Ruling

16829-17 Warwickshire Police v The Sun

    • Date complaint received

      6th March 2018

    • Outcome

      Breach - sanction: publication of adjudication

    • Code provisions

      11 Victims of sexual assault, 2 Privacy, 3 Harassment

Decision of the Complaints Committee 16829-17 Warwickshire Police v The Sun

Summary of the complaint

1. Warwickshire Police complained on behalf of a person that the conduct of a journalist acting on behalf of The Sun breached Clause 2 (Privacy), Clause 3 (Harassment) and Clause 11 (Victims of sexual assault) of the Editors’ Code of Practice.

2. The complainant was a victim in a criminal case concerning allegations of non-recent sex offences. The defendants had been found guilty. The complainant alleged that the journalist’s enquiries during the course of this trial had amounted to harassment. They also said that the journalist’s conduct had identified them as a victim of sexual assault, and had intruded into their privacy.

3.The complainant said that a journalist acting on behalf of the newspaper had telephoned their partner, having obtained the number from an occupant of their previous address. The partner had passed the phone to the complainant. During that call, the journalist had asked if they wished to comment on the criminal case, and the complainant had said “I have had enough to do with this now and don’t want anything else to do with it. I am not interested in giving a story”. The reporter had then tried to persuade them to give their story, and they restated that they did not wish to do so. The reporter then said that he would give them time to reconsider and would call again the following day, and the complainant told him not to bother; they were not interested; they had already been through the matter in court.

4. The complainant said that they were contacted a second time the following day and again they had made clear that they had no interest in speaking to the press and reiterated that they wanted to put the whole matter behind them.

5. A third telephone call was made to the complainant’s partner the following day. The complainant said that the journalist had asked their partner to persuade them to change their mind about giving their story, and they informed him that they were definitely not interested. The reporter was told to stop calling, and no further contact was made. The complainant considered that they should not have been contacted in any form at any time as they had been assured by the police that their identity and privacy would be protected.

6. The complainant expressed concern that, in order to obtain their number from the occupants of their previous address, the circumstances of the criminal case may have been passed to those third parties, thereby identifying the complainant as a victim.

7. While the newspaper expressed regret that the enquiries of its journalist had caused distress, it did not accept that it had breached the Code. It acknowledged the complainant’s position that they should not have been contacted at any stage; however, it considered that victims of sexual assault often wanted to speak to the press as it allowed them to express how the events had made them feel, and it might provide publicity for the case and encourage other victims to come forward. It said that the public interest is served when victims choose to speak to the press about their experiences, and argued that any finding that it had intruded into the complainant’s privacy simply by contacting them would seriously compromise other victims’ right to freedom of expression. It noted that two other victims involved in the case had wanted to tell their stories, and it provided examples of the resulting coverage.

8. The newspaper said that when the telephone number had been obtained from the occupants of the complainant’s previous address, the journalist had not disclosed that their enquiry related to the criminal case or the complainant’s connection to it.

9. The newspaper said that each conversation had lasted less than a minute, and was cordial; no attempt had been made to meet the complainant face-to-face. It said that the complainant had not indicated during any of the calls that they felt intimidated or harassed, or shown any signs of distress.

10. The newspaper denied that the journalist had attempted to “persuade” the complainant to tell their story; it said that the calls were so brief that no meaningful attempt could have been made. It said that, during the first call, the complainant told the reporter that only their partner was aware of their involvement in the case and that they did not wish to be the subject of an article. The journalist had then asked them to think about it over the weekend. In the second call, the complainant had said that they were not interested in doing a story, but they were polite and courteous. Several days later, the journalist called again with the intention of passing on his number, in case the complainant later changed their mind about speaking to the newspaper. The complainant’s partner answered the phone, and informed the reporter that they would definitely not be making a statement. The newspaper said that the reporter’s recollection of the third phone call differed from that of the complainant; he had not been asked to stop calling, but had told the complainant that he would not get in touch again.

11. The newspaper said that while the complainant said that they had felt harassed by the phone calls, this was not communicated to the journalist, such that he would have reasonably understood that the complainant was making a desist request. If it had been communicated, the journalist – who was very experienced and used to dealing with sensitive situations – would not have called again.

12. While the newspaper did not accept a breach of the Code, in order to resolve the matter, it offered to make a donation to a charity of the complainant’s choice and to write a private letter of apology. It also offered to meet with Warwickshire Police to discuss the best way to find balance in reporting on sexual assault cases.

Relevant Code provisions

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

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 11 (Victims of sexual assault)

The press must not identify victims of sexual assault or publish material likely to contribute to such identification unless there is adequate justification and they are legally free to do so.

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.

5. An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.

Findings of the Committee

14. Victims of sexual assault are granted anonymity both in law, and under the Code, in any reports of a criminal trial for sexual offences. However, they will not generally remain anonymous within court proceedings themselves, and so journalists who are attending court, as part of their crucial role in ensuring open justice, will have access to victims’ identities. In some instances it is appropriate and justified, as part of reporting on a case involving sexual offences, to seek comment from the victims: they may wish to speak about their experiences and the impact of the crimes on them. However, such contacts must be made with appropriate regard for the extreme sensitivity of the circumstances.

