Ruling

02805-19 Luck v The Mail on Sunday

    • Date complaint received

      20th June 2019

    • Outcome

      No breach - after investigation

    • Code provisions

      10 Clandestine devices and subterfuge, 2 Privacy

Decision of the Complaints Committee 02805-19 Luck v The Mail on Sunday

Summary of Complaint

1. Colin Luck complained to the Independent Press Standards Organisation that The Mail on Sunday breached Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “EXPOSED: THE SEX FOR RENT LANDLORDS”, published on 17 March 2019.

2. The article reported on an investigation into the practice of landlords “breaking the law by offering free accommodation in return for sex”. It said that the law had recently been changed to make this practice punishable by up to seven years in prison. The article described how the publication’s undercover reporters had posed as young women struggling to afford accommodation, and had replied to online advertisements offering “’sex-for-rent’”.

3. The article reported that the complainant, who was named, had posted an advert on Craigslist in which he had described himself as “’a professional man’ offering a student ‘free lodging and financial assistance’ in exchange for ‘intimacy and companionship’”. It said that when the undercover reporter met the complainant, he had said that they would “’get together a couple of times a week’”, and that he had said that he would like to explore tantric sex. The article included a boxed section which stated the complainant’s location and age, and featured a photograph of the complainant meeting the undercover reporter, which appeared to have been taken through the window of a coffee shop. The box described how the complainant had met the reporter and told her “’I thought if it’s mutually beneficial for both people and no one gets harmed and no one gets hurt, what’s the harm in it?’”. The main article stated that the complainant had declined to comment on the story.

4. The article also appeared online on 16 March 2019, under the headline “Exposed: Sex for rent landlords who have tried to entice 250,000 UK women into bed are STILL advertising online despite threat of seven-year jail sentences”. This version of the article was substantially the same as the print version.

5. The complainant said that the publication had breached Clause 2 (Privacy) because it had taken photographs of him without his knowledge and consent, one of which had subsequently been published. He was also concerned that he had been identified by name in the story. The complainant also said that the publication of the article was in breach of Clause 10 (Clandestine devices and subterfuge). He said that the journalist had contacted him via email using an alias, and stated that she was homeless and in need of a room; he had replied, and they had subsequently met in a coffee shop to discuss the matter. At no time had the woman stated that she was a journalist. The complainant said that there was no public interest in the publication of the article, because to his knowledge he had not broken the law by offering the woman a room.

6. The publication denied any breach of Clause 10 (Clandestine devices and subterfuge). It said that, following the change in the CPS guidance in relation to this matter, it had decided to conduct an investigation to determine whether landlords were continuing to commit this offence. The publication said that it had identified that advertisements continued to appear online in which landlords appeared to be offering accommodation in return for sex. Following editorial discussions, of which it provided a record, it was decided that this investigation would require the use of subterfuge, in order to test whether these advertisements represented genuine offers, potentially in breach of the law. The publication said that the complainant’s advertisement had attracted its attention because it offered “’Free accommodation for [a] female…In exchange for your intimacy and companionship’”, and referred to an exchange of photographs; in these circumstances, there was a clear basis for investigating the complainant personally.

7. The publication said that its reporter had responded to the advertisement using an alias, and that, during the course of the subsequent email exchange, the complainant had made unprompted references to sex acts. The publication said that it was clear from this exchange, and from comments made by the complainant at the subsequent meeting that took place in the coffee shop, that the complainant was offering sex in return for accommodation: he had referred, at the meeting, to the possibility of engaging in sexual conduct with the undercover reporter. In these circumstances, it considered that there was a strong public interest in reporting on the material obtained through the use of subterfuge, both to warn members of the public, and to alert individuals like the complainant to the fact that they might be breaking the law.

8. The publication also denied any breach of Clause 2 (Privacy). It said that the complainant had been photographed seated inside a coffee shop near to a large window, clearly visible to passers-by. It said that its photographer had taken the photograph through this window. Where the complainant was in a public place, the publication did not consider that he had a reasonable expectation of privacy. It said that the complainant had provided his full name to the journalist during the course of their correspondence and meeting, and that there was a strong public interest in identifying him, given that he appeared to be breaking the law and potentially posed a risk to vulnerable individuals.

Relevant Code Provisions

9. Clause 2 (Privacy)*

i) Everyone is entitled to respect for his or her private and family life, home, 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.

10. Clause 10 (Clandestine devices & 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.

11. 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.

Findings of the Committee

12. The publication had identified that, despite a change in the CPS guidance, advertisements continued to be published which appeared to be offering accommodation in return for sex. Given the terms of the advertisement placed by the complainant, the publication suspected that he was making an offer of this nature. To ascertain whether this was such an offer, it considered that a degree of subterfuge was required in order to investigate the complainant’s motives.

13. In considering the use of subterfuge, editors must have regard for whether any such activity would serve and be proportionate to the public interest. In this instance, there was a public interest in the investigation of serious impropriety of this nature, and the publication had given appropriate internal consideration to this public interest before first making use of subterfuge. Initially, a very low level of subterfuge was deployed, whereby a reporter responded to the advertisement using an assumed name; this limited subterfuge was clearly proportionate to the public interest in the investigation.

14. The complainant’s responses to the undercover reporter, including messages which referred to sexual acts, provided a sufficient public interest justification for engaging in the subsequent act of subterfuge, namely the journalist’s meeting with the complainant. The meeting between the journalist and the complainant was proportionate to the public interest served by the investigation and the Committee was satisfied that the material could not have been obtained by other means.

15. At the face-to-face meeting, information emerged which appeared to support the publication’s position that the complainant was proposing to the undercover reporter that she could engage in a sexual relationship with the complainant in return for accommodation. Where the publication had a reasonable basis for considering that the complainant was engaging in such an activity, there was a public interest in publishing the information obtained through the subterfuge. There was no breach of Clause 10 (Clandestine devices and subterfuge).

16. The complainant had been photographed in a public place, and the photograph which was published did not show him engaging in any private activity, or reveal anything private about him, in respect of which he had a reasonable expectation of privacy. Publication of the photograph did not amount to an intrusion into his private life. The Committee noted that an individual’s name is not in itself a piece of private information about them; while there was a potential for intrusion arising from the publication of the complainant’s name in connection with the comments he had made in his emails to the undercover reporter, in this instance, there was a sufficient public interest in identifying the complainant, for the reasons explained above. The complainant did not have any reasonable expectation of privacy in relation to the comments he had freely made to the undercover reporter in his meeting with her in a public place, or in relation to the contents of the publicly-available advert. There was no breach of Clause 2 (Privacy) on these points.

Conclusions

17. The complaint was not upheld.

Remedial action required

18. N/A

Date complaint received: 26/03/2019

Date decision issued: 23/05/2019