First of all, concerning the update for our last weeks’ debate issue, Chris and I have worked on the letter of apology and uploaded it onto the website and so far I have not received any correspondence from Michael Jardine, I am hoping that he took our good intentions on board and accepted the apology and forgiven the mistake, I will take his lack of response as a sign of acceptance, however will still be looking out for any letters or emails from him.
Before going into this week's details there is this week's WIN WITH WINOL presented by Charlotte Clark
Our plans for this week were extremely ambitious and we were looking forward to our new guest editor Rob Kirk, coming in this Wednesday and watching us in action and give a feedback afterwards. It was important we come out our best and so the pressure was on like never before especially on the news side. My features team had also a fantastic ideas lined up and few features to be finished from last week. One big thing for both, features and news this week was going to students demo in London and film student’s protests in London on Wednesday. I have appointed that to be covered by Jake Gable, and as I found out from the news conference on Monday afternoon Will from sports team was going to go to the demo to help filming (and so potentially we had two cameras covering it to make a news/feature – or a documentary on the events from that day) as well as Maddie and Andy who were covering it for news (incl. Package, and live OB from London).
The news bulletin for this week 10/11/10
As most of my team was filming the last meal of the student version of Come dine with me on Monday afternoon I communicated with them over the phone and took updates and gave them my suggestions for mew features. I suggested few ideas for my team members, comment article written by the Bishop of Winchester (ghosting) and transcribed by Thomas Hobbs; date website review in form of a day to day calendar and finalised with going for a date- Hannah seemed to like that idea and agreed to do it, she is also single and so it is going to be a sort of reality date website comparison film and article that will done in a week. Also over the weekend I read an article about NUJ protests and felt that would be quite a relevant and interesting subject to cover as a comment piece, which I also suggested for Thom to work on for me. Also on the Winchester council’s website I found a concert that will take place at the Railway Tavern that would be excellent to be covered by Thom as he is interested in the type of music that will be played, on Saturday 13th Akala, MOBo Award winning UK rapper will perform this week. I advised Thom to try to get an interview with the artist and film it as well as film the concert which would make fantastic pictures as cut-aways for the interview, as well as write a review on the concert.
Another idea that I suggested was to write an article on chosen graduates from our university ‘where am I year after I have graduated’, Thom said that he would like to cover that.
I also asked jake to go to London and film student protests demo on Wednesday for either news feature or a short documentary. On Tuesday roles within the production changed around and they requested Jake from my team to be a presenter for the news bulletin on Wednesday I didn't want us to loose such opportunity and decided to do to London instead of Jake. I took over his permission for filming and a ticket to go on the coach on Wednesday morning. The trip turned ut to be not quite as we expected it... it was hundred times better! Madie and Andy went to the same event to cover it for news and put a package together for the bulletin and Will Cooper (from the sports team) came along with me to help out in filming for features. The four of us experienced something that we have not yet before!
See experiences from London Students protest on 11th November incl events at the Millbank on that day here !
Thursday morning I started editing and could not wait to see all the footagethat we have collected (I planned to have it finished for wk 8) and therefore I was commited to stay late after hours on Thursday and Friday night to make sure I hadenough time to perfect the film. More on the documentary in week 8 when it was played instead of the bulletin.From our plans for this week my team prepared number of ideas for me his week:
1. I have had my behind the scenes photo-essay from last week done and ready to go onto the website, which was uploaded at the beginning of this week. (completed and uploaded onto the webste this week)
I used my own photographyand practiced new editing techniques in Final Cut Pro, I learnt new techniques in photo editing and perfected photoshop.
2. Behind the scenes of feature making film, by Justyna – was finished, however after I had gone through it, I decided that it should still be worked on before it is uploaded onto the website. The footage was quite good and had good pictures, but audio was pretty week and the editing needed more tightening. It has a good potential and I like the idea but I decided to give it a little but more time to be re-edited. (to be re-edited for week 9- not completed-promised to complete for week 11)
3. Investigative article on depression because of being off work written by Stu- uploaded onto the site as a news article- I still have to chase it up to have an extended version of it for features from him. (not completed yet-to be chased week 10)
4. News feature article on a historic mansion that was going to be taken down, by Gareth from news (his idea was more suitable for features and so I suggested he does an article for me with lots of good pictures. (not completed yet-to be chased- promissed to have it completed by week 10, failed, I will chase it up)
5. Student version of the come dine with me, in which the whole team was involved – last meal was filmed on Monday this week and Claire and Katie took a role of editing – their first deadline was going to be the end of Wednesday this week and so the feature would be ready to be published in next week (wk 8). (to be edited and uploaded in week 10)
6. Restaurant Review, places to eat out for students, by Claire and Katie – girls decided that their film was not ready to even show it to me, I appreciated self criticism however I decided that I would still like to see it and make a judgment myself whether it is worth working on and how could e improve it. (to be chased-filmed, editing in progress- still in week 10)
7. Comment piece by Bishop of Winchester on last week’s bible ripping incident at the student union, by Thomas Hobbs (completed- to be uploaded in week 9 after we have received the confirmation from the Bishop that all the transcribed text is ok for us to be used and published onto the website)
8. Famous graduates from Winchester University article by Thomas Hobbs. He completed it this week. It will be published next week. (completed -and uploaded onto the website)
9. Budget Cuts article- in depth analysis of the Browne’s review by Thomas Hobbs (not completed yet-to be chased after, awaiting the decision on the fees)
10. The news feature about the graduation that was meant to be reedited by Jake Gable, unfortunately did not happen as Amy who filmed it and edited has not saved the scratch files and her tapes were corrupted and so even though we made quite a few attempts to make it work, we could not retrieve the footage and therefore the feature was not completed. (Not completed)
11. Wine tasting show in London, gonzo style feature by Claire and Katie to be covered on 11th November, which is this week. Girls had everything planned, organised permission for filming, press passes and even a possibility of a ticket fare claim back. (Filmed and to be finished and uploaded in week 10)
12. Christmas time fashion piece and signing of the Gok Won book in Southampton on 24th November- Katie and Claire are going to cover it (failed to cover- didn't manage to arrange meeting him)
13. All woman show, the ultimate ladies day out that I appointed to be covered on 7th November at Winchester guildhall- I have arranged to have covered (got the press passes and permission for filming)by Justina, Claire and Katie – unfortunately all three of the girls have backed out in the last minute and the event was not covered. The girls have not completed the task I gave them. (Not completed- team did not turn up on the event)
Tuesday, 30 November 2010
NUJ, the Journalist’s sources and my inspiration from Ireland Veronica Guerin
“The NUJ's Code of Conduct has set out the main principles of British and Irish journalism since 1936. It is part of the rules and all journalists joining the union must sign that they will strive to adhere to it. “(Ref.7)
Members of the National Union of Journalists are expected to abide by the following professional principles that are all to be obeyed to fulfil the commitment to the profession including the protection of the source that is described in point 7, the rest of the points and few in particular like no 1, 2, 5, 8, 9 could be also seen to be related to good behaviour and attitude when dealing with the sources. Within the Code of Conduct for National Union of Journalists, a journalist (selected points);
(Ref.8. Ethics: NUJ Journalists' Code of Conduct by Winchester Journalism)
1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed
2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair
5. Obtains material by honest, straightforward and open means, with the exception of investigations that are both overwhelmingly in the public interest and which involve evidence that cannot be obtained by straightforward means
7. Protects the identity of sources who supply information in confidence and material gathered in the course of her/his work
8. Resists threats or any other inducements to influence, distort or suppress information
9. Takes no unfair personal advantage of information gained in the course of her/his duties before the information is public knowledge (Ref.7)
Underneath the code it is also added that “the NUJ believes a journalist has the right to refuse an assignment or be identified as the author of editorial that would break the letter or spirit of the code. The NUJ will fully support any journalist disciplined for asserting her/his right to act according to the code. “ (Ref.7)
As the European Court reached conclusion over the Goodwin v United kingdom case from 1996, it said that “protection of journalistic sources was one of the basic conditions for press freedom, as was reflected in the laws and professional codes of conduct in a number of contracting states and was affirmed in several international instruments on journalistic freedoms.” (Ref.1)
One of the most fascinating reasons why I would like to become a journalist is the main aims of the profession, duty of finding the truth and working in the best possible way to deliver information in matter of public interest as well as uncovering matters that should not be kept out of the reach of the public. Passion, strong will to make justice to fairness and truth put not only into fulfilling the public duty but also being able to reach creative ways to present in case of feature journalist or documentary maker.
The news journalist will not reach into creative eyes to put a news package or a story together as there is no need for it, plain, straight and useful facts are enough to build a good story however being creative and using imagination is always welcome and will make the story more interesting and attention grabbing.
The sources important for either of these journalists are equally important and have to be protected by the same code of conduct. What an easy job would it be if all the sources and stories were easily obtainable and information made available when needed. Unfortunately life of a journalist is not laid with the concept of easily accessible information it is the exact opposite, the journalist’s job is to discover and publish news/feature/documentary story if possible in a matter of a public interest and as it is generally known there are many vested interests trying to prevent it. “For this reason, to get a story a journalist must often rely on information from people whose safety or careers would be at risk if it became known that they had provided it. Furthermore, if it became common practice to divulge such sources, the job of a journalist would become much more difficult as fewer people would be willing to speak to them.” (Ref.1)
Journalist who is passionate about what he/she does and feel of doing the right thing not only morally but also professionally will protect the source even if it was a matter of life or death.
One of my personal first inspirations that started a fire of passion for journalism was Veronica Guerin. The title strangely spoke to me in a way to that I knew it would have a meaningful effect on me.
Veronica Guerin talks in here on laws on libel in Ireland and difficulties that come with it: (Ref.2)
The film that has been made on her life story has shown the real struggles that journalists are dealing with when committing to investigating difficult in many ways but at the same time significant matters to the public.
Highlights of the film on Veronica Guerin’s life (Ref.3)
Her passion and dedication as well as fantastic investigatory skills grabbed my heart, half way through the film I started uncovering similarities in ambitions. Was it the name that had a charm of attraction for need of finding the connection or was it simply a coincidence for Veronica and I to carry the same name.
The price for great journalism is higher you can imagine.
The murder of Veronica Guerin (Ref.4)
One of the reports uploaded by CBS News Online called: 02/02/97: Veronica Guerin (Ref.5)
To my big surprise I noticed a date at the right bottom corner of this report to be 2nd February 2007, I was born on 2nd February... another coincidence or just another proof of my destination of career path...
The sacrifice and dedication that greatest journalists are willing to offer is immense. I watched the at the beginning of my first year of Journalism and I reached the point in my life when I knew that I have to decide, after watching it I felt terrified I realised that the two clashing feelings in me were fighting and even though I was scared to death knowing that if I don’t stop my journalism degree then I will go all the way, what was more, I knew from that moment that I continuing with the degree og Journalism will make me want to be like her and my hope for discovering Veronica’s passion in me.
The fear of danger and sacrifice for a higher purpose or even death have got into me after watching the film but the same night brought a turning point to my life, I decided to take the risks, go all the way and give it hundred percent as I felt I was close to discovering the passion that can fulfil my ambition and make my life meaningful. That night my adventure with journalism was a beginning to what has now become a big part of my life.
Studying the insights of media law as well as practicing it while being a feature editor and producing my own films is really taking me in and became a significant part of my day to day life.
Veronica Guerin has shown an incredible attitude and unbreakable drive towards the right cause, that is how a journalist should be, that is how I want to be.
Another great example of a journalist who was willing to sacrifice his freedom to curry out journalistic duty of keeping the source of his information safe is Bill Goodwin. Bill was given a journalistic award for his attitude and journalistic professionalism. Even though he was ordered to disclose the identity of his source by a common law judge he refused to do so and as a consequence he was fined £5,000 for contempt of court.
I talk about Bill’s case in detail in a separate post: Max Mosley, Catherine Zeta Jones and other cases - celebrities and privacy: http://veronicafryd.blogspot.com/2010/11/max-mosley-catherine-zeta-jones-and.html
Protecting the sources is not only a duty but above all the ethical imperative. Clause 14 of the Press Complaints Commission Code of Practice has a similar statement on that matter to what the National Union of Journalists code of conduct, ‘Journalists have a moral obligation to protect confidential sources of information.’ (Ref.1) Journalists seem to pressure this rule as one of the most important one, they will not betray an identity of the source and there is no exception to this principle.
There are certain organisations or governing bodies that can request the disclosure of the journalist’s source, like the common law “judges if it is a matter of attempt to reach identity of wrongdoers whenever the person against whom disclosure is sought has got ‘mixed up’ in wrongful conduct that infringes a claimant’s legal rights. “(Ref.1) (Bill Goodwin’s case above)
Also, “some tribunals and officials have been given by statute the power to demand information on specific issues. The journalist who refuses to comply faces penalties under these Acts.”(Ref.1) For example in the case between Attorney General v Clough from 1963 couple of journalists refused giving away their sources (Vassal case story) , or even the situation when three journalists were threatened with the Contempt of Court because they refused to reveal sources of the stories about the Bloody Sunday killings in Northern Ireland.
Thirdly, “if the police need to obtain ‘journalistic material’ to assist their investigations they normally have to apply to a judge first but various statues give them special powers. (Ref.1)
Despite the fact that no citizen has a legal duty to provide information to the police it has its exceptions. If the police wants to obtain journalistic material to assist their investigation they usually would have to apply to a judge and also if for instance a journalist refuses straight away to give away the information to the police concerning the source of the story like it was in the case from when Westmorland Gazette reporter, the police can “threaten with prosecution for obstructing the police in their duties”. (Ref.1)
Police Act 1997, Regulation of Investigatory Powers (RIP) Act 2000, the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001 and Serious Organised Crime and Police Act 2005... they all have now created more opportunities for lawful chance to ace the confidential information from citizens (including journalists). (Ref.1)
The possibility of demands do not finish in here some authorities can have power to search the premises of the person that is believed to hold the information. 1765 case concerning a clerk called Entick whose house was searched through the warrant from the Secretary of the State, was seen as lawful. Additional thing that gives more power to request the disclosure of information which is The Official Secrets act which allows the Home Secrecy to give the police permission to request to have the information related to espionage to be given away. Furthermore, being on the subject of governing bodies giving powers, the Home Secretary can also authorise not only the police but also other officials to “intercept electronic communication data under the Regulation of Investigatory Powers Act 2000.” (Ref.1)
On the other hand, journalists have so called, “‘excluded material’ which is normally exempt altogether from compulsory disclosure. It includes journalistic material that a person holds in confidence and that consists of documents or records. (Ref.1)
“The European Court of Human Rights has said that an order to disclose the source of information cannot be compatible with the Article 10 of the Convention (freedom of expression) unless it is justified by an overriding requirements in the public interest.” (Ref.1)
When Bill Goodwin’s case, he appealed against the order after his unsuccessful appeals he was at the end backed by the national union of Journalists and took it to the European Court of Human Rights, and in 1994 the European Commission found for Goodwin, saying: “Protection of the sources from which journalists derive information is an essential means of enabling the press to perform its important function of ‘public watchdog’ in a democratic society.”(Ref.1)
“Section 10 of the Contempt of Court Act 1981 says that a disclosure order must not be made ‘unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security, or for the prevention of disorder of crime’. “ (Ref.1)
References:
Ref.1) Banks, D., Hanna, M. (2009) McNae’s essential law for journalists, (Twentieth Edition), ch.32
Ref.2) Veronica Guerin: http://www.youtube.com/watch?v=zcI9JHyAuy4&feature=related
Ref.3) Veronica Guerin Full Movie Online Part 1 http://www.youtube.com/watch?v=92giqFWk4Kw&feature=related
Ref.4) Murder of Veronica Guerin http://www.youtube.com/watch?v=EHjgYKXuBPw&feature=related
Ref.5) 02/02/97: Veronica Guerin (CBS NewsOnline) http://www.youtube.com/watch?v=RqIDGxNra_8&feature=related
Ref.6)Veronica Guerin http://en.wikipedia.org/wiki/Veronica_Guerin
Ref.7) NUJ Code of Conduct http://www.nuj.org.uk/innerPagenuj.html?docid=174
Ref.8)Ethics: NUJ film made by winchester journalism http://www.youtube.com/watch?v=sqGwAMI5TqU&feature=related
Members of the National Union of Journalists are expected to abide by the following professional principles that are all to be obeyed to fulfil the commitment to the profession including the protection of the source that is described in point 7, the rest of the points and few in particular like no 1, 2, 5, 8, 9 could be also seen to be related to good behaviour and attitude when dealing with the sources. Within the Code of Conduct for National Union of Journalists, a journalist (selected points);
(Ref.8. Ethics: NUJ Journalists' Code of Conduct by Winchester Journalism)
1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed
2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair
5. Obtains material by honest, straightforward and open means, with the exception of investigations that are both overwhelmingly in the public interest and which involve evidence that cannot be obtained by straightforward means
7. Protects the identity of sources who supply information in confidence and material gathered in the course of her/his work
8. Resists threats or any other inducements to influence, distort or suppress information
9. Takes no unfair personal advantage of information gained in the course of her/his duties before the information is public knowledge (Ref.7)
Underneath the code it is also added that “the NUJ believes a journalist has the right to refuse an assignment or be identified as the author of editorial that would break the letter or spirit of the code. The NUJ will fully support any journalist disciplined for asserting her/his right to act according to the code. “ (Ref.7)
As the European Court reached conclusion over the Goodwin v United kingdom case from 1996, it said that “protection of journalistic sources was one of the basic conditions for press freedom, as was reflected in the laws and professional codes of conduct in a number of contracting states and was affirmed in several international instruments on journalistic freedoms.” (Ref.1)
One of the most fascinating reasons why I would like to become a journalist is the main aims of the profession, duty of finding the truth and working in the best possible way to deliver information in matter of public interest as well as uncovering matters that should not be kept out of the reach of the public. Passion, strong will to make justice to fairness and truth put not only into fulfilling the public duty but also being able to reach creative ways to present in case of feature journalist or documentary maker.
