David Dinsmore – Sun editor convicted for publishing Adam Johnson victim ‘picture’

David Dinsmore – Sun editor convicted for publishing Adam Johnson victim ‘picture’

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Photo from the Guardian

Introduction

We covered the case of Adam Johnson, the Sunderland footballer who was convicted of Sexual Activity with a Child, last week.

As is so often the case in these sorts of cases, plenty of people have been on the internet posting, or claiming to post, pictures of the 15 year old victim.

To be clear, this would be illegal and is a criminal offence (see here for an example).

 

Facts

Shortly after Mr Johnson was arrested in March last year the Sun published a photo of the victim that had been taken from her Facebook page. That landed David Dinsmore, the former editor of The Sun, in Court.

That had, however, pixelated it. DJ Riddle said “It is right and it is indeed clear that there are no facial features identifiable from the photo, the hair colour has been disguised, the hair length has been changed, and the background to the photograph has been altered and indeed there have been other changes relating to, for example, clothing“.

However, the DJ seems to have ruled that a picture is a picture, pixelated or not, and found Mr Dinsmore guilty of the offence.

The Judge was also “satisfied that [Mr Dinsmore] took and the staff on the newspaper took steps that they thought complied with the law“.

Roy Gleenslade at the Guardian has more details of what steps were taken – “The image of Johnson and the girl was cut from the original photo and put on to a white background before photoshopping and airbrushing techniques were used to leave the girl with a “blank egg shaped face without any distinguishing features.”

Furthermore, said Ollason, we “gave her a very different head of hair which is a different shape and length.”

Then a photograph of the Irish president, Michael D Higgins, attending a tree-planting ceremony in a Dublin park, was photoshopped and used as fake background. And there was still more cropping after discussions with in-house lawyers“.

However, it is recorded that “the picture had previously been posted on the girl’s Facebook page for a six-week period and some people were therefore able to identify her from it“.

On the face of it, it is hard to reconcile these two points, If those steps were taken, how was it possible for anyone to recognise her? Unless they already knew who she was. It’s difficult without looking at the picture, which is of course illegal.

Anyway. The maximum penalty is a fine. Mr Dinsmore was ordered to pay £1,300 in costs and directed to pay £1,000 in compensation.

 

The Law

The law is in one way straightforward. It is set out in s1 Sexual Offences (Amendment) Act 1992 :

no still or moving picture, of that person shall during that person’s lifetime … be published in England and Wales in a written publication available to the public“. 

The interpretation section, s6, says that “picture” includes a likeness however produced“.

It was confirmed in the case of O’Riordan v DPP [2005] EWHC 1240 (Admin) that this is a ‘strict liability’ offence – the fact that Mr Dinsmore did not know that he was breaking the law, and was intending not to, is not a defence.

An interesting question is whether what was published was in fact a ‘picture’. This actually caused some discussion (and disagreement) in UK Criminal Law Blog Towers.

On the one hand, although she was unrecognisable, it was still a ‘picture’ of her. On the other, the intention of the legislation is clear – it is to stop complainants in sexual offences being identified, and given that this victim was hidden and there was no danger of this happening, the actions of the newspaper should not have fallen foul of the law.

It can end up being quite an esoteric question – when is a picture a ‘likeness however produced’? For example, what about if Mr Picasso had decided to ply his trade in The Sun –

Is this a 'picture' for the 1992 Act?
Picture from Wikipedia – Is this a ‘picture’ for the 1992 Act?

Would this fall on the wrong side of the law? Do you have to consider how ‘like’ the ‘likeness’ is? Is the real test ‘can the victim be identified from the likeness‘?

This is a question worthy of a philosophy class, as well as for a law class. We hope that Mr Dinsmore takes this matter to the High Court to see whether the DJ got it right.

Is this a 'picture'?
Is this a ‘picture’?

 

Should he have been prosecuted?

Whether or not this should be considered a breach of the law, it does raise the question of whether there should have been a prosecution.

It seems to me that this is arguable, at least against Mr Dinsmore. The Sun is a corporate body and is not hurt by the strict liability nature of the offence. But it is important not to underestimate the impact of a conviction on a person – for example, this may stop someone being able to travel to the USA.

In light of the steps taken, it seems to me arguable that Mr Dinsmore should not have been prosecuted (or, at least, the decision to prosecute should have been revisited when the DJ made the findings of fact that he did.

You don’t need to look at Arts 8 or 10 of the ECHR for this – it has never been the case that just because there has been a breach of the law there must be a prosecution. The Code of Conduct for Crown Prosecutors reflects this.

