Messrs Pannone and Partners of Manchester complained on behalf of Michaelangelo and Rina Attard that photographs taken of them and their daughter and their subsequent publication in the Manchester Evening News on June 15 2001 intruded into their privacy in breach of Clause 3 (Privacy) of the Code of Practice and that of their daughter in breach of Clause 6 (Children). They also complained that the photographs were obtained in breach of Clause 9 (Hospitals) and Clause 11 (Misrepresentation).

The complaints were either rejected or not adjudicated.

The complainants are the parents of conjoined twins, one of which died after an operation to separate them. The surviving twin, Gracie, had remained in hospital for a number of weeks and her identity had been protected by a court order. The order was lifted so that the complainants could negotiate through a publicist with two newspapers and a television programme to sell exclusive rights to photographs of Gracie taken after 10th June 2001. The Manchester Evening News was not part of this arrangement but was nonetheless invited to the hospital to interview and take photographs of the surgical team on the day that Gracie left hospital. Before the exclusive photographs of Gracie were taken the MEN photographer was asked to leave. According to the complainants’ solicitors, the photographer was then told by a member of hospital staff that a further private photograph session would take place. The solicitors said that the photographer returned and took photographs of the complainants and their daughter, who were posing for the exclusive photographs, with a long lens and without their consent.

When the photographs were published, the complainants’ lawyers successfully obtained an injunction against further publication of the MEN photographs, partly on the basis that they had been taken in breach of Clause 3 of the Code of Practice, which says that the use of long lens photography to take pictures of people in private places without their consent is unacceptable. At a further hearing the ban on the unauthorised photographs was continued and it was made clear that any photographs not approved by the family were not permitted.

The complainants’ solicitors said that in taking the photographs with a long lens without the consent of the complainants and their daughter, the newspaper had breached Clause 3 and Clause 6 of the Code. The solicitors said that the judge to whom they had applied for an injunction had made it clear that the photograph had been taken in breach of the complainants’ rights to privacy. They said that when the photographs were taken the complainants were in a place where they had a reasonable expectation of privacy. The solicitors said that there was a breach of Clause 6 because that clause requires that journalists must not photograph children on subjects concerning their welfare without the consent of a parent. The solicitors also drew attention to Clause 9, which says that ‘the restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals…’. They further alleged that by pretending to have left the hospital after the invited photo-shoot, the photographer had given a deliberately misleading impression that he was not in the vicinity and that this contravened Clause 11.

The editor replied that his photographer had been invited to the hospital to take photographs of the team who had operated on the twins and that while there he had been told that the complainants were to pose for more pictures to be taken by a photographer representing the hospital. He then left and drove to a point on a nearby public road. The complainants appeared and posed outside the hospital, on a car park and within clear visibility of anyone on the public road. The editor said that the paper then waited until 15th June, when the complainants themselves went to court to apply for the original injunction to be lifted, before they published the picture. The court had agreed that Gracie could now be pictured and named but said that there was an exclusion on photographs that were taken before 10 June. The editor said that his photographs were taken on 13 June and not therefore covered by the new order and argued that it was the complainants themselves had allowed them to print the pictures by overturning the previous order. He said that the family were clearly putting themselves into the public domain which implied consent for publication of their identities and photographs - there could therefore be no breach of either Clause 3 or Clause 6. With regard to the complaint under Clause 9, the editor pointed out that the journalist had been at the hospital by invitation and had taken the photographs once he had left, from a public place when the family were in public view. The editor denied that the photographs had been obtained through subterfuge as the journalist had not misrepresented himself.

The Commission makes no finding under Clause 3 of the Code because the question of privacy had already been decided by the court. However, it concluded that none of the other complaints involved matters that breached the Code.

The Commission dealt firstly with the complaint under Clause 11. There was nothing to suggest that the photographer had obtained the picture by misrepresenting his identity or that he had obtained it through subterfuge. The fact that people may have thought that the photographer had left the site at the time that he took the photographs did not mean that taking them breached Clause 11. To say otherwise would be to imply that any photograph taken by an undetected or surreptitious photographer would have breached the Code.

Given that the picture was taken in a public place outside the hospital, the Commission considered that there was no breach of Clause 9, which is designed both to ensure that journalists obtain permission before entering non-public areas of hospitals and to protect the privacy of patients while they are in hospital, which was not relevant in this case.

The Commission then turned to the complaint under Clause 6. The court has already made its position clear with regard to the privacy rights of the whole family. However, Clause 6 - which relates to children and requires that journalists must not photograph children under the age of 16 on subjects concerning their welfare - deals with separate matters and was not specifically covered by the court’s findings. In finding that there was no breach of Clause 6 the Commission took into account two key factors.

First, it did not consider that the simple photographing of the child’s image was a matter that could reasonably be considered to concern her welfare - and it did not therefore require consent as set out in Clause 6. The Commission has made this clear before - notably in Donald v Hello! Magazine (PCC Report 52) - and saw no reason to deviate from this principle here. It is not the function of the Commission to seek to protect the financial position of complainants through the use of the privacy sections of the Code of Practice. Indeed, the Commission has always taken the common sense view that where a complainant releases of sells information or photographs then they may become disentitled to the protection of the Code in certain circumstances. Privacy is - in the Commission’s opinion - not a commodity which can be sold on one person’s terms.

Second, the Commission had to have regard to the fact that very similar photographs of Gracie were about to be published with consent in a number of media outlets. The Code specifically states in terms that mirror exactly the Human Rights Act that the Commission will have regard to the extent to which material has, or is about to, become available to the public. In this case the Commission could not ignore the fact that the material was about to become available to the public to a very significant extent.

The Commission’s decision under Clauses 6, 9 and 11 - after a thorough examination of all the evidence and taking into account the jurisprudence of the PCC, which editors are obliged to consider - was therefore different in principle from the attitude adopted by the court in relation to Clause 3. The Commission therefore concluded that there were strong reasons under Clauses 6, 9 and 11 to reject the complaints.

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The complainants also objected that articles accompanying the photograph were inaccurate in breach of Clause 1 (Accuracy). The newspaper had offered at an early stage to resolve this complaint by publishing the complainants’ objections to the piece but the offer was refused because the newspaper reserved the right to publish its own view opposite the article and would not undertake to publish it unedited. However, in the Commission’s view the offer was suitable in the circumstances and the Commission saw no reason to pursue this matter further.