Ruling

00514-22 Kiehlmann v Scottish Mail on Sunday

    • Date complaint received

      16th March 2023

    • Outcome

      Breach - sanction: publication of correction

    • Code provisions

      1 Accuracy, 10 Clandestine devices and subterfuge, 2 Privacy

Decision of the Complaints Committee – 00514-22 Kiehlmann v Scottish Mail on Sunday

Summary of Complaint


1. Dr Jonathan Kiehlmann complained to the Independent Press Standards Organisation that Scottish Mail on Sunday breached Clause 1 (Accuracy), Clause 2 (Privacy), and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “SNP researcher is suspended from Commons over tweet 'advocating armed violence'”, published on 24th October 2021.

2. The article included the subheadline, “Sinister photograph of trans woman carrying assault rifle was posted just a day after MP David Amess was stabbed to death” and reported that an “SNP official [the complainant] has been suspended from Westminster by the Speaker over a post apparently ‘advocating armed violence’”. It stated that “the image[…] of a transgender woman at a protest rally armed with an assault rifle, has horrified MPs”. The article said that ”[a] member of the public saw the image and Sir Lindsay Hoyle, Speaker of the House of Commons, was contacted”. Following this, the Speaker “temporarily stripped [the complainant], an SNP researcher working in Westminster, of his parliamentary pass”. It reported that “[t]he image was posted just a day after MP Sir David Amess was fatally stabbed […], an attack that has left all MPs fearing for their safety”. It quoted “One senior party source” who “said: ‘That he should advocate armed violence against women, especially on the weekend of an MP’s murder, should lead to his dismissal for gross misconduct’”. The article stated that the complainant “retweeted a post saying Antifa (anti-fascist) demonstrators should attend terf meetings. That post was part of a Twitter thread which included a picture of a trans woman […] armed with an assault rifle”.

3. The article reported that the complainant had “since deleted his retweet of a post by the American activist Emily Gorcenski, who wrote: ‘Proud to see Antifa showing up at TERF events, a thing I’ve been saying for a long time is necessary.’ She then posted a picture of a trans woman at a rally, holding an assault rifle – which Dr Kiehlmann did not retweet – and the words: ‘What every TERF meeting should see when they look out of the window.’” The article also stated that “a lawyer for [the complainant] said he was not aware of his pass being revoked”. The article further reported that “Nationalist MP Joanna Cherry has complained of suffering abuse from within the SNP, and being branded 'transphobic' and a 'terf' - trans-exclusionary radical feminist - for her views on gender self-ID” and that a source had said “[the complainant] has been 'vocally criticising' Ms Cherry, 'openly and in public'”. The article also included an image of the complainant and the tweet that showed an individual with an assault rifle and appeared with the caption, “INFLAMMATORY: SNP researcher [the complainant], left, and the image at the centre of the latest bitter controversy over trans versus feminist rights”.

4. The complainant said that the article was inaccurate in breach of Clause 1 because the headline, sub-headline, and the first three-quarters of the article suggested that he had retweeted the tweet of an individual holding an assault rifle. He said that the image of the tweet and the caption continued this misleading impression. He stated he had not even seen this tweet, let alone retweeted it. The only tweet that he had retweeted was the statement about Antifa showing up at “TERF events”. The full explanation made clear what he had retweeted and that he had not retweeted the post featuring the armed protester, had not come until late on in the article. He also said the article had reported that he had not retweeted this image without stating explicitly that he had been suspended due to an allegation he had retweeted the image of the armed protester.

5. The complainant said the article was further inaccurate to report that he had been suspended when the publication had been fully aware that the basis for his suspension – a false allegation to the Speaker that he had retweeted the tweet of the armed protester – was false. The publication did not make clear until late in the article the true situation. The publication had made clear that the suspension was temporary but had not made clear that he had been suspended pending an investigation. This investigation had found that he was not guilty and that there was no evidence of any wrongdoing. The complainant added that he was unaware of the suspension as it had not impacted his ability to work and he had not missed any work as a result.

