David Banks Media Law

Training and advisory services in media law, social media and crisis management

Month: March 2016

Revenge porn – how victim anonymity will protect defendants

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THE Director of Public Prosecutions is the latest in along list of people supporting legal anonymity for victims of so-called ‘revenge porn.’

This campaign has been running ever since this offence emerged, with the growth of social media and the ability to easily share photographs and video content.

Before we do go down this road though, we need to understand how such anonymity will end up protecting offenders as well as victims.

Revenge porn was created as a specific offence in the Criminal Justice and Courts Act 2015, Section 33(1) of which says:

It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made

(a) without the consent of an individual who appears in the photograph or film, and

(b) with the intention of causing that individual distress.

There is not mention in that section or that Act of automatic anonymity for victims and it is not an amendment or addition to a Sexual Offences Act which confers such anonymity.

One can completely understand the desire of victims of this offence to be granted anonymity. It is a particularly intrusive and distressing offence. It very often stems from a relationship where there was great trust and intimacy, which later results in the revelation of imagery created during the relationship.

The betrayal, embarrassment and deep distress suffered by victims cannot be underestimated.

However, because of the relationships in which many of these images are created, granting the same anonymity as is currently given to other sexual offence victims will create difficulties in reporting these offences.

Currently there are a range of sexual offences where the victim is given automatic legal anonymity as soon as they report that offence to anyone. These offences include rape, indecent assault, voyeurism, grooming, trafficking for sexual exploitation. This is not an exhaustive list but you can see the range of offending is very wide.

The law on reporting such offences says that you commit an identification offence if you report ‘any matter’ that would lead to someone identifying that person as being the victim of a sexual offence.

What this means in practice is that where there is of has been a relationship between the victim and the accused, the media reporting the case must be careful to blur the circumstances of the case so that no-one can work out who the victim is.

So sexual offence anonymity means much more than just keeping out someone’s name or photo from a report.

The difficulty with granting this level of anonymity in cases of revenge porn is that the very offence itself tells the reader that at some stage the victim was in a relationship with the accused, and one that was intimate enough to result in the accused having possession of this imagery.

I realise that not all revenge porn offences will fall into this category, but many do.

Therefore the identity of the accused will be a detail that would lead to the identification of the alleged victim and media reporting the case would have little option but to anonymise the defendant too.

This will mean that such cases go unreported. The media are accustomed to anonymising victims in sexual offence trials, but if the defendant is anonymous too, then the report means nothing to the reader.

Furthermore, if someone is convicted of such an offence, then surely the community needs to know about their behaviour, so as to warn others who might get into a relationship with them.

The answer could be to give victims some form of anonymity, but one that would not by implication require the anonymisation of the defendant. This solution might appear attractive, but as explained above, it will mean that the victim could be identified by those in their community who knew they were in a relationship with the accused.

Another answer is to give full sexual offence anonymity to victims, but that the Crown Prosecution Service give guidance to the media on what they will regard as an identifying detail triggering media prosecution. This seems to be a bit of a botch and will still lead to the identification of victims.

I don’t have an easy answer to this I am afraid, but these questions must be considered before we legislate and effectively anonymise people guilty of a very serious offence.

The Sun’s ‘Queen Backs Brexit’ splash – issues for IPSO

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A QUICK post on the dispute that has been thrown up by The Sun’s sensational splash claiming that the Queen support ‘Brexit’.

 

The Palace has complained over the story to IPSO on the grounds of accuracy.

A reminder of what Clause 1 of the Editors’ Code of Practice actually says:

1.   Accuracy

i)  The Press must take care not to publish inaccurate, misleading or distorted information or  images, including headlines not supported by the text.

ii)  A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii)   A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv)  The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

v)    A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

I suspect that when IPSO considers this – assuming of course that no agreed remedial action has taken place -it will not boil down to a straight dispute with the Queen’s representatives denying she ever said such a thing and The Sun saying they stand by their sources.

I think that the crux of the matter will be the accuracy, or otherwise, of the headline.

If you read The Sun’s story it might be suggested by the Palace that it does not support the ‘Queen Backs Brexit’ headline. While it may suggest she holds Eurosceptic views which she has voiced in the two meetings mentioned in the story, this does not,in the Palace’s view, amount to ‘backing Brexit’.

It is to my knowledge, the first such complaint by the Palace on behalf of the Queen herself – though complaints have been made in the past on behalf of more junior Royals.

