David Banks Media Law

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

Author: David Banks

Journalist since 1988, media law consultant, trainer and author.

Image copyright – beware of the bots

Posted by on in copyright, Media Law, media law training, social media, Websites1 Comment

THE internet is a treasure trove of information and imagery, but journalists are finding out to their cost that assuming it is free can be expensive.

Copyright of an image is normally owned by the photographer who took it – unless they did it in the course of their employment, in which case their employer owns it.

Their rights last a long time too. A photographer owns copyright throughout their life and then it passes to their heirs for another 70 years. Material only becomes ‘public domain’ and free to use at the end of that 70-year period.

For freelance photographers, protecting their rights in an image is very important to their livelihood. If a photo is copied online without permission or payment it can drastically affect their income.

Many photographers and large archives are now using technical means to protect their copyright. Some picture archives utilise bots, such as Picscout, to crawl the web looking for unauthorised use of imagery and when they find such use, they generate an invoice.

Use of these technical means to detect copyright beach is on the increase. Pixsy recently signed a deal with Flickr to protect members’ imagery.

The detection can be quite nuanced as well. I have been contacted recently by people who have used a Creative Commons photo, but they neglected to comply with one of the conditions of the commons site where they obtained the photo – they failed to give the photographer a byline.

This omission resulted in invoices for £300 and £400, which the recipients had little choice but to pay – though with my guidance they negotiated the fee downward.

The lesson is, be careful of online imagery, owners can sometimes be determined in pursuing payment using technical means to do so.

If you want an image, contact the owner to get permission. If it is a Creative Commons site, make sure you read the T&Cs carefully and comply with them, so that what should have been a free picture does not cost you money.

If you or your organisation are concerned about this, I provide training in copyright and how to avoid these issues. It can be included in the general media law training sessions that I run, or as a standalone session focussed on copyright alone. For details see my Media Law Training page.

‘Upskirting’ – anonymity for complainants

Posted by on in Media Law, media law training, Sexual offences, Uncategorized1 Comment

AFTER a long campaign, the offence of ‘upskirting’ finally received the Royal Assent and became law on February 12.

It will come into effect two months from that date, so from April 12 it will be possible for people to be charged and prosecuted for the offence under The Voyeurism Offences Act 2019. Someone committing this offence can face up to two years in prison.

This change in the law came as a result of  a campaign by Gina Martin, who was a victim of this when she was at a festival in 2017.

The offence includes taking or recording an image for sexual gratification or to cause humiliation, alarm or distress – so this covers those who capture such imagery ‘for a laugh.’ The law does not specify a male or female victim, and can be committed against any ‘person.’

This is a sexual offence and it is an extension to the offence of voyeurism as set out in Section 67 of The Sexual Offences Act 2003.

This means that complainants in this offence have anonymity under Section 1 of the Sexual Offences Amendment Act 1992.

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Note that the anonymity applies as soon as ‘an allegation has been made’. Very often that will be to the police, but the law does jot actually specify that it has to be to a police officer. So a complainant can be anonymous as soon as they report the matter to a friend, doctor, teacher – in effect any third party.

The law says that ‘no matter’ should be included in any publication that would identify them as a victim of this offence. Any publication would include social media.

Anyone reporting this offence needs to take care. Complainants have automatic anonymity as soon as they report the offence to anyone.

Anonymity is not simply about keeping a person’s name, address, or picture out of a report. It requires you to remove any detail that might allow someone who knows them to identify them from what you publish.

Complainants can waive their anonymity, such a waiver should be obtained in writing and without any duress.

Little addendum to the above. It would now seem that the upskirt photo, as practised by a certain section of celebrity photographer, often when the subject is exiting or entering a limo, and sometimes referred to as a ‘wardrobe malfunction’, will be illegal from April 12.

Contempt of Court and the challenge of social media

Posted by on in Contempt of court, Media Law, media law training, Newspapers, social media, Uncategorized1 Comment

WHEN the Contempt of Court Act made it onto the statute books in 1981 Twitter founder Jack Dorsey was five, Facebook’s Mark Zuckerberg was yet to be born.

Zuckerberg founded Facebook in 2004; Dorsey co-created Twitter in 2006.

Understandably then, the legislators of 1981 could have had no concept of what publication would mean in the age of the Internet. Yet here we are almost 40 years later applying that same legislation to a 21st century digital media.

And it doesn’t fit.

