01722-17 HRH Prince Henry of Wales v Mail Online

Decision of the Complaints Committee 01722-17 HRH Prince Henry of Wales v Mail Online

Summary of complaint 

1. HRH Prince Henry of Wales complained to the Independent Press Standards Organisation that Mail Online breached Clause 1 (Accuracy) and Clause 2 (Privacy) of the Editors’ Code of Practice in an article headlined “Time to cool off! Happy (and hunky) Prince Harry enjoys a dip in the ocean as he and Meghan relax on the beach in Jamaica after his ‘wingman’s’ sun-drenched wedding”, published on 4 March 2017.

2. The article reported that the complainant and his girlfriend had attended a friend’s wedding in Jamaica. It was accompanied by a number of photographs, including several showing the complainant wearing swimming shorts on the beach, at a beachside bar and in the sea.

3. The complainant said that these images had been taken in circumstances in which he had a reasonable expectation of privacy, and while he was engaged in private activities unconnected to his public role, and unaware that he was being photographed. He had been on a private beach where paparazzi photography was not permitted, and where the nearest public place was more than 500 metres away. He considered that the grainy quality of the pictures demonstrated that they had been taken surreptitiously using a long lens camera.

4. The complainant said that the publication had made no attempt to seek his consent or to establish the circumstances in which the photographs had been taken before publication. He said that when he requested the removal of the images from the website, the publication had failed to act promptly. His representatives had complained about the images in writing the day after publication, and numerous calls had been made to the publication’s office, but had received no response for more than 24 hours. The complainant considered that no public interest was served by publishing the images.  

5. The complainant said, in addition, that by publishing the images, the publication had given the misleading impression that they were Code compliant, and that he would not object to their disclosure. The publication’s response to his complaint had represented a failure to correct a distortion promptly.  

6. The publication said that it had been provided with credible information that the complainant had been on a public beach at the time the photographs were taken; it had relied on that information and had published the images in good faith. The photographer had been 700 to 800 yards away from the complainant when he had taken the photographs, and he had used a 500mm lens.

7. The publication said that the images themselves appeared to confirm that the complainant had been in a public place, given that there were other holidaymakers on the beach engaged in normal holiday activities. There was also no visible security on the beach or signs indicating that it was not public property, and there was no branding visible on the beach furniture. As the photographs had not revealed intrinsically private information and had seemed innocuous, it had no reason to doubt the information it had been given. Furthermore, given that the complainant’s attendance at the wedding had been widely documented, it had not considered that there were any wider indications that the photographs would raise any concerns. It also noted that the images under complaint had been published widely in the US and in one UK magazine.

8. The publication said that it was unfortunate and regrettable that it had been misinformed about the circumstances in which the images had been taken; it had not been its intention to cause distress to the complainant, and it would take additional steps to verify such information in future.  It had chosen not to publish other photographs which had been taken at the wedding, in which it had considered that the complainant had a reasonable expectation of privacy.

9. The publication denied that it had failed to respond promptly to the complaint. As the complaint was made at the weekend, it had taken some time to establish the facts with the photographer who was based in the US. Once it had properly understood the position, it had promptly offered to remove the images from its website, it had apologised, and it had given its assurances that the images would not be republished.

Relevant Code provisions

10. Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

Clause 2 (Privacy)*

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, without their consent, in public or private places where there is a reasonable expectation of privacy.

Findings of the Committee

11. The complainant had been photographed during his leisure time on a private beach at a private resort. Indeed, the article itself stated that the complainant was staying at a private resort. While other guests may have been present at the time, the complainant was not carrying out official duties, and he was unaware that he was being photographed by the photographer who was positioned between 700 and 800 yards away, and had used a long lens camera. The Committee did not accept that the complainant could have been seen by members of the public outside the resort at this distance.

12. The images, which had been taken without consent, showed the complainant wearing swimwear and engaging in private leisure activities in circumstances in which he had a reasonable expectation of privacy. Photographing an individual in such circumstances is unacceptable, unless it can be justified in the public interest. The publication had not sought to justify the publication of the images in the public interest. Publishing photographs of the complainant engaged in private activities, without his knowledge and consent, represented a significant and unjustified intrusion. The complaint under Clause 2 was upheld. 

13. The publication of the images had not given the significantly misleading impression that they were compliant with the Code. The complaint did not engage the terms of Clause 1 (Accuracy).

Conclusion

The complaint was upheld.

Remedial action required

14. Having upheld the complaint, the Committee considered what remedial action should be required.

15. Where the Committee has upheld a complaint as a breach of Clause 2, the appropriate remedial action is the publication of an adjudication.

16. The adjudication should be published on the publication’s website, with a link to it (including the headline) being published on the homepage for 24 hours. It should then be archived in the usual way. The headline of the adjudication must make clear that IPSO has upheld the complaint, and refer to its subject matter; it must be agreed in advance.

17. The terms of the adjudication to be published are as follows:

Following an article published on Mail Online on 4 March 2017, headlined “Time to cool off! Happy (and hunky) Prince Harry enjoys a dip in the ocean as he and Meghan relax on the beach in Jamaica after his ‘wingman’s’ sun-drenched wedding”, HRH Prince Henry of Wales complained to the Independent Press Standards Organisation that Mail Online breached Clause 2 (Privacy) of the Editors’ Code of Practice. IPSO upheld the complaint and has required Mail Online to publish this decision as a remedy to the breach.

The article reported that the complainant had recently attended a friend’s wedding in Jamaica. It was accompanied by photographs of the complainant wearing swimming shorts on a beach, at a beachside bar and in the sea.

The complainant said that these images had been taken in circumstances in which he had a reasonable expectation of privacy, and while he was engaged in private activities unconnected to his public role. The photographs showed him wearing swimwear on a private beach; he had been unaware that he was being photographed; and he had not consented to the images’ publication. The complainant considered that no public interest was served by the article.  

Mail Online said that it had been provided with credible information that the complainant had been on a public beach at the time the photographs were taken, and it had published them in good faith. While it regretted that it had been misinformed, it did not consider that the photographs had revealed intrinsically private information. It also noted that they had been published widely in the US and in one UK magazine.

The Committee found that the complainant had been photographed in circumstances in which he had a reasonable expectation of privacy. He had not consented to the images’ publication, and Mail Online had not sought to justify their publication in the public interest. Publishing photographs of the complainant engaged in private activities, without his knowledge and consent, represented a significant and unjustified intrusion in breach of Clause 2. The Committee upheld the complaint.

The complainant also raised concerns under Clause 1 (Accuracy) but this was not upheld.  

18. On receipt of the Committee’s decision, the complainant took the opportunity to comment on the remedial action required, as permitted under IPSO’s regulations. He noted that the article under complaint had appeared at the top of the publication’s homepage, and suggested that the Committee’s decision should specify that the adjudication should therefore appear in the top three articles on the homepage.

19. The Committee considered that given the prominence of the original article on the publication’s website, and having regard for the seriousness of the breach and the need to ensure the publication’s right to editorial independence, the adjudication should first be published within the top fifth of the homepage. It should then be allowed to drop down the page in the normal manner, as more material is published, but must remain on the homepage for 24 hours.

Date complaint received: 06/03/2017

Date decision issued: 04/05/2017

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