Ruling

01789-21 Brewerton v Telegraph.co.uk

    • Date complaint received

      3rd March 2022

    • Outcome

      No breach - after investigation

    • Code provisions

      1 Accuracy, 10 Clandestine devices and subterfuge, 2 Privacy, 3 Harassment, 4 Intrusion into grief or shock

Decision of the Complaints Committee – 01789-21 Brewerton v Telegraph.co.uk

Summary of Complaint

1. Keith Brewerton, acting on behalf of himself and his son Aled Brewerton, complained to the Independent Press Standards Organisation that Telegraph.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment), Clause 4 (Intrusion into grief or shock), and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “'You have no authority here!' Handforth Parish Council meeting goes viral after massive row on Zoom”, published on 5 February 2021.

2. The article, which appeared online only, reported on the response to a parish council meeting which had a few earlier days gone “viral” on social media and been covered widely by the press. The article included a three-minute clip of the meeting, and summarised the events of the meeting itself; reporting that a councillor was removed from proceedings, which prompted “an angry response from another member of the committee, who loses his patience with the ‘illegal’ meeting and demands that his fellow members ‘read the standing orders - read and understand them!’” The article further said that the meeting showed “power hungry councillors accus[ing] each other of ‘appalling behaviour’ and acting like ‘laughing hyenas’” and that the councillors “struggled to adapt to new technology” as they held the meeting over a video-calling platform.

3. The article also reported that the meeting “opens with a war of words between two of the councillors” and that “others [in the meeting] are unimpressed by those not taking the proceedings seriously, with one councillor accusing a colleague of ‘sitting there like a laughing hyena’”.

4. Prior to the complainant making a complaint to IPSO, his son contacted IPSO to request that it make the press aware that he was “very concerned about unwarranted and unsolicited approaches from the Press including: emails, telephone calls and visits to my home” and that he “do[es] not wish to speak to the Press and wish that journalists do not come into the area surrounding my home”. This notice was circulated by IPSO to the press – including Telegraph.co.uk – on 5 February 2021, at 5:41pm.

5. The complainant said that the article was inaccurate in breach of Clause 1; the video of the meeting included with the article had been altered, with sequences changed and interactions omitted. He said that these alterations meant that the video was not an accurate or correct record of what had happened during the meeting. The article also, he said, omitted the fact that his son and his fellow councillors had been “illegally evicted” from the meeting, which he considered to represent a further inaccuracy in breach of Clause 1.

6. The complainant also considered that the video included in the article breached Clause 2, as he appeared in the video and said that he had not been informed at the time that the meeting was being recorded. Both complainants had been in their home when the video was recorded, therefore the complainant said that the use of the video intruded on their private life; they did accept, however, that the video had been uploaded to YouTube prior to the article’s publication. The complainant further noted that, while the public were able to watch the meeting, this was via a link only, and approximately 5 to 6 members of the public attended the meeting.

7. The complainant then said that he considered that Clause 3 had been breached, as a journalist from the publication had attempted to call his home. The call, the complainant said, was made sometime between 5 February 2021 and 8 February 2021.

8. The complainant also said that he considered that Clause 3 had been breached by the article itself, as it included material which was not compliant with the terms of the Clause; namely, the video, which he considered had been recorded illegally.

9. Turning to Clause 4, the complainant said that he considered this Clause had been breached as he did not consider that publication of the article had been handled sensitively. He believed that the publication should have done so, where the viral video had led to great shock amongst his close and extended family.

10. The complainant then said that he considered that the use of the video breached Clause 10, as he believed it had been recorded illegally on a secondary device, such as an iPad; he said he knew this was the case as had it been recorded directly from a computer, it would have shown a recording logo and there wasn’t one present in the video. He said that the press had a duty to ensure the video had not been recorded illegally, and that it had not done so in this case.

11. The publication did not accept that the article breached the Editors’ Code. Turning first to the complainant’s Clause 1 concerns, it noted that he had not listed exactly what in the article was inaccurate, but noted that the complainant’s position – that he had been “illegally evicted” – was reflected in the headline and article itself; the article made clear that, upon a council member being evicted from the meeting, another participant referred to the meeting as “illegal”. It further said that the three-minute clip of the meeting was a fair and accurate summary of a meeting which lasted over 80 minutes.

12. Addressing the complainant’s Clause 2 concerns, the publication said that the video showed a public meeting which – according to the Council’s own website – had been properly called and was available to be viewed by the public upon request. The publication further noted that the Public Bodies (Admission to Meetings) Act 1960 – which applies to Parish Council meetings, such as the one depicted in the video –  makes clear that “while the meeting is open to the public any person attending is to be permitted to report on the meeting" and that Section 1(9) of the Act states: "’reporting’ means - (a) filming, photographing or making an audio recording of proceedings at a meeting; [or] (b) using any other means for enabling persons not present to see or hear proceedings at a meeting as it takes place."  The publication also noted that 11 members of the public were present at the meeting and it was therefore open to the public and subject to the provisions of the Act. It did not, therefore, accept that the complainant had a reasonable expectation of privacy with regard to the video which was included in the article.

