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Re: Complaint by Fidel Narvaez (ref: FN/11/2019)

Date of complaint: Original complaint to Panel: 22 January 2019; Second


Complaint to Panel: 2 September 2019
Article complained of: “Revealed” Russia’s Secret Christmas Eve plot to
smuggle Assange out of UK” (In print and online)
Date of publication: 21 September 2018 (online) 22 September 2018 (print)

Decision

Introduction
1. The complainant in this matter is Mr Fidel Narvàez. In this Decision, the Re-
view Panel will be referred to as “the Panel”, Mr Narvàez as “the Complainant”
and the Readers Editor” as “RE”. The Panel’s remit is to consider appeals
where the complainant is dissatisfied with the outcome at RE level. The Panel
will only consider whether or not the complaint gives rise to a breach of one or
more of the provisions of the Press Complaints Commission’s Code of Con-
duct (“the Code”).

2. Somewhat unusually, this is the second time the Panel has been seized of the
complaint, having originally remitted it to the Guardian’s Managing Editor for
reconsideration. The procedural background is set out in further detail later in
this decision.

The Article
3. The Article complained of was published online on 21 September 2018 and on
22 September 2018 in print with the headline “Revealed: Russia’s secret plan
to help Julian Assange escape from UK”. The standfirst reads: “Tentative plot
to whisk fugitive from London embassy on Christmas Eve was considered too
risky”.

4. The Article appeared on page 3 of the print edition of the newspaper.

5. The Article is a news item detailing an alleged plan to extract Julian Assange
from the Ecuadorian Embassy and to transport him to another country. The
Article uses language such as “secret” “escape plot” “Christmas Eve escape”
and “flee” to describe the plan. The word “plot” in connection with the alleged
plan appears in both the headline and in the body of the Article.

6. The premise of the Article is set out in the opening two paragraphs as follows:

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“Russian diplomats held secret talks in London last year with
people close to Julian Assange to assess whether they
could help him flee the UK, the Guardian has learned.

A tentative plan was devised to smuggle the WikiLeaks founder


out of Ecuador’s London embassy in a diplomatic vehicle and
transport him to another country.

One ultimate destination, multiple sources have said, was Rus-


sia, where Assange would not be at risk of extradition
to the US. The plan was abandoned after it was deemed too
risky”.

7. The Complainant is mentioned later in the Article and referred to as a “close


confidante” of Assange who “served as a point of contact with Moscow”. This
information is said to have come from “two sources familiar with the inner
workings of the Ecuadorian embassy”. The next paragraph of the Article con-
tains a detailed denial by the Complainant of his involvement in discussions
with Russia about “extracting Assange from the embassy” and explains that
any contact he had with the Russian embassy was in public meetings in con-
nection with entirely separate matters.

Correspondence with the RE


8. The Complainant first wrote to the RE by email on 9 October 2018. He alleged
(in summary) that the Article contained the following inaccuracies:

a. the allegation that “Russian diplomats held secret talks in London last
year with people close to Julian Assange to assess whether they could
help him flee the UK…”
b. that “a tentative plan was devised that would have seen the WikiLeaks
founder smuggled out of Ecuador’s London embassy”; and
c. the reference to the Complainant as “a close confidante of Assange
who until recently served as Ecuador’s London consul” which he said
was both false and defamatory.

10. The Complainant alleged that these amounted to a breach of the Code,
Clause 1(ii) “Accuracy” and that both a correction to the online version of the
Article and apology were required.

11. The RE provided a detailed response by email on 29 October 2018 conclud-


ing that the Article did not require amendment for the following reasons:

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(a) the allegation that the Complainant served as a point of contact with Moscow
(attributed to two unnamed sources) would be read in conjunction with the
Complainant’s clear denial in the paragraph immediately following;
(b) the RE was satisfied as to the factual accuracy of the information in the Arti-
cle, there was no “clear evidence of inaccuracy” and there was a clear public
interest in reporting on matters related to Julian Assange;
(c) the RE was “satisfied that the journalists have good grounds to be confident
about their sources”.

12. The Complainant replied by email on 16 November 2018 indicating his dissat-
isfaction with the RE’s response. In particular, he complained that the RE had
not addressed what he says was a lack of any substantiation of the assertions
in the Article that Russian diplomats had been in secret talks with Assange
and that a “tentative plan was devised that would have seen the WikiLeaks
founder smuggled out of Ecuador’s London embassy.” He also said there was
no evidence that he was “a close confidante of Assange”.

