In this guest post, Faith Gordon, University of Westminster explores how, under UK law, a child’s anonimity is not entirely guaranteed. Faith is speaking at the Information Law and Policy Centre’s annual conference – Children and Digital Rights: Regulating Freedoms and Safeguards this Friday, 17 November.
Under the 1948 Universal Declaration of Human Rights, each individual is presumed innocent until proven guilty. A big part of protecting this principle is guaranteeing that public opinion is not biased against someone that is about to be tried in the courts. In this situation, minors are particularly vulnerable and need all the protection that can be legally offered. So when you read stories about cases involving children, it’s often accompanied with the line that the accused cannot be named for legal reasons.
However, a loophole exists: a minor can be named before being formally charged. And as we all know in this digital age, being named comes with consequences – details or images shared of the child are permanent. While the right to be forgotten is the strongest for children within the Data Protection Bill, children and young people know that when their images and posts are screenshot they have little or no control over how they are used and who has access to them.
Should a child or young person come into conflict with the law, Section 44 of the Youth Justice and Criminal Evidence Act 1999 could offer pre-charge protection for them as minors, but it has never been enacted.
The latest consideration of this issue was during debates in the House of Lords in July 2014 and October 2014. It was decided that the aims of Section 44 could be achieved by protections from media regulatory bodies. But given that, in reality, regulatory bodies and their codes of practice don’t adequately offer protection to minors pre-charge, the government’s failure to enact this section of the law is arguably contrary to Article 8 of the European Convention on Human Rights, which is the right to respect for private and family life.
Once you’re named …
This failure is now exposing a young 15-year-old child. Private details about him were published in print media, online and by other individuals on social media, after he was questioned by the Police Service of Northern Ireland in respect of the alleged TalkTalk hacking incident.
This alleged hacking has been described as one of the largest and most public contemporary incidents of cybercrime in the UK. And legal proceedings in the High Court were required to ensure that organisations, such as Google and Twitter, removed the child’s details from their platforms and to also restrain further publication of the child’s details. But despite injunctions being issued, internet searches are still revealing details about the identity of the 15-year-old.
The attempt to remedy the issue of this child’s identification online highlights the problem of dealing with online permanency. Once the horse has bolted it’s hard to get it back in.
This issue has arisen in a range of high profile cases where children and young people have been accused of involvement in crime. One example is the murder of Ann Maguire, a teacher in Leeds who was murdered in 2014.
When the incident was first reported, many of the newspapers published various details about the accused 15-year-old, including information about where he lived and his family upbringing. The Sun newspaper “outed” the 15-year-old by printing his name.
Allowing the media free rein to name a child before they are charged can later prejudice the fairness of their trial if it proceeds to court. This is what occurred in the case of Jon Venables and Robert Thompson, two ten-year-old boys who were convicted of the murder of a two-year-old. Their lawyers claimed that media reporting had undermined the chances of a fair trial and this had breached their rights. The European Court of Human Rights in its judgment in 1999 ruled that the boys did not receive a fair trial.
While the Northern Ireland judiciary states that there is protection through media regulatory guidelines, my research demonstrates that the revised IPSO Code of Practice – which came into force in January 2016 – fails to provide crucial advice to journalists on the use of social media and online content.
I have called for a clear set of enforceable guidelines for the media, which states that children’s and young people’s social media imagery and comments should not be reprinted or published without their fully informed consent and that all decision making should reflect children’s best interests.
This form of publishing details is a form of naming and shaming, which can encourage or stir up anger, resentment and retaliation in communities. In today’s media hungry world, the chase reveal as much as possible – but it is worrying especially when this naming is done before charge and uses a loophole.
Children who are already vulnerable are placed at further risk. Research I have conducted over the past ten years clearly demonstrates the significance of negative media representations on children and young people, and their manifestation in punishment attacks, beatings and exiling from their communities.
As a youth advocate who works with young people said during an interview with me in 2015: “Really in the society we live in you are guilty until proven innocent … basically people are looking at them [young people] and going ‘criminal’ … it is not right.” Several youth workers I also interviewed stated that releasing details or imagery of children “could damage their health, well-being and future job prospects” and they discussed examples of how identification in the media “led to them getting shot or a beating” in communities.
A report by the Standing Committee for Youth Justice – an alliance of organisations aiming to improve the youth justice system in England and Wales – proposed that in the digital age a legal ban on publishing children’s details at any time during their contact with the legal system is the only safeguard.
It is clear that legislators, policymakers and the media regulatory bodies need to keep up with advances in online and social media practices to ensure that children’s rights are not being breached. Addressing this loophole in the legislation is one step that is urgently required because media regulatory bodies currently lack clarity and suitable ethical guidelines on this issue.
The gap within the criminal justice legislative framework needs to urgently be addressed. Unless it is, there could be further case examples of children who may not go on to be charged but have their details published, shared, disseminated and permanently accessible via a basic internet search.