Ruling

00026-16 Foy v The Sun on Sunday

    • Date complaint received

      5th May 2016

    • Outcome

      No breach - after investigation

    • Code provisions

      10 Clandestine devices and subterfuge, 13 Financial journalism, 14 Confidential sources, 3 Harassment, 8 Hospitals

Decision of the Complaints Committee 00026-16 Foy v The Sun on Sunday

Summary of complaint

1. Barbara Foy complained to the Independent Press Standards Organisation that the Sun on Sunday breached Clause 3 (Harassment), Clause 8 (Hospitals), Clause 10 (Clandestine devices and subterfuge), Clause 13 (Financial journalism) and Clause 14 (Confidential sources) of the Editors’ Code of Practice in an article headlined “Cosmetic op shock”, published on 3 January 2016.

2.    The article was also published online under the headline “Clinics offer surgery and lipo to woman trying to get over love split”.

3.    The article reported the findings of an undercover investigation carried out by the newspaper into private cosmetic surgery clinics. It said that private clinics were offering cosmetic surgery to young women who did not need it. The newspaper’s undercover reporter, aged 20 and described as slender, had visited four clinics telling each one that she was a “hard-up student”, but that she wanted surgery to increase her confidence following the breakup of a relationship. She also told each clinic that her mother objected to her undergoing surgery because of her age. The newspaper reported that three of the four clinics had told its reporter that she could “undergo thousands of pounds worth of arguably unnecessary ops”; while one had said that it would be “morally wrong” to offer her surgery. The article quoted former health minister, Dr Dan Poulter MP, who had said that the investigation had shown that “more needs to be done in order to make sure clinics properly evaluate the reasons why a person wants to undergo cosmetic surgery. If there are underlying emotional issues then it would clearly be inappropriate to operate”.

4.    The complainant was a Sales Team Leader for The Hospital Group, one of the clinics visited by the undercover reporter. The article reported that during a consultation, the complainant had told the reporter, “you’re a young girl, you want to get out there and look the best you can. Wait till you’ve had this done – he doesn’t know what he’s missing!” The article reported that she had quoted £6,495 for breast enlargement and liposuction.

5.    The complainant said that the reporter had used a clandestine recording device and had engaged in misrepresentation in breach of Clause 10. While accepting that the consultation with the reporter had taken place in an office, and not a hospital, the complainant considered that the reporter’s failure to identify herself had also represented a breach of Clause 8. She said the reporter’s misleading conduct and the subsequent publication of the article, which had named her, had amounted to harassment and intimidation in breach of Clause 3.

6.    In addition, the complainant said that the article had included selective extracts from the consultation: she was not a “pushy” salesperson, and she did not engage in “pressure selling” or prey on patients’ emotions. She considered that the reporter had damaged her professional reputation, while profiting from the story in breach of Clause 13. She said the repetition of information that she had provided during a private consultation had also breached Clause 14. She speculated that the newspaper’s source was from a rival company who had sought to damage her employer’s reputation.

7.    The newspaper said that one of its reporters had been contacted by a reliable source who had worked in healthcare for many years and had “extensive knowledge” of the cosmetic surgery industry. The source was not from a rival firm as contended by the complainant. She did not have first-hand experience, but she had been told by colleagues that they were concerned that “vulnerable” young women, who wanted liposuction because it was “fashionable”, were being offered and encouraged to have procedures as an “ego boost”, putting their health at risk. She said that rather than being told to take time to think about their decisions, “they [were] taken advantage of in some cases, sold extra treatments”. For example, a “particularly slim” girl, with no need for breast enlargement or liposuction, had asked for surgery as a “pick-me-up” after breaking up with her boyfriend. The contact’s account was supported by information provided by a second source who also worked in the cosmetic surgery industry.

8.    As the General Medical Council (GMC) had at that time been reviewing guidelines on how clinics should deal with patients, taking into account their psychological needs – and particularly looking at the issue of cosmetic surgery and young people – the newspaper decided that this was a suitable subject for an investigation. Figures from the British Association of Aesthetic Plastic Surgeons (Baaps) had also indicated that there had been a “dramatic increase” in the popularity of plastic surgery in the UK – with liposuction recording a 41% rise, and breast augmentation being the most popular treatment. An investigation to establish whether it was true that these treatments were being offered to “vulnerable and emotionally low” patients was therefore justified in the public interest. 

9.    The reporter’s source had mentioned The Hospital Group, in particular, as offering liposuction to young women who did not “fit the criteria” for surgery. To establish whether there was a nationwide trend, the newspaper also approached three other “big name” clinics that had been on television or had received publicity.

10. The newspaper said that it had decided that the information required could not be obtained by open means. Straightforward approaches would have provided the clinics’ polished versions of events, and specific case studies could not be found in any other way. The Managing Editor and the legal department agreed that an undercover investigation was therefore required, and the subterfuge to be employed was proportionate to the public interest identified.

