Out-Law News | 03 Oct 2007 | 12:25 pm | 3 min. read
Kim Walker, an intellectual property and media law specialist, said that FHM is running a risk far higher than the wrath of the Press Complaints Commission, which ruled against FHM in August. The incident could have resulted in a prosecution under child pornography laws, he said.
The Sentencing Guidelines Council published guidelines for judges on sentencing for indecent images of children earlier this year. The recommended sentencing range for an offender who has traded in images depicting "erotic posing with no sexual activity" is one to four years in prison.
The girl's parents complained to the Press Complaints Commission (PCC) about the photograph appearing in the magazine earlier this year. The girl's parent's said it had been published without consent and intruded into their daughter's privacy in breach of the PCC's Code of Practice.
According to the ruling, the publication of the photograph had a significant effect on the girl emotionally and at school. The photograph was taken in 2005 when she was 14.
The picture appeared as part of a gallery of snapshots sent in by readers. The magazine, published by Emap plc, said that it received approximately 1,200 photographs for publication each week from or on behalf of women posing topless or in lingerie. According to the PCC, "[The magazine] was extremely surprised to learn that the photograph was taken when the complainants' daughter was 14 years old as she certainly appeared to be older."
FHM had been informed that the girl was in a cohabiting relationship with the person who submitted the photograph and, in those circumstances, no further enquiries about the image were made.
The PCC ruled that publishing the picture was a significant breach of the Code's provisions on the right to respect for privacy. "This would have been the case regardless of how old she was, but the Commission was particularly concerned about the impact on the girl in light of her youth," said the ruling.
"The magazine had clearly not taken any sort of adequate care to establish the provenance of the photograph and whether it was right to publish it," it said.
Walker, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM, said the incident could have resulted in a prosecution under child pornography laws.
"If the worst that happens is some bad publicity for the magazine and a warning from the PCC, the publisher is fortunate, because company directors could go to prison over mistakes like this," he said.
The PCC's Code of Practice still defines a child as a person under 16 but the Protection of Children Act defines a child as anyone under 18.
Under the Act, which has been updated since being passed in 1978, it is an offence to take, permit to be taken, make, possess, show, distribute or advertise indecent images of children in the UK.
Walker said that there is not a safe way for publishers to encourage users to submit erotic pictures for publication in a magazine.
"Even with salacious pictures of adults, this is a high-risk area," said Walker. "The publisher needs the consent of the subject – and there's no easy way to get that consent online. How can you be sure that the subject is giving consent to publication in a magazine? Getting it wrong exposes a publisher to damages for distress and that distress could be very significant."
"The judgement call on whether someone is 17 or 18 is also incredibly dangerous," he said. "Make a mistake and your directors could be facing jail."
BELOW: The call for pictures at FHM's website
Walker said that a publisher faces a higher risk printing user-generated content in a magazine than online, if images can be added to a site without an approval process. But he does not recommend it.
"If there's no checking of images, the law says you are not liable for images that are removed quickly once you are notified of a problem," said Walker. "But a court might look unfavourably on a site that actively encourages topless pictures. It's not automatically illegal, but it's walking a fine line."
Publication in a magazine would not benefit from this legal protection for web hosts; and FHM's website upload process makes clear that every image is reviewed before publication – which means that the publisher loses any protection for illegal images that appear online or in print.
Walker said cases like this also present a brand protection issue. "Big publishers just won't want to be associated with this kind of risk," he said.
Emap, with a stable of more than 200 brands, is the UK's second largest publisher of consumer magazines. Other popular Emap titles include Q, Grazia and Heat.