Clauses Noted: 3, 10
Publication: Evening Times (Glasgow)
A man complained to the Press Complaints Commission that an article headlined "Sling your hookah!" published in the Glasgow Evening Times on 7 October 2011, intruded into his privacy in breach of Clause 3 (Privacy) of the Editors' Code of Practice. He also complained that the photographer had misrepresented himself in breach of Clause 10 (Clandestine devices and subterfuge) of the Code.
The complaint was not upheld.
The article reported that Glasgow City Council had launched a "crackdown" on shisha cafes who were flouting the UK smoking ban. The article included a number of photographs, including two showing the complainant smoking a hookah pipe in a Glasgow cafĂ©. The complainant said that he had understood the photographs were being taken for the purpose of "research", rather than publication in the newspaper. Furthermore, he had been informed that everything except the hookah pipe would be out of focus. The complainant explained that his identification in this context had led members of the community to question his personality and integrity. He contended that publication represented an intrusion into his private life.
The newspaper denied that the photographer had misled the complainant. It provided a statement from the photographer, asserting that he had clearly identified himself and his purpose to the group with which the complainant was seated. As a result of his request, some individuals who did not want to be photographed had moved away from the shot; however, the complainant had remained. The photographer explained to the complainant that the main focus would be on the hookah pipe, the rest of his body being out of focus. At no point did the complainant object to his taking photographs. The newspaper also provided a statement from the owner of the cafĂ©, who confirmed that the photographer had asked his permission before taking "quite a few" pictures and had made clear to him that the pictures might be published in the newspaper. It said that the story had referred entirely to the compliance by cafĂ©s with relevant legislation, and it had not cast doubt on the integrity or character of those who frequented them. It offered to remove the image from its website as a gesture of goodwill, but it did not accept any breach of the Code.
Under Clause 3(ii) (Privacy) of the Editors' Code of Practice, "Everyone is entitled to respect for his or her private and family life". In relation to photography, Clause 3(iii) stipulates that "It is unacceptable to photograph individuals in private places without their consent", and adds that "Private places are public or private property where there is a reasonable expectation of privacy".
The first question which the Commission had to consider under Clause 3 was whether the complainant would generally have "a reasonable expectation of privacy" in the cafĂ© where he was photographed. The Commission has previously ruled, in relation to a photograph taken in a small cafĂ©, that "Customers of a quiet cafĂ© could expect to sit inside such an establishment without having to worry that surreptitious photographs would be taken of them and published in newspapers" (Tunbridge v Dorking Advertiser). Its firm view remains that an individual is likely to have a reasonable expectation of privacy in such a place, notwithstanding that other members of the public may be present.
The next consideration under Clause 3 was whether the complainant had "consented" to being photographed. Both parties agreed that the complainant had allowed himself to be photographed but had been told that the photographs would focus on the pipe and that "everything else" would be "out of true focus" or "out of focus". The complainant had understood from this that he was not to be identifiable. In the view of the Commission, when an individual has consented to be photographed in a private place on condition that he will not be identifiable, publication of a photograph in which he was identifiable would normally amount to an intrusion into his privacy.
In the event, the sharpest focus of the published photographs had been on the pipe, but the complainant's features were readily identifiable. The Commission had to decide whether the photographer's comments amounted to an assurance that the complainant would be unrecognisable in the published photographs. This was an unusual and difficult issue, but the Commission ultimately reached the conclusion that they did not, and that it was therefore not possible to establish a breach of Clause 3 in this respect. In coming to this conclusion the Commission took into account the fact that the complainant could have asked for a specific assurance that he would not be recognisable, but had not done so.
Nevertheless the Commission wished to make clear its strong view that it was regrettable that the photographer had used an expression that had given rise to this confusion. The Commission took the opportunity to note that this incident illustrated the importance of full and open communication about the taking of photographs for publication, particularly in private places. It hoped that in future this and other publications would take steps to ensure that any conditions or assurances are agreed clearly in advance. Given the ongoing dispute in this case, it was right that the newspaper had removed these images from its on line archive: that was a proper response to the complaint.
The complainant contended that he had been further informed that the photographs would only be used for "research" as opposed to publication in the newspaper; the newspaper said that the photographer had clearly identified himself and made clear that the photographs were intended for publication in the newspaper. There was a conflict of evidence about this, which the Commission was not in a position to resolve. Accordingly it was unable to come to a conclusion on this aspect of the complaint.
Finally, the Commission considered the matter under Clause 10 of the Code, which is aimed at the obtaining of material by misrepresentation or subterfuge. The Commission was unable to establish a breach of this Clause, given that it appeared that the photographer had correctly identified himself, and that it was unable to resolve the conflict of evidence as to the purpose for which the photographs were to be taken.
The complaint was not upheld.
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