On 24 September 2012,
MailOnline published an article about 'creepshots' - photographs of females taken without their knowledge (often 'upskirt' photos) - that were taken in a Georgia high school by a teacher and posted on Reddit.
The article admitted the photos
'were taken without the subjects' knowledge' and that the subjects
'are caught unawares by stealthy 'creeps' with cameras'.
It added:
Most shots focus on the buttocks or breasts of non-consenting women going about their daily lives - and users admit that 'at least 40 percent' of the images are of underage girls.
As this blog noted at the time:
Someone at MailOnline then decided to illustrate the article with FOUR of the creepshot photos the article is complaining about.
There is no justification for publishing any of these images. Indeed, MailOnline has now removed all the photos from the article - albeit, some 15 hours after it was first published - a clear indication it knew this was a serious error...
It admits the photos were taken 'without permission' and yet deems them suitable to publish. It refers to the fact that many of the images are apparently of 'underage girls', yet deems them suitable to publish. Given the faces are covered, MailOnline has no idea how old any of the girls are, yet deems them suitable to publish.
One person contacted the Child Exploitation and Online Protection Centre about the MailOnline article. Another complained to the PCC. The latter complaint was sent on 25 September.
The PCC replied:
The concerns you have raised relate directly to the unidentified girls in the photographs. Given the nature of your concerns, it may be difficult for the Commission to investigate or understand the matter fully without their involvement.
However, we do appreciate the significance of these issues. In such circumstances, we would often take steps to contact the individuals concerned to make them aware of our services. In this instance, it is clear impossible for us to do so as we cannot identify them. We may therefore have difficulty in pursuing this matter. However, we will ask the Commission to consider whether there are exceptional public interest reasons for it to proceed with an independent complaint.
One month later, on 29 October, the PCC said:
The Commission has noted carefully your comments about the public interest in pursuing an investigation and it has decided to do so, on an own-volition basis. It will write to the newspaper for its formal response, passing on a copy of your complaint.
The person who made the complaint emailed on 4 January asking for news but received no reply. The PCC did respond to a further email on 7 February - which noted the MailOnline article was still 'live' - but only to say the matter was still under investigation.
No further information was received by the person who made the complaint until 9 April, when the PCC issued its decision. He saw none of the correspondence from the Mail and has no idea what happened in those six months.
The PCC's decision is worth repeating in full:
The Commission
investigated, of its own volition, a complaint framed under Clause 3
(Privacy), Clause 6 (Children) and Clause 10 (Clandestine devices and
subterfuge). The Commission noted that the article under
complaint had come to its attention because of a third-party complaint
it had received from a member of the public concerned about the
publication of the images with the article. The Commission had not
received any complaint from any individual featured in
the story. The Commission recognised the significance of the issues
raised by the complaint, however, and had for this reason chosen to
investigate the matter of its own volition. Nonetheless, it remained the
case that without the involvement of any of the
individuals concerned, the Commission faced a significant practical
difficulty in making a finding on this case.
The Commission first
considered the matter under Clause 3 (Privacy) and Clause 6 (Children).
The complainant said the photographs had apparently been taken without
consent and apparently showed pupils at a school,
potentially under 16. The complainant made clear that he was concerned
about both the censored and uncensored versions of the article. He
objected to the publication of the photographs.
The photographs under
complaint had been republished by the newspaper from a website on which
they had been posted by anonymous users. The faces of the women had not
been shown and they were not otherwise readily
identifiable. No verifiable information was available about where or
when they had been taken.
Clause 3 states that
everyone is entitled to respect for his or her private and family life
and that it is unacceptable to photograph individuals in private places
without their consent. Under Clause 6, young people should be free to
complete their time at school without unnecessary
intrusion; a child 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; and pupils must not be
approached or photographed at school without
the permission of the school authorities.
