Ruling

20864-17 Hindley v The Mail on Sunday

    • Date complaint received

      9th August 2018

    • Outcome

      Breach - sanction: publication of correction

    • Code provisions

      1 Accuracy, 10 Clandestine devices and subterfuge, 2 Privacy

Decision of the Complaints Committee 20864-17 Hindley v The Mail on Sunday

Summary of complaint

1. Danielle Hindley complained to the Independent Press Standards Organisation that The Mail on Sunday breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “You've got so many lines you'll end up like Gordon Ramsay”, published 31 December 2017.

2. Under the subheadline the “curse of the cosmetic cowboys”, the article reported on an investigation conducted by the newspaper into treatments administered to members of the public by a number of beauticians. The first paragraph of the article explained that “rogue beauticians” were carrying out “dangerous and illegal procedures” and that the investigation followed a “shocking rise in cases of botched treatments”. The article reported concern from a variety of sources, including doctors and beauty campaigners, that procedures which are illegal in other countries can be legally administered in the UK.

3. In a separate box under the heading “Case Study 1”, the article reported that an undercover journalist had booked a 45 minute “plasma skin tightening” appointment with the complainant, who is a beautician. The article explained that there had been an increase in complaints about this treatment, which is a non-surgical procedure which stimulates and contracts the skin in order to cause tightening and lifting, and said that experts had said that it is a procedure which should only be given by qualified medics. The article reported that the complainant had assured the journalist that “nothing could go wrong, saying it was ‘one of the easiest treatments I have ever learnt to do’”. In the box, the article also explained that a former client of the complainant had approached the newspaper complaining of “swollen eyes” and an “array of burn marks” after receiving plasma skin tightening treatment. The article was illustrated with a photograph of the woman’s eyes which had been taken 48 hours after receiving the treatment from the complainant, which showed visible red marks and swelling. The article reported the complainant’s denial of “any wrongdoing” in relation to this individual, and said that the complainant had told the newspaper: “the possibility of swelling, ‘was discussed in great detail, not only verbally but in the consultation form signed by the client.’”

4. The article reported that the complainant had received two days’ training on plasma skin tightening. It also reported that she has a conviction for a financial crime.

5. The article appeared in substantially the same form online, under the same headline, and was published on 30 December 2017. In the online article, the information about the complainant was not presented in a separate box under the heading “Case Study 1”. The photograph of the complainant’s former client was captioned: “’Depressed’: One client of ‘plasma’ skin lightening 48 hours later”.

6. The complainant denied that she was a “rogue beautician”, or that she was a “cosmetic cowboy”. She said that the article had identified her by name, had published her photograph, and had presented the information relating to her as a “case study”, in the context of an article about beauticians performing treatments in an illegal or careless manner. She said that the inclusion of her details in that context was damaging to her professional reputation and significantly misleading. She said she was acting within the law and denied any wrongdoing in relation to her former client, or the service she provided to the undercover reporter: she said that the risks involved in the treatment were explained to them both by following proper procedures, both verbally during the consultation, and in writing through use of a consent form. The complainant said that she was fully qualified, trained, licensed and insured to carry out plasma skin tightening; she said that the article had created a distorted impression of her qualifications, the quality of the service which she provides to members of the public, and her legal right to carry out the procedure.

7. The complainant also raised concern about the caption below the photograph of her former client in the online article: she did not perform any treatment involving “skin lightening”. She also said it was misleading to report that she had received two days training on plasma skin tightening, when she had been required to undertake 30 hours of home study. She also said that she had told the reporter that she had also been required to have a Level 4 qualification in the beauty industry before being able to carry out plasma skin tightening.

8. The complainant said that the journalist had entered her home where she runs her business, and had recorded a video of her without her knowledge or permission. The complainant said that she had a reasonable expectation of privacy in her own home and in relation to the activities which took place there. She did not accept that the newspaper’s intrusion into her private life and the use of subterfuge and a hidden camera, to obtain and publish the material, was justified in the public interest.

9. The complainant also said that she had a reasonable expectation of privacy over her conviction, which she said was spent. She also said that she had not been convicted for a financial crime; she had pleaded guilty to aiding and abetting her former husband who was convicted of being concerned in the management of a company while bankrupt.

10. The newspaper did not accept a breach of the Code. It said that there was no suggestion that every one of the allegations about beauticians mentioned in the main article related to the complainant. It said that the information relating to the complainant had been distinguished in a separate box, which had made clear that it is not illegal for non-medical practitioners to undertake plasma skin tightening. It said that the case study was used to illustrate one aspect of the story about medically unqualified practitioners performing potentially harmful procedures.

11. In an attempt to resolve the complaint, the newspaper offered to publish the following wording in the section of the online article which referred to the complainant, as well as in its established Corrections and Clarifications column:

“Since publication of this article we have been asked to confirm that Ms Hindley is a trained beautician who is legally entitled to carry out the plasma treatment described. The general references to “cosmetic cowboys”, “rogue beauticians” and “illegal procedures” do not apply to Ms Hindley and we are happy to make that clear.”

