Press Complaints Commission adjudication on the Kent and Sussex Courier
Nicki McLellan complained to the Press Complaints Commission that an article headlined "Saleswoman who targeted doctor’s patients and poor is exposed", published by the Kent and Sussex Courier on 3 August 2012, contained information which had been obtained using subterfuge and clandestine devices in breach of Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice.
The complaint was upheld.
After reading an article about a local woman experiencing financial hardship, a representative of the complainant had contacted the newspaper in order to offer her an opportunity to make extra money. The woman had agreed to meet the complainant but had been accompanied by a reporter from the newspaper posing as her partner.
The complainant suggested that the woman might wish to join her in working in the "multi-level marketing sector" selling "wellness products" and gave a presentation about the company. She suggested that the woman and her "partner" should attend a further presentation on the scheme, and described how she used her role as a receptionist in a doctor’s surgery to meet potential customers.
The newspaper’s coverage focused on the complainant’s admission that she had recommended the products to patients at the surgery. It referred to the complainant's comments at the meeting, which had been recorded without her knowledge, and was illustrated with still images of her.
The complainant said the newspaper's use of subterfuge had been wholly unjustified: she had acted with good intentions to help the woman find a new source of income. The reporter had not taken steps to investigate the matter before resorting to subterfuge.
The newspaper said it had been concerned that the complainant intended to involve the "vulnerable" woman in a direct-selling scheme that required a significant initial financial outlay. Its research had shown that reputable sources had raised concerns about the practice of direct selling, and it had been keen to learn whether the complainant was "targeting" vulnerable individuals. It had decided the only way of investigating further was to employ subterfuge.
Following the meeting, it had decided that publication of the material was justified by a sufficient public interest, particularly in light of the revelation that the complainant had used her position as a receptionist at a doctor’s surgery to make sales for her business.
The Editors' Code of Practice states 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. Whenever the public interest is invoked, editors are required to demonstrate fully that they reasonably believed that the use of subterfuge would be in the public interest and how, and with whom, that was established at the time.
The Commission accepted that the newspaper had acted with praiseworthy motives in seeking to protect a vulnerable member of the community. Nonetheless, it emphasised that the decision to use subterfuge must be made on the basis of evidence, rather than speculation. At the time it had undertaken subterfuge, the newspaper had had no evidence that the complainant was engaging in illegal or improper activity, and it had not taken specific steps to ascertain the nature of the assistance she intended to offer the woman or whether there was any impropriety involved.
It was clear that the investigation had uncovered material in the public interest. This could not, however, retrospectively justify the initial decision to engage in subterfuge. On balance, the Commission concluded that this had not been properly considered. The complaint was therefore upheld.
The complainant also complained that the article including misleading information in breach of Clause 1 (Accuracy) of the Editors’ Code of Practice, and that the reporter had engaged in harassment in breach of Clause 4 (Harassment) of the Code.
The complaint was not upheld.
The complainant said that after the meeting the reporter – who had informed her of the subterfuge – had been "pushy" and had e-mailed her a list of questions about the incident, despite her having made clear in a telephone conversation that she did not wish to comment. Later the same week she had been told not to come to work at the surgery because the reporter was present in the car park. The complainant said that, contrary to a suggestion in the article, the surgery had been fully aware of her involvement in the "multi-level marketing sector".
The newspaper said its reporter had been happy to end the call when the complainant made clear that she did not wish to comment. The purpose of the e-mail, which acknowledged her desire not to comment, was to make the complainant aware of the questions he had intended to ask; it had not requested a response. The reporter had attended the surgery in order to photograph the site and speak to patients; he had no intention of talking to the complainant or photographing her. The Primary Care Trust (PCT) had provided the newspaper with a statement that, while the surgery knew the complainant was involved in direct selling, it was unaware of her approaching patients about the products.
The Code prohibits reporters engaging in intimidation, harassment or persistent pursuit. While the complainant had described the reporter as "pushy", it appeared to be accepted that once the complainant had made clear she did not wish to comment, the reporter had not made any further attempts to telephone her. While he had subsequently e-mailed the complainant a list of questions, the Commission considered that the newspaper was justified in making this single further contact with the complainant in light of its obligation under the Code to take care not to publish inaccurate or misleading information; the Commission also noted, in this context, the public interest in the story. No breach of Clause 4 (Harassment) was established.
Clause 1 (Accuracy) states that: "the press must take care not to publish inaccurate, misleading or distorted information".
The article had reported that the complainant’s comments about selling products to patients had prompted the practice to investigate the matter. While the complainant maintained that the practice had been aware of her activities, the relevant PCT had told the newspaper that the surgery had been unaware the complainant was selling products to patients. It had issued a statement, included in the article, that it was investigating the matter. Had the complainant chosen to comment before publication it would have been appropriate for the newspaper to have included her perspective on the matter, but the newspaper had clearly been entitled to publish the practice’s position, and the Commission did not consider that there were outstanding issues to pursue under Clause 1 (Accuracy). The complaint under Clause 1 was not upheld.