Decision of the Complaints Committee – 28167-20
Korsanthiah v thetimes.co.uk
Summary of Complaint
1. Samrit Korsanthiah complained to the Independent Press
Standards Organisation that thetimes.co.uk breached Clause 2 (Privacy) and
Clause 14 (Confidential Sources) in an article headlined “Elephants ‘in trauma’
after illegal export to China from Zimbabwe”, published on 7 November 2019.
2. The article reported that “A group of 32 ‘traumatised’
juvenile elephants” were “being held in concrete pens at an unknown location in
China after being spirited out of Zimbabwe as a court was considering their
future”. The article went on to report that “a video clip acquired by animal
rights activists who have tried for the past year to block the move” suggested
that the elephants were showing signs of distress. The article featured a link
to the clip in question which was shot inside the enclosure by the animals’
trainer who was commenting on their situation in Thai, without subtitles. The
video was annotated with a description of the animals’ situation.
3. The complainant was the elephant trainer who recorded the
footage. He said that by publishing the video with its audio track the
newspaper had breached its Clause 14 obligation to protect him as a
confidential source of information. The complainant said that the publication
must have known his identity was confidential, and the audio track effectively
identified him; he had lost his job as a result. The complainant said that the
fact that he was not the direct source of information to the publication was
irrelevant as there was no reason why the moral obligation should not extend to
confidential sources of information where an intermediary provides the
information to a publication. The complainant said that he had been assured by
another individual, a wildlife campaigner who had directed the complainant to
record the footage, that his involvement in the operation would be kept secret,
but that he did not have any agreement with anyone else in relation to the
footage. Nevertheless, he said that his identity was clearly confidential, and
the publication had failed to contact either the complainant or the wildlife
campaigner for consent to publish the audio prior to publication.
4. The complainant also said the video’s publication
represented an intrusion into his private life in breach of Clause 2. He said
that he did not consent to the recording of his voice being published and that,
in doing so, the publication had revealed his identity as the individual who
recorded the video. The complainant said that he had never publicised his
involvement with captive elephants and that he had a reasonable expectation of
privacy regarding his identity in these particular circumstances as he was part
of a sensitive operation in China, a repressive country in terms of free
expression, which does not have a tradition of dissent or undercover reporting.
The complainant said that he had been identified by the Chinese authorities and
subsequently lost his job and income as a direct result of the video’s
publication, and had been deported from the country. The complainant said that
the case law on which the terms of Clause 2 of the Code are based would
indicate that he had a reasonable expectation of privacy regarding the footage.
5. The complainant accepted that the public interest was
relevant to Clause 2 for the video but not for the audio track; there was no
public interest in revealing that he was the person who recorded the footage.
That was entirely irrelevant to the story, which would have had just as much
impact with subtitles or if a voiceover had been substituted.
6. The publication denied any breach of the Code. It said
that there was no indication that the audio was sensitive and emphasised that
the video was shared as part of a media strategy; it had been shared by a
wildlife campaigner with a WhatsApp group of around 6 journalists, and one of
those journalists had then sent the video to a second group numbering 37
members. The publication said that it was offered the footage by three of these
members, and that it was to be inferred that it had been shared with other
third parties through other channels, including on social media.
7. It said that the Codebook stipulated that “journalists
must protect their confidential sources”, which makes clear that the obligation
relates to the journalist’s own sources; neither the complainant nor the
campaigner were their sources and, accordingly, Clause 14 did not apply. The
publication accepted that the complainant was identifiable from the audio and
did not challenge that the recording was the reason for his dismissal. It
contended however that the complainant had at no point acted as a source in the
journalistic sense; in fact, it was the campaigner who requested that the
complainant obtain the video and subsequently shared it. The publication said
that the obligation of confidence applied at the point at which the campaigner
disclosed the video to third parties, or when it was shared with the first
WhatsApp group. As set out in its position regarding Clause 2, it was not made
aware of any sensitivity regarding the audio of the video and, in the
circumstances in which it was shared, the publication had protected its sources,
and there could be no breach of Clause 14.
8. It denied that the publication of the footage revealed
private information; private information under the terms of Clause 2 typically
relates to information regarding, for instance, one’s health or sex life. The
publication did not accept that it was appropriate for the complainant to
conflate case law with the Code and said that confidential information should
be distinguished from private information. It noted that private information is
defined in the Code as “private and family life, home, health and
correspondence, including digital communications”; the Code did not address
confidential information within the remit of Clause 2. The publication said
that if the confidentiality test were to be applied, the fact that the
complainant was the source of the video may have been information which held
some element of confidence. However, in circumstances where the publication was
not on notice of the sensitivity of the audio and no obligation of confidence
was imposed at the point at which it was passed to the newspaper, and where it
was received and published on the understanding that those sharing the
information wished for it to be made public, the complainant could not have a
reasonable expectation of privacy regarding the information within the meaning
of Clause 2.