12. The newspaper said that the piece had accurately reported the complaint of one of the complainant’s customers and the article had included the complainant’s response to the swelling and discomfort she had experienced.

13.  In relation to the caption in the online article, the newspaper said that the publication of “skin lightening” was an error that occurred when the article was re-edited for posting online. It amended the caption accordingly. The newspaper said that the error was not significant, particularly since in the online version of the article, the picture was published in the main article and was not linked to the separate panel about the complainant; it said that readers would not necessarily have known that the picture was of her client.

14.  The newspaper said that it had reported the complainant’s spent conviction accurately. It said that the complainant had been convicted of aiding and abetting her then husband in a £150,000 fraud for which she was given a 12 month community order and was required to pay costs.

15.  The newspaper accepted that it had engaged in subterfuge when the journalist had posed as a client and had used a hidden camera, in order to obtain material about the service provided by the complainant. It said that while the terms of Clause 10 were engaged, its actions were justified in the public interest.

16.  The newspaper said that it had been informed, generally, that unlicensed beauticians were offering potentially dangerous and sometimes illegal treatments that could leave clients suffering or even permanently disfigured. It said that a campaign group had informed the newspaper that they were concerned by the case of the complainant’s former client, whose experience of plasma treatment had been set out in the article.

17.  The newspaper said that during a meeting with the reporter and senior editorial staff, it had been decided that it was important to visit the complainant’s salon in order to verify the woman’s claim that the complainant had failed to offer proper warnings about the possible risks of undertaking plasma skin tightening treatment. It said that it was agreed that some subterfuge was justified both because of the great public interest in exposing dangers and also because the level of subterfuge was relatively low and was required in order to observe the complainant’s explanation of the treatment just as she would do to any other customer.

18.  The newspaper said that the only information which was published that was obtained through subterfuge was the fact that the complainant had assured the reporter that nothing could go wrong. It said that this was important information since it revealed that the complainant may have been failing in a duty to protect her clients by fully informing them of the risks involved. It said that the further information relating to the complainant was obtained from interviewing her former client, talking to experts and interviewing the complainant herself after the reporter had revealed their identity. It noted that the undercover video footage was not published in the article.

19.  The newspaper did not accept that the journalist’s conduct amounted to an intrusion into the complainant’s private life. It said that the complainant ran her business from her home and the journalist did not venture into any parts of her house which would not also be accessible to her other customers. It said that it did not publish any pictures from the complainant’s home or salon, nor did it publish anything that compromised her personal privacy. It noted that the report was entirely concerned with the complainant’s professional activity.

20.  The newspaper said that the complainant did not have a reasonable expectation of privacy over information relating to her spent conviction. It said that details of the conviction were in the public domain, having been reported on at the time. The newspaper noted that prior to publication, the complainant had published a video on YouTube in which she had talked openly about the conviction and offered an explanation of it.

Relevant Code provisions

21.  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. 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 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.

The public interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

The public interest includes, but is not confined to:

i. Detecting or exposing crime, or the threat of crime, or serious impropriety.

ii. Protecting public health or safety.

iii. Protecting the public from being misled by an action or statement of an individual or organisation.

iv. Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

v. Disclosing a miscarriage of justice.

vi. Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

vii. Disclosing concealment, or likely concealment, of any of the above.

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

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

x. 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

22. The complainant was pictured and identified as a “case study” in a spread of coverage reporting on “cosmetic cowboys”. As the article explained, the newspaper’s definition of “rogue” behaviour was broad, and included people carrying out “dangerous and illegal procedures”, as well as those who had “botched” treatments.

23. Given the range of issues discussed in the coverage, the Committee considered first the nature of the allegation against the complainant. Having reviewed the coverage and the text of the “case study” relating to the complainant, it concluded that there was no allegation that she had acted illegally or had carried out procedures for which she was not qualified.

24. The inclusion of the complainant as a case study, in an article which reported on “cosmetic cowboys” and “rogue” beauticians, gave a specific impression of the complainant’s qualifications and her ability to carry out plasma skin tightening treatments. The inclusion of information relating to her in the article, in conjunction with the claim that she was “rogue” gave the misleading impression that she had “botched” treatments, acted illegally or had carried out procedures for which she was not qualified. This suggestion was strengthened by the inclusion of the complaints from her former client about the impact of the treatment. The newspaper was entitled to criticise the regulatory regime surrounding the treatments on offer. However, the newspaper had not provided, in the article or in its response to the complaint, sufficient basis for the allegation that the complainant had acted improperly or recklessly. There was a failure to take care over the accuracy of the article, in breach of Clause 1(i) and the article gave a significantly misleading impression of the complainant’s conduct, because it suggested that she was guilty of wrongdoing.

25. The Committee welcomed that the newspaper had offered to publish a correction, making clear that the general terms “cosmetic cowboy”, and “rogue beautician” did not apply to the complainant. However, its wording had not made clear that the complainant was not guilty of “botching” treatments, as the article had implied. On balance, there was a breach of Clause 1 (ii).

