20850-17 Opik v The Sun

Decision of the Complaints Committee 20850-17 Opik v The Sun

Summary of complaint

1. Lembit Opik complained to the Independent Press Standards Organisation that The Sun breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Rat Opik nuzzles lover’s Lembits”, published on 18 November 2017.

2. The article reported that a former partner of the complainant had “revealed” to the newspaper that in August 2016, he had “accidentally sent her pictures of him nuzzling [named woman’s] boobs as she lay on a sun lounger in a bikini”. The article was illustrated with the photographs which the complainant had allegedly sent; it described one of the photographs as a “saucy snap” and suggested that it showed that the complainant and the woman were “more than ‘just good friends’”.

3. The article explained that the complainant’s former partner had approached the newspaper with the photographs several days after she had published the following tweet: “Just ended the relationship with @lembitopik – the woman with whom he spent Monday night can have him now all to herself”. The Sun and other publications had published coverage which interpreted this tweet as her ending the relationship. The article said that the complainant’s former partner had told the journalist: “He’s always claimed they were just friends but I have had my suspicions. This picture has shows their friendship has crossed a line”. The article reported that the complainant was unavailable for comment.

4. The complainant said that the photographs were private and had been published in the article without his consent. He said that they had been taken while he and the other woman had been on a private holiday together, at a location they had specifically selected because it was private. There had been no other reporting of the holiday and they had done nothing to publicise it. He explained that at the time the photographs were taken, he had been joking with his friend and several other holidaymakers, one of whom took the photographs. They were within a closed courtyard with no visual access from outside of it. He said that there was no public interest justification for publishing this photograph, which had caused severe intrusion into his life, and his relationships with his former partner and their very young child.

5. The complainant further said that the newspaper had used the photograph in order to create an inaccurate story about the nature of his relationship with the other woman; she was not his “lover”, nor was he a “rat”. The complaint said that the newspaper’s characterisation of him in that way was misleading because it implied that he had been engaged in a sexual relationship with the woman, while also in a relationship with his former partner. He also said that it was inaccurate to report that he was “unavailable to comment” on his former partner’s revelations, given that he had put the newspaper on notice in the early hours of 18th November, that he did not consent to the publication of the photographs.

6. The complainant said that contrary to the article’s claim, he did not send the pictures to his former partner, accidentally or otherwise; he did not know how they had come to be sent but said it was extremely unlikely that it had been an accident as they had been transmitted as attachments in three separate emails, minutes apart. He speculated that they had been sent to her from his email account by a third party, or that they were stolen from him. He said that in those circumstances the newspaper, via an agent, had published material acquired by accessing digitally-held information without his consent.

7. The newspaper did not accept that the publication of the photograph represented an intrusion into the complainant’s private life. It said that the location in which the complainant’s photograph had been taken were, in was case, irrelevant. It said that he had consented to it being taken by a relative stranger, and as far as it was aware, at the time of publication, had sent the photograph to his former partner, which limited his expectation of privacy. To find that the location was relevant would be similar to asserting that newspapers cannot publish photographs which are publicly viewable on people’s Facebook profiles, if those photographs were taken inside people’s homes. It said that the salient point under Clause 2 was what the photograph showed. The newspaper noted that the complainant had argued that the alleged “private information” revealed about him was that he was having a private holiday with a friend; it said that the fact of being on holiday with someone is not private. The complainant denied that it showed any sexual activity, and the photograph had been taken by an acquaintance, which suggested he did not regard the activity he had been engaged in as private.

8. While the newspaper did not accept that the publication of the photograph was intrusive, it said that the complainant’s former partner had a right to freedom of expression, and was entitled to talk about the break-down of her relationship. It noted that the complainant had previously spoken publicly about his relationships and said that she was entitled to do the same.

