In an adjudication which betrays sensitivity on the part of the Press Complaints Commission to allegations of inconsistency, the Commission has upheld a complaint by the author J K Rowling against OK! Magazine concerning a picture of her daughter taken on a beach in Mauritius during a family holiday. Ms Rowling successfully relied on both clause 3 (privacy) and clause 6 (children) of the Code of Practice.
Even though OK! Magazine had submitted evidence that all beaches in Mauritius were public by law, and had cited the PCC decision concerning Anna Ford, the Commission accepted that the beach was not overlooked by other holiday apartments and that the family had deliberately chosen low season to avoid unwanted attention. Since the Code affords special protection to children, the Commission found that publication of the photographs of the complainant’s daughter breached clause 3.
This contrasted with the Anna Ford decision where the Commission found that because the beach was generally accessible to the members of the public, and was overlooked by apartments, there was no reasonable expectation of privacy. Furthermore, in the Anna Ford adjudication the complainants were adults rather than children.
As to the complaint under clause 6, dealing specifically with children, the Commission rejected the comparison made by the solicitors acting for OK! Magazine with the Donald adjudication, where a mere picture of a child in a pram in public was held not to be a breach of clause 6. The Commission considered that since the child was in swimwear, of school age, and therefore vulnerable to the comments of her peers, and had also suffered embarrassment as a result of the photograph, publication of the picture was a breach of the Code.
The adjudication illustrates the difficulties faced by celebrities and their families in judging what the Commission will consider to be a place which offers them “a reasonable expectation of privacy”. It seems that to protect their children they must find (for example) a beach of that special type favoured by the Commission in this decision, rather than the one in the Anna Ford adjudication.
For photographers who wish to take long lens photographs of the families of celebrities, or editors who wish to publish those pictures, there is still very little disincentive to do so while those who are the subject of photographs choose to go to the Press Complaints Commission rather than the courts. However, the growing privacy jurisdiction and the power to prevent further publication and award compensation are likely to make the courts an increasingly popular venue for complaints of press intrusion.