Ruling

05943-17 Mansford v Daily Mail

    • Date complaint received

      2nd November 2017

    • Outcome

      No breach - after investigation

    • Code provisions

      10 Clandestine devices and subterfuge, 2 Privacy, 8 Hospitals

Decision of the Complaints Committee 05943-17 Mansford v Daily Mail

Summary of complaint

1. Janine Mansford complained to the Independent Press Standards Organisation that the Daily Mail breached Clause 2 (Privacy), Clause 8 (Hospitals) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Abortions signed off after just a phone call”, published on 6 March 2017.

2. The article reported that in 2016, an inspection from the Care Quality Commission (CQC) into the provision of abortion services at a named nation-wide clinic, had found that abortion approvals had been based on only a one-line summary of what a woman tells a call centre worker with no medical training. The article said that despite these concerns leading to a temporary ban on some abortion services, an undercover investigation by the newspaper had found that women were still being cleared for abortion on “the word of call centre staff”. The article explained that the Abortion Act 1967 stipulates a number of conditions must be met before an abortion is approved; it said that the newspaper had found that “if a woman fails to give a reason for the abortion which reflects those set out in the Abortion Act, she [was] encouraged to come up with a different reason”.

3. Two female journalists had telephoned the clinic’s call centre, and had expressed a wish to terminate their pregnancies. Following these calls, the journalists had attended one of the clinics, where the complainant is a nurse. The article said that one reporter’s “I just don’t want a baby” justification, which she had given to call centre staff, had been recorded in her medical notes as “client is unable emotionally to continue with pregnancy”, which fits the legal conditions.

4. The article contained a photograph of the complainant which had been taken with the use of a hidden camera, in a private consultation room while the journalist was receiving a scan. The complainant’s face had been pixelated.

5. The article appeared online under the headline, “Abortions signed off after just a phone call: How [the clinic] doctors approve abortions for women they've never met”, it was otherwise substantially the same as the print version.

6. The complainant said that the publication of the pixelated photograph, without her consent, was an unjustifiable intrusion into her privacy. She said that she wore a different uniform to the rest of the staff at the clinic and several people had identified her. The complainant expressed concern that the journalist had failed to identify herself as a reporter and had engaged in subterfuge during her consultation, which had taken place in a non-public area of the clinic.

7. The newspaper accepted that it had engaged in subterfuge when a journalist had posed as a patient, had attended a scanning room at the clinic, and had used a hidden camera in order to obtain a photograph of the complainant. It said that while the terms of Clause 8 and Clause 10 were engaged, its actions were justified in the public interest and the material could not have been obtained by other means.

8. The newspaper said that the inspections by the CQC in April and August 2016 had identified various failings in the abortion clinic’s practices, however by October 2016, the clinic had assured them that it had addressed the concerns raised. The newspaper said that serious questions, which required investigation, had arisen as to how such endemic problems could have been resolved in such a short space of time. It said that in that context, there was a public interest in reporting what actually happened to two female journalists who contacted the clinic expressing a wish to terminate pregnancies.

9. The newspaper said that a confidential source had also contacted the newspaper to complain of the service she had received at one of the abortion clinics. She had done so after an earlier article, published in October 2016, had detailed the testimony of women who had used the services of the abortion clinic provider. The newspaper said that it was the accounts of these women, as well as the serious issues raised by the CQC reports which formed the basis of its investigation. It said that it had taken the decision to attend the particular clinic featured in the article, because that clinic had been singled out for some of the most scathing criticism in the CQC’s report.

10. The newspaper said that the public interest was considered at each stage of the investigation, as well as prior to publication: it had adopted a staged approach in considering whether the use of subterfuge would be reasonable, and proportionate to the public interest it had identified.

11.  The newspaper said that the journalist had made two telephone calls to the abortion clinc's call centre. In both of these conversations, it had been suggested to her that her abortion could be signed off, without her meeting a doctor. These telephone calls had been approved by an in-house lawyer and transcripts of these calls had been read by them, as well as senior executives: at each stage it was concluded that the investigation sustained a very strong public interest. The newspaper said that the journalist’s attendance at the clinic was approved only when it became clear that there were strong grounds for thinking that the very practices which had led to the temporary ban imposed by the CQC, were continuing.

