Ruling

03066-21 Brian and Declan Arthurs v Sunday World

    • Date complaint received

      12th September 2021

    • Outcome

      Breach - sanction: publication of adjudication

    • Code provisions

      2 Privacy, 4 Intrusion into grief or shock

Decision of the Complaints Committee – 03066-21 Brian and Declan Arthurs v Sunday World

Summary of Complaint

1. Brian and Declan Arthurs complained to the Independent Press Standards Organisation that Sunday World breached Clause 2 (Privacy) and Clause 4 (Intrusion into grief or shock) of the Editors’ Code of Practice in an article headlined “EX-IRA CHIEF'S COVID BATTLE FOR LIFE”, published on 7 February 2021.

2. The article appeared across page 10 and 11 beneath the banner: “COVID-19 CRISIS HIGH-PROFILE REPUBLICAN IN INTENSIVE CAREE WITH VIRUS”, with the sub-heading reading: “Family and friends rally around as [details of treatment]”. The article reported that Brian Arthurs was “[details of prognosis]” at Craigavon Area Hospital after contracting Covid-19. It went on to report that he was suffering from a further condition, and that “family members, who have not been allowed to visit the hospital, are said to be growing increasingly concerned after the ex-terror chief was [details of treatment]”. It contained the following comments made by an unnamed source: “Brian is [details of treatment] and is not very well at all […] the family are very concerned, and it’s not helped by the fact that nobody can be with him at the moment because of the virus. There aren’t a lot of details about his conditions except he’s not very well and needed [details of treatment]”. The article made reference to the complainant’s past convictions for terrorism and fraud, and his alleged ongoing involvement in criminal activity.

3. The article was illustrated with three images, two of Brian Arthurs alone, and one showing Declan Arthurs standing in front of a pool with Brian Arthurs in the background. The image of the complainants together was captioned “Brian Arthurs’ singing son Deaglan posts a selfie of himself, while his dad and mum [name] enjoy a dip in a Marbella villa.” The article provided further detail about the circumstances in which the image had been taken and noted that Declan Arthurs had previously unsuccessfully brought proceedings intended to prevent media reporting of his connection to his father.

4. The complainants said the article was a clear breach of Brian Arthurs’ right to privacy as it had published, without his consent or permission, private medical information: his diagnosis and his resulting state of ill-health, his prognosis and the treatment he had received whilst in hospital. The complainants maintained that prior to the article’s publication this information had been known only to his immediate family and close friends. The complainants said the article had caused considerable distress to the family at a time when Brian Arthurs was in an intensive care unit in hospital and was likely to die. The complainants said this was insensitive and therefore also a breach of Clause 4 (Intrusion into grief or shock).

5. The complainants said that the article further breached Clause 2 (Privacy) by publishing an image of Declan Arthurs, which had been obtained from his personal Instagram page without his consent or permission. The complainants said that the inclusion of this image alongside the information relating to his father’s condition was insensitive and intrusive.

6. The newspaper did not accept that the article breached the Editors’ Code. It did not consider that Brian Arthurs had a reasonable expectation of privacy in regard to the published information or, indeed, more generally, given his notoriety and criminal convictions. It further argued that Covid-19 was “not a private health matter” but rather a unique public health emergency and as such the expectation of privacy around it was reduced. In any event, it said that Mr Arthurs’ condition, and the medical treatment he had received in hospital, was already in the public domain prior to publication: their original source resided in Dublin – a separate jurisdiction – and the information was then confirmed by “at least two separate sources in Northern Ireland who were not people necessarily privy to access [to the complainant’s] inner circle of friends and family”. As such, it said that the article did not reveal anything about the complainant which was not already in the public domain and therefore did not intrude into his privacy.

7. Second, the publication considered that there had been a public interest in publishing the story, given Brian Arthurs’ “considerable notoriety, gained through his own conduct [and] actions”, and a further public interest in the reporting of Covid-19 cases. It argued that it had a moral duty to inform the public of the dangers presented by the virus. On a national level, it said that such stories humanised the virus; thereby helping to tackle misinformation and encourage vaccination uptake. On a local level, such stories helped to support ‘track and trace’ efforts, informing the community of increased risk.

8. Furthermore, the newspaper did not accept that reporting the treatment Brian Arthurs was receiving was insensitive in breach of Clause 4. It said that Brian Arthurs’ family were fully aware of his condition and the article did not reveal any new information, report inaccurate information, or seek to sensationalise events.

9. In addition, the newspaper did not consider that either the article or the image breached Declan Arthurs’ right to privacy. It was not in dispute that the image had been obtained from a publicly available social media page, and it displayed only the complainant’s likeness. The newspaper said it had originally been published in an article in October 2019, about which the publication had not received a complaint. Further, the newspaper did not accept that Declan Arthurs had an expectation of privacy over his appearance given his participation in a reality television, the related court action and his resultant notoriety.

10. The complainants disputed the newspaper’s argument that there should be a diminished expectation of privacy for certain medical conditions as a result of the profile and prevalence of a virus and/or disease; medical information should be treated the same regardless. It also challenged the newspaper’s position that an individual convicted or accused of criminal offences did not have an expectation of privacy.

