27791-20 Soulsby and Summerland v Mail Online

Decision of the Complaints Committee – 27791-20 Soulsby and Summerland v Mail Online

Summary of Complaint

1. Sir Peter Soulsby and Lesley Summerland complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 10 (Clandestine devices and subterfuge) and Clause 12 (Discrimination) in an article headlined “Leicester's Labour mayor Sir Peter Soulsby, 71, who has criticised ministers over city's new lockdown broke Covid rules himself to visit his girlfriend”, published on 30 June 2020.

2. The article, which followed similar coverage in another publication, reported that “The Mayor of Leicester [Sir Peter Soulsby] broke lockdown rules to visit his girlfriend and stay at her house overnight” and that he “flouted the lockdown to go and see his partner Lesley Summerland, 64, and carry out maintenance on her home throughout April and May”. It went on to report that “Speaking to BBC Radio Leicester last month, [Sir Peter] apologised for the error of judgement and admitted ‘it was setting a very bad example […] It can be certainly interpreted as against the spirit of the lockdown, if not against the regulations.’” It stated that “Officers said they would not be taking further action against him because the allegations, which the mayor admitted, were 'historic'”. The article noted that "[t]hroughout May, the Labour politician used his social media account to urge residents to 'stay safe at home'". The article contained a still image of Sir Peter on a ladder outside Lesley Summerland’s house captioned: “Neighbours filmed the Labour Mayor at Ms Summerland’s home on several occasions. Above: The mayor was filmed climbing a ladder while Ms Summerland leaned out of a window”.

3. The article referenced special measures imposed on the city of Leicester shortly before publication: “All non-essential shops will close from today, with law [sic] to be rushed through to underpin the new restrictions […] schools will close from Thursday and will not reopen until next term […] People are advised to avoid all but essential travel to, from, and within Leicester and should ‘stay at home as much as you can,’ but there is no formal travel ban at this stage”.

4. The complainants denied that Sir Peter “broke lockdown rules”, "breached the rules” or “flouted the lockdown”. They said that whilst Sir Peter had apologised for acting against “the spirit of the lockdown”, he had not admitted to breaking the law, specifically The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and no such finding had been made by the police. In their view, the article could mean only that Sir Peter had breached the Regulations given that government guidance could not, by its nature, be “broken”. Further, the complainants said that it was inaccurate to state that Sir Peter had “flouted the lockdown to […] carry out maintenance on [Lesley Summerland’s] home throughout April and May” as it gave the impression that he had stayed at the house during the entire months of April and May and that he had carried out maintenance on the house, both of which were incorrect. Rather, he had stayed for around 2-4 days at the end of April and for a very few nights towards the end of May, in one instance to provide support for Ms Summerland when she was suffering from health issues, and the other to provide security whilst a window was broken and to help fix the window. Moreover, the complainants denied that their behaviour was in breach of the Regulations; they said it was entirely lawful for an individual to support their ill partner and to undertake emergency repairs to households, which amounted to a “reasonable excuse” not to stay at home under the Regulations. The complainants said that the published photograph had been distorted with regard to Ms Summerland’s appearance, making her more prominent, and was incorrectly captioned as she had not leaned out of the window.

5. The complainants also said that the publication of the photograph constituted a breach of Clause 2 by showing them in a location where they had a reasonable expectation of privacy. Whilst the front of the house was visible from the road, they said the particular angle and height at which the photograph had been taken meant that it could not have been taken from a public place. Further, it showed Ms Summerland within her bedroom. They said that the reasons for Sir Peter’s attendance at Ms Summerland’s home were private and the coverage had compounded the intrusive behaviour of neighbours.

6. The complainant said the taking of the photograph constituted a breach of Clause 10 as the film from which it was taken must have been recorded secretly. Finally, the complainants said the article breached Clause 12 as the word “girlfriend” was a pejorative reference to Lesley Summerland’s gender, whilst the description of Sir Peter “carry[ing] out maintenance” perpetuated a sexist stereotype that it is a man’s role to do house maintenance. They said the selective use of the term “girlfriend”, without the corresponding use of “boyfriend”, constituted a breach of Clause 12.

7. The publication did not accept it had breached the Editors’ Code. It said it was entitled to claim that Sir Peter “broke” or “flouted” the rules. It said that the lockdown announced by the government did not allow overnight stays at a house other than one’s own and that it was referring to a breach of the lockdown guidance rather than the law. It said that Sir Peter had spoken publicly to the media about his visits to the house, had apologised and confirmed that he had made overnight stays during April and May, before the lockdown was relaxed. The publication pointed to Sir Peter’s comments to the media on the event, where he had said: “I thought what I was doing was within that guidance”; that “with hindsight I should not have visited”; and that “it was setting a very bad example”. The publication maintained that the article was referring only to a breach of the government’s ‘stay at home’ guidance and not the law. The relevant guidance required people to stay at home and only leave for very limited purposes, such as shopping for basic necessities, as infrequently as possible; undertaking one form of exercise a day; for any medical need, to provide care or to help a vulnerable person; and to travel to and from work, but only where this was absolutely necessary. Whilst the publication said it was therefore unnecessary to examine whether the complainants had breached the Regulations, it argued that the police had not taken action because the alleged breaches were “historic”. It also argued that it was doubtful whether helping someone replace a window opener constituted a “reasonable excuse” within the meaning of the Regulations.

