Ruling

02115-22 Bird v The Press (York)

    • Date complaint received

      20th April 2023

    • Outcome

      Breach - sanction: action as offered by publication

    • Code provisions

      1 Accuracy

Decision of the Complaints Committee – 02115-22 Bird v The Press (York)

 

Summary of Complaint

1. Neil Bird complained to the Independent Press Standards Organisation that The Press breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Man filmed sex act with a dog”, published on 19th March 2022.

2. The article reported on court proceedings involving the complainant who was the defendant. It stated that he “filmed himself in a sexual act with a dog” and that the prosecution had said he “sent the film to someone he knew via WhatsApp”. The article also stated, “York Crown Court heard” that “he had also filmed himself having sex with a teenager - who was over the age of consent - searched online for extreme pornography and downloaded indecent images of children”. It quoted the complainant’s barrister who “said of the dog video found on Bird’s phone: ‘Whilst the defendant accepts he made that video and it is sexual in nature, his intention was to send it in the course of an argument. It wasn’t for sexual gratification of him or anyone else’”. The article said that the complainant had “pleaded guilty to two charges of possessing extreme pornography and four of having indecent images of children”. It also said that he had “filmed himself having sex with a teenager” and that “[t]here were a total of 38 extreme images and five indecent images featuring children aged seven to 10, plus the video of the teenager”. Regarding the teenager, the article reported that the complainant had met him on “an internet dating website and the boy had lied about his age” and claimed he was 18, but “had later given his true age”. The two “had consensual sex” and “[a]lthough the consensual sex […] was legal because of the teenager's age, it was illegal to film it because the teenager had been under 18”.

3. The article also appeared online but under the headline “Man filmed himself having sex with dog”. The online headline was changed the following day to “Acomb man filmed himself in sex act with a dog”. It reported that the complainant “also filmed himself having sex with a teenager, searched online for extreme pornography and downloaded indecent images of children”.

4. The complainant said that the online article was inaccurate in breach of Clause 1 because it reported that he “pleaded guilty to two charges of possessing extreme pornography and four of having indecent images of children”. He said the charges related to a single child — the child with whom he had engaged in consensual sex — and his charge sheet reflected this. He provided a copy of the MG5 (summary of the police case). He also confirmed that it had been heard in court that “he was found to have 38 extreme images” as well as “five indecent images featuring children aged seven to 10”. He also provided a witness statement from an officer involved in the downloading of his devices.

5. The complainant said the article was also inaccurate because he had not had sex with a dog as the headline had claimed. He also said the both the print and the updated online article were inaccurate as he had not filmed himself performing a “sex act” with the dog.  He said the video had shown a stud dog mating with a bitch and that he had been touching the dog’s penis to assist it in mating. He said none of this was heard in court and all that had been said was that, whilst the video was sexual in nature, there was no sexual gratification for anyone involved and that the video was sent as an insult during an argument.

6. The complainant said the article was also inaccurate in breach of Clause 1 because it did not make clear that he had met the teenager on a dating app that was only for those 18 and older.

7. The complainant said the article also breached Clause 1 because it reported that he filmed himself having sex with the teenager but omitted why he had done this. He said it was also inaccurate because it did not include the fact that the video was only sent to the teenager and was then permanently deleted. The complainant said the article was also inaccurate because it reported that he had “searched online for extreme pornography and downloaded indecent images of children” without making clear that the searches were less than ten minutes in duration and that the images were thumbnails, not downloads. He said the prosecution’s expert had said that he could not “say they are not thumbnails”. He said the articles were inaccurate because they had not explained how the teenager had communicated with him and who had made the report to the police.

8. The publication said it did not accept a breach of Clause 1. Regarding whether the charges related to a “child” or “children”, the publication did not accept a breach of Clause 1. It said it had recorded the six charges as: “Making indecent images of children, 1 Category A video between June 24, 2019 and January 26, 2020. (2) Making indecent images of children, 1 Category A image and 1 Category A video between June 24, 2019 and January 26, 2020. (3) Making indecent images of children, 1 Category B image on January 26, 2020. (4) Making indecent images of children, 2 Category C images on January 26, 2020. (5) Possessing extreme pornography, 16 images, between January 1, 2019, and January 26, 2020. (In the prosecution opening, it was said this related to images involving the defendant and a dog). (6) Possessing extreme pornography, 22 images, April 5, 2018. (In the prosecution opening, it was said this related to images downloaded by the defendant)”. The publication said, therefore, that the article accurately reported these charges. It also said that the relevant section of the legislation to which the complainant had pleaded guilty, was headed “Indecent photographs of children” and that the wording of the charge always referred to a “child”, irrespective of the number of children involved. The publication further said that, during the sentencing hearing, the prosecution barrister had described the images that had been downloaded as featuring children aged seven to ten.

