Ruling

12001-20 A man v Thurrock.nub.news

    • Date complaint received

      19th April 2021

    • Outcome

      Breach - sanction: publication of adjudication

    • Code provisions

      1 Accuracy, 2 Privacy

Decision of the Complaints Committee – 12001-20 A man v Thurrock.nub.news

Summary of Complaint

1. A man complained to the Independent Press Standards Organisation that Thurrock.nub.news breached Clause 1 (Accuracy) and Clause 2 (Privacy) of the Editors’ Code of Practice in an article headlined “Concern grows following adverse impact of refugees in borough - amid residents' fears that more will be coming”, published on 11 April 2020.

2. The article reported on an estate which was being used to house refugees. The article reported various comments expressed by area residents including that “some of [the refugees] have been pictured gathering in numbers and smoking from hookahs, with strong smells of cannabis floating across the area”. The article also included an image of two men, sitting outside smoking from a shisha pipe, which was captioned “The refugees have been pictured by their neighbours who complain the smell of drugs is drifting towards their homes”.

3. The complainant, one of the men pictured, said that the article was a breach of his right to privacy under Clause 2. He said that the image showed him in the back garden of his home, where he had a reasonable expectation of privacy, and had been taken and published without his knowledge or consent. He noted that his back garden was private and could not be viewed from a public space as it was surrounded by high fences. The only way the image could have been taken was from inside one of his neighbours’ houses. He said that the image showed him smoking shisha, which he considered to be a private activity, in particular because of his background and culture. He noted that the image clearly identified him, and that people had recognised him from the image. The complainant provided images of his back garden to IPSO, which he said demonstrated that he had been in the back garden at the time the photograph had been taken.  He also provided some selfies which he said had been taken on the same day in the back garden, which showed the two men sitting in the same position and wearing the same clothing as appeared in the published image.

4. The complainant said further that the publication of the photograph in the context of the article had revealed his refugee status, which was private information.  The publication of the photograph which identified him as a refugee, together with the name of the street on which he was living, put him at risk from those he was seeking refuge from.

5. The complainant also said that the article was in breach of Clause 1. He said that it was misleading to show a picture of him smoking tobacco from a shisha pipe, a legal substance, in conjunction with the caption “The refugees have been pictured by their neighbours who complain the smell of drugs is drifting towards their homes”. He said the term “drug” gave the misleading impression that he was smoking an illegal substance, particularly when the caption was read in combination with the sentence in the article which claimed that refugees had been “pictured… smoking from hookahs, with strong smells of cannabis floating across the area”.

6. The publication did not accept a breach of the Code. It did not accept that the image showed the complainant in his back garden. It supplied IPSO with images of the front gardens of several of the houses on the estate, which it said looked similar to the background of the image in the article. It also said that the image had been circulated on social media on three Facebook groups for the town, and others for the Borough of Thurrock, although it was unable to provide evidence of this or to give an estimate of how many people had seen the image. Initially the publication said that it had asked the poster of the image on Facebook whether it could publish it, and later said that the image had been sent directly to the newspaper by a disgruntled member of the public. It said that it had decided not to anonymise the image as it believed the image had been taken in a public place and had been published elsewhere.

7. The publication further said that the complainant’s refugee status was not private, as the people who lived locally would recognise him as a refugee due to his presence in the area.

8. Whilst maintaining that publication of the image or revealing that the complainant was a refugee was not a breach of Clause 2, the publication argued that, in any event, there was a public interest in publication as it contributed to the debate regarding the refugees living on the estate. Including the complainant’s likeness, which had been published previously elsewhere, added reality to the story. The publication said the story was in the public interest as there had been serious impropriety on the estate in the form of anti-social behaviour. It also said the use of illegal drugs on the estate in general, although it did not suggest the complainant had used illegal drugs, was a matter of public health and safety. It said that it was right and proper for the public to be made aware of the refugees’ situation and their actions on the estate.

9. Although the publication did not accept that that the publication of the image had intruded into the complainant’s private life, during direct correspondent with the complainant, prior to IPSO’s investigation, it anonymised the image.