15. The Committee acknowledged the complaint’s position that, as a victim of sexual assault, they should not have been contacted by a journalist at all. The terms of Clause 3 do not seek to prevent journalists from making enquiries in sensitive circumstances. Rather, the Clause is intended to protect people from repeated unwanted and unjustified approaches from members of the press. Clause 3(ii) makes clear that journalists should not continue to contact people when asked to desist. The Committee emphasised that this should not be interpreted so narrowly such that a request would only be effective were individuals to use a very specific form of words. A request to desist could take many forms, and should be effective provided it should convey to a journalist that an individual does not wish to be contacted further.

16. The parties had provided differing accounts of what had been said during the first phone call. It was accepted that the complainant had told the reporter that they did not wish to be the subject of an article, and the reporter had said that he would call again to allow them time to consider it. The complainant had contended that they had then told the reporter “not to bother”, but this was not accepted by the newspaper. The Committee considered that if the complainant had made such a comment to the reporter, making the second telephone call could have represented a failure to respect a request to desist.

17. During the second call, the complainant had again made clear that they did not wish to provide any material for publication. Clause 3 makes clear that journalists should not persist in calling when asked to desist. Given that this was a story about the complainant that was extremely personal and sensitive in nature, to call a third time, when the complainant had twice made clear that they did not wish to speak, and where the reporter had no reason to believe that circumstances had changed, was unreasonably persistent and unjustified. This represented harassment, in breach of Clause 3. This conduct was not justified by the public interest in reporting the criminal case. The complaint under Clause 3 was upheld.

18. The reporter had obtained the complainant’s contact details by visiting their previous address. The Committee noted the complainant’s concern that the resident of this address may have understood that they were a victim of sexual assault due to the reporter’s enquiries. The reporter denied that he had told this third party the subject of the story he was researching; and said that he had not identified the criminal case. There were no grounds to believe that the reporter had disclosed private information about the complainant by asking the third party for their contact details. There was no breach of Clause 2.

19. The Committee also considered whether the terms of Clause 11 were engaged by the complaint that the complainant had been identified as a victim of sexual assault to a third party in conversation. The Committee concluded that the wording of Clause 11 was ambiguous on this point, and it took the opportunity to draw this issue to the attention of the Editors’ Code of Practice Committee for its consideration as part of the next Code Review. In this instance, however, the newspaper had not identified the complainant as a victim of sexual assault through making its inquiries, nor had it published material which identified the complainant or was likely to identify them. There was no breach of Clause 11.

Conclusion

20. The complaint was upheld.

Remedial action required

21. Having upheld the complaint, the Committee considered what remedial action should be required.

22. In circumstances where the newspaper had breached Clause 3, the appropriate remedy was the publication of an adjudication.

23. The complaint did not relate to any published material, and so the Committee considered carefully where the adjudication should appear. The breach of the Code was serious, and so the Committee decided that the adjudication should appear on page 2 of the newspaper. The headline to the adjudication should make clear that IPSO has upheld the complaint, give the title of the newspaper and refer to the complaint’s subject matter. The headline must be agreed with IPSO in advance.

24. It should also be published on the publication’s website, with a link to the full adjudication (including the headline) appearing in the top 50% of stories on the publication’s website for 24 hours; it should then be archived in the usual way. The terms of the adjudication for publication are as follows:

Warwickshire Police complained to the Independent Press Standards Organisation on behalf of a person that the conduct of a journalist acting on behalf of The Sun breached Clause 3 (Harassment) of the Editors’ Code of Practice. The complaint was upheld, and IPSO has required The Sun to publish this decision as a remedy to the breach.

The complainants represented a victim in a criminal case concerning allegations of non-recent sex offences. The complainant alleged that the journalist’s enquiries during the course of the trial had amounted to harassment.

They said that the journalist had called them, and they had said they were “not interested in giving a story”; the reporter said he would call back the next day, and the complainant told him “not to bother”. When they were contacted again, they repeated that they had no interest in speaking to the press. The journalist called again, and was told to stop calling.

The newspaper denied it had breached the Code. It said that the public interest is served when victims choose to speak to the press about their experiences; finding that its conduct breached the Code would compromise other victims’ rights to freedom of expression. It said that during the polite conversations, the complainant had not shown any signs of distress that could have been understood to represent a request to desist.

In some instances, it is justified to seek comment from victims of sexual assault. However, such contacts must be made with appropriate regard for the extreme sensitivity of the circumstances. In this instance, the complainant had made clear in the first and second calls that they did not wish to tell their story. Clause 3 makes clear that journalists should not persist in calling when asked to desist. Given that this was a story about the complainant, which was sensitive and personal, calling a third time was unreasonably persistent and unjustified, and represented harassment in breach of Clause 3. This conduct was not justified by the public interest in reporting the criminal case. The complaint under Clause 3 was upheld.

Date complaint received: 12/07/2017
Date decision issued: 11/01/2018