Ruling

06017-15 Burnham v The Sun

    • Date complaint received

      9th February 2016

    • Outcome

      No breach - after investigation

    • Code provisions

      1 Accuracy, 10 Clandestine devices and subterfuge, 2 Privacy, 3 Harassment

Decision of the Complaints Committee 06017-15 Burnham v The Sun

Summary of complaint

1. Andy Burnham MP complained, via a representative, to the Independent Press Standards Organisation that The Sun breached Clause 1 (Accuracy), Clause 2 (Opportunity to reply), Clause 3 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in articles headlined “Bung me £5k to meet Burnham” and “Publicly: ‘Corbyn’s a nice man’ privately: ‘he will be a disaster’, published on 11 September 2015, and a further article, headlined “Exposed Burnham fixer dismissed as ‘fantasist’ cheers on Jeremy Corbyn at conference”, published on 2 October 2015.

2. The 11 September articles reported the findings of an undercover investigation by the newspaper in relation to the chairman of Muslim Friends of Labour, Faiz Ul Rasool. The articles reported that an undercover reporter had met with Mr Rasool at a casino in the run-up to the Labour Party leadership election, to investigate whether he would arrange a meeting with a senior Labour politician in exchange for cash. The articles explained that Mr Rasool was a significant donor to the Labour Party who had previously made a legitimate donation of £5000 to the complainant’s leadership campaign.

3. The undercover reporter had posed as a wealthy businessman from Dubai, with an interest in Labour Party politics. The articles explained that Mr Rasool had offered to arrange a meeting with the complainant, in exchange for a donation and that, after the reporter had given Mr Rasool £5000, Mr Rasool then introduced the reporter to the complainant at a campaign event. The articles explained that the reporter had been accompanied to the event by his wife and child, and that the reporter’s wife, identified as a UK citizen, had handed over a cheque for £3000 to a member of the complainant’s campaign team. They included comments made by the complainant to the reporter at the event, in particular certain critical comments about Jeremy Corbyn. The articles contrasted these with remarks he had made about Mr Corbyn during the campaign.

4. The articles said that the £3000 cheque had been rejected by the complainant’s campaign, after failing routine due diligence, but that it was unclear what had happened to the £5000 given to Mr Rasool.

5. The 2 October article reported that Mr Rasool had been seen at the Labour Party Conference, despite having been “dismissed as a fantasist” by Mr Burnham’s campaign. It repeated the claim that Mr Burnham had been “caught up in a cash for access row” following the newspaper’s investigation into Mr Rasool.

6. The 2 October article was published online only. The 11 September articles were published in print and online. The online versions included video footage taken by the newspaper’s undercover reporter at the meetings with Mr Rasool and the complainant.

7. The complainant said that the articles gave the misleading impression that he had acted illegally or improperly, and inaccurately stated that he had been caught up in a “cash for access” scandal. At no stage had he offered access in exchange for donations, nor had he accepted donations on that basis. The complainant noted that a complaint to the Parliamentary Commissioner for Standards, made on the basis of the articles, had been dismissed by the Commissioner without investigation.

8. The reporter attended the campaign event uninvited, and the cheque which was given to a member of the complainant’s team at the event was not cashed. The articles failed to accurately report this, or explain that a previous donation from Mr Rasool had been accepted and properly registered. The statement in the article that it was “not known whether Rasool later passed the full £5000 on to Mr Burnham’s campaign team or if the donation was properly registered” was therefore misleading.

9. The complainant said that the newspaper had used its investigation of Mr Rasool to conduct a fishing expedition against the complainant, using complex subterfuge, without any public interest justification: it had no grounds to suggest that the complainant was involved in wrongdoing. This was a clear breach of Clause 10. The complainant was particularly concerned that the reporter had attended the event with a woman and a baby; he said that the baby had been used as a “prop” by the newspaper in photographs which were used to illustrate the articles.

10.  The newspaper’s suggestion that his private comments about Jeremy Corbyn contradicted the position he had taken publicly was unfounded, and simply represented an attempt by the newspaper to introduce a public interest justification after the event. These comments were similar to comments he had made at public engagements.

