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| Bernard Goldbach via Flickr CC BY 2.0 |
The relevant provision of the country's Justice (Sexual Offences and Trafficking Victims) Act 2022. Attorney Fergal McGoldrick of Carson McDowell in Belfast detailed the law for The International Forum for Responsible Media Blog in October 2023, just after the law took effect.
The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.
I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.
I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.
We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.
These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.
Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.
There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.
The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.
Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.
Our editorial hearts sank. Had we protected the wrong person?
My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.
Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.
In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.
So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start.
I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.
Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.
In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.
McGoldrick wrote "that since Bloomberg most media organisations have, save in exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such identification is in the public interest."
Maybe the world isn't the worse for it.
