Ruling

01348-21 IPSO v Tatler

    • Date complaint received

      28th October 2021

    • Outcome

      No breach - after investigation

    • Code provisions

      16 Payment to criminals

Draft Findings of the Complaints Committee – 01348-21 IPSO v Tatler

Summary of Complaint

1. On the recommendation of the Board of the Independent Press Standards Organisation (IPSO), the Complaints Committee of IPSO initiated an own-volition inquiry into whether Tatler had breached Clause 16 (Payment to criminals) of the Editors’ Code of Practice in relation to an article headlined “Diary of a Gen-Z prohibition partygoer”, published on 4 January 2021.

2. The article was presented as a series of extracts, taken from a diary of an anonymous “prohibition partygoer”, detailing their social life during a period of time when “social gatherings were banned” due to Covid-19 restrictions. Over the course of the article, the writer described themselves attending a series of indoor events with large numbers of attendees: a “16 person […] dinner party”; a party in a private underground carpark attended by a “throng” of people, where “attendees have been made very aware that if the police turn up, any fine imposed will be split between the guests"; a “night in the country” with “eight […] of my nearest and dearest”; an “illegal rave” where “400 unknowns disregard social distancing […] There’s not a face covering in sight”; and a “fancy dress fiesta” with “40 or so partygoers”. The writer claimed that they had "rebelled" against "draconian restrictions" and described the "illicit thrill I get simply from disobeying the embargo on mixing between households". The final extract from the diary described the writer as feeling “a little peaky”.

3. Between 29 October and 5 November 2020, London was in Tier 2, and the relevant legislation stated that “No person may participate in a gathering in the Tier 2 area which - (a) consists of two or more people, and (b) takes place indoors”. On 5 November the country went into lockdown for the second time, and the relevant legislation stated that “No person may leave or be outside of the place where they are living without reasonable excuse”. Both pieces of legislation allowed for an authorised person to issue a fixed penalty notice where there was a reasonable belief an adult had committed an offence under the regulations. The legislation described a fixed penalty notice as “a notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to an authority specified in the notice”.

4. The publication confirmed that: the article had been commissioned on 29 October 2020; it had been sent to print on 27 November 2020; and the writer had been paid £400 at the time they were commissioned to write the piece. It noted that Clause 16 of the Editors’ Code states that “Payment or offers of payment for stories […] must not be made directly or via agents to convicted or confessed criminals”. It did not consider the writer to be either a convicted or confessed criminal: they had not been issued with a fixed penalty notice, and even in circumstances where a fixed penalty had been issued and paid, no criminal conviction or record would have resulted. The publication maintained that it was by no means inevitable that the activities described in the article would have resulted in a fixed penalty notice – for example, it noted that journalists had been given special exemptions from some restrictions to ensure that they could effectively report on the pandemic, or the police may have found there was a reasonable excuse for the activity - so it did not consider the conduct of the writer to be criminal. Furthermore, it noted that the police sort to resolve breaches of regulations through engagement and explanation before resorting to enforcement: the writer had therefore been several steps removed from receiving a fixed penalty notice, and even further removed from receiving a conviction, which would have required non-payment of the fine and a court appearance resulting in a conviction. It also provided information from the Joint Committee of Human Rights who called for a decision that no criminal record should result from Covid-19 fixed penalty notices.

5. The publication also stated that the article did not exploit, glorify, or glamourise crime. It said it was a satirical piece, and that the last paragraph of the article recognised that the writer had been exposed to a health risk. It said that when the article was first discussed, the coronavirus guidelines were changing, with members of the public reacting to them differently and that there was public unrest as a result. It said several writers had contacted the publication regarding the underground party scene in England, and after extensive discussion it decided to commission a feature in order to accurately investigate this scene. The publication said during these discussions it was decided that the events in the article were a social phenomenon occurring at a significant moment in history and that it had decided it was in the public interest to report on these events, and that the writer had to attend such events in order to conduct the investigation. It noted that in the time between the article being commissioned, printed and put on sale, the Coronavirus situation had escalated dramatically and on this basis the article was not published online.

Relevant Code Provisions

Clause 16 (Payment to criminals)*

i) Payment or offers of payment for stories, pictures or information, which seek to exploit a particular crime or to glorify or glamorise crime in general, must not be made directly or via agents to convicted or confessed criminals or to their associates – who may include family, friends and colleagues.

ii) Editors invoking the public interest to justify payment or offers would need to demonstrate that there was good reason to believe the public interest would be served. If, despite payment, no public interest emerged, then the material should not be published.

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

6. The Committee considered Clause 16 in relation to both the letter of the Code as well as the spirit. Clause 16 states that payment must not be made to “convicted or confessed criminals or to their associates” for articles which seek to exploit a particular crime or to glorify or glamorise crime in general. In order to establish a breach of this clause, the Committee must be satisfied that: payment had been made for the story; the story exploited, glorified or glamorised a crime; and the recipient of the payment was – or was an associate of – a confessed or convicted criminal.

7. There was no question that payment had been made by the publication to the journalist for this article, and that the article detailed behaviour on the part of the journalist which the journalist themselves suggested in the article would contravene Coronavirus legislation.  There was some ambiguity, however, as to whether an offence under these regulations amounted to a crime, and therefore whether the journalist could be considered a “confessed criminal” under the terms of Clause 16.

8. The Committee considered this question in detail and concluded, on balance, that they could not, for two reasons. First, the context and nature of the offence was relevant: the status of offences established by the emergency Coronavirus legislation was highly unsettled and subject to differing and changing interpretations. Second, the penalty prescribed under the legislation for such an offence was a fixed penalty notice, payment of which discharged the offender of “any liability to conviction for the offence”. In these circumstances, the Committee did not consider that the journalist could be considered a “confessed criminal” in the sense intended by Clause 16. In light of this ambiguity, the Committee further did not consider that the article necessarily amounted to glorification of “a crime”. For these reasons, it found no breach of Clause 16.

9. The Committee noted finally that in reaching this conclusion, it was not making any finding as to the adequacy of the public interest justification advanced by the magazine for the payment for this material.

Conclusions

10. The complaint was not upheld.

Remedial Action Required

11. N/A

 

Date complaint received: 14/06/2021

Date complaint concluded by IPSO: 07/10/2021