removed the article under complaint. On the same date, it published the following correction, which was also linked on the website’s homepage for 24 hours:

“Our article 'My evil stalker ex leaked my naked pics on Instagram after planting tracker in my car', published on 21 March 2023, told [a woman’s] story after her ex-partner Ben Rothon, 37, was sentenced to 25 months imprisonment and received a 10-year restraining order for a stalking charge in 2019. The article described how [the woman] had 'seen pictures and videos of herself shared with her friends and family via Instagram' after Rothon had 'leaked intimate photos of her online'. It also reported that Rothon had been 'found guilty' of stalking causing serious alarm or distress, including an offence for disclosing private sexual content, relating to naked images. In fact, Rothon pleaded guilty to the only count against him, namely stalking causing serious alarm or distress, contrary to section 4A(1)(b)(ii) and (5) of the Protection from Harassment Act 1997. We would like to make clear that Rothon was not found guilty, but admitted the stalking charge. A second charge of: ‘disclosing private sexual photographs with intent to cause distress’ was quashed by the judge at the sentencing hearing. The article has been removed.”

11. Turning to the claim about the tracker, the publication said that this had been taken from an earlier 2019 article about the complainant’s offences, and that it was entitled to rely on this information from the public domain. However, given the length of time that had passed, it no longer had access to the documentation it had relied on for the 2019 article. Therefore – on the same date that it published the above correction – it also proposed to add to its correction to put the complainant’s position on record; the additional proposed correction read as follows:

“The article also referenced a 'tracker' in the headline and reported that [the woman] had found something resembling a 'watch battery' in her car boot following a rugby match, and 'realised she was being tracked'. Ben Rothon disputes this point and has advised that he drove [the woman] to rugby matches and therefore would not need to track her, and advised that the police were never shown evidence of such a tracker. We are happy to put Mr Rothon's comments on record.“

12. During IPSO’s investigation the publication was again contacted by the press agency who provided the article. The press agency said that, having obtained a transcript of the court proceedings against the complainant, while the transcripts showed that the second charge against the complainant had been quashed, this was because the ‘revenge porn’ elements of the second charge against the complainant were “encompassed” by the first charge; the second charge had not been dropped because the court had not found that the complainant had distributed sexual images of the woman, but rather because the second charge was not needed.

13. The transcripts provided by the agency to the publication included the following excerpts:

Prosecution barrister: […O]n the last occasion, the defendant, I understand, entered a guilty plea to count 1 on this indictment, the harassment charge. Count 2, charged in relation to what’s commonly known as “revenge porn” but sharing sexual material online; and the representations were made and, with respect, your Honour concurred that, in fact, the way that count 1 was drafted rather encompassed that which was alleged in count 2 […] It was made clear that the plea to count 1 was on a full facts basis and did encompass that which had been cited as the subject of count 2…

[…]

The complainant’s barrister: It can simply be dismissed or quashed, I think, with an open indictment. We can amend the indictment by the removal of count 2; accepting, as we do, that it’s encompassed […] within count 1.

[…]

The Judge: Right; so will you upload an amended indictment, then, that just has the one count on it, please [...] So we’ll just say that that has been – because no plea was ever taken […] that’s been dismissed. Right.

[…]

Prosecution: And then comes that which was encompassed by what had been count 2: naked pictures and a video of the [woman…] and they were shared over the social media.

The Judge: They’re on the Instagram account, aren’t they?

Prosecution: Your Honour, yes.

14. The transcripts also included the following sentencing remarks from the Judge, which were addressed to the complainant:

“Her friend received a message on the 21st of October via Instagram which contained, as we know, naked photographs and a video. […]. Family members and work colleagues and any followers of hers on Instagram will, of course, seen that material.”

15. The publication said that the name used in the article for the woman was the one she had provided; it was entitled to refer to her by this name and doing so did not represent a breach of the Code. It also said that it did not accept that, by reporting on the woman’s account of what had happened during her relationship with the complainant – that he “accused” her of infidelity and would follow her on outings with friends – it said that, when read in the context of the article as a whole, it was clear that this was the woman’s version of events. It also said that it did not consider it to be significant to the article who ended the relationship.

16. Turning to the alleged breaches of Clause 2 and Clause 3, the publication said that the concerns raised by the complainant did not engage the terms of these Clauses and there had been no breach of the Code.

17. The complainant said that the corrections did not resolve his complaint. He also said that he had no recollection of the intimate photographs and video having been referenced during his sentencing hearing, and he had asked his mother and she also had not heard this reference from the viewer’s gallery. He said that, had he been aware of such references, he would have amended his plea and gone to trial – as it remained his position that he had not shared intimate photographs and a video of the woman.

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.

Findings of the Committee

18. The complainant had pleaded guilty to the first count on the indictment, the harassment charge, and the second count, the offence commonly known as ‘revenge porn’, was not pursued at the complainant’s sentencing hearing. The Court considered which of the complainant’s acts had amounted to harassment and that these had been “encompassed” by the acts which had been cited in support of the second count, including the sharing of naked pictures and a video on an Instagram account which the court heard had caused huge distress. The Judge had also made clear that this ‘global offending’ could be dealt with under the single count. While the Committee acknowledged that the complainant had pleaded guilty to only one offence of harassment, given the acts of the complainant which the court took into account when sentencing the complainant for this offence, it was not significantly inaccurate or misleading to report that the complainant had been convicted “on one account of stalking causing serious alarm or distress, which included an offence for disclosing sexual photographs with the intent to cause distress”. Similarly, in these circumstances, it was not significantly inaccurate or misleading to report that the complainant’s ex-partner was a “victim” of “revenge porn”. In light of the remarks made by the Judge at the hearing, the Committee considered that the court transcript did not substantiate the complainant’s claim that the offence for which he had been convicted had not involved the distribution of sexual images; the articles were not inaccurate, misleading, or distorted on this point, and there was no breach of Clause 1.

