On Tuesday this week Nairobi News, the NMG online newspaper, published a story in which a Class Seven boy was photographed half-naked, showing the injuries he sustained when his teacher whipped him over an alleged love affair with a Class Eight girl.
His face was obscured in an effort to hide his identity. Unfortunately, his parents’ photographs were used in the story.
So was the teacher who admitted whacking him. The name of the school - a boarding school in Huruma Estate, Eldoret town - was also given.
Anybody in his community would be able to identify him.
It was Mugo Waweru, a reader, who drew my attention to the blunder.
Normally in news stories it is unethical and in criminal cases illegal to disclose the identity of a victim of abuse or the perpetrator of a crime if he or she is a child.
So if high school students torch their dormitory or are sexually assaulted, the media can report the story but not the identity of the students if they are under 18.
In ethics, but not necessarily in law, exceptions can be made if the crime committed by the child or against the child is of a particularly grave or heinous nature, such as murder.
But the guiding principle remains the same: In reporting children in the news you avoid harming them emotionally, psychologically, and in reputation.
This springs from a larger principle in the Children’s Act that states that the best interests of the child are always paramount.
In general, the dignity and rights of a child must be respected in every circumstance.
In covering children in the media, special attention must be paid to their right to privacy and confidentiality and protection from harm and retribution, both actual and potential.
A child must not be exposed to humiliation, discrimination, or pain and grief from traumatic events. It must not be stigmatised.
But the story in the Nairobi News is interesting because it provides possible exceptions to the rule.
It was clear that the parents of the boy invited the media to interview them and take the photograph of their son.
Case law and common law suggest that if parents - and by extension the child - agree to be interviewed and identified, then the rights of the child are not violated.
So it looks like there was no need, after all, for Nairobi News to mask the face of the boy. He had, constructively, agreed to be identified!
A case presided over by Justice Isaac Lenaola illustrates how this operates.
On February 21, 2007, the Daily Nation and The Standard published a detailed story about the police killing of Simon Matheri, a man they described as the most wanted criminal in Kenya.
Alongside the story, the two dailies published pictures of his wife and children.
The children sued the two dailies for violating their privacy and exposing them to ridicule and discrimination by exposing them as the children of a thief.
They argued that the published stories, narrations, and images prejudiced their innocence and psychological integrity and that the newspapers failed to give due consideration to the general interests of the children and safeguard their constitutional rights to privacy and dignity, reputation, development, and growth.
They urged the court to find that the minors’ right to privacy and human dignity were infringed and prayed for an award of Sh2 million compensation for each child.
In a judgment he delivered on June 19, 2015, Justice Lenaola agreed with the children that the publication of private information, which may damage the dignity of an individual and the images of an individual without his consent, violates that person’s right to privacy.
However, he dismissed the case on several grounds, including that their mother had agreed to be interviewed and photographed by the media “and to that extent therefore it cannot be true that the minors’ right to privacy was violated where consent was impliedly and constructively given by the conduct and language of (their mother).”
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