A Man and the Evening Herald

Complaint

A man complained that the publication of a photograph of his young son after his son had received an award in damages in a court case had been in breach of Principle 3.2 of the Code of Practice (Fairness and Honesty) in that the photograph had been taken without his knowledge, and in breach of Principle 9.2 (Children) in that it had been published without his consent. While the complainant accepted the publication’s right to publish information about his child that formed part of the court proceedings, including his name and address, he maintained that publishing his son’s photograph provided an additional level of identification and was therefore in breach of the Code. The newspaper responded that there was no legal prohibition on the publication of photographs of children involved in civil litigation, which were generally taken outside courtrooms, and that newspapers relied on Article 34 of the Constitution which stated that the administration of justice should take place in public. It assured the complainant that there had been no intention to cause distress to the young boy, his parents or any member of his family, and offered to delete the photograph from its library system and archive in an effort to meet the concerns the complainant had expressed. The newspaper subsequently deleted the photograph from its archives.

Decision

The fact that the photograph published was taken in a public place without the complainant’s knowledge or permission does not, in the opinion of the Press Ombudsman, amount to the obtaining or publication of information by subterfuge. The complaint under Principle 3.2 is therefore not upheld.

More complex issues arise in relation to the publication of the photograph under Principle 9.2, which envisages that professional, rather than strictly legal, considerations should inform all reporting about children. The constitutional requirement that justice should be administered in public - which was referred to by the newspaper in its response - relates to access by the public and the media to courtrooms (where cameras are not permitted), and is not relevant to issues of coverage outside courtrooms.

Principle 9.2 requires that editors and journalists should bear a number of factors in mind in relation to stories involving children, including whether parental or other adult consent has been obtained in their dealings with children. Although seeking and obtaining such consent is obviously advisable in the light of the Code of Practice, the absence of such consent is not conclusive evidence that the Code has been breached. In addition, practice varies widely in relation to the publication of photographs of children, and because the circumstances of each case will inevitably differ, each case must be decided on its merits.

In this particular case, the newspaper’s prompt deletion of the photograph from its library system was, in the opinion of the Press Ombudsman, sufficient action on its part to resolve the complaint. However, the Press Ombudsman recommends that publications should, in all cases where reporting news about children is concerned, give careful consideration, in advance of any publication, to the extent to which the relevant provisions of Principle 9 of the Code of Practice should influence their exercise of their legal rights. This is particularly important given the vulnerability of children and the fact that the effects of publication of information are effectively irreversible. They should therefore not assume that their legal rights make the provisions of this Principle inapplicable in all circumstances.

26 May 2009