Ruling

11471-21 Phillips v Mail Online

    • Date complaint received

      30th June 2022

    • Outcome

      No breach - after investigation

    • Code provisions

      1 Accuracy, 10 Clandestine devices and subterfuge, 12 Discrimination, 14 Confidential sources, 15 Witness payments in criminal trials, 2 Privacy, 3 Harassment, 4 Intrusion into grief or shock

Decision of the Complaints Committee – 11471-21 Phillips v Mail Online

Summary of Complaint

1. Zoe Phillips complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment), Clause 4 (Intrusion into grief or shock), Clause 10 (Clandestine devices and subterfuge), Clause 12 (Discrimination), Clause 14 (Confidential sources), and Clause 15 (Witness payments to criminal trials)  of the Editors’ Code of Practice in an article headlined “Businesswoman, 53, who claims she was 'pushed' by her lawyer to admit harassing MoD worker ex-lover and his fiancée weeps in court as she is refused permission to change her plea”, published on 17 May 2021.

2. The article, which appeared online only, reported on a Magistrates’ Court hearing involving the complainant. It said that she “had admitted two counts of harassment without violence last July and was sentenced to a 12 month community order, but now claims she is ‘not guilty’ and ‘never has been’.” It then reported that she had “bombarded her ex-lover and his fiancée with messages after he announced their engagement”. The article said that at a sentencing hearing previously the Magistrates Court “heard that following the end of [a] relationship [the complainant] went to [the victim’s] workplace and fired off messages to her company email account after ‘following [another victim] around all evening’ at a charity ball”; and referred to what “Prosecutor Johnathan Bryan earlier told the court”. It also stated that the complainant had “posted a selfie outside of [the victim’s] family castle”.

3. The article then went on to report that the complainant, a “brand manager for Nestle and Biogen […] broke down in tears while she maintained her innocence”. It also said that, when the two victims had “announced their engagement in the Telegraph newspaper, [the complainant] commented on the piece on the website” and that she had “threatened to kill herself” after the end of a relationship. The article also included two photographs: one showing the complainant on a public street, and another showing a woman – who the caption referred to as the complainant – wearing a mask, sunglasses, and a headscarf.

4. The article also included a statement from one of the victims which it said had been read at the sentencing hearing, in which he had said: “’She infiltrated my social circle and manipulated my friends in order to get to me. This has negatively impacted every aspect of my life. It also included comments from another victim, who was reported to have said: “It has led me to lock all of the doors and check under the car. She systematically made it her mission to force herself into our lives, this was unasked for and unwanted. She has written a number of times how she’s going to turn up. What she will do next is the question spinning in my mind almost all the time.’” It also said that the complainant had contacted a man “on Facebook after the victim blocked her on social media”.

5. The complainant raised a number of concerns of inaccuracy relating to: what the article claimed had happened during the hearing itself; details of the crime to which she had pleaded guilty; details about the victims and witnesses, as well as their witness statements; and photographs which accompanied the articles.  She first noted that she had not cried during the hearing which the article reported on, and therefore it could not be accurate to state that she had “w[ept] in court” or that she “broke down in tears”. She also said that the prosecutor during the court hearing had been a woman, while the article referred to them using a man’s name.

6. The complainant said that the article inaccurately reported on her circumstances and raised concerns about the photographs accompanying the articles. She said that she was not a “wealthy businesswoman”, and – although she had worked for Nestle and Biogen as a contractor – she was not employed by these companies, and therefore it was inaccurate to refer to her as a “brand manager for Nestle and Biogen”. Turning to the photographs which accompanied the article, she said that she did not consider the photograph of a woman in a headscarf to be accurate – although she could not say with certainty that it wasn’t her. She also said that the photograph which definitely showed her breached Clause 1, as it showed her rushing to an appointment.

7. The complainant also said that the article had inaccurately reported details about the victims and witnesses. She said that the article was inaccurate as the two victims had not become engaged until 2020, and were not engaged when they had contacted the police. She then said that the article breached Clause 1 by including subjective witness statements which had not been independently proven by CCTV, and by not referring to allegations about one of the victims which she had made in court. She also said that there were no journalists present in the courtroom at the time of the hearing; therefore, the article could not be said to be an accurate report of the court proceedings in question. She also said that, as a “castle” was not specifically referenced during the proceedings, it was inaccurate for the article to refer to a castle. Finally, she said that the article had inaccurately quoted a witness, as he had not spoken in court; this was the man who the article said the complainant had contacted “on Facebook after the victim blocked her on social media”.

8. The complainant said that the inclusion of her age, address, companies she had worked for, and a photograph of her intruded into her privacy in breach of Clause 2.

