The Press Complaints Commission’s rejection of a complaint by the parents of a surviving Siamese twin is likely to drive privacy complainants away from the PCC and towards the court, since it has found against the complainant on seemingly technical grounds.
The complaint was by the Maltese parents of the surviving Siamese twin who was brought (with her sister) to this country for surgery which was aimed at saving their lives. The complaints were of an intrusion into the child’s privacy (Clause 3 of the PCC Code), of the photographing of a child (Clause 6), that the photographs were taken in hospital grounds (Clause 9), and that they were obtained by misrepresentation (Clause 11).
The parents complained to the PCC when the Manchester Evening News published photographs of the girl taken with a long lens at the hospital where she was operated on. The identity of the surviving twin had been protected by a court order, which was then lifted to enable the parents to sell exclusive rights to the photographs of the child in order to fund her future care. The PCC did not rule in the privacy complaint because it had already been decided by the court – in the parents’ favour. The PCC appeared not to challenge the court’s view that it was appropriate to protect the privacy and welfare of a very young and vulnerable child.
Despite this, it did not uphold the complaint about a photograph taken on hospital property in circumstances where (to quote the PCC), “the photographer was … told by a member of the hospital staff that a PRIVATE photograph session would take place” (emphasis added). It is difficult to imagine a more clear example of a photograph being taken on “private property where there is a reasonable expectation of privacy” (from Clause 3 of the Code).
The PCC also rejected the complaint because of the deal sanctioned by the court for the release of the photographs taken in the private session. “Privacy is – in the PCC’s opinion – not a commodity which can be sold on one person’s terms”. It appears then that the PCC will not censure a newspaper even where a court order protecting the child’s privacy was varied in order to allow the financial benefit generated by the public interest and concern about the child’s welfare to be enjoyed by the child.
Another reason given by the PCC for the rejection of the complaint was the section of the Human Rights Act concerning the extent to which publication of the material is imminent, or has taken place. But this is a section of the Human Rights Act dealing with interim injunctions, i.e. injunctions to prevent publication before the merits of a legal claim can be fully determined. It is difficult to see the relevance of this provision to a complaint about the conduct of a newspaper where publication has already taken place.
Following the Anna Ford decision (which may be difficult for the PCC to reconcile with its as yet unpublished decision concerning the author J K Rowling), complainants are increasingly likely to turn to the courts where issues of privacy are concerned. This is inevitable if the PCC is going to take quasi-legal and technical points against complainants in the name of press freedom.