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Ontario Press Council Decision December 12, 2013 file 2013-12

Matter Regarding: Kippen vs. Toronto Star Canadian military still investigating Afghanistan sexual assault claim ____________________________________________________________________________ Decision: The Council dismissed the complaint regarding the publishing of an identifiable image of a youth who was the victim of sexual abuse. The Council found that it was a reasonable assumption on the part of the newspaper that the photo subject was asked and gave permission for the photography and that he understood it would be used in conjunction with a story to be published on the lives of Afghan Dancing Boys. Additionally, after review of the source documents and photos by the Council following the complaint hearing, it was determined that the youth was reported to be 16 at the time the photo was taken and so was of an age where he is presumed to be capable of giving informed consent. The Council also however, offers discussion on related issues for the future consideration of the Toronto Star. Background: Complainant Darryl Kippen objected to publishing a photo of a young boys face clearly shown while being groomed by his owner The photo accompanied an article (part of a series run by the Star) exposing allegations that Canadian soldiers had been instructed by their superiors to ignore the sexual abuse of young boys. The story details this abuse by Afghani soldiers and citizens during frequent parties at which Afghan Dancing Boys were presented for entertainment and sexual liaisons. Mr. Kippens concern centers on his belief that the Toronto Stars journalistic standards would not permit the publishing of such an image of a Canadian youth alleged to be a victim of sexual abuse. He argues that publishing an identifiable image of an Afghan youth alleged to be a victim of sexual abuse is an unacceptable double standard. The Toronto Star responded that the photo was of an unidentified youth and was part of a series of articles being published by the worlds media in order to draw attention to the exploitation of Afghanistans dancing boys. The Star also asserted that there is no indication or suggestion whatsoever in the photo caption, or the story itself, that this unidentified youth was sexually assaulted and there is nothing to link this dancing boy to any specific charges of sexual assault. Additionally, the Star argued that whether or not the youth is a minor is not known. The Hearing and Issue to be Decided: A teleconference hearing was held on Tuesday November 12 2013 to determine whether or not the publishing of the subject photo was a violation of accepted journalistic standards in general and the Toronto Stars own Newsroom Policy and Journalistic Standards in particular. Participating in the call was the complainant Mr. Darryl Kippen and on behalf of the Toronto Star, Mr. Michael Cooke, Editor-in-Chief and Ms Kathy English, Public Editor. The Ontario Press Council panel hearing the complaint was comprised of Mr. Tim Armstrong, Mr. Jim Palmateer and Ms. Frances Lankin. Also attending on behalf of the OPC was Executive Director, Mr. Don McCurdy and Interim Executive Director, Ms. Pat Perkel.
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The reasoning in the decision which follows is that of the majority of the hearing panel. A dissenting opinion follows the majority decision. Analysis: During the course of the hearing the following considerations were explored: 1. Did the Star have reasonable grounds to assume that the subject of the photo had given permission for the taking and publishing of the photo, and that he had been informed of the intended content of the article to accompany the photo? Does the public interest context of this article (that it was drawing attention to the allegation that the Command in the Canadian military turned a blind eye to this sexual abuse of children) and the belief that the poignant photo would draw readers attention to the article, change at all the consideration of the standards to be met? Does publishing this photo comply with or violate the Stars code of standards, specifically with respect to Children and Crime, Victims of Crime and Privacy? Is it reasonable to assume that there is a very low risk of identifying the subject of the photo? Is it a reasonable defence to assert that the actual age of this youth is not known and it is also not known whether or not this particular youth was the victim of sexual abuse, and that such was never directly suggested in the article?

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3. 4. 5.