Complaint to the Panel


13. The RE provided a further substantive response to the complaint by email on
14 December 2018. The response focused on the statement that the Com-
plainant “served as a point of contact with Moscow”. The RE said he consid-
ered that while there were differences of views about this between the
sources relied upon by the Guardian and the Complainant, he was satisfied
that the Guardian had “taken care” as required by the Code not to publish in-
accurate, misleading or distorted information. The RE went on to find, on the
balance of probabilities, that this allegation was not inaccurate.

14. The Complainant responded on 28 December 2018 indicating that he would


still like the matter to be referred to the Panel and that the RE had not ad-
dressed what he considered to be the central inaccuracy in the story, namely
that there had been a “Russian secret plot devised by Russian diplomats in
order to smuggle Julian Assange from the Ecuadorian embassy”. The RE pro-
vided the Complainant with the Panel’s details the same day.

15. The Panel was first seized of this matter when it received the Complainant’s
complaint form on 22 January 2019. Having met to consider the matter, the
Panel initially considered that it did not at that stage have sufficient informa-
tion to adequately resolve the matter. Upon further correspondence with the
RE and the Complainant, the Panel took the view that several matters of sub-
stance in the complaint had not been fully considered at RE level. The Panel
therefore wrote to the Complainant and to the Managing Editor of the
Guardian on 31 May 2019 indicating that the matter should be considered

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afresh by the Managing Editor. The focus of that review was to be the three
alleged inaccuracies at the heart of the complaint, namely:

(a) that there was a “secret plan to smuggle” Julian Assange from the Embassy.
This includes reference in the print and online headlines to the description of
this plan as a “plot”;
(b) that the Complainant served as a ‘point of contact with Moscow’ in relation to
the ‘plot’ and
(c) that there was Russian involvement or a Russian link with Julian Assange.

Further decision by the Managing Editor


17. The Managing Editor wrote to the Complainant with the outcome of her re-
view on 26 June 2019. The letter sets out her findings in relation to each of
the three inaccuracies above and concluded that there had been no breach of
the Code. Her findings may be summarised as follows:

(a) As to the “secret plan to smuggle” Assange from the Embassy, including the
reference in the headlines to the fact that it was a “plot” and therefore inher-
ently illegal or illicit, there was evidence of a plan to remove Julian Assange
from the Embassy to Moscow. The Guardian relied on both closed and open
journalistic sources in this regard. For example, there was open source mate-
rial of an application by the Complainant to the Foreign and Commonwealth
Office on behalf of the Ecuadorean Embassy to appoint Assange to the newly
appointed post of Political Counsellor in London. This would have given him
diplomatic immunity. In the same month, the Ecuadorian government ap-
pointed Assange as “an advisor to render advisory services in the Ecuadorian
embassy in Moscow, Russia”. This supported the assertion that there was a
plan to escort Julian Assange to Russia. It was denied that the use of the
words “plot” and “smuggle” in the Article would have been understood by
readers to mean that the plan to remove Assange was illegal or illicit;

(b) It was reasonable to assert that the Complainant acted as a point of contact
with Moscow in relation to the plan. The Managing Editor noted that in any
event the Complainant’s strong denial of his involvement was included promi-
nently in both versions of the Article;

(c) The assertion that there was Russian involvement or a Russian link with As-
sange was also a reasonable one to make. In particular, the appointment by
Ecuador of Assange as an advisor to its Embassy in Russia, as well as the
well documented links between WikiLeaks and Russia were evidence which
supported this assertion.

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Second Complaint to Panel
18. The matter came back before the Panel on 2 September 2019. The Com-
plainant has provided a detailed and comprehensive document setting out his
dissatisfaction with the Managing Editor’s response and requesting again that
the on-line article be corrected to include to include the “clarification at the
head of the article, acknowledging that after a complaint investigation, there
are no solid grounds to prove the veracity of the story”. The Complainant also
repeats his request for a public apology on the grounds that he has been de-
famed by the Article.

Matters subject to Review


19. The second complaint to the Panel is 13 pages long and contains a significant
amount of detail as to what the Complainant contends is the true factual posi-
tion. His complaint is that the following statements in the Article are inaccu-
rate:

(a) Headline in print: “Revealed: Russia’s Christmas Eve Plot to smuggle As-
sange out of UK”
(b) Headline online: “Revealed: Russia’s secret plan to help Julian Assange es-
cape from UK. Tentative plot to whisk fugitive from London embassy on
Christmas Eve was considered too risky”1
(c) “A tentative plan was devised that would have seen the WikiLeaks founder
smuggled out of Ecuador’s London embassy in a diplomatic vehicle and
transported to another country”
(d) “Russian diplomats held secret talks in London last year with people close to
Julian Assange to assess whether they could help him flee the UK”
(e) “…Fidel Narváez…, served as a point of contact with Moscow”
(f) “The involvement of Russian officials in hatching what was described as a
‘basic’ plan raises new questions about Assange’s ties to the Kremlin”.

