04531-16 Representatives of Sophia Murray v Mail Online

Decision of the Complaints Committee 04531-16 Representatives of Sophia Murray v Mail Online 

Summary of the complaint

1. Representatives of Sophia Murray complained to the Independent Press Standards Organisation that Mail Online breached Clause 2 (Privacy), Clause 3 (Harassment) and Clause 6 (Children) of the Editors’ Code of Practice in an article headlined “Baby’s first Wimbledon! Kim Murray takes four-month-old daughter Sophia to watch her dad Andy win his first round match in three straight sets”, published online on 28  June 2016, and in an article headlined “Murray’s three-hour ordeal after his matches: Ice baths, 50 pieces of sushi and a gruelling session with ‘The Back Whisperer”, published online on 1 July 2016.

2. The 28 July article reported that Andy and Kim Murray’s four-month-old daughter, the complainant, had attended the Wimbledon tennis tournament for the first time. It was accompanied by a number of images of the complainant being pushed in her pram by her mother.  In two of these images, the top of the complainant’s head was visible, although occupied a relatively small portion of the frame. In two other images, the complainant’s mother was pushing the pram, and only the complainant’s foot was visible.  Two other images simply showed the complainant’s mother with the pram. 

3. The 1 July article largely reported on the complainant’s father’s post-match routine.  However, the article also reported that “while she may be missing Daddy, there’s no question of hardship for baby Murray”, and explained that the Wimbledon crèche had recently been upgraded.  It was accompanied by two images of the complainant being pushed in her pram by her mother, in one of which, the top of the complainant’s head was visible.

4. The complainant’s representatives said that the taking of photographs of the complainant in a pram, without the knowledge or consent of her parents, and publication of the photographs, was an intrusion into the complainant’s private and family life. They said that Mrs Murray was attending Wimbledon to support her husband, and that in order for her to most appropriately care for the complainant, as a nursing mother, she needed to take her young daughter with her. The complainant’s representatives said that the publication’s actions interfered with the complainant’s right to be cared for in the manner deemed most appropriate by her parents, without being subject to photography, and that as a consequence of the photographs being published, arrangements were made for the complainant to be looked after at home, which disrupted her feeding arrangements.

5. The complainant’s representatives said that images of the complainant have not been released by her parents, who had previously made it clear to the publication that their clients objected to photographs of the complainant being taken and published. 

6. The complainant’s representatives said that the dissemination of a child’s otherwise unpublished image, against the express wishes of her parents, was likely to cause harm and distress. In addition, they said that publication of such material creates a market for intrusive photographs of their client, and encourages harassing conduct by paparazzi photographers. They said that when the complainant and her mother arrived and left Wimbledon that day, they were jostled and pushed by a group of unknown photographers. They said that in these circumstances, the taking and publication of the photographs constituted harassment.

7. The publication said that the complainant did not have a reasonable expectation of privacy in the circumstances in which the photographs were taken. It said that the complainant had entered Wimbledon, a high profile public event, via Gate 16, which is an entrance used by the media, and where press are routinely situated. The publication said that the photographer took the photographs from a position where he was entitled to be, standing approximately 50m from the gate when the complainant arrived. The publication said that the photographs of the complainant had been taken from the same spot in previous years.  The publication noted that the Wimbledon conditions of entry state that during the tournament, photography takes place in the Grounds, and that “by your presence at The Championships, you grant your permission, free of charge, for your image …to be included in pictures”.

8. The publication said that the photographer did not know that the complainant was being taken to a crèche, but that this did not make her arrival at Wimbledon a private activity. It said that the complainant was not identifiable in the images, and that the images did not contain information about her private life, or relate to her welfare. 

9. The publication said that the complainant was not targeted; it said that the photographer who took the photographs subject to this complaint was unaware that the complainant and her mother would be arriving at Gate 16 at the time in question.  It said that the photographer made no attempt to follow the complainant, and denied that the complainant was harassed.

10. The publication said that the 1 July article was published before it was made aware of the complaint against the 28 June article.  The publication said it was aware of a Private Advisory Notice circulated by IPSO on the complainant’s behalf on 29 June, containing the complainant’s parents’ request that they do not consent to the publication of photographs of the complainant. The publication said that due consideration was given to the notice, prior to publication of the 1 July article, but that it was advisory, and did not prevent photography where in circumstances where the complainant did not have a reasonable expectation of privacy.