The Contempt of Court Act 1981 was a piece of legislation that attempted to strike a balance between the right of an individual to have a trial free from prejudicial publicity; and the rights of people generally to freedom of expression.

But then prejudicial publication could only be carried out by a handful of national newspapers and there were only two broadcasters in the UK – BBC and ITV (albeit ITV was made up of a number independent regional broadcasters).

Even if you added in regional newspapers you are still dealing with publishers that might number in the tens that might publish something prejudicial about a particular case. Keeping a lid on things was relatively straightforward and the occasional prosecution had the effect of sharpening awareness among those titles that might be pushing at the boundaries.

Now publishers number in their millions. Ordinary users of Facebook or Twitter may not have follower numbers that rival a newspaper’s circulation, but that is to dismiss the viral effect of social media. One tweet is retweeted by ten followers, and ten each of theirs retweet it, and so on. Soon you get up into newspaper circulation numbers.

But for contempt, and other laws, it is not just the viral way in which posts are spread. More pernicious is the way in which users reinforce each other’s behaviour, which can have the effect of encouraging, or condoning, breaking the law.

You see this happening quite often in online communities and it is one of the factors that contribute to so-called ‘trolling’ behaviour.

It works something like this:

  • One user will post something that is close to what is acceptable behaviour, and nothing happens to them.
  • A second user decides they will push it a bit further, still nothing untoward happens.
  • Other users might make encouraging remarks, they might ‘like’ or repost the offending comment.
  • The effect of the platforms algorithms mean all those users interacting in this way get more content like this pushed at them, they all see more of each other’s posts and comments on this subject and others like it.
  • The effect of this is to create a micro-community that validates and normalises this behaviour. They don’t see anything wrong with it because they are all doing it. The normal checks and balances that operate in society to prevent us behaving in a bad way cease to operate in an online community that takes this turn.

You see this with trolling behaviour and harassment online and you see it in commentary on court cases and crime. This is a real problem for contempt law.

Of course, one might take the view that if people behave so badly they can take their knocks with a prosecution for contempt and a hefty fine or even a prison sentence.

The threat of prosecution kept newspapers and broadcasters in line for the most part, why shouldn’t it work for social media?

Newspaper editors and broadcasters sat up and took notice when someone was prosecuted for contempt. It was, and is, reported by the trade press. In-house lawyers would send round memos reminding staff of contempt law. Trainers like me would incorporate examples into our sessions to highlight the dangers.

None of that happens on social media. Facebook doesn’t put out a memo; Twitter doesn’t offer its users any training. To do so would be to accept a responsibility for what their users do and that is a precedent the platforms do no want to set.

So users, unless they keep a very close eye on such matters, do not get to hear about contempt prosecutions. Worse still they do not know about court orders that are meant to have the effect of keeping publishers in line.

When Jon Venables and Robert Thompson were released after a life sentence for the kidnap, torture and murder in 1993 of James Bulger they were made the subject of lifelong anonymity orders forbidding anyone from publishing a picture of them as adults, or revealing anything about their whereabouts or their new identities.

Last month, the actor Tina Malone was issued with a summons to the High Court after allegedly posting a picture said to be one of the killers. Malone has said she did not know sharing such an image was illegal.

In another case Cleveland Police appealed to social media users to show restraint in the wake of the death of a young man in Teesside. Elsewhere trials have been relocated as a result of widespread prejudicial commentary on social media.

Ignorance of the law is no excuse, but generally we all have an idea about the laws we should not be ignorant of, be it anything from speeding to murder.

The orders placed on Venables and Thompson were made 18 years ago. Journalists know about them, it is our job to do so. Is it reasonable to expect people who do not work in media, who might not even have been born when James Bulger died or his killers were released, to know about them as well?

News organisations train their staff to know all this. I know, because I deliver the training to many of them.

You don’t get a beginners’ media law course when you open a Facebook or Twitter account. Perhaps you should, but then, again, to provide this would be accepting a degree of responsibility for what users do, which thus far platforms have scrupulously avoided.

The platforms are uniquely placed to deliver easy-to-understand guidance to their users to try to avoid some of the most outrageous examples of contempt. If contempt law is to survive, maybe it is time they reconsidered their refusal to do so.

  • If you are worried about contempt of court, this post – Contempt of Court and How to Avoid It, is far and away the most popular one on this site, so you are not alone and hopefully will find it as useful as others have.