6. The complainant further said that, as the article implied he had retweeted a tweet involving an individual holding an assault rifle, it suggested he advocated violence, and particularly violence against women, which he did not. He cited the quote from a “senior party source” that said “’[t]hat [the complainant] should advocate armed violence against women, especially on the weekend of an MP's murder, should lead to his dismissal for gross misconduct’” as specific evidence of this misleading impression.  He said that gender was not involved and that the original tweet was not gender-based.

7. He said he had been contacted by a reporter, after his lawyer had approached the publication, and had provided a statement that said, “Like everyone else I was devastated by the news of David Amess's death. I spent the last week speaking out against online abuse and all threats, and for support for all on the parliamentary estate, as I have done on many previous occasions. I wish no harm to anyone.” This statement had not been included within the article, which the complainant said contributed further to the inaccurate impression that he was advocating violence.

8. The complainant said the article also breached Clause 1 because it reported a quote from a source that said he “has been ‘vocally criticising’” Ms Cherry, ‘openly and in public’”. He said that where the claim related to him “’vocally criticising’” the MP “openly and in public”, this was a relatively objective claim.  He asserted that he had never vocally criticised the MP “openly and in public” and so the suggestion he had was inaccurate. Furthermore, he said he had not been asked by the publication whether he had criticised the MP. There was a delay in the complainant raising this point and it was brought to IPSO’s attention for the first time in March. The complainant also said that the article breached Clause 1 because it referred to the individual featured in the photograph as a “transwoman”. He said there was no evidence to support the description of this individual as “trans”.

9. The complainant said the article also breached Clause 2 because it implied that he was inciting violence against women, and that this represented a threat to his private life. He said that people he knew had read the article and shared it, and implied he was violent. The complainant also said the article breached Clause 2 because the publication had approached him to ask about the suspension of his pass before he became aware that his pass had been suspended. He also said he had an expectation of privacy that the publication would not find out about his suspension when he was not even aware of it and so was evidently not a serious matter.

10. The complainant also said the article breached Clause 10. He said that the reporter had contacted his lawyer and stated that a source in the Speaker’s office had confirmed his pass was suspended. However, the Speaker’s office stated that this was not the case.

11. During the course of IPSO’s investigation, the complainant suggested the following clarification/correction (alongside the removal of the article from PressReader):

“On 23 October 2011, we published an article "SNP researcher suspended from Commons over tweet 'Advocating armed violence'". In it we noted that a Dr Jonathan Kiehlmann had been suspended over a tweet he did not retweet. We did not note that his suspension was due to a false claim he had shared the pictured tweet. He did not share the tweet in question. In view of this, it was not appropriate to publish the article. The headline referenced a quote attributed to an anonymous SNP source which said Dr Kiehlmann had "Advocated armed violence against women", which is baseless and not true. We chose not to include any quote from Dr Kiehlmann, including the one he provided making it clear he had never and would never advocate armed violence. We did not intend to say he supports any sort of violence against women. We apologise to Dr Kiehlmann for these errors. Additionally, we referred in the subhead to a picture of "A transgender woman" without basis for thinking the women was transgender, or for including that detail in the article. A quote in it from an SNP source claimed that Dr Kiehlmann had been publicly critical of Joanna Cherry: this is not the case."

This was not accepted by the Publication.

12. The publication said it did not accept a breach of Clause 1. It stated that the Twitter user who had posted the tweet showing a person with an assault rifle had done so as part of a thread composed of three tweets. The first tweet stated “’Proud to see Antifa showing up at TERF events, a thing I’ve been saying or [sic] a long time is necessary’”. The second said “The diversity of tactics in combatting hate is necessary.” The third was the comment and image which was reproduced in the article – “What every TERF meeting should see when they look out of the window” and a picture of an individual holding an assault rifle. The publication asserted that the article made clear which of the tweets the complainant had retweeted as it reported that he “retweeted a post saying Antifa (anti-fascist) demonstrators should attend terf meetings” and that this “post was part of a Twitter thread”. The publication said the article had made clear that the complainant had not retweeted the inset image, but that it had been included as part of the Twitter thread. In addition, the publication argued that where the complainant had retweeted the first tweet, this demonstrated his support for the post.

