Clauses Noted: 3, 10
Publication: The Sun
An activist representing Dale Farm Solidarity complained to the Press Complaints Commission that an article headlined "The Sun goes undercover for Dale Farm diary", published in The Sun on 22 October 2011, contained information that had been obtained using subterfuge in breach of Clause 10 (Clandestine devices and subterfuge) of the Editors' Code of Practice and intruded into the privacy of Dale Farm activists and residents in breach of Clause 3 (Privacy) of the Code.
The complaint was not upheld.
The article was an account by two reporters of their "infiltration" of the Dale Farm traveller site, at a time when a number of its residents were resisting attempts by Basildon Council to evict them; activists had also been present in large numbers, supporting their efforts. The piece described the reporters' experiences of eight days spent at the camp.
The complainant said that the journalists had posed as legal observers, whose role was to collect evidence in case of injury or illegal activity by any party; they had received appropriate training; had worn bibs that designated them as such; and had been assigned areas to monitor. However, although they had witnessed controversial incidents, they had filed no reports. The complainant said the journalists had been trusted to record activity; by taking on these roles, they had "sabotaged" the work of the legal monitors and put into jeopardy future legal monitoring programmes.
The complainant maintained that subterfuge had in any case been an unnecessary "fishing expedition". Dale Farm had an open media policy, and any reporter could arrange to come into the community, conduct interviews, tour the site and even camp there. The complainant pointed out that the newspaper had previously published a reporter's first-person account of a day at Dale Farm; she argued that the article had contributed no significant information that was of public interest in addition to that which had been previously reported, or which would have been available had an official tour been arranged. She acknowledged that reporters often go undercover at protest sites but said that this was normally for a brief period or to attend a particular meeting. She objected on this occasion as the subterfuge had been extended and intruded into areas where she considered activists and residents had a reasonable expectation of privacy, given that the site was their home at that time.
The complainant also disputed the accuracy of the article, arguing that several incidents reported in the story had been misrepresented and that these inaccuracies invalidated any potential public interest defence. Nonetheless, she made clear that she did not wish the Commission to make a finding under Clause 1 (Accuracy) of the Code.
The newspaper said its journalists had identified themselves to people on site as protestors interested in the Dale Farm cause but unwilling to take part in violent action. They had used their real first names but had avoided using surnames, like many people at the camp. They had not been questioned in detail about their identities when on site; they had simply been accepted as volunteers and told to record the actions of police and bailiffs. They had come and gone at will, keeping notes of what they saw and heard, which included instances of drug-taking and drinking, and frequent discussions of plans to obstruct or assault police and bailiffs.
The newspaper considered that publication of this material was legitimate: at the time the clearance of Dale Farm was a dominant news story of considerable public interest, the subject of debate in Parliament and the media. It was important for the public to have information about the behaviour of the authorities, residents and protesters at the site, particularly where this included apparent conspiracies to commit assault, breach the peace and obstruct the course of justice. The reporters had worked in pairs with (genuine) legal observers, so it was not the case that the activists would not have had a record of the areas the reporters had been assigned to monitor.
The newspaper said it would have been impossible for its reporters to have gained a true insight into the camp using official channels as there was strong hostility towards the national press; any organised tour would have offered a "sanitised" view of the camp, and the media was banned from attending key meetings of the camp organisers. Limited subterfuge was necessary to obtain an accurate picture. It denied individuals would have a reasonable expectation of privacy at the camp; the protests were a transient phenomenon, and while some had camped there for a long period, many different people came and went on a daily basis. In any case, the newspaper argued that the public interest argument overrode any potential privacy concerns under the terms of the Code.
It stood by the accuracy of its report, which it said was based on the genuine experiences of its journalists. The reporters had entered notes into a collaborative online document, in which all changes were electronically logged. It provided the Commission and the complainant with access to this document.
The newspaper acknowledged that the journalists who had undertaken the subterfuge were trainees and had not received specific training on the Editors' Code of Practice by News International at the time of their investigation. However, it said they had been given training on the Code previously and were confident of their own understanding of its application.
Clause 10 of the Code states that newspapers "must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices". It also makes clear that "engaging in misrepresentation or subterfuge...can generally be justified only in the public interest and then only when the material cannot be obtained by other means". The Commission has consistently ruled that so-called "fishing expeditions" - in which subterfuge is employed without a reasonable expectation that the public interest will be served by doing so - are unacceptable.
The Commission accepted that there was a strong public interest in reporting on activities within the largest illegal traveller site in the UK at a time when its planned clearance had been the subject of high-profile legal proceedings. The case raised important questions about the conflict between the rights of the residents and the owners of neighbouring properties and the relevant planning legislation. There were also widespread concerns about the possibility of violence or disorder should planned evictions proceed. The Code's definition of what is in the public interest includes "detecting or exposing crime or serious impropriety" and "protecting public health and safety". In the view of the Commission, the newspaper had adequate reason to seek to uncover details of living conditions at Dale Farm and possible plans to resist the clearance of the site.The Commission noted the complainant's position that inaccuracies in the story had undermined the newspaper's public interest argument. It was concerned that the document provided by the newspaper appeared to show that while it had been modified many times, these modifications did not correspond closely with the dates on which the journalists had visited the camp. The document was therefore not a contemporaneous record of events and was not sufficient to demonstrate that care had been taken over the accuracy of the article. Nonetheless, the complainant had not made a complaint under Clause 1, and on balance the Commission did not consider that these issues invalidated the substance of the report.
The Commission acknowledged the complainant's position that activists conducted official press tours of the site, but it considered it unlikely that details of legal and strategy meetings - which had not been revealed in previous coverage and were highly relevant to concerns about possible future violence or disorder - would have been made freely available. The Commission also had to have regard for the type of subterfuge employed, which in essence amounted to a failure to voluntarily identify themselves as members of the press and the acceptance of roles as legal observers, affording them greater access to activities within the camp. The Commission was satisfied that the public interest was sufficient to justify the level of subterfuge on this occasion. In all the circumstances, the complaint under Clause 10 was not upheld.
The Commission noted that at the time that the subterfuge had been undertaken the community at Dale Farm was rapidly changing; there was no requirement for visitors to fully identify themselves, and as the complainant had noted, members of the media were permitted to tour the site. With all of this in mind, the Commission could not conclude that Dale Farm was at that time a place where individuals would generally have had a reasonable expectation of privacy. In any case, it did not appear that the information published revealed any particularly private details about any named or otherwise identifiable individual. No breach of Clause 3 was established by the complaint.
Finally, the Commission noted that the preamble to the Editors' Code states that "all members of the press have a duty to maintain the highest professional standards". An understanding of the Code and its application necessarily underpins those high standards. It had serious concerns that the newspaper's journalists had not received specific training on the Editors' Code of Practice from the newspaper prior to their involvement in subterfuge. It emphasised the importance of ensuring that such activities were undertaken with the full awareness of the terms of the Code by all those involved.
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