12. It said that the pixelated photograph of the complainant was published to illustrate to readers that the journalist’s encounters took place at a real and unexceptional clinic in the UK. The newspaper did not accept that the publication of this image represented an intrusion into the complainant’s privacy. It noted that the article did not suggest that medical staff were behaving unprofessionally, rather it questioned the ethics of a system which processes terminations in this way. The photograph of the complainant was carefully pixelated to ensure no identification of her could or would be made to those who would be unaware of the investigation. It further said that a person’s professional life, particularly when it deals with members of the public, cannot be considered private.

Relevant Code provisions

13. 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. Account will be taken of the complainant’s own public disclosures of information.

(iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

Clause 8 (Hospitals)*

i)  Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries.

ii) The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions.

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 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.

The 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:

i. Detecting or exposing crime, or the threat of crime, or serious impropriety.

ii. Protecting public health or safety.

iii. Protecting the public from being misled by an action or statement of an individual or organisation.

iv. Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

v. Disclosing a miscarriage of justice.

vi. Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

vii. Disclosing concealment, or likely concealment, of any of the above.

viii. There is a public interest in freedom of expression itself.

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

x. 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 Complaints Committee

14. The journalist had engaged in misrepresentation when she had telephoned the abortion clinic’s call centre expressing a wish to terminate her pregnancy. The journalist had then entered a non-public area of the clinic, posing as a patient seeking an abortion, and had taken a photograph of the complainant through use of a hidden camera: the terms of Clause 8 and Clause 10 were engaged.

15. The CQC had raised significant concerns regarding the provision of abortion services at this nation-wide clinic. The newspaper had also been approached by a source, following its coverage of the subject, who had complained of the service she had experienced, at a time when the clinic had assured the CQC that it had addressed the concerns raised. There was a public interest in determining whether the improvements which had led to the CQC’s decision to lift the ban on abortion services, specifically in relation to the clinic which had been of particular concern in the CQC’s report, had been made.

16. The newspaper had detailed to the Committee the considerations which had taken place, which had involved legal and editorial executives, prior to engaging in the subterfuge. At each stage of the investigation the newspaper had demonstrated that it had considered whether engaging in subterfuge would serve, and be proportionate to, the public interest it had identified. Further, identifying a process by which an abortion could be obtained and reporting on it accurately, required the journalist to gather first hand evidence of it; the newspaper's view that subterfuge was likely to uncover material that could not be obtained by other means was reasonable.

17. The investigation had found that a reason for seeking an abortion, which the newspaper had considered did not meet the requirements of the Abortion Act, had been recorded in the reporter’s medical notes in a manner which suggested that it complied with the legal requirements. This was one of the very practices which had been of concern to the CQC and had led to them imposing a temporary ban on some abortion services at the clinic: the public interest had been served by reporting on this.

18. The journalist had received a medical consultation from the complainant, and had misrepresented to her that the purpose of her visit to the clinic was to seek a termination of her pregnancy. Although the Committee acknowledged the complainant’s concern that the journalist’s misrepresentation during their consultation and her use of a hidden camera in order to take her photograph, had been intrusive, the level of subterfuge employed in order to obtain this image had been limited. Further, the subterfuge had been necessary in order to demonstrate that the journalist’s encounters took place at a real clinic, and to enable the journalist to gather first hand evidence of the process by which a termination at the clinic was undertaken.

19. The Committee had particular regard to the sensitive location in which the subterfuge had taken place. The journalist had attended a non-public area of the abortion clinic: the Code’s starting point is that journalists must identify themselves and obtain permission given the heightened sensitivity of a hospital or similar institution. However, this Clause is subject to a public interest exception and there is an expectation that journalists will continue to assess whether their presence in the clinic is serving, and is proportionate to, the public interest in undertaking the investigation. It had been necessary for the journalist to enter this non-public area of the clinic, in order to gather first hand evidence on the process by which a woman was able to seek an abortion at the clinic, and report accurately upon it. In this instance, the Committee considered that the newspaper’s actions in undertaking an investigation which had taken place within this location, had been proportionate to the public interest which the newspaper had identified. The complaint under Clause 8 and Clause 10 was not upheld.

20. The complainant had been photographed providing a medical service in a non-public location within an abortion clinic. While the Committee did consider that the complainant had a reasonable expectation of privacy in relation to the work she undertook in that location, this was limited, given that the complainant would be required to regularly interact with members of the public as part of her role as a nurse. However, any intrusion in being photographed in this location, or being rendered identifiable as a result of the article’s publication, was justified by the public interest of the investigation. There was no breach of Clause 2.

Conclusion

21. The complaint was not upheld.

Remedial Action required

22. N/A

Date complaint received: 11/04/2017
Date decision issued: 13/10/2017