Relevant Code Provisions

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.

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.

*The Public Interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.  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.

There is a public interest in freedom of expression itself.

The regulator will consider the extent to which material is already in the public domain or will become so.

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

11. The terms of the Clause 2 (Privacy) state that everybody is entitled to respect for their private life and health, and the complainant was entitled to the same protection offered by the terms of the Clause as any other person, subject – as with any other person – to exception in the public interest. The article included detailed information about his health: his primary diagnosis and his subsequent diagnosis, his treatment and the prognosis. It was clear to the Committee that the article contained personal medical information over which the complainant had a reasonable expectation of privacy. It was left to the Committee to decide whether the publication of this intrusive information could be justified in the public interest.

12. The Editors’ Code notes that there is a public interest in protecting public health and safety, and the Committee acknowledged the role that newspapers play in protecting the health of the wider community in the time of a pandemic by reporting on the transmission, prevalence, and potential severity of the virus. It did not consider, however, that the newspaper had provided an adequate explanation as to how the publication of detailed information about the complainant’s state of ill-health and his treatment served to protect public health. Furthermore, while maintaining that the complainant had a diminished expectation of privacy due to his past criminal convictions and alleged ongoing involvement in illegal operations, the publication had not provided a clear explanation as to why these activities meant that there was a public interest in publishing his intimate medical information. Finally, the Committee did not consider that the publication had demonstrated that the information had entered the public domain to any substantial extent, such that the complainant’s expectation of privacy would be reduced or eliminated. The Committee concluded that the complainant had a clear expectation of privacy over the information included in the article about his diagnosis, prognosis and treatment, and the publication had not advanced a sufficient public interest argument to justify the intrusion into the complainant’s private life.  There was a clear breach of Clause 2 of the Code.

13. In the view of the Committee, the publication of the article was not handled with sensitivity or care at a time of shock. The article revealed private medical information whilst the complainant was in an intensive care unit in hospital.  This amounted to a breach of Clause 4.

14. Finally, the Committee considered the privacy concerns raised by Declan Arthurs. The disputed image only disclosed the complainant’s likeness; it did not disclose any private information and did not show him engaged in private activity. The information was already in the public domain, having featured in a previous article from 2019, following publication on the complainant’s publicly accessible social media page. In such circumstances, the Committee did not consider that the complainant had a reasonable expectation of privacy in relation to this image, and its publication did not amount to an intrusion into his private life. There was no breach of Clause 2 on this point.

Conclusion

15. The complaint was upheld.

Remedial Action Required

16. Having upheld the complaint under Clause 2 and Clause 4, the Committee considered the remedial action that should be required. Given the nature of the breach, the appropriate remedial action was the publication of an upheld adjudication.

17. The Committee considered the placement of this adjudication. The adjudication should be published in print, on or before page 10, where the original article appeared. The headline to the adjudication should make clear that IPSO has upheld the complaint, refer to the subject matter and be agreed with IPSO in advance of publication.

The terms of the adjudication for publication are as follows:

Brian and Declan Arthurs complained to the Independent Press Standards Organisation that the Sunday World breached Clause 2 (Privacy) and Clause 4 (Intrusion into grief or shock) of the Editors’ Code of Practice in an article headlined “EX-IRA CHIEF'S COVID BATTLE FOR LIFE”, published on 7 February 2021.

The article reported the medical condition that Brian Arthurs was suffering from and the treatment he was receiving in hospital.

The complainants said the article was a clear breach of Brian Arthurs’ right to privacy as it had published, without his consent or permission, private medical information: his diagnosis with Covid-19 and his resulting state of ill-health, his prognosis, and the treatment he had received whilst in hospital. They said that the article’s publication was deeply upsetting for the family whilst they were in a state of grief, maintaining that his condition was only known to a close circle of friends and family.

The newspaper did not accept that the article breached the Editors’ Code. It did not consider that Brian Arthurs had an expectation of privacy in regard to the published information or, indeed, more generally, given his notoriety and criminal convictions. It further argued that Covid-19 was “not a private health matter” but rather a unique public health emergency, citing a public interest in reporting on cases and alerting readers to the dangers presented by the virus.

The Committee found that the article had published medical information to which Brian Arthurs’ had a reasonable expectation of privacy. Whilst the Committee noted that there was a public interest in protecting public health and safety, it did not consider, however, that the newspaper had provided an adequate explanation as to how the publication of detailed information about the complainant’s state of ill-health and his treatment served to protect public health. Nor did the Committee consider that the newspaper had provided a clear explanation as to why the complainant’s past criminal convictions and alleged ongoing involvement in illicit activity meant there was a public interest in publishing this information or demonstrated that these details had entered the public domain to any substantial extent. In such circumstances, the article amounted to an intrusion into the complainant’s private life by publishing, without consent, private medical information. There was a breach of Clause 2 of the Editors’ Code.

Furthermore, in the view of the Committee, the publication of the article was not handled with sensitivity or care at a time of shock. The article revealed private medical information whilst the complainant was receiving care in hospital. This amounted to a breach of Clause 4.

 

Date complaint received: 29/03/2021

Date complaint concluded by IPSO: 25/08/2021