9. The publication also provided notes from the court reporter that recorded the prosecution as saying, “The defendant engaging in sexual activity with his dog he created, he created these himself. Possession of 16 images, at least some of these images had been sent by the defendant using What's App". It said it did not consider that there was a significant difference between “having sex with” and “performing a sex act on”. However, it said its policy was to always correct an inaccuracy and so the headline was changed within ten minutes of the complaint being received, the day after the online article was published. A clarification below the headline was added to the article four days later. As the inaccurate headline had not appeared in print, the publication said it was not appropriate to publish a correction in print:

“This report was edited to change the original headline which said, ‘Man filmed himself having sex with dog’ to ‘Man filmed himself in sex act with dog’. Neil Gareth Bird did not have sex with a dog; he filmed himself in a sexual act with a canine.”

10. The publication also did not accept a breach of Clause 1 regarding whether the images were downloads or thumbnails. It said that whether the images were saved full-sized or as thumbnails, they were downloaded to the complainant’s device. It said that electronic devices cache web pages so that they load faster — this effectively means a snapshot of the page is taken. It was accurate to say the images were downloaded. 

11. The publication did not accept a breach of Clause 1 in relation to the complainant’s concern that it had omitted certain details. Regarding the fact the article had not reported the complainant had met the teenager on an 18 and over site, the publication said the article made clear that the person he met was over the age of consent. It also said that the reporter’s notes showed that there was no mention that the video of the complainant and the teenager having sex had only been sent to the teenager and then deleted. It further said that it had been heard in court that “Police also found indecent images of children on the phone, category A video and still images”. As these images were found, it suggested that the video was still on the phone. It also said that nothing had been heard in court regarding whether the teenager consented, and the article had not said the teenager had not consented to the filming and that the article explicitly called the sex “consensual”. Similarly, the publication said the court reporter had no record of either the prosecution or defence stating that the teenager had created fake profiles or that one of the teenager’s friends had been the one to report the complainant.

12. During IPSO’s investigation, the complainant was asked to set out each charge he had faced regardless of whether he had pleaded guilty to them. He said his position was that it was heard in court that he was found to have 38 extreme images, but that it was not stated that these related to children. He said he was not found guilty of this. He said it was also heard in court that he had been found with five indecent images of children aged 5 to 7, but that he was also not found guilty of this. He said he pleaded guilty to four counts of making indecent photos of a child and two counts of possessing extreme pornographic images. The complainant also explicitly asked his solicitor whether the charge of making indecent images of a child related to one or more children, and why it was heard in court he had been found with images of children aged 5 to 7 if he had not been charged with this. In response, the complainant provided (via his solicitor) the basis of plea and the MG22D (streamlined forensic report), but did not answer the direct question. The complainant said the written basis of plea showed he recognised that there may have been additional images, but that they had been deleted and that he believed they were sent unsolicited by a third party. The complainant also provided his client care letter which referred to "Possession of Indecent Images and Possession of Extreme Pornographic Images”.

13. The publication stated that charges often change from when someone is first charged to when they are convicted or acquitted. It said the MG5 did not provide details of the charges and so it was unclear whether they were the same charges to which the complainant later submitted a plea to, or whether charges had been altered or dropped. It stated that there were three parts to the case against the complainant: part A related to the charges involving the teenager, part B regarded the charges of indecent images from the internet which were described in court as showing more than one child aged seven to ten, and part C related to the charge of extreme pornography involving the images of the dog. The publication also stated that, during the sentencing hearing, the prosecution barrister had said that the images downloaded from the internet featured children aged seven to ten. It said the court reporter’s notes showed that the children in the category B images were aged eight to ten, and the category C images showed children aged seven to eight.

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.

Findings of the Committee

14. The Committee first considered the complainant’s concern that the statement that he had “pleaded guilty to … four [charges] of having indecent images of children” was inaccurate.  The Committee noted that the article had explained that the court had heard that the complainant had “filmed himself having sex with a teenager-who was over the age of consent” and that “it was illegal to film it because the teenager had been under 18”.  In addition, the article explained that the court had heard that the complainant had downloaded five indecent images of children aged seven to 10”, which the publication said was supported by the reporter’s notes of the hearing, and which the complainant accepted.  However, despite several requests during the investigation into the complaint, the complainant did not confirm whether the images he pleaded guilty to possessing - as opposed to making - were of more than one child.  The Committee, therefore, considered the information about the offences which had been provided during the investigation. The Record of Conviction recorded that the complainant had been convicted of four charges of “Making indecent photos of child” and two charges of “Possession extreme photographic imag [sic]”. In relation to the first count, the Basis of Plea recorded that the sexual activity with the individual had been consensual and that he had told the complainant that he was 18 years old when, in fact, he was 16 years old.  Taken together, these two documents suggested that the offence of ‘making indecent images’ concerned one child, namely the adolescent with whom the complainant had had consensual sex.

