Ruling

09505-22 Hunter v Daily Mail

    • Date complaint received

      8th December 2022

    • Outcome

      No breach - after investigation

    • Code provisions

      1 Accuracy, 10 Clandestine devices and subterfuge, 2 Privacy

Decision of the Complaints Committee – 09505-22 Hunter v Daily Mail

Summary of Complaint

1. Carl Hunter complained to the Independent Press Standards Organisation that the Daily Mail breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “Former MP 'felt threatened' by top Tory adviser in phone calls: Charlotte Leslie contacted police claiming senior party activist asked if she could 'walk the dog at night and sleep well'”, published on 18 January 2022 and an article headlined “Tycoon and Tory adviser accused of bullying ex-MP”, published on 21 January.

2. The first article reported on a telephone call between a former MP and the complainant, who was described as a “government adviser”. It reported that the telephone call occurred after “a clash” and “a power struggle” between the former MP, Charlotte Leslie, and a named “telecoms tycoon” in relation to the content of a “dossier”. The article said that “moves to defuse the rift led to a series of phone calls between [the complainant], acting as ‘mediator’, and [the MP]”. The article stated that the former MP had “contacted police claiming that she had been ‘threatened’” by the “’sinister’ phone call”. The article contained several quotes from the recorded telephone call: [the complainant] telling the former MP that “you need to consider your position – being able to walk the dog at night, being able to sleep well at night”; that the complainant had “insisted [the MP] was ‘alone’ and faced ‘a world of pain’ unless she backed down”; that she was “in the eye of the storm... it's [her] they seem to be after”; had claimed ”It's like a volcano” and that the dispute would “monopolise [her] life for as long as it lasts... it just weighs on your mind so much... I don't want to see you photographed in some tabloid standing on the steps of somewhere”. The article said that there had been four telephone calls between the complainant and the former MP and that the advisor “denied threatening” the her and that when approached for comment, had stated that “I do not recollect using that sort of language. I was trying to help Charlotte”. The article contained a four and a half minute recording of the telephone call, which included the quotes in the article.

3. The second article reported on the same telephone call after it was discussed in an “explosive Commons debate” and stated that the complainant had been “criticised” by MPs in Parliament. It described the complainant as having attempted to “broker peace” between Ms Leslie and the Tory donor. This article also stated that the former MP had “complained to the police about the ‘sinister’ calls” and included the quote in which the complainant had said the former MP should “’consider being able to walk the dog at night’ if she refused to apologise”. It said that the complainant had declined to comment.

4. The article also appeared online in substantially the same format under the headline, “Tycoon and Tory adviser are accused of ’bullying’ former MP Charlotte Leslie in row over Middle East group”.

5. The complainant said that the articles were inaccurate in breach of Clause 1. He accepted that he had spoken the words in the audio recording, and which were quoted in the articles, but noted that the calls had been far longer than the four-minute clip published and quoted. He said, therefore, that this was clearly a heavily edited excerpt that had missed much of the surrounding context of the quotes. The complainant said this rendered the articles misleading and was particularly concerned that the articles had omitted to mention that the former MP had expressed her appreciation to him during the calls for his attempts to reconcile the parties. He said that she had not stated that she found the conduct inappropriate, offensive or threatening during the telephone call itself nor when she met him at the annual Conservative party conference at a later date. The complainant said that the omission of this context led to the articles being unbalanced and unfair: the complainant’s aim was to assist her, and he was a neutral party. He said that the full recording would have demonstrated that the calls were not “sinister”.

6. The complainant also said the articles were inaccurate as they did not report that he had participated in the telephone call as part of his role as a “mediator” or that the mediation process was private and confidential. He also said it was inaccurate not to report that he was unaware he was being recorded.

7. The complainant said that it was misleading for the articles to report that the former MP had made a complaint to the police, but not to publish the outcome of the complaint. He noted that he had been told by the police on 15 March 2022, almost two months after the publication of the articles, that no further action would be taken in relation to the complaint.

