The article admitted the photos 'were taken without the subjects' knowledge' and that the subjects 'are caught unawares by stealthy 'creeps' with cameras'.
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'.