Opinion: Time for a rethink on anonymity rules?

Thursday 08 August 2019

Last week, Express pleaded guilty to identifying a child in a news story who is currently linked to court proceedings involving a parent.

We fully accept the ruling of the Court for that offence, which was a fine of £4,000. But the episode does raise wider issues around the way the media can report cases such as this one which merit deeper scrutiny, and potentially a change in the law. Here's why.

The course of action we should have taken in this case was to ask the Court in advance to sanction the identity of this family being publicly released; that is something we can still do, on the basis that the Assistant Magistrate has already stated no harm at all was caused to the child by Express using their name. 

His reasoning was partly that the name is already widely available on the internet, as international, national and regional professional media outlets around the world have all published full details of the story, including interviews with the family, showing names, pictures and videos. 

But the Children's Law in Jersey prohibits that publication (unless the Court pre-agrees it), or even the publication of material which is simply "likely to identify" a child. So, media outlets who normally make their editorial decisions in Jersey (this jurisdiction point is one of the aspects which needs a lot of further clarity) are caught by the law; but all others are not, which, as we understand it, is why it was only Express which was prosecuted. 

Which leads to the current position that an islander is able to gain information from an international publication about this case, but not from a local one - which does seem to run contrary to modern practice in our digitally connected world, where few people would even think twice about using google. 

There is a deeper issue, too. Since the law also prohibits material which is even "likely to identify" a child, then even publishing some details (but not a name) which would allow readers to correctly put a local story together with an international one (which does include the name), would presumably also break the law - so called 'jigsaw identification.' 

So the current strict application of this law, allied to the wide availability of the identity on the internet, actually makes it almost impossible for the local media to report this case in any meaningful way. 

In our case, the Assistant Magistrate noted that we did, of course, have another option - just don't report it at all.

But given it is accepted in this case there was no harm to the child through identification, it would seem odd to forego all reporting of a case, which is clearly in the public interest, in order to avoid a non-existent harm.

And that's setting aside the principle of open justice, in which the media's role is to accurately and fairly present to islanders the workings of the courts acting in their name. 

Pictured: Express's case was heard in the Magistrate's Court.

The reason we believe this issue is one worth pursuing, is that the case involving Express is not an isolated one. 

As a professional media outlet, which regularly covers the workings of the courts, we have to make decisions, similar to the one we made in this case, every single week.

Several years ago we were warned that in cases involving children, we shouldn't publish any details which were likely to identify a child even to someone who already knows the family - which places the 'bar' as to what is acceptable or not, rather higher. The position seems to be that a seemingly innocuous detail, which might mean nothing at all to the general public (or to the journalist writing the story, or the editor proof-reading it), might mean something to a family friend, and allow them to correctly guess the identity of the child being referred to - and then the law has been broken.

So the challenge for the media is not just to remove anything which might identify a child to the general public - a name, address, school, age, parish, for example.  But also to predict which details might mean something to a family friend too...and remove all of those. 

The effect of that is we normally err on the side of caution, and most details are stripped out of court reports which have any connection to a child - despite those details sometimes then being published later in the official court judgements. 

Of course the problem with all this is that every case is different; and so the current 'blanket' law which prohibits all material, in every case, which has even the possibility of identifying a child, even to a family friend, is bound to present some erroneous outcomes; as well as being very difficult for the media to correctly apply, while still following the principle of open justice, and providing comprehensive court reporting.

For that reason, we believe the law here should be changed to bring it closer to the English and Welsh model; there, the media are able to name a child linked to adult proceedings before the Court, unless the Court expressly tells them not to - which it will rightly do, if it believes any harm will result. If not, then the principle of open justice prevails. 

That seems to us to be a very sensible position, and one Jersey should at least consider adopting.