10126-22 Devlin v The Times Scotland

Summary of Complaint

1. Louise Devlin complained to the Independent Press Standards Organisation that The Times Scotland breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 6 (Children), Clause 9 (Reporting of crime), Clause 10 (Clandestine devices and subterfuge) and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “Late-night drummer hit with fine over camp row”, published on 9 June 2022.

2. The article was a court report which reported on a fine issued to the complainant following the assault of an individual at a campsite. The article stated, “An alternative healer has been fined for assaulting a fellow camper who complained her sleep was being disturbed by shamanic drumming.” The article reported “[the victim] joined them, and also asked Devlin to stop drumming, and on hearing her accent, Devlin asked where she was from. Other campers were ‘attracted by the commotion’ and the site manager also arrived”, and “Devlin, of Neilston, Renfrewshire, admitted assault and using racially aggravated behaviour. She was fined £500”. The article further reported that her legal representative “said in mitigation that Devlin had decided to go on a camping trip with her former partner and her three children, aged six, five and three, but ‘matters were very much strained’ and as a result Devlin had ‘ended up drinking’”. The solicitor was quoted describing the complainant’s drum as a “shamanic drum that she had…a drum you would sort of bang as part of meditating.” The article also included an image of the complainant playing a drum on a beach.

3. The article also appeared online in substantially the same format under the same headline. The online article was later updated – the newspaper removed the image of the complainant playing the drum, and replaced it with an image of the complainant outside of court.

4. The complainant said that the article was inaccurate in breach of Clause 1 as it described her as an “alternative healer” yet this was never heard in court and was conjecture on the part of the newspaper. The complainant said her solicitor had mentioned that she was self-employed as a complementary therapist and was soon to start studying for a diploma. The complainant did not consider the details of her profession included in the article to be relevant to the incident at the campsite and believed that the newspaper had used the details of her profession to sensationalise the report. She said that the article suggested she had committed a crime while she was an alternative healer, whereas she had not.

5. She further disputed that she had ever admitted to asking the victim where she was from upon hearing her accent, and that the court charges were in regard to assault. The complainant also said that the article was one-sided and not balanced. She further said that details from the incident, such as personal circumstances which contributed to the incident that were heard in court, were not mentioned in the article.

6. The complainant said that the article was also in breach of Clause 2 as the image it had used of her playing the drums had been taken from either her private LinkedIn page or her personal website without her permission and that she had copyright over this image. She also said that the image identified her and was not relevant to the court case.

7. She further considered that the article had intruded into her private life by stating that she lived in Neilston where her children also live – who, she said, had nothing to do with the court case. She also said that the subsequent image of her taken outside of court was used without her consent.

8. The complainant also believed that Clause 6 had been breached as she said that publishing the ages of her children breached their privacy and identified them in conjunction with identifying her. She said their ages were irrelevant and represented an aspect of their private lives – she said there was no public interest in revealing their ages.

9. The complainant also said the article breached Clause 9 for the same reasons previously stated under Clause 6.

10. The complainant also considered the article to be in breach of Clause 10 as the article had used a photograph of her from her website and had later updated this to an image of her outside court without her permission.

11. The complainant also said the article had breached Clause 12 as she considered the article focused on the fact that she practiced Shamanism, which she stated was a religion, and used “against” her. She accepted it was heard in court that she used a Shamanic drum, but also said that a witness had called them “bongos” - she considered the use of “shamanic drum” to be irrelevant and intended to make the story “juicy and sensationalist”. She said describing her as an “alternative healer” was irrelevant to the court case particularly as she had started her role as a complimentary therapist after the incident. During the complaints process, the complainant made clear that the publication of the article had caused her great distress and wished for the article to be removed.

12. The newspaper said it did not accept a breach of Clause 1. It said that the article was a brief and accurate court report of the proceedings in which the complainant pleaded guilty to charges of assault and using racially aggravated behaviour and was fined £500. The newspaper referred to IPSO’s guidance on court reporting which said, “It is a fundamental principle of open justice that court proceedings can be reported on by the media in an open and transparent way.”

13. In response to the alleged inaccuracy of the complainant being described as an “alternative healer”, the newspaper quoted the solicitor who described her as "involved in alternative therapies". It also quoted the summary of the complainant’s website which said: "Shamanic therapy online and in-person for healing with Louise Devlin Therapies”. It further said that her website described her professional services in the following terms:

Louise is a Shamanic practitioner based in Glasgow. What is Shamanism? Shamanism is ultimately a complementary and alternative therapy for the psyche. It encompasses empowering visionary meditative practices to unblock stuck energy. It is about coming home to your authentic self. Shamanic services include soul retrieval, psychopomp work, extraction, reiki, land healing, depossession, curse removal, archetypal overlay removal, ancestral lineage healing, and workshop facilitation.

The newspaper’s position was that her profession as an “alternative healer” was therefore not “conjecture” but a matter of record.

14. In response to the complainant’s concerns that she was not self-employed or practising alternative therapies at the time of the incident, the newspaper said it is customary and not inaccurate for a court report to refer to the defendant’s current profession at the time of the court appearance rather than their profession at the time they committed the offence.

15. In response to the alleged breach of Clause 2, the newspaper said that the article did not reveal the complainant’s full address but simply her location in "Neilston" - a village of over 5000 people - as given in court papers. The newspaper said the original photograph used of the complainant drumming was taken from a public-facing LinkedIn page intended to promote the complainant’s professional services and therefore using it did not breach her privacy. It removed the photograph when she stated she had copyright over this image and replaced it with a photograph of her leaving court. It stated that this was taken in a public place at the conclusion of public court proceedings and there was no reasonable expectation of privacy in such circumstances.