9. The publication said that the distress caused to the
elephants by their illegal export and conditions of captivity in China was and
is a matter of high public interest, as acknowledged by the complainant.
10. In response to the newspaper’s comments, the complainant
said that the wildlife campaigner gave the footage to two trusted colleagues on
confidentiality terms, to obtain their opinion on the welfare of the elephants;
the complainant provided the email chain and a more recent email from the second
recipient confirming that she had received the footage on confidentiality
terms. The campaigner told his colleagues that he did not want the footage
published at that time, as it could be easily associated with his visit and he
did not wish for the complainant to be directly implicated, but that he “could
justify” publication of the material “with a big bang in about a week”. The complainant said that one of the
recipients, without the consent of the campaigner, then shared the footage on a
WhatsApp group consisting of scientists and not journalists as claimed by the
publication, and again on confidentiality terms. The complainant accepted that
the video may have then been shared from that group to another, very small
group and that it appeared that someone in one of the groups then shared the
video and audio with the publication’s journalist. Nevertheless, the
complainant emphasised that a WhatsApp group is not the public domain as
messages are encrypted and neither his employers nor the Chinese government could
have found out about the footage and crucially the audio from these groups,
were it not for the publication putting it into the public domain. The
complainant noted that the publication could not provide any evidence of any
other party putting the video in the public domain before it did.
11. The complainant noted that it was not appropriate for
the publication to rely on the Codebook to claim that journalists must only
protect their sources of information, as the Code itself which takes precedence
does not state that publications must only protect “their” sources.
Relevant Code Provisions
12. 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.
13. Clause 14 (Confidential Sources)
Journalists have a moral obligation to protect confidential
sources of information.
14. The Public Interest
There may be exceptions to the clauses marked * where they
can be demonstrated to be in the public interest.
1. 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.
2. There is a public interest in freedom of expression
itself.
3. The regulator will consider the extent to which material
is already in the public domain or will become so.
4. 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.
5. An exceptional public interest would need to be
demonstrated to over-ride the normally paramount interests of children under
16.
Findings of the Committee
15. It was clear that the publication of the footage with
its audio track had identified the complainant as the person who had recorded
the footage, and this had led to serious consequences for him: he had lost his
employment and had had to leave his country of residence. This was a matter of
serious regret. The central question for the Committee was whether it had also
constituted a failure of the newspaper’s moral obligation to protect the
complainant as a confidential source of information.
16. The information in question – the footage and its
accompanying audio commentary – had passed through a chain of contacts before
it reached the newspaper. The Committee noted the sequence of events: it had
been effectively commissioned by the wildlife campaigner, who had assured the
complainant of anonymity; the wildlife campaigner had then shared the footage,
complete with audio, with two colleagues. In doing so, he asked that the
footage not be released at that moment, as it would be too easily associated
with his visit, and he would not like the complainant to be directly
implicated, but that he “could justify” the “material getting out with a big
bang in about a week”. There was no request for the audio to be removed from
the footage in future use; one of those colleagues then passed the footage on
to a WhatsApp group with six participants. (The complainant and newspaper
disagreed as to whether confidentiality restrictions had been mentioned by that
colleague when sharing the material.) It was then passed onwards to a further
group, numbering thirty-seven participants, without any restrictions; 3 members
of this final group then approached the newspaper with it, again with no
reference to any restrictions.
17. It was highly regrettable that the complainant’s identity
had been revealed against his wishes and his expectations, and the Committee
acknowledged the severity of the consequences he had suffered. However, it did
not find that this was a result of a failure by the newspaper. The footage had
been provided to the newspaper without any restrictions and little information
about its origins, and the sequence of transmission demonstrated that the
publication was, at least, two steps removed from the breach of any
confidentiality agreement. The Committee did not adopt the publication’s
argument that the moral obligation under Clause 14 arose only in relation to a
publication’s “own” sources, and it considered that this was not compatible
with the Code’s requirement that it “be honoured not only to the letter, but in
the full spirit”. However, given the circumstances in which the publication had
received the footage, its intended purpose to publicly expose animal welfare
issues, and the nature of the footage itself – which focused on the animals
rather than details of any individuals – there were no grounds to establish
that the publication knew or should have known that the complainant required
protection as a confidential source of information under the terms of Cause 14.
18. The Committee next considered the complaint under Clause
2 (Privacy) that by publishing the audio track which effectively identified him
as the person who had recorded the footage, the publication had intruded into
his privacy. While the Committee sympathised with the complainant’s position, the
footage and audio did not relate to the complainant’s private or family life;
his home; or his health. It had been recorded by him willingly and shared with
the campaigner. While the Committee acknowledged that the complainant had not
intended it to be circulated widely in this form, it did not consider that its
publication in these circumstances amounted to an intrusion into his private
life.
Conclusion
19. The complaint was not upheld.
Remedial Action Required
20. N/A
Independent Complaints Reviewer
21. The complainant 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.
Date complaint received: 06/03/2020
Date complaint concluded by IPSO: 30/11/2020