The news journalist will not reach into creative eyes to put a news package or a story together as there is no need for it, plain, straight and useful facts are enough to build a good story however being creative and using imagination is always welcome and will make the story more interesting and attention grabbing.
The sources important for either of these journalists are equally important and have to be protected by the same code of conduct. What an easy job would it be if all the sources and stories were easily obtainable and information made available when needed. Unfortunately life of a journalist is not laid with the concept of easily accessible information it is the exact opposite, the journalist’s job is to discover and publish news/feature/documentary story if possible in a matter of a public interest and as it is generally known there are many vested interests trying to prevent it. “For this reason, to get a story a journalist must often rely on information from people whose safety or careers would be at risk if it became known that they had provided it. Furthermore, if it became common practice to divulge such sources, the job of a journalist would become much more difficult as fewer people would be willing to speak to them.” (Ref.1)
Journalist who is passionate about what he/she does and feel of doing the right thing not only morally but also professionally will protect the source even if it was a matter of life or death.
One of my personal first inspirations that started a fire of passion for journalism was Veronica Guerin. The title strangely spoke to me in a way to that I knew it would have a meaningful effect on me.
Veronica Guerin talks in here on laws on libel in Ireland and difficulties that come with it: (Ref.2)
The film that has been made on her life story has shown the real struggles that journalists are dealing with when committing to investigating difficult in many ways but at the same time significant matters to the public.
Highlights of the film on Veronica Guerin’s life (Ref.3)
Her passion and dedication as well as fantastic investigatory skills grabbed my heart, half way through the film I started uncovering similarities in ambitions. Was it the name that had a charm of attraction for need of finding the connection or was it simply a coincidence for Veronica and I to carry the same name.
The price for great journalism is higher you can imagine.
The murder of Veronica Guerin (Ref.4)
One of the reports uploaded by CBS News Online called: 02/02/97: Veronica Guerin (Ref.5)
To my big surprise I noticed a date at the right bottom corner of this report to be 2nd February 2007, I was born on 2nd February... another coincidence or just another proof of my destination of career path...
The sacrifice and dedication that greatest journalists are willing to offer is immense. I watched the at the beginning of my first year of Journalism and I reached the point in my life when I knew that I have to decide, after watching it I felt terrified I realised that the two clashing feelings in me were fighting and even though I was scared to death knowing that if I don’t stop my journalism degree then I will go all the way, what was more, I knew from that moment that I continuing with the degree og Journalism will make me want to be like her and my hope for discovering Veronica’s passion in me.
The fear of danger and sacrifice for a higher purpose or even death have got into me after watching the film but the same night brought a turning point to my life, I decided to take the risks, go all the way and give it hundred percent as I felt I was close to discovering the passion that can fulfil my ambition and make my life meaningful. That night my adventure with journalism was a beginning to what has now become a big part of my life.
Studying the insights of media law as well as practicing it while being a feature editor and producing my own films is really taking me in and became a significant part of my day to day life.
Veronica Guerin has shown an incredible attitude and unbreakable drive towards the right cause, that is how a journalist should be, that is how I want to be.
Another great example of a journalist who was willing to sacrifice his freedom to curry out journalistic duty of keeping the source of his information safe is Bill Goodwin. Bill was given a journalistic award for his attitude and journalistic professionalism. Even though he was ordered to disclose the identity of his source by a common law judge he refused to do so and as a consequence he was fined £5,000 for contempt of court.
I talk about Bill’s case in detail in a separate post: Max Mosley, Catherine Zeta Jones and other cases - celebrities and privacy: http://veronicafryd.blogspot.com/2010/11/max-mosley-catherine-zeta-jones-and.html
Protecting the sources is not only a duty but above all the ethical imperative. Clause 14 of the Press Complaints Commission Code of Practice has a similar statement on that matter to what the National Union of Journalists code of conduct, ‘Journalists have a moral obligation to protect confidential sources of information.’ (Ref.1) Journalists seem to pressure this rule as one of the most important one, they will not betray an identity of the source and there is no exception to this principle.
There are certain organisations or governing bodies that can request the disclosure of the journalist’s source, like the common law “judges if it is a matter of attempt to reach identity of wrongdoers whenever the person against whom disclosure is sought has got ‘mixed up’ in wrongful conduct that infringes a claimant’s legal rights. “(Ref.1) (Bill Goodwin’s case above)
Also, “some tribunals and officials have been given by statute the power to demand information on specific issues. The journalist who refuses to comply faces penalties under these Acts.”(Ref.1) For example in the case between Attorney General v Clough from 1963 couple of journalists refused giving away their sources (Vassal case story) , or even the situation when three journalists were threatened with the Contempt of Court because they refused to reveal sources of the stories about the Bloody Sunday killings in Northern Ireland.
Thirdly, “if the police need to obtain ‘journalistic material’ to assist their investigations they normally have to apply to a judge first but various statues give them special powers. (Ref.1)
Despite the fact that no citizen has a legal duty to provide information to the police it has its exceptions. If the police wants to obtain journalistic material to assist their investigation they usually would have to apply to a judge and also if for instance a journalist refuses straight away to give away the information to the police concerning the source of the story like it was in the case from when Westmorland Gazette reporter, the police can “threaten with prosecution for obstructing the police in their duties”. (Ref.1)
Police Act 1997, Regulation of Investigatory Powers (RIP) Act 2000, the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001 and Serious Organised Crime and Police Act 2005... they all have now created more opportunities for lawful chance to ace the confidential information from citizens (including journalists). (Ref.1)
The possibility of demands do not finish in here some authorities can have power to search the premises of the person that is believed to hold the information. 1765 case concerning a clerk called Entick whose house was searched through the warrant from the Secretary of the State, was seen as lawful. Additional thing that gives more power to request the disclosure of information which is The Official Secrets act which allows the Home Secrecy to give the police permission to request to have the information related to espionage to be given away. Furthermore, being on the subject of governing bodies giving powers, the Home Secretary can also authorise not only the police but also other officials to “intercept electronic communication data under the Regulation of Investigatory Powers Act 2000.” (Ref.1)
On the other hand, journalists have so called, “‘excluded material’ which is normally exempt altogether from compulsory disclosure. It includes journalistic material that a person holds in confidence and that consists of documents or records. (Ref.1)
“The European Court of Human Rights has said that an order to disclose the source of information cannot be compatible with the Article 10 of the Convention (freedom of expression) unless it is justified by an overriding requirements in the public interest.” (Ref.1)
When Bill Goodwin’s case, he appealed against the order after his unsuccessful appeals he was at the end backed by the national union of Journalists and took it to the European Court of Human Rights, and in 1994 the European Commission found for Goodwin, saying: “Protection of the sources from which journalists derive information is an essential means of enabling the press to perform its important function of ‘public watchdog’ in a democratic society.”(Ref.1)
“Section 10 of the Contempt of Court Act 1981 says that a disclosure order must not be made ‘unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security, or for the prevention of disorder of crime’. “ (Ref.1)
References:
Ref.1) Banks, D., Hanna, M. (2009) McNae’s essential law for journalists, (Twentieth Edition), ch.32
Ref.2) Veronica Guerin: http://www.youtube.com/watch?v=zcI9JHyAuy4&feature=related
Ref.3) Veronica Guerin Full Movie Online Part 1 http://www.youtube.com/watch?v=92giqFWk4Kw&feature=related
Ref.4) Murder of Veronica Guerin http://www.youtube.com/watch?v=EHjgYKXuBPw&feature=related
Ref.5) 02/02/97: Veronica Guerin (CBS NewsOnline) http://www.youtube.com/watch?v=RqIDGxNra_8&feature=related
Ref.6)Veronica Guerin http://en.wikipedia.org/wiki/Veronica_Guerin
Ref.7) NUJ Code of Conduct http://www.nuj.org.uk/innerPagenuj.html?docid=174
Ref.8)Ethics: NUJ film made by winchester journalism http://www.youtube.com/watch?v=sqGwAMI5TqU&feature=related
Monday, 29 November 2010
Max Mosley, Catherine Zeta Jones and other cases - celebrities and privacy
(Breach of Confidence and secrecy – studying media law week 5, part II)
The law says that a person who has obtained information in confidence must not take unfair advantage of it and therefore someone who believes his/her confidence is to be breached can get an injunction preventing this. Such injunction will prevent all media from publishing it. The right to privacy is guaranteed by Article 8 of the Convention of Human Rights. (Ref.3)
There are two types of consent when obtaining photographs of the public including celebrities, explicit and implicit. Explicit consent is when we have our disclaimer forms signed by the participant (photographed) allowing having the picture taken and published, so it is in writing, in permanent form on the record. Implicit consent applies when the person we are photographing is smiling at us, showing with the body language that he/she is aware of being photographed and doesn’t mind it.
Section 12 of the Human Rights Act is intended to provide some protection against injunctions in matters involving freedom of expression but in absence of a cause of action for privacy, courts use breach of confidence actions to prevent ‘the unjustified publication of private information’. (Ref.3)
From the latest cases, pop star Lilly Allen, a secured a High Court injunction to prevent harassment by photographers.
See the details on Breach of Confidence and secrecy (part I)– studying media law week 5 post in here.
CATHERINE ZETA JONES CASE
“The key case here is long running saga of Catherine Zeta Jones. The issue is the use of the Human Rights Act to create a commercial law of privacy which can be sold. Catherine sold sold her Privacy rights to have pictures taken to Halo magazine. “The judgment came as celebrity magazine OK! triumphed in its battle with rival Hello! over snatched pictures of Michael Douglas and Catherine Zeta-Jones's wedding.” (Ref.8) An article titled “OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price” gives away the costly process of winning a privacy issue identifying that “celebrities have been given stronger powers to control the way they are seen by the public in a controversial ruling by the Law Lords.” (Ref.8)
The case has definitely set to become one of the iconic media law study cases that have set to “have implications for developments of British privacy law.” (Ref.8) “The Law Lords ruled that Hello! had breached OK!'s confidentiality by publishing covertly-taken photos which ruined its exclusive £1million deal with the couple. These have balanced individuals' right to privacy against the media's right to freedom of expression. The Law Lords ruled Hello!'s actions were unfair as the couple had the right to confidentiality - even if they had sold their story to someone else.” (Ref.8) “The saga began when OK! paid £1million for exclusive rights to photos from the couple's starstudded wedding in 2000. However, Hello! managed to obtain several low-quality photos taken with a hidden camera - and these hit the shelves before OK!'s official coverage. The magazine, in conjunction with the couple, promptly sued Hello! for damages. During a sixweek hearing, Miss Zeta- Jones said she felt "violated" by the "sleazy and unflattering" photographs. She singled out an image of Douglas feeding her wedding cake, saying: "I don't usually like my husband shoving a spoon down my throat to be photographed." The couple won, but the £2million of costs and damages they were awarded were quashed after Hello! successfully went to the Court of Appeal in May 2005. The case then went to the Lords. In the latest hearing, Richard Millett QC, representing OK!, told five Law Lords that it had been established the exclusive was an "extremely valuable" asset. He said the Douglases - who were no longer involved in the case - were more interested in preserving their confidentiality than making money. Lord Hoffmann said in his judgment that OK! had paid £1million and could therefore expect guests to respect its exclusive rights over the event. He said other Law Lords were troubled by the fact the images were not intended to be kept secret but to be published (...) “being a celebrity or publishing a celebrity magazine are lawful trades." (...) The judges decided that Hello!'s actions did not damage its rival financially - leaving the two publications to share legal costs estimated at £8million.” (Ref.8)
MAX MOSLEY CASE
“The Max Mosley case is highly significant. He was defamed, though the story was defensible as true - he did not deny his behaviour with prostitutes. But he claimed that the behaviour was his own private affair and that reporting on them was a denial of his section eight rights to normal family life. One point of controversy was this that Mosely had acted out sadistic sexual fantasies involving torture and incarceration. The NoW witness, said that these scenes were an explicit reference to Nazi concentration. “(Ref.2) Max won damages over the story, which the court held was not in the public interest to publish. (Ref.3) An article written by Chris Horrie for The Guardian in July 2008, titled ‘A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie.’
The battle between The News of the world and Mosley continued, as Chris Horrie says in his article ‘The News of the World has built its business by calculating that the additional revenues from really sensational invasions of privacy will outweigh the costs of doing these stories (...) on the day after the Mosley verdict, the paper took full-page advertisements in the trade press to boast about the positive commercial effects of the story and the ruling. (...)traditional dirty vicar or minor football star was just as great as invading the privacy of much
At one point, after the introduction into UK law of the Human Rights Act, the News of the World's business appeared to be threatened by the establishment in English law of a right to privacy. But, as things are turning out, the new law has not meant an end to intrusion into people's lives. It just means that the intrusion is more expensive to do. The glossy celeb magazines and weekday tabloids have got used to the practice of paying celebrities to waive their privacy rights, so that supposedly candid photos can be taken or published. ‘ (Ref.9)
‘When he arrived at the paper in January 2007, Myler said he wanted fewer, but better, kiss-and-tell stories. The legal cost of invading the privacy of the bigger fish, so there was no point in going for these smaller targets (...). A few years ago the video that proved the truth of the story would have had very little value, except as evidence in court. Now, in many ways, it is far more valuable than the printed version of the story in the paper. (...) And while the law has been getting tougher on privacy, judges have also been giving more protection against libel actions to investigative journalists genuinely trying to expose fraud or wrongdoing. (...) ‘(Ref.9)
On 6th October 2008 Press Gazette Journalism Today published an article titled Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media'. ‘Formula One chief Max Mosley has launched an audacious to bid re-write English privacy law and create what critics have called a “gagging order” against the press. ‘ (Ref.10) Mosley (won a high-profile privacy battle against the News of the World in July in the High Court) applied to the European Court of Human Rights in Strasbourg for ‘ a change in the law that would make it compulsory for newspapers to inform people before they publish private information about them.(...) Mosley is arguing that English law is in breach of Article 8 of the Human Rights Act, the right to privacy, by not requiring editors to inform people that their private lives are being written about. (...) A statement from Mosley’s legal team said that his right to privacy had been compromised as soon as the paper published its salacious claims that he enjoyed a Nazi-themed sex orgy in a west London flat. Mr Justice Eady rejected the paper’s claim that the incident had a Nazi theme and ordered that it pay an unprecedented £60,000 in damages.
The statement said: “Although this is the highest sum ever achieved in a claim for an invasion of privacy… The only effective remedy would have been to prevent the publication in the first place by means of an injunction.
“But because he did not know about the article before hand, the opportunity of an injunction was not open to him.”
Mosley’s team argues that the law change would not affect anyone’s freedom of expression, as any claimant would have to ask the courts for an injunction which, they say, “will always be refused if there is a strong and legitimate interest in publication”. (...) “The procedure that enables the courts to grant an injunction is something where courts make a snap decision based on the evidence in front of them and primarily is aimed at preserving the status quo while the parties have a longer period in which to put more detailed cases in front of the court.
(...) Media solicitor Brid Jordan, from Reynolds Porter Chamberlain, said: "Any attempt to re-cast the law based on the particular facts of the Mosley case would be a worrying development for media law and Editors".