11. The complainant’s representatives said that before the photograph was taken, and in response to Kim Murray’s concern that her daughter not be photographed, Wimbledon had specifically suggested that they use Gate 16 as it would be quiet and free from problems. The complainant’s representatives said that Gate 16 is described by Wimbledon as a “private and contractors” entrance, and said that the photographer was not in an approved position.

Relevant Code Provisions

12. 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.

Clause 3 (Harassment)

i) Journalists must not engage in intimidation, harassment or persistent pursuit. 

ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.

iii) Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other source.

Clause 6 (Children)

i) All pupils should be free to complete their time at school without unnecessary intrusion.

ii) They must not be approached or photographed at school without permission of the school authorities.

iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child's interest.

v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life.

Findings of the Committee

13. Whether an individual has a reasonable expectation of privacy is highly sensitive to the facts of a case. In this instance, the complainant was a very young child. She could not be described as a public figure, and neither had her parents sought publicity for her. In addition, she was, at the time she was photographed, being taken by her mother, in a pram, to the Wimbledon crèche. The complainant’s representatives explained that, as a consequence of the publication of the photograph under complaint, the complainant’s mother had made the decision that those childcare arrangements had to be changed. All these factors supported the complainant’s representative’s position that the complainant had enjoyed a reasonable expectation of privacy in relation to the taking and publication of the photographs.

14. At the same time, the complainant was being taken by her mother through a press entrance to Wimbledon; a major sporting event where there would inevitably be a very large number of spectators, and photographers. While the gate used by the complainant was not a ticket-holders’ entrance, it was accepted that it was a public location, and it appeared that photographers were allowed to stand in a position overlooking the gate. Photographers had taken photographs of the complainant’s mother entering via this gate in previous years, and the Committee noted that the photographer who took the photographs subject to this complaint had taken a number of other photographs of people entering via this gate on the same morning; there was no suggestion that the photographer had targeted, or sought-out the complainant.

15. At the time of the photography, the complainant was simply being pushed in a pram, and while the Committee accepted that this showed her engaged in a family activity relating to her care, that activity was relatively unremarkable. Furthermore, as a result of the complainant’s age, and the fact that her face was only partially visible, the Committee did not consider that the complainant was recognisable from the photographs published by the publication, or that they disclosed any identifying or private information about her.

16. Having regard for all these factors, the Committee concluded that the nature of the photographs and the circumstances and location in which they were taken meant that the complainant did not, at that time, enjoy a reasonable expectation of privacy. As such, neither the taking nor publication of the photographs breached Clause 2. The Committee emphasised that this finding was highly specific to the circumstances of this case, and particularly the fact these photographs were taken within the grounds of Wimbledon during The Championships.

17. The Committee noted that the complainant’s parents had made clear their position that they did not consent to publication of photographs via IPSO, prior to the publication of the 1 July article. However, in circumstances where the Committee did not establish that the complainant had a reasonable expectation of privacy, the absence of consent for publication did not give rise to a breach of Clause 2.

18. The photographs subject to this complaint were taken without the knowledge of the complainant’s mother, and there was therefore no suggestion that the photographer had continued to photograph the complainant after being asked to desist, or that the photographer’s behaviour had otherwise harassed the complainant.

19. The Committee did not consider that the act of publication of the photographs, in the circumstances, constituted harassment under the terms of Clause 3. Clause 3 generally relates to the conduct of journalists in the news gathering process. Publication of information would only represent a course of conduct such as to represent harassment under the terms of Clause 3 in exceptional circumstances. The Committee did not consider that publication’s publication of the photographs was such a case, and this aspect of the complaint did not raise a breach of Clause 3.

20. The information the photographs contained about the complainant, her arrival at Wimbledon, or being pushed in a pram on her way to the Wimbledon crèche were not issues involving her welfare, such that consent for the photograph from a parent was required under Clause 6 (iii). The Committee did not establish that the publication had published details of the complainant’s private life, such as to require justification. The terms of Clause 6 (v) were not engaged. There was no breach of Clause 6.

Conclusions

21. The complaint was not upheld.

Remedial action required

22. N/A

Date complaint received: 29/06/2016
Date decision issued: 28/10/2016