Preserving the anonymity of victims

In July, the story of ex-US Marine Toby Studabaker’s disappearance with a British schoolgirl he met through the internet attracted huge media interest. Police released details of the pair in an effort to locate them. The news reports, many of which remain on the internet, named and contained photographs of the girl and Studabaker.

Last week, Studabaker was extradited to the UK on charges of abduction and on an additional charge which falls within the Sexual Offences (Amendment) Act 1992. The act prevents the identity of the alleged victim being disclosed. Her name, address and image may not be published during her lifetime. Stories that enable “jigsaw” identification are also prohibited. Essentially, nothing can be published which would lead members of the public to identify the victim. If convicted, an editor or publisher can be fined up to £5,000.

Navigating the law in this area is straightforward where the story breaks only after the allegation of an offence has been made. The identity of the victim can simply be omitted from the article. The difficulty arises where the alleged offender and victim have already been identified.

The Studabaker case leaves media organisations in a dilemma; how can the extradition be reported without committing an offence? Reports should not name the schoolgirl, nor refer to matters that might lead the public to identify her. However, her identity is already widely known and previous stories about the pair remain abundant and publicly accessible on the internet. In reality, her identity is a mouseclick away for anyone who wants to know it.

The media may also fall foul of the Contempt of Court Act 1981 if their reports impede or prejudice the criminal proceedings.

Archive articles on the internet have recently been held by the Scottish High Court to be “published” for the entire period in which they are accessible (HM Advocate v Beggs (No.2)). Thus if proceedings become active at a later date, the archived article can still cause the publisher to be in contempt, particularly if it is still accessible through links or general search engines.

Where circumstances change, news organisations find themselves struggling to operate within the law. Previously innocuous stories can suddenly leave publishers vulnerable once they have notice that charges have been laid. Should they remove all the archived stories from their website or simply omit the victim’s details in future stories? What about their right to freedom of expression? As it stands, the law leaves publishers adrift in these circumstances. It seems unrealistic and disproportionate to delete all the archive material on the internet.

News organisations can guard against future deliberate direct identification, but it seems unlikely that a prosecution would be brought for contempt or under the Sexual Offences (Amendment) Act in relation to news stories already in the public domain, especially if – as in the Studabaker case – the information was placed there by the police.

Catherine Hurst is a trainee at Addleshaw Goddard

by Catherine Hurst

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