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.
19. The complaint was not upheld.
Remedial Action Required
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: 6/3/2020
Date complaint concluded by IPSO: 30/11/2020