13. The publication also did not accept a breach of Clause 1 regarding the omission of the complainant’s statement from the article. It said there was no obligation under the Code to include a person’s statement and the omission of this statement did not render the article inaccurate or misleading. It argued the statement did not provide additional context or a different perspective.

14. Regarding the complainant’s concern that it was inaccurate to say that he and the tweet advocated armed violence and violence against women, the publication also did not accept a breach of Clause 1. It said that the article contained a quote from a source that said the tweet and the complainant “advocated armed violence” and that this quote was clearly presented as the opinion of the source. The publication said that this source was entitled to express their opinion on the tweet, but whilst the complainant might disagree with that interpretation, reporting the opinion did not make the article inaccurate. Furthermore, the publication also said the Twitter thread clearly advocated violence against feminists who held contrary views to the tweeter. 

15. The publication also said it was not inaccurate for the article to report he was suspended for retweeting the image of the person holding a gun because this was the reason for the suspension. Therefore, it was irrelevant as to whether he had retweeted that specific tweet. Similarly, it said the article had reported the status of the complainant’s pass accurately at the time of publication as the pass was not reinstated until after the article had been published.

16. The publication also did not accept a breach of Clause 1 regarding the claim in the article that “[the complainant] has been 'vocally criticising' Ms Cherry, 'openly and in public'”. It said that this was clearly a quote from a source and attributed as such. The publication stated that it would have been understood as the opinion of the source and that what “criticism” is, can be subjective. Nonetheless, in July, it offered to publish the following wording in the Corrections and Clarifications box on page 2 if it would resolve the complaint:

“An article ‘SNP researcher is suspended from Commons over tweet ‘advocating armed violence’’ (Oct 24) quoted a source saying Dr Jonathan Kiehlmann had been openly critical of Joanna Cherry MP. Dr Kiehlmann denies this; we are happy to put his position on record”.

17. The publication also did not accept a breach of Clause 2. It said that this Clause related to the newsgathering process, and also whether a person had a reasonable expectation of privacy over information that was published without their consent. As such, the concerns the complaint had that people who knew him had read the article did not engage the terms of the Clause. It also did not accept a breach of Clause 2 regarding the information that the complainant’s pass was suspended. It said that this related to his professional life, rather than his private or family life. In addition, his concern that he discovered his pass was suspended after the journalist had been made aware was really an issue for the Speaker’s office. The publication also asserted that the public had a right to know about the conduct of staff working in Parliament that had resulted in the suspension of their pass.

18. Regarding Clause 10, the publication said no subterfuge was used during the research of the article.

19. The complainant said the Twitter thread was made up of five tweets, rather than three. He said the tweet that had caused the controversy was published twenty-five minutes after the initial tweet and, therefore, there was no evidence that this tweet had been part of the thread when he retweeted the only tweet he interacted with. He stated that he retweeted a single tweet, without seeing the rest of the thread, using a Twitter profile that stated retweets do not represent endorsements. He said that it was inaccurate to claim he had supported posts he had not seen. Furthermore, the complainant said that the thread had also included a tweet that said the poster was not calling for violence as it said, “Supporting many kinds of […] legal protest (ie tactics) is far from incitement to violence”.

20. The complainant did not accept the publication’s offered correction as a resolution to his 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 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 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.

Findings of the Committee

21. The Committee noted that the article prominently featured the tweet of an image showing an armed protester with the caption “What every TERF meeting should see when they look out of the window”. This was accompanied by a sub-headline at the top of the page which referred to this as a “Sinister photograph of [a] trans woman carrying [an] assault rifle [which had been] posted on Twitter the day after David Amess’ death” and a headline that the complainant had been suspended from the House of Commons over a tweet “’advocating armed violence’”, following a complaint. However, the newspaper had been aware at the time of publication that the complainant had not retweeted the tweet shown, and which was described in the sub-headline. While this clarificatory information had been included in the article it was not until much later: the ninth paragraph of the article where it stated that the complainant had retweeted a post which appeared in the same thread as the tweet featuring the armed protester, and approximately two thirds of the way through the article it was explicitly stated that the complainant had not retweeted the post in question.