We will discuss each of these arguments in the reverse order of their presentation above. (5) The photo in question was taken by journalist/photographer Ghaith Abdul-Ahad, who prepared an expose on the exploitation Afghan Dancing Boys for The Guardian newspaper in 2009. The photo is one nd of a series of 38 photos, all of one male youth, taken by Abdul-Ahad on November 22 2008 in northern Afghanistan. The Star argued that we do not know the age of this youth nor is there evidence that the youth had actually been sexually assaulted. There is no indication that any kind of research was done to check either of these assertions before the Star published this image. We do not find this a compelling defence. The Star article clearly and compellingly communicates information about the sexual abuse of teenage boys. It is entirely a reasonable assumption on the part of a reader that this may be a minor child and that he is being groomed to participate in a dancing party, during which the dancing boys are routinely prostituted. However in the Panels own review of the source articles and photos we reached the conclusion that the Guardian article from 2009 describes in detail (for example, actions and description of clothing etc.) what is captured in the series of photos taken in November of 2008. In the Guardian article the youth is identified by name and the article sets out in his own words that he was the victim of sexual assault. The subject is reported to be 16 years of age. While the Star article did not directly allege the youth was a victim of sexual assault, a very easy search of the source photo turned up the link to the Guardian story and the identifying information. The hearing panel believes that this youth, at the age of 16 must be presumed to have the capacity to give informed consent. That fact that the photo is not of a minor child might have given some comfort to the complainant had that information been ascertained by the Star and provided in response to the initial complaint. However the Star, in their response, did raise other issues that Mr. Kippen rejected as satisfactory to resolve his complaint

(4) The boy pictured is allegedly from a remote Afghan village. The Star argues that is not reasonable to assume that the boy would be recognized by anyone seeing their publication and therefore it is unlikely that the boy would be identified. With respect we disagree. In todays world with the papers large online content, it is possible for this image to be viewed around the world. In addition, with Canadas and in particular, Torontos, large diaspora communities, it is entirely possible for someone who knows this youth to see the photo and identify him. The rapid expansion of readers use of internet news sources raises issues for editorial decision making. We would encourage, where the fact situation warrants, that this concern be taken into consideration in the future. It is, we would assert, no longer possible to rely on an assumption that something that happens in a part of the world far from us here in Canada carries with it greater anonymity than if it happened here. (3) The Stars Newsroom Policy and Journalistic Standards sets out the following of particular relevance to this complaint. Children and Crime: The Star does not publish the names of victims of alleged sexual assaults, or anything that would identify them, unless such victims agree to be identified and the Star considers it in the public interest to do so. Victims of Crime: Editorial staff should show sensitivity when dealing with victims of crime and their families. Crime victims and their relatives should never be harassed for their stories, identities or photographs. Star employees should clearly identify themselves and never use deception. Privacy: Children and teenagers particularly those under the age of 16 who may not fully understand the implications of speaking to the media command a special sensitivity. The Toronto Star Statement of Principles also references standards of privacy. Privacy: Every person has a right to privacy. There are inevitable conflicts between the right to privacy and the public good and the right to be informed about the conduct of public affairs. Each case should be judged in the light of common sense and humanity. In the view of the OPC hearing panel, the decision on this complaint turns primarily on the first of these standards, Children and Crime. Does the Star have reason to believe the victim, in this case the dancing boy in the photo, agreed to be photographed and to have his photo published as part of an expose of Afghan Dancing Boys? A second and equally important threshold set out in the first standard is that the Star must consider it to be in the public interest. With respect to public interest, we agree completely with the Star that this series of articles is in the best tradition of the Stars adherence to the Atkinson social justice principles that guide the Stars editorial policy. Their intent was to join voices with the worlds media in continuing to expose this atrocity of child sexual abuse and to provide a unique Canadian insight to the story with respect to the alleged policy of Canadas military command to turn a blind eye to the ongoing abuse of Afghani children. We will address the issue of the reasonableness of the Stars assumption of informed consent later in this decision. We note here however that the Stars code also speak to a requirement that Children and teenagers particularly those under the age of 16 who may not fully understand the implications of speaking to the media

command a special sensitivity. Although the Councils review determined that this youth was reported to be 16 at the time the photo was taken, it is not apparent that the editors in this case gave any consideration to this standard, presumably because of the assumption that the subject had given informed consent. The Star should be encouraged to apply the same standards of consideration to youth from distant parts of the globe as it would give to a Canadian youth in a vulnerable situation, and consider whether it could have done more to protect this youth, for example by choosing a less-easily identifiable photo.