10. The publication said it was not inaccurate in breach of Clause 1 to call shisha “a drug” because the term “drug” is subjective and shisha was bad for health and habit forming. It noted that tobacco was listed as a drug on the UK government’s anti-drug campaigning website. It said that it had not directly suggested that the complainant had smoked cannabis, although it accepted that some readers may have understood this to be the case.

11. Whilst the publication did not accept that the Code had been breached, prior to IPSO’s investigation it offered to publish a further story with input from the complainant and an apology. During IPSO’s investigation it offered to publish the following statement:

A recent story published by Thurrock Nub News on 11 April this year reflected the concerns of residents in Chadwell St Mary about anti-social activity that was taking place at premises on the new Oak Road estate leased by the Home Office to house refugees. As part of that report we published a picture, widely circulated at the time on social media, of two residents on the estate smoking a hookah. Our story reported that there has been drug use at houses on Oak Road, particularly the smoking of cannabis. We are assured by the men pictured in the image that the substance they were smoking is not a drug and they were partaking in legitimate activity in an area they regarded as private. Thurrock Nub News accepts that this article has caused personal distress to one of the men pictured, for which we apologise and we are happy to publish his statement that he was only smoking shisha and the statement: "I never used drugs in all my life".

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 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. 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.

*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:

  • Detecting or exposing crime, or the threat of crime, or serious impropriety.
  • Protecting public health or safety.
  • Protecting the public from being misled by an action or statement of an individual or organisation.
  • Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.
  • Disclosing a miscarriage of justice.
  • Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
  • Disclosing concealment, or likely concealment, of any of the above.

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

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

4. 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 Committee

12. Clause 2 states that everyone is entitled to respect for their private life, home and health and that it is unacceptable to photograph individuals without their consent, where they have a reasonable expectation of privacy. There was a dispute between the parties as to the complainant’s location at the time he was photographed.   The complainant had provided a number of photographs to the Committee to support his position that he had been sitting in the back garden of his home. The publication had also provided a number of photographs of the front gardens of the houses on the estate in which the complainant lived. Having considered the evidence, the Committee considered that it was more likely than not that the complainant had been in the back garden of his home at the time the photograph had been taken.  The back garden was a private space which could not be seen from a public place and the complainant had been enjoying his private life with a friend at the time the photograph was taken. Further, the complainant had not consented to his photograph being taken or published. The complainant had a reasonable expectation of privacy in these circumstances and the publication of the photograph was intrusive.  While the publication had said the image had previously been published on social media, it had been unable to demonstrate that the image had been established in the public domain to an extent that the complainant no longer had a reasonable expectation of privacy. The publication of the photograph intruded into the complainant’s private life in breach of Clause 2.

13. The caption of the photograph revealed the complainant’s refugee status without his consent. In general, an individual’s immigration status is personal, sensitive information which relates to the individual’s private and family life. The Committee rejected the publication’s argument that the complainant did not retain a reasonable expectation of privacy in relation to this information because his refugee status would be known locally due to the location of his home. The publication had revealed this information to a far larger number of people as compared to the number who otherwise had knowledge of the complainant’s status based on his housing arrangements. Publishing this information in these circumstances, without the complainant’s consent, constituted an unjustified intrusion into his private life.

14. The publication had also argued that the use of the image, and the revelation of the complainant’s refugee status, was in the public interest, negating any breach of Clause 2. Whilst the Committee accepted that the article itself contributed to a debate on a matter of public interest, it noted that the image of the complainant, and the revelation of his refugee status in itself did not add to the public debate. The publication had also said that the use of the image could be justified as it helped protect public health and safety, which was threatened by the use of illegal drugs on the estate. However, the publication had not argued that the complainant was pictured using illegal drugs and there was no public interest in publishing the image on this ground. The publication of the photograph and the complainant’s immigration status did not fall within the public interest exception of the Code.

