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Press Complaints Commission Guidance Note: Privacy and the Public Domain

It is a fundamental requirement of the Editors' Code of Practice that editors must justify intrusions into any individual's private life without consent. This principle applies to all editorial content, including material sourced from third parties and non-journalists.

As is widely recognised, however, privacy is not an absolute right: it can be qualified by factors such as an individual's conduct; previous disclosures made by the individual; or an overriding public interest in publication. This is reflected in the terms of the Code. The terms of Clause 3 (Privacy) state that "account will be taken of the complainant's public disclosures of information". In addition, the Commission is required to "consider the extent to which material is already in the public domain, or will become so" when assessing possible public interest exceptions to the terms of the Code, which is particularly relevant to concerns about intrusion.

The publication of information by individuals on social networking platforms such as Facebook, Twitter and MySpace can blur the distinction between "private" and "public", particularly where the individual has not used privacy settings to indicate an intention to restrict the circulation of the information. Nonetheless, the mere availability of material online does not in itself justify its republication to the public at large.

The Commission has previously acknowledged that it may be acceptable in some circumstances to publish information taken from social networking websites, even if the material was originally intended for a small group of acquaintances. A decision to publish material protected by privacy settings will generally require an editor to demonstrate a sufficient public interest in publication, but even where no privacy settings are in place, editors should consider carefully whether publication is justified. For example, in a case of bereavement or serious injury, when the terms of Clause 5 (Intrusion into grief or shock) apply, editors should take particular account of the likely effect on close friends and family of the publication of images or material taken from such sites.

In considering complaints about privacy in relation to material that is arguably in the public domain, in any context, the Commission must assess the extent to which something is or will be in the public domain; and it must decide how to weigh its conclusions in this regard against other factors that tend to justify publication or otherwise.

In many instances it is possible to determine that material is well-established in the public domain. For example, proceedings in open court will generally fall into this category (see below). But in other cases, it is not straightforward. The greatest caution should be taken where information is obviously private in nature (for instance matters relating to health), but the Commission will take account all relevant factors, which include:

  • The nature of the material;
  • The extent of previous publications (including disclosures by the complainant themselves);
  • The context in which the publication has presented the republished material;
  • Any public interest in publication; and
  • Where it is argued that the publication of new material is justified by the existence in the public domain of similar or related information, the proportionality of the new publication to the material already established in the public domain.

The following cases provide examples of how the Commission has applied the Code in such cases.

The nature of the material

The family of Alice Claypoole v Daily Mirror (2005)

In this case, a national newspaper published a photograph of a woman missing after the 2004 Asian tsunami, against her family's wishes. The father's request that no photograph of his daughter be used had not been passed on, due to a miscommunication, and an image from a publicly-accessible website was published. The Commission expressed great sympathy with the complainants but did not uphold the complaint: it ruled that publication of a publicly available, innocuous image of someone caught up in such a shocking and newsworthy event was not intrusive under the terms of Clause 5 (Intrusion into grief or shock).

Baskerville v Daily Mail / Baskerville v The Independent on Sunday (2010)

In these cases, a civil servant who had been using Twitter to describe aspects of her professional life complained about the publication of her messages in two national newspapers. The complainant accepted that "in theory" anyone could view the material, but believed that she had a reasonable expectation that her messages would be published only to her "followers". The Commission noted the quality of the information and how it was used by the publication: it related directly to the complainant's role as a public servant, and the newspaper had used it to comment on concerns about civil servants using social media platforms. It also had regard for the fact that there were hundreds of subscribers to the complainant's account and that no privacy settings were in place. It was satisfied that the material published by the newspaper did not constitute an unjustifiable intrusion into the complainant's privacy and did not uphold the complaint.

The extent of previous publications

Minogue v Daily Mirror/ Daily Record (2010)

Dannii Minogue complained a newspaper had intruded into her private life by publishing the fact of her pregnancy before her twelve week scan (and before any public announcement). The newspaper acknowledged the Commission's previous rulings that publication of such information without consent before the 12-week scan is intrusive but argued that the information was in the public domain having appeared on a blog and on an Australian newspaper website the previous day. It said that such information was either in the public domain or not in the public domain - it could not be partially in the public domain. The Commission did not agree with the newspaper's position: the references it cited were speculative rather than confirmed, and did not mean that it would have been "perverse" for the publications not to have referred to it. The Commission upheld the complaint and commented that its ruling was "no more than common sense; otherwise, any reference online would represent an automatic justification for a newspaper to publish otherwise intrusive material".

A Man v Perthshire Advertiser (2004)

A man from Scotland complained that an article which repeated information that was referred to in open court or contained in a judgment intruded into his privacy in breach of Clause 3 (Privacy). The complainant was a serving prison officer who had been the offending party in a car accident. He complained that the inclusion of his job title, his full home address and the full registration of his car in a newspaper report might put his family at risk due to the sensitive nature of his work. In the circumstances of this case the Commission concluded that no exceptional reasons had been established by the complainant for censuring the publication for publishing information which had been revealed in open court and entered the public domain. Generally speaking, and in the absence of a court order to the contrary, information reported in open court will be considered as firmly established in the public domain, and publications will be free to republish it.