20. The Panel is of the view that the core of what is being complained about is the
alleged inaccuracies of the allegations that (a) there was a specific “secret
plot to smuggle” Assange from the Embassy; and (b) that the Russian state
was responsible for such a “plot”.

1 Note, this is in fact the headline and the standfirst.


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Relevant provisions of the Code

21. Clause 1 of the Code is headed “Accuracy” and provides as follows:

“Accuracy

i) The Press must take care not to publish inaccurate, misleading or


distorted information, including pictures;

ii) A significant inaccuracy, misleading statement or distortion once


recognised must be corrected, promptly and with due prominence,
and - where appropriate - an apology published. In cases involving
the Commission, prominence should be agreed with the PCC in ad-
vance.”

iii) The Press, whilst free to be partisan, must distinguish clearly be-
tween comment, conjecture and fact;2

[…]

22. Although not referred to explicitly in the complaint, the Panel has also consid-
ered Clause 2 “Opportunity to Reply” which provides as follows:

“A fair opportunity to reply to inaccuracies must be given when


reasonably called for”

Discussion

Panel Remit

23. The Panel (and the RE) are tasked only with consideration of alleged breach-
es of the Code. It is not within their remit to consider any issues of legal liabili-
ty such as defamation or privacy (save as provided for by the Code). In this
regard, it notes the suggestion that the allegation that the Complainant served
as a main point of contact with Russia was defamatory. The Panel is unable to
comment on such matters and limits itself to consideration of whether the Arti-
cle is in breach of Clause 1 of the Code (Accuracy). The Panel also reminds
itself that when considering whether or not there has been a breach of the
Code, it is important to read the Article as a whole rather than to focus only on
a single headline or paragraph.

2 Emphasis supplied.
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24. The Panel considers from the evidence before it, including the Complainant’s
own submissions that the Guardian had sufficient basis upon which to assert
that there was a plan to grant Mr Assange diplomatic immunity and that this
was to be done via an appointment in Moscow. It further appears that there
was a plan to move him from the Ecuadorean Embassy and that this plan
would not have been public knowledge. It is not suggested by the Guardian
that the Article was intending to suggest that there was anything “illicit” about
such a plan. Indeed, the Managing Editor in her response says that readers
would simply have “understood that the article was explaining how diplomatic
immunity can be used quite legally to avoid criminal proceedings”.

25. The Panel has therefore focused its analysis on (1) the use of language (“plot”
“smuggle” etc) and whether that amounts to a breach of Clause 1 in that it
would tend to suggest there was something illicit or underhand at foot and (2)
whether the Article is inaccurate or misleading in that it suggests that such a
plan was orchestrated by Russia.

Alleged Inaccuracies

(a) The Involvement of Russia

26. The Panel considers that there is an unfortunate ambiguity in the language
used in the headlines so that it may reasonably be understood by readers that
the “plot to smuggle” was initiated and/or organised by the Russian state. The
Panel has not seen any evidence nor is it suggested by the Managing Editor
that the plan to escort Mr Assange to Russia was at the request or instigation
of the Russian state, although it is said that there was Russian involvement in
the plan to remove Mr Assange from the Embassy. There is further ambiguity
early in the Article with the phrase “the involvement of Russian officials in
hatching (the plan)”. However, other aspects of the Article do not suggest that
the “plan” was one devised by the Russians. For example, the opening para-
graph refers to “secret talks” between Russian diplomats and “people close
to” Assange “to assess whether they could help him flee the UK”. Later on in
the Article, it is merely said that the “Kremlin was willing to offer support for
the plan, including the possibility of allowing Assange to travel to Russia and
live there.” The Article also contains a strong denial from the Russian em-
bassy in London about the story as a whole.

27. As to the existence of a “Russian link” with Assange, the Panel notes that in
the Complainant’s opinion, he does not consider that Assange has any ties
with the Kremlin. The Panel cannot conclude, however, that the question
posed in the Article about Assange’s ties with Russia was a misleading or in-
accurate one. The Panel notes that in December 2017, shortly before the al-
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leged plan was to take place, there had been an attempt to appoint Mr As-
sange “to render advisory searches in the Embassy or Ecuador in Moscow,
Russia”. The Article also refers to “four separate sources” who noted that
there was provisional Russian support for the plan, including by the Kremlin.
The Panel is therefore not satisfied that these assertions were inaccurate so
as to amount to a breach of the Code.