Identifying children involved in crime

Posted by on in Journalism Ethics, Media Law, social media, Uncategorized, Young offenders1 Comment

THIS post is based on a series of tweets I sent out from my @DBanksy account after a video was posted of an alleged bullying incident involving two schoolboys in Huddersfield.

The alleged victim is a Syrian refugee and the video quickly went viral. There appeared to be a lot of confusion about the legal and ethical issues surrounding the identification of the two boys, which I tried to clarify in the twitter thread.

I thought it would be useful to draw them together here.

Firstly, the law, because it’s pretty straightforward. There is no law stopping you from identifying a child caught in the commission of a crime, which comes a surprise to some, but that the way the law stands at the moment.

A child is not anonymous when they commit the crime; not when they are interviewed by police or arrested; not even when they are charged. They only get anonymity when they step through the doors of a youth court and S49 of the Children and Young Persons Act 1933 applies.

Here it is:

There is a law on the statute books that would close up this loophole and give a child anonymity as soon as an investigation has begun, that is Section 44 of the Youth Justice and Criminal Evidence Act 1999, and here that is…

That would give automatic anonymity to both the alleged offender and victim as soon as there was any police involvement. However, that section of that Act has never been activated, so the relevant law is the 1933 Act which only grants anonymity on appearance in youth court.

This could engage issues of privacy. A school field is, I would argue, a place where there is a reasonable expectation of privacy. However, it is also arguable in relation to the alleged bully, that this is a matter of public interest.

I’m not convinced how strong the public interest is in actually identifying the alleged bully is here. And it certainly does not defend identification of the alleged victim.

So, on to ethics. The Editors’ Code of Practice, as administered by has a few things to say about children. Firstly Clause 6, here…

Then Clause 9 (iii) here…

It is possible to publish material which might otherwise breach these clauses, if it can be show it is in the public interest to do so, and detecting or exposing crime *is* a matter of public interest as defined by the Code.

However, editors are expected to demonstrate an exceptional public interest if they want to override the normally paramount interests of children under 16.

With regard to Clause 9 (iii) anonymity only applies after arrest, and as that has not happened here, as far as we know, does not yet apply. It can also be argued that the identity of the alleged offender is already in the public domain.

So, to sum up, legally you can identify the two boys. Ethically I think it is arguable that you can identify the alleged offender because his identity is already in the public domain. I do not think you should identify the alleged victim.

This is, of course, all a little academic as they have both been identified widely on social media, where no ethical codes exist and where the law often struggles to gain any traction either. Here endeth the lesson.

If all this is useful, please feel free to share widely, but please credit my site and link back. Remember I am available to run training, in person or online, in this and a wide range of media law matters – see details on my training page. I also welcome writing commissions on this or any other media law topic, drop me a line at davidbanksmedialaw@gmail.com.

Distressing images from the Westminster terror attack

Posted by on in broadcasting, IPSO, Journalism Ethics, Media Law, Newspapers, social media, Uncategorized2 Comments

THE attack in Westminster has, like many such incidents before it, produced a number of distressing images and has been the subject of some complaint, especially on social media.

 

The newspaper front pages included pictures of the police officer who suffered fatal injuries in the attack receiving treatment from medical personnel and, notably, by the MP Tobias Ellwood who was one of the first on the scene and who tried, in vain, to save the officer’s life.

There were images of the attacker receiving treatment, and also pictures from Westminster Bridge of a number of people who had been hit by a vehicle driven at speed across the bridge, striking dozens of pedestrians, killing and injuring many.

One piece of video footage shown by a number of outlets, including the BBC, and posted to social media showed, from some distance, the attacker’s vehicle driving across Westminster Bridge, and then a woman could be seen jumping, or being knocked off the bridge and landing in the Thames. She was rescued and was later being treated for serious injuries she received.

Many of the pictures emerged first on social media where they were widely shared. Social media has few ethical constrains and we can only rely on the conscience of those posting.

Subsequently though, this social media imagery as well as pictures produced by their own staff and freelances was used by newspapers and broadcasters on their various channels, social media feeds, online and in print. Here it is subject to the ethical codes to which they must adhere.

The most relevant codes are the BBC Editorial Guidelines, the Ofcom Code and the Editors’ Code of Practice.

The BBC Editorial Guidelines say this: We will respect human dignity without sanitising the realities of war, terror, emergencies and similar events.  There must be clear editorial justification for the use of very graphic pictures.