Rowling v Daily Mirror (2005)

JK Rowling complained that an article in the Daily Mirror intruded into her privacy in breach of Clause 3 (Privacy) of the Code by publishing a photograph of her London property with the name of the road. The Commission noted that because of the security problems that some celebrities have encountered from stalkers and obsessive fans, when publishing details about a celebrity's home without consent, publications must take care to ensure that they do not publish information that would enable people to find the exact location of the property. In this case, the complainant had previously been subject to security threats at her homes. The newspaper argued that the address was already in the public domain, as the name of the road had already been published in another newspaper, and the electoral register and Land Registry identified the complainant as the owner. The Commission did not accept, however, that this was the decisive factor: it was satisfied that the photograph and its caption contained sufficient information to identify the exact location of the property, and it did not agree that the information was in the public domain to such an extent as to justify publishing it in this way. It upheld the complaint on this point.

Blair v The Daily Telegraph / Daily Mail (2002)

Tony Blair and Cherie Blair complained about two articles revealing that their son had applied for a place at Oxford University. The newspapers relied in part on the fact that the story had entered the public domain by virtue of the fact that a list of applicants had been posted in the Porter's Lodge of the College to which he had applied. The Commission did not agree that this act had placed the information firmly in the public domain: the college had done no more than pin up a list of applicants on its own property for the information of the relatively few people who were directly affected. This did not entitle to newspapers to publish information about the Prime Minister's son that would otherwise breach the terms of Clause 6 (Children) of the Code. The complaints were upheld.

Maclean v Mail on Sunday (2005)

In 2002 David Maclean MP, then the Conservative Party Chief Whip, had not challenged a diary item in a Sunday newspaper suggesting that he had had an affair with a senior civil servant in the early 1990s. Two years later, he did complain about a bigger and more detailed article in another newspaper that reported those allegations in the context of a new story about warnings he was said to have given a fellow Member of Parliament about dealing with allegations relating in his own private life. Mr Maclean maintained that the two small diary items published two years previously had not placed his own alleged affair into the public domain sufficiently to justify publication of the story. The Commission disagreed, making it clear that even though the diary items were small, the information was undeniably in the public domain. It warned that individuals who are the subject of such pieces should be aware that a decision not to complain about them when they are published may pose difficulties in complaining about republication of the same information.

Context

Editors should take particular care when considering whether to republish potentially private or personal information in a different context to that in which it was originally published. This can be of particular importance when using material sourced from social networking sites, as the following cases demonstrate.

Mullan, Weir, & Campbell v Scottish Sunday Express (2009)

In this case, the coverage under complaint claimed that several survivors of the Dunblane shooting in 1996 - who at the time of publication were turning 18 - had "shamed" the memory of their schoolfellows by posting "foul mouthed boasts about sex, brawls and drink fuelled antics" on social networking sites. The article was illustrated with photographs taken from these sites. The Commission upheld the complaint. It found that the individuals concerned were not public figures in any meaningful sense and had done nothing to warrant such scrutiny as 18 year-olds. Although the boys' identities had been made public at the time of the shootings, and the images were available freely online, they had been taken out of context and presented in a way that was designed to humiliate and embarrass them. The Commission emphasised that in some circumstances the publication of publicly accessible material hosted on social networks may constitute an unwarranted intrusion into privacy, even when no specific steps such as the use of privacy settings have been taken to protect the material.

A Woman v Loaded (2010)

Here a woman complained that an article headlined "Wanted! The Epic Boobs Girl!" invaded her privacy. The article identified the complainant by name and featured (without consent) a number of photographs taken from the internet as part of a campaign by the magazine aimed at persuading her to take part in a photo-shoot. The photographs had originally been uploaded by the complainant to a social networking site when she was fifteen years old (several years before) but had since been widely republished on the internet. She had also been widely named online as the individual featured in the photographs.

The Commission stressed that the Code imposes a higher standard on the press than exists for unregulated sites and expressed sympathy with the complainant's hurt and embarrassment. It made clear, however, that it could not make a ruling on taste grounds. It was crucial to the case that the magazine had not accessed the material from a personal site to present it in a newly salacious manner. The photographs had been exceptionally widely available on the internet: at the time of the complaint the complainant appeared in the top three results in a Google image search on the word "boobs". There were millions of relevant matches to her as the "epic boobs" girl, and over 100,000 matches for her name. The Commission concluded that in some cases - including this one - it is not possible to censure a publication for reproducing and commenting material that is exceptionally widely available and has already been contextualised by others in the same way.

Public interest

In some situations material that has been obtained from social networking sites may be published even if the subject of that material has limited its availability to a small number of people. But this is likely to be true only when there is a public interest justification to permit what would otherwise be an invasion of privacy. If a decision is taken on public interest grounds to publish material in circumstances that would otherwise raise a breach of the Code, editors must be prepared to demonstrate how they believed publication would be in the public interest and "how, and with whom" that was established at the time - that is, before publication.