13. While the publication strongly disputed that the terms of Clause 2 were engaged, it noted that the terms of Clause 2 were subject to a public interest defence under the terms of the Editors Code. Given that the reporting of the proceedings of local governments and council meetings were a matter of clear public interest, it said that – should the Clause be found to be engaged – there would still be no breach, owing to the strong public interest in reporting on a matter of public debate.

14. The publication accepted that a journalist working for the publication had telephoned the complainant’s son, but said that this phone call did not amount to a breach of Clause 3. The journalist had attempted to contact – on a single occasion prior to 1:49pm on 5 February 2021 – the complainant’s son on a telephone number used by the complainant’s son for council business; this was prior to the circulation of the IPSO notice setting out that he did not wish to be contacted.  It said that its position on this point could be supported by an email from the journalist – which it provided – which was sent after the phone call at 1:49pm, and referred to the call having been made. Once the publication had been made aware that the complainant’s son did not wish to be contacted, it did not attempt to contact him again.

15. The publication did not accept that the terms of Clause 4 were engaged by the complainant’s concerns, and noted that the terms of the Clause are intended to provide individuals with additional protections following a death or traumatic event. The occasion of a parish council meeting receiving unwanted press attention did not reach this bar, and therefore it said the terms of Clause 4 could not be said to have been breached.

16. Regarding the Clause 10 concerns, the publication said that – regardless of how the video had been recorded, which it was not in a position to know – it could not be said that it had sought to obtain or publish material acquired covertly. It also said that – while it did not consider that the Clause was engaged – that there was also a public interest in reporting on the proceedings of public meetings.

17. Following the publication’s response, in which it had noted that the complainant had not particularised his concerns over the accuracy of the article, the complainant said that he had identified the following inaccuracies within the article. He noted his position that it was inaccurate for the article to refer to one of the meeting participants as a “member of the committee”, as the meeting shown in the video was a full Council meeting, not a Committee meeting. He then said that it was inaccurate for the article to report that he and his colleagues were “power hungry councillors”, as they were attempting to raise valid concerns over the running of the council. He further said that he had not “struggled to adapt to new technology” as he was adept at using the video-calling software on which the meeting was held.

18. The complainant then said that it was inaccurate for the article to report that the meeting “opens with a war of words between two of the councillors”, as one of the people involved in the “war of words” was not a councillor. He further noted that the article statement that “one councillor accus[ed] a colleague of ‘sitting there like a laughing hyena’” was inaccurate for the same reason, as the statement was directed at him and he was not a councillor and therefore not a colleague of the individual who had made the statement.

19.  The complainant then said that the provisions of the Public Bodies (Admission to Meetings) Act 1960 did not apply, as the meeting had not been properly called. Therefore, he said, he had a reasonable expectation of privacy over the video which showed him in his home and which he said he had not known was being recorded. He further said that the matter of whether the video was in the public domain prior to the article’s publication was not relevant.

20. The publication expressed concern that the complainant had been permitted to expand on his original complaint during IPSO’s investigation but said that – not withstanding this concern – it did not consider that any of the alleged inaccuracies flagged by the complainant constituted significant inaccuracies in need of correction under the terms of Clause 1. It said that they were clearly the publication’s characterisation of the meeting, and could be supported by the video clip included with the article.

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 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 4 (Intrusion into grief or shock)

In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.

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.

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

21. The Committee noted first that it was not in dispute that the three minute clip of the meeting included with the article was an excerpt from the recording of the meeting. It was clear from the description of the meeting included in the text of the article that it was only an excerpt, rather than an unedited recording of the meeting in full, and that it had been included as an illustration of some of the exchanges which had taken place during the meeting. In these circumstances, the Committee did not consider that the publication of the video in this format was significantly inaccurate, misleading, or distorted; there was no breach of Clause 1

22. The complainant had said that the article was inaccurate as he considered that one of the participants in the meeting had acted “illegally”, and that omitting this rendered the article inaccurate. The Committee noted that none of the participants had faced any criminal or civil prosecution at the time of the article’s publication, and that the allegation of illegal behaviour was a serious claim which not supported by any publicly available information at the time of the article’s publication. In addition, the Committee noted the context of the article; it was reporting on a widely available viral video and was not a report of any legal proceedings connected to the meeting, nor did it purport to examine the legal context behind the meeting. The Committee further noted that the article and accompanying video made clear that some participants believed that the meeting was being held illegally. With these factors in mind, the Committee did not consider that omitting the complainant’s allegations from the article rendered it inaccurate in breach of Clause 1.

23. The complainant had raised a number of points of inaccuracy in relation to the publication’s account of the meeting, though he had not particularised his accuracy concerns in his first complaint to IPSO. While the Committee noted the publication’s concerns that the complainant had only fully set out his accuracy concerns during IPSO’s investigations, it did not consider that this prohibited it from making a finding on these concerns, where the original complaint had been made in time and under the terms of Clause 1, and the complainant’s further explanation of the grounds for the Clause 1 complaint had been submitted at an early stage of IPSO’s investigation.