15. In relation to the second count, the Committee noted that neither the Record of Conviction nor the Basis of Plea provided detailed information about the images which were in the complainant’s possession – as opposed to the images he had made – and the Committee considered the expert evidence of the Forensic Computer & Mobile Phone Analyst who, in his statement, identified 11 images of children which fell into categories A, B and C (the categories of seriousness denoted by the Criminal Division of the Court of Appeal).  The Committee also noted that the complainant’s defence barrister was reported to have said at the hearing that the “number of indecent images of children was very small”, the accuracy of which had not been challenged by the complainant.  In light of the expert evidence, the complainant’s barrister’s submission and that the complainant accepted that the court had heard that 5 images in his possession were of children aged between 7 and 10 years, the Committee found that it was more likely than not that count 2, to which the complainant pleaded guilty, concerned images in the complainant’s possession which were of more than one child.  The article had reported that the complainant had “pleaded guilty to two charges of possessing extreme pornography and four of having indecent images of children”. The Committee found that any ambiguity as to which of the offences the reference to “children” in the article referred was not significant in circumstances where the nature of the offences committed by the complainant had been made clear and where he had pleaded guilty to an offence of possessing extreme pornographic images which the information before the Committee suggested were of more than one child.  There was no breach of Clause 1 on this point.

16. The Committee then turned to the point of complaint regarding whether it was accurate for the headline of the online article to claim the complainant had filmed himself “having sex with” or performing a “sex act” on the dog. The complainant had said he was touching the dog’s penis to assist it in mating. The Committee noted that it had been heard in court that the video was “sexual in nature”; however, it considered that aiding a dog in mating with another dog did not constitute the complainant “having sex with”, which implied penetrative sexual activity. The Committee considered, therefore, it was misleading for the headline of the online article to claim that the complainant had “ha[d] sex with” a dog and the publication had not taken care to not publish inaccurate or misleading information. There was a breach of Clause 1(i). However, regarding the print article and the amended online headline, the Committee did not consider it was inaccurate to use the term “sex act” where it was heard in court that the complainant accepted it was “sexual in nature” and where the complainant had held the dog’s penis during mating. There was no breach of Clause 1 in relation to the print article or the amended online article on this point.

17. The misleading statement in the original online article had appeared in the headline and pertained to what was heard in court. It suggested that the complainant had had penetrative sex with an animal – and then shared a video of that act – when that was not the case. As such, it was significant and required clarification under the terms of Clause 1(ii). The publication had amended the headline immediately after receiving the complaint, which occurred the day after the article was published. Four days after the headline was amended, and before IPSO started its investigation, it added a clarification beneath the headline. This was both prompt and duly prominent and there was no breach of Clause 1(ii).

18. Regarding the omission that the complainant had met the teenager on an 18-and-over dating website, the Committee considered that the article made clear that the teenager “had lied about his age”. It had also made clear that the sex was “consensual” and “legal” but that it was the filming that was illegal. Not including that the dating website was designed for those aged 18 and over, therefore, did not constitute a breach of Clause 1. Similarly, where the article made clear that “the consensual sex […] was legal because of the teenager's age” but “it was illegal to film it because the teenager had been under 18”, the Committee was satisfied the article reported the information heard in court regarding the creation of the film. There was no breach of Clause 1 on this point.

19. The Committee then considered the complainant’s concern that the article did not report that the video was only sent to the teenager and was then deleted, and that the teenager had created fake profiles. The Committee noted the publication’s notes included no record of this being said in court. It concluded that where the publication had recorded the convictions received by the complainant accurately, the Committee concluded that the absence of additional detail was not misleading, especially where it was unclear whether this information had even been heard in court. There was no breach of Clause 1 on this point.

20. Finally, the Committee considered the point regarding whether the images had been downloaded or were thumbnails. It determined that where the images had been downloaded in some form (i.e. as thumbnails) and they had been saved to the device, it was not inaccurate or misleading for the article to not make clear whether these were images or thumbnails. There was no breach of Clause 1 on this point.

Conclusions

21. The complaint was partially upheld under Clause 1.

Remedial action required

22. The published clarification put the correct position on record and was offered promptly and with due prominence. No further action was required.

 

Date complaint received: 18/03/2022

Date complaint concluded by IPSO: 30/03/2023