9. The newspaper said that its characterisation of the complainant as a “love rat” was based on his former partner’s belief that he had been unfaithful to her, and not exclusively on the understanding that he had sent her the photographs. It said that the article’s characterisation of the complainant as the woman’s “lover” was not misleading: the article had clearly reported his former partner’s concerns that he was in a sexual relationship with another woman.

10. The newspaper said that it was accurate to report that the complainant was unavailable for comment in relation to the allegations contained in the article under complaint. It said that after interviewing the complainant’s former partner and having learned that the complainant had sent her the photographs, the journalist had attempted to contact the complainant several times. It said that on the 17th November, the journalist contacted the complainant over the phone at around 5.45, and then again half an hour later; the newspaper said that having received no response, the reporter sent an email at 8.45pm.  The newspaper said that the reporter received two emails from the complainant at 11.22pm, and again at 11.54pm; it said that these emails were received after the newspaper had gone to print.

11. The complainant said that he would be prepared to contact the individual who had taken the photographs, who he expected would confirm that the photographs had been taken for a private purpose.

Relevant Code Provisions

12. 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.

Clause 2 (Privacy)*

i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

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.

The public interest

The public interest includes, but is not confined to:

• Detecting or exposing crime, or the threat of crime, or serious impropriety.
  
• Protecting public health or safety.
  
• Protecting the public from being misled by an action or statement of an individual or organisation.
  
• Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.
  
• Disclosing a miscarriage of justice.
  
• Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
  
• Disclosing concealment, or likely concealment, of any of the above.
  
• There is a public interest in freedom of expression itself.
  
• The regulator will consider the extent to which material is already in the public domain or will or will become so.
  
• 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.
  
• An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.

Findings of the Committee

13. The newspaper had been aware at the time of publication that the complainant had not consented to the sharing of the photographs either with his former partner or with a wider audience; this was apparent from the fact that it had reported that he had forwarded the photographs “accidentally”, notwithstanding the complaint’s position that he had not in fact done so. He had not placed the photographs in the public domain otherwise.

14. The questions for the Committee were therefore whether the article, including the photographs, was intrusive into the complainant’s private life such that justification for its publication was required under the terms of Clause 2 – and whether, if so, it had provided a sufficient justification.

15. The photograph had captured a moment which would have only been seen by a small number of people, and had been taken while the complainant had been enjoying a private holiday. Notwithstanding the complainant’s position that he was joking around with a friend and the fact that the photographs had been taken by a third party, they showed an intimate moment with a close friend, which had taken place in a closed courtyard within a private hotel with limited access to the wider public. The newspaper had suggested in the article that the photographs provided grounds to question the complainant’s position that they were “just good friends”, speculating about aspects of his private life.

16. The complainant was entitled to expect that photographs showing an intimate moment with a close friend in a private place, would not be published without his consent. The publication of the photographs clearly had the potential to intrude into his private life.

17. The complainant’s former partner had approached the newspaper in order to speak about the breakdown of her relationship; as enshrined in the Code, she had a right to exercise her freedom of expression. However, the story was focussed on the photograph of the complainant and the woman, and what the newspaper said the photograph showed. The complainant’s former partner had not been present on the holiday, and the photograph had been disclosed to her without the complainant’s consent. The publication of photographs have the potential to be particularly intrusive, and the newspaper had not identified a public interest that would justify the publication of a photograph of the complainant sharing an intimate moment, and the extensive speculation and discussion of this moment. The complaint under Clause 2 was upheld.

18. The Committee then turned to consider the complaint under Clause 1. The Committee noted the complainant’s denial that he was in a sexual relationship with the woman named in the article. The Committee’s role was not to determine the truth or otherwise of the claim that he was the woman’s “lover” or that he was a “love rat”; the question for the Committee was whether the newspaper had taken care over the reporting of the nature of complainant’s relationship with her.