The Ofcom Code says:

Suffering and distress

Broadcasters should not take or broadcast footage or audio of people caught up in emergencies, victims of accidents or those suffering a personal tragedy, even in a public place, where that results in an infringement of privacy, unless it is warranted or the people concerned have given consent.

People in a state of distress should not be put under pressure to take part in a programme or provide interviews, unless it is warranted.

Broadcasters should take care not to reveal the identity of a person who has died or of victims of accidents or violent crimes, unless and until it is clear that the next of kin have been informed of the event or unless it is warranted.

The Editors’ Code of Practice, enforced and adjudicated by the Independent Press Standards Organisation, says:

Intrusion into grief or shock

In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.

I did see some people arguing that no pictures should be used of the scene, even where the dead and injured could not be reasonably recognised. This, I think, is not realistic, or desirable. Of course as a journalist or broadcaster, one can describe the scene in words alone, however, a picture or moving image conveys so much that words cannot. It informs us of the human impact of such an event. People skate over words, pictures halt them in their tracks and increase their understanding of an event.

The question then is did the imagery used contravene any of these codes?

With regard to the pictures of the police officer, PC Keith Palmer, in all the pictures I have seen, the officer’s face is not visible in any of them. No-one seeing them could realistically identify him from them. Of course those close to him might have feared it was him, but then so, I am sure, did the families of many other officers who serve in and around Parliament.

If an individual at the scene posted to social media an image from which he could be identified, that is a matter for their conscience.

The video footage of the woman who fell into the Thames was shot from a long distance. She could not be recognised in any way, nor could any of the victims on the bridge be identified from this footage. What it showed was the speed with which the car was driven across the bridge. I do understand that it would distress the family of the woman might feel, once they know it was her they were seeing fall. But surely the source of their distress is the fact she was one of the victims of the attack, not that she was included in the media coverage of it?

The images used of victims on the bridge, as far as I have seen, are not identifiable. Faces have been pixelated by the media using them, or else they have chosen images where the person’s face is not visible. Of course people whose friends and family were in the area will be distressed and anxious knowing they were there, but we cannot stop reporting because of this. If anything there is an even greater need to put out as much accurate information as we can. From what I saw of coverage, that is what newspapers and broadcasters tried to do, and in a confused, frightening and shocking situation, they did their job well.

Because of social media, it is perhaps easy to see this as a new moral dilemma for those covering incidents like this, but it is far from it. We have had to confront the ethics of using distressing imagery for many years now, probably since the camera was invented.

Many will remember the image of the ‘falling man’ tumbling from the burning World Trade Centre on 9/11. When terrorists attacked a school in Beslan, the siege and subsequent deaths of 385 people, including children was played out on live TV. When Kim Phuk ran screaming, burned by napalm, from her villlage in Vietnam, was photographer Nick Ut right to take her picture, given that many credit it with hastening the end of that war?

There are no easy answers, and journalists will always have to balance the public interest against a gratuitous use of imagery that is distressing. Now they have to make those decisions in the knowledge that someone else might have taken the same picture, but have no compunction about posting it on social media.

Reporting Restrictions in Ambridge (Slight Return)

Posted by on in Media Law, The Archers, Uncategorized2 Comments

THIS is a quick addition to the earlier post on this subject, following Helen’s revelation in the witness box that she had been repeatedly raped by her husband, Rob Titchener, in The Archers this week.

Someone reporting a rape or other sexual offence usually has lifelong anonymity the moment they make that report. It does not necessarily have to be to the police, it could be to a doctor, friend, work colleague – the anonymity is activated by their making it known they have been the victim of such an offence.

However, Helen made the report during the testimony in her trial for the attempted murder of Rob. This changes things considerably when it comes to her anonymity. According to the law if a report of an offence emerges during ‘other’ proceedings (other than proceedings for the sexual offence itself) then the complainant has no anonymity.

This measure was originally intended to deal with complainants who were subsequently charged with perjury, perverting the course of justice or wasting police time, to ensure that the anonymity that would normally apply does not do so any longer. Because of the way the law was phrased, the exception also applies in situations like that of Helen – where a report of a sexual offence emerges during testimony at a trial for another offence.

So, Helen would have no legal right to anonymity at this stage. What of ethical codes though, does the Editor’s Code of Practice have anything to say on this?

Clause 11 of the code says- The press must not identify victims of sexual assault or publish material likely to contribute to such identification unless there is adequate justification and they are legally free to do so.

