The Privacy Perspective

The British press has been described as a ‘watchdog’ when it comes to protecting the public, and arguably this function is of upmost importance when reporting on criminal cases and their developments. The wide spread reporting of Wayne Couzins brutal kidnap, rape and murder of Sarah Everard, and most shockingly his abuse of his role as an officer in the Met Police to carry out such an atrocity has dominated headlines this Autumn. It is of vital importance that this case was given such a high level of exposure; because with such exposure and public outrage, organisations are forced to address institutional problems – and hopefully prevent such monstrosities occurring again.

However when there is such widespread coverage of an accused; because that is what they are before they have been convicted, no matter how compelling the evidence or the story, the risk of Contempt of Court is always lurking. In Couzins case, the Attorney General, Rt Hon Michael Ellis QC MP, recognised that the reporting was spiralling and subsequently published a statement saying,

‘it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect and matters adverse to his character, the admissibility of which a Judge in due course may need to determine’. Contempt proceedings did not become an issue in Couzins case ultimately, however it is a useful prop to demonstrate how heavy the reporting was.

ISPO’s, Editors Code of Practice is one tool which is designed to present press reporting over-stepping the line and amounting to contempt. However ISPO is also, as its website declares, designed ‘To support those who feel wronged by the press and to uphold the highest professional standards in the UK press’. This article will therefore be focusing on if these ‘missions’ of ISPO still appear effective when focusing on the coverage of Couzins wife, Elena Couzins. As well as examining if the ISPO Editors’ Code of Practice sufficiently protects the privacy rights of family members of the accused. It is highly unlikely that family member coverage of an accused could amount to contempt under the Act, however perhaps under the veins of ISPO such prejudicial reporting, although not amounting to contempt, could be prevented.

The Editors’ Code of Practice is applicable to all signatory newspapers, which raises the first question as to its enforcement potential. Questions have been raised that ISPO are reluctant to enforce hefty fines or regulate stringently out of fear that newspapers will simply abstain from joining the organisation. Such a view was articulated by Brain Cathcart, when he stated that ISPO appear to ‘bend over backwards to avoid finding breaches of the code’ and this view point is embodied by the fact after ISPO has never, in its 7 years of existence, used its powers of investigation or issued a single fine. ISPO therefore doesn’t appear to be acting as a sufficient deterrent in any case, including when considering the privacy of the relatives of the accused; is a body which has never issued a fine really going to appear a serious threat to multi million pound newspapers? The statistics echo such a response, off the 9,766 complaints and enquires made to ISPO in 2019, 55 were upheld, a shockingly small number.  The second concern, which this article shall be focusing on is that the Clause’s themselves being interpreted too narrowly and thus failing to protect the public adequately; again this is echoed in the statistics, in 2019 of the 8,891 complaints which didn’t warrant a possible breach, 2,617 of these failed because they didn’t satisfy any criteria for raising a breach. This therefore suggests the threshold needed to qualify as a potential breach is higher than the public would expect it to be. The exception of public interest, which applies in 9 out of the 16 clauses adds another level of protection between the press and an infringement of a Clause. These factors combine mean ISPO appears the opposite of it what it declared itself to be in 2014, ‘the toughest press regulator in the Western World’.

One article in particular in Couzins case is surely the manifestation of everything ISPO is designed to prevent, with extracts including ‘what happened to his [Couzins] and children and where are they now?’. What follows from this questioning title is a detailed life story of Couzins wife, with loaded comments surrounding her English language skills, ‘She didn’t speak very good english’ and personal details surrounding their children and how they met. ISPO clearly states it does not cover issues of ‘taste and decency’ due to the infringement of editorial freedom it would result in, and perhaps this title would immediately be described as one of ‘bad taste’. However this article will be outlining how this article could also be perhaps be disputed, through Article 2, Privacy.

Clause 2 states

i) Everyone is entitled to respect for their private and family life, home, physical and mental health, and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual’s private life without consent. In considering an individual’s reasonable expectation of privacy, account will be taken of the complainant’s own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

The first factor that is immediately apparent when considering Clause 2 is that it is marked with ‘The Public Interest’ exception.  Public Interest within the code is interpreted in a broad manner, and has the effect of allowing infringements of clauses such as ‘Privacy’ or ‘Reporting on Suicide’, if it is in the public interest to do so. It is indisputable that there was a public interest in the Couzin case. In the regular manner of there being a  genuine public interest in freedom of expression itself [bullet point 2], which prevents such atrocities being hidden away, and also in disclosure of an organisation failure [bullet point 1(4)], which seems particularly relevant given the criticism of the met policies toxic masculine culture. Yet it is surely arguable that there is no public interest in reporting extensively upon Couzins wife, she was not a threat to public safety, her existence was not a miscarriage of justice and her marriage wasn’t contributing to public debate in an constructive manner. The press are highly likely, if forced to justify themselves, to argue that Elena’s arrest for assisting an offender creates a public interest; and there is no denying that it adds weight to their argument. Yet Elena was released with no charge and hence had no involvement in the crime; following on from this, ZXC V Bloomberg confirmed that individuals have a realistic expectation of privacy pre charge, which was the exact status of any potential proceedings against Elena. The press are well aware that ‘gossip sells’, and what better sick gossip than a women’s husband of 15 years committing one of Britains most horrific crimes. It can therefore certainly be argued that ISPO are defending the press’s ability to print stories that sell well, rather than protecting individuals who are at the receiving end of the press’s glare.

And the principles of Murray V Express Newspaper indicate the law is heavily in favour of ISPO’s viewpoint; indicating Elena Couzins would not be successful in bringing her case to court. In Murray, J.K Rowling’s son was photographed with a long camera lense whilst being pushed down the street, much similar to the press photograph, which accompanied almost every article of Elena, of her walking down the street outside her house. In Murray’s case, the court ruled against the claimant, and presented their judgment in the following manner:

‘on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and decision in Campbell, I am bound to follow Campbell in preference.’

Both Campbell and Von Hannover respectively create the precedent that there can be no expectation of privacy in public places, especially when considering a ‘High profile individual’. An interesting angle when considering these cases in the voluntary nature of the ‘celebrity’ in questions, a princess and a model. And although J.K Rowling, an author, could be brought in this category, her son could not, and thus it is highly doubtful the court would move away from this precedent when considering Elena’s non consensual profile.

The case of Jones V Mail Online in 2019 was one of the few which resulted in a ruling against the newspaper; it was found publishing videos a crime season which included images of a dead body was sufficient to qualify as an intrusion into the family grief and shock. This therefore appears to be offering some level of protection to family’s, although it is the victims family rather than accused. However, the case was upheld under Clause 4, which requires publications not to break news of a death to immediate family, rather than Clause 2. This therefore suggests what ISPO objected to was the death being revealed by the newspaper, rather than the images and impact it had on the family. Thus even a positive ruling for the complaints does not appear to demonstrate IPSO taking a compassionate and protective step for the well being of the family.

In conclusion, it appears ISPO take a very stringent and narrow approach when considering rulings against the press, and cases which involve the accused’s relatives bear no exception to this rule. ISPO, at its core, appears to reflect the view of the court and protect the public interest and the need for freedom of expression, rather than individuals privacy or well being. It therefore seems a stretch for them to declare they ‘support those who feel wronged by the press’; as they rarely believe any wrong has occurred. If this is right depends on ones perspective; however it seems harsh in cases such as Elena Couzin’s where no role has been played in the crimes committed, yet you are constantly considered alongside them.

This article was written and submitted to TTP and is published with permission and thanks to the author, Freyja McLoughlin.