"There is a real danger that it would tip the scales against the press and would have a chilling effect on investigative journalism in this jurisdiction." ‘(Ref.10)
But privacy law is string – so the rule is if there’s a picture of a person in your newspaper/ TV station website, make sure you know who they are, what they are doing and whether or not they have consented to having their picture taken and published. (Ref.2)
“Section 12 of the Human Rights Act also saus that when a court is considering imposing an injunction in a matter affecting freedom of expression, and where journalistic material is involved, it must have particular regard to the public interest in publication.” (Ref.3)
PRINCESS CAROLINE OF MONACO
“Princess Caroline case – the creation of defector privacy law. Can now only justified the publication of pictures of people if they are engaged in a clear public duty – new dangers for taking “wallpaper” type pictures of identifiable people without permission.” (Ref.2) In July 2004 it has been published on the legal commentary site that ‘the European Court of Human Rights handed down a judgment in the case of von Hannover v Germany which may radically alter the extent to which the paparazzi and tabloid press are permitted access to the private lives of celebrities.’(Ref.11) Princess Caroline of Monaco was the applicant ‘who took her case for protection of her privacy to the ECHR after several mainly unsuccessful applications in the German courts over a period of ten years. (...) Princess Caroline took action over a series of photographs taken in France and published in Germany of her everyday life (...). Under German law, Princess Caroline is deemed to be a "public figure par excellence", and as such the public is deemed to have a legitimate interest in knowing how she generally behaves in public, even when not performing any kind of official function.
The German government claimed that the level of protection afforded to such public figures under German law was compatible with Article 8 of the European Convention on Human Rights and struck a fair balance between Article 10 (Freedom of Expression) and Article 8 (Respect for Private and Family Life). The ECHR found unanimously, however, that there had been an infringement of Article 8 rights, and that German law did not provide adequate protection for a person's right to private and family life.
The majority of the judges said that the question of the correct balance between Article 8 and Article 10 centres on "the contribution that the published photos and articles make to a debate of general interest." In the case of Princess Caroline, the photographs made no such contribution as she exercised no official function and the photographs related solely to her private life.
The ECHR held that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as "secluded". Even if such an interest existed alongside the commercial interest of the magazines in publishing the pictures, "these should yield to the applicant's right to the effective protection of her private life." The German criteria were not sufficient to ensure the effective protection of Princess Caroline's private life and she should have a "legitimate expectation" of the protection of her private life. (...) The most obvious impact of this judgment is on press photography, since a clear "public interest" is now required to justify a photograph of a person who neither holds public office nor is engaged in an "official" activity. The ubiquitous pictures of celebrities in public places are no longer justifiable, and prominent individuals therefore have at least some privacy rights even in public places. The contextual test in the PCC Code of locations in which an individual has "a reasonable expectation to privacy" is now obsolete under this new ruling.
This means that failure by the courts and the PCC to protect individuals against publication of pictures, and by extension stories, merely for "entertainment purposes" where there is no public interest, will be a breach of the Article 8 rights of an individual. This case is a strong warning to the UK courts that they have a positive obligation to protect the privacy rights of individuals, thereby inevitably curtailing to some degree the freedom of the press, and in particular of press photography.’ (Ref.11)
Taking all the above examples into the consideration, it is essential to remember that the accurate consent is everything in photography. If a person photographed is smiling or posing for the camera then there is no danger of saying it is an invasion of privacy. For radio there could be a danger of invasion of privacy, but the issue of identification is of course not so serious. (Ref.2)
NAOMI AND DAILY MIRROR DRUG REHAB CASE
“The model Naomi Campbell received damages when a paper published pictures of her in a public street, emerging from a Narcotics Anonymous therapy session.” (Ref.3)
From the case history on the BBC website we know that in February 2001: Mirror publishes photo of Naomi Campbell leaving Narcotics Anonymous in London, then in March 2002: Campbell successfully claims breach of privacy. High Court orders £3,500 damages from Mirror. Following that in October 2002: Appeal Court overturns High Court ruling and eventually in May 2004: Law Lords overturn Appeal Court decision, reinstating High Court ruling and damages. (Ref.13)
In October 2002, BBC news website published an article saying that ‘The Daily Mirror has won an appeal against a High Court ruling that it breached the confidentiality of supermodel Naomi Campbell. Three Appeal Court judges said a story about the model's drug addiction was justified in the public interest. The newspaper was contesting a High Court decision that it must pay £3,500 damages to Miss Campbell and her legal costs. (...) Mr Morgan said the article on Miss Campbell had been "sympathetic" and said the judgment was highly symbolic.
He added: "It is a firm message to celebrities out there who want to use the law as an extension of their PR firm that we newspapers will defend ourselves very vigorously." ‘ (Ref.13)
However in May 2004 eventually, the BBC news website published another article that Naomi won her breach of confidentiality claim against Daily Mirror, ‘ Miss Campbell had objected to the publication of pictures of her leaving drug addiction treatment in early 2001. (...) ‘ (Ref.12) ‘The case centred on the publication in February 2001 of a report about her drug addiction, including a photograph of her leaving a Narcotics Anonymous meeting in King's Road, Chelsea. ‘(Ref.12)
‘Lord Hope, who voted in favour of Miss Campbell, said on Thursday: "Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell's right to privacy that cannot be justified."
The Law Lords reinstated the High Court award of £3,500, based on breach of confidentiality and breach of duty under the 1998 Data Protection Act.
The judgment leaves the Daily Mirror facing a total legal costs bill of more than £1m.
Lord Hoffmann said: "From a journalistic point of view, photographs are an essential part of the story. (...)' (Ref.12)
References:
Ref.1) Media Law Lecture ba Journalism, year 3, week 5
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 5 http://journalism.winchester.ac.uk/?page=102
Ref.3) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.4) Official Secret Act 1989: http://www.legislation.gov.uk/ukpga/1989/6/contents
Ref.5) The Zircon case: http://www.fas.org/irp/eprint/alpha/zircon.htm
Ref.6) Bill Goodwin case: January 1994, freedom of information awards: http://www.cfoi.org.uk/awards93pr.html#goodwin
Ref.7) Graham Pink case: “NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” article: http://www.independent.co.uk/news/uk/nhs-whistleblower-wins-pounds-11000-damages-health-authority-pulls-out-of-tribunal-brought-by-former-nurse-1491719.html
-----------------------------------------------------------------Refferences for part 1 (1-7)--
Ref.8) ‘OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price’ article from Mail Online, by STEVE DOUGHTY and RICHARD SIMPSON, 03 May 2007 http://www.dailymail.co.uk/tvshowbiz/article-452164/OK-magazine-wins-appeal-Zeta-Jones-wedding-photos--price.html
Ref.9) A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie, The Guardian, Monday 28 July 2008 http://www.guardian.co.uk/media/2008/jul/28/mosley.newsoftheworld
Ref.10) Press Gazette Journalism today, article: “Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media” http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=42168&c=1
Ref.11) Princess Caroline of Monaco (06/04) http://www.legalday.co.uk/lexnex/simkins04/simkins200704.htm
Ref.12) Naomi Campbell wins privacy case article on BBC news, May 2004 http://news.bbc.co.uk/1/hi/uk/3689049.stm
Ref.13)Mirror wins Campbell appeal article on the bbc news website: http://news.bbc.co.uk/1/hi/uk/2327385.stm
--------------------------------------------------Refferences for part 2: Ref (1-3) & (8-13)---
The law says that a person who has obtained information in confidence must not take unfair advantage of it and therefore someone who believes his/her confidence is to be breached can get an injunction preventing this. Such injunction will prevent all media from publishing it. The right to privacy is guaranteed by Article 8 of the Convention of Human Rights. (Ref.3)
There are two types of consent when obtaining photographs of the public including celebrities, explicit and implicit. Explicit consent is when we have our disclaimer forms signed by the participant (photographed) allowing having the picture taken and published, so it is in writing, in permanent form on the record. Implicit consent applies when the person we are photographing is smiling at us, showing with the body language that he/she is aware of being photographed and doesn’t mind it.
Section 12 of the Human Rights Act is intended to provide some protection against injunctions in matters involving freedom of expression but in absence of a cause of action for privacy, courts use breach of confidence actions to prevent ‘the unjustified publication of private information’. (Ref.3)
From the latest cases, pop star Lilly Allen, a secured a High Court injunction to prevent harassment by photographers.
See the details on Breach of Confidence and secrecy (part I)– studying media law week 5 post in here.
CATHERINE ZETA JONES CASE
“The key case here is long running saga of Catherine Zeta Jones. The issue is the use of the Human Rights Act to create a commercial law of privacy which can be sold. Catherine sold sold her Privacy rights to have pictures taken to Halo magazine. “The judgment came as celebrity magazine OK! triumphed in its battle with rival Hello! over snatched pictures of Michael Douglas and Catherine Zeta-Jones's wedding.” (Ref.8) An article titled “OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price” gives away the costly process of winning a privacy issue identifying that “celebrities have been given stronger powers to control the way they are seen by the public in a controversial ruling by the Law Lords.” (Ref.8)
The case has definitely set to become one of the iconic media law study cases that have set to “have implications for developments of British privacy law.” (Ref.8) “The Law Lords ruled that Hello! had breached OK!'s confidentiality by publishing covertly-taken photos which ruined its exclusive £1million deal with the couple. These have balanced individuals' right to privacy against the media's right to freedom of expression. The Law Lords ruled Hello!'s actions were unfair as the couple had the right to confidentiality - even if they had sold their story to someone else.” (Ref.8) “The saga began when OK! paid £1million for exclusive rights to photos from the couple's starstudded wedding in 2000. However, Hello! managed to obtain several low-quality photos taken with a hidden camera - and these hit the shelves before OK!'s official coverage. The magazine, in conjunction with the couple, promptly sued Hello! for damages. During a sixweek hearing, Miss Zeta- Jones said she felt "violated" by the "sleazy and unflattering" photographs. She singled out an image of Douglas feeding her wedding cake, saying: "I don't usually like my husband shoving a spoon down my throat to be photographed." The couple won, but the £2million of costs and damages they were awarded were quashed after Hello! successfully went to the Court of Appeal in May 2005. The case then went to the Lords. In the latest hearing, Richard Millett QC, representing OK!, told five Law Lords that it had been established the exclusive was an "extremely valuable" asset. He said the Douglases - who were no longer involved in the case - were more interested in preserving their confidentiality than making money. Lord Hoffmann said in his judgment that OK! had paid £1million and could therefore expect guests to respect its exclusive rights over the event. He said other Law Lords were troubled by the fact the images were not intended to be kept secret but to be published (...) “being a celebrity or publishing a celebrity magazine are lawful trades." (...) The judges decided that Hello!'s actions did not damage its rival financially - leaving the two publications to share legal costs estimated at £8million.” (Ref.8)
MAX MOSLEY CASE
“The Max Mosley case is highly significant. He was defamed, though the story was defensible as true - he did not deny his behaviour with prostitutes. But he claimed that the behaviour was his own private affair and that reporting on them was a denial of his section eight rights to normal family life. One point of controversy was this that Mosely had acted out sadistic sexual fantasies involving torture and incarceration. The NoW witness, said that these scenes were an explicit reference to Nazi concentration. “(Ref.2) Max won damages over the story, which the court held was not in the public interest to publish. (Ref.3) An article written by Chris Horrie for The Guardian in July 2008, titled ‘A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie.’
The battle between The News of the world and Mosley continued, as Chris Horrie says in his article ‘The News of the World has built its business by calculating that the additional revenues from really sensational invasions of privacy will outweigh the costs of doing these stories (...) on the day after the Mosley verdict, the paper took full-page advertisements in the trade press to boast about the positive commercial effects of the story and the ruling. (...)traditional dirty vicar or minor football star was just as great as invading the privacy of much
At one point, after the introduction into UK law of the Human Rights Act, the News of the World's business appeared to be threatened by the establishment in English law of a right to privacy. But, as things are turning out, the new law has not meant an end to intrusion into people's lives. It just means that the intrusion is more expensive to do. The glossy celeb magazines and weekday tabloids have got used to the practice of paying celebrities to waive their privacy rights, so that supposedly candid photos can be taken or published. ‘ (Ref.9)
‘When he arrived at the paper in January 2007, Myler said he wanted fewer, but better, kiss-and-tell stories. The legal cost of invading the privacy of the bigger fish, so there was no point in going for these smaller targets (...). A few years ago the video that proved the truth of the story would have had very little value, except as evidence in court. Now, in many ways, it is far more valuable than the printed version of the story in the paper. (...) And while the law has been getting tougher on privacy, judges have also been giving more protection against libel actions to investigative journalists genuinely trying to expose fraud or wrongdoing. (...) ‘(Ref.9)
On 6th October 2008 Press Gazette Journalism Today published an article titled Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media'. ‘Formula One chief Max Mosley has launched an audacious to bid re-write English privacy law and create what critics have called a “gagging order” against the press. ‘ (Ref.10) Mosley (won a high-profile privacy battle against the News of the World in July in the High Court) applied to the European Court of Human Rights in Strasbourg for ‘ a change in the law that would make it compulsory for newspapers to inform people before they publish private information about them.(...) Mosley is arguing that English law is in breach of Article 8 of the Human Rights Act, the right to privacy, by not requiring editors to inform people that their private lives are being written about. (...) A statement from Mosley’s legal team said that his right to privacy had been compromised as soon as the paper published its salacious claims that he enjoyed a Nazi-themed sex orgy in a west London flat. Mr Justice Eady rejected the paper’s claim that the incident had a Nazi theme and ordered that it pay an unprecedented £60,000 in damages.
The statement said: “Although this is the highest sum ever achieved in a claim for an invasion of privacy… The only effective remedy would have been to prevent the publication in the first place by means of an injunction.
“But because he did not know about the article before hand, the opportunity of an injunction was not open to him.”
Mosley’s team argues that the law change would not affect anyone’s freedom of expression, as any claimant would have to ask the courts for an injunction which, they say, “will always be refused if there is a strong and legitimate interest in publication”. (...) “The procedure that enables the courts to grant an injunction is something where courts make a snap decision based on the evidence in front of them and primarily is aimed at preserving the status quo while the parties have a longer period in which to put more detailed cases in front of the court.
(...) Media solicitor Brid Jordan, from Reynolds Porter Chamberlain, said: "Any attempt to re-cast the law based on the particular facts of the Mosley case would be a worrying development for media law and Editors".
"There is a real danger that it would tip the scales against the press and would have a chilling effect on investigative journalism in this jurisdiction." ‘(Ref.10)
But privacy law is string – so the rule is if there’s a picture of a person in your newspaper/ TV station website, make sure you know who they are, what they are doing and whether or not they have consented to having their picture taken and published. (Ref.2)
“Section 12 of the Human Rights Act also saus that when a court is considering imposing an injunction in a matter affecting freedom of expression, and where journalistic material is involved, it must have particular regard to the public interest in publication.” (Ref.3)
PRINCESS CAROLINE OF MONACO
“Princess Caroline case – the creation of defector privacy law. Can now only justified the publication of pictures of people if they are engaged in a clear public duty – new dangers for taking “wallpaper” type pictures of identifiable people without permission.” (Ref.2) In July 2004 it has been published on the legal commentary site that ‘the European Court of Human Rights handed down a judgment in the case of von Hannover v Germany which may radically alter the extent to which the paparazzi and tabloid press are permitted access to the private lives of celebrities.’(Ref.11) Princess Caroline of Monaco was the applicant ‘who took her case for protection of her privacy to the ECHR after several mainly unsuccessful applications in the German courts over a period of ten years. (...) Princess Caroline took action over a series of photographs taken in France and published in Germany of her everyday life (...). Under German law, Princess Caroline is deemed to be a "public figure par excellence", and as such the public is deemed to have a legitimate interest in knowing how she generally behaves in public, even when not performing any kind of official function.
The German government claimed that the level of protection afforded to such public figures under German law was compatible with Article 8 of the European Convention on Human Rights and struck a fair balance between Article 10 (Freedom of Expression) and Article 8 (Respect for Private and Family Life). The ECHR found unanimously, however, that there had been an infringement of Article 8 rights, and that German law did not provide adequate protection for a person's right to private and family life.
The majority of the judges said that the question of the correct balance between Article 8 and Article 10 centres on "the contribution that the published photos and articles make to a debate of general interest." In the case of Princess Caroline, the photographs made no such contribution as she exercised no official function and the photographs related solely to her private life.
The ECHR held that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as "secluded". Even if such an interest existed alongside the commercial interest of the magazines in publishing the pictures, "these should yield to the applicant's right to the effective protection of her private life." The German criteria were not sufficient to ensure the effective protection of Princess Caroline's private life and she should have a "legitimate expectation" of the protection of her private life. (...) The most obvious impact of this judgment is on press photography, since a clear "public interest" is now required to justify a photograph of a person who neither holds public office nor is engaged in an "official" activity. The ubiquitous pictures of celebrities in public places are no longer justifiable, and prominent individuals therefore have at least some privacy rights even in public places. The contextual test in the PCC Code of locations in which an individual has "a reasonable expectation to privacy" is now obsolete under this new ruling.