9. The complainant also said that she had been pursued and photographed by the press on 12 March 2020, 2 July 2020, and 17 December 2020 in a manner which she considered breached Clause 2, Clause 3, and Clause 10. She also said that the article itself was not compliant with the terms of Clause 3.

10. Turning to Clause 4, the complainant said that this Clause had been breached as she considered the article did not report on her legal proceedings with sensitivity, where she had other ongoing legal proceedings which had caused her grief and shock. She also said that the article included gratuitous detail; namely, the colour and style of suit she had worn to earlier court proceedings. She then said that Clause 10 had been breached, as she considered that the publication had engaged in subterfuge to misrepresent her.

11. The complainant also said that Clause 12 had been breached, as it referred to her as a “wealthy businesswoman”, and this would lead to subconscious bias on the part of the reader. She also considered that the article inferred that she was “mentally unstable”, in breach of Clause 12. Turning next to Clause 14 and 15, she said that these Clauses had been breached where, respectively, she considered the publication had a moral obligation to protect the sworn statements of witnesses, and she believed that witnesses may have been paid to provide information to the newspaper.

12. The complainant also expressed concerns that she had been unable to respond to “trolling” and one-sided comments beneath the article, though she did not say that the comments themselves breached the Editors’ Code.

13. The complainant first called the publication to discuss her concerns. In an email following the phone call, send on 15 November 2021, the publication told the complainant that they couldn’t comment on the court case “save to say [we] appreciate it must be of source of huge anxiety for you”. It then changed the article by: altering the headline to remove the reference to the complainant “weep[ing] in court”; adding a reference to the complainant speaking in court “on Friday (14 May)”; altering  “Prosecutor Johnathan Bryan earlier told the court” to “previously told the court”; and removing the photograph of the woman in the headscarf and mask.

14. The publication said it did not accept that the Code had been breached, and said that it was its firm position that the article was an accurate representation of the court hearing. It emphasised that information heard during court proceedings is placed into the public domain and may be reported on. To support its position that the article was an accurate report of court proceedings, it provided contemporaneous reporter’s notes, as well as correspondence from the agency reporter, affirming that he had been in court and had seen the complainant crying: he said that there were tears in her eyes; her voice broke as she spoke; that the Judge in the case had said to her that they “realise[d] the depth of feeling”; and that she “was without a doubt very emotionally distressed”.

15. Nevertheless, it said it would be happy to further amend the article to make clear that the complainant was not directly employed by Nestle or Biogen, notwithstanding the fact that it did not consider this to be a significant inaccuracy in need of correction.

16. Turning to the complainant’s Clause 2 concerns, it said that the complainant’s age, name, and description of attire worn to court would not be considered to be private information, and that the photographs included in the article were taken outside of court, in a location readily accessible to the public. In such circumstances, the publication did not accept that the complainant had a reasonable expectation of privacy over either the information included in the article or the photographs. It also noted that taking photographs of individuals outside of court would not be considered harassment as defined by Clause 3.

17. The publication did not consider Clause 4 to be engaged, where the report related to a court case rather than a case of grief or shock. It also said that, in circumstances where no one at the publication had approached the complainant in relation to the story, it could not be said that a journalist working on behalf of the publication had engaged in subterfuge or misrepresentation; the publication had simply published a contemporaneous report of legal proceedings.

18. The publication also said that publishing a general description of the complainant’s circumstances could not be said to be discriminatory in breach of Clause 12. It noted that the terms of Clause 12 relate to references to protected characteristics of individuals which could be said to be irrelevant, prejudicial or pejorative, and the article included no such reference. It then noted that Clause 14 could not be engaged, where the article was not based on any information from confidential sources, but rather a public court hearing. Finally, it said that Clause 15 was not engaged, where the publication had not paid any persons related to the court proceedings which the article reported on.

19. In response, the complainant reiterated her position that no reporter was present on the court date referred to. She also said that the article was inaccurate as it implied that the date of the court hearing was the 17th of May 2021 (the date of publication), when it was in fact held on the 14th of May 2021. She then said that it was not heard in court on 14 May 2021 that she had threatened to commit suicide – instead, it was an allegation taken from one of the victim’s witness statements – and that it was irresponsible for the newspaper to report this. Finally, she said that the article also inaccurately reported her age, and that she was 54 at the time of the hearing – rather than 53, as reported by the article.

20. The publication said it did not consider the article to be inaccurate to refer to the complainant threatening to commit suicide, where this was referred to during court proceedings by a prosecutor. It also said that it did not consider it to be significantly inaccurate to report that the complainant was 53, rather than 54, as this information did not alter the crux of the story.

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 3 (Harassment)*

i) Journalists must not engage in intimidation, harassment or persistent pursuit.

ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.

iii)  Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.

