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On 2 July 2009 the Press Complaints Commission published new guidance on payments to parents for material concerning their children.
This arose following concerns about alleged payments made by certain newspapers to the families of 15-year-old Chantelle Stedman and 13-year-old Alfie Patten for stories about the birth of Chantelle’s baby, Maisie, and Alfie’s alleged paternity. The PCC had previously aborted its inquiry into whether those stories breached Clause 6 (iv) of its Code of Practice.
Clause 6 (iv) states that minors must not be paid for material involving children’s welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child’s interest.
In the public interest section of the PCC Code reference is made to the need for editors to demonstrate an exceptional public interest to override the normally paramount interests of the child in cases involving children under 16.
Therefore, Clause 6 (iv) prohibits payments to parents for material about their children’s welfare, unless it is clearly in the child’s interests or there is an exceptional public interest. This is to discourage parents from selling a story that would not otherwise be considered to be in their child’s interests to publicise. It is also to discourage parents from fabricating or exaggerating information in order to secure publication.
The PCC’s guidance suggests that editors should bear the purpose of the Clause in mind when deciding whether to pay for a story involving the welfare of a child. In particular, a newspaper may have to show that it has made extra enquiries about the veracity of a story, rather than simply taking the parents’ words at face value. The guidance also states that the PCC will expect editors to demonstrate they have taken great care when publishing stories of this nature.
The guidance states that editors must be able to show how they have taken care to consider the child’s interests in situations where payments have been made to parents for material about their children. This is because the PCC Code requires the payment to be in the child’s interests.
The guidance also offers advice on situations where the parent’s freedom of expression may be in conflict with what is best for the children – the child’s interests are always expected to come first. Editors are expected to consider the nature of the relationship between parent and child, and whether the parent is in a position to represent positively the child’s interests. The PCC warns that on some occasions, where there is an insufficient public interest in the story, this will mean that payment should not be made, even if the parents are happy for the story to be published.
If a story concerns a child’s welfare, but payment is not likely to be in the child’s interests, editors can only justify payment if there is an exceptional public interest. It is not enough to rely just on the parents’ right to freedom of expression. A satisfactory explanation has to be given about how the public interest in publication is served to an exceptional extent to override the normally paramount interests of the child.
The Alfie Patten case, for example, was said by the papers to have stimulated an important public debate into the prevalence and impact of teenage pregnancy in British society. The papers argued that the identification of Chantelle and Alfie and presentation of them in a particular way had personalised these issues in a way that had stimulated a wide-ranging public debate, involving contributions from senior politicians. They asserted that they had fulfilled an important duty in publicising to a large audience a social problem that was perceived to be widespread. The papers’ position was that the Alfie Patten case was, on the evidence available at the time of publication, an exceptional example of the problem.
However, in that case the High Court issued a reporting restriction order, which meant that the PCC was unable to complete its investigations and make a ruling as to whether the newspapers involved had breached Clause 6(iv) of the PCC Code. The PCC notes in its Guidance that if it had been able to conduct a fully reasoned ruling in that case, the public interest argument would have been weighed against the counter-arguments that this example of teenage pregnancy was not so extraordinary as to warrant the coverage or to justify the probable impact on the children. It is worth noting that the public interest argument had also been significantly affected, at least in the case of The Sun, by the fact that the original identification of Alfie Patten as the father turned out to be incorrect.
The PCC notes that the practice of paying parents for interviews about their children, which might involve, for example, their family’s experience of a particular illness or social situation, is not unusual. The PCC also points out that in the majority of cases this will not involve a breach of its Code, given the nature of the material published. However, where there are doubts about the motives of the parents in seeking payment, or the possible impact on the child’s welfare, the PCC will expect them to pause and consider what impact payment and publication will have on the child , and ask:
- Is the payment alone responsible for tempting the parents to discuss a matter about their child that it would be against the child’s interests to publicise? In that event, only an exceptional public interest can justify going ahead.
- Is there any danger that the payment has tempted the parents to exaggerate or even fabricate the information.
- Is the payment in the child’s interests?
The PCC guidance is the latest re-statement that a child’s privacy is to be afforded greater protection than an adult’s. In 2008, the Court of Appeal held in Murray v Express Newspapers plc [2008] EWCA Civ 446 that, subject to the facts of a particular case, the law should protect children from intrusive media attention, at any rate to the extent that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. Ofcom’s Broadcasting Code also requires broadcasters to take “due care” over the physical and emotional welfare and dignity of under-eighteens participating in television and radio programmes, irrespective of any consent given by the participant, participant’s parents or guardians. Ofcom also requires broadcasters to pay particular attention to the privacy of people under sixteen.
What parents want and what is good for their child is not always the same. A parent’s conduct may impact on a child’s right to privacy, but only to a limited extent. Clearly, a child’s expectation of privacy should not be eroded by the behaviour of a parent not acting in the child’s interests. The PCC states that it has always considered that the protection afforded by its Code needs to be at its strongest in cases involving children. This guidance serves to reinforce this principle - broadly, there must be an exceptional public interest to justify any intrusion into the private life of a child.
Catherine Fehler & Eleanor Steyn
Article written for Entertainment Law Review.
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