I would think, that in Helen’s situation, where granting her anonymity in the middle of her trial would make it very difficult to continue reporting at all, many editors would decide that there was adequate justification for continuing to identify her.

What next though? If she is acquitted (at the time of writing her trial was still ongoing) the police may decide to pursue the allegations of rape she had made against her husband. In such a case, legally, anonymity would begin to apply to her.

However, on her acquittal, she may, perhaps, agree to be interviewed on the matter, and if she waived her anonymity then it would continue to be waived in any subsequent proceedings against her husband.

Stay tuned, I will try to keep up with any other legal issues this Archers plotline throws up.

Seven deadly sins of court reporting

Posted by on in Contempt of court, Media Law, media law training, Newspapers, Uncategorized3 Comments

COURT reporters, what are they then?

Well you may ask, because if you believe reports of the industry, they are a dying breed.

But then, they were dying back in the days I was numbing my backside on the press bench of Wrexham Magistrates Court as a wet-behind-the-ears junior reporter on the Evening Leader.

It is true that as the regional press has de-staffed, sorry, management-speak, cut jobs, increasingly the dedicated court reporter posts have decreased.

But the courts do still get reported, and my first editor, Reg Herbert, who would demand ‘every cough and spit’ from Wrexham Mags, I still believe that they are the best free show in town. All human life is there and it is no coincidence that Dickens was a court reporter, his novels populated by the characters he came across in the courts.

If you are a junior reporter heading to court for the first time, or a blogger who has spotted a gap in the market, here are seven deadly sins all court reporters should avoid…

  1. Don’t use your mobile phone. You can, usually, use your phone to file copy by email, or to text your newsdesk. The courts have been told that this should generally be allowed, and only in special circumstances should it be forbidden. If you have your phone turned on, make sure it is switched to silent. One reporter was more than a little embarrassed when, during the sentencing of a murderer, his phone went off playing a rendition of The Gay Gordons
  2. Don’t use your mobile phone as a camera. That souvenir selfie of your first day as a court reporter could see you spending your first day in the cells below. Photography during court proceedings is against the law, as various notices around the court will tell you. Taking a photograph with the court administration’s permission – such as of a retiring magistrate in an empty courtroom for a feature – would be fine. Thanks to Twitter follower Tom Webb for reminding me, you’re not allowed to use a phone, or any other device to record the proceedings either. Get a notebook, pen, and learn shorthand.
  3. Don’t bow. You will see officers of the court – the lawyers and ushers, bowing to the judge or magistrates as they leave or enter the court. I have seen some court reporters do this, but there really is no need. You are not involved in the proceedings, you are just reporting them.
  4. Don’t be intimidated. Court staff are overworked and can, sometimes, be less than helpful. Remain studiously polite, but insist on the information that you need in order to produce an accurate report of proceedings. Courts are under instruction from the Ministry of Justice to make court lists available, so make sure they give them to you when you need them.
  5. Don’t forget your law. You’re not expected to know the criminal law inside out, but you needs to know the basics for court reporting. Libel, specifically privilege defences for court reporting; contempt of court; reporting restriction on preliminary hearings; anonymity rules for children and sexual offences to name but a few. This is where I come in, I run training sessions on all this and I’m cheaper than getting a massive fine or paying libel damages. See my training page for details of the courses I run.
  6. Don’t forget court reports are about people, not the process. Don’t get caught up in the terminology or the complexities of the law. Tell the human story about the offence, the perpetrator, the witnesses and the victims.
  7. Don’t use a picture of a gavel to illustrate a court report. This is a courtroom, not an auction and they don’t use them in UK courts, ever. I’ll laugh at you if you do, as will the Twitter account @igavels, which was set up to highlight such abuse.

Why the media should not back Brexit

Posted by on in Contempt of court, Media Law, media law training, social media, Uncategorized2 Comments

THIS is a hard sell, I know, but Paul Dacre, editor of the Daily Mail, should love the European Union.

Every day, he, along with every other UK newspaper editor, should pen a love letter to the bureaucrats of Brussels.

They should be praying fervently that on June 23 we vote Remain and stay in the EU.

Why? Because it is the only thing keeping him, and every other editor, website owner and blogger out of jail.

Anyone who allows third party content on a site under their control ought to give thanks we are in the EU where they are under the protection of the catchily-titled Electronic Commerce Directive 2000/31/EC.

