Nanny state? The regulators and invasion of privacy of minors


Mr and Mrs Hodgson, 'Calendar News': ITV Yorkshire, Ofcom bulletin 65; Mr Paschal Quigley, Zoo magazine, PCC report 73



A film version of PD James's dystopian novel, The Children of Men, was recently released. The premise is the sudden and unexpected infertility of mankind and how society deals with the nightmarish scenario. Love them or loathe them, children are a 'necessary evil' (and I use the phrase with no animosity towards children per se); no more babies means no more mankind.



Children are vulnerable and need to be protected from the evils that life can inflict on them, including physical abuse and psychological harm. The rights of the individual, which must include small individuals, are protected in the UK by the guarantees of the European Convention on Human Rights. One such right requiring protection is an individual's right to respect for private life, namely, privacy (article 8), which can butt unhappily against the media's right to free speech (article 10). Whose responsibility is it to protect a child's right to privacy? The parents'? The media's?



This summer, Mr and Mrs Hodgson complained to Ofcom in relation to their and their children's inclusion in a broadcast news item on ITV Yorkshire. The item saw them leaving court with their children, aged two and five, where they had been attending the sentencing hearing of Mrs Capp, the mother of Maxine Carr, who had been convicted of intimidating a witness during the trial of her daughter. In 2003, Maxine Carr was convicted of conspiring to pervert the course of justice in connection with the murder of Soham schoolgirls Holly Wells and Jessica Chapman by her former boyfriend Ian Huntley. Her trial attracted significant media attention and public hostility at the time. Although since leaving prison she has been protected by an order banning disclosure of her identity, it should come as no surprise that any action relating to these events would give rise to media interest.



The Ofcom complaint included an assertion that the privacy of the Hodgsons and their children had been invaded by the unauthorised inclusion of footage in which they were clearly identifiable. ITV argued that: the family was depicted outside court in a public place where they could have no reasonable expectation of privacy, particularly given the relationship of the issues to a case of such significant public concern; the family was not engaged in any private activity; the report contained no private information about them; they had not objected at the time to being filmed; the children were not interviewed; pictures of them were not embarrassing or inherently private; the footage did not focus on the children but they were included incidentally; the parents made no attempt to hide their children.



The complaint was initially rejected in its entirety, but on review, Ofcom's most senior decision-making body, the fairness committee, overturned that decision solely in respect of the children.



Ofcom's principle on privacy - 'to ensure that broadcasters avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes' - is supported by a rule that any such invasion of privacy 'must be warranted' and justified in those particular circumstances, for example, by proving public interest. Furthermore, clause 8 of Ofcom's code sets out that children and vulnerable individuals 'do not lose their rights to privacy because, for example, of the fame or notoriety of their parents'. Where material infringes their privacy, it should not be included without the consent of their parent or guardian 'unless the subject matter is trivial or uncontroversial and the participation is minor, or it is warranted to proceed without consent'.



On the facts, Ofcom found that the broadcast of the children's images was an invasion of their privacy and that it was unwarranted as there was no overriding public interest in the disclosure of their identities. Perhaps the most surprising part of the ruling is in one simple line: 'The broadcaster's prime concern should have been the vulnerability of these young children.' Is that really a broadcaster's prime concern?



Speaking at the IBC and Richards Butler's summer conference Protecting the Media, Fran O'Brien, Ofcom's senior standards manager for content and standards, maintained that the Ofcom code 'is about freedom of expression' and that this right is 'built into the way we look at complaints'. But the code has to balance that right against the rights of others, including, in this case, the article 8 rights of minors. This decision would tend to suggest that Ofcom considers that it and the broadcasters it regulates have a role to play in protecting the rights of minors, even where those traditionally charged with parental responsibility may have failed to do so.



There is invariably another side to every coin. And in this case it concerns a decision of the press regulator, the Press Complaints Commission (PCC), in the matter of Paschal Quigley and Zoo magazine. The weekly 'lads mag' had illustrated its article 'Just like dad' with a photograph of Mr Quigley and his daughter at a football match at Old Trafford. A photograph featuring Mr Quigley allegedly engaged in 'terrace bigotry', making offensive gestures to the public, also featured his young daughter making other gestures. He complained that the article ridiculed his daughter and that she should have been pixellated.



Unlike Ofcom, the PCC did not uphold the complaint. It ruled that the ten-year-old's 'anti-social gesture and her proximity to her father, who was simultaneously giving a Nazi salute... marked this photograph as different from a more innocuous face-in the-crowd picture'. Indeed, it is certainly not the image that one would normally associate with a family day out.