The
content of the photographs themselves – including the furniture,
surroundings, and clothing of those shown in them – suggested that they
showed pupils in educational institutions, as the
newspaper had clearly accepted. The newspaper’s report quoted one
individual who claimed to be a teacher taking photographs of his pupils
without their consent. Against this background, the Commission was
concerned by the publication of the photographs, and
in particular, extremely concerned by their initial – albeit brief –
publication in an uncensored state, which was – as the newspaper had
immediately accepted – clearly inappropriate in light of the information
reported in the story.
Given the nature of this
case, the Commission reviewed closely the information provided by the
newspaper about the background. It noted the newspaper’s position that
the article had been prepared for publication
on the US homepage by a US journalist and that the photographs had been
left uncensored for several hours due to a “regrettable” error. The
newspaper had confirmed that the matter had been raised with the
editorial staff concerned to understand how the incident
had occurred and to avoid any recurrence. It had instructed its US
Picture desk to take greater care to scrutinise photographs of this kind
and emphasised that decisions should be referred to line managers
before publication to ensure that due consideration
has been given to publication and that pixelation has been properly
applied where appropriate before pictures can go live on the site. It
had also reminded them of their obligations under the Code and noted
that abiding by the Code remained a contractual condition
of employment contracts for its journalists. During the course of its
correspondence with the Commission it had decided to remove the article
from its website, in view of the sensitivity of the material.
The Commission
acknowledged the measures that had been taken. It noted that the
preparation of material for publication online presents particular
challenges but emphasised that the Editors’ Code of Practice applies
equally to material published in print and online. It emphasised that
the newspaper should continue to keep its processes under review,
including in relation to staff training, to ensure that such an error
would not recur.
It remained the case,
however, that the Commission had no direct information about the
circumstances in which these particular photographs had been taken. As
it had noted, both the context and the photographs
themselves strongly suggested that they had showed individuals who were
unaware of being photographed, and indeed the newspaper’s report had
stated this as fact. Nonetheless, the Commission concluded that it would
not be appropriate for it to rule on the potential
for intrusion posed by the photographs on the basis of conjecture,
however well-founded.
The Commission did not issue a ruling under Clause 3
or Clause 6 but it considered that the newspaper’s decision to remove
the article from its website was appropriate in the circumstances. The
Commission also noted that it would review the
matter should it receive a complaint in future from any of the
individuals photographed or, alternatively, corroboration of the
circumstances in which the photographs had been taken.
Finally, the Commission
considered the complaint under Clause 10 (Clandestine devices and
subterfuge). The terms of Clause 10 set out that
the press must not seek to obtain or publish material acquired by
using hidden cameras or clandestine listening devices. The Public
Interest clause of the Code states that the PCC will consider the extent
to which material is already in the public domain,
or will become so. In this instance, the newspaper was reporting on a
matter of controversy involving the publication of material elsewhere on
the Internet. This was different from an instance in which the
publication or its agents had used clandestine devices
or subterfuge to obtain journalistic material for the purpose of
publication. The republication of photographs to illustrate a news story
on the controversy did not raise a breach of Clause 10.
The PCC's wariness seems slightly strange - it admits the paper had stated the subjects were unaware they were being photographed
'as fact' and admits this is a
'well-founded' view. But the PCC says this is only
'conjecture' and essentially refuses to issue a clear adjudication because of that - despite calling publication of the photos
'clearly inappropriate'. There appears to be no evidence to dispute the claims made about the origins of the photos and, furthermore,
the Mail reported on 27 September 2012 - three days after the original article appeared:
A high school substitute teacher has been fired after police say he took pictures of his students without their knowledge and posted them to a perverted website.
The
uncensored photos were visible for around 15 hours on MailOnline - it
is a matter of opinion as to whether the PCC's description of that as a
'brief' period is fair or accurate.
Moreover, the person who made the complaint noted the article was still up on
MailOnline in February - many months after it was first published and
the correspondence with the PCC began. It was only after all that time
that it seemed concerned about the
'sensitivity of the material'.
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