The UK Independent Press Standards Organisation has upheld a complaint against a newspaper after it published an image taken from social media without consent picturing a man who had been arrested for murder with a woman described as a “friend” but who was “plainly not personally relevant to the story”.

The complaint

The woman complained to the IPSO that the way in which the newspaper had used the social media image breached Clause 9 (Reporting of crime) and Clause 3 (Privacy) of the Editors’ Code of Practice. Clause 9 of the Code provides that “(i) Relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story”.

The article’s headline referred to the accused’s relationship with a “glamour model”.  The image was described by the newspaper as the accused “with a friend”.  The complainant said the photograph was taken in 2006 and that she had had no contact with him after then.  Although it had not named her, the complainant argued that the newspaper had clearly identified her to family, friends and co-workers, which was intrusive and upsetting.  In addition, the complainant was concerned that the photograph’s relative prominence and size suggested that she was the glamour model mentioned in the headline.

She argued that there was a breach of Clause 3 of the Code as the photograph was taken in circumstances where she had a reasonable expectation of privacy – at a private event in the enclosed grounds of a college.  The complainant said that while the picture appeared to have been taken from a publicly-accessible Facebook page, she had not consented to its circulation; the page belonged to a friend, who was unaware that it was not protected by privacy settings.  This did not mean it was in the “public domain”.

The newspaper’s arguments

In order to avoid a breach of the Code, the newspaper was required to show that it was justified in identifying the complainant, either because the complainant was genuinely relevant to the story, or because – regardless of the complainant’s relevance – there was a public interest which justified publication.

The newspaper argued that in light of the serious allegations against the accused, there was a public interest in examining his life; and the photograph illustrated his apparent transformation of circumstances.  The caption referred to the complainant’s past connection with the accused but as she did not remain his “friend”, Clause 9 should therefore not apply.  In its view, those who would recognise the complainant would be aware that she had had no continued association with the accused.

The newspaper did not dispute the complainant’s account of the circumstances in which the photograph was taken, but said the individuals pictured had a limited expectation of privacy, and the content of the photograph was innocuous. Given this, and the fact that the Facebook album from which it was obtained was publicly accessible, it did not accept any breach of Clause 3.

The newspaper removed the photograph from its website as soon as it was aware of the complainant’s concerns, and apologised for having distressed her. It later removed the photograph from its editorial systems too and confirmed that there were no circumstances in which it imagined re-publishing it.

The IPSO Complaints Committee findings

The Committee upheld the complaint under Clause 9.

It stated that “regardless of the true nature of their connection, the caption to the large and prominent photograph described the complainant as a ‘friend'” of the accused and that “while the article, taken as a whole, made clear that the complainant was not the ‘glamour model’ cited in the headline, it nevertheless asserted a direct association between the complainant and the accused and “in a manner that squarely engaged the terms of Clause 9?. It further said that “no public interest could reasonably be regarded as justifying the intrusion” into the complainant’s privacy caused “by so prominently and publicly associating her with an alleged criminal”.

The Committee did not uphold the complaint under Clause 3.  It noted the complainant’s concern that the photograph was taken without consent from a Facebook page, but said the picture conveyed only the fact of her association with the accused about eight years ago, when they were at university. This was not in itself private, and it raised no additional issues for the Committee to consider beyond those which gave rise to the breach of Clause 9.

This case provides helpful guidance on the interpretation of the Code but it has relevance beyond newspapers and those bound by the specific rules of IPSO.  It is a reminder that whilst photographs and other content in social media may be easily accessible and apparently available “in the public domain” for unrestricted re-use, the legal and regulatory reality may be very different.  Use without permission may breach copyright, privacy or other rules so great care is always needed, especially when commercial media operations seek to re-purpose social media content.