11. Furthermore, the journalist had attended a private and informal gathering on private premises; this was intrusive and breached Clause 3.

12. Separately, the complainant was concerned that an “early” version of the September articles, which omitted some of the comments from his spokesperson, had been circulated to broadcasters and the Press Association, prior to publication. This denied him the opportunity to reply; he considered that this constituted a breach of Clause 2.

13. The complainant said that the 2 October article repeated the inaccurate allegation that he had been involved in wrongdoing, as well as his comments from the event which had been obtained in breach of Clause 3 and Clause 10.

14. The newspaper did not accept a breach of the Code. This was a significant public-interest investigation into Mr Rasool and claims about the abuse of party funding, which had been described by the agent for the Deputy Leader of the Labour Party as “responsible journalism”. The articles did not allege that the complainant had offered access in return for payments, or accepted the donations from its reporter; nonetheless, the complainant was accurately reported as being “caught up” in the “cash for access row”. Mr Rasool, who the complainant had publicly described as a “campaign star”, had claimed to be raising funds for the complainant’s campaign, had claimed that he was able to arrange a face-to-face meeting with the complainant in exchange for donations and, having received a donation, had successfully arranged such a meeting, between the reporter and the complainant, at a campaign event.

15. The articles had made clear that the newspaper did not know whether Mr Rasool had passed on the £5000 given to him by the newspaper, and that the cheque presented to the complainant’s campaign team by the reporter’s wife had not been cashed. The coverage stated that “there is no suggestion that Mr Burnham…acted illegally” and reported that the complainant had described Mr Rasool as a “fantasist” who had “no role, formal or informal, within the Burnham campaign”.

16. The newspaper said that it contacted the complainant before publication to enquire whether the £5000 it had given to Mr Rasool, during its investigation, had been passed on to the campaign. It had explained that this was a separate donation to the £5000 Mr Rasool had donated in July. The complainant had responded explaining that the July donation was legitimate, and that the £3000 cheque was never cashed; however, he did not respond in relation to the £5000 given to Mr Rasool. These responses were reflected in the article, as was the fact that the newspaper did not know what had happened to the £5000 given to Mr Rasool: the complainant had not responded, and Mr Rasool would have had 30 days in which to declare the donation, so the status of the money was unclear.

17. The newspaper provided IPSO with a detailed timeline of the investigation, including an account of meetings between senior editorial figures and the newspaper’s legal department, at various stages, to assess whether the use of subterfuge was justified and whether the subsequent publication of the material was warranted. It did not accept that the investigation was a fishing expedition. It had solid grounds for suspecting that a well-connected figure was prepared to circumvent rules of party funding and arrange a meeting with the complainant in exchange for cash. The newspaper emphasised that it had not brought up the complainant in discussions with Mr Rasool - it was Mr Rasool who had suggested the meeting.

18. It was necessary to use subterfuge and clandestine recording devices to test whether Mr Rasool was indeed able to secure access to the complainant and to obtain a full and proper record of those meetings, because Mr Rasool was unlikely to speak openly to a journalist.

19. The newspaper said that a freelance reporter had met Mr Rasool at a lunch event organised by two Labour MPs in 2014, at which Mr Rasool had discussed his links to high-profile politicians, as well as his record of donations to the Labour Party. As a consequence of this conversation, the reporter believed that Mr Rasool was suggesting that he would be willing to arrange meetings with frontbench Labour MPs in exchange for donations. The reporter also suspected that Mr Rasool might be willing to break the rules around political fundraising.

20. The reporter contacted a journalist at the newspaper to discuss how he should proceed with an investigation. On the basis of the reporter’s conversation, the newspaper concluded that using subterfuge would be justified.

21. The investigation began with a dinner meeting, at which the reporter was introduced to Mr Rasool as a wealthy individual from Dubai, who was interested in Labour politics. Mr Rasool explained that he was raising money for the complainant’s campaign, and urged the reporter to make a donation to the party. He made clear that he was prepared to arrange a meeting between the reporter and the complainant.