This means that failure by the courts and the PCC to protect individuals against publication of pictures, and by extension stories, merely for "entertainment purposes" where there is no public interest, will be a breach of the Article 8 rights of an individual. This case is a strong warning to the UK courts that they have a positive obligation to protect the privacy rights of individuals, thereby inevitably curtailing to some degree the freedom of the press, and in particular of press photography.’ (Ref.11)
Taking all the above examples into the consideration, it is essential to remember that the accurate consent is everything in photography. If a person photographed is smiling or posing for the camera then there is no danger of saying it is an invasion of privacy. For radio there could be a danger of invasion of privacy, but the issue of identification is of course not so serious. (Ref.2)
NAOMI AND DAILY MIRROR DRUG REHAB CASE
“The model Naomi Campbell received damages when a paper published pictures of her in a public street, emerging from a Narcotics Anonymous therapy session.” (Ref.3)
From the case history on the BBC website we know that in February 2001: Mirror publishes photo of Naomi Campbell leaving Narcotics Anonymous in London, then in March 2002: Campbell successfully claims breach of privacy. High Court orders £3,500 damages from Mirror. Following that in October 2002: Appeal Court overturns High Court ruling and eventually in May 2004: Law Lords overturn Appeal Court decision, reinstating High Court ruling and damages. (Ref.13)
In October 2002, BBC news website published an article saying that ‘The Daily Mirror has won an appeal against a High Court ruling that it breached the confidentiality of supermodel Naomi Campbell. Three Appeal Court judges said a story about the model's drug addiction was justified in the public interest. The newspaper was contesting a High Court decision that it must pay £3,500 damages to Miss Campbell and her legal costs. (...) Mr Morgan said the article on Miss Campbell had been "sympathetic" and said the judgment was highly symbolic.
He added: "It is a firm message to celebrities out there who want to use the law as an extension of their PR firm that we newspapers will defend ourselves very vigorously." ‘ (Ref.13)
However in May 2004 eventually, the BBC news website published another article that Naomi won her breach of confidentiality claim against Daily Mirror, ‘ Miss Campbell had objected to the publication of pictures of her leaving drug addiction treatment in early 2001. (...) ‘ (Ref.12) ‘The case centred on the publication in February 2001 of a report about her drug addiction, including a photograph of her leaving a Narcotics Anonymous meeting in King's Road, Chelsea. ‘(Ref.12)
‘Lord Hope, who voted in favour of Miss Campbell, said on Thursday: "Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell's right to privacy that cannot be justified."
The Law Lords reinstated the High Court award of £3,500, based on breach of confidentiality and breach of duty under the 1998 Data Protection Act.
The judgment leaves the Daily Mirror facing a total legal costs bill of more than £1m.
Lord Hoffmann said: "From a journalistic point of view, photographs are an essential part of the story. (...)' (Ref.12)
References:
Ref.1) Media Law Lecture ba Journalism, year 3, week 5
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 5 http://journalism.winchester.ac.uk/?page=102
Ref.3) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.4) Official Secret Act 1989: http://www.legislation.gov.uk/ukpga/1989/6/contents
Ref.5) The Zircon case: http://www.fas.org/irp/eprint/alpha/zircon.htm
Ref.6) Bill Goodwin case: January 1994, freedom of information awards: http://www.cfoi.org.uk/awards93pr.html#goodwin
Ref.7) Graham Pink case: “NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” article: http://www.independent.co.uk/news/uk/nhs-whistleblower-wins-pounds-11000-damages-health-authority-pulls-out-of-tribunal-brought-by-former-nurse-1491719.html
-----------------------------------------------------------------Refferences for part 1 (1-7)--
Ref.8) ‘OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price’ article from Mail Online, by STEVE DOUGHTY and RICHARD SIMPSON, 03 May 2007 http://www.dailymail.co.uk/tvshowbiz/article-452164/OK-magazine-wins-appeal-Zeta-Jones-wedding-photos--price.html
Ref.9) A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie, The Guardian, Monday 28 July 2008 http://www.guardian.co.uk/media/2008/jul/28/mosley.newsoftheworld
Ref.10) Press Gazette Journalism today, article: “Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media” http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=42168&c=1
Ref.11) Princess Caroline of Monaco (06/04) http://www.legalday.co.uk/lexnex/simkins04/simkins200704.htm
Ref.12) Naomi Campbell wins privacy case article on BBC news, May 2004 http://news.bbc.co.uk/1/hi/uk/3689049.stm
Ref.13)Mirror wins Campbell appeal article on the bbc news website: http://news.bbc.co.uk/1/hi/uk/2327385.stm
--------------------------------------------------Refferences for part 2: Ref (1-3) & (8-13)---
Breach of Confidence and secrecy – studying media law week 5 (part I)
“A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others (A-G v Times Newspaper (19920 1 AC 191).” (Ref.3)
Confidentiality is based on expectations, we have more of it with for example, our teachers or doctors but have less with family, friends or other people. At the same time doctors or lawyers have a duty not to. To have confidentiality there have to be circumstances implying the need imposing an obligation of confidentiality.
“In common law people have a right to keep secrets, so long as this is not against the public interest, and a right to pass on these secrets to others with the expectation that they will not pass them on to others. If somebody who is not entitled to pass on our secrets (eg our doctor or lawyer, very close family members or perhaps an employee or servant) does so, that person has committed “breach of confidence” which is both a crime and may be subject to a civil action for compensation.” (Ref.2)
“Breach of Confidence is based upon the principle that a person who has obtained information in confidence should not take unfair advantage of it. (...)” (Ref.3) Not only governments use breach of confidence to protect information they regard as secret as individual citizens can use it for the same purpose to protect their privacy. Having that aspect in mind, “breach of confidence received a strong boost when the Human Rights Act was implemented in 2000.” (Ref.3) All above “can affect journalists because the main means used to prevent breach of confidence is an interim injunction stopping the media from publishing confidential information.” (Ref.3)
A person is in breach of confidence if they pass on information which has “the necessary quality of confidence”, the information was provided in “circumstances imposing an obligation” and was no permission to pass on the information; and also “detriment” is likely to be caused to the person who gave in the information (Ref.2). For the breach of confidentiality to take place not only all above circumstances have to accompany the passing of the information but also a person that the breach has been done to, has to show that damage has been done through the breach of confidentiality, unlike it was in case in defamation when person only had to show that the damage could be done to them.
For information to be in risk of breach of confidence it should be passed in certain circumstances. The elements thought to support information to be seen as breach of confidentiality when it has so called ‘necessary quality of confidence’. “The information must have been imparted in circumstances imposing an obligation of confidence; and there must be an unauthorised use of that information to the detriment of the party communicating it (...).” (Ref.3)
Journalists should be highly aware of the risks of breach of confidence in situations when for example, “the information may have been obtained indirectly from confider. A third party (...) who comes into possession of confidential information and realises it is confidential may come under a legal duty to respect the confidence.” (Ref.3)
Confidentiality means secrets in other words. There has been an Official Secrets act created in 1911 covering two types of secrets. Section 1 of the act covers serious secrets like army, war situations, military, power stations, nuclear basis etc. Places like this are protected under the act and usually signed with the sign ‘no photography under the section 1911 Act. It is also important not to film or photograph accidently places sampled with that sign. Official (statutory) secrets belong to this section as ‘certain types of public information such details of military or intelligence operations are “official secrets”. The Official Secrets Act 1911 (and various amendments) contains schedules of secret information. Revealing any of this information can lead to criminal prosecution. The main danger here is inadvertent braking of the OSA by for example taking wallpaper shots (again as with Defamation, note the danger) of military bases, which are covered by the official secrets act. Normally at a military base (or for example a nuclear power station) there will be a notice saying:
“This is a prohibited place under the official secrets act. Persons entering here may be arrested and prosecuted”. If this is the case you cannot take photos, or make a drawing or anything of that sort without permission”.’ (Ref.2)
Section 2 of the Official secrets Act covers secrets of a lighter matter than section 1, like post office for example. Official secrets Act from 1989 has been created to “replace section 2 of the Official secrets Act 1911 by provisions protecting more limited classes of official information [11th May 1989]. “ (Ref.4)
There are now three areas of concern when talking about Confidentiality and secrecy under these two sections:
1. State secrets (mainly affecting certain types investigative journalism, and reporting communities with links to the armed forces) - Official Secrets Act 1989 http://www.legislation.gov.uk/ukpga/1989/6/contents
2. Commercial secrets (vital for B2B, and solid news reporting, and investigative reporting, and specialist reporting - eg health) - Common Law Confidentiality
3. Privacy (mainly a matter for tabloid/ celeb journalism) - ‘Privacy’ law, and Human Rights Act, section 8 ‘normal enjoyment of family life’. (Ref.2)
More over, under the section 33 Terrorism Act, you can be also arrested when breaching or being seen to be in the risk of the breach of the act(Acpo- the defence).
The Zircon case
“Throughout the latter part of 1986 and the first weeks of 1987, the investigative journalist Duncan Campbell was working on a BBC television series to be called Secret Society. Campbell had been a thorn in the side of the intelligence establishment for years. (...) An earlier attempt to convict Campbell and one of his sources under the Official Secrets Act had failed; this was one of several cases which had prompted the Home Office to draw up a new secrets law. Campbell discovered that the government planned to build a new satellite which would enable GCHQ to eavesdrop on the Soviet Union. He believed the plan violated a 1982 government agreement to inform the House of Commons Public Accounts Committee of any military project costing more than a certain amount. Inevitably, word of his inquiries reached government, and the Prime Minister decided to act. Nigel Lawson, then Chancellor of the Exchequer, recounts in his memoirs that 'the government managed to lean on the BBC to ban the programme'. Faced with the prospect of an injunction, Campbell rushed his research into print in the New Statesman of 23 January 1987. The spy satellite, hitherto one of Whitehall's most cherished secrets, had become a major story, as had its code-name: ZIRCON. (...) A member of the Defence Intelligence Staff at the time says, 'It was held at an incredibly tight level. We knew that there was something called ZIRCON and we knew it would be incredibly expensive.'(...) The publication of Duncan Campbell's article in January 1987 brought the hitherto 'black' project into the glare of publicity. Following publication (...) the Attorney General, to issue an injunction against [Campbell] . . . in a somewhat unfortunate blaze of publicity, the police raided offices both of the BBC in Glasgow and of the New Statesman in London.' The sight of Special Branch detectives carrying off videotapes and papers antagonized liberal opinion, and was evidence of how deeply entrenched the Prime Minister had become in her desire to protect the intelligence services from journalistic scrutiny, even if the political cost was high. (...) Prime Minister's extreme sensitivity may have been connected with the fact that she was close to having to make a decision about ZIRCON at the time that Duncan Campbell's programme was being made.(...) The cost to the UK of owning and maintaining a single ZIRCON satellite would have added about 100 million a year to GCHQ's budget in perpetuity. (...) The saga of Britain's spy satellite, complete with court injunctions and police raids, coincided with episodes in two other difficult and long-running public dramas involving Thatcher and the intelligence services: banning trade unions at GCHQ and trying to prevent the publication of Peter Wright's book Spycatcher. (...)
(...) In March 1987 the Australian court rejected the UK government's request for an injunction. An appeal failed six months later and the matter then went to the House of Lords, where the government also lost. (...) In a subsequent BBC television interview with Panorama's John Ware, Wright's most disturbing allegation - that there had been a plot against Harold Wilson's government - fell apart on screen, with the ageing writer admitting that it had not involved thirty MI5 officers, as stated in his book, but had consisted of little more than idle chatter between Wright himself and a small number of his colleagues. What Security Service officers resented was the fact that the government attempt to ban publication had invested Wright's allegations with credibility. Anthony Duff, Director General of MI5 at the time the decision was made to proceed against Wright, told me, 'The whole thing was a disaster in terms of (a) making a lot of money for Peter Wright and (b) holding up the British state to ridicule. I went along with it. I should have tried to stop it.' Duff had deferred to his Legal Adviser, Bernard Sheldon, and other government law officers who had originally advocated prosecution. (...) Thatcher's desire to keep all intelligence matters shrouded in darkness was central to the union problems at GCHQ, the ZIRCON police raids and the Spycatcher court battle. Some senior figures, such as Anthony Duff at the Security Service, were already undermining this strategy by discreet briefings of newspaper editors.(...) ” (Ref.)
Confidentiality in workplace (commercial confidentiality and gagging clauses)
The quality of confidence has different obligations of secrecy is dictated by different functions and organisations it is implied in and so it can arise in variety of ways like for example Contractual relationship (people working together), membership of security services (no contracts of employment with the Crown, but a duty of confidence coming out of the nature of their employment and requirement of national security also with subject to the defence of public interest; or even domestic relationship securing privacy.
If boss tells an employee [circumstances implying duty of confidence] the maximum price which he is prepared to pay a supplier [quality of confidence] and then tells him to keep that secret [no permission] and if the employee then tells the supplier that price and it causes the company to pay more than they otherwise would have to pay [detriment]. Then that would be classic breach of “commercial confidentiality”. (Ref.2) But if the employer shouts the information at a party, then revealing it would not be breach. This is one reason why bosses and important people have offices. Likewise if the information imparted was trivial - for example plans for decorating the office Xmas tree - then the employee could not be done for breach of confidence, even if the employer made him “swear” to keep it secret. The information does not have the “necessary quality of confidence”. (Ref.2)
For example in contracts of employment there are so called “GAGGING CLAUSES” which happen if a person is employed by another for wages they owe the employer a common law “duty of confidence”, and even if there is not a contract of employment as such. An employer has to “confidence” that they can tell secrets to an employee. This secrecy could extend to matters of public concern. The public interest defence is limited when there are mechanisms for dealing with complaints internally. Where organisations are covered by the Official Secrets Act, the public interest defence is not allowed. So if somebody has a ‘gagging clause’ they are taking a huge risk in speaking to a journalist about their company either without permission. (Ref.2)
“The only time that an employee could reveal confidential information without an action for breach (and a journalist report it with an action for Third Party breach) would be where it was overwhelmingly in the public interest (and its three point definition given in the PCC code of conduct).” (Ref.2)
If confidential information is passed to a journalist he/she will protect the source in the best possible way following the NUJ code of conduct (Bill Goodwin case- below), however if they are identified, as they often will be by the nature of their information, then they face very severe penalties and there will be nothing that journalist will be able to do to help them. (Ref.2)
Quite an interesting case to study is case of Graham Pink who was a charge nurse working in care of the elderly wards on night duty in Stepping Hill Hospital, Stockport. After two years of unsuccessfully raising concerns with his managers he decided to go public. He reported how understaffing caused inadequate care, and was dismissed in Sept. 1991 for 'breaching confidentiality'. He took the hospital to an industrial tribunal and won compensation. A group campaigning for stronger protection for journalists and “whistlers” who are “gagged” by confidentiality clauses in employment contracts. (Ref.2)
“NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” written by JUDY JONES on June 1993.
“Stockport Health Authority pulled out of the industrial tribunal hearing brought by Graham Pink, 63, a former charge nurse at Stepping Hill Hospital, citing the escalating legal costs of contesting his allegations. It has already spent pounds 90,000. Mr Pink was sacked nearly two years ago after publicising claims that elderly patients at Stepping Hill routinely received poor standards of care. (...) During his campaign Mr Pink appeared in national newspapers, on television and wrote what the tribunal heard was a 'torrent of words'. He compared conditions on the wards at night to those in jail. He was alleged to have breached confidentiality when he released details of an incident involving an elderly, dying man. The man's family claimed he could be identified from details, which they said had caused distress. (...) Mr Pink could not be contacted for comment, but Robin Lewis, his solicitor, said: 'This is not a settlement, it is a concession.' His client was still considering whether to pursue his original claim for reinstatement. But he had no choice over accepting the withdrawal of the health authority. 'Graham Pink has won his battle. Stockport Health Authority has admitted that it acted unfairly when it dismissed him. (...)” (Ref.7)
Billy Goodwin case (PROFESSIONAL CONFIDENTIALITY)
Anything we tell a doctor we expect to remain secret between ourselves and the doctor, unless we give consent that the information can be shared because it is trivial, or because it will be useful for medical research or education. If a person reveals secret (confidential) information about another person or company or organisation without permission, they may be guilty of the crime of “breach of confidence”. If you as a journalist then print or broadcast the information, then this is “third party breach of confidence” which is also a crime. (Ref.2)
A good example of award winning protection of the source was by Bill Goodwin, who received an Award, as the journalist who risked imprisonment for keeping his sources confidential. “In 1989, as a 23-year old trainee journalist on the Engineer magazine his article based on leaked information was suppressed by an injunction obtained by the company he was writing about. The company, Tetra Business Systems, also obtained a court order requiring him to identify his source - which he refused to obey. (...) If journalists breached their undertakings to their sources they would not be trusted with information, and the press would be unable to expose wrongdoing. The company was determined to identify the whistleblower and asked the court to imprison the journalist for contempt. The Court of Appeal refused to even hear his appeal unless he handed over his interview notes in a sealed envelope, to be opened if the decision went against him - which he again refused to do. The House of Lords found that he had been in contempt, but the prison sentence which had been widely feared was not imposed. The ruling made clear that section 10 of the Contempt of Court Act 1981, which had been designed to protect journalists' sources, was largely useless. Section 10 allows a journalist to withhold the name of a source unless disclosure is "necessary in the interests of justice". It had been thought this would apply only in serious cases, for example where there was a risk of miscarriage of justice during a trial. But the Law Lords ruled that it permitted a court to order disclosure merely to help a company identify and sack a whistleblower. Mr Goodwin has challenged this ruling as a contravention of Article 10 of the European Convention of Human Rights - which guarantees freedom of expression. In September 1993 the European Commission on Human Rights ruled his case admissible, and asked the British government to try and reach a settlement with Mr Goodwin - who is seeking a change in British law to protect sources properly.(...) (Ref.6)
Disclosure in the public interest: Section 12 vs Privacy: Section 8 (impact on family life) , Human Rights Act
Within the commercial law there are not only business secrets but also family secrets. Confidentiality is residual, as mentioned before; everyone has a right to it (as soon as they turn 16). On one hand there is always the need of preserving privacy in the public interest but on the other the public interest also stands for the fact of making people aware of matters of public concern.
