00081-24 Odling-Smee v Cambrian News (Aberystwyth)

Summary of Complaint

1. Christopher Odling-Smee complained to the Independent Press Standards Organisation that the Cambrian News breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 3 (Harassment) of the Editors’ Code of Practice in an article headlined “Disqualification report on marina boss / Disqualification report filed on marina director”, published on 10 January 2024.

2. The article – which appeared on the front page and continued on to page 13 – reported that “a report” on the complainant had “been sent to a UK government department under the Company Disqualification Act 1986”. The article stated that the administrators of the complainant’s company had “confirmed they had prepared the report on the company’s sole director” (the complainant), and that it “had been sent to the Department for Business, Energy, and Industrial Strategy as was required by law”. It quoted one of the administrators as follows: “As this is a confidential report we are unable to disclose the contents.”

3. The article continued by stating that the company “fell into administration in July with estimated debts of around £14 million” and that “[p]art of the issue was inter-company debt within the MPG structure with £1,557,540 being owed to the company by a connected enterprise”. The article quoted the complainant as having said: “The report under the Company Directors Disqualification Act 1986 is standard of any administration process”.

4. The article also appeared online in substantively the same format under the headline “Administrators seek to disqualify Aberystwyth marina director”. This version of the article was published on 7 January 2024.

5. On 3 January 2024, four days prior to the publication of the online article and seven days prior to the publication of the print article, the complainant was emailed by a reporter working for the newspaper’s sister publication. The email said that “administrators say they are assessing the viability of an offer from [the complainant] to buy [complainant’s organisation…] and also that they have submitted a report under the Company Directors Disqualification Act”. The email continued: “As previously offered, I would be happy to include any comments you would like to let me have on either or both issues.”

6. In response, the complainant said that he “had previously stated that [he] will not make any comment whilst the transaction is ongoing. The report under the Company Directors Disqualification Act 1986 is standard of any administration process”.

7. In correspondence with the publication prior to the complaint being made to IPSO but after the article was published, the complainant said: “As for the wider picture (which is where there is real news) I have no comment to make at this stage. Please may I ask that I am not again contacted by journalists at either Cambrian News or [sister publication]”.

8. The publication responded to this email by stating: “We will continue to report on your facilities as we see fit. As courtesy, we will contact you for comment. Whether you choose to respond or not is your right. But we will note in any future stories that you declined to comment”.

9. The complainant responded to the publication’s further email as follows : “That’s fine. Just write ‘declined to comment’ on any future article and not contact me. The quality is such there is no point responding anyway. I presume that the IPSO bestows an absolute write [sic] that you do not contact me.”

10. The same day, the publication responded: “No, there is no absolute right. I can refer you to the IPSO website for what a complaint and resolution entails.”

11. On 8 January, one day after the online article was published, the newspaper changed the online headline to “Administrators file disqualification report on Aberystwyth Marina”.

12. The complainant said that the headline’s reference to a “disqualification report” was inaccurate in breach of Clause 1, and expressed particular concern over the original online headline because it suggested administrators were “seek[ing] to disqualify” him. He said disqualification was not being sought and that, whenever a company enters administration, administrators will file a confidential report on the conduct of the director as this is required under the Company Disqualification Act. The fact that such a report had been filed did not mean that disqualification was the requested outcome. He said a director subject to a disqualification report would be afforded the opportunity to respond and he had not been made aware of any such filing. The complainant said the references to the report gave the inaccurate impression that there had been wrongdoing on his part, when in fact the report was a standard part of any administration process.

13. The complainant said the print headline and updated online headline were also inaccurate because the report was called a director conduct report, rather than a disqualification report.

14. The complainant said the article breached Clause 2 because it focused on him as an individual when discussing the broader issues of the company.

15. The complainant also said the approach he had received from the publication’s sister publication as well as subsequent correspondence with the publication itself breached Clause 3, as he had asked the newspaper not to contact him again at any point and it had refused to abide by his request. He also said that the terms of Clause 3 were breached because the article implied misconduct.

16. The publication did not accept a breach of the Code. Turning first to Clause 1, it said the headline was based on a regulatory filing made by the company’s administrators under the Company Directors Disqualification Act 1986. It stated that a source had confirmed on an off-the-record basis that liquidation was taking place primarily because the company had defaulted on its payments to HMRC. In all such cases, the publication said, the director of the company in question would be subject to an unfit person report. The publication referred to section 6 of the Act to support its position on this point. This read as follows:

The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied—

(a)that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and

(b)that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company.

The publication also stated that administrators were required to submit a Conduct Report in all cases of liquidation and that this report would determine whether the director was fit or not.

17. It also said that, following the article’s publication, a second disqualification report had been filed against the complainant under the terms of the same Act. The publication added that the administration process was ongoing, and administrators had said this would likely end in the disqualification of the complainant as a director. To support this, it provided a link to a government webpage that stated: “You can be banned (‘disqualified’) from being a company director if you don’t meet your legal responsibilities” and that,” unfit conduct” included “not paying tax owed by the company”.

18. Despite the fact the newspaper did not accept a breach of Clause 1, five days after being passed the complaint by IPSO, it proposed to publish the following correction in print in its Opinions and Feedback section, as well as online:

“A headline that appeared on cambrian-news.co.uk on a story regarding the director of Aberystwyth marina, the report mis-stated the implications of the standard disqualification report. Cambrian News is happy to correct its error and apologies to Christopher Odling-Smee.”

19. The publication did not accept a breach of Clause 2. It said the article was reporting on matters of public record – the complainant was a company director, and the regulatory findings regarding his directorship were in the public domain – and the terms of Clause 2 therefore did not apply.