Goble v The People (2009)

A serving police officer complained (via a family representative) that an article headlined "My Lot Have Murdered Someone Again. S*** Happens" intruded into his privacy in breach of Clause 3 (Privacy) of the Code. The officer had posted comments on two social networking sites that referred to the death of Ian Tomlinson during the London G20 protest in April 2009, using privacy settings. The newspaper said that the officer's comments had been brought to its attention by a third party with whom he was acquainted and who had legitimate access to his online profiles; in addition the officer had accepted the newspaper's journalist as an online "friend" for a brief period. The Commission was satisfied that there was a public interest in information which threw light on police attitudes (whether publicly or privately expressed) to the incident. It considered that the officer had taken a risk by posting such controversial comments to people who were not obliged to keep the information secret. It was satisfied that any intrusion into the officer's privacy was justified.

A Woman v The News (2004)

A woman complained that the newspaper had intruded into her privacy by identifying her, without her consent, having tuberculosis. The newspaper argued that under the circumstances there were clear grounds to justify her identification: a sizeable proportion of the local community (including hundreds of parents) knew her name already, and as a teacher with a contagious disease which spread into the school she worked at, she was at the centre of a major public health alert. The Commission considered that as an adult with a position of responsibility who had been identified as the source of a tuberculosis outbreak at a school, scrutiny of the complainant - however unwelcome to her personally - was inevitable. Information about her health that would otherwise have been private had become part of a necessary public debate. As the complainant's identity was demonstrably in the public domain to some degree, the Commission concluded that it would have been unreasonable for the local paper to be restricted from publishing it. The Commission noted the complainant's contention that, while people connected to the school were aware of her identity, people where she lived were not. While the Commission expressed sympathy for the complainant's position, it concluded that in the circumstances it was impractical to take into account such geographical distinctions. It did not uphold the complaint.

Proportionality

A decision by an individual to put some matters concerning their private lives into the public domain (or not to complain formally about the publication of such material when it is published without consent) does not deprive them of any right to privacy under the Code: the subsequent publication of material that is more detailed or intrusive than previous disclosures may not be justified. There are often delicate and fact-sensitive balances to be drawn in this area, as the following cases illustrate.

Granada Television (on behalf of Jacqueline Pirie) v News of the World (2000)

The actress Jacqueline Pirie complained that an article which included sexual details of a previous romantic relationship had invaded her privacy in breach of Clause 3 (Privacy) of the Code. The newspaper did not advance a public interest justification for the article, but argued that there was a sufficient volume of material about Ms Pirie in the public domain to justify further articles about her private life. It contended that Ms Pirie had actively sought publicity in the past and produced several articles which, it said, demonstrated her willingness to talk about her private life. Although it accepted that the complainant had willingly provided some information about her private life for publication in the past, the Commission noted that it had not included the "highly personal" material revealed in the article. Aside from general details about her previous relationships, there was little in the previous articles about the detail of her private life. The Commission noted that Ms Pirie had not complained about a previous article that had included comments of a former boyfriend, but it did not consider that the failure to complain implied general consent for further intrusion. The Commission emphasised that there was little or no proportionality between the subject matter of the article - which was extremely personal and devoid of any public interest - and the material that was already in the public domain, and it upheld the complaint.

Carling v Daily Mail (2000)

The article took the form of an interview with the complainant's ex-husband, which detailed his attempt to gain greater access to his two children who were then living with the complainant and her new husband; the complainant considered that this breached the terms of Clause 6 (Children). The newspaper argued that the children had previously been named in national newspapers in the context of the marital problems experienced by the complainant and her new husband. It also noted that the complainant had given an in-depth interview to another newspaper in which she revealed her pregnancy before marriage, how her children had been teased at school, detailed visiting arrangements for the children, and provided photographs of the children for publication. The Commission considered that the material contained in the article under complaint was in proportion to the previously published material, including the material put into the public domain by the complainant herself, and it did not uphold the complaint.

Summary

It is the ultimately responsibility of editors and publishers to ensure that the Editors' Code of Practice is observed rigorously by all editorial staff and external contributors, and to apply the Code to editorial material in print and online. In considering whether to publish any material that has entered the public domain - whether online or in another medium - editors should ask themselves the same questions as they would in respect of any other potentially intrusive material, including:

1. What is the quality of the information? (How personal is it?)

2. What previous disclosures have been made by the individual concerned?

3. If the material has been sourced online, who uploaded the material?

4. Has the individual taken steps to indicate that they regard the information as private, for example by complaining about the previous publication of such material, placing on the record their concern about the publication of such material, or putting in place specific steps to protect their privacy such as privacy settings?

5. How is the material presented? (Is it likely to embarrass or humiliate the individual?)

6. If it is argued that the publication of new material is justified by the existence in the public domain of similar or related information, is the new material proportional to material already established in the public domain?

7. Is there a public interest in publication proportional to the potential intrusion?

Whenever the public interest is invoked, the terms of the Editors' Code of Practice require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

Senior PCC staff are available to discuss any concerns in advance of publication on 020 7831 0022 during office hours, or 07659 152 656, for urgent out of hours queries. They will be happy to talk through specific cases and offer advice on relevant Code issues.

The Editors' Code of Practice can be read online here.

15/11/2012



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