22. The subject of the complaint and the question for the Committee was whether the headline, sub-headline and image of the tweet featuring the armed protester gave the actively misleading impression that the complainant had tweeted the post featuring the armed protester, and whether the clarification included in the article that the complainant had not retweeted it was sufficient to remedy any misleading impression. The Committee considered that it was not necessary to consider the impact of whether the article had specifically reported what the allegation was that led to the complainant’s suspension, given that the central issue was the impression given by the article as to which post had been retweeted.

23. The two inset images showed the tweet featuring the armed protester, which the complainant had not retweeted, and an image of the complainant. The Committee considered that the combination of those images presented side-by-side; the sub-headline which referred to the pictured tweet being posted following the death of David Amess; and the headline reporting the complainant’s suspension over the tweet, was misleading as it gave the impression that the complainant had retweeted the image of the armed protester when that was not the case. The misleading impression was not clarified until more than halfway through the article when it stated that the complainant “did not retweet” the image of the armed protester. The publication had, therefore, not taken sufficient care not to publish misleading information or images and so there was a breach of Clause 1(i). The suggestion that the complainant had retweeted an image of someone with an assault rifle when in fact he had only retweeted a post that noted Antifa attendance in general terms created a misleading impression that was significant and required correction under the terms of Clause 1(ii).

24. The Committee then turned to the omission of the complainant’s statement that he “wish[ed] no harm to anyone” and the complainant’s concern that this furthered the inaccurate claim “he … advocate[d] armed violence” and that he had advocated violence against women more specifically. The Committee acknowledged that the comment from the “senior party source” had clearly been attributed as a quote to that individual. However, this was a serious allegation: that the complainant advocated violence. The complainant had been approached for comment and had provided a statement in which he expressly stated that he “wish[ed] no harm to anyone”. While the Committee noted that the seeking or inclusion of comments from the subject of an article was not mandatory under the Code it acknowledged that it was sometimes necessary to ensure that care is taken over accuracy; particularly when serious allegations were made. In this case, the omission of this part of the complainant’s statement from the article meant he was denied the chance to respond to a serious claim about his conduct and left the claim he advocated violence against women unchallenged. The Committee concluded that, where there was a clear claim that the complainant advocated violence, and where the complainant’s response to this was omitted, the article was misleading, and the publication had not taken care to avoid publishing inaccurate information. There was a breach of Clause 1(i) on this point. The Committee considered this was significant given the seriousness of the allegation made against the complainant.

25. The Committee then turned to the point of complaint regarding whether the complainant had criticised a named MP “openly and in public”. The Committee noted that the quote was clearly attributed to a source; however, where the anonymous source made a statement of fact about the behaviour of the complainant “openly and in public”, in order to take sufficient care not to publish inaccurate or misleading information, the publication should have taken steps to verify the claim prior to publication, such as with an on-the-record source or the complainant. The publication had not demonstrated that it had taken any additional steps to corroborate the claim and had been unable to qualify the quote from the anonymous source. It had not, therefore, taken sufficient care over the accuracy of the claim. There was a breach of Clause 1(i) on this point.

26. The Committee noted that the complainant had an additional concern that the article suggested he “advocated violence” against women specifically. On this point the Committee considered that given that the article claimed that he advocated violence in general terms and found the publication in breach of the Code for omitting his reply, the gender of his alleged targets was immaterial to the central point of complaint. There was no breach of Clause 1 on this point.

27. The publication had offered a clarification regarding the claim of criticism of the MP “openly and in public”, however, no correction had been offered with regards to the two other breaches of Clause 1. Where the correction offered did not cover all the misleading information within the article, there was a breach of Clause 1(ii).