16. The newspaper did not accept a breach of Clause 6, it said that its report noted only that the complainant had arrived at the campsite with three children and that her solicitor “said in mitigation that Devlin had decided to go on a camping trip with her former partner and her three children, aged six, five and three.” It said these facts did not appear to be in dispute and there was nothing in Clause 6 to prevent their publication and no other reference to the complainant’s children was made.

17. The newspaper further said that Clause 9 was not engaged: it said the complainant’s friends and relatives were in no way identified in the report and the reference to her unidentified children aged under 18 did not go beyond recording their presence at the scene of the crime, to which reference was made in court.

18. In addition, the newspaper did not accept a breach of Clause 10 and said the Clause was not engaged. It said the article was originally illustrated with a photograph posted by the defendant on her public-facing LinkedIn page intended to promote her professional services and that no subterfuge was involved in obtaining it. It said that as soon as the complainant asserted copyright over the photograph and stated she was unhappy with its use, the photograph was replaced with one taken of the complainant leaving court, a public space where the complainant had no reasonable expectation of privacy. It asserted that no subterfuge was involved in taking it.

19. The newspaper also did not accept a breach of Clause 12: it said that the complainant’s involvement in Shamanism was not used against her, nor was it the focal point of the article, but rather it recorded the details of the assault. It said the reference to Shamanism was a statement of fact and referred to in court in mitigation as an explanation of why she was banging a drum on a campsite at 11.30 at night. The newspaper further quoted the solicitor’s comments heard in court: "It was a shamanic drum that she had... A shaman's drum… A drum you would sort of bang as part of meditating.” The newspaper said that the references were not pejorative or prejudicial and that the complainant described herself in similar terms on a website promoting her professional services.

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 6 (Children)*

i) All pupils should be free to complete their time at school without unnecessary intrusion.

ii) They must not be approached or photographed at school without permission of the school authorities.

iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child's interest.

Clause 9 (Reporting of Crime)*

i) Relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story.

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.

Clause 12 (Discrimination)

i) The press must avoid prejudicial or pejorative reference to an individual's, race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability.

ii) Details of an individual's race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.

Findings of the Committee

20. Where it was heard in court that the complainant was “involved in alternative therapies”, it was not significantly inaccurate to characterise the complainant as an “alternative healer”. The Committee also noted that the complainant had described herself as a “Shamanic practitioner” and her services being available “in person for healing”, as well as defining Shamanism as “a complementary and alternative therapy” on her website promoting her services. The Committee acknowledged that the complainant had not been practising these therapies at the time of the incident at the campsite; however, where the complainant was involved in what could be characterised as alternative therapies at the time of the court case, it was not inaccurate to describe her as an “alternative therapist” and there was no breach of Clause 1 on this point.

21. Clause 1 requires publications to take care not to publish inaccurate or misleading information, and to correct significantly inaccurate, misleading or distorted information; it does not relate to other concerns about the presentation of material, such as that it is sensationalist or one-sided. Newspapers are entitled to choose which information they include, provided it does not breach the Code. In this case, omitting other information heard in court, such as the complainant’s personal circumstances, did not make the report, which correctly identified the offences which the complainant had admitted, inaccurate, misleading or distorted – and there was no breach of Clause 1 on these points.

22. The Committee considered the complainant’s further point that she had not admitted to making a comment about the victim’s accent. Newspapers are responsible for accurately reporting what is heard in court; they are not responsible for the accuracy of what is heard by the court. Where the complainant did not appear to dispute that this was heard in court and that she had admitted using racially aggravated behaviour, the Committee did not find a breach of the Code on this point.

23. Turning to the complainant’s concerns raised under Clause 2, the image of the complainant was taken from a public website / LinkedIn page promoting her services, and therefore she did not have a reasonable expectation of privacy over this image. The updated image of the complainant outside court did not represent a breach of the Code where she was in a public space, a location where she had no reasonable expectation of privacy, and the image simply depicted her leaving the hearing. There was no breach of Clause 2 on this point.

24. The Committee was sympathetic to the complainant’s concerns about naming the town in which she lived, however, newspapers are entitled to report information that has been disclosed in open court and is not subject to a reporting restriction. It further noted that the complainant did not have a reasonable expectation of privacy over the town in which she and her children lived and there was no breach of Clause 2 on this point.

25. The complainant also complained under Clause 6. The Committee did not consider the article to have identified the complainant’s children by only printing their ages and noted that these details were heard in court. The article did not name or contain any images of the children and the Committee saw no evidence to suggest their time at school had been intruded into as a result of the article. There was no breach of Clause 6. As the children had not been identified, there was no breach of Clause 9.

26. In addition, the Committee considered the complainant’s concerns raised under Clause 10. Clause 10 generally relates to the obtaining of information by journalists through clandestine means or by deploying subterfuge – for instance, by using undercover reporters. The newspaper used a publicly available image from the complainant’s website which it removed and updated once she had asserted copyright. The image of the complainant obtained outside court did not appear to have been taken deploying clandestine means and it was not necessary for the newspaper to ask for consent. There was no breach of Clause 10.

27. The Committee considered the references to “shamanic drumming”, “shamanic drum” and “alternative healer” in the article. The Committee understood that the complainant practiced Shamanism – a religious belief system - and noted that “shamanic drum” did refer to her protected characteristic. However, where “Shamanic drum” was mentioned in court by her solicitor, it was relevant to the report. The Committee did not consider the reference to be pejorative or prejudicial where the complainant had referred to herself as a “Shamanic practitioner” on her website. There was no breach of Clause 12.

Conclusions

28. The complaint was not upheld.

Date complaint received: 09/06/2022

Date complaint concluded by IPSO: 26/08/2022