Mr William Zachs of Edinburgh complained that coverage in the Sunday Mail about himself, his baby daughter and his partner during the week commencing 1 September 1996 gave details of their situation, named his daughter and revealed their address in breach of Clause 4 (Privacy) of the Code of Practice. He also complained that a newspaper representative disturbed his grandmother thereby harassing her, and used subterfuge to obtain from her what the newspaper described as an exclusive interview, in breach of Clauses 7 (Misrepresentation) and 8 (Harassment) of the Code of Practice.

The complainant had fathered a child, born to a surrogate mother in the U.S. and the baby was brought to Edinburgh to live with the complainant and his male partner. The complainant objected that, while the issues of surrogacy and homosexual parenting might be a matter for public debate, the particulars of the birth of his daughter were a private matter - publication of which was not in the public interest. He considered that publishing a photograph of the front of their house and giving the street name made them vulnerable. So too did an article headlined "STOP THIS EVIL BABY TRADE" which was illustrated by the photograph of another baby, prominently naming his own, saying she was born in America and cost a fortune and lives in Scotland with no mum ... only two gay dads , possibly putting his daughter at risk

The editor said the newspaper stood by its view that this was a story in the public interest illustrating its stance against what it saw as importing children for gay couples; the couple and the baby they had "bought" were news throughout Britain and the newspaper had legitimately followed up on what was already in the public domain. The editor disagreed that the coverage, including the photograph of the other, unnamed baby, could have put the complainant's daughter at risk. He also disagreed that the street number on the photograph of the house was legible to readers and he strongly denied that a reporter had misled the complainant's grandmother about his identity when he telephoned her at what the newspaper said was a reasonable hour one morning.

The unique circumstances of this case posed complex problems relating to privacy and public interest for the Commission to consider. In doing so, it judged this complaint solely on its merits and was concerned that its adjudication should not be seen as a precedent.

The Commission agreed with the newspaper that the twin issues of surrogacy and homosexual parenting are clear matters of legitimate public interest. It is right - and important - that the press reports and comments on them.

That said, the Commission also agreed with the complainant that the privacy of all those involved in this particular story was, in principle, subject to the provisions of Clause 4 of the Code. In particular, the Commission considered that privacy should attach to the infant involved as much as to a child or an adult: one of the aspects of privacy is how intrusion into it affects the unfolding lives of those involved, and is therefore arguably all the more important where an infant is concerned. Under the Code, intrusions into an individual's private life are only acceptable where there is a legitimate matter of public interest at stake; in practice, where those directly involved in a contemporary story in effect act to put private information into the
public domain, entitlement to privacy is also undermined.

Even though there was great pubic interest in this case and there was legitimate debate on an important issue, the Commission did not believe that, in principle, the newspaper needed to report all the details of the family's private life. However, the mother of the surrogate baby had herself put some information into the public domain.

The matter for the Commission to consider, therefore, was how much of that information the newspaper was right to publish. In doing so, it found that while the news of the birth and the details of the men's names had in effect been made public by one of those involved, it was unsatisfactory for the newspaper to have published the forenames of the infant and details of the men's address including a photograph of their house, regardless of whether the house number was legible or not. As details which added nothing to legitimate public debate - providing only colour to a story which could have been written without them - publication was not within the spirit of the Code.

With that important caveat, the Commission found - however - that overall the newspaper could not be censured for its reporting when a considerable amount of information was in the public domain; the complaint of intrusion into privacy under Clause 4 was therefore not upheld.

The Commission also considered the general complaints raised under Clause 8 of the Code and was greatly concerned to learn of the harassment experienced by the complainant and his partner as a result of the "media scrum" outside their Edinburgh home.

The Commission noted that such pressure inevitably resulted from the presence of a large number of journalists - from the broadcast as well as the print media - which to a large extent exacerbated the pressures on the family at a time when the stress of nurturing a new born baby would have been most acute. As in some other similar cases, the Commission believed this to be an example of collective if unintentional harassment - and it had great sympathy with the complainant and his family.

Although the Commission found no clear evidence of intended harassment of this type from the newspaper, and therefore made no finding on this part of the complaint, it will not hesitate to do so if in a future case it becomes apparent that an individual newspaper or reporter either played a leading part in collective unjustified harassment, or did not withdraw when individually asked to do so.

With regard to the specific complaint against the newspaper concerning the time and manner of the approach made to the complainant's grandmother, while the newspaper's account differed from her recollection, the Commission did not find that there was a sufficiently strong case made out for a breach of the Code under Clauses 7 or 8 and again made no finding.