22. The newspaper considered that there was a public interest in testing whether Mr Rasool’s claims of influence, and his specific claim to be able to arrange a meeting with the complainant, were correct. A second meeting was therefore arranged, on 5 September 2015, at which Mr Rasool told the reporter that, in exchange for an on-the-spot donation, he would arrange a meeting between the reporter and the complainant. The reporter therefore gave Mr Rasool £5000 in cash. The reporter told Mr Rasool that he was a Dutch national and was advised that, because of Party funding rules, he would need to make donations through his wife, who is British.

23. Two days later, on 7 September, Mr Rasool contacted the reporter to say that the meeting with the complainant would take place in two hours’ time. The reporter informed his contact at the newspaper, who told the managing editor, senior editorial staff and an in-house lawyer. This was, in the newspaper’s view, the most significant aspect of the investigation; as it was the first opportunity to establish whether Mr Rasool would make good his promise to arrange a meeting with the complainant in exchange for money. The newspaper decided that it therefore was justified to attend the meeting with the complainant and record it, in order to obtain a proper record of the meeting, as the newspaper was unaware of how the complainant would respond to Mr Rasool. The reporter had been told to bring a cheque, and it was also therefore necessary to ensure that there was an accurate record of what happened when the cheque was handed over to the complainant’s staff.

24. The reporter’s wife agreed to attend the meeting, as she would present the cheque. The couple did not have time to arrange a babysitter so chose to take their baby to the meeting. The newspaper explained that it had been unaware of this decision at the time; it had subsequently offered to pixelate the child’s face in any photographs used, although this offer had not been taken up by the reporter.

25. At the meeting, Mr Rasool explained that the reporter had donated to the campaign, and the complainant had expressed his gratitude. The complainant also discussed the leadership campaign, and described the possibility of Mr Corbyn winning the election as a “disaster for the Labour Party”.

26. The newspaper noted that, at the time of publication, there was a genuine question about whether the complainant would serve in a shadow cabinet under Mr Corbyn. The complainant had been criticised by a member of his own parliamentary party for being inconsistent in his position in relation to Mr Corbyn. The newspaper cited a number of publication statements in which the complainant had praised Mr Corbyn and his campaign; as such, the position he took in private, in discussions with the reporter, was evidence of hypocrisy. There was therefore a clear public interest in publishing the comments.

Relevant Code Provisions

27. 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. In cases involving the Regulator, prominence should be agreed with the Regulator in advance.

Clause 2 (Opportunity to reply)

A fair opportunity for reply to inaccuracies must be given when reasonably called for.

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

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.

Note

IPSO has not received any complaint from Mr Rasool about this coverage, and did not have the benefit of his comments on his conversations with the reporter. The Committee relied in its findings on translations of the conversations, from Urdu, as reported by the newspaper. The accuracy of the reporting, insofar as it related to Mr Rasool, was not disputed by the complainant. The Committee therefore made no findings concerning Mr Rasool’s position; its findings should be understood in that context.

Findings of the Committee

28. The coverage did not allege impropriety by the complainant. Instead, it reported that he had become “caught up” in a cash for access row as a consequence of the actions of Mr Rasool. While the Committee sympathised with the complainant’s position that he had been innocently drawn into the scandal, this was accurate: Mr Rasool had accepted £5000 from an individual, purportedly a non-UK national, in exchange for organising a meeting with the complainant. The newspaper was careful to state only that he had become “caught up” in the “row”.

29. The coverage explained that the second £3000 “donation” was ultimately rejected as a consequence of the proper checks carried out by the complainant’s team. It also recorded that Mr Rasool had made a separate donation of £5000 in July, which had been properly recorded, in line with procedure, and further explained that it was unclear whether Mr Rasool had passed on the £5000 given to him by the reporter in September. The complainant did not dispute that he had not responded to the newspaper’s request for information about this donation: the article was not therefore inaccurate on this point. Indeed, it was important for the newspaper to record that the whereabouts of that £5000 was unknown, given that Mr Rasool would have had 30 days in which to declare it, to avoid the misleading suggestion that an illegitimate donation had been accepted by the complainant’s campaign.