28. The Committee then considered the point of complaint regarding whether omitting that the complainant’s pass had been suspended pending an investigation made the article inaccurate or misleading. Where the complainant’s pass had been suspended at the time the article was published, it was not inaccurate or misleading for the article to include this nor did it need to include that there was an ongoing investigation. There was no breach of Clause 1 on this point. Regarding the complainant’s concern that it was inaccurate to refer to the individual in the image as “trans” because there was no evidence for this, the Committee considered that the complainant  was a third-party in relation to this concern. IPSO may, but is not obliged to, consider third party claims about accuracy. In this case, the complaint related to the individual’s personal characteristics and identity. As such, the Committee concluded it would be inappropriate to consider this point further without the involvement of this individual and made no finding on this point.

29. The Committee then considered the complaint under Clause 2. The complainant had said that the article intruded into his private life by alleging he advocated violence. The article reported on his suspension from work and the reasons behind this. Where the article concerned his work life as a parliamentary researcher and reported his public activity on social media, this was not information which amounted to an intrusion into his private life. There was no breach of Clause 2 on this point. The complainant also said the publication had breached his privacy by approaching him regarding the suspension of his pass before he had been informed by the relevant authorities. The publication discovering and then relaying information to the complainant about his own work life did not engage the terms of the Code: the information did not relate to his private life and, in any case, was revealed only to himself at that point. Therefore, the disclosure of this information to the complainant before he had been made aware through formal channels did not represent a breach of Clause 2.

30. The Committee then considered the complaint under Clause 10. Whilst the complainant had been told by the Speakers’ Office that the publication had not been made aware of the story from them, the publication stated that no subterfuge had been used and the information had come from a confidential source. Clause 10 relates to the obtaining of information by journalists through clandestine means or by deploying subterfuge – for instance, by using undercover reporters. The complaint regarded from where the information had originated. A general concern that subterfuge was involved did not constitute a breach of Clause 10.

Conclusion(s)

31. The complaint was partially upheld under Clause 1.

Remedial action required

32. Having upheld a breach of Clause 1, 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.

33. The Committee considered that the newspaper had not taken the necessary care when reporting on which tweet the complainant had retweeted and had been misleading on this point. Where the article had accurately reported that the complainant had been suspended based on an allegation that he had retweeted the image of the individual holding a gun and did set out some way down the article which tweet the complainant had retweeted, the Committee decided a correction making clear the respect in which the Committee had found the original article to be misleading and setting out the correct position. Similarly, the Committee considered the omission of the complainant’s statement in the context of addressing a claim from a confidential source that he had “advocate[d] violence” represented insufficient care by the publication. Where the allegation that the complainant “advocate[d] violence” was clearly attributed to a source, the Committee considered that a correction that made clear the complainant “wish[ed] no harm to anyone” to be the appropriate remedial action. The Committee also considered the publication had not taken sufficient care when reporting a claim from an anonymous source that he had criticised an MP “openly and in public”. The claim had been placed in quotes and attributed to a source; however, the publication had not taken steps to substantiate this claim. Again, the Committee considered that a correction was the appropriate remedial action in these circumstances.

34. The Committee then considered the placement of the correction. It should appear in the established Corrections and Clarifications column and should make clear that the complainant had not retweeted the post featuring the armed protester, the claim that the complainant had criticised the MP “openly and in public” had not been verified, and that the part of the complainant’s statement that he “wish[ed] no harm to anyone” had been omitted from the article. It should state that it has been published following an upheld ruling by the Independent Press Standards Organisation. The full wording and position should be agreed with IPSO in advance.


Date complaint received:  18/01/2022

Date complaint concluded by IPSO:  15/02/2023

 

Independent Complaints Reviewer

 

The complainant complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Reviewer recommended, on the ground of fairness, that on this occasion the complainant’s proposed correction be included in the decision. The complaint was therefore returned to the Committee to consider further this aspect of its decision. The Committee agreed on a discretionary basis to add the complainant’s proposed correction.