Background
In early 2015, there was a story in the media about a child victim known as Zephany Nurse, although this is not her real name. A woman had allegedly kidnapped her from the hospital in which she was born and subsequently raised her as her own child. It was only once Zephany was 17 years and 9 months of age that her biological parents found her and that DNA tests proved she was their child.
The facts of the story were unusual and as such, the media wanted to publish all the information about it, including the identity of the child concerned. However, the child did not want her identity to be made public.There is a law that protects the identity of children who are witnesses in criminal matters. The law does not specifically say that the law applies to children who are victims in criminal matters. It is important to establish whether a child who is a victim of a crime is protected by this law or not.
For several decades, this law was interpreted to mean that the protection of the child’s identity lasts after they turn 18 years of age. More recently, however, the media has begun to interpret the law to mean that when children turn 18 years of age, they are no longer protected by that law and their identity can be made public. Journalists were threatening to make Zephany’s identity public once she turned 18 years old. She obtained the services of lawyers at the Centre for Child Law, a law clinic. On 21 April 2015, the court gave an order which prohibited the media from publishing her identity. This protection continues, pending a court hearing which will determine the ambit of the law. The hearing occurs in the Pretoria High Court on Thursday 9 January 2017 and Friday 10 January 2017.
Relevant Law
Publication prohibition
“Prohibition of publication of certain information relating to criminal proceedings
No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of eighteen years or of a witness at criminal proceedings who is under the age of eighteen years: Provided that the presiding judge or judicial officer may authorize the publication of so much of such information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person.”(section 154(3) of the Criminal Procedure Act)
Child’s best interests
“A child’s best interests are of paramount importance in every matter concerning the child.”(section 28(2) of the Constitution)
Dignity
“Everyone has inherent dignity and the right to have their dignity respected and protected.”(section 10 of the Constitution)
Privacy
“Everyone has the right to privacy, which includes the right not to have-
- their person or home searched;
- their property searched;
- their possessions seized; or
- the privacy of their communications infringed.” (section 14 of the Constitution)
Freedom of expression
“Everyone has the right to freedom of expression, which includes-
a. freedom of the press and other media;
b. freedom to receive or impart information or ideas;
c. freedom of artistic creativity; and
d. academic freedom and freedom of scientific research.” (section 16(1)(a) of the Constitution)
Open justice principle
“Except where otherwise expressly provided by this Act or any other law, criminal proceedings in any court shall take place in open court, and may take place on any day.” (section 152 of the Criminal Procedure Act)
Main Arguments: Applicants
First argument: Child victims must also be protected
Firstly, the Applicants will argue that section 154(3) also applies to child victims, and not only child witnesses and child offenders. The reasoning behind this is that some child witnesses are child victims until they are called upon to testify by the court. Until that point, they are vulnerable to having their identity exposed. If their identity is exposed prior to them being called as a witness or an offender, then the protection provided to them as a witness in section 154(3) will have no effect and cannot be undone. Sometimes perpetrators are never brought to court and the child victim is never called as a witness – why should this make them more vulnerable to identification?
Expert evidence by four experts is also included in the court papers (see paragraphs 70 – 97 of the Applicant’s heads of argument). The experts explain how essential it is to protect a child victim’s identity as identification in the media can have catastrophic effects on the child concerned. The experts identify four types of psychological harm that can be caused through identification in the media, namely trauma and regression, stigma, shame and the fear of being identified.
Second argument: Child victims, witnesses and offenders require identity protection after they turn 18 years old
The second main point that the Applicants are trying to convey is that section 154(3) applies to child victims, child witnesses and child offenders until they turn 18 and after they turn 18 years of age. The harm identified above remains a possibility after the child turns 18 years of age. In addition to this, the children concerned can suffer regression should they be identified in adulthood, and all the work done on rehabilitation or trauma management will be undone. Children under 18 will also suffer the fear of being identified when an adult, and this may adversely affect decisions that are made regarding their participation in the criminal proceedings. Further harm caused by identification in the media is discussed in paragraphs 243 – 263of the Applicant’s heads of argument
Third argument: The restriction is not too far reaching as even in the current scheme a court can always permit publication
The current rule on identity protection is not absolute. It is subject to a proviso that the presiding judge ‘may authorize the publication of so much of such information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person’. This means that if the Applicants succeed, protection of persons who are or were child victims, witnesses or offenders will be protected automatically (even beyond turning 18 years) but the media can apply to the judge to request permission to publish.
