Stewart Frazer complained to the Press Complaints Commission that an article headlined "Anger at young Hearts fan's banner baiting Hibs", published by The Scotsman on 30 January 2013 on its website, breached Clause 3 (Privacy) and Clause 6 (Children) of the Editors' Code of Practice.

The complaint was not upheld.

The photograph showed the four year-old son of the complainant - a Heart of Midlothian FC supporter - at a football match at the football ground of Hibernian FC, holding a hand-written sign reading "Dad this place is a s***hole!! 5-1". It had been posted by the complainant on his Facebook page and subsequently shared by Hearts fans. The article - which named the complainant but not his son, whose face was pixelated in the image published by the newspaper but not in the original - observed that the image had "stirred up a social media storm" and quoted comments on the controversy from the leader of a parenting course.

The complainant explained that the image was taken from Facebook, where he had originally posted the photograph in the mistaken belief that privacy settings were in place that would prevent its circulation beyond his Facebook friends. The complainant said he was unaware that people could access the image on his profile due to the fact he had "liked" a particular "fan page" on the website; he had been shocked when it was shared amongst users of the social networking site and appeared in the newspaper two days later. The complainant was concerned that although his son's face had been obscured by the newspaper, the photograph had been printed without his express permission and, in his view, the child was still recognisable. He was further aggrieved that the article included comment on the incident from a spokesperson from a parenting group. The complainant argued that as the newspaper had decided to publish criticism of his parenting skills, it should have allowed him the opportunity to reply, but no attempt to contact him was made.

The newspaper said that the complainant had published the photograph of his son - taken in a public place, namely a football ground - on Facebook and the image had been shared and discussed widely online. On one Facebook page for Hearts supporters the un-obscured photograph had been "liked" by 890 individuals and shared by more than 160. On the same Facebook page, the complainant had identified himself as the child's father and engaged in public debate about his action. The image had been also been disseminated to football fansites outside of Facebook.

The newspaper said that proper care was taken to ensure that the child could not be identified from the published image and it argued that it had merely republished an image that the complainant had placed in the public domain. While no breach of the Code was accepted, the newspaper explained that it had removed the online version of the article following a telephone call received from the child's mother.

Under Clause 6 (Children) of the Code, children under 16 must not be photographed on issues involving their welfare without the consent of a custodial parent or similarly responsible adult. While the Commission generally takes this requirement to apply to the publication of already existing photographs taken from other sources, in this instance the photograph had been distributed online before publication; indeed, the distribution of the picture online was the subject of the story. In such cases, the Code requires that the Commission has regard for "the extent to which material is already in the public domain".

The Commission accepted that the photograph raised issues that related to the complainant's son's welfare, albeit to a limited extent; this was emphasised by the comments made by the parenting expert, who expressed concern about the possible effect on him of the photograph online. There was, however, a countervailing public interest in publication, which turned on exactly the same point: the article's discussion of the potential risks for children and others of the free circulation of material through social networks. The Commission was persuaded that the publication of the photograph contributed directly to the public interest in this issue as a vivid example of the possible consequences, which could serve to inform other parents. The article had focused on this issue - rather than aiming to embarrass or ridicule the complainant's son - and the newspaper had taken the additional step of pixelating his face in order to mitigate the effect on him. In the full context - which included the presentation of the coverage; the public interest in the issue; the pixilation of the child's face; and the previous circulation of the image online - the Commission did not uphold the complaint under Clause 6.

The complainant had framed additional concerns under Clause 3 (Privacy), which states that individuals are entitled to respect for their private and family lives; he suggested that the coverage represented a failure to respect his family life. While the Commission noted that the complainant strongly disputed the criticism of his actions that had been aired in the article, it had ruled that there was a public interest in bringing this debate - in which the complainant had participated previously, on Facebook - to a wider audience. Taking the above points into account, the Commission was satisfied that the coverage did not demonstrate a failure to show due respect for the complainant's private and family life.

Relevant rulings:

Quigley v Zoo (2006)

A man v Farnham Herald (2012)