The Human Rights Act 1998 says in section 12 that when the court is considering imposing an injunction in a matter affecting freedom of expression, and where journalistic material is involved, it must have particular regard to the extent to which it is, or would be, in the public interest to be published. (Ref.3) This section also says that “there shall be no prior restraint in a media case ‘unless the court is satisfied that applicant [that is the person asking for the injunction] is likely to establish that the publication should not be allowed’ when the case comes to trial.
“Until 2000, English law recognised no right to privacy. But on many occasions people who believed their privacy was about to be infringed attempted to use the law of breach of confidence to prevent intrusions.” (Ref.3)
In addition to state secrets, and commercial confidentiality (trade secrets and ‘whistleblowing’) there is the third area of ‘personal secrets’ or privacy. This mainly affects tabloid and celebrity journalism and, to a large extent, it is all about the ability to take pictures of famous people in various circumstances. It also involves printing/broadcasting the details of family life of any person, famous or not. (Ref.2)
Interesting cases covering this matter would be for example:
- Paul Burrell - Diana’s Butler (public interest was national security)
- Christopher Meyer - Ambassador to Washington - criticised over incident revealing the colour of - - John Major’s underpants. Memoires of his time in public office - defended as public interest (decision to go to war over Iraq) or “mere tittle-tattle” (John Major’s underpants). (Ref.2)
INJUNCTIONS
“A person who possesses information to a journalist may have received it confidentially. If the person to whom the confidence belongs (the confider) discovers, before the paper is published or the programme is broadcast, that the information is to be disclosed, he/she can try to get a temporary injunction prohibiting publication of the confidential material.” (Ref.3)
The danger is that the person or company’s secrets you are about to disclose can quiet easily get an injunction to prevent publication/ broadcast. This is very expensive, even if the injunction is nonsense, and is lifted and then you publish or broadcast anyway. The injunction is easy to get because the person asking will say there’s a danger of a crime happening (breach of confidence) and the injunction will prevent the crime. Then the facts of the matter can be argued in front of a judge later. (Ref.2)
In Human Rights Act 1998 section 12 it is intended to provide some protection against injunctions in matters involving freedom of expression.
The danger of an injunction comes, as well, when you are checking the information with the person or company. This will alert them and they may well go for an injunction. An injunction against one media organisation is an injunction against all publishers. People with something to hide will often go for an injunction (example is Robert Maxwell of course) on the grounds they have little to lose, that the cost of an injunction might deter people from writing about him, and also that the allegations resulting from the disclosure of so-called “commercial secrets” will be softened by the fog of “legal trouble” and “controversy” around them. The human rights act and the provision for freedom of expression may be helping guard against injunctions. It is a great shame that it does not mention “freedom of the press” explicitly. (Ref.2)
“In 1987 the Court of Appeal held that when an injunction is in force preventing a newspaper from publishing confidential information , other newspapers in England and Wales that know of the injunction can be guilty of contempt of court if they publish that information, even if they are not named in the injunction.” (Ref.3)
2 Section 8 of the Ofcom Broadcasting Code states that the principle aimed for is to ensure that broadcasters avoid any ‘unwarranted’ infringement of privacy, either in programmes or in connection with obtaining material included in programmes.” (Ref.3) From recent cases for example, Ofcom launched an investigation in 2008 after the presenters Jonathan Ross and Russell Brand left series of lewd phone messages on the answering machine regarding sexlife of relatives of veteran actor Andrew Saches.
See further posts on subject of studying Breach of Confidence and secrecy here:
‘Max Mosley, Catherine Zeta Jones and other cases - CELEBRITIES AND PRIVACY’
References:
Ref.1) Media Law Lecture ba Journalism, year 3, week 5
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 5 http://journalism.winchester.ac.uk/?page=102
Ref.3) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.4) Official Secret Act 1989: http://www.legislation.gov.uk/ukpga/1989/6/contents
Ref.5) The Zircon case: http://www.fas.org/irp/eprint/alpha/zircon.htm
Ref.6) Bill Goodwin case: January 1994, freedom of information awards: http://www.cfoi.org.uk/awards93pr.html#goodwin
Ref.7) Graham Pink case: “NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” article: http://www.independent.co.uk/news/uk/nhs-whistleblower-wins-pounds-11000-damages-health-authority-pulls-out-of-tribunal-brought-by-former-nurse-1491719.html
---------------------------------------------------------------------------Refferences for part 1 (1-7)--
Ref.8) ‘OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price’ article from Mail Online, by STEVE DOUGHTY and RICHARD SIMPSON, 03 May 2007 http://www.dailymail.co.uk/tvshowbiz/article-452164/OK-magazine-wins-appeal-Zeta-Jones-wedding-photos--price.html
Ref.9) A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie, The Guardian, Monday 28 July 2008 http://www.guardian.co.uk/media/2008/jul/28/mosley.newsoftheworld
Ref.10) Press Gazette Journalism today, article: “Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media” http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=42168&c=1
Ref.11) Princess Caroline of Monaco (06/04) http://www.legalday.co.uk/lexnex/simkins04/simkins200704.htm
Ref.12) Naomi Campbell wins privacy case article on BBC news, May 2004 http://news.bbc.co.uk/1/hi/uk/3689049.stm
Ref.13)Mirror wins Campbell appeal article on the bbc news website: http://news.bbc.co.uk/1/hi/uk/2327385.stm
---------------------------------------------------------Refferences for part 2: Ref (1-3) & (8-13)----
Confidentiality is based on expectations, we have more of it with for example, our teachers or doctors but have less with family, friends or other people. At the same time doctors or lawyers have a duty not to. To have confidentiality there have to be circumstances implying the need imposing an obligation of confidentiality.
“In common law people have a right to keep secrets, so long as this is not against the public interest, and a right to pass on these secrets to others with the expectation that they will not pass them on to others. If somebody who is not entitled to pass on our secrets (eg our doctor or lawyer, very close family members or perhaps an employee or servant) does so, that person has committed “breach of confidence” which is both a crime and may be subject to a civil action for compensation.” (Ref.2)
“Breach of Confidence is based upon the principle that a person who has obtained information in confidence should not take unfair advantage of it. (...)” (Ref.3) Not only governments use breach of confidence to protect information they regard as secret as individual citizens can use it for the same purpose to protect their privacy. Having that aspect in mind, “breach of confidence received a strong boost when the Human Rights Act was implemented in 2000.” (Ref.3) All above “can affect journalists because the main means used to prevent breach of confidence is an interim injunction stopping the media from publishing confidential information.” (Ref.3)
A person is in breach of confidence if they pass on information which has “the necessary quality of confidence”, the information was provided in “circumstances imposing an obligation” and was no permission to pass on the information; and also “detriment” is likely to be caused to the person who gave in the information (Ref.2). For the breach of confidentiality to take place not only all above circumstances have to accompany the passing of the information but also a person that the breach has been done to, has to show that damage has been done through the breach of confidentiality, unlike it was in case in defamation when person only had to show that the damage could be done to them.
For information to be in risk of breach of confidence it should be passed in certain circumstances. The elements thought to support information to be seen as breach of confidentiality when it has so called ‘necessary quality of confidence’. “The information must have been imparted in circumstances imposing an obligation of confidence; and there must be an unauthorised use of that information to the detriment of the party communicating it (...).” (Ref.3)
Journalists should be highly aware of the risks of breach of confidence in situations when for example, “the information may have been obtained indirectly from confider. A third party (...) who comes into possession of confidential information and realises it is confidential may come under a legal duty to respect the confidence.” (Ref.3)
Confidentiality means secrets in other words. There has been an Official Secrets act created in 1911 covering two types of secrets. Section 1 of the act covers serious secrets like army, war situations, military, power stations, nuclear basis etc. Places like this are protected under the act and usually signed with the sign ‘no photography under the section 1911 Act. It is also important not to film or photograph accidently places sampled with that sign. Official (statutory) secrets belong to this section as ‘certain types of public information such details of military or intelligence operations are “official secrets”. The Official Secrets Act 1911 (and various amendments) contains schedules of secret information. Revealing any of this information can lead to criminal prosecution. The main danger here is inadvertent braking of the OSA by for example taking wallpaper shots (again as with Defamation, note the danger) of military bases, which are covered by the official secrets act. Normally at a military base (or for example a nuclear power station) there will be a notice saying:
“This is a prohibited place under the official secrets act. Persons entering here may be arrested and prosecuted”. If this is the case you cannot take photos, or make a drawing or anything of that sort without permission”.’ (Ref.2)
Section 2 of the Official secrets Act covers secrets of a lighter matter than section 1, like post office for example. Official secrets Act from 1989 has been created to “replace section 2 of the Official secrets Act 1911 by provisions protecting more limited classes of official information [11th May 1989]. “ (Ref.4)
There are now three areas of concern when talking about Confidentiality and secrecy under these two sections:
1. State secrets (mainly affecting certain types investigative journalism, and reporting communities with links to the armed forces) - Official Secrets Act 1989 http://www.legislation.gov.uk/ukpga/1989/6/contents
2. Commercial secrets (vital for B2B, and solid news reporting, and investigative reporting, and specialist reporting - eg health) - Common Law Confidentiality
3. Privacy (mainly a matter for tabloid/ celeb journalism) - ‘Privacy’ law, and Human Rights Act, section 8 ‘normal enjoyment of family life’. (Ref.2)
More over, under the section 33 Terrorism Act, you can be also arrested when breaching or being seen to be in the risk of the breach of the act(Acpo- the defence).
The Zircon case
“Throughout the latter part of 1986 and the first weeks of 1987, the investigative journalist Duncan Campbell was working on a BBC television series to be called Secret Society. Campbell had been a thorn in the side of the intelligence establishment for years. (...) An earlier attempt to convict Campbell and one of his sources under the Official Secrets Act had failed; this was one of several cases which had prompted the Home Office to draw up a new secrets law. Campbell discovered that the government planned to build a new satellite which would enable GCHQ to eavesdrop on the Soviet Union. He believed the plan violated a 1982 government agreement to inform the House of Commons Public Accounts Committee of any military project costing more than a certain amount. Inevitably, word of his inquiries reached government, and the Prime Minister decided to act. Nigel Lawson, then Chancellor of the Exchequer, recounts in his memoirs that 'the government managed to lean on the BBC to ban the programme'. Faced with the prospect of an injunction, Campbell rushed his research into print in the New Statesman of 23 January 1987. The spy satellite, hitherto one of Whitehall's most cherished secrets, had become a major story, as had its code-name: ZIRCON. (...) A member of the Defence Intelligence Staff at the time says, 'It was held at an incredibly tight level. We knew that there was something called ZIRCON and we knew it would be incredibly expensive.'(...) The publication of Duncan Campbell's article in January 1987 brought the hitherto 'black' project into the glare of publicity. Following publication (...) the Attorney General, to issue an injunction against [Campbell] . . . in a somewhat unfortunate blaze of publicity, the police raided offices both of the BBC in Glasgow and of the New Statesman in London.' The sight of Special Branch detectives carrying off videotapes and papers antagonized liberal opinion, and was evidence of how deeply entrenched the Prime Minister had become in her desire to protect the intelligence services from journalistic scrutiny, even if the political cost was high. (...) Prime Minister's extreme sensitivity may have been connected with the fact that she was close to having to make a decision about ZIRCON at the time that Duncan Campbell's programme was being made.(...) The cost to the UK of owning and maintaining a single ZIRCON satellite would have added about 100 million a year to GCHQ's budget in perpetuity. (...) The saga of Britain's spy satellite, complete with court injunctions and police raids, coincided with episodes in two other difficult and long-running public dramas involving Thatcher and the intelligence services: banning trade unions at GCHQ and trying to prevent the publication of Peter Wright's book Spycatcher. (...)
(...) In March 1987 the Australian court rejected the UK government's request for an injunction. An appeal failed six months later and the matter then went to the House of Lords, where the government also lost. (...) In a subsequent BBC television interview with Panorama's John Ware, Wright's most disturbing allegation - that there had been a plot against Harold Wilson's government - fell apart on screen, with the ageing writer admitting that it had not involved thirty MI5 officers, as stated in his book, but had consisted of little more than idle chatter between Wright himself and a small number of his colleagues. What Security Service officers resented was the fact that the government attempt to ban publication had invested Wright's allegations with credibility. Anthony Duff, Director General of MI5 at the time the decision was made to proceed against Wright, told me, 'The whole thing was a disaster in terms of (a) making a lot of money for Peter Wright and (b) holding up the British state to ridicule. I went along with it. I should have tried to stop it.' Duff had deferred to his Legal Adviser, Bernard Sheldon, and other government law officers who had originally advocated prosecution. (...) Thatcher's desire to keep all intelligence matters shrouded in darkness was central to the union problems at GCHQ, the ZIRCON police raids and the Spycatcher court battle. Some senior figures, such as Anthony Duff at the Security Service, were already undermining this strategy by discreet briefings of newspaper editors.(...) ” (Ref.)
Confidentiality in workplace (commercial confidentiality and gagging clauses)
The quality of confidence has different obligations of secrecy is dictated by different functions and organisations it is implied in and so it can arise in variety of ways like for example Contractual relationship (people working together), membership of security services (no contracts of employment with the Crown, but a duty of confidence coming out of the nature of their employment and requirement of national security also with subject to the defence of public interest; or even domestic relationship securing privacy.
If boss tells an employee [circumstances implying duty of confidence] the maximum price which he is prepared to pay a supplier [quality of confidence] and then tells him to keep that secret [no permission] and if the employee then tells the supplier that price and it causes the company to pay more than they otherwise would have to pay [detriment]. Then that would be classic breach of “commercial confidentiality”. (Ref.2) But if the employer shouts the information at a party, then revealing it would not be breach. This is one reason why bosses and important people have offices. Likewise if the information imparted was trivial - for example plans for decorating the office Xmas tree - then the employee could not be done for breach of confidence, even if the employer made him “swear” to keep it secret. The information does not have the “necessary quality of confidence”. (Ref.2)
For example in contracts of employment there are so called “GAGGING CLAUSES” which happen if a person is employed by another for wages they owe the employer a common law “duty of confidence”, and even if there is not a contract of employment as such. An employer has to “confidence” that they can tell secrets to an employee. This secrecy could extend to matters of public concern. The public interest defence is limited when there are mechanisms for dealing with complaints internally. Where organisations are covered by the Official Secrets Act, the public interest defence is not allowed. So if somebody has a ‘gagging clause’ they are taking a huge risk in speaking to a journalist about their company either without permission. (Ref.2)
“The only time that an employee could reveal confidential information without an action for breach (and a journalist report it with an action for Third Party breach) would be where it was overwhelmingly in the public interest (and its three point definition given in the PCC code of conduct).” (Ref.2)
If confidential information is passed to a journalist he/she will protect the source in the best possible way following the NUJ code of conduct (Bill Goodwin case- below), however if they are identified, as they often will be by the nature of their information, then they face very severe penalties and there will be nothing that journalist will be able to do to help them. (Ref.2)
Quite an interesting case to study is case of Graham Pink who was a charge nurse working in care of the elderly wards on night duty in Stepping Hill Hospital, Stockport. After two years of unsuccessfully raising concerns with his managers he decided to go public. He reported how understaffing caused inadequate care, and was dismissed in Sept. 1991 for 'breaching confidentiality'. He took the hospital to an industrial tribunal and won compensation. A group campaigning for stronger protection for journalists and “whistlers” who are “gagged” by confidentiality clauses in employment contracts. (Ref.2)
“NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” written by JUDY JONES on June 1993.