19. The Committee noted that people may go by different names in different aspects of their life. Provided care is taken to ensure articles are not inaccurate, misleading, or distorted, and any significantly inaccurate, misleading, or distorted information is corrected promptly and prominently, the use of pseudonyms or non-official names would not generally represent a breach of the Code. In this case, there was no dispute that this was the name the woman had provided. In addition, any discrepancy between the two names did not represent significantly inaccurate, misleading, or distorted information: it was clear who was being referred to, as she was pictured in the article. There was no breach of Clause 1.

20. The Committee did not consider that the location of the woman’s workplace at the time of the beginning of the relationship represented a possible significant inaccuracy in need of correction; it did not materially affect the accuracy of the article, where its focus was on her experience as a victim of a crime rather than her professional history or biography. The Committee further noted that the article did not claim that the woman had ended the relationship, only that she had “escaped” it; the article was therefore not inaccurate on this point in the manner suggested by the complainant. In such circumstances, there was no breach of Clause 1 on these points.

21. The Committee noted that the publication may have faced difficulty in establishing the accuracy of the woman’s claims about what happened during her relationship with the complainant, given the passage of time and where the claims related to matters only the complainant and his ex-partner would have been aware of, and that its obligation was to take care over the accuracy of what it published, and to distinguish between the woman’s comments on her relationship and established fact. In this case, the Committee felt that, by clearly attributing these quotes about the relationship to the woman and presenting them as her perspective on the relationship – separate to the criminal charges against the complainant – the publication had met this obligation, and there was no breach of Clause 1 on this point.

22. The Committee separately considered the question of whether the article inaccurately reported that the complainant had planted a tracker in the woman’s “boot”. It considered this element separately given the serious nature of the claim, and the prominence of the claim within the article – where it formed part of the headline, which conflated the criminal charges the complainant had faced with an allegation which did not appear to form part of the charges. However, it remained the case that the Committee was not able to rule on the accuracy of the claim, given the passage of time and the fact that the complainant could not be expected to prove a negative. However, presenting a serious and unverified allegation against the complainant as established fact – which the headline did – was a breach of Clause 1 (iv), and significantly misleading. Therefore, it required correction under the terms of Clause 1 (ii).

23. While the Committee did not consider that the article had inaccurately reported the charge faced by the complainant, it noted that whether or not someone pleads guilty or not guilty would have an impact on legal proceedings; a guilty plea would have meant that no trial would have been held. In such circumstances, reporting that the complainant was “found guilty” was misleading. This was a failure to take care not to publish misleading information, and there was a breach of Clause 1 (i).

24. Given the importance of correctly reporting on legal proceedings in the interest of open justice, the Committee considered that the inaccuracy was significant and therefore required correction under the terms of Clause 1 (ii).

25. The Committee turned next to the question of whether the publication had corrected the significantly misleading information promptly and prominently, as required by the terms of the Code. The correction made clear that the complainant had pleaded guilty, rather than having been found guilty. This was published a month after the publication had been made aware of the complaint; and it proposed to add to this correction on the same date. The wording of the proposed addition to the correction set out that the complainant disputed the claim about him having placed a tracker in her car boot, and his basis for doing so. The Committee considered that this was a sufficient correction to the original misleading information; by putting on record both that the complainant had pleaded guilty, as well as the fact the complainant disputed the article’s claim about having placed a tracker in the woman’s car boot. It was also offered in a sufficiently prominent position, where the original article had been removed: as part of a stand-alone correction, to be linked on the website’s homepage.

26. The Committee noted that there had been a delay in offering the correction but also noted that, in the time between receiving the complaint and offering the correction, the publication had had to reach out to the agency which provided the original article to establish what precisely in the article may be inaccurate, and the agency itself had had to reach out to the court and await their response. There was, therefore, a clear reason for the delay, which was a proportionate one given the seriousness of the claims and the need to co-ordinate several organisations before providing a response. The complainant had also expressed dissatisfaction with the original correction, and the publication was therefore justified in not publishing its proposed amendment and not doing so did not represent a lack of promptness in breach of Clause 1 (ii). The correction and proposed addition was therefore sufficient to address the terms of Clause 1 (ii), and there was no further breach of this sub-Clause.

27. The complainant had argued that the article intruded into his private life as it included inaccurate information. The Committee noted both that the terms of Clause 1 relate to the publication of inaccurate information; that the complainant’s concerns on this point had been appropriately dealt with under this Clause; and the majority of the information in the article about the complainant related to court proceedings in the public domain. There was, therefore, no breach of Clause 2.

28. The publication of a single article did not represent harassment on the part of the publication; this did not reach the bar of a pattern of behaviour on the part of the publication which could be said to be harassing. There was no breach of Clause 3.

Conclusions

29. The complaint was partly upheld under Clause 1 (i) and Clause 1 (iv).

Remedial action required

30. The amended correction which was offered clearly put the correct position on record – that the complainant pleaded guilty and disputed that he had placed a tracker in his partner’s boot – and was offered promptly and with due prominence, and should now be published.

Date complaint received: 06/07/2023

Date complaint concluded by IPSO: 25/01/2024