30. The newspaper was able to demonstrate that it carried out a structured investigation, assessing at each stage whether the information it had obtained justified the further use of subterfuge. It had initially been given information by the freelance journalist which might have suggested that Mr Rasool was offering to arrange meetings with senior party figures. Its belief that an investigation of that claim was in the public interest was correct: the public are entitled to know whether wealthy individuals are able to pay for access to politicians. The newspaper was entitled to conclude that the information it sought could not have been obtained by other means.

31. The second stage of the investigation followed the initial meeting in the Colony Club. Once Mr Rasool had said he was willing to arrange a meeting with a senior public figure - the complainant - in exchange for a donation, the newspaper was entitled to test whether he would in fact do so. The Committee accepted that there was a public interest in establishing whether Mr Rasool was able to make the promised introduction, which justified further investigation.

32. It was reasonable for the newspaper to take the view that the only way in which this could be conclusively established was for the reporter to attend the meeting, undercover, and use a clandestine recording device to record what took place there. Doing so was therefore justified under the Code, notwithstanding the absence of any reasonable belief that the complainant was himself involved in wrongdoing.

33. Although the reporter was justified in attending the meeting, his use of subterfuge continued to be governed by the Code. Any activity which significantly altered the remit of the investigation or nature of the subterfuge used would itself require justification to avoid a breach. Nonetheless, a journalist in such a situation is entitled to react to his circumstances and reach a decision on whether continuation of subterfuge is justified:  they are not required to demonstrate that each additional step taken in such a case was agreed with their editor, where to do so would be impractical given the need to react to circumstances as they unfold while remaining undercover. It will then be for IPSO to consider whether that decision was correctly made.

34. However, in this case, the newspaper had already, correctly, determined that there was justification for recording the complainant’s interaction with Mr Rasool and the reporter, in order to test the veracity of Mr Rasool’s claims to influence. As this fell within the agreed remit of the investigation, it did not require a separate decision by the journalist as to whether it was appropriate to proceed.

35. Nonetheless, there is a public interest in transparency in relation to the views of those holding, and further seeking, public office. The public were entitled – not least in the context of that leadership contest – to be informed of what the complainant had said; particularly given that, at that stage of the contest, there had been some debate about his position in relation to the then frontrunner, Mr Corbyn, as a consequence of the range of comments he had made in relation to Mr Corbyn’s leadership bid. This would not – in itself – have justified an investigation using subterfuge; however, given that the newspaper had separately justified the use of subterfuge to attend and record the meeting, this was sufficient to justify publication of the comments as a matter of public interest.

36. The Committee noted the complainant’s particular concern that the reporter had attended the event with his child. While it accepted that there was some basis for believing that this would have made the subterfuge more convincing, the Committee was not satisfied that this changed the character of the subterfuge used to such an extent that this required independent justification under the Code. Furthermore, the child had not been put at any risk by attending a meeting with the complainant and it was for the child’s parents – not the complainant or IPSO – to take a view on the child’s best interests.

37. The complainant’s concern that the reporter’s undercover attendance at a campaign event had been intrusive was closely linked to his complaint under Clause 10. Given the nature of the event, any reasonable expectation of privacy which the complainant had, in the circumstances, was limited. His comments to the freelance reporter did not disclose any personal information. Further, they demonstrated the extent to which the reporter was able to obtain “access” to the complainant following the donation. The extent to which this could be said to have been intrusive – on the grounds that the event was private – directly supported the newspaper’s position that the nature of the reporter’s conversation with the complainant, following the introduction by Mr Rasool, illustrated a matter of public interest.  For the same reasons as above, the complaint under Clause 3 was dismissed.

38. Clause 2 relates to requests to respond to inaccuracies after publication. No inaccuracies had been established by the Committee, neither had any request been made by the complainant for the opportunity to respond. Clause 2 was not engaged.

Conclusions

39. The complaint was not upheld.

Remedial Action Required

N/A

Date complaint received: 02/10/2015
Date complaint concluded: 09/02/2016