The remedy
The Applicants want the court to declare that the protection of identity clause includes victims and extends beyond the age of 18 years.If the court finds the law is not capable of such an interpretation, then it should declare the law unconstitutional, and read certain words into the law so as to include victims and extend protection beyond 18 years.
Main Arguments:Respondents
First argument: Section 154(3) does not protect child victims
The Respondents argue that section 154(3) does not protect the identity of child victims of crime because the provision mentions only witnesses and offenders (see paragraphs 38 – 43 of the 1st to 3rd respondent’s heads of argument).
Second argument: The rights of freedom of expression will be limited unjustifiably by protecting child victims
The Respondents also argue that victims should not be protected in section 154(3) because it would unjustifiably limit freedom of expression, among other reasons (see paragraphs 44 – 82). They argue that “prior restraints”, such as prohibiting the publication of a child’s identity, have a significantly negative effect on freedom of expression and the role of the press in society.
The Respondents argue that having a free media is a vital part of a democracy and that therefore any attempts at curtailing this right should be only made in exceptional circumstances and on a case by case basis. They argue that having a blanket protection will go too far in limiting the right of freedom of expression.
Third argument: Section 154(3) does not protect child victims, witnesses or offenders once they turn 18 years of age
The Respondents also argue that children protected by section 154(3) lose such protection once they turn 18 years of age. The Respondents reason that an ordinary interpretation of this section confirms this. The Respondents also list a number of examples where the right to freedom of expression would be curtailed (paragraph 99). They also argue that should the age of protection be extended, it should last until the person is 21 years of age – it should not last for their entire lifetime. They list a number of examples in foreign law that do not provide for an indefinite extension (paragraphs 102 – 103).
Resources
Court papers
· Applicants’ heads of argument(should I redact bits of that to protect identities of the child offenders?)
· Respondents’heads of argument – media organisations
· Respondent’sheads of argument – Department of Justice
· High Court order – Part A
Legislation
· Criminal Procedure Act – sections152 and 154(3)
· The Constitution – sections 10, 14, 16(1)(a), 28(2)
Related articles
· BBC – “Child offenders need lifetime anonymity, says review” (2016)
· National Centre for Prosecution of Child Abuse – “Protecting the Privacy of Child Crime Victims” (2004)
· Case comment by Hasna Shireen – “Balancing Freedom of Expression and the Privacy of Child Victims”
· New South Wales Parliament, Standing Committee on Law and Justice – The prohibition on the publication of names of children involved in criminal proceedings (2008)
· Shopfront Youth Legal Centre – Submission to inquiry into the prohibition on the publication of names of children involved in criminal proceedings (2007)
List of FAQs
What follows is a list of possible FAQs that you may have on various aspects of the case. The answers are provided below this list.
The provision itself
– What are examples of information that could identify victims, witnesses and offenders?
– Why are child witnesses and offenders given protection in the first place?
– Why should child victims be protected?
Applicant’s arguments
– Are the Applicants calling for a ban on reporting crime involving children?
– Are the Applicants asking for a permanent ban on publishing a child’s identity?
– What happens if the child consents to the publication?
– What happens if the child dies?
Respondent’s arguments
– The Respondents argue that the general standard for allowing for a ban on publishing information, is on a case by case basis, due to the importance of the right to freedom of expression. Are the Applicants trying to change the general standard?
Balancing of rights
– Are the Applicants arguing that freedom of expression is less important than the rights of a child?
– In practical terms, how would it be possible to protect a child’s rights while upholding freedom of expression?
The provision itself
What are examples of information that could identify victims, witnesses and offenders?
The child’s name, name of family members linked to the child, a picture of child, the child’s address or neighbourhood, picture of their family or friends, picture of their house; name of the child’s school.
Why are child witnesses and offenders given protection in the first place?
Elaborate on this – revenge could occur, safety issue, rehabilitation more likely for offenders.(I will add in further information here from the expert reports)
Why should child victims be protected?
