Ruling

04975-15 Verebes v Daily Mail

    • Date complaint received

      24th February 2016

    • Outcome

      No breach - after investigation

    • Code provisions

      1 Accuracy, 10 Clandestine devices and subterfuge, 3 Harassment

Decision of the Complaints Committee 04975-15 Verebes v Daily Mail

Summary of complaint

1. Timea Verebes complained to the Independent Press Standards Organisation that the Daily Mail breached Clause 1 (Accuracy), Clause 3 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Foreigners charge NHS for care in their own country / How I signed up for five years free medical treatment in Hungary – at YOUR expense”, published on 10 August 2015. The story was also published online as two articles headlined “How I signed up for five years free medical treatment in Hungary – at YOUR expense. She’s never lived in the UK or paid tax here…but NHS is liable for this Hungarian mother’s health bills” and “Ministers order urgent investigation into ‘completely unacceptable’ revelations foreigners are charging the NHS for care in their OWN country”, both published on 9 August 2015.

2. The articles were the result of an undercover investigation the newspaper had carried out into the use of UK European Health Insurance Cards (EHICs) by people who are not ordinarily resident in the UK. It had engaged a freelance Hungarian journalist, who had never lived or paid taxes in the UK, to test whether it was possible to obtain a UK EHIC and then get treatment in her home country, charged to the National Health Service (NHS). The articles, both in print and online, described how the investigation had been carried out. The online articles included video footage taken by an undercover journalist, and the print version included stills from the video, including one image of the complainant. The second online article reported the reactions from some politicians with responsibility for health service provision.

3. The complainant worked at a maternity clinic visited by the journalist. She had been secretly filmed in her office as the journalist enquired whether she would be able to obtain maternity care in Budapest using her EHIC. The complainant said that the video footage included with the online article, and the image of her face which was published in the print version of the article, intruded into her privacy, in breach of Clause 3. She said that the policy in her hospital was that people should ask permission to take photographs. She also said that it had been unnecessary to film her using a hidden camera, in breach of Clause 10. She said that if the journalist had made clear that she was making enquiries for a newspaper investigation she would have given the same answers to her questions. The use of the hidden camera implied that the complainant had acted improperly, which was untrue.

4. The article reported that the complainant had said, in response to a request for information about giving birth in Hungary, “bring back one of those forms and everything will be fine…We can treat you even if it is not an emergency.” The image of the complainant included with the print version of the article was overlaid with the quotation “we can treat you even if it is not an emergency.” The complainant said that she had made clear that an S2 form (a form which entitles its holder to NHS-funded treatment in another European Economic Area country or Switzerland) would be required in order to obtain non-emergency treatment; an EHIC alone would not be sufficient. The presentation of her comment that the journalist could be treated even if it was not an emergency was therefore misleading, in breach of Clause 1. She also said that it was inaccurate to report that there “dozens of forms, piled high. All of them had been filled in by expectant mothers in this one small area of Budapest whose appointments are now being paid for by the British taxpayer.” She said that she has very few cases of people having their births paid for by the NHS; the forms referred to in the article were not those of expectant mothers who were using EHICs and S2 forms. The complainant raised a number of other concerns about the accuracy of the Hungarian to English translation of her conversation with the journalist (the text of which had been included as subtitles with the video on the newspaper’s website), and provided a side-by-side comparison of the journalist’s original translation with the translation completed by an independent translator (employed by the newspaper upon receipt of the complaint), to demonstrate the discrepancies.

5. The newspaper said that the subterfuge in this case was limited, and it had carefully considered the requirements of the Code at every stage. It believed that there was an overwhelming public interest in its investigation and strongly denied any breach of Clause 10. As a result of the investigation the Government initiated a review to examine whether policies relating to the issuing of EHICs needed to be changed, and a health minister had agreed to meet with the whistleblowers who had initially contacted the newspaper.

6. The newspaper set out the process by which the investigation had been launched, and the steps it had gone through at each stage to ensure compliance with the Editors’ Code. It said that in May 2015 the Executive News Editor (Investigations) and the Health Correspondent met with a senior NHS surgeon who wanted to raise serious concerns regarding “health tourism” in the NHS, and in particular the abuse of EHICs. The surgeon said that the only information required to be eligible for a card was an NHS number, and that these numbers were readily available to almost anyone who presents to a GP, without necessarily having proof of residence in the UK, and no matter what their citizenship. During a subsequent meeting, NHS whistleblowers specifically mentioned abuse of the cards in Eastern European countries, including Hungary. Following the meeting the Executive News Editor (Investigations) suggested to the Assistant Editor (News) a number of ways to proceed with an investigation: a meeting with the staff who processed the EHIC applications, and were concerned about their abuse; sending a Freedom of Information (FOI) request to the Department of Health to ascertain the extent of the problem; or working with an Eastern European journalist to see if it was true that EHICs could be as easily obtained as suggested. At this point, there was no discussion of filming a journalist using an EHIC in Europe, as it was considered that the FOI request would provide the information required about whether the cards were being used by non-UK nationals in their home countries, and the cost of the practice to the taxpayer.