“Stockport Health Authority pulled out of the industrial tribunal hearing brought by Graham Pink, 63, a former charge nurse at Stepping Hill Hospital, citing the escalating legal costs of contesting his allegations. It has already spent pounds 90,000. Mr Pink was sacked nearly two years ago after publicising claims that elderly patients at Stepping Hill routinely received poor standards of care. (...) During his campaign Mr Pink appeared in national newspapers, on television and wrote what the tribunal heard was a 'torrent of words'. He compared conditions on the wards at night to those in jail. He was alleged to have breached confidentiality when he released details of an incident involving an elderly, dying man. The man's family claimed he could be identified from details, which they said had caused distress. (...) Mr Pink could not be contacted for comment, but Robin Lewis, his solicitor, said: 'This is not a settlement, it is a concession.' His client was still considering whether to pursue his original claim for reinstatement. But he had no choice over accepting the withdrawal of the health authority. 'Graham Pink has won his battle. Stockport Health Authority has admitted that it acted unfairly when it dismissed him. (...)” (Ref.7)
Billy Goodwin case (PROFESSIONAL CONFIDENTIALITY)
Anything we tell a doctor we expect to remain secret between ourselves and the doctor, unless we give consent that the information can be shared because it is trivial, or because it will be useful for medical research or education. If a person reveals secret (confidential) information about another person or company or organisation without permission, they may be guilty of the crime of “breach of confidence”. If you as a journalist then print or broadcast the information, then this is “third party breach of confidence” which is also a crime. (Ref.2)
A good example of award winning protection of the source was by Bill Goodwin, who received an Award, as the journalist who risked imprisonment for keeping his sources confidential. “In 1989, as a 23-year old trainee journalist on the Engineer magazine his article based on leaked information was suppressed by an injunction obtained by the company he was writing about. The company, Tetra Business Systems, also obtained a court order requiring him to identify his source - which he refused to obey. (...) If journalists breached their undertakings to their sources they would not be trusted with information, and the press would be unable to expose wrongdoing. The company was determined to identify the whistleblower and asked the court to imprison the journalist for contempt. The Court of Appeal refused to even hear his appeal unless he handed over his interview notes in a sealed envelope, to be opened if the decision went against him - which he again refused to do. The House of Lords found that he had been in contempt, but the prison sentence which had been widely feared was not imposed. The ruling made clear that section 10 of the Contempt of Court Act 1981, which had been designed to protect journalists' sources, was largely useless. Section 10 allows a journalist to withhold the name of a source unless disclosure is "necessary in the interests of justice". It had been thought this would apply only in serious cases, for example where there was a risk of miscarriage of justice during a trial. But the Law Lords ruled that it permitted a court to order disclosure merely to help a company identify and sack a whistleblower. Mr Goodwin has challenged this ruling as a contravention of Article 10 of the European Convention of Human Rights - which guarantees freedom of expression. In September 1993 the European Commission on Human Rights ruled his case admissible, and asked the British government to try and reach a settlement with Mr Goodwin - who is seeking a change in British law to protect sources properly.(...) (Ref.6)
Disclosure in the public interest: Section 12 vs Privacy: Section 8 (impact on family life) , Human Rights Act
Within the commercial law there are not only business secrets but also family secrets. Confidentiality is residual, as mentioned before; everyone has a right to it (as soon as they turn 16). On one hand there is always the need of preserving privacy in the public interest but on the other the public interest also stands for the fact of making people aware of matters of public concern.
The Human Rights Act 1998 says in section 12 that when the court is considering imposing an injunction in a matter affecting freedom of expression, and where journalistic material is involved, it must have particular regard to the extent to which it is, or would be, in the public interest to be published. (Ref.3) This section also says that “there shall be no prior restraint in a media case ‘unless the court is satisfied that applicant [that is the person asking for the injunction] is likely to establish that the publication should not be allowed’ when the case comes to trial.
“Until 2000, English law recognised no right to privacy. But on many occasions people who believed their privacy was about to be infringed attempted to use the law of breach of confidence to prevent intrusions.” (Ref.3)
In addition to state secrets, and commercial confidentiality (trade secrets and ‘whistleblowing’) there is the third area of ‘personal secrets’ or privacy. This mainly affects tabloid and celebrity journalism and, to a large extent, it is all about the ability to take pictures of famous people in various circumstances. It also involves printing/broadcasting the details of family life of any person, famous or not. (Ref.2)
Interesting cases covering this matter would be for example:
- Paul Burrell - Diana’s Butler (public interest was national security)
- Christopher Meyer - Ambassador to Washington - criticised over incident revealing the colour of - - John Major’s underpants. Memoires of his time in public office - defended as public interest (decision to go to war over Iraq) or “mere tittle-tattle” (John Major’s underpants). (Ref.2)
INJUNCTIONS
“A person who possesses information to a journalist may have received it confidentially. If the person to whom the confidence belongs (the confider) discovers, before the paper is published or the programme is broadcast, that the information is to be disclosed, he/she can try to get a temporary injunction prohibiting publication of the confidential material.” (Ref.3)
The danger is that the person or company’s secrets you are about to disclose can quiet easily get an injunction to prevent publication/ broadcast. This is very expensive, even if the injunction is nonsense, and is lifted and then you publish or broadcast anyway. The injunction is easy to get because the person asking will say there’s a danger of a crime happening (breach of confidence) and the injunction will prevent the crime. Then the facts of the matter can be argued in front of a judge later. (Ref.2)
In Human Rights Act 1998 section 12 it is intended to provide some protection against injunctions in matters involving freedom of expression.
The danger of an injunction comes, as well, when you are checking the information with the person or company. This will alert them and they may well go for an injunction. An injunction against one media organisation is an injunction against all publishers. People with something to hide will often go for an injunction (example is Robert Maxwell of course) on the grounds they have little to lose, that the cost of an injunction might deter people from writing about him, and also that the allegations resulting from the disclosure of so-called “commercial secrets” will be softened by the fog of “legal trouble” and “controversy” around them. The human rights act and the provision for freedom of expression may be helping guard against injunctions. It is a great shame that it does not mention “freedom of the press” explicitly. (Ref.2)
“In 1987 the Court of Appeal held that when an injunction is in force preventing a newspaper from publishing confidential information , other newspapers in England and Wales that know of the injunction can be guilty of contempt of court if they publish that information, even if they are not named in the injunction.” (Ref.3)
2 Section 8 of the Ofcom Broadcasting Code states that the principle aimed for is to ensure that broadcasters avoid any ‘unwarranted’ infringement of privacy, either in programmes or in connection with obtaining material included in programmes.” (Ref.3) From recent cases for example, Ofcom launched an investigation in 2008 after the presenters Jonathan Ross and Russell Brand left series of lewd phone messages on the answering machine regarding sexlife of relatives of veteran actor Andrew Saches.
See further posts on subject of studying Breach of Confidence and secrecy here:
‘Max Mosley, Catherine Zeta Jones and other cases - CELEBRITIES AND PRIVACY’
References:
Ref.1) Media Law Lecture ba Journalism, year 3, week 5
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 5 http://journalism.winchester.ac.uk/?page=102
Ref.3) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.4) Official Secret Act 1989: http://www.legislation.gov.uk/ukpga/1989/6/contents
Ref.5) The Zircon case: http://www.fas.org/irp/eprint/alpha/zircon.htm
Ref.6) Bill Goodwin case: January 1994, freedom of information awards: http://www.cfoi.org.uk/awards93pr.html#goodwin
Ref.7) Graham Pink case: “NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” article: http://www.independent.co.uk/news/uk/nhs-whistleblower-wins-pounds-11000-damages-health-authority-pulls-out-of-tribunal-brought-by-former-nurse-1491719.html
---------------------------------------------------------------------------Refferences for part 1 (1-7)--
Ref.8) ‘OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price’ article from Mail Online, by STEVE DOUGHTY and RICHARD SIMPSON, 03 May 2007 http://www.dailymail.co.uk/tvshowbiz/article-452164/OK-magazine-wins-appeal-Zeta-Jones-wedding-photos--price.html
Ref.9) A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie, The Guardian, Monday 28 July 2008 http://www.guardian.co.uk/media/2008/jul/28/mosley.newsoftheworld
Ref.10) Press Gazette Journalism today, article: “Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media” http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=42168&c=1
Ref.11) Princess Caroline of Monaco (06/04) http://www.legalday.co.uk/lexnex/simkins04/simkins200704.htm
Ref.12) Naomi Campbell wins privacy case article on BBC news, May 2004 http://news.bbc.co.uk/1/hi/uk/3689049.stm
Ref.13)Mirror wins Campbell appeal article on the bbc news website: http://news.bbc.co.uk/1/hi/uk/2327385.stm
---------------------------------------------------------Refferences for part 2: Ref (1-3) & (8-13)----
Saturday, 27 November 2010
Qualified Privilege and Absolute Privilege – studying rules of reporting (important cases)
“Qualified Privilege is available as a defence where it is considered important that the facts should be freely known in the public interest.” (Ref.2)
Even though journalists in fact have no different rights than citizens of UK, following the Act of 1960 they have a protection of Qualified Privilege, which “gives as much protection to a publication as absolute privilege, provided that the defence’s requirements are met.” (Ref.2)
As a journalist, to have any type of privilege while reporting first of all, your report must be fair, accurate, without malice and on a matter of public interest. There is no privilege outside main proceedings like public meetings at that is where there will be no more protection. (Ref.6) Further more in detail Qualified Privilege applies:
(1) In reporting court, parliament you have a Qualified Privilege defence automatically when repeat/publish or broadcast defamatory remarks
(2) Qualified Privilege requires immediate publication, no errors, no malice ('fast, accurate, fair', malice can be lack of balance, so add "he denies the charges" and "the case continues".
(3) You never have Absolute Privilege as a journalist, though in practice if your report is free from error if it is published immediately then the Qualified Privilege confers a similar degree of protection.
(4) You have QP at a range of other public events (eg local government meetings, pressure group meetings, AGMs of companies (section 12 of the 1996 act + Clegg + Human Rights Act, section 10) so long as you allow the defamed person to deny it in the same report - "subject to contradiction".
(5) If you have ALL 10 POINTS of Reynolds Test, plus THE PUBLIC INTEREST - then you MAY have Qualified Privilege in making defamatory allegations outright, without quoting somebody protected by Absolute Privilege. (Ref.6)
There are two types of Privilege Absolute and Qualified Privilege.
Absolute Privilege, where it is applicable, is a complete answer and bar to any action foe defamation. It does not matter whether the words are true or false or they are spoken or written maliciously, but that a journalist may be reporting what is said on an occasion that is protected by absolute privilege it does not follow that his/her report is similarly protected. (Ref.2)
The only time journalists enjoy absolute privilege is when they are reporting court cases or the proceedings of certain of tribunal (“a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously.”) (Ref.2)
For Absolute Privilege reports must always be fair and accurate, “be fair overall and not give a misleading impression. Inaccuracies in themselves will not defeat privilege. Omissions will deprive a report of privilege if they create a false impression of what took place or if they result in the suppression of the case or part of the case of one side, while giving the other.” (Ref.2 Bennet v Newsquest, 2006). The report must be accurate, prove factual as well as published within contemporaneous proceedings (as soon as practicable). (Ref.2)
There are two levels of Qualified Privilege, in statements having qualified privilege without explanation or contradiction (subject to explanation on contradiction) as set in schedule I the 1996 Defamation Act, and statements having qualified Privilege if the other side of the story is given alongside the defamatory allegation (as set out in schedule II of 1996 Defamation Act) in statements privileged subject to explanation or contradiction. (Ref.2) For example ”the reports of parliamentary proceedings in Hansard have absolute privilege; so have reports published by order of Parliament (such us White papers). But the media’s coverage of parliamentary publications enjoys only qualified privilege. “(Ref.2)
Section I. STATEMENTS HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR CONTRADICTION
A fair and accurate report of proceedings in public and anywhere in the world:
1. of a legislature,
2. before a court,
3. of a person appointed to hold a public inquiry by a government or legislature,
4. of an international organisation or an international conference
5. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.
6. A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.
A fair and accurate copy of or extract anywhere in the world:
7. from matter published by or on the authority of a government or legislature
8. from matter published by an international organisation or an international conference. (Ref.6)
Section II - STATEMENTS HAVING QUALIFIED PRIVILEGE IF THE OTHER SIDE OF THE STORY IS GIVEN ALONG SIDE THE DEFAMATORY ALLEGATION
9. A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of-
- a legislature in any member State or the European Parliament;
- the government of any member State, or any authority performing governmental functions in any member State or part of a member State, or the European Commission;
- an international organisation or international conference.
* In this paragraph "governmental functions" includes police functions.
10. A fair and accurate copy of or extract from a document made available by a court in any member State or the European Court of Justice (or any court attached to that court), or by a judge or officer of any such court.
11. A fair and accurate report of proceedings at any public meeting or sitting in the UK of-
- a local authority or local authority committee;
- a justice or justices of the peace acting otherwise than as a court exercising judicial authority;
- a commission, tribunal, committee or person appointed for the purposes of any inquiry by any statutory provision, by Her Majesty or by a Minister of the Crown or a Northern Ireland Department;
- a person appointed by a local authority to hold a local inquiry in pursuance of any statutory provision;
- any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision.
(*all of these above are defined in the Act)
12. A fair and accurate report of proceedings at any public meeting held in a member State.
In this paragraph a "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted.
13. A fair and accurate report of proceedings at a general meeting of a UK public company.
A fair and accurate copy of or extract from any document circulated to members of a UK public company-
- by or with the authority of the board of directors of the company,
- by the auditors of the company, or
- by any member of the company in pursuance of a right conferred by any statutory provision.
- A fair and accurate copy of or extract from any document circulated to members of a UK public company which relates to the appointment, resignation, retirement or dismissal of directors of the company.
A fair and accurate report of proceedings at any corresponding meeting of, or copy of or extract from any corresponding document circulated to members of, a public company formed under the law of any of the Channel Islands or the Isle of Man or of another member State.
14. A fair and accurate report of any finding or decision of any of the following descriptions of association, formed in the United Kingdom or another member State, or of any committee or governing body of such an association-
- an association formed for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication;
- an association formed for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with that trade, business, industry or profession, or the actions or conduct of those persons;
- an association formed for the purpose of promoting or safeguarding the interests of a game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime;
- an association formed for the purpose of promoting charitable objects or other objects beneficial to the community and empowered by its constitution to exercise control over or to adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication.
15. A fair and accurate report of, or copy of or extract from, any adjudication, report, statement or notice issued by a body, officer or other person designated for the purposes of this paragraph-
- for England and Wales or Northern Ireland, by order of the Lord Chancellor, and
- for Scotland, by order of the Secretary of State.
An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
For short: with or ‘subject to’ explanation or contradiction when on:
- public proceedings in a legislature anywhere in world
- public proceedings in a court anywhere in the world
- public proceedings of a public inquiry anywhere in the world
- public proceedings of an international organisation or conference
In light of the above it is important to remember that associations have different status; findings and decisions are covered and proceedings are not.
Qualified Privilege IN COMMON LAW “(e.g. made up by judges, convention, etc, not by statue)
Qualified privilege in common law rests on the case of Toogood v Spyring (1834) 1 CM&R 181, 193, and on the idea of "the common convenience and welfare of society", that is, the public interest. The judge in case said: "The law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice, which draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” (ref.6)
‘Common law "duty" to say unwelcome things about people has been developed to extend statutory QP (1996 Act) to the discussion of various matters in the public domain. The common law has been bolstered by the general thrust of the Human Rights act, and for provisions of freedom of expression. Common Law QP has got stronger in recent years (balanced, as it happens, with the privacy provisions of the Human Rights Act.’ (Ref.6)
COMMON LAW Qualified Privilege - THE CLEGG CASE “Human Rights Act gets first test”
This was the first significant case where reference to the Human Rights Act was introduced.
On 3rd October 2000 the Law Lords were asked to use the new Human Rights Act for the first time - to defend the freedom of the press. The Times newspaper was seeking to overturn a libel ruling against the paper in the House of Lords. Five Law Lords were asked to overturn a ruling by the Court of Appeal in Northern Ireland that the paper was not legally protected when it published an allegedly damaging passage from material handed out at a press conference. The case was thought to be the first to be brought under the controversial Act since it came into force. The act enshrine the European Convention on Human Rights into UK law and hailed as one of the most significant changes to the British legal landscape since the Magna Carta. (Ref.8)
The press release from that date gives that The Times was sued for libel in Northern Ireland by Belfast solicitors, who represented paratrooper Lee Clegg. Further on, it gives details that Lance Corporal Clegg was convicted in 1993 of murdering a teenage joyrider and spent two-and-a-half years in prison before being cleared. Two years after that The Times reported on a press conference organised by a group campaigning for Clegg's release. “The newspaper's front page article included comments in a press hand-out from the group which criticised the law firm's handling of the soldier's defence.” (Ref.8)
McCartan Turkington Breen, the solicitors, sued for libel and were awarded £145,000 after the courts ruled the press conference was not a "public meeting" and the journalist did not have "qualified privilege", which protects the press. (Ref.8)
Lord Lester QC, for The Times, told Lords Bingham, Steyn, Hoffmann, Cooke and Millett the new Act required the courts to construe existing law - including defamation law - subject to the basic rights of the individual. ”He said the case required a balance between the right to free expression of The Times and the "respect for reputation" of the solicitors. Lord Lester argued it was incompatible with the right to free expression for The Times to be found liable because of a restrictive interpretation of what constituted a public meeting. Journalists, such as the article's author Paul Wilkinson, had been invited to the press conference as the eyes and ears of the public, he said (...).”(Ref.8)
Summarising the situation, what happened was that at a public meeting a group of anti-IRA activists in Northern Ireland it was claimed that a firm of solicitors were prosecuting a soldier (Clegg) who was accused of shooting innocent youths, in order to further the aims of the provisional IRA and that the lawyers were in effect ‘helping terrorism’ or were even (by innuendo) terrorist themselves. When these allegations were reported the lawyers sued for libel. The law firm won £145,000 damages, but the papers appealed and the decision was overturned. On appeal (2000) the lawyers lost, and the papers won, because judges said it was in the public interest that these allegations were made and discussed, so long as the lawyers’ own denials were properly reported (ie the reports were balance, free from factual error, free form malice as with QP in reporting court cases and other events in the schedule of the 1996 defamation act).