This is a very useful bit of Brussels bureaucracy that was enacted to protect those providing platforms for others to access internet publication. So it protects ISPs and it has always protected newspaper forums – where readers get to express an opinion online about content.

Now, I don’t know whether you’ve ever been ‘below the line’ on a Daily Mail story, but it can be a very, very strange place to be. On stories involving race, gender, immigration and refugees, it is like lifting a rock on society and seeing the ugly stuff scuttling about underneath.

And this is not behaviour confined to the Daily Mail either. Recently The Guardian analysed comments made on stories on its site and while much was positive, there was nevertheless a range of comment that was ‘crude, bigoted and vile’.

The directive also protects any website with a comment function and it protects bloggers like me when people comment on my posts. As I said, enormously useful and given to us by the EU.

Often the main concern about online forums is the threat of libel and we do have our own homegrown bit of law that protects us in the Defamation Act 1996. The defence of innocent publication says that as long as you did not know the material was there and removed it promptly when notified, you do not have a liability.

But this very good bit of law only protects us against libel, nothing else.

Now, let’s delve ‘below the line’ again in a newspaper forum. You will soon see all manner of legal liability is to be found there, not just libel.

You can find contempt of court, harassment, inciting hatred, breaches of privacy and copyright violation to name but a few. Now, to be prosecuted for some of these offences it would need to be shown that we had some form of intent to commit an offence. But with some offences, such as contempt of court, there is no such requirement – if you’ve got the content on your site, you’re guilty.

The beauty of the EU directive is that it protects you from all legal liability for user-generated-content, not just libel.

At the moment if you are hosting a site which attracts content like that, you are protected by the EU Directive, so long as you are acting as a ‘conduit for publication’. If you are not actively editing or pre-moderating the content then you do not have any legal liability for it unless you leave it up on your site once you have been notified of it.

This defence also protects platforms like Twitter and Facebook against liability for anything posted by their users.

So anyone running a ‘lively’ forum better hope we stay in the EU.

If we don’t, then start hiring moderators, lots of them.

Reporting restrictions in Ambridge

Posted by on in Contempt of court, Media Law, media law training, Newspapers, The Archers, Uncategorized1 Comment

PITY the poor court reporter on the Borsetshire Echo.

After years numbing their backside on the narrow press benches of that farming county’s courts, faithfully recording drink driving, poaching and a bit of argy-bargy of a weekend outside The Bull, they suddenly have a much bigger story on their hands.

You don’t have to be an Archers fan to know this tale of country folk has taken a sinister turn recently, culminating in Helen Titchener, nee Archer, plunging a knife, twice, into her abusive husband, Rob, almost causing a demise that many fans would have deemed rather timely.

The storyline, which has been building for a couple of years, has done a great deal to raise awareness of domestic abuse and the sort of ‘coercive control’ exerted by Rob on Helen. The reaction from the public has been extraordinary, summed up by the amazing response to an appeal launched by Paul Trueman, @paultrueman74 on Twitter.

He set about raising £1,000 for the charity Refuge, which helps victims of domestic violence. He set up a Justgiving page and the sum raised now stands at more than £127,000 .

Rob survived, Helen is behind bars awaiting trial, and her brother Tom has had a characteristically good whinge about the press coverage of his sister’s situation.

But what can the media report, if anything? Tom, while perusing the newsstands on the Sunday after Rob’s near-death, was horrified at the coverage – “They’re not meant to print anything,” he said, setting the teeth of this old court reporter on edge, and not just because of his shrill tone.

I doubt very much that Helen’s alleged offence would have attracted the attention of any national newspapers at this stage. She didn’t kill him, and there is nothing about her, or Rob, which would normally attract the attention of a national newspaper news desk, in my opinion. But let’s give the scriptwriters that bit of licence, as it allowed Tom to give the redtops a bit of a kick, which always plays well to middle England of a Sunday as they listen to the omnibus edition of The Archers, while reading their….er….redtops.

What then, are the rules on reporting this offence?

Firstly, when Helen was arrested, that means that proceedings in the case had ‘become active’ – the judicial ball is rolling and at some point in the future, Helen might face judge and jury. That means that any reporter working on the story ought to keep a weather-eye on the Contempt of Court Act 1981. This says that once proceedings are active you must not publish or broadcast anything which creates a ‘substantial risk of serious prejudice, or serious impediment’ to the proceedings.