28. The Panel therefore finds that the headline in both the print and online edition
does not reflect what is said later in the Article which does not suggest that
the plan was organised or instigated by Russia. This could in isolation poten-
tially amount to a breach of Clause 1 (ii) of the Code, although the Panel re-
minds itself that it must be assumed that a reasonable reader will read beyond
the headline of an article. In this instance, while the body of the Article itself
contained greater detail and more measured language as to the degree of
Russian involvement as well as the inclusion of the denial from the Russian
Embassy, the Panel is nonetheless concerned that the overall impression giv-
en by the Article about the nature of the “plot” and the extent and nature of
Russian involvement is potentially misleading and could amount to a breach
of Clause 1(ii) of the Code. The Panel’s reasoning and conclusions in this re-
gard are set out below.

(b) The suggestion that there was a “secret plot to smuggle” Assange from the Em-
bassy and the nature of the “plan” generally

29. The use of the words “secret plot to smuggle” in the headline and the word
“plot” in the Article is open to interpretation. The Panel does not agree with the
Managing Editor’s conclusion that readers would simply have “understood
that the article was explaining how diplomatic immunity can be used quite
legally to avoid criminal proceedings”. The headline in particular makes refer-
ence to a “plot to smuggle” which which could reasonably be understood as
suggesting something underhand or illicit. The Panel has already indicated
some of its concerns in relation to the headline above. The word “plot” also
appears in the body of the Article, although it is used interchangeably with
“plan” and the Panel notes that the language in the body of the Article and its
description of the “plan” is more measured.

30. The Complainant accepts that there was an attempt to appoint Mr Assange as
a diplomat in Russia to enable him to leave the Embassy but that this was “a
sovereign and legitimate administrative action taken by Ecuador”. The
Guardian relies on the fact that there was an attempt to appoint Mr Assange
as a diplomat in Russia in support of the information it received from its confi-
dential sources that there was a plan to remove Mr Assange from the Em-
bassy and that Russia was one potential destination. Details of “the plan”

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were, as expressly noted in the Article “sketchy”. However, the Panel takes
note in particular of the following paragraphs in the Article:

“Details of the Assange escape plan are sketchy. Two sources familiar
with the inner workings of the Ecuadorian embassy said that Fidel
Narváez, a close confidant of Assange who until recently was
Ecuador’s London consul, served as a point of contact with Moscow
[…]

Sources said the escape plot involved giving Assange diplomatic doc-
uments so that Ecuador would be able to claim he enjoyed diplomatic
immunity. As part of the operation, Assange was to be collected from
the embassy in a diplomatic vehicle.

Four separate sources said the Kremlin was willing to offer support for
the plan, including the possibility of allowing Assange to travel to Rus-
sia and live there.

One said an unidentified Russian businessman served as an interme-


diary in these discussions. The possibility that Assange could travel to
Ecuador by boat was also considered.”

31. As evident from the above paragraphs, the Article makes it clear that much of
the information about “the plan” has been received from unnamed “sources”
rather than presented as matters of fact, directly within the knowledge of the
authors of the Article. It is reasonable to expect a reader to make up their own
mind about the credibility of information obtained from unknown sources.

32. The Panel has considered carefully what is said in the Article and the informa-
tion relied upon and cited by the authors of the Article, including the fact that it
relies upon information received from several confidential journalistic sources.
The Panel has not been provided with the identity of those sources. While it
does not consider that it may never consider confidential journalistic informa-
tion as part of its remit of review, it did not consider it appropriate or necessary
to do so in this case. It furthermore notes and takes account of the importance
of maintaining the confidentiality of journalistic sources and the need to en-
sure that their identities are not compromised save for in the most exceptional
circumstances.

33. Thus, while the Panel notes the Complainant’s dissatisfaction and distrust in
relation to these sources, it is satisfied that the Guardian has “taken care” to
assess the accuracy of the information received from its confidential sources
and that on this occasion, its journalists were best placed to make an in-
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formed decision as to their credibility and the reliability of the information pro-
vided. The Panel also takes account of the fact that the Article makes it clear
where it has received information from unnamed sources and that this is likely
to impact upon the weight given to that information by readers. The Panel also
notes that the Article does not contain any direct quotes from its sources and
it is therefore reasonable to infer that the choice of language used to describe
the alleged plan was that of The Guardian.

