The Press Complaints Commission (“PCC”) has issued a series of bad privacy decisions on complaints by Chris Huhne and Carina Trimingham against five newspapers about the publication of photographs showing them in the grounds of an open prison. The PCC found that these long lens photographs of the couple in a private place did not invade their privacy.
The complaints related to the Daily Mail, the Daily Mirror, The Daily Telegraph, The Sun and Sunday Mirror. The reasoning in each of these decisions is the same and the Telegraph decision can be taken as an example.
On 1 April the Daily Telegraph published two articles illustrated with photographs of Mr Huhne walking in the grounds of HMP Leyhill: a report in its print edition with the headline “Huhne’s not-so-hard time in the ‘Savoy of slammers’“, and a comment piece on its website headlined “Prison isn’t working for Chris Huhne, or for us”. The print article had also included a headshot of Ms Trimingham taken while she was visiting the prison. On 5 May a further article headlined “Chris Huhne enjoys prison kiss with partner Carina Trimingham” was accompanied by a photograph of the complainants kissing on a bench in the grounds of the prison.
The photographs were taken without without consent, from public locations around an open prison. Mr Huhne and Ms Trimingham were in places where they were visible to other prisoners or visitors. He had been walking in the grounds and Ms Trimingham had been leaving the visitor centre and returning to the car park. The photographs had all been taken from a public footpath running round the prison. locations in which any member of the public could be positioned.
Mr Huhne and Ms Trimingham complained of a breach of clause 3 (Privacy) of the Editors’ Code of Practice provides that
“i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual’s private life without consent. Account will be taken of the complainant’s own public disclosures of information.
iii) It is unacceptable to photograph individuals in private places without their consent.
Note – Private places are public or private property where there is a reasonable expectation of privacy”.
The PCC’s reasons for rejecting the complaint are in two parts.
First, the PCC said said that, because “the photographs had all been taken from locations in which any member of the public could be positioned“, the locations in which the complainants had been photographed were not “private places”. This is an obvious fallacy. What is unacceptable is the photographing of people who are in private places. The fact that a photographer with a long lens can take a photograph of somewhere does not transform it from a private to a public place.
Second, the PCC said that the publication of the material did not represent an intrusion into private life. This was because Mr Huhne’s trial and incarceration and his relationship with Ms Trimingham were “well-established in the public domain“. As a result, it was said that the photographs and articles did not appear to pose any potential intrusion into private life and did not reveal any additional information about the complainants.
But this reasoning misses the point. The case is not about disclosing information but about publishing photographs. It is well established
“Special considerations attach to photographs in the field of privacy [and] … the camera and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographed could reasonably expect that their appearances or actions would not be brought to the notice of the public” Douglas v Hello! ( QB 125)
What was objectionable in this case was not the conveying of the information that Mr Huhne was being visited by Ms Trimingham in prison but their appearance when they were in a private place. They could reasonably expect that their appearance and actions when were in the open prison would not be brought to the notice of the public and published in the newspapers. The “failure to respect” the private lives of complainants was the result of the taking and publication of the photographs by the newspaper.
So, the PCC should have held that there had been a prima facie breach of clause 3 and should then have gone on to consider “public interest”. On this issue the press arguments were easy to dispose of. Roy Greenslade sets out the public interest justification provided by another newspaper, the Mail:
“The fact that Mr Huhne, a former cabinet minister who had been jailed for perverting the course of justice and had been swiftly transferred to a low-security prison with an easy-going regime – where he appeared to be happy – and afforded enjoyable visitations with his partner was information that it was clearly in the public interest to publish.”
This is nonsense. There is no “crime or serious impropriety” being exposed, no preventing of the public being misled.
As Roy Greenslade says:
The couple’s relationship was a matter of record. Nothing new emerged from the publication of the pictures. They did not suggest happiness to me. They were, in a sense, innocuous. That’s why I believe there was no news value in publishing them. We learned nothing from the images. The only intent was to heap a little more humiliation on an already humiliated couple.
This is the conclusion that the PCC should have reached: that these photographs were a breach of clause 3 of the Code and that there was no public interest justification for their publication.
Once again, the PCC has failed victims of press intrusion. It has failed to take action against the powerful national newspaper groups who have gratuitously set out to embarass and humiliate.