8. The publication did not accept the photograph had been distorted; only magnification had been used to enhance the image.

9. The newspaper denied any breach of Clause 2. The allegations had come to light two weeks prior to publication of the article and had been widely discussed in the media; the complainants’ relationship was not a secret. It argued that the activities captured by the photograph would have been clearly visible to passers-by on the public road and did not reveal anything private. It noted that the photograph had already been in the public domain for two weeks at the time of publication of its article. Towards the end of the IPSO investigation, the newspaper confirmed that the photograph was taken from a neighbour’s house using their mobile phone, but it maintained that it showed a scene which could, in any event, be seen from a public place. Further, it noted Sir Peter’s comments to the press that he was “up a ladder at the front of her house […] hardly trying to hide away”.

10. Whilst it did not accept that there was any intrusion into the complainants’ private lives, it noted the significant public interest in publishing the article and the images. It said the story raised or contributed to a matter of public debate, including impropriety, unethical conduct or incompetence concerning public health during a pandemic. It provided contemporaneous emails between reporters and editorial staff which it said demonstrated that public interest considerations had been referenced amongst editorial staff prior to publication. Such emails referred to Sir Peter’s alleged “public indiscretion” and the special lockdown measures in place in Leicester at the time of publication.

11. The publication denied any breach of Clause 10: the photograph showed what would be clearly visible to passers-by, albeit from a slightly different vantage point. Further, it was not taken with a clandestine device but rather a neighbour’s mobile phone camera, which was not hidden. The fact the complainants did not see it did not mean it was hidden. Finally, it did not consider that the article engaged Clause 12; it noted that “girlfriend” was simply a factual term to describe Ms Summerland’s relationship to Sir Peter and did not agree that describing Sir Peter carrying out work on the Ms Summerland’s house was sexist.

12. The publication offered to change the reference to Ms Summerland from “girlfriend” to “partner”. Upon receipt of the complaint, it also deleted the reference to the visits as having taken place “throughout April and May”.

13. The complainants did not accept this offer as a resolution to the complaint.

Relevant Code 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 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. 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 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.

Clause 12 (Discrimination)

i) The press must avoid prejudicial or pejorative reference to an individual's, race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability.

ii) Details of an individual's race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.

The Public Interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in 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 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

Findings of the Committee

14. The Committee first considered the complainants’ complaint that the article claimed that Sir Peter had breached the Regulations and had, therefore, broken the law.

15. The Committee noted the terminology used in the article in relation to Sir Peter’s activities: the article variously referred to breaches of “Covid rules”, “lockdown rules”, “social distancing rules” and “the lockdown”, and did not report that his activities had been in breach of the Regulations or that he had broken the law. Having reported on Sir Peter’s activities, the article went on to report that additional measures were being introduced in Leicester and made clear that ministers had warned that people faced arrest if they broke those new measures, explaining that laws were to be introduced to underpin the new restrictions. The article, therefore, made it clear when certain restrictions were imposed by law. The Committee did not agree that the references in the article to ”lockdown rules” were necessarily references to the Regulations, as the complainants asserted; the term “rules” could equally be used to refer to guidance. Furthermore, the article reported Sir Peter’s position that he had acted against “the spirit of the lockdown, if not against the regulations” and confirmed that police had taken no further action. In the full context, the Committee did not consider that the headline, or the article as a whole, claimed that Sir Peter had broken the law. There was no breach of Clause 1(i) on this point.

16. Having reached the view that the article did not report that Sir Peter had broken the law, the Committee next considered whether the newspaper’s reporting of Sir Peter’s actions as breaking lockdown rules or flouting the lockdown was significantly inaccurate so as to require correction. The article reported that “[n]eighbours claim they saw [Sir Peter] ‘regularly’ in April” at Ms Summerland’s home; commented on what could be seen in the published images; and referred to "allegations". The article also included Sir Peter’s response to the allegations, reporting that he had apologised for “acting against the spirit of lockdown, if not against the regulations” and for “setting a very bad example”. The Committee noted the newspaper’s position that he had also previously said that although he had “thought” what he was doing was within the guidance, in hindsight he ”should not have visited". The Committee acknowledged the complainant’s position that these comments did not amount to an admission that he had breached the rules of lockdown; however, it was clear that the complainant considered that his actions were ill-judged and felt it necessary to publicly apologise for them. In these circumstances, where the complainant had clearly accepted that he was at fault and had acted against “the spirit of lockdown”, the Committee did not consider it significantly inaccurate to state that Sir Peter had “broke[n] Covid rules". There was no breach of Clause 1(ii).