20. The publication did not accept its behaviour breached the terms of Clause 3. It said it was best journalistic practice to ask for comment on a story, rather than to accept a blanket response for present and future stories. It said, in relation to this story, a single email asking for comment did not constitute harassment.

21. The complainant disputed that the business was being wound up due to non-payment of taxes. He accepted that HMRC had issued a petition but said that the decision to place the company into administration was made cooperatively after an important source of funds failed. He said that the agreement included a full payment for tax. He added that his funding proposal was moving forward, which would not have been possible if disqualification was being sought against him.

Relevant Clause 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 their private and family life, home, physical and mental 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 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.

Findings of the Committee

22. The complainant had disputed that disqualification against him was being sought. He accepted that a Conduct Report had been filed, but said that this was standard practice in cases of administration. The Committee noted that it did not appear to be in dispute that a Conduct Report had been filed but that there was disagreement over the implications of this report. The publication had stated that all Conduct Reports filed by administrators had to be conclusive as to the appropriateness of the director, and that HMRC had started the process of winding up the company due to a failure to pay tax, something it argued would result in director disqualification.

23. The original online headline stated, as fact, that administrators were looking to disqualify the complainant as a director. However, the publication had not provided anything that supported this claim beyond general speculation that disqualification could be possible in these circumstances and the assurances of an unnamed source regarding the involvement of HMRC. While relying on confidential sources in and of itself does not necessarily indicate a lack of care taken over the accuracy of a claim, in this case, further steps were needed to verify the information published, given it had been came from a single source and had not been attributed as an unverified claim. For instance, despite the language of the Act referring to disqualification orders being made by courts in specific circumstances, the publication had not been able to provide such an order. In addition, the administrators had not confirmed that a disqualification was being sought in this case, and the specific claim that the administrators were seeking to disqualify the complainant had not been put to him prior to publication. On balance, therefore, the Committee considered that the publication had not been able to demonstrate as fact that the administrators were seeking to disqualify the complainant, and that it had not taken sufficient care over reporting whether the complainant was due to be disqualified. There was a breach of Clause 1(i).

24. The inaccuracy featured prominently in the article, including in the headline, and had the clear potential to materially damage the complainant’s reputation, by giving the impression of wrongdoing. For this reason, the inaccuracy was significant and therefore in need of correction under Clause 1 (ii). The publication’s proposed clarification, while offered five days after the complaint was referred to the publication by IPSO, did not make clear to which article it pertained, the specific inaccuracy it was addressing, nor the correct position. As such, it did not satisfy the terms of Clause 1(ii) and there was a further breach of the Code.

25. The print and amended online headlines did not state as fact that disqualification was being sought. Rather, they reported that a disqualification report had been filed. The text of the article explained that a report had been sent to a UK government department under the Company Directors Disqualification Act 1986. As such, referring to it as a “disqualification report” was not an inaccurate or misleading characterisation of the filing. There was no breach of Clause 1 on this point.

26. The Committee then considered the complaint under Clause 2. Clause 2 is designed to ensure that people’s private and family lives are not intruded upon without justification. The article under complaint referred to the complainant in a professional rather than personal capacity and in connection with his role as a company director. There was no breach of Clause 2 on this point.

27. Regarding the complaint raised under Clause 3, the complainant requested that he was “not again contacted by journalists at either Cambrian News”. Requests to desist from specific journalistic activity serve an important function in protecting individuals from persistent and unwanted press intrusion. However, they are usually constrained by a single issue or particular story. A blanket ban on all future approaches, therefore, is not practical or reasonable, given that approaching the subjects of stories is an important way for publications to take care over the accuracy of what they print, and to ensure individuals have the right to respond to claims about them in the press. In addition to this, the only further contact sent after this email were two emails responding to his request; these emails were polite, and served only to explain the publication’s position and IPSO’s remit, rather than a request for comment. There had been no further contact regarding future articles.

28. The Committee also noted that the terms of Clause 3 protect individuals from unwelcome press contact in the context of newsgathering. The terms of the Clause therefore make clear that newspapers must not persist in questioning individuals when asked to desist. In this instance, given that the only further contact were two emails setting out the publication’s response to the request – rather than, for instance, a further request for comment or additional questions – there was no breach of Clause 3. Furthermore, the complainant’s concerns the article implied wrongdoing did not engage the terms of the Clause.

Conclusions

29. The complaint was upheld under Clause 1.

Remedial action required

30. Having upheld the complaint, the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or an adjudication; the nature, extent and placement of which is determined by IPSO.

31. The Committee found that the original online headline inaccurately reported that administrators had sought “to disqualify” the complainant as director. However, the Committee recognised that the publication had attempted to address the inaccurate information: it had amended the headline and offered a clarification, which included an apology, to address the complainant’s concerns, although it did not fulfil the requirements of Clause 1(ii). Therefore, on balance, the Committee considered that a correction was the appropriate remedy. The correction should acknowledge that, while a report had been filed under the Company Directors Disqualification Act 1986, this did not mean disqualification against the complainant as a director was being sought.

32. The Committee then considered the placement of this correction. The inaccurate information had only appeared online, therefore the correction should also appear online. As the inaccuracy had appeared in the headline, a standalone correction should be published. A link to this correction should be published on the homepage for 24 hours before being archived in the usual way. In addition, the correction should be added to the article as a footnote.

33. The wording should be agreed with IPSO in advance and should make clear that it has been published following an upheld ruling by the Independent Press Standards Organisation.

Date complaint received: 08/01/2024

Date complaint concluded by IPSO: 23/07/2024