Originally published by The Guardian 9 January 2015
Hannah Weller’s campaign to “prevent the media from publishing photographs of children without their parents’ consent” makes a seductive pitch.
She and her musician husband Paul were photographed with their young children, without their consent, shopping in Los Angeles. The pictures were published by Mail Online. The Weller’s were appalled, took publisher Associated Newspapers to court, where the publisher was ordered to refrain from publishing such images and pay £10,000 compensation to the children. Associated Newspapers is currently appealing the judgment.
Now Weller is campaigning for a change in the law in the hope that further incidents of this kind can be avoided and that protection is afforded to those who do not have a rock star’s wealth to pursue their grievances.
The problem, alas, is one that is common among the mega-rich: Weller is seeking a universal solution on the basis of a single unpleasant experience. If she gets her way, the consequences for publishers, press freedom and those who consume the media will be chilling.
Every day, newspapers, magazines and websites publish thousands of pictures of children. Picking up a copy of my local paper, the Ipswich Star, I can find pictures of 33 people who I would say beyond doubt are children.
They appear in shots of carol singers at an old people’s home, showing off their stamp collections, attending a concert and meeting Father Christmas. All are happy, uncontroversial pictures that, I strongly suspect their subjects and families were delighted to see published. In pretty much every case, informal consent will have been obtained by the photographer doing their job.
Introduce a requirement that parents sign a consent form in such circumstances, and nearly all of these photographs will disappear. The extra effort of collecting consents will be too much for newspapers and editors will become wary of publishing anything that opens them to challenge, particularly in the era of opportunistic no-win no-fee lawyers.
Incidentally, while there were 33 people who were obviously children in my copy of the Ipswich Star, there were quite a few who could have been children or young adults. Without the time to find out how old every person in a shot is, it is photographs of anyone visibly under the age of 25 that will disappear.
There will be issues at the grittier end of journalism too. Nick Ut’s 1972 picture of a nine-year-old Phan Thi Kim Phuc running naked down the a road after a napalm attack is among the most potent ever captured on film.
Who would argue that the image should have been suppressed until her parents had signed a form? Weller accepts that there should be a “public interest defence” when publishing pictures of children without consent to allow for pictures from war zones and refugee camps. But a “public interest” defence will always be reliant on case law, and is therefore unpredictable. Fewer really important, world-changing photographs will be published too were Weller’s law enacted.
Assuming that it is the civil law that Weller is campaigning to change (she does not specify), someone who felt that images of their children had been published unlawfully would still need to be able to fund a legal action to obtain redress, so it will remain the province of celebrities and the mega-rich.
But even if the practicalities of such a law do not bury this proposal, it is worth considering how much of an issue this actually is. It is true, celebrities often don’t like photographs of them or their children to appear – particularly when they are not in control. This rarely dissuades them from discussing their children at considerable length in the media when it suits them.
But what about “ordinary” people? The editor’s code of practice, that was enforced by the Press Complaints Commission and is now operated for some newspapers by the Independent Press Standards Organisation includes a five-point section that stipulates how journalists should respect the rights of children. Among other things, it says: “Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life”.
National Union of Journalists members agree to abide by our own code of conduct– it is one of the oldest and most respected in the world. It requires that: “A journalist shall normally seek the consent of an appropriate adult when interviewing or photographing a child for a story about her/his welfare.”
On my tally, no more than 3% of complaints to the old PCC were about breaches of its code in respect of children. In the vast majority of cases, the PCC found that no breach had taken place.
In each year of the past decade, the average number of complaints relating to the depiction of children by newspapers that have been upheld by the press regulator was fewer than three. I am by no means uncritical of the PCC, but I have yet to hear a single complaint about its failure to uphold its rules on the depiction of children.
And all of this debate ignores the real and pressing issues surrounding photography. Public officials are increasingly fond of deciding that it is “illegal” to take photographs in public places, when it is not. Photographers have been targeted and monitored by police simply for doing their job.
Many have been made redundant from staff jobs. Freelance photographers find it increasingly difficult to make a living. Meanwhile, the public floods social media with images of themselves, many of which would be best kept private. These issues deserve, if nothing else, a properly funded public information campaign.
What we do not need is legislators wasting their time on laws that would damage photographers and those who enjoy their work, and benefit only celebrities, who are already all too ready to seek redress in the courts when stories appear that they have not initiated themselves.
I debated this issue with Hannah Weller on BBC Radio Four’s Today program on 7 January 2015. You can listen to that here.
Photograph © Tim Dawson