All child witnesses are victims before court machinery kicks in. Sometimes child victims are never called as witnesses because the perpetrators are not brought to court, or plead guilty. In addition, according to the Applicant’s experts, if the identity of children is not protected then this may result in psychological harm to the child, adding to their burden of trauma. Child victims often feel stigmatized by the crime that they are victims of, and they want to develop an identity beyond that. E.g. ‘I do not want to be known forever as the girl who was kidnapped’.
Applicant’s arguments
Are the Applicants calling for a ban on reporting crime involving children?
We are not asking for a ban on reporting crimes involving children in general. The stories of crimes can still be told, and details of crimes can still be reported in the media –such as date, place, what happened, sequence of events – anything that does not identify the child. The Applicants are not asking for a media blackout on such cases.
Are the Applicants asking for a permanent ban on publishing a child’s identity?
The Applicants are asking that the ‘default’ position will be protection of identity that starts in childhood and goes beyond the age of 18 years – life-long protection. However, this currently is, and will continue to be, subject to the judge having the discretion to allow identifying details to be published. For example, if a child victim or offender does something that attracts notoriety later in life (such as committing a serious crime), then a court is likely to allow the media, upon application, to publish the identity of that person.
What happens if the child consents to the publication?
Under the current law, a child cannot consent to having his or her identifying details published, and a parent or guardian cannot consent to that, on the child’s behalf. A more difficult question is what the role of consent is once the child turns 18 years. If there is a lifelong ban on identification, then there does need to be a mechanism to allow adults to consent to publication. The modalities of this are not spelled out in the court papers, though it may be debated in the courtroom.
What happens if the child dies?
The Applicants are not seeking to protect the identity of children who have died. The papers acknowledge that such children’s identities are not protected by the current provision.
Respondent’s arguments
The Respondents argue that the general standard for allowing for a ban on publishing information, is on a case by case basis, due to the importance of the right to freedom of expression. Are the Applicants trying to change the general standard?
It is a clear that as a general rule, children under 18 years of age who appear as witnesses in criminal matters, are protected from their identity being published. The Applicants argue that the opportunity for a case by case exception to be considered is built into the architecture of the law, and that even if the law is extended beyond 18 years, that the same case by case exception will be available to the media. The media make money out of news, so the fact that they will have to bring the applications is a reasonable burden.
Balancing of rights
Are the Applicants arguing that freedom of expression is less important than the rights of a child?
All rights in the Constitution are indivisible, and there is no hierarchy of rights. Like all rights in the Constitution, the right to freedom of expression is not absolute. The right of the child to have their best interests considered paramount is not absolute either. All rights in the Constitution can be limited, provided it is reasonable and justifiable.
The Applicants agree that media is very important in a democratic society and that freedom of expression is essential. However, this does not mean that freedom of expression must be entirely unfettered. The law has always permitted protection of vulnerable persons. In this case, the right to freedom of expression may have to be limited to a certain extent to allow for the protection of the rights of the child. However the limitation is narrow (only identifying information) and is also subject to judicial discretion to allow publications
In practical terms, how would it be possible to protect a child’s rights while upholding freedom of expression?
The Applicants are not asking for all the details of a criminal matter to be made secret. As occurred in the media’s reporting of Zephany’s story – they were still able to report on the majority of the details. All the relevant events were made public. However, the media made use of a pseudonym to refer to the child concerned. They used the name “Zephany Nurse”, a name that had been given by the child’s biological parents when she was born. The Applicants suggest that using a pseudonym enables the media to tell all the details of the story – while protecting the particular child’s true identity from being exposed to the world. This is a less invasive measure to allow for freedom of expression.
Media Contacts
For general information about the case
Name: Ms Lithalethemba Stwai
Profession: Attorney at the Centre for Child Law, University of Pretoria
Telephone: (012) 420 4502
Email: litha.stwayi@up.ac.za
Name: Mx Sebastian Mansfield-Barry
Profession: Communications and candidate attorney at the Centre for Child Law, University of Pretoria
Telephone: (012) 420 4502
Email: sebastian.mansfield-barry@up.ac.za
For expert information on the Applicant’s evidence
Name: Professor Ann Skelton
Profession: Advocate and Director at the Centre for Child Law, University of Pretoria
Experience: Expert in child justice, 25 years’ experience assisting child victims, witnesses and offenders, member of UN Committee on Rights of the Child
Telephone: (012) 420 4502 or direct line?
Email: ann.skelton@up.ac.za
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