(2) The context of the article which the photo accompanied has been discussed under the Public Interest consideration. We believe Public Interest, as set out in the Stars standards is one of the important considerations that an editor must take account of, but that it is an additional threshold that must be met. It does not have a special status that would trump the consideration of specific standards involving the identification of a child victim of sexual abuse. In this, the Stars standards are in keeping with recent Court decisions on privacy and public interest. In general, the Courts have ruled that unless a photo is taken in a public place the subject of the photo must give informed consent before the photo is published. Courts have held that a public interest defense does not overrule this principle. In the Councils view this is appropriate and most particularly so with respect to the publishing of the photo of a victim of sexual abuse. We note the well-known case of Jane Doe in Toronto who was a victim of rape. The Toronto media respected a ban on the publishing of the victims name until such time as she herself agreed to be identified. The Star argued they had reasonable grounds to assume that the subject of the photo had given permission for the taking and publishing of the photo and that he had been informed of the intended content of the article to accompany the photo. They provided explanation that the photos had been sourced from Getty Images and that parts of the background story were sourced from Reuters news service and had previously formed part of stories that ran in reputable news outlets like The Guardian (2009) and The Washington Post (2012). The Star explained how news sharing works in the industry and the practice on relying on the adherence to journalistic codes of ethics and publishing standards by other reputable news outlets. As Michael Cooke put it during the hearing.he would much rather rely on an image that is sourced through such outlets than to take one from a Twitter post. The panel agrees. We have reviewed the codes and principles of Getty , Reuters, and The Guardian and as argued, they set out high journalistic standards in keeping with the kind of standards the Star subscribes to. We do
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Getty Images Editorial Policy

Responsibility We believe that photographs are the visual communication of a story and should be held to an equal level of accountability, responsibility and integrity as the written word in journalism. Images illustrate and reflect the events of our world today and therefore have a responsibility to be delivered to the customer with accuracy and impartiality. Integrity Integrity is the driving force behind all that we do and it is a founding principle of Getty Images organization. We maintain the balance of an individual's right to privacy with our obligation to cover the story. Our commitment to integrity is reflected throughout our editorial workflow and our fair and unbiased coverage of the events and stories of today.

Our Practices We have instituted clear and non-ambiguous practices to uphold our core principles. These practices comprise our code of conduct that is expected of all levels of editorial staff, photographers, contributors and partners of Getty Images.
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The Guardian, updated August 2011

not republish all of the codes in this decision but in addition to the Getty ethics standards, their Editorial Policy also sheds some light on the industry practice of news sharing. Credit: (News Service)/Getty Images This credit is based on the long-standing wire service tradition of sharing the editorial process between established news organizations. This credit would only apply when the news service is a well-known and established party that already has an established reputation for following strict editorial procedures that are equivalent to the five key editorial steps followed by Getty Images. News sharing is an accepted practice in the industry and we agree the Star could reliably assume the award winning journalist who wrote the Guardian expose (2009) and is the photographer of the published photo gallery (2008) from which the subject photo was drawn, had adhered to the high journalistic standards of the Guardian for whom he wrote the original piece. The most relevant section of the Guardians Code of Ethics is found under: Professional PracticesChildren Special care should be taken when dealing with children (under the age of 16). Heads of departments must be informed when children have been photographed or interviewed without parental consent. Articles that include significant intrusions into childrens private lives without their understanding and consent need a strong public interest As set out earlier in this decision, the panel has determined that the youth in the photo was reported to be 16 years of age and is presumed to have the capacity to give informed consent. The Panel also found that the youth who was the subject of the photos was also the subject of the interview for the Guardian article and thus knew that the photos were being taken in the context of an interview about his life as a dancing boy. The panel is also familiar with a number of Supreme Court decisions about images and privacy as referenced earlier in this decision, however having found in this case, that the Star had reasonable grounds to assume that the subject of the photo had given informed permission for the taking and publishing of the photo, we determined that we did not have to turn to the reasoning of the Courts in this complaint. . Summary The Council dismisses this complaint. The Council also offers discussion on related issues for the future consideration of the Toronto Star and other member news outlets of the Ontario Press Council.

