I got into an interesting twitter discussion a few days ago with a journalist who had run a story* about a woman convicted under the Malicious Communications Act 1988 (MCA) for uploading a sex tape involving a former friend of hers. The story named the offender, but also the victim, and I asked Luke Traynor, the Mirror journalist, whether he had considered not naming the latter, who was the victim of what I described as a “sexual crime”. To his credit, Luke replied, saying that he’d “Checked the law, and she’s not a sexual crime victim, but a victim of malicious communication”.
I think Luke is partly correct – a victim of a section 1 MCA offence is not classed as a victim of a specified sexual offence pursuant to section 2 of the Sexual Offences (Amendment) Act 1992, and is not, therefore, automatically granted lifetime anonymity from the press under section 1. This is the case even where – as here – the crime was a targeted attempt to embarrass or damage the victim on the basis of their sexual behaviour. The Mirror even described this case as one of “Revenge Porn” and, indeed, moves are currently being made to create a specific offence of disclosing private sexual photographs and films with intent to cause distress (clause 33 of the Criminal Justice and Courts Bill refers). If that Bill is passed, I would argue that serious thought should be given to awarding anonymity to victims of this offence.
But merely because statutory anonymity was not available to the victim of the offence reported by the Mirror it does not mean that it was right to name her, and (as you might expect from me) I think that data protection law is in play. Information relating to an identifiable individual’s sexual life is her sensitive personal data, afforded particular protection under the Data Protection Directive 95/46 and the UK Data Protection Act 1998 (DPA) to which it gives domestic effect. Publication of sensitive personal data without one of the conditions in Schedule 3 of the DPA being met (and I cannot see which would be met in this instance) is as a general rule unlawful. There is though, at section 32 of the DPA, as I have written about recently, an effective exemption from most of the Act for personal data processed only for the purposes of journalism. I suspect The Mirror, or any other media outlet naming the victim in this case, would claim this exemption, but it is important to note that, as broad as the exemption is, it can only be claimed if
the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and…the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with [journalism]
I invited Luke to explain whether he thought that publication of the victim’s name was in the public interest, but his reply
It was said in a public court, in accordance with the law, which takes into account ethics and public interest
did not really deal with the section 32 point – just because something was said in public court it does not mean that it is in the public interest to publish it. And unless Luke (or, rather, the Mirror, as data controller) reasonably believed that it was so, the exemption falls away.
Of course, in the absence of any complaint from the individual, all of this might seem otiose. But I think it raises further important issues about the extent of the section 32 exemption, as well as whether there should be some clearer right to privacy for victims of certain types of communications offences.
And, as Tim Turner pointed out, this sort of story shows why some might want to exercise a “right to be forgotten” – if unnecessary and unfair information is published about them on the internet, can some people be blamed for wanting it removed, or made less prominent?
*I have avoided linking directly to the article in question for reasons which should be obvious, given the content of this post. However, it is not difficult to find. That, of course, is the problem.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.