Commission’s decision in the case of
Two Complainants v The Observer / The Daily Telegraph
The complainants were concerned about a comment article which responded to criticism of another columnist on social networking sites. The article had first been published by The Observer. Following The Observer’s decision to remove the article from its website, it had been republished on the website of The Daily Telegraph. The Commission received over 800 complaints about the article, which it investigated in correspondence with two lead complainants, one for each newspaper.
The complainants considered that the article contained a number of prejudicial and pejorative references to transgender people in breach of Clause 12 (Discrimination) of the Editors’ Code of Practice. They also raised concerns under Clause 1 (Accuracy) that language used by the columnist was inaccurate as well as offensive, and, furthermore that the article misleadingly suggested that the term “cis-gendered” was insulting. Additionally, concerns had been raised that the repeated use of terms of offence had breached Clause 4 (Harassment) of the Code.
The Commission first considered the complaints, framed under Clause 12, that the article had contained a number of remarks about transgender people that were pejorative and discriminatory. It noted that the Observer had accepted that these remarks were offensive, and that it had made the decision to remove the article on the basis that the language used fell outside the scope of what it considered reasonable; however, the Observer denied a breach of Clause 12 because the article had not made reference to any specific individual. Clause 12 states that newspapers “must avoid prejudicial or pejorative reference to an individual’s race, colour, religion, gender, sexual orientation or to any physical or mental illness or disability”. However, the clause does not cover references to groups or categories of people. The language used in the article did not refer to any identifiable individual, but to transgender people generally. While the Commission acknowledged the depth of the complainants’ concerns about the terminology used, in the absence of reference to a particular individual, there was no breach of Clause 12.
The Commission also considered the complaint under the terms of Clause 1, which states that “the press must take care not to publish inaccurate, misleading or distorted information, including pictures”. Complainants had suggested that the terms used in the article to refer to transgender people were inaccurate or misleading. Whilst the Commission acknowledged this concern, it was clear from the tone of the article that these terms were being used to express an opinion. Whilst many people had found this opinion deeply distasteful and upsetting, the columnist was entitled to express her views under the terms of Clause 1(iii), so long as the statements were clearly distinguished from fact. The same was true in relation to the columnist’s assertion that the term “cis-gendered” is offensive. Viewed in the context of the article as a whole, particularly in light of the fact that the article had been deliberately identified as a comment piece, this was clearly distinguishable as an expression of her opinion about the term rather than a statement of fact about how it is perceived more broadly. This did not constitute a failure to take care over the accuracy of the article, for the purposes of Clause 1(i), and neither was there any significant inaccuracy requiring correction under the terms of Clause 1(ii). There was no breach of Clause 1.
The Commission turned to consider those concerns raised under Clause 4, which states that “journalists must not engage in intimidation, harassment or persistent pursuit”. It made clear, however, that the publication of a single comment piece was not conduct which would engage the terms of Clause 4. There was no breach of the Code.
The Commission acknowledged that the complainants found much of the article offensive. Nonetheless, the terms of the Editors’ Code of Practice do not address issues of taste and offence. The Code is designed to address the potentially competing rights of freedom of expression and other rights of individuals, such as privacy. Newspapers and magazines have editorial freedom to publish what they consider to be appropriate provided that the rights of individuals – enshrined in the terms of the Code which specifically defines and protects these rights – are not compromised. It could not, therefore, comment on this aspect of the complaint further.
Reference no’s 130403 / 130404
Press Complaints Commission
London EC1N 2JD