7. The Executive News Editor (Investigations) then sent the FOI request to the NHS, asking how many EHICs had been issued in the last five years - both generally and to non-UK nationals - and how much money had been spent on non-UK nationals seeking treatment abroad. The Deputy Investigations Editor then discussed the investigation with the Head of Editorial Legal, and asked for authorisation for a foreign journalist to try and get an EHIC with a false address. This meeting was followed up with an email, and written approval was provided to proceed with this aspect of the investigation. The newspaper then received the response to its FOI request, which stated that the NHS could not provide the figures requested as “we only record whether the applicant is an EEA national/resident in the UK or not, and do not record the specific nationality.” A few days later, the foreign freelance journalist obtained an NHS number from a UK GP by telephoning a surgery in London from her home in Budapest, saying that she had recently arrived in the UK and wanted to register with a doctor. A reporter posing as her landlord then delivered the relevant identity documents to the surgery, including a fake tenancy agreement document with the journalist’s name on it. A form with basic details about the journalist was filled in, and the journalist then flew to London where she completed a self-check-up in the surgery; she was then registered with the surgery and was provided with an NHS number. This process had been described in the article.

8. The investigations team had visited a number of online forums where people were discussing how they had used UK EHICs to obtain treatment in their home countries. The forums were anonymous, and the journalists could not contact the users without openly revealing that they were journalists. The newspaper also considered that the evidence on the forums was insufficient to support an investigation of this nature. The Executive News Editor (Investigations) and the Assistant Editor (News) then agreed that, in the absence of information from other sources, undercover filming in Europe was justified in the public interest to determine whether or not the abuse was actually happening and, if so, the nature and scale of it.

9. The Deputy Investigations Editor then wrote to a senior member of the Legal Department to say that the journalist’s NHS number had arrived, and sought formal approval to apply for an EHIC. Given the potential scale of the misuse of public funds, it was believed that it was in the public interest to establish how easy it was to obtain the card. The Deputy Investigations Editor received written approval that the next step of the investigation was justified in the public interest, and was authorised to proceed.

10. The Deputy Investigations Editor then met with the Head of Legal and another senior member of the legal team to discuss how to test the final part of what they had been told by the NHS whistleblowers: that the EHIC could be used without difficulty by non-UK nationals in Eastern Europe. The newspaper already knew that an FOI request could not provide the results that it needed, and it also believed that, since the cards enable non-UK nationals to get medical treatment in their home countries, charged to the British taxpayer, it would not be in the interests of foreign authorities to give the newspaper details of how widespread the abuse was. The newspaper decided that the only way it could show beyond doubt that it was easy to use a fraudulently obtained EHIC in an Eastern European country was to test it by instructing the freelance journalist to visit a variety of clinics. The visits should also be filmed so that the newspaper could authenticate its journalism and prove that the reports were accurate. The purpose of the exercise was not to show that the card could be readily used in a particular clinic, but that it could be used in any clinic. It was necessary to visit a number of reputable clinics in order to properly investigate the extent of the suspected abuse. The journalist then proceeded to test her EHIC at several clinics in Budapest; it was accepted at every clinic she attended.

11. The video of the journalist’s clinic visits was shown to the Head of Editorial Legal, who decided that the video was an essential part of the investigation and approved it for publication. It was important for the newspaper to demonstrate the ease with which EHICs could be used, and the fact that foreign health workers were familiar with them. The newspaper was not suggesting that the complainant had acted improperly when dealing with the journalist’s queries, although it noted that the complainant had made no attempt to check the validity of the journalist’s UK-issued EHIC, despite the fact that the journalist was clearly a Hungarian, conversing in Hungarian, and asking questions which suggested she was not familiar with how EHICs operate.

12. The print version of the article included stills from the video, and did not name either the complainant or her clinic. The video accompanying the online article included the name of the complainant’s clinic, but not her own name.

13. The newspaper accepted that the clinic required permission to be granted before photographs were taken, but did not believe that it had intruded into the complainant’s privacy. A person’s professional life, particularly when it involves dealing with members of the public, cannot be classed as private. The building is a public building, and policies surrounding privacy are for the benefit of patients, not of staff. The newspaper had decided to blur the faces of any members of the public who had happened to be in the clinics the reporter visited, but believed it was important to show readers that the clinics and their staff were “real”. The newspaper needed to prove that the misuse of EHICs actually happens, and needed to show the places and the medical staff specifying what sort of services could be obtained. In any case, the investigation was so clearly in the public interest that if there had been any intrusion into the complainant’s private life, it would have been justified. It is inevitable that investigations using subterfuge involve the need to balance any possible privacy issues against the public interest in the story being investigated. Nonetheless, the newspaper removed the video from its website in response to the complainant’s concerns.