34. The Panel further notes that while the Complainant denies the existence of a
“plot” in the sense of anything underhand and certainly not a “plot” or “plan”
devised by the Russian state, the following does not appear to be in dispute:

(a) There was an attempt to grant Mr Assange diplomatic immunity;


(b) This would have taken the form of an appointment as a diplomat in a third
country, in this case Russia “to render advisory searches in the Embassy or
Ecuador in Moscow, Russia”;
(c) This would have enabled Mr Assange to leave the Embassy without the risk
of arrest;
(d) That this was not an illegal act but rather “a sovereign and legitimate adminis-
trative action taken by Ecuador for the defence of a political asylee”[sic];
(e) That the above was not public knowledge and that the Complainant continues
to be bound by a duty of confidence in relation to any information about a
person, such as Mr Assange, who was under international protection as a
matter of Ecuadorean law;
(f) The Complainant was involved in attempt to appoint Mr Assange as a diplo-
mat in London via the FCO but denies that he served as a "point of contact” in
relation to an alleged escape plan. Anything related to Assange involving a
third country would be dealt with by the Quito authorities rather than the Lon-
don embassy;

The overall impression created by the Article

35. The Panel takes account of the fact that in her reply to the Complainant, the
Managing Editor makes it clear that in her view, the Article was not suggesting
anything illicit or underhand about the alleged plan. However, the Panel con-
siders that - as with the headline and reference to a Russian “secret plot to
smuggle”- the use of language such as “plot” and “escape” in the body of the
Article is overblown and creates an unfortunate ambiguity for readers. The
overall impression of the Article is misleading in that it tends to suggest that
Russia instigated or devised a plan to do something underhand or illicit by
removing Assange from the Embassy.

36. The Panel therefore considers that the Guardian has not taken care not
to publish misleading or distorted information as required by Clause
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1(ii) of the Code. The Panel invites the Guardian to issue a clarification
in the terms suggested below.

(c) Whether the Complainant served as a “point of contact” with Moscow

37. The Guardian relies on open source material showing that the Complainant
was involved in applying for diplomatic status for Mr Assange in December
2017. However, the Panel understands this material to refer to his application
to appoint him as a diplomat in London via the FCO rather than directly with
Moscow. The Guardian also relies on its confidential sources which say his
involvement with the plan to remove Mr Assange included contact with the
Russian Embassy. Again, the Complainant disputes the accuracy of the in-
formation provided by these sources. The Panel notes that the source of the
information is from two individuals “familiar with the inner workings of the
Ecuadorean embassy”. The Panel considers that it was reasonable in the cir-
cumstances for the Guardian to rely on these sources. That the allegation
about the Complainant is derived from such sources is made clear in the Arti-
cle. The Panel also notes that the Complainant’s strong denial that what was
“involved in discussions with Russia about extracting Assange from the Em-
bassy” is prominently featured in both versions of the Article. Readers will
therefore have in mind that the information from the unnamed sources is di-
rectly contradicted by the subject of the allegations.

38. In relation to this aspect of the Complaint, the Panel is satisfied that the
Guardian has taken care not to publish inaccurate or misleading infor-
mation in relation to this aspect of the complaint.

Conclusion and recommendation


39. This is a complex and sensitive complaint which has a long history. The Panel
has taken considerable care in its analysis of the issues before it and has
concluded that, taken as a whole (including the headline), the Article gives a
misleading impression to readers as to (a) the extent of Russian involvement
in the plan; and (b) the nature of the plan itself and in particular whether it is
suggested that what was proposed would have been anything other than a
legitimate use of diplomatic immunity. It is for those reasons that it has found
there to be a breach of Clause 1(ii) of the Code in that the Guardian has not
taken care not to publish misleading or distorted information.

40. The Panel therefore invites the Guardian to issue a clarification that (a) the
plan in relation to Mr Assange’s ability to be able to leave the Ecuadorean
embassy was not devised or instigated by Russia; and (b) there was nothing
illicit about the “plan” as described in the Article and that it would have in-
volved the legitimate use of diplomatic immunity to allow Assange to leave the
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Embassy and travel to a third country. The prominence of that clarification is
to be agreed with the Panel.

41. In light of the clear and detailed denial by the Complainant already published
in relation to other matters in the Article, the Panel does not make any further
recommendations. It notes the Complainant’s request for a personal apology
in light of matters which he says have defamed him. As set out above, the
Panel cannot pass any comment on this matter as it goes beyond considera-
tion of whether or not there have been any breaches of the Code.

Dated: 14/11/19

Signed:

John Willis, Chair review panel.

Signed:

Elinor Goodman, panel member.

Signed:

Richard Danbury, panel member

Signed:

Geraldine Proudler, panel member

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