19. In this case, the newspaper had taken care to be clear throughout that the basis for the allegations relating to the complainant’s conduct, were the claims made by his former partner, who, via a social media platform, had suggested that the complainant had been unfaithful to her. The newspaper had further taken care to view the photographs, prior to publication, and to publish the complainant’s denial to the claim of infidelity. His former partner had spoken to the journalist, and had told them that the photographs showed that the friendship had “crossed a line”. The claim that the complainant was the woman’s “lover” or a “love rat”, were presented in that context; the newspaper has taken care to present these claims as that of his former partners. The Committee were concerned at the short amount of time which the newspaper had granted to the complainant to respond to his former partner’s claims. The newspaper’s first approach had been a telephone call at 5.45pm, on the eve of publication, and it had only contacted the complainant in writing later, at 8.45pm. However, in circumstances where the article had contained the complainant’s denial of the general claim of infidelity, and the focus of the article was on the photographs, the existence of which was not in dispute, the Committee did not establish that there had been a failure to take care over the accuracy of the article, and there was no misleading impression, such that a correction was required.

20. It was accurate to report that the complainant had been unavailable to comment on the allegations contained in the article under complaint in circumstances where the newspaper had only received communications from him after the newspaper had gone to print. The complaint under Clause 1 was not upheld.

21. The email chain provided by the newspaper had shown that an email which enclosed the photograph, had been sent from the complainant’s email address to his former partner. The Committee did not find any grounds to establish that the newspaper had engaged in subterfuge in order to obtain this material. The terms of Clause 10 were not engaged.

Remedial action required

22. Having upheld the complaint, the Committee considered what remedial action should be required.

23. The newspaper had published private information in breach of Clause 2. In those circumstances, the publication of the Committee’s adjudication was appropriate.

24. The Committee considered the placement of the adjudication. As the photograph had appeared on p. 7 of the print edition, the Committee decided that the adjudication should be published on p. 7 or further forward. The headline to the adjudication should make clear that IPSO has upheld the complaint, give the title of the newspaper, and refer to the complaint’s subject matter. The headline of the adjudication must be agreed with IPSO in advance.

25. The adjudication should also be published on the newspaper’s website, with a link to the full adjudication appearing on the top half of the homepage for 24 hours; it should then be archived in the usual way. The publication should contact IPSO to confirm the amendments it now intends to make to the article to avoid the continued publication of material in breach of the Editors’ Code of Practice.

26. The terms of the adjudication for publication are as follows:

Following an article published on 18 November 2017 in The Sun, headlined ”Rat Opik nuzzles lover’s Lembits”, Lembit Opik complained to the Independent Press Standards Organisation that the newspaper had breached Clause 2 (Privacy) of the Editors’ Code of Practice. IPSO upheld the complaint and has required The Sun to publish this decision as a remedy to the breach.

The article reported that a former partner of the complainant had “revealed” to the newspaper that in August 2016, he had “accidentally sent her pictures of him nuzzling [named woman’s] boobs as she lay on a sun lounger in a bikini”. The article was illustrated with the photographs which the complainant had allegedly sent.

The complainant said that the photographs were private and had been taken while he and the other woman had been on a private holiday. He said that the photographs been published in the article without his consent. 

The newspaper did not accept that the publication of the photographs represented an intrusion into the complainant’s private life. It said that the complainant had consented to the photographs being taken, and had sent it to his former partner, which limited his expectation of privacy.

IPSO’s Complaints Committee noted that the newspaper had been aware at the time of publication that the complainant had not consented to the sharing of the photographs either with his former partner or with a wider audience; this was apparent from the fact that it had reported that he had forwarded the photographs “accidentally”. The photograph had captured a moment which would have only been seen by a small number of people, and had been taken while the complainant had been enjoying a private holiday. The newspaper had not identified a public interest that would justify the publication of a photograph of the complainant sharing an intimate moment, and the extensive speculation and discussion of this moment. The complaint under Clause 2 was upheld.

Date complaint received: 20/12/2017
Date decision issued: 10/07/2018  

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