In 2000 Lord Bingham, commenting on the Clegg case (Ref.9) emphasised and strengthened the meaning of a “public meeting” which might be reported with a type of qualified privilege. Such a gathering is defined in the 1996 act in section 12 as:
(1) A fair and accurate report of proceedings at any public meeting held in a member,
(2) In this paragraph a "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted. (Ref.6 &9)
An example when journalist would always have to confirm a statement before reporting would be when for example, we are on the meeting with person x who is talking about person y, when person x said that person y said something and person x claims that it is true that person y said it. We can only use that statement to be said by person x only when we confirm it with person x that he/she said it otherwise we mustn’t report that statement. However as it is written in the AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, the defence of qualified privilege shall not fail by reason only of the publication of them statement concerned to a person other than an interested person if it is proved that the statement was published to the person because the publisher mistook him or her for an interested person. (Ref.3)
If someone shouts something out from the gallery in the court it is still reportable as long as it is not defamatory.
Qualified privilege & Loss of defence of qualified privilege section of the document: AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, Mar a ritheadh ag Seanad E´ ireann, (...) the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all the circumstances. “Duty” means a legal, moral or social duty; “interest” means a legal, moral or social interest. (Ref.3)
In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that— the defendant did not believe the statement to be true, the defendant acted in bad faith or out of spite, ill will or improper motive, the statement bore no relation to the purpose of the defence, or the manner and extent of publication of the statement exceeded what was reasonably sufficient in all the circumstances. (Ref.3)
Where a defamation action is brought against more than one defendant, the failure of the defence of qualified privilege in relation to one of the defendants by virtue of the application of subsection shall not cause the failure of the defence in relation to another of the defendants unless that other defendant was vicariously liable for such acts or omissions of the first-mentioned defendant as gave rise to the cause of action concerned. (Ref.3)
Section 11 of the Civil Liability Act 1961 is repealed. In this section of the document “interested person” means, in relation to a statement, a person who, under section, had a duty or interest in receiving the information contained in the statement. It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held. Subject to subsection, an opinion is honestly held, for the purposes of this section, if— (a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true, (b) the opinion was based on allegations of fact— specified in the statement containing the opinion, or referred to in that statement, that were known, or might reasonably be expected to have been known, by the persons to whom the statement was published, or (ii) the opinion was based on allegations of fact to which— the defence of absolute privilege, or (II) the defence of qualified privilege, would apply if a defamation action were brought in respect of such allegations, and (c) the opinion related to a matter of public interest. (a) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection applies, unless— the defendant proves the truth of those allegations, or where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact the truth of which are proved. (Ref.3)
To keep the qualified privilege when reporting you can report an honestly held opinion when it was said on the public meeting.
The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection applies, unless— the defendant proves the truth of those allegations, or where the defendant does not prove the truth of those allegations— the opinion could not reasonably be understood as implying that those allegations were true, and Honest opinion. (ref.3)
Press conference [PRESSERS]
- they are classes as a public meeting (Lords 2000)
- written hand outs are also covered
- there are considerable risks of live broadcasting them
ALBERT REYNOLDS vs SUNDAY TIMES
Reynolds v Times Newspapers Ltd is a United Kingdom legal case in the House of Lords concerning qualified privilege for publication of defamatory statements in the public interest. (Ref.4)
The part of his life that is of most interest for the world of journalism was that “Reynolds was involved in a long-running libel action taken against British newspaper The Sunday Times on foot of an article published in 1994. It alleged that Reynolds had deliberately and dishonestly misled the Dáil regarding matters in connection with the Brendan Smyth affair that had brought down the coalition government. The newspaper claimed a defence of qualified privilege with regard to these assertions on foot of their supposed benefit to the public, but a High Court jury found in favour Reynolds in 1996. However, the jury recommended that no compensation at all be paid to the former Taoiseach. The judge subsequently awarded punitive damages of only one penny in this action, leaving Reynolds with massive legal costs, estimated at £1 million. (Ref.5)
“Albert Reynolds was the fifth leader of Fianna Fáil from 1992 until 1994. He “ became interested in politics at the time of the Arms Crisis in 1970, a hugely controversial episode in modern Irish history which saw two Cabinet ministers, Neil Blaney and Charles Haughey, sacked from the government over an alleged attempt to import arms to Northern Ireland. “(ref.3)
More details in here in the post on: Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC
THE REYNOLDS CASE and the 10 POINT TEST
Lord Nicholls, the judge in the appeal stage of Albert Reynolds vs Sunday Times (1999), seemed to further define/extend QP-type protection against defamation, so long as the reporter was working without malice (as always with QP – you need lack of malice, accuracy and timeliness), had taken reasonable steps (not reckless) and so long as it was a matter of ‘public interest’ (ie not just a purely private matter). (Ref.6)
His ten point test of responsible journalism is well worth dwelling on because it forms a curriculum really for journalism of the highest quality which (quiet rightly) should enjoy a degree of legal protection. (Ref.6)
1. The seriousness of the allegation – the more serious the allegation, the more protection will be applied. Trivial allegations which are merely embarrassing would probably not enjoy the protection. Allegations about purely private matters would probably not enjoy protection.
2. The nature of the information and the extent to which the subject matter is a matter of public concern. This follows from schedules I or II of 1996 act - essentially anything related to matters that would be discussed in forums listed in schedule I (ie the discussion of politics, or the content and conduct of trials) would be protected and almost certainly matters that would come up in forums detailed in schedule II would also be covered. Again, allegations of a private nature are excluded (except in so far as they might impact on performance of public or official duties). NB Discussion of what goes on in companies would have more coverage if it is a floated public company with shareholders, or if it was significant in the economy as a whole.
3. The source of the information. The more authoritative the source, the more you are entitled to report their allegations, even if those allegations can not be proved or even if they turn out to be (to your surprise) incorrect. The test is – “would they have a reason to lie to me?”. So obviously chequebook journalism (where people are paid to make allegations) is not very safe, and would have less protection than allegations made by a responsible person with no axe to grind, and with a reputation for honesty. Also persons with a direct view of event or direct access to information are more to be believed (and therefore your report of what they say more protected) than second hand sources. Sources ‘on the record’ are more protected than anonymous sources. Two sources (or more) saying the same thing independently would of course be much stronger than a single source.
4. The steps taken to verify the information. There must be a reasonable attempt in the time available. The crucial thing is to try and put the allegations to the person being accused in order to get their side of the story. Obviously they will be evasive (especially if they have something to hide) and may give you the ‘run around’ in order to deny you protection under this very point in the ten point test. But you must either get to the person and make the allegation or, at the very least, be able to show a whole log of e-mails and phone calls where you make determined efforts to get their side of the story. A simple “they wouldn’t answer the phone” or “they were unavailable for comment” might not be good enough for this test (it was in fact where the daily Telegraph came unstuck in the Galloway case – see below).
5. The status of the information. You need to check that this is not an old allegation which has previously been denied. If the allegation had been previously dismissed by “an investigation which commands respect” then it would have no protection. For example if the allegation was about a doctor in a hospital. If the allegation had already been through some sort of internal enquiry at a hospital and had been dismissed, you may well lose your protection in repeating it, especially if you overlooked previous dismissal when you were trying to verify the information (see point 3 above – ‘steps taken to verify’).
6. The urgency of the matter. The judge recognised that news is “a perishable commodity” and that papers must compete to be first with the news. If the matter genuinely is urgent (eg to bring something like corruption to the attention of voters before polling day) then the other checks in the code might be less stringent and might still enjoy protection.
7. Whether comment was sought from the claimant – together with point 4 above and point 8 below, although the judge did say that putting allegations to the claimant was not necessary in every single case, if the case for protection on other counts was strong enough. As a practical point it is always wise to get the other side of the story and have them point out how or why the allegations might be untrue, then incorporate this in your report. Such a statement might also provide you with a ‘consent’ type defence to a libel action.
8. Whether the article contained the gist of the claimant’s side of the story (see above, points 4 and 7)
9. The tone of the article. If the angle of a piece is along the lines of allegations of X have raised concerns… this would probably more protected than a straightforward assertion that the allegations are fact. It is always important to attribute the allegations to a named source (‘on the record’) if possible. If the source is not named there must be a genuine and obvious reason for this (eg they fear getting the sack, or being attacked). But with ‘protected sources’ and ‘off the record’ there is always the separate (and growing) legal danger of action for breach of confidence.
10. The circumstances of the publication, including the timing. The allegations should be brought to public attention as quickly as possible. They should not be ‘saved up’ for commercial motives by the paper or broadcaster. This is similar to the need to publish/broadcast quickly in ordinary QP of court and parliamentary reports. (Ref.6)
THE LOUTCHANSKY CASE
“In this case (which is also of interest because of the separate problem of ‘internet libel’ – ie each time an article is loaded from a newspaper online archive it constitutes a fresh instance of ‘publication’ and can thus activate a libel action) the judge worked his way methodically through all ten points of the Reynolds ‘responsible journalism’ test. It is very useful to follow his points.” (Ref.6)
THE GALLOWAY CASE ( Reynolds defence fails)
The Daily Telegraph attempted a Reynolds defence to an action from George Galloway after the paper made very serious defamatory allegations against him, for which there was no defence of JUSTIFICATION (true and can be proves) or COMMENT or QP in the sense that it was reporting ‘second hand’ what had been said in court. Instead the paper was quoting a source it said it trusted. The Telegraph lost the case because the journalist failed the ’10 point test’ – in this case mainly because, despite a quick call to Galloway, the paper did not put all its allegations to Galloway for him to deny before they published the information. (Ref.6)
ANOTHER WORRYING REYNOLDS FAILURE –Mohammed Abdul Latif Jameel vs Wall Street Journal (Feb 2005)
The report could not prove the allegation, but believed that she had a Reynolds “duty” to report that the allegations were being taken seriously by various important and responsible people. But the allegations could not be proved, and therefore not defended with “justification” so she relied on a Reynolds defence. In her own view (and the view of many commentators) she though she had stayed within the 10 point test. But Lord Phillips on appeal did not agree. The Wall Street Journal loses. But the Wall Street Journal appealed. (Ref.6 &10)
More details in here in the post on: Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC
There is no legal definition of 'the public interest' so rely on the definition given in the PCC code of conduct - the main points being
(1) exposing crime
(2) exposing health risk to the community
(3) exposing lying and hypocrisy in public life (Ref.6)
Interest
There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.
2. There is a public interest in freedom of expression itself. [CH adds - this has the nacking of the law, section 10 of the Human Rights Act]
3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.
4. The PCC will consider the extent to which material is already in the public domain, or will become so.
5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child. (Ref.6)
References:
Ref.1) Media Law Lecture (updates, year 3, BA Journalism 2010) week 4
Ref.2) McNae’s essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref. 3) AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, Mar a ritheadh ag Seanad E´ ireann, As passed by Seanad E´ ireann http://www.oireachtas.ie/documents/bills28/bills/2006/4306/b43b06S.pdf
Ref. 4) http://en.wikipedia.org/wiki/Reynolds_defence
Ref.5) http://en.wikipedia.org/wiki/Reynolds_defence
Ref.6) Notes on Qualified Privilege from the Media Law updates site from the website of ba Journalism 3rd year 2010, University of Winchester http://journalism.winchester.ac.uk/?page=228
7) PCC code of conduct http://www.pcc.org.uk/cop/practice.html
8) THE CLEGG CASE - BBC news online: http://news.bbc.co.uk/1/hi/uk/954759.stm
9) Judgments - Turkington and Others (Practising As Mccartan Turkington Breen) v. Times Newspapers Limited (Northern Ireland) http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd001102/turk-1.htm
10) Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC http://veronicafryd.blogspot.com/2010/11/defamation-and-its-adjustments.html
Even though journalists in fact have no different rights than citizens of UK, following the Act of 1960 they have a protection of Qualified Privilege, which “gives as much protection to a publication as absolute privilege, provided that the defence’s requirements are met.” (Ref.2)
As a journalist, to have any type of privilege while reporting first of all, your report must be fair, accurate, without malice and on a matter of public interest. There is no privilege outside main proceedings like public meetings at that is where there will be no more protection. (Ref.6) Further more in detail Qualified Privilege applies:
(1) In reporting court, parliament you have a Qualified Privilege defence automatically when repeat/publish or broadcast defamatory remarks
(2) Qualified Privilege requires immediate publication, no errors, no malice ('fast, accurate, fair', malice can be lack of balance, so add "he denies the charges" and "the case continues".
(3) You never have Absolute Privilege as a journalist, though in practice if your report is free from error if it is published immediately then the Qualified Privilege confers a similar degree of protection.
(4) You have QP at a range of other public events (eg local government meetings, pressure group meetings, AGMs of companies (section 12 of the 1996 act + Clegg + Human Rights Act, section 10) so long as you allow the defamed person to deny it in the same report - "subject to contradiction".
(5) If you have ALL 10 POINTS of Reynolds Test, plus THE PUBLIC INTEREST - then you MAY have Qualified Privilege in making defamatory allegations outright, without quoting somebody protected by Absolute Privilege. (Ref.6)
There are two types of Privilege Absolute and Qualified Privilege.
Absolute Privilege, where it is applicable, is a complete answer and bar to any action foe defamation. It does not matter whether the words are true or false or they are spoken or written maliciously, but that a journalist may be reporting what is said on an occasion that is protected by absolute privilege it does not follow that his/her report is similarly protected. (Ref.2)
The only time journalists enjoy absolute privilege is when they are reporting court cases or the proceedings of certain of tribunal (“a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously.”) (Ref.2)
For Absolute Privilege reports must always be fair and accurate, “be fair overall and not give a misleading impression. Inaccuracies in themselves will not defeat privilege. Omissions will deprive a report of privilege if they create a false impression of what took place or if they result in the suppression of the case or part of the case of one side, while giving the other.” (Ref.2 Bennet v Newsquest, 2006). The report must be accurate, prove factual as well as published within contemporaneous proceedings (as soon as practicable). (Ref.2)
There are two levels of Qualified Privilege, in statements having qualified privilege without explanation or contradiction (subject to explanation on contradiction) as set in schedule I the 1996 Defamation Act, and statements having qualified Privilege if the other side of the story is given alongside the defamatory allegation (as set out in schedule II of 1996 Defamation Act) in statements privileged subject to explanation or contradiction. (Ref.2) For example ”the reports of parliamentary proceedings in Hansard have absolute privilege; so have reports published by order of Parliament (such us White papers). But the media’s coverage of parliamentary publications enjoys only qualified privilege. “(Ref.2)
Section I. STATEMENTS HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR CONTRADICTION
A fair and accurate report of proceedings in public and anywhere in the world:
1. of a legislature,
2. before a court,
3. of a person appointed to hold a public inquiry by a government or legislature,
4. of an international organisation or an international conference
5. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.
6. A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.
A fair and accurate copy of or extract anywhere in the world:
7. from matter published by or on the authority of a government or legislature
8. from matter published by an international organisation or an international conference. (Ref.6)
Section II - STATEMENTS HAVING QUALIFIED PRIVILEGE IF THE OTHER SIDE OF THE STORY IS GIVEN ALONG SIDE THE DEFAMATORY ALLEGATION
9. A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of-
- a legislature in any member State or the European Parliament;
- the government of any member State, or any authority performing governmental functions in any member State or part of a member State, or the European Commission;
- an international organisation or international conference.
* In this paragraph "governmental functions" includes police functions.
10. A fair and accurate copy of or extract from a document made available by a court in any member State or the European Court of Justice (or any court attached to that court), or by a judge or officer of any such court.
11. A fair and accurate report of proceedings at any public meeting or sitting in the UK of-
- a local authority or local authority committee;
- a justice or justices of the peace acting otherwise than as a court exercising judicial authority;
- a commission, tribunal, committee or person appointed for the purposes of any inquiry by any statutory provision, by Her Majesty or by a Minister of the Crown or a Northern Ireland Department;
- a person appointed by a local authority to hold a local inquiry in pursuance of any statutory provision;
- any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision.
