Press Ombudsman upholds complaint by Julie and Robert Duhy

On 23 June 2016 the Press Ombudsman decided to uphold a complaint by Julie and Robert Duhy that Evoke.ie breached Principle 9 (Children) of the Code of Practice of the Press Council of Ireland.

On 24 February 2016 Evoke.ie reported that Julie Duhy on behalf of her child had sued Ralph Lauren Ireland Limited for the faulty manufacture of baby pants which had resulted in the child sustaining red welts on her thighs. Ralph Lauren agreed to pay €17,500 plus legal costs. The article was accompanied by two photographs of the child at play.

In an email dated 28 April to the editor of Evoke.ie Julie and Robert Duhy complained that the photograph used to accompany the article had been obtained without permission.  They also complained that they found the article offensive, sensationalised and exploitive.  They complained about the publication of the child’s name and address and her GP’s name which they claimed “jeopardised her right to privacy as a minor and also placing her potentially in danger … and exposed her to various degrees of embarrassment in both school and at home, amongst neighbours and peers”. Mr and Mrs Duhy also requested that the article be taken down off Evoke.ie. In a subsequent email to the editor of Evoke.ie Mr and Mrs Duhy claimed that the article breached Principle 1 (Truth and Accuracy), Principle 3 (Fair Procedures and Honesty) and Principle 9 (Children) of the Code of Practice of the Press Council of Ireland.

Evoke.ie defended its publication of the report and stated that “the constitutional principle that justice must be administered in public applies to rulings in cases of infant settlements” and that images of the daughter of the complainant had been obtained from YouTube and did not breach the child’s privacy rights or any Principles of the Code of Practice of the Press Council.

As they were not satisfied with the response they had received from Evoke.ie Julie and Robert Duhy made a formal complaint to the Press Ombudsman’s Office.

In its formal submission to the Press Ombudsman’s Office Evoke.ie reiterated its belief that its reporting of the case “is a necessary corollary to the constitutionally guaranteed principle of open justice and that given her age, (the child) was unlikely to have suffered any personal embarrassment as a result”. In regard to the publication of the images of the child the publication claimed that reference had been made in court to the fact that Ms Duhy had uploaded videos documenting Ms Duhy’s child’s early years on YouTube and these were “accessible to anyone with internet access” and were therefore “wholly public”.

As the complaint could not be conciliated it was forwarded to the Press Ombudsman for a decision.

I am upholding the complaint on the grounds that the publication of the images of the child was a breach of Principle 9 of the Code of Practice. This Principle states that journalists and editors should have regard for the vulnerability of children. Irrespective of the lack of privacy provisions in the uploading of images to YouTube account has to be taken as to the purposes for which the Duhys uploaded the images of their daughter.  The usual purpose for uploading images of children is so that friends and families can see celebrations, family occasions, holidays, etc. The justification for a newspaper to publish these kinds of images is that they have obtained permission or if the images are in some way relevant to the outcome of court proceedings.  As the parents made no claim in court that their daughter had suffered any long-term damages from the faulty baby pants I cannot see how the publication of images of a child at play some years after the event can be justified in this particular case. Therefore I have decided that the publication of these images is a failure to take account of the vulnerability of the child.

Other parts of the complaint were not upheld.

No evidence was provided to me that Principle 3 had been breached in the obtaining of the images published (Principle 3 refers to the manner in which images are obtained).

In regard to the text of the report Evoke.ie was entitled to report the outcome of the court proceedings in the manner in which it did as what was reported was a matter of public record.  I did not find the reporting inaccurate.  Nor was the reporting sensationalist. Therefore there was no breach of Principle 1. Parents who sue in open court on behalf their children can expect a degree of publicity and attention on their children. I do not think that Evoke.ie over-stepped the mark in its reporting of this case, only in its publication of the images of the child.

The publication appealed the decision to the Press Council of Ireland.

Decision of the Press Council of Ireland

Evoke.ie appealed the decision on the grounds that the Press Ombudsman erred in his application of the Code of Practice.  The Press Council considered the appeal at its meeting on 2 September 2016 and decided that the Press Ombudsman did not err in his application of the Code and it therefore reaffirmed his decision.  The Council concurred that the protection accorded to children under Principle 9 of the Code was paramount in coming to its decision.