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ABSTRACT
In recent years, a number of high-profile privacy cases involving children have come before the English courts. This article draws on developments from ‘PJS v News group, Weller v Associated Newspapers’ and ‘Murray vExpress Newspaper’. In these cases, the courts considered concepts of welfare and well-being when balancing a child’s article 8 right to privacy with the article 10 right to freedom of expression for the media to reporton matters involving or affecting children. The article argues that by contrast, press regulation and its enforcement sometimes lag behind legal developments. The article draws on comparative research of fifty-seven press codes from press regulators around the world to identify patterns and gaps in ethical press standards regarding the representation of children. The article recommends ways to enhance the relevance and robustness of press regulation to better protect and promote the rights and interests of children.
Acknowledgements
We are grateful to Dr Julie Doughty, Lecturer in Law at the School of Law and Politics, Cardiff University, and to Professor Sonia Livingstone OBE, Professor of Social Psychology in the Department of Media and Communications at the London School of Economics, for their help and advice in preparing this article.
Disclosure statement
Brigit has previously worked at IMPRESS. Maire is on the Board of IMPRESS and is the Chair of the IMPRESS Code Committee.
Notes on contributors
Brigit Morris is an Australian lawyer. Brigit worked at Impress, the Independent Monitor for the Press during the development of the Impress Standards Code. Impress is an independent, self-regulatory press regulator, recognised by the Press Recognition Panel as an approved regulator.
Máire Messenger Davies is Emerita Professor of Media Studies, at Ulster University, Northern Ireland, UK. A former journalist, she has a PhD in Psychology and has researched and written about the relationship between children and media for many years, Her most recent book on this relationship is Children, Media and Culture, (2010). Professor Messenger Davies is on the Board of Impress. She is also the Chair of the Impress Code Committee which developed a new Standards Code for approval by the Impress Board – see www.impress.press/standards/impress-standards-code.html.
Notes
1 IPSO Resolution Statement, ‘A Woman v Mail Online 01689–17’ <www.ipso.co.uk/rulings-and-resolution-statements/ruling/?id=01689-17>. This was a mediated outcome, which means that IPSO’s complaints committee was not asked to make a decision as to whether the news story breached the Editors’ Code of Practice.
2 This article is limited to discussing press codes that regulate print newspapers (and their online editions). While there is a wealth of research on broadcasting codes, in the interests of clarity, this article focuses on press codes and press regulation. The views expressed in this paper are those of the authors only.
3 See Appendix for a full list of the fifty-seven press codes.
4 Lara Fielden, ‘Regulating Press: A Comparative Study of International Press Councils’ (Reuters Institute for the Study of Journalism, Oxford University, 2012) <https://reutersinstitute.politics.ox.ac.uk/sites/default/files/2017-11/Regulating%20the%20Press.pdf> accessed 23 January 2018. As explained by Heawood and Morris, aside from the work of Lara Fielden there is a dearth of qualitative studies of international press codes: J Heawood and M Morris ‘Press Codes and the Spirit of Equalities Legislation: Implementing Leveson’ (2016) 21 Communications Law 32.
5 PJS v News Group Newspapers Ltd [2016] EWCA Civ 393; [2016] UKSC 26; Murray v Express Newspaper [2008] EWCA Civ 446; Weller & Ors v Associated Newspapers Ltd [2014] EWHC 1163 (QB) (16 April 2014); EWCA Civ 1176. Associated newspapers sought permission to appeal the Court of Appeal’s decision but was refused permission by the Supreme Court on 23 March 2016.
6 See, for example, Sonia Livingstone and Brian O’Neill, ‘Children’s Rights Online: Challenges, Dilemmas and Emerging Directions’ in Simone van der Hof, Bibi van den Berg and Bart Schermer (eds), Minding Minors Wandering the Web: Regulating Online Child Safety (Information technology and law series 24, Springer with T. M. C. Asser Press 2014).
7 Impress Code, cl 3.1; Editors’ Code of Practice, cl 6(iii) and (iv).
8 Eric Barendt, Anonymous Speech (Hart Publishing, 2016) 92.
9 Lisa M. Jones, David Finkelhor and Jessica Beckwith, ‘Protecting Victims’ Identities in Press Coverage of Child Victimization (2010) 11 Journalism 347.
10 Marion Oswald, Helen James and Emma Nottingham, ‘The Not-So-Secret Life of Five-Year-Olds: Legal and Ethical Issues Relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media (2016) 8 Journal of Media Law 198.
11 ibid, 199.
12 ibid, 205.
13 ibid, 226.
14 ibid, 200.
15 Julia Black, Principles Based Regulation: Risks, Challenges and Opportunities (London School of Economics 2007) 3.
16 The Data Protection (Designated Codes of Practice) (No 2) Order 2000.
17 Murray v Express Newspapers [2008] EWCA Civ 446, [36].
18 Campbell v MGN Ltd (No 2) [2005] 4 All ER 793, [100].
19 In Re S (FC)(A child) [2004] UKHL 47, [17].
20 Weller [2015] EWCA Civ 1176, [31].
21 Warby, Moreham and Christie (ed) (2011) in Tugendhat and Chrisite's The Law of Privacy and the Media (2nd edn, Oxford University Press).
22 PJS v News Group Ltd Newspapers [2016] UKSC 26, [72] per Lady Hale (with whom Lord Neuberger, Lord Mance and Lord Reed agreed).