The Sun has robustly defended its story in the past couple of days, saying they had ‘other information’ that meant they were confident the story was accurate. If that information was from a confidential source that could not be mentioned in the story itself it might be enough to defend the story itself, but I am still not sure it shores up that headline.

Of course The Sun will got for the strongest headline possible – Queen expresses Eurosceptic views in meeting with MPs’ is not going to see it flying off the newsstands is it?

It will be a very interesting case to watch when it comes to IPSO for adjudication.

Finally, briefly, can we put to bed any suggestion that The Sun should not have run this story?

Some may think it was wrong for such information to be leaked, but any misdeed is on the part of those leaking the information, not The Sun in publishing it.

The Sun is a newspaper, and a very good one at that, and this is a very big story. If it is confident the story is right then of course it should publish it.

The big question is whether it will get away with that headline.

 

 

 

Sexual offence anonymity – newsrooms beware

Posted by on in Media Law, media law training, social media1 Comment

JOURNALISTS need to be very careful with any detail they report about an alleged victim of a sexual offence, as the conviction of former Sun Editor David Dinsmore demonstrates.

The Sun published a photograph of the 15-year-old victim of Adam Johnson- the Sunderland and England international who was convicted of sexual offences against her last week.

The Sun had done a number of things to try to ensure she could not be identified from the photo – they had changed her hair length and colour; they had removed the entire background of the original photo and they had Photoshopped her onto an entirely unrelated background.

However, this was not enough to avoid a decision to bring an action and for the former editor of The Sun to be convicted.

What journalists should note from this case is the impact a Facebook audience had on identification of the victim. The court said that some Facebook users familiar with the image would still recognise her despite The Sun’s efforts.

It is important to understand the test that is applied to determine whether a victim has been identified here. It is not ‘can any man or woman in the street identify the victim from details in the report’. The test is ‘can someone who already knows this person realise they are a victim as a result of any detail in this report.’

People who know the person will have lots of knowledge of context and background which might allow them to identify a victim where the ordinary man or woman in the street would not.

For example, one newspaper was prosecuted for including the fact that the victim in a case had cerebral palsy. This was given in open court and no order was made preventing publication – the courts expect publishers to make their own judgement here and to exercise proper caution.

That detail would not allow the whole world to identify the victim, but in the context of the case, knowing who the defendant was and the area in which the offence was committed, it was a detail leading to identification and the publication was convicted.

Some points to remember about this area of law:

  • A victim gets legal anonymity as soon as the report the offence
  • That report does not have to be to the police, it could be to anyone – a doctor, teacher, work colleague, passer-by – any third party
  • Anonymity lasts a lifetime and is unaffected by the outcome of any proceedings
  • Adult victims can waive their anonymity, in writing
  • Child victims cannot give such a waiver and their parents or guardians have no legal power to do so either
  • An alleged victim who is subsequently prosecuted for an offence in relation to the report, such as perjury; perverting the course of justice or wasting police time lose their anonymity
  • Prosecutions for identification are sometimes brought against the publication and the ‘responsible journalist’ which is often the editor, but chief subs, night editors and reporters have also faced such a prosecution
  • Prosecution is for a sexual offence

It is this final point that journalists should be particularly wary of – this is a criminal conviction for a sexual offence and can have a massive impact on a journalist’s life.

If convicted you have a criminal record which will come up when anyone does a DBS (formerly CRB) check on you. The result they will receive is that you have been convicted of an offence under the Sexual Offences Amendment Act.

One editor I know was facing such a prosecution and was planning a holiday to the US at the same time. He was told by the US authorities that he would not be granted a visa is he was convicted.

In many cases the CPS has dropped the case against the journalist where the publication itself enters a guilty plea. However, this did not happen in the case of David Dinsmore, a clerical error in this case meant The Sun escaped prosecution whereas he did not.

In my view this is an appalling piece of law. To equate what is often an accidental identification of a victim with an act of sexual violence is repellent. It is yet another piece of law used to criminalise journalism.

Of course journalists should take great care with victims and by all means prosecute them where they do not – but not for a sexual offence. It could quite easily be redefined in a Courts Act, or as a contempt.

Until that happens though, this is yet another area where great care needs to be taken by journalists.

If you want your newsroom properly trained to avoid this, and other legal problems, details of the courses I offer can be found on the Training page.