Michael Varey complained to the Press Complaints Commission that photographers commissioned, via an agency, to undertake work on behalf of The People had breached the terms of Clause 4 (Harassment) of the Editors' Code of Practice.

The complaint was upheld.

The complainant said that on the morning of 22 November 2013 he had observed two men in a parked car near his home for several hours, seemingly watching the residence and at one stage, looking into its windows. The complainant approached one of the men - the driver of the car - and requested that he identify himself. The man said he was a reporter pursuing a story about the complainant's son. In response, the complainant swore at the two men to leave. The passenger then began to film the complainant with his mobile phone. The complainant attempted to brush away the phone, and the passenger accused the complainant of assault, which he denied. After initially refusing to identify himself, the driver gave his name; the passenger refused to give his name or to stop filming, and covered his face. The complainant attempted to photograph the driver, who also covered his face. A "stand-off" ensued, which ended when the police attended the scene.

The complainant provided copies of photographs that supported his version of events. He also supplied a letter from Essex Police confirming that the police had initially received a report of an assault but that the driver and passenger had confirmed to the officers who attended the scene that "no assault occurred but [the complainant was] pushing them away when they were trying to take pictures. The Officers have recorded that on attending they viewed a video on a smart phone and this confirmed what [the complainant] said".

The newspaper explained that it had asked an agency to attend the complainant's house to follow up a potential story. Without its knowledge, the agency had sub-contracted the task to a freelance photographer (the driver of the car), who the newspaper described as "somebody [it] would not use". Both the newspaper and the agency had been unaware of the "unfortunate" incident prior to the PCC complaint. The photographer then provided an account of the events that sharply contrasted with the complainant's. The newspaper was initially informed by the freelance photographer that there was no video of the incident; after the complainant produced the police log, he admitted a film had been taken, but said it had been deleted.

The newspaper noted that there was a conflict of evidence but accepted that it could not dispute the complainant's account. It emphasised that it did not condone the freelancers' behaviour, but nonetheless it did not accept a breach of the Code. First, it could not be held responsible for the men's actions because it had been unaware that the job had been subcontracted. Second, it did not consider that the threshold for harassment had been passed: on the complainant's own evidence, he had sworn and some kind of stand-off had occurred. Nonetheless, the newspaper offered to apologise privately to the complainant for any upset caused by the incident. It had also instructed the agency not to use the photographer for any of its commissions.

The complainant provided evidence that contradicted the photographer's version of events, and responded that swearing at the photographers to go was a clear request for them to leave. The newspaper's position that it was not responsible for the actions of the freelancers was unacceptable.

The newspaper accepted that the photographer and his companion had been present at the complainant's house as a result of its instructions to the agency. Clause 4 (Harassment) states that "journalists ... must not persist in ... pursuing or photographing individuals once asked to desist... If requested they must identify themselves and whom they represent", and further that "editors must ensure these principles are observed by those working for them". While the newspaper's condemnation of the men's behaviour was welcome, the principle of editorial responsibility applied here, particularly as the newspaper appeared to accept that the agency's decision to subcontract the work did not contravene any specific instruction it had received. The newspaper was fully accountable for the actions of the men.

Although the Commission considers complaints framed under Clause 4 in their full context, a hostile reaction from a member of the public does not negate the requirement for a journalist to behave in compliance with the Code. Despite the conflicting versions of events, it was evident from all accounts - and corroborated by the photographs - that the photographers had continued to film and approach the complainant after he had made a clear, albeit crude, request for them to leave. Their decision to persist in their activities after the complainant had made plain his position breached Clause 4.

The Commission was also troubled by the complainant's claim that the photographer had initially refused to identify himself and the publication for which he was acting, and that his companion had consistently declined to do so. While it was not possible to establish the position with certainty, the photographs also suggested that the photographer had tried to conceal his identity at some stage, and confirmed that the passenger had attempted to do so, by concealing his face. This was contrary to the spirit of Clause 4 and the Commission took this opportunity to emphasise that, with the exception of clearly defined instances in which a decision has been undertaken to engage in subterfuge on public interest grounds, journalism should be conducted openly and with transparency about who is making a journalistic inquiry and on whose behalf.

The complaint was upheld.

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The complainant also complained that the photographers had behaved in a manner contrary to the terms of Clause 3 (Privacy) of the Editors' Code of Practice.

The complainant considered that on-going surveillance of his property over a period of several hours amounted to an intrusion into his private life. He also considered that the approach to his property made by the photographer, who had peered in through the windows from the road and walked around the house, and the filming of the complainant without his consent raised further intrusions into his private life.

Adjudication

While the Commission understood the complainant's concern, he acknowledged that the photographers had been situated on public roads throughout the period of surveillance; it did not appear that the photographers had photographed the complainant or any of his family members in the house. The actions of the photographer did not amount to a failure by the newspaper to respect the complainant's private life.

The filming of the complainant had taken place on a public road, where he would have been readily visible to members of the public. The Commission did not therefore consider that the filming of him intruded into his private life. There was no breach of the Clause 3 (Privacy).