05167-24 A woman v The Scottish Sun

Summary of Complaint

1. A woman complained to the Independent Press Standards Organisation that The Scottish Sun breached Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Fake fella 'slander' rant as new con rumbled”, published on 4 August 2024.

2. The article – which appeared on page 17 - reported on the outcome of a court case involving a woman “who posed as men on dating sites”. It said that the woman “used a voice-change app to dupe women into sending naked images”.

3. The article also appeared online under the headline “SICK CATFISH PLOT Listen to chilling audio as creepy Scots Catfish stalker [named individual] uses voice-change app to sound like a man” on 2 August 2024. It said: “Chilling audio reveals how creepy Catfish stalker [named individual] used a voice-change app to sound like a man. [She] this week pleaded guilty to targeting a woman in a romance ruse after having been caged twice before for identical catfish con”.

4. The article included a video with spoken narration that said, “another victim [the complainant] had sent […] a recording which was later verified by another woman targeted by the remorseless” convicted woman. It included an audio recording of the perpetrator, during which she could be heard saying: “Aye, sorry I’m driving, I’m also texting but is that you palming me off already given you’re too busy for your phone and all that? No I was not saying you were fat ever. It’s good to get the steps in, that’s all I was saying”.

5. The complainant, who was a victim of the convicted woman, complained under Clause 2. She said that the voice recording which appeared in the online version of the article had been sent to her – as a voice note - by the convicted woman, and that its publication in the article breached the terms of Clause 2.

6. The complainant said that, while the recording did not contain details which identified her, it was a recording which had been sent to her by the perpetrator of a serious crime, and its publication has been intrusive and caused great distress. She said Clause 2 includes a requirement for the press to respect peoples’ digital communications, and the publication of the recording – which had initially been sent to her and no one else - did not demonstrate a respect for her digital communications. She said the publication had published a recording without verifying its origin or the impact it would have on her right to a private life, and that the audio recording had not been used in any legal proceedings against the woman. 

7. The complainant also said that the recording’s publication had left her concerned for her safety. She said she did not want to be associated with the audio in any way.

8. The complainant then set out how she believed the recording came to be published in the online article. She said she had shared the audio recording in a private WhatsApp group – comprised of four women who were victims or possible victims of the convicted woman - for the purpose of clarifying whether the person speaking during the audio recording was the convicted woman. The recording had then been passed to the publication by another person in the group and was subsequently published - the complainant said she never would have shared anything in the WhatsApp group if she had known it would be shared with the publication.

9. To support her position, the complainant provided a WhatsApp exchange between her and the individual who had provided the publication with the recording. In this exchange, the complainant said: “They shouldn’t have been handed over to the sun. I didn’t know a thing about that. I sent you them not thinking you would do that.”

10. The complainant messaged the journalist directly on 5 August and requested he remove the recording from the online article. He confirmed it would be removed; however, on 7 August, he said the recording could not be removed as the copyright for the recording belonged to the convicted woman, as she had created and sent the recording.

11. The complainant also complained under Clause 10 as she said the publication had accessed her digitally-held information without consent. She said that she had only consented for the recording she had shared to be accessed by a small closed group, and for the singular purpose of confirming the identity of the perpetrator. She said the use of the audio did not meaningfully add any public interest value to the story, and was voyeuristic, sensationalist and intrusive.

12. The publication did not accept a breach of the Code. Regarding Clause 2, it said it did not consider that the audio’s publication breached the complainant’s privacy. It said she did not have reasonable expectation of privacy over the recording, and it did not include any identifying or personal information about her – it further noted that the complainant had voluntarily shared the audio with others. It also set out its position that the recording was the convicted woman’s digital correspondence – as she had recorded and sent it – and not the complainant’s. Therefore, it did not consider that the complainant’s consent was required in order to publish the recording.

13. The publication set out how it acquired the audio, and the process by which it reached the decision to publish it. It said it received the recording from its source, - a victim of the perpetrator and a member of the WhatsApp group – on 29 October 2023; however, it could not be published at that time due to ongoing court proceedings. The reporter attended the source’s home to interview her on 16 July 2024, where she played him the same recording and the journalist recorded it. The publication said she made it clear that it had come from another alleged victim, the complainant, who did not want to be identified. She advised it was sent by the complainant to a WhatsApp group and advised the publication could use the recording as long as no one was identified. The audio was then published in the online article, in its entirety – the only changes made were removal of a profanity spoken by the perpetrator.

14. The publication said that there was a clear and strong public interest justification for the publication of the audio, as it exposed one of the methods used by the convicted woman in her offending. It said she was a serial offender and exposing her methods might encourage other victims to come forward to seek justice and also served as a warning to the public about how such offenders operate.

15. In addition, it said that the perpetrator had targeted many victims for almost a decade. Given her extensive record of similar offending and the likelihood of her re-offending, the publication considered it was in the public interest to publish the audio as it may allow other victims to hear the so-called “male” voice used by her, which could unearth further complaints against her and also serve as a warning to future potential victims about her methods. The publication said that as far as it was aware, no other recordings like it existed in the public domain so this was the first time the public would hear the voice used. It also said that it took great care to ensure that the complainant could not be identified by the recording, and that the conversation was fairly mundane and contained nothing that could be considered salacious or potentially triggering.

16. The publication said that the public interest was considered prior to the article’s publication during in-person discussions between the reporter and the news desk in the newsroom. Accordingly, there was no written communication showing that this discussion had taken place.

