(Credit: PCC, screenshot)

The UK Press Complaints Commission released a new “guidance note” on “privacy and the public domain” in light of the UK Sun’s publication of naked photos of Prince Harry.

In August, after TMZ published photos of the prince naked in a Las Vegas hotel room, the PCC told iMediEthics that the Palace used the PCC’s “pre-publication services to pass on their concerns about the potential publication of the photographs to Editors.”   UK editors were reminded that the PCC’s code calls it “unacceptable to photograph individuals in private places without their consent.”  Despite this, the News Corp-owned UK Sun published the photos Aug. 24, which prompted around 3,800 complaints by the public.  (The record for complaints is 25,000 over a 2009 column on Stephen Gately’s death, the PCC told iMediaEthics.)  Because none of those complaints were from Prince Harry or his representatives, the PCC announced in September it would be “inappropriate” to have an “investigation” which could “pose an intrusion.”

The new “note” from the PCC reminds that “privacy is not an absolute right” and that “conduct,” “previous disclosures” and “an overriding public interest” could overrule the right to privacy.  The PCC recommended editors weigh possible publication against a series of questions including:

1. “What is the quality of the information? (How personal is it?)
2. “What previous disclosures have been made by the individual concerned?
3. “If the material has been sourced online, who uploaded the material?
4. “Has the individual taken steps to indicate that they regard the information as private, for example by complaining about the previous publication of such material, placing on the record their concern about the publication of such material, or putting in place specific steps to protect their privacy such as privacy settings?
5. “How is the material presented? (Is it likely to embarrass or humiliate the individual?)
6. “If it is argued that the publication of new material is justified by the existence in the public domain of similar or related information, is the new material proportional to material already established in the public domain?
7. “Is there a public interest in publication proportional to the potential intrusion?”

According to the PCC, journalists should be prepared to defend any public interest arguments prior to publication.

The PCC also reminded that social media posts “can blur the distinction between ‘private’ and ‘public,'” because even though users may not set up privacy settings, they may not expect the media to use their posts.  As with any public interest defense, the PCC instructed editors to be prepared to “demonstrate a sufficient public interest” in using information “protected by privacy settings.”  And, the PCC called for editors to consider “the likely effect on close friends and family” before using information from social media on reports on “bereavement or serious injury.”  The PCC also noted:

“The mere availability of material online does not in itself justify its republication to the public at large.”

Most directly related to the Prince Harry photos, the PCC offered a list of “relevant factors” in re-publishing information “well-established in the public domain” that may invade privacy.  Some of those factors are:

• “The nature of the material;
• “The extent of previous publications (including disclosures by the complainant themselves);
• “The context in which the publication has presented the republished material;
• “Any public interest in publication; and
• “Where it is argued that the publication of new material is justified by the existence in the public domain of similar or related information, the proportionality of the new publication to the material already established in the public domain.”

The guidance note included summaries of previous, related cases where these issues were addressed. For example, in 2005 the PCC ruled that the Daily Mirror violated Harry Potter author JK Rowling’s privacy with a photo that showed the name of her house’s road.  The PCC said it ruled against the Mirror because “the photograph and its caption contained sufficient information to identify the exact location of the property” and because that wasn’t already  “in the public domain to such an extent as to justify publishing it in this way.”

iMediaEthics has written to the PCC asking for more information about its “guidance notes” and will update with any response. All of the PCC’s “guidance notes” are listed on the PCC’s website.

See all of iMediaEthics’ stories on the Royal Family.

UPDATE: 11/19/2012 11:38 PM EST: The PCC’s Catherine Speller told iMediaEthics by email:

“The PCC has issued a range of guidance notes for editors. They are supplementary to the Editors’ Code of Practice, and are intended to provide assistance on various aspects of the Code. You can see a list of guidance notes here: http://www.pcc.org.uk/advice/editorials.html Guidance can also be offered to editors who contact the PCC in advance of publication, for confidential advice on any Code issues around a particular story. This advice service can help to minimise the possibility of a PCC complaint at a later date.

“In 2011, 29.2% of complaints to the PCC that were judged to have merit concerned privacy; in 2010, the figure was 23.7%. (Privacy covers Clause 3-9 and 11 of the Code).”