AI images: A modern take on the traditional court sketch?
04/11/2024
You all know the most fundamental prohibition of court of reporting: it’s a criminal offence to make or publish any photograph, portrait or sketch inside a courtroom, in a court building, or in the precincts of a court building (although there are limited exceptions which apply to TV).
So when an old friend contacted me last week and told me about an AI generated image which had been published and which appeared to be of a Defendant in the dock of a Crown Court, I sat up and paid attention.
Had the publisher gone too far, my friend asked? Surely this cannot be lawful? And my first reaction was to agree that the published image was a clear breach of section 41 of the Criminal Justice Act 1925.
But wait, I said to myself. Just think about this for a moment or two.
The article in question was a straightforward court report of a Defendant appearing in the Crown Court for sentencing, after having been found guilty of several serious offences. The Defendant had been aged and named in the opening two paragraphs of the story, in the usual way.
The copy appeared below an image, apparently of the smartly dressed Defendant, standing in what appeared to be the dock, being watched by police or prison officers, with other people looking at him from what appeared to be court-style benches. In the background were wooden panelled internal walls and skylights, just the sort of architecture that can be seen in any Crown Court across the country.
And to add credibility to the image, it was published adjacent to a genuine photo of the exterior of the Crown Court in question.
So my guess is that the ordinary reader would instantly conclude that the image of the Defendant had indeed being taken inside the courtroom - which, no doubt, was the intention.
Finally, the eagle-eyed reader would have noted that immediately below the final par of the report, it was stated that the image (at the very top of the piece) was an “artist's impression of court proceedings”.
So… was it lawful to publish this image? Despite its realism, the answer, I think, is clearly ‘yes’. The simple fact is that the image had not been created inside a courtroom, in a court building, or in the precincts of a court building. Therefore, section 41 had not been breached.
And the fact it was stated, below the article and not adjacent to the image, that it (the image) was an artist’s impression, makes no difference.
In principle, the image of the Defendant created by AI is no different to the traditional sketch drawn by a professional artist. Both are created well away from the Courtroom or Court building, as section 41 requires.
I don't suppose sketch artists will be happy to see that their particular specialism can be performed by a computer program, but as a matter of law, it is not a criminal offence to publish AI generated images in this way.
However, whilst it is clear that no criminal offence had been committed, what about libel?
The AI created image was remarkably realistic, and to the casual reader, was undoubtedly a photo of a living person. But was it an image of the Defendant himself?
If the actual face and hairstyle of the Defendant had been used in the creation of the image, then there is no problem. Obviously, in this scenario, the image identified only one person - the Defendant.
But what if the AI program had created a male face and hairstyle at random, neither of which bore any resemblance to the Defendant, but which resembled another living, innocent, man?
Clearly, such mis-identification would expose the publisher to a libel claim.
The only defence would be that whilst the image might inadvertently be of the complainant, the opening two pars correctly named and aged the Defendant, so no reasonable reader could possibly have been misled into thinking that the complainant was the person who had been found guilty of crimes.
But still, there’s a good deal of scope for argument if nothing else.
AI is being used in a wide range of industries, for all sorts of purposes. But it is not infallible, and if it is to be used by journalists and editors, the potential legal consequences need to be understood and considered.
PS Writing this has prompted a trip down memory name for me. A long time ago, I had quite a lengthy (and lively!) exchange of views with a CPS prosecutor, as to whether a photo taken from the pavement of the main door of the old Derby Magistrates Court, constituted a photo taken “within the precincts of the Court building”.
It was quite ridiculous and never came to anything; it was just someone trying to create a case.
I like to think this sort of thing wouldn’t happen these days - but you never know!