Clause 6 of the PCC code provides that 'a child under 16 must not be interviewed or photographed on issues involving their own or another child's welfare unless a custodial parent or similarly responsible adult consents'. The PCC acknowledged the argument that the photograph could involve the child's welfare as it might relate to the way in which she was being brought up. However, it considered that, looking at it from a common sense perspective, and given the pair were at a large sporting event with the possibility that the child might have been photographed, it was 'not unreasonable for some in the media to assume that the complainant was unconcerned about the publication of pictures of him and his daughter using such gestures and that consent had therefore been implied'.



In contrast to Ofcom, the PCC found on these facts that the father responsible for the protection of that right could not complain if, by his own actions, he had failed properly to protect it. Had Mr Quigley been concerned about the publication of pictures of that nature, it said, 'there was nothing to stop the complainant from restraining his behaviour and that of his daughter'.



The PCC also emphasised an important point of principle, that it 'would not normally consider that a photograph of a child in a crowd at an FA Cup tie - a public event at which there would be many photographers and television cameras as well as tens of thousands of people - was intrusive or involved the child's welfare'. A straightforward reading is that, as a general rule, the face of a child is not intrinsically private.



While that may seem common sense, it does not appear that the press is confident that the case will always be so. Children of celebrities were once considered to be fair game, but now we see fewer pictures of them out and about in public with mummy and daddy without their faces blurred or pixellated. Although the PCC code says that 'editors should not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life', this does not mean that there is a blanket ban on the inclusion of baby celebrities, and the decision in the Quigley matter supports that. Publishers may simply be taking a commercial decision to avoid a barrage of aggressive letters from celebrities' lawyers.



But it may be that any such self-censorship is, in fact, unnecessary. Publishers may take some comfort from what the PCC went on to say: 'It was important for the commission to state that despite the voluntary and commendable restraint frequently shown by newspapers and magazines in their treatment of children, it is not the case that any picture of a child taken and published without the consent of the parent will always breach the code. The subject matter of the photograph is relevant, as is the context and manner in which the material is published and the way in which the photograph is taken.'



What is the difference between parents taking their children to court, where there is a reasonable expectation that they may be photographed, and a father taking his daughter to a football match, where the same can be said to be true? Both put their children in a situation in which they might be photographed and neither agreed to any publication, yet, in the case of the broadcaster, an invasion of privacy was found and a responsibility to guard against that invasion for the sake of the children emphatically stated, while, in respect of the publisher, no such invasion was found and the regulator left the matter firmly in the hands of the parent.



The European Convention on Human Rights guarantees various rights, including the right to life, the prohibition of torture and the right to liberty and security. Parents cannot waive these rights on behalf of their children. And government, in the guise of the police or social services, for example, will intervene in serious cases where parents are not fulfilling their duties to safeguard their children's rights by harming them or putting them at risk.



Is a credible extension that the responsibility for the protection of a child's rights can be a matter not only for the parents, the authorities, and the courts, but also the broadcasters? If a parent has failed to protect the privacy interests of his own child, should a broadcaster be censored for having had its own part to play in the invasion of the child's privacy? If so, and the media is to be admonished, should the parent not also be punished in some way? Can we envisage the broadcast of a trip down the red carpet for Madonna and Lourdes to be followed up by a visit to Mr and Mrs Ritchie from social services? Or perhaps that will soon only be acceptable provided the Queen of Pop adopts for her child the kind of protective face covering provided to Paris and Prince Jackson by their father, Michael Jackson.



Such scenarios are farcical. But the regulators' decisions show that the issues surrounding children and the media are not simple and that diverse, and perhaps even perverse, conclusions could be reached.



Whether we will see a two-tier approach evolving for broadcasters on the one hand and publishers on the other is unclear. That would certainly not be helpful to the courts, given that, by virtue of the Human Rights Act 1998, decisions of the regulators must be taken into account by the courts when considering whether to grant relief restraining publications.



There are few who would differ with the proposition that children are vulnerable and should be protected. Usually, their parents provide this protection, but from time to time they can fail to do so, knowingly or in error, and, as a result, a child's privacy can be invaded. While these cases are illustrative only and do not set either regulator's position in stone, they may be helpful in giving a steer as to the extent to which the media will be censored for any part it plays in any alleged invasions of a child's privacy. Those involved in the media, be they broadcasters, publishers or potential claimants, would be wise to add the PCC and Ofcom's complaint pages to their Internet 'favourites'.



By Amber Melville-Brown, David Price Solicitors and Advocates, London