So, what does that phrase mean? Is it a blackout on all coverage of the case?

Well no. The Contempt of Court Act was brought in to substantially replace the old common law of contempt, which was too draconian, and the new statute was intended to strike a balance between rights to a fair trial, and rights to freedom of expression.

So, as long as any detail you publish is not seriously prejudicial, then it should not cause you any difficulty. Note that prosecutions for contempt have to be authorised by the Attorney General, and cannot be taken against you by Borsetshire’s barmy magistrates, or even crown court judges – they have to refer it to the AG.

The sort of details that would be prejudicial are:

  • PIctures, E-fits, descriptions or video of a defendant ‘where identity is at issue at trial’ ie the accused is saying ‘it wasn’t me guv’nor’. There may be an ID parade and if you have published a photo, that reminds the eyewitness who to pick out, and it destroys the admissibility of their evidence. The Sun was fined £80k for this, and its then editor Kelvin MacKenzie was fined £20k. This is clearly not the case with Helen, but we often don’t know that for certain in the early stages of an inquiry, so you have to err on the side of caution.
  • Assumptions of guilt. Helen is not yet ‘the attempted murderer’ it is an allegation and can only be reported as such.
  • Evidence that will be disputed at trial. Be it Helen’s threat to kill her husband on Maundy Thursday, or Kirsty’s tales of Rob’s abuse that you have unearthed, you cannot report them yet. They cast the defendant and the victim in alight that might sway a juror, so should be avoided until the trial concludes.

Proceedings remain active until sentence according to the Act, but in practice you can run your background articles as soon as Helen is acquitted and carried shoulder-high from court…..sorry, or found guilty. Once either of these things happen, the jury is out of the equation and can no longer be influence by what you publish.

When Helen appears in court a different set of restrictions apply to what can be written. In the preliminary hearings before trial a report is mean to be restricted to:

  • Name of the court and magistrates
  • Name, age, address, occupation of the defendant
  • Names of the lawyers involved
  • Charges or a summary of them
  • What the court decides about the case – adjournment, allocation for trial etc
  • Arrangements for bail – residence, curfew etc
  • Whether legal as was granted

Pretty thin stuff, very procedural, as you can see. But if the Borsetshire Echo’s court reporter has anything about her, or him, they won’t let those restrictions get in the way of giving their reader a taste of court.

Descriptive passages detailing the oak-panelled grandeur of Felpersham Magistrates Court will be fine. Describing the organic, tie-dyed t-shirt that Helen wore for her first appearance will be ok too. Her mother, Pat, weeping in the public gallery, sitting beside Tony wringing his hands, again, will not be a breach of this law. What would be a problem here would be reporting any detail of prosecution evidence against Helen. A potential juror might read it and be more likely to find her guilty as a result.

However, if Helen’s counsel Anna Tregorran QC, wants to state during proceedings, or after, on the steps of the court, that her client would be vehemently denying the charges and expected to be acquitted on due course, that would be OK to report. Jurors are told to presume the defendant is not guilty and Ms Tregorran’s statement is merely affirming that. However, if Rob’s venomous mother Ursula, were to make a statement proclaiming that Helen was bang to rights, it’s a fair cop, she’s going down – that would not be allowed.

I also foresee a potential problem when this case comes to trial, in the shape of Helen’s young son, Henry. He witnessed the entire incident and will be called as a witness at trial. In such a case it would be very likely that the court would choose to anonymise him using a Section 45A order of the Youth Justice and Criminal Evidence act 1999. This would make reporting his evidence a little difficult.

The law says that any detail which allows someone to identify him is an offence. In such a case, even his age might be seen as an identifying detail. Caution is needed, and if in doubt the Echo’s court scribe ought to get some guidance from the judge on what details about Henry are likely to attract his ire.

One thing to note. Reports of trial proceedings are protected against a libel action by a defence called absolute privilege, for a fair, accurate report published at the same time as  the proceedings. So when, as I fully expect, Anna Tregorran shreds Rob Titchener in the witness box, revealing him as an abuser and a rapist, the Echo is free to splash that across its front without fear of Rob going to law.

I hope the Echo’s staff find this useful. If the editor is reading, I could squeeze a law refresher for the staff in before trial commences.

All of the above assumes that the scriptwriters aren’t going to throw us a curve ball and have Eddie and Joe Grundy spring her from a prison van and hide her away in the wilderness of rural Borsetshire. We live in hope.

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.