Privacy and the PCC

A year when rights to privacy continued to preoccupy the
media culminated with a significant PCC ruling arising out of that
unlikely political sex saga, the alleged relationship between Kimberly
Fortier and Home Secretary David Blunkett.

Ms Fortier complained to the PCC that a Sunday Mirror article on 29
August 2004 headlined ‘Blunkett lover: It’s all over’ included a
photograph taken in a manner that breached Clause 4 (ii) (Harassment)
of the Society of Editors’ Code. She also complained that publication
of the image intruded into her privacy in breach of Clause 3 (Privacy)
of the Code and breached Clause 4 (iii) (Harassment) because the
photograph constituted ‘non-compliant material’.

Coverage of the story in mid-August led to a warning from the PCC
and her solicitors. On 26 August she was photographed while out walking
with her son in Los Angeles and a picture of her subsequently appeared
in the Sunday Mirror .

The paper argued (i)Ms Fortier was a public figure, (ii) it had been
alleged, without challenge, she had conducted an affair with the Home
Secretary and was therefore at the centre of a story legitimately in
the public interest, (iii) there was no harassment, the photographer
made only one approach, on a public road where there could be no
‘reasonable expectation of privacy’.

Ms Fortier argued it was known she did not wish to be photographed
and she was not a public figure, she had no official, governmental,
regulatory, legal or administrative function of any kind.

The PCC rejected her complaint.

They noted no complaint had been lodged about more general coverage of the alleged affair. They found:

Ms Fortier at no stage argued she was in a place where she had a
reasonable expectation of privacy when she was photographed. The PCC
does not generally consider publication of photographs of people in
public places a breach of the Code.
Exceptions might bemade if there are particular security concerns, or
in rare circumstances when a photograph reveals something about an
individual’s health that is not in the public interest.
There was no evidence of ‘intimidation, harassment or persistent
pursuit’, nor did there appear to have been questioning or telephoning,
to breach Clause 4 on harassment.
The fact that the paper had been warned off by the PCC and her
solicitors in mid-August did not mean that any subsequent approach
would breach the Code: here, the approach had taken place 10 days after
the request to desist, during which time there had been clear
developments in the story Whether or not she was a ‘public figure’, it
had been alleged publicly, and without complaint, that she was having a
relationship with a senior politician about whose life there was a
general public debate
In this context the publication of a photograph, which contributed to
the public debate and was taken in accordance with the Code at a time
when the story was developing, was not intrusive.

The central point of the Caroline von Hannover case in Europe was
that individuals could have a reasonable expectation of privacy even
when in public places, e.g. when with their children.

The PCC’s Fortier adjudication accepts specific circumstances may
mean a right to privacy can exist even in a public place, and the terms
of the Code seem wide enough to accommodate the Hannover decision.

The European decision seemed to take privacy a step further but
fears that the PCC Code would be amended or at least interpreted so as
to follow the European decision and restrict journalists might be
somewhat allayed by the Fortier adjudication.

Nick Armstrong is a partner in the Media Group at law firm Charles Russell.

Nick Armstrong

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