17. The publication said Clause 10 was not engaged. It said there would need to be some clandestine action or subterfuge on the part of the journalist to obtain the recording in order for the Clause of the Code to be engaged; however, that was not the case. It said the complainant forwarded the audio to the WhatsApp group and a member of that group sent it to the journalist. It said it was therefore obtained by entirely open and transparent means with no clandestine action or subterfuge on the part of any individual acting on behalf of the publication.

18. The complainant said the recording related to her experience as a victim and she did not accept that she had no reasonable expectation of privacy. She also said there was a risk, in any recording – even if indirect – that she could be identified by its contents.

19. The complainant did not accept that there was a public interest in the recording’s publication. She said it was possible for the publication to explain to readers the perpetrator’s methods and her conduct without publishing the recording.

20. The complainant said Clause 10 was ambivalent on the question of who should be responsible for any subterfuge for the Clause to be engaged. She noted that the Clause specifically prohibited accessing digitally-held information without consent, and did not state that this only applied to situations where it is the newspaper who initially accessed the information. She said publishing the audio was accessing digitally-held information without consent.

21. The publication said the complainant had provided no basis for the assertion that she might be identified from the information contained in the audio nor provided any evidence that she had been. It reiterated its position that the published recording did not include any identifying details about the complainant. The publication said a written explanation of the perpetrator’s techniques was not as effective as actually allowing the public to hear the voice in the audio, and this was why there was a public interest in its publication.

22. The publication said it did not publish the complainant’s correspondence or digital communications, but only the voice notes created and sent by the convicted woman. As such, the audio belonged to the convicted woman, rather than the complainant. It said the complainant chose to share the convicted woman’s communications with others by forwarding them to a WhatsApp group she was part of and – in doing so - put them into the public domain. The publication said that she did not attempt to attach any conditions to her sharing of the recordings, nor could she have legally or reasonably done so given they were not her recordings.

23. The publication also said the recording was so innocuous the convicted wouldn’t necessarily recognise it as the one she had sent to the complainant, given she had numerous victims.

24. The publication then said the source – the woman who had provided it with the recording - had been a victim of the perpetrator for a decade and had worked with the publication for over seven years. It said she always presented as an honest and transparent victim of crime who wanted justice. It said it had no reason to question whether she had permission to pass it the recording or to think that the complainant would have any issue with it publishing a voice note which in no way identified her and could only serve to bring more victims forward and further cases against the perpetrator.

25. The complainant said she was not aware that having a conversation with people she considered close friends was analogous to putting information into the public domain. She said if this was the case, no one would ever text anyone. The complainant accepted there were no conditions attached to the WhatsApp group; however, members were sharing personal and sensitive things that related to the convicted woman which they eventually shared with the police. She said she was unaware an individual was forwarding information from the WhatsApp group to the publication until a family member alerted her to the article; she had not known that information shared in the group may be passed to a newspaper at the time she had chosen to share the recording with the other members of the group.

Relevant Clause Provisions

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.

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.

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

26. Clause 2 of the Code makes clear that individuals are entitled to respect for their correspondence, including digital communications. Therefore, the starting point as set out by the Code is that there is an inherent right to privacy over such communications, and any intrusion into them should be justified. The complainant had shared a recording with a closed WhatsApp group comprising of four individuals.

27. The Committee noted the context in which the recording was obtained and published. The article was about a criminal whose offences specifically related to the concealment of their identity via the use of a voice change app. The inclusion of the recording in the article demonstrated to the public what the criminal’s voice sounded like when altered by the app, therefore raising awareness of the specific pattern of offending used. The publication had specifically cited this as a reason why publishing the recording served the public interest in a proportionate way, and the Committee agreed both that there was a clear and demonstrable public interest in the recording’s publication, and that the publication of a single recording – which did not identify the complainant to the wider public, and gave no specific details about her – served the public interest in a proportionate way.

28. In considering whether the publication was justified in publishing the complainant’s digital communications, the Committee took into account several factors. It first noted that the article did not name the complainant as the source of the recording and there was nothing within the recording itself which would identify her to the general reader. However, the complainant had also expressed concern that, because the specific voice message within the article was sent solely to her by the perpetrator, she could be identified as the source of the message and experience further harassment from her. 

29. The Committee then considered the extent of the intrusion and whether the publication had demonstrated that it had considered the public interest at the time it made the decision to publish. The publication said that the public interest in the recording’s publication had been discussed in-person in the newsroom and – given the clear public interest served by the recording’s publication – the Committee considered this sufficient to demonstrate that the public interest had been considered prior to publication. There was no breach of Clause 2. 

30. The Committee next considered the complainant’s concerns under Clause 10. The Editors’ Code addresses the publication’s role in the preparation and publication of articles, rather than the actions and behaviour of members of the public who are not acting on behalf of a regulated publication. As such, Clause 10 prohibits, specifically, misrepresentation by journalists and unauthorised accessing of digitally-held information without consent by the publication – rather than by members of the public. It also does not prohibit the publication of material that has been leaked or passed to the publication, provided the publication itself has not directed the process by which such material has been obtained – for instance, by commissioning an individual to gather information using subterfuge.

31. In this case, the complainant had not alleged that the publication itself had intercepted the recording or engaged in subterfuge to obtain it– rather, it was accepted by both parties that it had been passed the recording by an individual known to the complainant. The publication had not engaged in subterfuge or employed any clandestine devices, but had been sent the audio by its source who – it was not in dispute – was well-aware that she was passing the recording to a journalist for the purpose of publication. For these reasons, there was no breach of Clause 10.

Conclusions

32. The complaint was not upheld.

Remedial action required

N/A

Date complaint received: 12/08/2024

Date complaint concluded by IPSO: 11/12/2024