23 ibid.
24 Murray v Express Newspapers [2008] EWCA Civ 446.
25 See e.g. The Court’s discussion of the impact of disclosure on the claimant’s children in ERY v Associated Newspapers Limited [2017] EMLR 9, [71]; Khuja v Times Newspapers Ltd [2017] 3 WLR 351, [34].
26 Re JR38 [2016] AC 1131.
27 PJS v News Group Newspapers Ltd [2016] EWCA Civ 100 (22 January 2016), [61].
28 ETK v News Group Newspaper Ltd [2001] EWCA Civ 439, [17].
29 V v Associated Newspapers Ltd & Ors [2016] EWCOP 21 (25 April 2016).
30 ibid, [30]–[31].
31 Issued on 19 April 2017. The complaint was not upheld.
32 IPSO complaint decision 14261-16 Rooney v Daily Mail, para 3.
33 ibid, para 12.
34 This decision was based on the extent of information via social media that Mr Rooney and his wife had already placed in to the public domain about their son.
35 Weller [2015] EWCA Civ 1176, [78], Lord Justice Tomlinson.
36 ibid, [65].
37 ibid, [74].
38 An Inquiry into the Culture, Practices and Ethics of the Press, (HC 2012, 780-I) 61, para 4.2 <www.gov.uk/government/uploads/system/uploads/attachment_data/file/270939/0780_i.pdf> accessed 23 January 2018.
39 ibid, para 4.14.
40 Australia, Hong Kong, Turkey, Venezuela, Peru, Guatemala, Colombia, Brazil, Netherlands, Slovakia, Switzerland, Iceland, Latvia and Portugal.
41 South Africa, Editors’ Code of Practice, Cambodia, Bhutan, Namibia, Maldives, United Arab Emirates, Rwanda, Nigeria, Norway, Bahrain, Cyprus, Indonesia, Cambodia, Chile. Malta’s Code of Ethics provides that ‘any publication which involves the naming of a child is prohibited’. This is not restricted to court reporting.
42 New Zealand, South Africa, Denmark, Canada, Guardian newspaper, USA Society of Professional Journalists, Cambodia, Germany.
43 The UK broadcasting regulator Ofcom has a particular legal responsibility to promote media literacy, and has some specific guidelines which can be helpful for those working in other media.
44 Impress Standards Code, clause 3.1. According to Ofcom: ‘Children’s commercial literacy increases fairly steadily from age 8 to young adulthood. Specifically, they become gradually less likely to think that all information on news media sites is true (blue line) and more likely to know that sponsored results on Google searches are adverts.’ <www.ofcom.org.uk/__data/assets/pdf_file/0034/93976/Children-Parents-Media-Use-Attitudes-Report-2016.pdf> accessed 23 January 2018.
45 In August 2017, the Department of Digital, Culture, Media and Sport announced part of its plan to incorporate the EU’s General Data Protection Regulation into UK law. As part of this announcement, the UK Government provided that thirteen-year-olds should be capable of giving consent for their data to be used. ‘A New Data Protection Bill: Our Planned Reforms’ (7 August 2017) <www.gov.uk/government/uploads/system/uploads/attachment_data/file/635900/2017-08-07_DP_Bill_-_Statement_of_Intent.pdf> accessed 13 August 2017.
46 Ireland, National Union of Journalists, Editors’ Code of Practice, Impress Standards Code, Cambodia, Croatia, Bhutan, Albania, Macedonia, Denmark, Bahrain, Guardian newspaper, Cyprus, Iraq, Cambodia, Austria, Estonia.
47 Ireland, Sri Lanka.
48 Máire Messenger Davies, and Nick Mosdell, Consenting Children? The Use of Children in Non-fiction Television Programmes (Broadcasting Standards Commission 2001); Máire Messenger Davies and Nick Mosdell, ‘The Representation of Children in the Media: Aspects of Agency and Literacy’ in James Goddard, Sally McNamee, Adrian James and Allison James (eds), The Politics of Childhood: International Perspectives, Contemporary Developments (Palgrave Macmillan 2005).
49 Gillick v West Norfolk & Wisbeck Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, [1985] UKHL 7.
50 Caitlin R Costello, Dale E McNiel and Renée L Binder, ‘Adolescents and Social Media: Privacy, Brain Development, and the Law’ (2016) 44 J Am Acad Psychiatry Law 313.
51 Caitlin R. Costello, Dale E. McNiel and Renée L. Binder. ‘Adolescents and Social Media: Privacy, Brain Development, and the Law’ (2016) 44 J Am Acad Psychiatry Law 313.
52 Rosalind Dixon and Martha C Nussbaum, ‘Children’s Rights and a Capabilities Approach: A Question of Special Priority (2012) 97 Cornell Law Review 549.
53 L Steinberg and others, ‘Are Adolescents Less Mature than Adults? Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA ‘flip-flop’ (2009) 64 Am Psychol 583.
54 ibid, 592.
55 New Zealand, South Africa, Namibia.
56 See Impress Standards Code clause 3.1, ≤www.impress.press/standards/impress-standards-code.html> accessed 23 January 2018:
Except where there is an exceptional public interest, publishers must only interview, photograph, or otherwise record or publish the words, actions or images of a child under the age of 16 years with the consent of the child or a responsible adult and where this is not detrimental to the safety and wellbeing of the child.
57 K v News Group Newspapers Limited [2011] 1 WLR 1827.