11. A slender, 20-year-old reporter was selected to carry out the investigation. She visited the clinics telling each one the same backstory, and that she would like to have breast enhancement and liposuction. The meetings were recorded with a video key fob and a dictaphone, which was necessary to support the reporter’s findings and the article. The newspaper provided a copy of the recording, which it considered demonstrated that no real consideration had been given to the reporter’s age, “really tiny frame”, and state of mind.

12. In the recording, the reporter had explained that her mother was concerned about her deciding to have surgery so soon after her breakup with her boyfriend. The complainant had said “was it in your mind before?”, to which the reporter replied “well yeah, I’d always thought about it, just never really acted on it, and now I’m like why not”. In a follow-up meeting, the complainant had said that, like the reporter’s mother, she had been concerned when her daughter had asked for similar treatment, and she offered to meet the reporter’s mother to discuss the matter before she made a decision. The reporter also met with the surgeon and asked for breast implants that were “as big as possible”, to which he replied “that’s alright…but I can’t put anything bigger than what your body can take”.

13. The newspaper said that the complainant had been quoted accurately in the article, and the piece included The Hospital Group’s response, which made clear that a surgeon reviews each case before a patient is submitted for surgery. The newspaper said that the complainant’s job was clearly to offer surgery to young women; there appeared to be no consideration given to whether the patient genuinely needed the surgery; anyone who booked an appointment would be offered treatment.

14. The newspaper said that the reporter had not persisted to question or telephone the complainant once asked to desist; she had not taken advantage of insider knowledge for her own financial gain; the newspaper had not betrayed a confidential source; and the consultation had not taken place in a hospital. As such, there was no breach of Clause 3, Clause 8, Clause 13 or Clause 14. 

15. On receipt of the recording, the complainant considered herself “exonerated”. She had clearly offered to speak to the reporter’s mother about her concerns regarding the treatments; she did not make assumptions or decisions regarding treatments on behalf of her clients; they were able to make their own decisions. 

Relevant Code provisions

16. 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.

Clause 8 (Hospitals)

i)  Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries.

ii) The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions.

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 13 (Financial journalism)

i)  Even where the law does not prohibit it, journalists must not use for their own profit financial information they receive in advance of its general publication, nor should they pass such information to others.

ii)  They must not write about shares or securities in whose performance they know that they or their close families have a significant financial interest without disclosing the interest to the editor or financial editor.

iii) They must not buy or sell, either directly or through nominees or agents, shares or securities about which they have written recently or about which they intend to write in the near future.

Clause 14 (Confidential sources)

Journalists have a moral obligation to protect confidential sources of information. 

The public interest

1.    The public interest includes, but is not confined to:

i.        Detecting or exposing crime, or the threat of crime, or serious impropriety.

 ii.        Protecting public health or safety.

iii.        Protecting the public from being misled by an action or statement of an individual or organisation.

iv.        Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

 v.        Disclosing a miscarriage of justice.

vi.        Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

 vii.        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 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

Findings of the Committee

17. In determining whether the newspaper’s use of subterfuge was justified, the Committee first considered whether it had a reasonably credible belief that subterfuge would uncover material in the public interest, and whether the level of subterfuge employed was proportionate to the public interest the newspaper believed would be served. 

18. A contact working in the healthcare profession had informed the newspaper that there were concerns in the industry that vulnerable people were being sold unnecessary cosmetic surgery procedures by private clinics. The source had made specific reference to the practices at the clinic where the complainant worked, which was a high-profile and nationwide cosmetic surgery provider.

19. The source’s claims coincided with a substantial increase in the number of cosmetic surgery operations taking place in the UK. In addition, the General Medical Council had launched a review of guidelines for doctors who were paid to carry out such procedures, with specific reference made to how vulnerable and young people should be treated. In this context, an investigation to find out whether people were being exploited and sold unnecessary medical treatments, which often involved major surgery, was in the public interest. The newspaper could not have tested the clinic’s practices by open means.

20. The subterfuge to be employed involved the reporter misrepresenting herself during a private consultation with the complainant. Although the Committee understood the complainant’s concern that the misrepresentation had been intrusive, the reporter had appropriately limited the discussion to matters under investigation, exploring the duty of care owed to a prospective client. This level of subterfuge was proportionate to the public interest the newspaper had identified. 

21. The recording of the consultation did not demonstrate that the complainant had acted improperly. Nevertheless, there was still a public interest in reporting on the reporter’s experience at the clinic, and the ease with which a person in her position had been offered cosmetic surgical procedures costing almost £6,500. Contrasting those findings with the reporter’s experience at other clinics informed a debate about whether the practices taking place nationwide were acceptable, which was in the public interest.  

22. The newspaper had justified its methods, and its decision to publish the material it obtained. The complaint under Clause 10 was not upheld.

23. While the complainant had found the newspaper’s use of subterfuge and the inclusion of her name in the article intimidating, this did not represent harassment under the terms of the Code. There was no breach of Clause 3.

24. The complainant was a sales person, not a patient; the reporter had not used financial information to make a profit; and the newspaper had not identified a confidential source. There was no breach of Clause 8, Clause 13 or Clause 14.

Conclusion

25. The complaint was not upheld.

Remedial action required

N/A

Date complaint received: 05/01/2016

Date decision issued: 19/04/2016