15. The image used in the article featured the complainant smoking a hookah or shisha pipe, beneath which was the caption “The refugees have been pictured by their neighbours who complain the smell of drugs is drifting towards their homes”, and the article then went on to refer to smells of cannabis. The complainant said that this suggested wrongly that he was smoking cannabis. While the Committee acknowledged the publication’s argument that shisha is a “drug” in a general sense, where the article had referred to complaints about smells of cannabis (and had not referred to shisha or any other legal drugs), the caption’s reference to the “smell of drugs... drifting towards ... homes” suggested that the photograph showed the activity referenced in the article: cannabis use. The publication acknowledged that it had no evidence which suggested that the complainant was smoking cannabis, or any other illegal drug. There was a breach of Clause 1(i).

16. The misleading impression given by the article that the complainant was pictured smoking cannabis was significant as it suggested that he had engaged in illegal activity, which was not the case. It required correction under the terms of Clause 1 (ii). The publication had offered to publish a correction, but the proposed wording simply put the complainant’s position on record. The wording did not identify the misleading information that was being corrected, namely that the complainant had not been smoking illegal drugs in the photograph. On this basis, the wording proposed by the publication was not sufficient and there was a breach of Clause 1(ii).

Conclusions

17. The complaint was upheld.

Remedial Action Required

18. Having upheld the complaint, the Committee considered what remedial action should be required. In circumstances where the newspaper had breached Clause 2, in addition to Clause 1, the publication of an adjudication was appropriate.

19. The Committee considered the placement of this adjudication. The adjudication should be published online, with a link to it (including the headline) being published on the top 50% of the publication’s homepage for 24 hours; it should then be archived in the usual way. The headline to the adjudication should make clear that IPSO has upheld the complaint, give the title of the publication and refer to the complaint’s subject matter. The headline must be agreed with IPSO in advance. The publication should contact IPSO to confirm the amendments it now intends to make to the article to avoid the continued publication of material in breach of the Editors’ Code of Practice. If the article remains online un-amended, the full adjudication (including the headline) should appear below the headline..

20. The terms of the adjudication for publication are as follows:

A man complained to the Independent Press Standards Organisation that Thurrock.nub.news breached Clause 1 (Accuracy) and Clause 2 (Privacy) of the Editors’ Code of Practice in an article headlined “Concern grows following adverse impact of refugees in borough - amid residents' fears that more will be coming”, published on 11 April 2020.

The article reported on an estate which was being used to house refugees. The article reported various comments expressed by area residents including that “some of [the refugees] have been pictured gathering in numbers and smoking from hookahs, with strong smells of cannabis floating across the area”. The article also included an image of two men, sitting outside smoking from a shisha pipe, which was captioned “The refugees have been pictured by their neighbours who complain the smell of drugs is drifting towards their homes”.

The complainant was one of the men pictured. He said that the image showed him in the back garden of his home, where he had a reasonable expectation of privacy, and had been taken and published without his knowledge or consent. He noted that the image clearly identified him, and that people had recognised him from the image. He also said that the publication of the photograph in the context of the article had revealed his refugee status, which was private information. The publication of the photograph which identified him as a refugee, along with the name of the street he was living on, put him at risk from those he was seeking refuge from. The complainant also said that the article was inaccurate as it contained a picture of him smoking tobacco from a shisha pipe, a legal substance, but described this as a “drug” and further references to “cannabis” in the article suggested he had been smoking illegal drugs. The publication did not accept that the photograph of the complainant had been taken whilst he was in the back garden of his home, and also said that the article did not intrude into the complainant’s private life because it was published in the public interest as it helped protect public health and safety, which was threatened by the use of illegal drugs on the estate. However, it accepted both that it did not know what the complainant had been smoking in the photograph and that the article could inaccurately imply that the complainant was pictured smoking an illegal substance.

IPSO ruled that, in all the circumstances, the complainant had a reasonable expectation of privacy both in relation to the photograph and his status as a refugee, which is information which related to his private and family life. Publishing the photograph and the information regarding his refugee status without his consent constituted an unjustified intrusion into his private life. IPSO did not accept that publication was in the public interest. IPSO found that the article breached Clause 2.

The publication had not offered an adequate correction which made clear that the complainant had not been smoking an illegal drug in the photograph. IPSO found that the article also breached Clause 1.

 

Date complaint received: 20/07/2020

Date decision issued: 17/02/2021