Here, prosecuting the Sun was the right decision, but I have doubts as to whether the prosecution of Mr Dinsmore was proportionate and necessary in the circumstances.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

15 COMMENTS

  1. Is there an intellectual property specialist at Blog Towers, or at 2 Dr. Johnson’s Buildings? What happens to Mr Bunting when the Picasso heirs recognize an unauthorized reproduction of an image under copyright?

  2. Why on earth was this prosecution brought?

    In March 2015 the Sun was still publishing Page 3 – I’m not saying that should have been illegal, but it was far more offensive to many of the population that this pixellated picture could be.

      • But did they? That is the very question Dan is suggesting the High Court should be asked. I share his doubts over whether this was a picture at all.

        • I’m going to preface my comment by saying I’ve not seen the picture in question…

          While the picture may not have been recognisable in isolation, if you knew the victim was it sufficient to confirm that that was who was being talked about. To continue the Picasso analogy… If you took a Picasso portrait you probably couldn’t identify an individual, however if you compared the picture to (say) 50 people you could probably identify who the subject was.

          Second (and I am prejudiced against the Sun here) I don’t believe the Sun had any thing in mind but printing a picture of the victim in a way that they could “get away” with. It’s come back to bite the editor in the ass… As it should do!

  3. As one poster has already said the Sun’s intention was probably to push the boundaries to see if they could get away with it. Why publish her picture at all she was the victim (or complainant for those of you who insist) at the time. Imagine how it felt for a 15 year old girl who would undoubtedly have recognised her own facebook page no matter how pixelated and no doubt so would many of her friends yet another violation of her. I wish he’d received a custodial sentence that would have hammered the message home.

    • It’s not imprisonable. He could only be fined. he could not be imprisoned.

      having read this and Eloise’s post I have changed my mined and now take the view that the prosecution was right – publication of this pixellated image was nasty and unnecessary. My apologies for having got it wrong previously.

      My only concern is that if the Sun appeals and the High Court holds that an image which is pixellated so as to be unrecognisable is not a picture that will encourage present and future editors to do it again!

      In any event I wonder about laws like this in the days of the internet. Are they really enforceable any more? I mentioned on another thread the Irish newspaper which printed the name of the witness in a rape trial here in its online edition and indeed in the print edition which is on sale here if you know where to look.

  4. Whether or not Dinsmore should have been prosecuted perhaps turns on what the lawyers at the Sun told him. Greenslade says “And there was still more cropping after discussions with in-house lawyers“. Either the lawyers never had the strength or courage to say “just don’t; where is the benefit and why run the risk?” or they made very clear that this was not a bright idea in any shape or form but the editor insisted. The best the lawyers could do at that point would be to roll the turd of a decision in glitter in the hope of distracting from an arguable offence.

    In summary: if a lawyer sold this as a cunning ruse to defeat the offence and satisfied a sceptical editor that there were no risks, then it should only be a corporate prosecution; if the editor came up with the ruse and persisted against advice and common sense then sod him.

  5. Meanwhile on google you are 2 clicks away from a lot more info than this guy has been prosecuted for…

  6. I don’t think he should have been fined for the pixilated image because she lied about one of the charges, didn’t she? How do we know she won’t lie about a sexual act in the future and ruin another man’s life.

  7. Oh dear.

    First, acquittal on one charge does not mean she lied; only that the jury were not sure.
    Second, even if the defendant is acquitted on all charges anonymity still applies unless the court orders otherwise.
    Third, the image was published and the prosecution launched long before the trial.

    L-E-S – would you care to take over and don’t mince your words?

    • Adam Johnson got a guilty verdict because of his own admission and behaviour why attack his victim, who was a child, just turned 15 for what he did to her. He ruined his own life and those of the people around him. People who follow football look up to these men as heroes and role models. Imagine the thrill of getting to meet your footballing idol who you hero worship only to find out that he’s only there for one thing and it’s not to deliver to a signed shirt.

      • There are hundreds of professional footballers in England. The vast majority are law abiding citizens. Johnson is a sad exception.
        In my opinion it is a bit of a popular misconception to look up to footballers as heroes or role model. Ultimately they are just professional sports people who are lucky/good enough to get paid to do the job they love. But it’s still a job.
        There are bent cops, corrupted politicians and uncaring doctors. It’s not just football that has the odd rotten apple!

      • I hope I am not the only one to whom that last sentence brings the horror of it home. Bloody animal.

        I remain sorry for Johnson’s family who will be tainted indefinitely by association. It’s not fair and it can’t be helped. I just hope the girl concerned recovers from it well.

        • For the avoidance of doubt I meant the last sentence of L-E-S’s post:

          Imagine the thrill of getting to meet your footballing idol who you hero worship only to find out that he’s only there for one thing and it’s not to deliver to a signed shirt.

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