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.