8. The complainant also stated that he had not been given a fair opportunity to comment on the information contained in the articles. Whilst he accepted that he had been contacted in advance of the first article and had been asked questions, he considered the reporter to have been “abrupt” and thought that the call was tantamount to an “ambush”.

9. The complainant also considered that the articles amounted to an unjustified intrusion into his private life. He said that the telephone calls were private and confidential and that neither the recordings of them nor quotes from them should have been published without his consent. He also said that, whilst he was under criminal investigation, he had a reasonable expectation of privacy in respect of information relating to that investigation.

10. The complainant also said that he had been unaware that the telephone calls he was having with the former MP were being recorded, and that he had not consented to this. He said, therefore, the recordings had been obtained by subterfuge and clandestine means in breach of Clause 10.

11. The publication did not accept a breach of the Code. It said that newspapers are free to select which information to report on. It said it was not possible to publish the full hours of conversation between the complainant and the former MP in the first article and had chosen to include the specific quotes that set out the basis for the former MP’s concern that the complainant had been attempting to intimidate her. It also noted that it had included the complainant’s denial of this, and his position that he had been trying to help her. On this basis, it did not consider that the first article was inaccurate.

12. The newspaper said that the second article reported allegations made against the complainant under parliamentary privilege and that, as such, although the complainant disagreed with the allegations, it was free to report on them, and had not done so inaccurately. It also said that balance was not a matter which fell under the Editors’ Code.

13. The publication also stated that the first article made clear that the complainant was speaking to the former MP in a mediator role. It said that it did not consider it necessary to repeat the specifics of his position in the second article for it to be an accurate report of the allegation made in parliament.

14. The publication noted that the articles did not report that the complainant was under police investigation, but rather that a complaint to the police had been made against him. It said it was, therefore, unnecessary to add an update to the articles for them to remain accurate. It did, however, in its response to IPSO’s initial questions during the investigation, offer to add the complainant’s position as the following footnote to both online articles:

Since this article was published, we have been informed that the police have decided to take no further action in relation to Mr Hunter.

15. The publication said that, as the articles did not contain any significant inaccuracies, the complainant was not entitled to a right to reply under Clause 1. It also noted that the Editors’ Code does not have a standalone requirement for subjects of articles to be approached for comment. It also said that the call from the reporter constituted a fair opportunity for the complainant to respond to the allegations.

16. The publication said that it did not consider that the complainant had explained in his complaint what information in the telephone calls between himself and the former MP he considered to be private. It said that it was not the case that all conversations were intrinsically private and did not consider that the complainant had a reasonable expectation of privacy over any of the information published.  It said that, in any event, there was an overriding public interest in reporting on the details of these telephone calls, specifically in relation to detecting or exposing crime, or the threat of crime or serious impropriety, and raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public. It said that there was a public interest in the dispute between the former MP and the Tory donor, as well as the Conservative Party’s handling of the matter, treatment of women in politics and its relationship with business figures. It said that where the female former MP had contacted the police, this suggested she considered there to be serious impropriety. The publication said its Legal Department and Managing Editors’ Office had carefully considered which exact details from the telephone calls were necessary to include to serve the public interest, and that the quotes were necessary to demonstrate the former MP’s concerns. It said that it also carefully considered the balance between any possible intrusion into the complainant’s privacy and the public interest served, concluding that any such intrusion was minimal and proportionate as it only reported his views on the topic of the mediation itself, rather than personal information about him.

17. The newspaper also said that as it had not reported that the complainant was under investigation by the police, there was no breach of his privacy when reporting that a complaint had been made to the police.

18. The publication did not consider that Clause 10 was engaged. It said that recording a telephone call without a participant’s knowledge did not constitute the use of a “clandestine listening device”, nor had any misrepresentation or subterfuge been utilised in the gathering of the information. The newspaper stated that the telephone call was recorded with the purpose of taking a contemporaneous note, and that recording the telephone call did not mean any further information was gathered that was not already available.

Relevant Code Provisions

Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Clause 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.

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.

