20134-23 Rothon v manchestereveningnews.co.uk

Decision of the Complaints Committee – 20134-23 Rothon v manchestereveningnews.co.uk

Summary of Complaint

1. Benjamin Rothon complained to the Independent Press Standards Organisation that manchestereveningnews.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy), and Clause 3 (Harassment) of the Editors’ Code of Practice in an article headlined “Revenge porn victim whose stalker ex leaked intimate photos of her online welcomes law change”, published on 7 March 2023.

2. The article – which appeared online only – reported on comments made by a “woman whose stalker ex-partner [the complainant] leaked intimate photos of her online” in response to changes to legislation which would mean that “prosecutors will no longer have to prove intimate and explicit images had been leaked with intent to cause distress”. The article went on to report that the woman, who was named and pictured in the article, “was stalked and harassed by her ex-partner, Ben Rothon” who “posted ‘countless’ images of her on an Instagram account which was shared to her friends and family.” It then said that “a judge [had] found him guilty of stalking causing serious alarm and distress, including an offence for disclosing private sexual content, relating to naked images.”

3. It went on to give further details of the offence, reporting that “[a]fter the break up [of the relationship, the woman]’s friends and family members were followed by an anonymous Instagram account, which posted intimate photos of” the woman. The article then reported that the complainant had been “sentenced to 25 months in prison after being found guilty on one count of stalking causing serious alarm or distress, which included an offence for disclosing private sexual photographs with intent to cause distress.”

4. The article also reported that the woman “sa[id she…] was ‘heartbroken’ to have to prove it in court”, before directly quoting her as having said “I was told by a barrister I’d have to talk through my victim statement in court to prove the Instagram account was damaging to me […] To be told I’d need to talk through the effect it had on me in court was really, really heartbreaking.”

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 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; 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 also said that – as he had pleaded guilty – there had been no trial; therefore, he did not accept that the woman would have been told by her barrister that she would have to speak in court.

7. 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 part of “numerous spurious articles” about a crime for which he had not been convicted, and that this was harassment in breach of Clause 3.

8. 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.

9. 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 'What happened to me when my ex shared revenge porn has to change', published on 3 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.”

10. 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.

11. 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.

12. 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.”

13. 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.

14. 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.

15. 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

16. 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.

17. While the Committee did not consider that the articles 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).

18. 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).

19. 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, and had been published a month after the publication had been made aware of the complaint. The Committee considered that this was a sufficient correction to the original misleading information, where the true position was made clear. The Committee noted that there had been a delay in offering the correction, but also 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 serious nature of the claims and the need to co-ordinate several organisations before providing a response. The correction was therefore sufficient to address the terms of Clause 1 (ii), and there was no further breach of this sub-Clause.

20. 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 she 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.

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 complainant was not in a position to know what the woman had been told by her legal representatives, or whether she had been warned that she may have to speak in court about the impact of the crime on her. The Committee did not establish an inaccuracy on this point, and there was therefore no breach of Clause 1.

23. 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, and that the complainant’s concerns on this point had been appropriately dealt with under this Clause; and that 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.

24. 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

25. The complaint was partly upheld under Clause 1(i).

Remedial action required

26. The published correction put the correct position on record – that the complainant had pleaded guilty –and was offered promptly and with due prominence. No further action was required.

Date complaint received: 06/07/2023

Date complaint concluded by IPSO: 25/01/2024