17. The complainants said that it was inaccurate to report that Sir Peter had carried out maintenance on Ms Summerland’s home “throughout April and May” as it gave the impression that he had stayed at the house during the entire April-May period and carried out maintenance on the home, both of which they said were incorrect. It was not in dispute that Sir Peter had helped to replace a window opener, and it was not misleading to describe this as “maintenance on [the] home”. Further, the phrase “throughout April and May” did not necessarily mean Sir Peter was constantly at the address – indeed, as the article made clear that neighbours said they had seen him attending the property “regularly”. The Committee did not consider that this phrase constituted an inaccuracy requiring correction where Sir Peter had made visits in both April and May. There was no breach of Clause 1 on these points.

18. The Committee considered the complainants’ concern that the photograph had been edited to alter Ms Summerland’s appearance. It noted that the publication disputed this. The Committee was unable to resolve these conflicting accounts as to whether alterations had been made to the image; however, it noted that newspapers are entitled to undertake some editing of images, provided that it does not amount to distortion of an image leading to inaccurate or misleading information. In this instance, the significance of the photograph was that it showed the activity with which Ms Summerland and Sir Peter were engaged during one of his visits to the property; Ms Summerland’s precise appearance was not significant. There was no breach of the Clause 1.

19. The Committee then turned to the complaint under Clause 2 about the publication of the photograph showing the complainants undertaking repairs on a window. The newspaper had initially said that it was not able to confirm the location from which the photograph was taken, as the photograph had originally been obtained and published by a different publication. This was a matter of concern for the Committee: in deciding to publish material obtained by a third party, the publication adopted responsibility for that material to ensure that it complied with the terms of the Editors’ Code of Practice; knowledge of the provenance of material should be central to ensuring compliance with the Editors’ Code.

20. Towards the end of IPSO’s investigation, the publication confirmed the complainants’ position that the photograph had been taken from a neighbour’s house, not from the public road. The terms of the clause, however, relate not to whether a photograph was taken from a public or private place, but rather whether the individuals being photographed were in a place – either public or private – where they had a reasonable expectation of privacy. In this instance, at the time they were photographed, the complainants would have been visible from the public road, Sir Peter being at the top of a ladder outside the house and Ms Summerland being at the window, and a photograph taken from the public road could have included similar information about the complainants. Further, the published photograph did not show the complainants engaged in any private activity – a point alluded to in Sir Peter’s comment that “I was up a ladder in front of her house. That is hardly hiding away”. The Committee also noted that the photograph had previously been published and was, at the date of publication of the article, in the public domain. In these circumstances, the complainants did not have a reasonable expectation of privacy in relation to the information contained in the photograph and its publication did not intrude into the complainants’ private lives. There was no breach of Clause 2.

21. The Committee next considered the complainants’ other concerns about the article under Clause 2: namely a concern that the circumstances around Sir Peter’s visit were private and a concern that the article compounded and encouraged the intrusive behaviour of neighbours. The article did not report on the reasons for Sir Peter’s visits, save that it described what had been visible to neighbours, namely that he had been seen arriving at the property and on one occasion he had carried out maintenance on her home. Furthermore, Sir Peter had publicly addressed the subject of his visits at some length two weeks prior to the publication of the article. The limited information about his visits reported in the article was not information over which the complainants had a reasonable expectation of privacy. There was no breach of Clause 2 on this point. Concerns about the intrusive behaviour of neighbours, beyond that which related directly to the content of the article, were not a matter for IPSO.

22. The Committee considered the complainants’ concern that the photograph was obtained using a hidden camera in breach of Clause 10. There was no dispute that the photograph had been taken by a neighbour with a mobile phone from a window in their house. The complainants said that they had not seen the footage being taken and a hidden camera must therefore have been used, while the publication said it had been filmed openly. The fact that the complainants had not seen the phone did not necessarily mean that it had been hidden. The Committee had regard for the fact that the scene could have been photographed from a public place with an unconcealed device, albeit from a different vantage point; that the published images did not reveal private information about the complainants which required subterfuge to photograph; and that the use of subterfuge would not have revealed anything which could not have been photographed by a camera used openly in a public place. In all these circumstances, the use of a camera from a neighbour’s house did not, in this instance, amount to a breach of Clause 10 of the Editors’ Code.

23. The Committee acknowledged the complainants’ position that the word “girlfriend” was an implicit reference to Ms Summerland’s sex. However, the reference had not been used in a pejorative or prejudicial way; the term is widely used to describe the female partner in a relationship where the couple are not married. There was no breach of Clause 12 on this point. In addition, the publication’s decision to use this term to describe Ms Summerland and not the corresponding term (“boyfriend”) for Sir Peter did not constitute a breach.  

24. Clause 12 covers references to a person’s sex and other protected characteristics. The description of Sir Peter “carry[ing] out maintenance” did not amount to such a reference. Clause 12 was not engaged on this point.

Conclusion(s)

25. The complaint was not upheld.

Remedial Action Required

26. N/A.

Date complaint received: 19/08/2020

Date decision issued: 29/10/2021

 

Independent Complaints Reviewer

 

The complainants complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Independent Complaints Reviewer decided that the process was not flawed and did not uphold the request for review.

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