Mr William Zachs of Edinburgh complained that coverage in The Express about himself, his baby daughter and his partner during the week commencing 2 September 1996 gave details of their situation, named his daughter and revealed their address, all in breach of Clause 4 (Privacy) of the Code of Practice. He also complained that a photograph of his partner published in the newspaper was taken on private property and that his partner's sister was also harassed, both in breach of Clause 8 (Harassment). The complainant also alleged that certain of the published details about his daughter's birth were inaccurate in breach of Clause 1 (Accuracy).

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 articles included a prominent interview with the surrogate mother and details of how the pregnancy had been arranged, the complainant's background and that of his partner, comments from members of the complainant's family and general discussion of the issues such arrangements raised. 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.

The newspaper replied that details of the highly unusual parenting, including the names of the complainant, his daughter and his partner were already in the public domain when the newspaper first covered the story - and that their identities were not separable from the general debate on the issues involved. While it was not a matter of public interest if two men lived together, it became so if one of them fathered a child by a surrogate mother so the child could be brought up by the two men as their own - raising several serious, fundamental, moral and possibly legal issues.

The newspaper also commented that despite the complainant placing great importance on his personal privacy and his claims that he deeply resented requests for photographs of his family, he and his partner posed, holding the baby, for a freelance photographer and gave permission for syndication. Further, with regard to the published photograph of their house, the complainant had acknowledged that care had been taken by the newspaper to obliterate the street number (although the street name was given).

The newspaper also said that all its enquiries were made courteously and that staff had not "doorstepped" the complainant's home nor used long lenses when taking photographs. The photograph of the complainant's partner had been taken from the public footpath and while the reporter who had visited the man's sister admitted reasonably persistent questioning, harassment or any attempt to prevent the woman closing her front door was denied.

Before dealing with the substance of the complaint, the Commission first considered the complaint of inaccuracy. The complainant had denied that his partner's name appeared on the baby's birth certificate. However, the newspaper explained that most of the details in question were given by the mother when interviewed and were subsequently published in good faith. Furthermore, if the complainant's partner was regarded by him as a parent to his daughter, then the complaint about the birth certificate did not appear significant. The Commission did not therefore consider any inaccuracies were so significant within the coverage as a whole to breach Clause 1.

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 individuals 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 public 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, as already indicated, the mother of the surrogate baby had herself put some information into the public domain.

(The Commission noted that the complainant and his partner posed for a photograph with their daughter some time after the original stories, but believed that this was brought about both by force majeure of the media scrum and on the advice of their Member of Parliament. Such correct action - in circumstances which are dealt with below - was not a retrospective trump card for invasion into privacy, ad the Commission did not therefore take this into account in making its finding.)

The matter for the Commission to consider, therefore, was how much 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 insatisfactory 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 the fact that the street number was obliterated. 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 complaints of harassment the Commission did not find evidence for this if the newspaper's photograph of the complainants partner was taken from the pavement. Nor did the approach made to his sister constitute harassment, albeit that the newspaper admitted the reporters line of questioning had been reasonably persistent. While the woman's recollection of the visit varied from the reporters account, the Commission found insufficient evidence that the reporters persistence was so great as to breach the Code. The specific complaints under Clause 8 were therefore rejected.