Findings of the Committee

19. The Committee noted that selection is a matter of editorial discretion and the publication was entitled to select sections of the telephone calls between the complainant and the former MP for publication, as long as it took care that this was not inaccurate, misleading or distorted. The Committee noted the complainant’s concerns that the full context of the calls had not been reproduced within the articles; he had said the former MP had thanked him during the telephone calls and that this had not been included in the article or recording, which he considered rendered the account of the conversation misleading. However, the Committee did not consider that omitting these comments rendered the published material to be misleading; the complainant accepted that he had said the words quoted in the article, and the woman whom he had called had explained that she found the comments quoted to be threatening. She was entitled to express this view, and the basis for this view – the quoted comments – was included in the article. Comments made by the complainant during the call that were different in tenor, or the way that the woman had responded as the conversation was ongoing, did not affect this. There was no breach of Clause 1 on this point.

20. The complainant said that it was misleading for the articles not to reference that he had been working as a mediator, and that the conversations had been confidential. The Committee noted that the first article had, in fact, described him as a “mediator”, and the second article had described him as attempting to “broker peace”. It did not consider omitting that the call was, in the view of the complainant, confidential rendered the article misleading. The fact that he may have believed himself to be speaking in confidence did not, of itself, mean that the article had reported what he had said inaccurately. In addition, the Committee did not find that it was inaccurate to omit that the complainant was unaware he was being recorded, as this had no bearing on the accuracy of the quotes or the thrust of the articles: namely the language used and the discussion of it in Parliament. There was no breach of Clause 1 on these points.

21. The Committee noted that both articles reported that a complaint had been made about the complainant to the police, but neither article said whether the police had taken any action in response. The publication was not obliged under the terms of Clause 1 to find out that information or to report it. There was no breach of Clause 1 on this point. Nonetheless, the Committee welcomed the publication’s offer to append an update to the article online.

22. The complainant had concerns about the way he was contacted for comment ahead of the publication of the first article, as he considered the journalist to have been “abrupt” when talking to him. Firstly, the Committee noted that there was no standalone requirement to approach the subject of the article for comment, although it could form part of the process of taking care to avoid inaccuracies. In circumstances where the complainant had been contacted ahead of publication, had the opportunity to deny the allegations made against him, and that this denial was published in the first article, the Committee did not consider that the publication had failed to take care over the accuracy of the information within the article. There was no breach of Clause 1 on this point.

23. The Committee then turned to the complainant’s concern that reporting the content of the calls represented an intrusion into his privacy. The Committee considered that, as it related to private telephone calls between two individuals, the terms of Clause 2 were engaged.  However, it noted that the content of the telephone calls did not relate to the complainant’s private or family life – rather these were calls made in the course of his work. He had also made the statements to a former MP, and she had found them threatening and had reported to the police.  Given the nature of the content of the call the Committee considered that the intrusion into the complainant’s privacy was limited. The Committee also considered that the information published was in the public interest: the telephone calls had led to allegations of serious impropriety, as well as contributing to a matter of public debate in relation to how the Conservative Party handled such matters. On balance, where the intrusion into the complainant’s private life was limited to the publication of the recording and quotes and was justified by the public interest in the reporting the content of the calls, there was no breach of Clause 2.

24. The complainant also said he had a reasonable expectation of privacy over the fact he was under investigation by the police as a result of the telephone call. As above, the article had not stated that the complainant was under investigation; only that a complaint had been made against him to the police. The Committee did not consider that this was information over which the complainant had a reasonable expectation of privacy, and there was no breach of Clause 2.

25. Finally, the Committee considered Clause 10. There had been no subterfuge deployed in order to record the telephone call – the complainant was aware of who he had been speaking to during the conversation. In addition, using a recording device in order to record a conversation did not amount to a clandestine device. The Committee noted the same information would have been available had either participant of the call taken notes by hand or given an oral account of the telephone call to the publication; it served to verify the accuracy of the account. There was, therefore, no breach of Clause 10.

Conclusion(s)

26. The complaint was not upheld.

Remedial Action Required

27. N/A


Date complaint received: 20/05/2022

Date complaint concluded by IPSO: 18/11/2022