MALCOLM SPARK AGAINST NORTH & SOUTH

Case Number: 2093

Council Meeting: NOVEMBER 2009

Verdict: Not Upheld

Publication: North & South

Ruling Categories: Children and Young People
Comment and Fact
Balance, Lack Of
Court Reporting
Detail Needlessly Prejudicial
Nudity and Indecency
Photographs
Defamation/Damaging To Reputation

Introduction
Malcolm Spark complained that a North & South article published in July 2009 could have prejudiced his appeal against convictions for internet sexual offending and also that it discriminated against him in regard to both his age and character.

Mr Spark further stated that he believed that the journalist had a personalised vendetta against him.

Mr Spark’s complaints are not upheld.

Background and Complaint
Mr Spark was convicted on 18 March 2009 of 10 counts of knowingly making an objectionable publication and 14 counts of possession of objectionable publications.

Mr Spark appealed the conviction and sentence on a number of grounds. In August 2009, the Court of Appeal dismissed all Mr Spark’s appeals, bar one. One charge of making an objectionable publication was quashed.

The first article, headlined Operation Popeye: To Catch a Thief of Trust was based on an interview with the mother of an 11 year-old girl with whom Mr Spark had contact via the internet. The second article, headlined Cyber Stranger Danger, contained information outlining the need for parents to monitor their children’s internet use, and information from organisations that work in the area of internet safety or with sexual offenders who use the internet in the course of their offending. While Mr Spark’s offending was used as an example, the main thrust of the article concerned the need to monitor internet use by young persons.

Included beside this article was an illustration of a young girl sitting at a computer with a stylized devil figure covered in phrases that might allegedly be used by internet sex offenders. Mr Spark objected to this illustration and believed it made him out to look like “some kind of a monster”.

Mr Spark objected to publication of the first article, and being named in the second article, as he had appealed his convictions and his appeal had not yet been heard.

Mr Spark also objected to being described as having “dreary middle-agedness”, and the comments “Nor did he digitally enhance the photos he sent to pubescent girls in an attempt to make himself look even remotely attractive” and “No, as creepy and offensive as Spark was”.

Mr Spark stated that he believed that this is opinion stated as fact. He believes that “It’s as if Caroline Courtney has a vendetta against much younger women finding much older men attractive and even though she has no idea who I am, she personalized that vendetta against me by trying to make me look as unattractive as she could”.

Mr Spark stated that he would welcome the opportunity for North & South to interview him and correct what he saw as the current imbalance.

Response from North & South
Virginia Larson, editor, responded stating that the article “Operation Popeye: To Catch a Thief of Trust” was “vetted by Internal Affairs; that the Court was fully briefed on the story in order for [the journalist] to view the court evidence; and the sentencing judge, Judge Saunders, authorized the release of Spark’s photograph to us”.

Ms Larson went on to say, “Clearly the sentencing judge considered our story was in the public interest, even if Spark had indicated he would appeal at that time”. She noted that the appeal would be heard by a judge, who was not likely to be swayed by media reports.

She further stated that they would not be responding to Mr Spark’s complaint of discrimination against him regarding his age, physical appearance and character due to the circumstances surrounding his offending and the fact that he is a convicted internet sex offender.

Discussion and Conclusion
Mr Spark was convicted of the offences outlined in the article although one count of making an objectionable publication was later struck out by the Appeal Court.

At the time of publication of the North & South articles, Mr Spark’s appeal was in the process of being heard therefore, strictly speaking, sub judice. The Council notes that the photograph, obtained for the article, was released by the judge.

While it is not for the Press Council to make statements on matters of law, the Council agrees with the editor’s assessment that the process was unlikely to be undermined by the publication of the article and that the judge was unlikely to be influenced by the article.

While Mr Spark objects to the characterisation given him in the article, an objection he is entitled to express, the following comments apply:

• The descriptions of creepy and offensive, and dreary middle-agedness are opinion and the journalist is entitled to express her opinion in an article she has written.
• The statement that he did not enhance the photo to make himself appear more attractive would appear, from the information provided, to be fact. Mr Spark sent actual photos of himself with no digital changes made. The article used this statement in the context of outlining how some internet sex offenders use photos that show themselves as younger and more attractive to entice young people to interact with them on the internet.

In regard to the complaint of a personalised vendetta by the journalist against Mr Spark, the first article contained details of offending for which Mr Spark has been convicted, and which convictions have been upheld, bar one, by the Court of Appeal. The details of the offending were based on evidence given at the trial and the mainstay of the article was a history of particular offending given by the mother of the 11 year old girl. This information is publicly available and does not indicate a vendetta.

The second article referred to Mr Spark as a convicted internet sex offender with his offending used as an example of what can happen when internet usage by young people is not monitored. The main thrust and content of the articles was the importance of ensuring good parental monitoring of young people’s internet usage. The Press Council has no issue with the use of Mr Spark as an example in the article.

The illustration contained examples of conversation used on the internet to attract young people, in order to stress the dangers of unmonitored internet usage by young people, when they may not know who they are actually talking to. The Press Council does not find that the illustration treated Mr Spark unfairly.

Mr Spark’s complaints are not upheld.

Press Council members considering this complaint were Barry Paterson (Chairman), Pip Bruce Ferguson, Kate Coughlan, Sandy Gill, Penny Harding, Keith Lees, Clive Lind, John Roughan, Lynn Scott and Stephen Stewart.