Ruling

04533-16 Representatives of Sophia Murray v Telegraph.co.uk

    • Date complaint received

      24th November 2016

    • Outcome

      No breach - after investigation

    • Code provisions

      2 Privacy, 3 Harassment, 6 Children

Decision of the Complaints Committee 04533-16 Representatives of Sophia Murray v Telegraph.co.uk

Summary of Complaint

1. Representatives of Sophia Murray complained to the Independent Press Standards Organisation that Telegraph.co.uk breached Clause 2 (Privacy), Clause 3 (Harassment) and Clause 6 (Children) of the Editors’ Code of Practice in an article headlined “Wimbledon makes an exception on ‘no baby’ rule as Kim Sears brings daughter Sophia to cheer on Andy Murray”, published online on 29 June 2016.

2. The article reported that Andy and Kim Murray’s four-month-old daughter, the complainant, had “entered the All England grounds for her first grand slam tournament”. It reported that the complainant was understood to have spent her father’s match in the crèche offered to competitors. The article was accompanied by two photographs of the complainant’s mother pushing the complainant in her pram. In one of these photographs, the top of the complainant’s head was visible, but occupied a relatively small portion of the frame.   In the other image, the pram was photographed from the side, such that the complainant was not visible apart from her foot.

3. The complainant’s representatives said that the taking and publication of photographs of the complainant in a pram, without the knowledge or consent of her parents, 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 newspaper’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.

4. The complainant’s representatives said that images of the complainant had not been released by her parents. They said that the dissemination of a child’s otherwise unpublished image, against the express wishes of her parents, was likely to cause harm and distress.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.

5. The newspaper said that during the Wimbledon fortnight, the All England Club is one of the most filmed and photographed places in the world, and noted that the 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”.

6. The newspaper said that the complainant entered the tournament via Gate 16, an entrance used by the media. It said that the photographer who took the photographs subject to this complaint had no prior knowledge of the complainant’s arrival, maintained a distance of approximately 50m from the gate, and made no attempt to follow the complainant and her mother. The newspaper said that once the complainant had entered the gate, she was in an area accessible to anyone authorised to be within the grounds during The Championships. It said that the photographer was permitted to operate in the area from which he took the photographs subject to this complaint. The newspaper said no identifying features of the complainant were visible in the photographs it published, and that the complainant did not have a reasonable expectation of privacy.

7. The newspaper denied that the photographer followed the complainant’s mother prior to her arrival at Wimbledon. It denied that the complainant had been harassed by the taking of the published photographs, and noted that the complainant’s representatives had said that the complainant and her mother were unaware of the photographs being taken. 

8. The complainant’s representatives said that before the photographs were 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

10. 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

11. 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 photographs 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.

12. 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 people entering via this gate on the same morning; there was no suggestion that the photographer had targeted, or sought-out the complainant.

13. 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 her face was only partially visible, the Committee did not consider that the complainant was recognisable from the photographs published by the newspaper, or that they disclosed any identifying or private information about her.

14. Having regard for all these factors, the Committee concluded that the nature of the photographs and 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.

15. 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.

16. 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 newspaper’s publication of the photographs was such a case, and this aspect of the complaint did not raise a breach of Clause 3.

17. The information the photograph 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 photographs from a parent was required under Clause 6 (iii). The Committee did not establish that the newspaper had published details of the complainant’s private life, such as to require justification. As such, there was no breach of Clause 6 (v). There was no breach of Clause 6.

Conclusions

18. The complaint was not upheld.

Remedial action required

19. N/A

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