Children - Special care should be taken when dealing with children (under the age of 16). Heads of departments must be informed when children have been photographed or interviewed without parental consent. Articles that include significant intrusions into childrens private lives without their understanding and consent need a strong public interest justification. In view of the longevity of online material, editors should consider whether childrens identities should be obscured to protect them from embarrassment or harm as they grow older. Consent to publication should be sought where the child is reasonably considered able t make an informed decision. Section 6 (Children) of the PCC (Press Complaints Commission) code should be studied carefully. Press Complaints Commission Section 6. Children *Children in sex cases 1. The press must not, even if legally free to do so, identify children under 16 who are victims or witnesses in cases involving sex offences. 2. In any press report of a case involving a sexual offence against a child i) The child must not be identified.

Minority Dissenting Opinion We agree with all of the majority's ably reasoned decision except the conclusion that there are valid grounds supporting the inference that the youth, by consenting to be photographed, was granting informed permission to have his identity disclosed to the global media. It is acknowledged that the freelance photographer Ghaith Abdul-Ahad was admitted to a preparatory session of the "dancing boys", and subsequently wrote a lengthy story in the Guardian on September 12, 2009 about their activities. The Guardian article is accompanied by an identifiable photograph of the same boy pictured in the Star. The subtitle to the article refers to "the hiring out of young male dancers by older men." The Star's article is more explicit, quoting a Canadian lieutenant-colonel who referred to soldiers saying "they had seen these boys dressed up and taken into a room and then... heard yelling and screaming." The hearing panel's analysis revealed that the picture used by the Star was sourced from Getty and was one of over 30 taken of the same youth by Abdul-Ahad. The boy pictured, said to be 16 years old, is reported in that story to be one of the "boys for play", often abused children whose families had rejected them, and who were subsequently held by "owners or masters" in "a form of sexual slavery, as concubines." The boy in the photograph was interviewed by the writer/photographer, to whom he was reported to have spoken "matter of factly". Given the number of pictures taken, it may safely be assumed that he did not object to being photographed. But even if one goes further and assumes that his specific consent to be photographed was given: to infer that it follows that as a 16-year old youth gave his informed consent and fully understood the consequences of exposing his identity, worldwide, is, to put it mildly, stretching credulity. Consequently, we believe the Star erred in 1 publishing a photograph that clearly identifies him . In doing so, we are of the opinion that it has made him a potential victim of further sexual assault. In the unique circumstances of this case, coupled with today's readily accessible internet global connection to virtually all news media, extreme caution should be observed to avoid potential adverse consequences of such exposure. Neither the assertion that the photograph was sourced from Getty, nor that the Getty code of practices were complied with, should relieve a publisher from this obligation. This is not a case where a choice must be made between freedom of expression and privacy rights, the most important function of the OPC. Indeed, the decision of the Star to publish a photograph to emphasize the appalling nature of the sexual slavery practices in question was entirely justified and is to be commended. However, the Star had access to at least one of the Getty photographs that did not enable the individual's identity to be determined. That is the one that should have been chosen for publication. Alternatively, in the photograph that was used, the individual's face should have been blocked or blurred. For the above reasons, we would have allowed the complaint.

Under Canadian law, the fact that a youth is 16 years of age does not put him/her beyond the protection of the Criminal Code: see, for example, Section 153 of the Code, establishing an exploitative sexual offence involving young persons between the ages of 16 and 18.