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  5. Obscurity no defence for pixilated pictures of sex crime victims

The lengths to which The Sun went to obscure a picture of the 15-year-old girl with whom footballer Adam Johnson had a relationship were thorough to say the least; not only was her face pixilated, but her hair colour and length were changed and the background replaced with one taken from a picture of the Irish President Michael Higgins.

Yet the paper was still found to have broken the Sexual Offences (Amendment) Act and last week was ordered to pay £1300 costs and £1000 compensation for inadvertent identification after it was claimed that people with access to a private Facebook page where the original picture was visible could match up the two.

News UK chief operating officer David Dinsmore, who was editor at the time, told Westminster Magistrates Court that the paper’s staff had applied  the test of whether an ordinary member of the public would recognise the girl, but Judge Howard Riddle found the paper guilty because the girl could be identified by those people who had seen the original although he recognised that the paper did not realise it was breaking the law.

“Having heard from Mr Dinsmore I am satisfied that he took and the staff on the newspaper took steps that they thought complied with the law,” said Judge Riddle.

The picture was immediately taken down from The Sun’s website as soon as the problem became known, but it still easily accessible online.

The verdict makes is clear there is too great a risk in publishing pixelated and obscured pictures of victims of sex crimes, especially if they are available on social media sites, even private ones. Publishers can’t have any guarantee that other people will not have seen the original  or if they have that they will already be aware of the circumstances. In this case, the probability that those seeing the original on a private Facebook site would be aware of the allegations might have been high but there was no absolute certainty.

Even though this was an English case, with online publication the issue is still very relevant for Scottish publishers, especially with the Victims and Witnesses (Scotland) Act 2014 now fully in place. Identification of anyone under the age of 18 involved in any court proceedings, either as victim, witness or accused, is now prevented which is why the killer of Bailey Gwynne at Cults Academy will never be named.

The danger of using pixilated pictures from such cases is therefore as live in Scotland as it is in England and while some might still want to use obscured images, the only guaranteed way to avoid legal pitfalls is never to republish pictures, no matter how well obscured, of anyone under 18 involved in any court action.

And only with their clear prior approval can a picture of a sex crime victim ever be used, even if every possible means of identification has been removed.