Legal Update: Pixilate and be damned?

In February this year, two national newspapers were not only fined for breaching the Sexual Offences (Amendment) Act 1992, by publishing material likely to identify a victim of a sexual offence, but also ordered to pay her compensation. This is believed to be the first time such compensation orders have been made.

The power to require a defendant to pay compensation for loss or damage resulting from an offence was introduced by the Powers of Criminal Courts (Sentencing) Act 2000.

The Daily Express twice used pictures of a servicewoman in uniform, photographed from behind, and The Daily Telegraph one picture of her during coverage of a court martial, in which a serviceman was acquitted of a sexual assault. The Daily Express was fined £2,700 for one offence, with no penalty for the second, but was ordered also to pay compensation totalling £10,000. The Daily Telegraph was fined £2,000 and ordered to pay £5,000 compensation. Although both newspapers pleaded guilty, the court was told they genuinely believed at the time of publication that the0photographs would not identify the woman.

Interestingly, a third newspaper, which also used a similar photograph, was not prosecuted, as it had manipulated the image to change her hair colour. Although these were not cases of pixilated photographs, the same potential problems arise with such images where some readers may be able to deduce the subject of a photograph's identity. While newspapers often resort to pixilation in order to conceal the subject's identity, rarely do they seek to blot out every possible identifying feature, and courts can have different views about the efficacy of the process.

In a 2003 case, where the editor of the Evening Herald, Plymouth, had directed the partial masking of the face of a 15-year-old found guilty of stabbing a fellow pupil, the publishers were fined £1,500 by magistrates and the conviction was upheld at Crown Court.

The fact that the boy could be identified by family and friends was sufficient, it seems, to convince both courts that the newspaper article was calculated to identify the boy. His father gave evidence that 30 people had phoned to say they had recognised his son. A family friend and a teacher gave evidence of actual recognition.

Only a month later however, in not dissimilar circumstances, a judge dismissed a prosecution against the Evening Telegraph, Peterborough, which was accused of identifying a 17-year-old, convicted of assaulting a pensioner, by publishing a pixilated picture of him.

Although the youth, his mother and two family friends gave evidence to the court, the judge in that case concluded that it had not been established that the youth had been identified and, indeed, he indicated that by pixilating the picture, it seemed that the editor had appreciated the risk and had gone on to try to avert it. In both cases, the Society of Editors' executive director, Bob Satchwell (right), submitted evidence of responsible journalistic practice.

The risk that a compensation order might now be imposed in a case where a court finds pixilation less then comprehensive might, one would suppose, lead newspapers to think hard about what steps they should take to render a photograph's subject truly anonymous.

A recent bizarre case before Newbury Youth Court illustrates something of the pixilation conundrum, although the subject of the images concerned was not perhaps the most deserving.

The magistrates made a most unusual order — and one that could perhaps have been challenged — that no photograph should be published of a 14-year-old girl drunk driver, who had punched the prosecutor in court and hurled water at the bench, despite consenting to the lifting of the automatic ban on naming her.

The media's dilemma was that there was any amount of excellent camera and video footage of the charming young lady, in her designer gear and dripping in bling, throwing eggs at the assembled media throng before she entered the courthouse.

In this case, perhaps, the unusualness of the order and striking nature of the photographs may have had something to do with the modest extent of the pixilation that was generally employed!

Nick Alway is a partner in the media team at Farrer & Co

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