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Law Column: Huge Telegraph fine is warning to all


As reported by my colleague back in March this year, David Dinsmore, Editor of the Sun, was fined £1,300 and ordered to pay £1,000 to a sexual offences victim for a breach of the Sexual Offences (Amendment) Act 1992.

The conviction related to the publication of a heavily edited picture of footballer Adam Johnson alongside his 15 year old female victim. The girl was found to be identifiable from the image, in breach of the strict anonymity provisions afforded to her as a victim of a sexual offence.

It’s not my intention to discuss this particular case in great detail, suffice to say that at the time, it served as a reminder to us all that even extensive efforts such as those made by the Sun in altering the image to prevent identification of the victim, simply might not be enough.

This issue has returned to the spotlight in recent weeks following the conviction of the Telegraph Media Group (“the Telegraph”) for the same charge in relation to publication of the same image (albeit altered in a different way).

The Telegraph took the decision to use the image as part of their coverage of the conclusion of the Adam Johnson case, and reportedly did so following legal advice and significant modifications being made to the image to obscure the identity of the girl.

Following publication the Telegraph and its Editor were charged in relation to the use of the image. The company admitted the charges and was fined £80,000, ordered to pay £10,000 in compensation to the victim, £1,473 in court costs and a £120 victim surcharge. Needless to say, the scale of this fine is enormous.

One point that I am sure hasn’t escaped you all is the disparity in the level of fine incurred by David Dinsmore and that incurred by the Telegraph. At the time of Mr Dinsmore’s offence fines relating to this sort of matter were capped at £5,000. His fine was not even at the top end of the scale allowed at the time, which might be down to the fact that he was being prosecuted as an individual, rather than the prosecution being of the company.

By the time that the Telegraph published the photo, following the conclusion of Adam Johnson’s trial, the law had changed so that the level of fines in such cases is unlimited.

Of course, a publisher choosing to use images like the one in these cases is relatively uncommon because of the enormous risk of identification, and the respect which journalists and editors give to the victim’s right to anonymity.  However, the seriousness with which the Attorney General and the courts are treating such cases of identification, along with prospect of an unlimited fine, apply equally to identification that occurs through text, photos, or a combination of the two.

The bottom line is that caution needs to be used when it comes to any matters that might identify a victim of a sexual offence, because as we all know, the level of fine imposed against the Telegraph could cause serious damage to any publisher, especially regional ones.

Whilst we are on the topic it is also worth remembering, particularly in cases such as that of the recently acquitted footballer Ched Evans, that even where the accused is acquitted at trial, the protection around the anonymity of the accuser remains in place. The anonymity applies to alleged victims as much as it does to victims where offences have been prosecuted successfully.

It has been suggested by some campaigners that in cases such as these the media succumbs to the temptation of flouting the law by putting telling a story (and obviously selling that story) above the protection of a victim’s anonymity. Whilst I cannot speak for the media as a whole, having had experience of just how seriously the anonymity afforded to victims of sexual offences is taken by the regional press, it seems inconceivable to me that anyone would deliberately take such a risk, not least because of the serious consequences of a breach.

The threat of an unlimited fine, not to mention a criminal conviction of the company and/or the Editor, should make this an issue at the forefront of the mind of every journalist. This latest case serves as a stark reminder to us all that even significant modifications to an image, or a piece of copy, may not be sufficient to prevent identification.

As my colleague previously said it’s the “unknown unknowns” that can catch you out – so be careful.