(*all of these above are defined in the Act)
12. A fair and accurate report of proceedings at any public meeting held in a member State.
In this paragraph a "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted.
13. A fair and accurate report of proceedings at a general meeting of a UK public company.
A fair and accurate copy of or extract from any document circulated to members of a UK public company-
- by or with the authority of the board of directors of the company,
- by the auditors of the company, or
- by any member of the company in pursuance of a right conferred by any statutory provision.
- A fair and accurate copy of or extract from any document circulated to members of a UK public company which relates to the appointment, resignation, retirement or dismissal of directors of the company.
A fair and accurate report of proceedings at any corresponding meeting of, or copy of or extract from any corresponding document circulated to members of, a public company formed under the law of any of the Channel Islands or the Isle of Man or of another member State.
14. A fair and accurate report of any finding or decision of any of the following descriptions of association, formed in the United Kingdom or another member State, or of any committee or governing body of such an association-
- an association formed for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication;
- an association formed for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with that trade, business, industry or profession, or the actions or conduct of those persons;
- an association formed for the purpose of promoting or safeguarding the interests of a game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime;
- an association formed for the purpose of promoting charitable objects or other objects beneficial to the community and empowered by its constitution to exercise control over or to adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication.
15. A fair and accurate report of, or copy of or extract from, any adjudication, report, statement or notice issued by a body, officer or other person designated for the purposes of this paragraph-
- for England and Wales or Northern Ireland, by order of the Lord Chancellor, and
- for Scotland, by order of the Secretary of State.
An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
For short: with or ‘subject to’ explanation or contradiction when on:
- public proceedings in a legislature anywhere in world
- public proceedings in a court anywhere in the world
- public proceedings of a public inquiry anywhere in the world
- public proceedings of an international organisation or conference
In light of the above it is important to remember that associations have different status; findings and decisions are covered and proceedings are not.
Qualified Privilege IN COMMON LAW “(e.g. made up by judges, convention, etc, not by statue)
Qualified privilege in common law rests on the case of Toogood v Spyring (1834) 1 CM&R 181, 193, and on the idea of "the common convenience and welfare of society", that is, the public interest. The judge in case said: "The law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice, which draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” (ref.6)
‘Common law "duty" to say unwelcome things about people has been developed to extend statutory QP (1996 Act) to the discussion of various matters in the public domain. The common law has been bolstered by the general thrust of the Human Rights act, and for provisions of freedom of expression. Common Law QP has got stronger in recent years (balanced, as it happens, with the privacy provisions of the Human Rights Act.’ (Ref.6)
COMMON LAW Qualified Privilege - THE CLEGG CASE “Human Rights Act gets first test”
This was the first significant case where reference to the Human Rights Act was introduced.
On 3rd October 2000 the Law Lords were asked to use the new Human Rights Act for the first time - to defend the freedom of the press. The Times newspaper was seeking to overturn a libel ruling against the paper in the House of Lords. Five Law Lords were asked to overturn a ruling by the Court of Appeal in Northern Ireland that the paper was not legally protected when it published an allegedly damaging passage from material handed out at a press conference. The case was thought to be the first to be brought under the controversial Act since it came into force. The act enshrine the European Convention on Human Rights into UK law and hailed as one of the most significant changes to the British legal landscape since the Magna Carta. (Ref.8)
The press release from that date gives that The Times was sued for libel in Northern Ireland by Belfast solicitors, who represented paratrooper Lee Clegg. Further on, it gives details that Lance Corporal Clegg was convicted in 1993 of murdering a teenage joyrider and spent two-and-a-half years in prison before being cleared. Two years after that The Times reported on a press conference organised by a group campaigning for Clegg's release. “The newspaper's front page article included comments in a press hand-out from the group which criticised the law firm's handling of the soldier's defence.” (Ref.8)
McCartan Turkington Breen, the solicitors, sued for libel and were awarded £145,000 after the courts ruled the press conference was not a "public meeting" and the journalist did not have "qualified privilege", which protects the press. (Ref.8)
Lord Lester QC, for The Times, told Lords Bingham, Steyn, Hoffmann, Cooke and Millett the new Act required the courts to construe existing law - including defamation law - subject to the basic rights of the individual. ”He said the case required a balance between the right to free expression of The Times and the "respect for reputation" of the solicitors. Lord Lester argued it was incompatible with the right to free expression for The Times to be found liable because of a restrictive interpretation of what constituted a public meeting. Journalists, such as the article's author Paul Wilkinson, had been invited to the press conference as the eyes and ears of the public, he said (...).”(Ref.8)
Summarising the situation, what happened was that at a public meeting a group of anti-IRA activists in Northern Ireland it was claimed that a firm of solicitors were prosecuting a soldier (Clegg) who was accused of shooting innocent youths, in order to further the aims of the provisional IRA and that the lawyers were in effect ‘helping terrorism’ or were even (by innuendo) terrorist themselves. When these allegations were reported the lawyers sued for libel. The law firm won £145,000 damages, but the papers appealed and the decision was overturned. On appeal (2000) the lawyers lost, and the papers won, because judges said it was in the public interest that these allegations were made and discussed, so long as the lawyers’ own denials were properly reported (ie the reports were balance, free from factual error, free form malice as with QP in reporting court cases and other events in the schedule of the 1996 defamation act).
In 2000 Lord Bingham, commenting on the Clegg case (Ref.9) emphasised and strengthened the meaning of a “public meeting” which might be reported with a type of qualified privilege. Such a gathering is defined in the 1996 act in section 12 as:
(1) A fair and accurate report of proceedings at any public meeting held in a member,
(2) In this paragraph a "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted. (Ref.6 &9)
An example when journalist would always have to confirm a statement before reporting would be when for example, we are on the meeting with person x who is talking about person y, when person x said that person y said something and person x claims that it is true that person y said it. We can only use that statement to be said by person x only when we confirm it with person x that he/she said it otherwise we mustn’t report that statement. However as it is written in the AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, the defence of qualified privilege shall not fail by reason only of the publication of them statement concerned to a person other than an interested person if it is proved that the statement was published to the person because the publisher mistook him or her for an interested person. (Ref.3)
If someone shouts something out from the gallery in the court it is still reportable as long as it is not defamatory.
Qualified privilege & Loss of defence of qualified privilege section of the document: AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, Mar a ritheadh ag Seanad E´ ireann, (...) the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all the circumstances. “Duty” means a legal, moral or social duty; “interest” means a legal, moral or social interest. (Ref.3)
In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that— the defendant did not believe the statement to be true, the defendant acted in bad faith or out of spite, ill will or improper motive, the statement bore no relation to the purpose of the defence, or the manner and extent of publication of the statement exceeded what was reasonably sufficient in all the circumstances. (Ref.3)
Where a defamation action is brought against more than one defendant, the failure of the defence of qualified privilege in relation to one of the defendants by virtue of the application of subsection shall not cause the failure of the defence in relation to another of the defendants unless that other defendant was vicariously liable for such acts or omissions of the first-mentioned defendant as gave rise to the cause of action concerned. (Ref.3)
Section 11 of the Civil Liability Act 1961 is repealed. In this section of the document “interested person” means, in relation to a statement, a person who, under section, had a duty or interest in receiving the information contained in the statement. It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held. Subject to subsection, an opinion is honestly held, for the purposes of this section, if— (a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true, (b) the opinion was based on allegations of fact— specified in the statement containing the opinion, or referred to in that statement, that were known, or might reasonably be expected to have been known, by the persons to whom the statement was published, or (ii) the opinion was based on allegations of fact to which— the defence of absolute privilege, or (II) the defence of qualified privilege, would apply if a defamation action were brought in respect of such allegations, and (c) the opinion related to a matter of public interest. (a) The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection applies, unless— the defendant proves the truth of those allegations, or where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact the truth of which are proved. (Ref.3)
To keep the qualified privilege when reporting you can report an honestly held opinion when it was said on the public meeting.
The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact to which subsection applies, unless— the defendant proves the truth of those allegations, or where the defendant does not prove the truth of those allegations— the opinion could not reasonably be understood as implying that those allegations were true, and Honest opinion. (ref.3)
Press conference [PRESSERS]
- they are classes as a public meeting (Lords 2000)
- written hand outs are also covered
- there are considerable risks of live broadcasting them
ALBERT REYNOLDS vs SUNDAY TIMES
Reynolds v Times Newspapers Ltd is a United Kingdom legal case in the House of Lords concerning qualified privilege for publication of defamatory statements in the public interest. (Ref.4)
The part of his life that is of most interest for the world of journalism was that “Reynolds was involved in a long-running libel action taken against British newspaper The Sunday Times on foot of an article published in 1994. It alleged that Reynolds had deliberately and dishonestly misled the Dáil regarding matters in connection with the Brendan Smyth affair that had brought down the coalition government. The newspaper claimed a defence of qualified privilege with regard to these assertions on foot of their supposed benefit to the public, but a High Court jury found in favour Reynolds in 1996. However, the jury recommended that no compensation at all be paid to the former Taoiseach. The judge subsequently awarded punitive damages of only one penny in this action, leaving Reynolds with massive legal costs, estimated at £1 million. (Ref.5)
“Albert Reynolds was the fifth leader of Fianna Fáil from 1992 until 1994. He “ became interested in politics at the time of the Arms Crisis in 1970, a hugely controversial episode in modern Irish history which saw two Cabinet ministers, Neil Blaney and Charles Haughey, sacked from the government over an alleged attempt to import arms to Northern Ireland. “(ref.3)
More details in here in the post on: Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC
THE REYNOLDS CASE and the 10 POINT TEST
Lord Nicholls, the judge in the appeal stage of Albert Reynolds vs Sunday Times (1999), seemed to further define/extend QP-type protection against defamation, so long as the reporter was working without malice (as always with QP – you need lack of malice, accuracy and timeliness), had taken reasonable steps (not reckless) and so long as it was a matter of ‘public interest’ (ie not just a purely private matter). (Ref.6)
His ten point test of responsible journalism is well worth dwelling on because it forms a curriculum really for journalism of the highest quality which (quiet rightly) should enjoy a degree of legal protection. (Ref.6)
1. The seriousness of the allegation – the more serious the allegation, the more protection will be applied. Trivial allegations which are merely embarrassing would probably not enjoy the protection. Allegations about purely private matters would probably not enjoy protection.
2. The nature of the information and the extent to which the subject matter is a matter of public concern. This follows from schedules I or II of 1996 act - essentially anything related to matters that would be discussed in forums listed in schedule I (ie the discussion of politics, or the content and conduct of trials) would be protected and almost certainly matters that would come up in forums detailed in schedule II would also be covered. Again, allegations of a private nature are excluded (except in so far as they might impact on performance of public or official duties). NB Discussion of what goes on in companies would have more coverage if it is a floated public company with shareholders, or if it was significant in the economy as a whole.
3. The source of the information. The more authoritative the source, the more you are entitled to report their allegations, even if those allegations can not be proved or even if they turn out to be (to your surprise) incorrect. The test is – “would they have a reason to lie to me?”. So obviously chequebook journalism (where people are paid to make allegations) is not very safe, and would have less protection than allegations made by a responsible person with no axe to grind, and with a reputation for honesty. Also persons with a direct view of event or direct access to information are more to be believed (and therefore your report of what they say more protected) than second hand sources. Sources ‘on the record’ are more protected than anonymous sources. Two sources (or more) saying the same thing independently would of course be much stronger than a single source.
4. The steps taken to verify the information. There must be a reasonable attempt in the time available. The crucial thing is to try and put the allegations to the person being accused in order to get their side of the story. Obviously they will be evasive (especially if they have something to hide) and may give you the ‘run around’ in order to deny you protection under this very point in the ten point test. But you must either get to the person and make the allegation or, at the very least, be able to show a whole log of e-mails and phone calls where you make determined efforts to get their side of the story. A simple “they wouldn’t answer the phone” or “they were unavailable for comment” might not be good enough for this test (it was in fact where the daily Telegraph came unstuck in the Galloway case – see below).
5. The status of the information. You need to check that this is not an old allegation which has previously been denied. If the allegation had been previously dismissed by “an investigation which commands respect” then it would have no protection. For example if the allegation was about a doctor in a hospital. If the allegation had already been through some sort of internal enquiry at a hospital and had been dismissed, you may well lose your protection in repeating it, especially if you overlooked previous dismissal when you were trying to verify the information (see point 3 above – ‘steps taken to verify’).
6. The urgency of the matter. The judge recognised that news is “a perishable commodity” and that papers must compete to be first with the news. If the matter genuinely is urgent (eg to bring something like corruption to the attention of voters before polling day) then the other checks in the code might be less stringent and might still enjoy protection.
7. Whether comment was sought from the claimant – together with point 4 above and point 8 below, although the judge did say that putting allegations to the claimant was not necessary in every single case, if the case for protection on other counts was strong enough. As a practical point it is always wise to get the other side of the story and have them point out how or why the allegations might be untrue, then incorporate this in your report. Such a statement might also provide you with a ‘consent’ type defence to a libel action.
8. Whether the article contained the gist of the claimant’s side of the story (see above, points 4 and 7)
9. The tone of the article. If the angle of a piece is along the lines of allegations of X have raised concerns… this would probably more protected than a straightforward assertion that the allegations are fact. It is always important to attribute the allegations to a named source (‘on the record’) if possible. If the source is not named there must be a genuine and obvious reason for this (eg they fear getting the sack, or being attacked). But with ‘protected sources’ and ‘off the record’ there is always the separate (and growing) legal danger of action for breach of confidence.
10. The circumstances of the publication, including the timing. The allegations should be brought to public attention as quickly as possible. They should not be ‘saved up’ for commercial motives by the paper or broadcaster. This is similar to the need to publish/broadcast quickly in ordinary QP of court and parliamentary reports. (Ref.6)
THE LOUTCHANSKY CASE
“In this case (which is also of interest because of the separate problem of ‘internet libel’ – ie each time an article is loaded from a newspaper online archive it constitutes a fresh instance of ‘publication’ and can thus activate a libel action) the judge worked his way methodically through all ten points of the Reynolds ‘responsible journalism’ test. It is very useful to follow his points.” (Ref.6)
THE GALLOWAY CASE ( Reynolds defence fails)
The Daily Telegraph attempted a Reynolds defence to an action from George Galloway after the paper made very serious defamatory allegations against him, for which there was no defence of JUSTIFICATION (true and can be proves) or COMMENT or QP in the sense that it was reporting ‘second hand’ what had been said in court. Instead the paper was quoting a source it said it trusted. The Telegraph lost the case because the journalist failed the ’10 point test’ – in this case mainly because, despite a quick call to Galloway, the paper did not put all its allegations to Galloway for him to deny before they published the information. (Ref.6)
ANOTHER WORRYING REYNOLDS FAILURE –Mohammed Abdul Latif Jameel vs Wall Street Journal (Feb 2005)
The report could not prove the allegation, but believed that she had a Reynolds “duty” to report that the allegations were being taken seriously by various important and responsible people. But the allegations could not be proved, and therefore not defended with “justification” so she relied on a Reynolds defence. In her own view (and the view of many commentators) she though she had stayed within the 10 point test. But Lord Phillips on appeal did not agree. The Wall Street Journal loses. But the Wall Street Journal appealed. (Ref.6 &10)
More details in here in the post on: Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC
There is no legal definition of 'the public interest' so rely on the definition given in the PCC code of conduct - the main points being
(1) exposing crime
(2) exposing health risk to the community
(3) exposing lying and hypocrisy in public life (Ref.6)
Interest
There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.
2. There is a public interest in freedom of expression itself. [CH adds - this has the nacking of the law, section 10 of the Human Rights Act]
3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.
4. The PCC will consider the extent to which material is already in the public domain, or will become so.
5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child. (Ref.6)
References:
Ref.1) Media Law Lecture (updates, year 3, BA Journalism 2010) week 4
Ref.2) McNae’s essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref. 3) AN BILLE UM CHLU´ MHILLEADH 2006, DEFAMATION BILL 2006, Mar a ritheadh ag Seanad E´ ireann, As passed by Seanad E´ ireann http://www.oireachtas.ie/documents/bills28/bills/2006/4306/b43b06S.pdf
Ref. 4) http://en.wikipedia.org/wiki/Reynolds_defence
Ref.5) http://en.wikipedia.org/wiki/Reynolds_defence
Ref.6) Notes on Qualified Privilege from the Media Law updates site from the website of ba Journalism 3rd year 2010, University of Winchester http://journalism.winchester.ac.uk/?page=228
7) PCC code of conduct http://www.pcc.org.uk/cop/practice.html
8) THE CLEGG CASE - BBC news online: http://news.bbc.co.uk/1/hi/uk/954759.stm
9) Judgments - Turkington and Others (Practising As Mccartan Turkington Breen) v. Times Newspapers Limited (Northern Ireland) http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd001102/turk-1.htm
10) Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC http://veronicafryd.blogspot.com/2010/11/defamation-and-its-adjustments.html
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