Media outlets lose battle for bikini photo in Jian Ghomeshi case

Media outlets do not have the right to publish the bikini-clad photo of one of the complainants in Jian Ghomeshi's sexual assault trial, even with the woman's face blurred, judge rules.

Judge rules releasing picture, even with face blurred, would be 'chilling' to sexual assault victims

Jian Ghomeshi arrives at a Toronto courthouse Thursday for the third day of his trial. Media outlets were told today that the judge will not allow access to a bikini photo one of the complainant's in the case sent to Ghomeshi more than a year after he allegedly assaulted her. (Frank Gunn/Canadian Press)

Media outlets do not have the right to publish the bikini-clad photo of one of the complainants in Jian Ghomeshi's sexual assault trial, even with the woman's face blurred, the judge in the case has ruled.

A lawyer representing seven major news organizations — including the CBC — sought access to a photo that the woman sent to Ghomeshi more than a year after he allegedly assaulted her. 

The photo was presented as evidence, but was not shown to spectators in the courtroom. It was described as a shot of the woman in a red bikini on a beach. 

The woman, whose identity is protected by a publication ban, testified under cross-examination that she sent the photo as "bait" to get Ghomeshi to contact her so she could ask him to explain why he had been violent with her.   

Representing the media organizations, lawyer Iris Fischer argued the photo should be released, but with the woman's face and any identifying marks blurred to keep her identity secret. 

"There is a strong presumption that the public should see what you see," Fischer told the judge. "It relates to the witness's credibility."

She said it would help the public assess the complainant's testimony that she was trying to bait Ghomeshi. 

The Crown and a lawyer for the complainant both urged the judge to deny release of the photo. 

There's a strong possibility the complainant could be identified by the photo, even with her face blurred, her lawyer argued. It was taken as part of a photo shoot in which many people were involved, and appeared on the complainant's Facebook page. It was also included in a modelling portfolio.

Crown attorney Michael Callaghan argued the damaging effect of releasing the photo would vastly outweigh the public benefit. 

Knowing that a photo like this could be published during a trial would have a "chilling effect" on sexual assault victims, said Callaghan. "In fact, I'd suggest it would be a deep freeze" on the likelihood of complainants in other cases going to the police. 

Ontario Court of Justice Judge William Horkins agreed. 

"There is a serious societal interest in protecting this witness's privacy interests," he said.

The photo has already been described in detail, and keeping it sealed will not seriously infringe on the freedom of the press, Horkins said.

"It's my view you don't need to see it, to get the picture," he added.

CBC sought access

CBC joined other media organizations seeking access to the photo so that its journalists could assess it and "put it in perspective for the public," said David Studer, director of journalistic standards and policy for CBC News. 

The evidence that the complainant had sent the photo long after the alleged assault, despite testifying she'd had no contact with Ghomeshi, "marked what appeared to be a key moment in the trial thus far," Studer said in an email.  

He said CBC News had not made a decision on whether to publish the photo if access were granted. CBC would only have published the photo if it were found to be "worthwhile in assisting the public to reach conclusions about what it contained and about the significant testimony concerning it," Studer said.

Ghomeshi, 48, a former CBC radio and television host, is charged with four counts of sexual assault and one count of overcoming resistance by choking involving three women. The incidents are alleged to have occurred in 2002 and 2003.

His trial is continuing today.