Mr Richard Rawson (also known as "Fazer") complained to the Press Complaints Commission via Lewis Silkin solicitors that an article headlined "Exclusive: ‘Fazer cheated on Tulisa with me'" / "Fazer told me he didn't have a girlfriend - then we kissed", published in Heat magazine in an issue dated 11-17 February 2012, raised a breach of Clause 1 (Accuracy) of the Editors' Code of Practice.

The complaint was upheld.

The article was an interview with a woman who said she had met the complainant in a nightclub in November 2011; that the two had danced and kissed; and that the complainant had denied having a girlfriend. At the time, the complainant had been in a relationship about which he had spoken publicly.

The complainant accepted that he had spoken to and danced with the woman, but strongly denied kissing her or telling her he did not have a girlfriend. The complainant was concerned that the magazine had failed to approach his representative for comment prior to publication, informing him of the story only once the magazine had gone to print. It had therefore failed to include the denial issued by his representative. The complainant noted that photographs published with the article did not show him kissing the woman and provided a witness statement from his stylist, who had been present, which confirmed that he had not seen any kiss and did not believe that it had taken place. The complainant considered that even had the claim of kissing been accurate, which he denied, the reference on the cover to "cheating" would be misleading, as it implied sexual intercourse.

The magazine provided an affidavit signed by the woman prior to publication confirming that she had exchanged a mutual kiss with the complainant. It also provided a witness statement from the freelance journalist who had taken the photographs, confirming that he had observed the kiss. The magazine said it had not contacted the complainant's representatives while preparing the story because it was confident of its accuracy, and the representative had previously made clear that he would not comment on the complainant's private life, but had asked to be informed of stories before the magazine went on sale.

The Commission was unable to reconcile the two conflicting versions of what had occurred as the complainant and the woman danced together. Its task was to consider whether the magazine had taken care not to publish inaccurate or misleading information, in accordance with the terms of Clause 1 (Accuracy) of the Editors' Code of Practice.

The Code does not impose a specific requirement on newspapers or magazines to contact those who feature in a published article on every occasion, but where significant allegations are at stake, publications will often need to do so in order to test their veracity or to obtain alternative versions of events.

The article had been highlighted on the magazine's cover, with the claim that the complainant had "cheated". While the Commission did not agree that "cheating" necessarily implied a claim of sexual intercourse, the allegation of infidelity was significant. The magazine had published detailed claims about the complainant, including that he had been deceptive and unfaithful to his girlfriend. Although the magazine had taken a witness statement from the woman prior to publication and had obtained a further statement from the journalist, it was unable to provide direct corroborating evidence, such as a photograph, of the kiss.

In the circumstances - which included the nature of the allegations and the prominence given to them - the Commission concluded that the magazine's decision not to contact the complainant's representative about the story prior to publication had represented a failure to take care not to publish inaccurate or misleading information, and a breach of Clause 1.

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The complainant had raised additional concerns under Clause 3 (Privacy) of the Code.

The complaint was not upheld.

The complainant said that the photographs which had accompanied the article, depicting him dancing with the woman, represented an intrusion into his private life. They had been taken without his consent, in a location where he had a reasonable expectation of privacy: in the VIP section of a nightclub where entry was controlled. This clearly was not a public place.

The magazine said the photographs had been taken on the dance floor of a publicly-accessible and busy club, which had been hosting a launch party that evening, which was a designated "press night": members of the press were permitted to attend the club without charge. There had been no charge to enter the VIP area of the club and no security staff guarding it; any member of the public or press could access the area. Further, it argued that there was a clear public interest in reporting the complainant's actions, which stood in marked contrast to the public persona he chose to present. He had told the magazine only a matter of weeks after that night that he intended to have children with his then-girlfriend.

Adjudication

Clause 3 (Privacy) states that "it is unacceptable to photograph individuals in private places without their consent". Private places are "public or private property where there is a reasonable expectation of privacy".

It was material in this instance that the night in question was a press night, meaning members of the press were present in the nightclub, including, it appeared, in the VIP section. In a witness statement provided by the complainant, the complainant's stylist commented that it would have been "stupid" for the complainant to have kissed the woman, as he (and the stylist) were aware that there were "many journalists, both inside and outside the club". The complainant was a well-known musician and a prominent public figure; it was likely that he would be closely observed at such an event. In all these circumstances, the Commission could not agree that the complainant had a reasonable expectation of privacy at the time the photographs were taken. There was no breach of Clause 3 (Privacy) of the Code.

Relevant rulings

Burrell v News of the World (2008)

Antoniou v Woman (2011)