The Press Complaints Commission has come into direct conflict with the courts by throwing out complaints against the Manchester Evening News for publishing pictures, without the permission of Michael and Rina Attard, of their surviving conjoined twin Gracie.
Last June, the High Court placed an injunction on the newspaper to stop it using the pictures again after it printed 80,000 copies of what it described as "joyous images" of Gracie. Its decision to publish infuriated the News of the World, Mail on Sunday, Granada’s Tongith with Trevor McDonald and Now magazine which had agreed a four-way, £350,000 deal for exclusive pictures of the child.
But the PCC, in its ruling, said: "It is not the function of the Commission to seek to protect the financial position of complainants through the use of privacy sections of the Code of Practice. … it has always taken the commonsense view that where a complainant releases or sells information or photographs they may become disentitled to the protection of the Code in certain circumstances.
"Privacy is – in the Commission’s opinion – not a commodity which can be sold on one person’s terms."
And MEN editor Paul Horrocks said: "This is a victory for commonsense. This was good, old-fashioned scoop. In my opinion the court was hi-jacked to protect an exclusive, commercial deal."
The MEN might use the Commission’s decision to try to overturn the injunction, which would probably mean the Commission members being called into court to give evidence. But the paper has appealed once and lost.
The irony of the ruling, said Horrocks, was that he had a Commission decision in his favour but still could not publish photographer Paul Burrows’ pictures of Gracie.
The Commission regards it as a landmark case, concluding its decision "after a thorough examination of the evidence and taking into account the jurisprudence of the PCC, which editors are obliged to consider", was different in principle from the attitude adopted by the court.
It rejected three complaints and did not adjudicate on a fourth because it had been dealt with by the court.
The identity of Gracie was protected by a court order while she remained in hospital in Manchester after the operation to separate her from Rosie, the twin who died. The order was lifted on the request of the Attards so that they could negotiate through publicist Max Clifford to sell the exclusive pictures.
The MEN had been invited to the hospital to photograph the surgical team on the day Gracie was leaving.
Tipped off that Gracie was to be posing privately later for pictures with her parents, Burrows retreated to the public car park outside the hospital and took his own pictures of the photo session with a long lens.
The MEN held the pictures back until reporter Ian Wylie reported from a court hearing that the identity order had been lifted to allow the Attards to sell them. Then the paper stopped the presses to get them in part of its print run.
The complainants’ solicitors Pannone and Partners returned to court the same day and obtained the injunction which banned the MEN from using the pictures again. The solicitors said the judge made clear at the time the photograph had been taken in breach of the complainants’ privacy.
The parents complained to the PCC of intrusion of privacy and that the MEN’s taking of the pictures was contrary to Code of Practice clauses on taking pictures in hospitals, of children without their consent and misrepresentation – that the photographer had pretended to leave the hospital before the photoshoot.
Horrocks argued to the PCC that the parents themselves had allowed the paper to print the pictures by overturning the previous order on Gracie’s identity. They were clearly putting themselves into the public domain, he said.
While the Commission said the privacy complaint had been decided by the court, it concluded that none of the other complaints breached the Code – the photographer had not obtained the pictures by subterfuge or misrepresentation; he had not taken the pictures in the hospital or in the hospital grounds; the picture had not damaged the child’s welfare and did not need consent.
The PCC also took into account its earlier rulings on material that had been published or was about to be published and said it could not ignore the fact that the photographs in this case were about to become available to the public "to a very significant extent."
Horrocks commented. We always maintained the photographs had been taken from a public place and the welfare of the child was never affected.
"There was huge public interest in what was an amazing medical feat carried out in an NHS hospital in Manchester, namely the operation to separate the twins.
"Our pictures were joyous images of a surviving child with her parents, images we felt perfectly justified in sharing with our readers, who had followed the fortunes of the twins through the pages of the MEN.
"We did not print our pictures until the parents decided it was in their interest for the pictures to be printed. I believe our photographer showed great initiative and this strikes at the very heart of a free press. The issue really is not whether a long lens was used. It is freedom to operate in a way we believe to have been right."
By Jean Morgan