14. The video footage had been translated for the newspaper by the freelance journalist who had carried out the investigation. On receipt of the complaint, the newspaper had contacted the Hungarian Embassy in London seeking a recommendation for an independent translator. The newspaper said that the translation provided by that person did not differ significantly from the journalist’s version. The newspaper believed that the comments of the complainant had been accurately translated, and the article had accurately reported the circumstances in which the journalist would be able to obtain non-emergency treatment. In particular, it had made clear that an EHIC alone would not be sufficient to have the birth paid for, and an S2 form would also be required. It also noted that the complainant had said “more and more” mothers were using EHIC cards in her clinic; it did not believe that the reference to “stacks of forms” represented a significant inaccuracy.

15. However, the newspaper hoped to reach an amicable resolution to the complaint, and with that in mind offered to publish the following clarification on page 2 of the print newspaper, and online:

“An investigation on 10 August into the abuse of the EHIC card system was illustrated with a picture of a manager at a Hungarian birth centre and the quote ‘We can treat you even if it is not an emergency’. We are happy to clarify that, as the article made clear, the manager had told the reporter that an additional form would be required for non-emergency treatment. We apologise for any confusion caused. We are also happy to clarify that there was no suggestion of any wrongdoing on the part of the complainant.”

16. The complainant declined to resolve her complaint on this basis, as she wanted the clarification to be referenced on the front page of the newspaper.

Relevant Code Provisions

17. Clause 1 (Accuracy)

i) The press must take care not to publish inaccurate, misleading or distorted information, including pictures.

ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published.

Clause 3 (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.

iii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.

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 private 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.

Public interest

1. The public interest includes, but is not confined to:

(i) Detecting or exposing crime or serious impropriety.

(ii) Protecting public health and safety.

3. Whenever the public interest is invoked, the Regulator will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time.

Findings of the Committee

18. The newspaper had received information from whistleblowers which led it to believe that public services were being abused, and that UK tax revenues were being used to fund health care for non-UK residents seeking treatment in their home countries. The newspaper wanted to investigate the claims of the whistleblowers, and had tried to obtain the information it wanted through open means - before resorting to subterfuge - but had not succeeded. In this case, the public interest in the investigation generally was not in doubt, given the potential abuse of public services; the associated cost to the taxpayer; and the newspaper’s belief that its investigation could expose how the system as currently set up could facilitate wrongdoing.

19. The clinic was accessible to any member of the public who chose to enter it, and anyone could ask the questions about maternity care that the journalist did; the level of subterfuge employed was limited. The aim of the investigation generally was to expose the loopholes in the system operated by the NHS; to show that once an EHIC had been fraudulently obtained by a non-UK resident it could be used by that person to obtain free treatment in their home country; and to show that EHICs were actually being used in this way. There was no suggestion that the staff in the clinics were acting improperly, but the fact that the card had been accepted was central to the investigation. The misrepresentation of the journalist as a prospective patient was necessary in order to properly test the reactions of staff to presentation of the EHIC, and was proportionate to the public interest story that was under investigation – the level of subterfuge was minimal and the public interest was significant. The misrepresentation did not breach Clause 10.

20. The newspaper’s decision to film the journalist’s encounter with the complainant allowed it to ensure that it was accurately reporting the conversation that had taken place, and to evidence the claims made in the article. This aspect of the investigation did not represent a significantly higher level of subterfuge than the journalist’s misrepresenting herself as a prospective patient. Publication of the video on the newspaper’s website allowed readers to verify the newspaper’s claims and understand the precise way in which an EHIC could be used abroad. The content of the video was focused on the complainant’s professional life and she did not reveal any private information about herself. The concerns that the published video and image intruded into the complainant’s privacy were best dealt with under Clause 3 of the Code. However, the Committee was satisfied that the newspaper had sufficiently justified its position that it had considered the requirements of the Code at each stage, and that its use of misrepresentation and a hidden camera had been required in order to serve the public interest. There was no breach of Clause 10.

21. The video of the complainant which accompanied the online articles, and the image which illustrated the print edition, showed the complainant carrying out her professional role in an area of her workplace which is accessible to the public. Any reasonable expectation of privacy that the complainant had in these circumstances was limited, and the public interest in filming her and publishing the footage had already been adequately established by the newspaper. The video and image did not include any private information about the complainant: the image showed only her face, and the video depicted her answering questions relating to maternity care at her clinic. There was no breach of Clause 3.

22. The articles had made clear that both an EHIC and an S2 form would be required in order to obtain non-emergency treatment at the maternity clinic, and when the journalist had asked if it would be free, the complainant had confirmed that it would be. In relation to the complainant’s concern that there were not “dozens of forms, piled high”, the complainant had told the journalist that she had patients using EHICs with increasing frequency, and was clearly familiar with the system; the Committee did not identify any significant inaccuracies which would require correction under the Code. The Committee was further satisfied that the article did not inaccurately allege any wrongdoing on the part of the complainant. Lastly, the Committee found that the additional concerns raised by the complainant regarding the translation of her conversation with the journalist did not disclose any discrepancies which would amount to significant inaccuracies. The complaint under Clause 1 was not upheld. While the Committee welcomed the newspaper’s offer to publish a clarification, it was not required under the Code.

Conclusions

23. The complaint was not upheld.

Remedial Action Required

N/A

Date complaint received: 12/08/2015
Date decision issued: 24/02/2016