26. In the online article, the caption to the photograph of the complainant’s former client had claimed that she had received “skin lightening” treatment. The Committee were concerned by this error, which clearly represented a failure not to publish inaccurate information. This typographical error gave rise to the significantly misleading impression that the complainant administers a treatment which lightens a person’s skin. Such a claim required correction, under the terms of Clause 1(ii).

27. The complainant had been convicted of aiding and abetting her then husband in a £150,000 fraud; it was accurate to describe her spent conviction as a “financial crime” in those circumstances. Further, while the Committee noted the complainant’s position that she had undertaken home study and had been required to have a Level 4 entry qualification in order to administer the treatment, it was accurate to report that the training which she had obtained had taken two days. There was no further breach of Clause 1 on these points.

28. The journalist had posed as a client and had filmed the complainant through use of a hidden camera: the terms of Clause 10 were engaged.

29. The newspaper had been informed of specific concerns relating to the complainant and her administration of the plasma skin tightening treatment. The Committee noted that the decision to conduct an investigation into the service provided by her, had only been made after the reporter had consulted with senior members of the editorial staff. There was a public interest in conducting an investigation in order to establish the veracity of the claims made by the complainant’s former client, who had alleged that she had failed to provide adequate warnings of the risks involved in the treatment. It was reasonable to presume that an open approach to the complainant would not achieve this: an undercover investigation was justified in order to experience the service provided by the complainant in the way that any other client would do.

30. The Committee noted that the level of subterfuge was limited; the undercover reporter had simply discussed plasma skin tightening while in the complainant’s treatment room and did not actually go through with the procedure. The misrepresentation involved the reporter posing as one of the complainant’s clients; her experience of the service provided by the complainant did not differ from that of any other potential client, unknown to the complainant, who was invited into her home.

31. There was a public interest in investigating whether the complainant was providing sufficient warnings of the risks involved with the treatment, given the concerns raised about plasma skin tightening from medical professionals and campaigners. The newspaper’s actions had been proportionate to the public interest in undertaking the investigation.

32. The Committee noted that the published material obtained through the use of subterfuge was limited: the article had only disclosed only a brief comment which the complainant had made to the reporter that “nothing could go wrong” and the treatment was “easy”. The publication of this comment was proportionate to, and served the public interest identified by the newspaper because it related to campaigners concerns that beauticians were not giving sufficient warnings of the risks involved. The publication of this comment was justified in the public interest identified by the newspaper. There was no breach of Clause 10.

33. The Committee then turned to consider the complaint under Clause 2. The Committee noted that the conversation with the journalist had taken place at the complainant’s home. However, the complainant’s home had a dual purpose: it was also a location where she operated her business. There may be circumstances where an individual has a reasonable expectation of privacy in a location which is both their home, and their business premises. Whether privacy may reasonably be expected will depend on all the factors relevant to a particular case.

34. In this instance, the reporter did not enter an area of the complainant’s home which would not ordinarily be accessible to her clients. Further, the video footage had captured the complainant’s professional life; it captured her in her place of work, and discussing the services which she provides there. There was no reasonable expectation of privacy in those circumstances. Further, the published comments made by the complainant did not reveal any private information about her; her comments related to her profession and simply expressed her view that plasma skin tightening was a straightforward treatment, and were an attempt to assuage the reporter’s concerns. Conducting an undercover investigation in the complainant’s home and reporting on the comments which she had made, did not represent a breach of Clause 2.

35. Prior to publication, the complainant had posted a video on YouTube and had discussed her recollection of the undercover reporter’s visit to her home. In the video, the complainant had had also talked openly and at length about her spent conviction and had also offered an explanation for it. In circumstances where the complainant had freely disclosed this information herself on a social media platform, the newspaper’s disclosure of the fact that the complainant had a spent conviction in the article under complaint did not represent an intrusion into her privacy. The complaint under Clause 2 was not upheld.

Conclusion

36. The complaint was upheld under Clause 1.

Remedial Action Required

37. Having upheld the complaint in part, the Committee considered what remedial action should be required.

38. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or adjudication, the nature, extent and placement of which is determined by IPSO.

39. In this case, the newspaper had taken steps to address the concerns raised by the complainant, and had offered a correction, making clear that “cosmetic cowboys” and “rogue beauticians” did not apply to the complainant.  This correction mitigated the seriousness of the breach of the Code. However, the wording had not made clear that the complainant had not been guilty of “botching” treatments, as suggested by the article. Nor had the online correction dealt with the inaccuracy about skin lightening. The Committee therefore considered that the appropriate remedy was the publication of a further correction. This correction should appear on page two of the newspaper, and at the top of the article as it appears online. The wording should be agreed with IPSO in advance. It should address the further inaccuracies identified by the Committee, and make clear that it has been published following an upheld ruling by IPSO.

Date complaint received:: 21/12/2017
Date decision issued: 05/07/2018