Clause 4 (Intrusion into grief or shock)

In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.

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.

Clause 14 (Confidential sources)

Journalists have a moral obligation to protect confidential sources of information.

Clause 15 (Witness payments to criminal trials)

i) No payment or offer of payment to a witness – or any person who may reasonably be expected to be called as a witness – should be made in any case once proceedings are active as defined by the Contempt of Court Act 1981. This prohibition lasts until the suspect has been freed unconditionally by police without charge or bail or the proceedings are otherwise discontinued; or has entered a guilty plea to the court; or, in the event of a not guilty plea, the court has announced its verdict.

*ii) Where proceedings are not yet active but are likely and foreseeable, editors must not make or offer payment to any person who may reasonably be expected to be called as a witness, unless the information concerned ought demonstrably to be published in the public interest and there is an over-riding need to   make or promise payment for this to be done; and all reasonable steps have been taken to ensure  no financial dealings influence the evidence those witnesses give. In no circumstances should such payment be conditional on the outcome of a trial.

*iii) Any payment or offer of payment made to a person later cited to give evidence in proceedings must be disclosed to the prosecution and defence. The witness must be advised of this requirement.

Findings of the Committee

21. The complainant had said that, as to the best of her knowledge, there were no journalists at the hearing, the article could not be an accurate report of the hearing. The Committee noted that this point raised a discrepancy between the complainant’s position and the publication’s position, where the publication stated that a journalist had been present in the courtroom. However, the publication had been able to provide contemporaneous reporter’s notes and the Committee was therefore satisfied that it had demonstrated that sufficient care had been taken over the accuracy of the information heard at the hearing. The Committee noted that the publication had been able to provide contemporaneous shorthand notes of the hearing, which referred to the complainant crying; it had therefore taken care not to publish inaccurate information with regard to this point, and the notes recorded the reporter’s observations of the proceedings they were present for. In addition, the Committee noted that the notes provided by the publication included a reference to the judge recognising the complainant’s “depth of feeling”. There was therefore no breach of Clause 1 on this point.

22. The article did not state that the victims had become engaged prior to 2020, therefore the article was not inaccurate in the way the complainant suggested on this point. The Committee also noted that there was no obligation under Clause 1 for the article to include everything that was heard in court, as long as omitting information did not render article inaccurate, misleading, or distorted. In this instance, the Committee did not consider that omitting allegations made by the complainant in court rendered the article inaccurate, misleading, or distorted, where omitting the information did not render the crux of the article – that the complainant had been denied permission to change her plea – inaccurate. There was no breach of Clause 1 on these points

23.  The Committee then noted that, while the focus of the article was the reporting of the hearing in which the complainant requested to change her plea, it referred to the previous sentencing hearing to provide context. The fact that a previous court hearing was at times being referred to was made clear by way of a reference to the “sentencing hearing last year” preceding comments from the victim and the male prosecutor. The complainant did not appear to dispute that the prosecutor at this prior hearing was male. The publication was entitled to refer to matters heard in court previously, including witness statements read out in those proceedings. There was no breach of Clause 1 on these points.

24. The article under complaint did not refer to the complainant as a “wealthy businesswoman”, therefore there was no possible breach of Clause 1 on this point raised by the complainant. Turning to the question of whether the article was significantly inaccurate in its reference to the complainant being a “brand manager for Nestle and Biogen”, where she said she was a contractor and was not directly employed by these companies, the Committee noted that it was not in dispute that the complainant had performed work for these companies on a paid basis. In such circumstances, it was not inaccurate to describe the complainant in these terms.

25. The complainant could not say with certainty that the photograph which accompanied the original version of the article, showing a woman in a headscarf and mask, was not her. In any event, the article was also accompanied by a photograph of the complainant that was not in dispute, and people would not be misled as to her appearance. The Committee also did not consider that it was inaccurate to include a photograph of the complainant on her way to appointment, where she did not dispute that this picture showed her rather than another individual.

26. The Committee, furthermore, did not consider that it was significantly inaccurate, distorted, or misleading to refer to the complainant having “posted a selfie outside of [the victim’s] family castle”, where she did not dispute that she had taken a selfie outside of the home in question. The Committee also noted that the article did not claim that the home had been described as a “castle” during court proceedings, and that the complainant did not dispute that the home could accurately be described as a castle. While the article had been published on 17 May 2021, it did not state that the hearing had taken place on this date and the amended version of the article made clear the exact date of the hearing: 14 May 2021. There was no inaccuracy in relation to the date of the hearing. The article under complaint also didn’t include a quote from the witness the complainant had referred to; rather, it referred to the complainant having “contacted [him] on Facebook”, which the complainant did not dispute. There was no breach of Clause 1 on this point.