24. The Committee did not consider that it was significantly inaccurate, misleading, or distorted to refer to one of the meeting participants as a “committee member” despite that meeting being a full council meeting, where this formed only a passing reference in the article and the complainant did not dispute that – although the article reported on a full council meeting, rather than a committee meeting – the referenced member was also a committee member.

25. The article under complaint had described meeting participants as “power hungry councillors” who “struggled to adapt to new technology”, which the complainant contended was inaccurate. The Committee noted that Editors’ Code of Practice makes clear the press has the right to give its own opinion, so long as, that in doing so, it distinguishes between comment and fact. In this instance, the Committee considered that the nature of the description made clear that it was the newspaper’s view of the events of the video, rather than an objective statement of fact: “power hungry” and whether or not an individual is “struggl[ing] to adapt to new technology” are inherently subjective descriptions. In addition, the characterisations of the publication had a clear basis: the video itself, which was included in the article. The Committee further noted that the article did not claim that the complainants were power-hungry, or that they had struggled with the technology; this claim was directed at all meeting participants. There was no breach of Clause 1 on these points.

26. The complainant had expressed concerns framed under Clause 1 that the article had inaccurately described him and another meeting participant as councillors. The Committee noted that this did appear to be inaccurate; the complainant was the father of a councillor, and the other meeting participant a public official. However, it considered that these inaccuracies were minor and insignificant in the context of the article; the inaccuracies did not alter the accuracy of the thrust of the article, which was that a contentious meeting in which a majority of the participants were parish councillors had taken place and had subsequently gone viral. There was no breach of Clause 1 on this point.

27. The terms of Clause 2 make clear that, when considering an individual’s reasonable expectation of privacy, account will be taken of the extent to which the information complained of is in the public domain. In this instance, the complainant considered that the video included in the article – showing him and his son in their home – breached the terms of the Clause. However, the video showed proceedings at a public meeting held by a public body. Further, the video was available on Youtube at the time of the article’s publication and had been viewed well over a million times. In these circumstances, the Committee did not consider that the complainant had a reasonable expectation of privacy over the video. There was, therefore, no breach of Clause 2.

28. The publication had provided an email which it said demonstrated that the phone call to the complainant had been made prior to his son’s request not to be contacted, and the complainant did not dispute this timing. Where Clause 3 does not prohibit publications from contacting individuals for comment where no request to desists has been made, provided the contact is not intimidating or harassing, and there was no request to desist in place at the time of the phone call, there was no breach of the Clause.

29. While Clause 3 (iii) makes clear that Editors should ensure that the principles of the Clause are observed by those working on its behalf, the principles of the Clause relate to behaviour by journalists which could constitute harassment. The complainant did not allege that the video which he considered breached Clause 3 had been obtained by the publication – or individuals working in its behalf – engaging in harassing behaviour towards him. There was no breach of Clause 3 arising from the use of the video.

30. While the Committee understood that the video going “viral” had caused distress to the complainant, it noted that the terms of Clause 4 generally relate to cases involving bereavement, injury, and crime. Where the content of the article under complaint related to a parish council meeting, the Committee did not consider that the article related to the complainant’s personal grief or shock, and there was no breach of Clause 4.

31. The terms of Clause 10 make clear that the press should not seek to publish material obtained by using hidden cameras; the purpose of the Clause is to regulate the publication of material obtained using clandestine devices and misrepresentation. In this case, the publication did not know exactly how the video had been recorded; however, neither party disputed that at the time the article was published, the video was widely available in the public domain. The basis advanced by the complainant for claiming the video had been obtained using a clandestine recording device was that it appeared not to have been recorded using the internal recording mechanism in the computer programme used to host the virtual meeting. While the Committee could not establish with certainty how the meeting was recorded, it did not agree that the use of a secondary device to make the recording amounted to a “clandestine” device for the purposes of Clause 10. The video depicted a publicly accessible meeting, and whether it had been recorded using an in-program recording function or a secondary recording device had no bearing on the content of the video. Explicit reference was made in the course of the meeting to the fact it was being recorded, when a participant referred to a copy being sent to a monitoring officer. Furthermore, the minutes of the meeting stated that a recording of the meeting was available. The Committee did not consider that the publication engaged in any form of subterfuge or misrepresentation in the recording of the meeting.

32. Furthermore, at the time the article was published, the video from which the clip was extracted was widely circulating in the public domain and had been viewed over one million times; the newspaper had not, therefore, been engaged, either directly or through an agent, in making or procuring the recording. It could not therefore be said that the newspaper had sought to obtain material obtained by using a hidden camera, and there was breach of Clause 10.

Conclusion(s)

33. The complaint was not upheld.

Remedial Action Required

34. N/A


Date complaint received: 02/08/2021

Date complaint concluded by IPSO: 10/02/2022