27. The Committee noted that both parties were in agreement that the article had incorrectly reported the complainant’s age, and that she was in fact 54 rather than 53. However, in circumstances where the article also included the complainant’s name, photograph, and a summary of the crimes for which she was convicted, a discrepancy of one year did not constitute a significant inaccuracy: it did not affect the accuracy of the thrust of the article, and it was unlikely to result in her misidentification. In addition, the complainant did not dispute that a witness statement which was referred to during court proceedings referred to her having threatened to commit suicide, and the publication was allowed to refer to this; it was not responsible for the accuracy of what was heard and introduced in court, only for ensuring that the information was reported accurately. There was no breach of Clause 1 on these points.

28. Turning to the complainant’s Clause 2 concerns, the Committee noted that the complainant’s age and address would generally have been heard in court. Newspapers are allowed to report information which is heard in open court, and doing so did not represent an intrusion into the complainant’s private life.  In addition, reporting on companies which the complainant had worked for did not represent an intrusion into the complainant’s private or family life. There was no breach of Clause 2 on these points.

29.  The photograph included in the article clearly showed the complainant on a public street, and did not reveal anything about her beyond her likeness; it served to identify her as involved in the proceedings, which was a matter of public record. In such circumstances the Committee did not consider that the complainant had a reasonable expectation of privacy over the photograph, and did not find a breach of Clause 2 on this point.

30. IPSO can accept complaints about the behaviour of photographers provided the complaint is made within 4 months – either to the publication or directly to IPSO – of the behaviour complained of. While the Committee understood the complainant had concerns over the behaviour of journalists who had photographed her, it noted that these alleged incidents had occurred at least 11 months prior to the complainant contacting the newspaper with their concerns. The Committee was therefore unable to determine whether these alleged approaches raised a breach of the Editors’ Code, where they were out of time and therefore outside of IPSO’s remit.

31. The complainant had also said that the article was harassing in breach of Clause 3. Generally, Clause 3 is engaged by approaches by journalists, rather than material which complainants consider to be offensive or objectionable. This was a report of court proceedings brought by the complainant, and the Committee did not consider that the complainant’s concerns raised a possible breach of Clause 3. 

32.  The terms of Clause 4 make clear that it should not restrict the right to report on legal proceedings. In addition, the article reported on a court hearing, and did not involve a case of the complainant’s personal grief or shock; rather, it was a hearing pertaining to the complainant’s conviction. While the Committee acknowledged that the complainant found the experience upsetting, in such circumstances, the Committee did not consider that the terms of Clause 4 had been breached.

33. While the complainant considered that the article misrepresented her, there was no suggestion that anyone working for the publication had engaged in subterfuge to obtain the information heard in the article. The terms of Clause 10 were therefore not engaged.

34.  The terms of Clause 12 make clear that it relates only to prejudicial, pejorative, or irrelevant references to an individual’s race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability. The complainant said that the article had referred to her as a “wealthy businesswoman” in breach of this Clause. However, the Committee noted that the article under complaint did not contain any such reference, and that being wealthy was not, in any case, a characteristic protected by the Clause. The complainant had also said that the article breached Clause 12, as she considered the article inferred she was “mentally unstable”. The Committee understood that the complainant considered to article discriminatory on this point, however it noted that the terms of the Clause relate to specific references, rather than inferences. Upon reviewing the article, the Committee did not identify any references to the complainant’s health, and therefore there was no breach of Clause 12 on this point.

35. The complainant was not acting as a confidential source of information from the newspaper, and the publication was allowed to refer to witness statements which had been introduced as evidence in an open court. In such circumstances, the complainant’s concerns did not represent a breach of Clause 14.

36. While the complainant had speculated that the publication had paid witnesses in breach of Clause 15, she had not provided any information to support her speculation on this point, and the Committee noted that the information in the article had been heard in open court. The Committee did therefore not consider that there was any basis for finding that the publication had made payments to witnesses in a criminal trial, and did not find a breach of Clause 15.

37. Regarding the complainant’s concerns that she was not able to respond to what she considered to be “trolling” comments, the Committee noted that there is no requirement within the Editors’ Code to allow readers to comment in response to articles. In addition, while the Committee noted that the complainant found the comments to be offensive and amount to trolling, the Editors’ Code does not address issues of taste or offence. Therefore, while the Committee understood that the complainant found the comments to be offensive, this concern did not raise a breach of the Editors’ Code.

Conclusion(s)

38. The complaint was not upheld.

Remedial Action Required

39. N/A


Date complaint received: 23/11/2021

Date complaint concluded by IPSO: 06/06/2022


Independent Complaints Reviewer

The complainant complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Independent Complaints Reviewer decided that the process was not flawed and did not uphold the request for review.