This week I was unfortunately unable to come in to university due to illness, however I still managed to do some work of home.
Sometimes publication of the words or inaccuracies in broadcast that cause the libel problem are not the result of a conscious decision but the result of an unintentional error, and that was exactly the mistake that Tom and I have made that week. As McNae’s book says and I completely agree with, “libel law is not a matter for an inexperienced person to play with, for the dangers of aggravating the problem by mishandling are too great. A reporter who receives a call which is a complaint about matter published should follow procedure to refer the complaint to the relevant manager or executive.” In our case it would be Jon, Catherine, Chris and I.
I felt responsible for the mistake that has been made and I was legally obliged to take action on what happened considering the knowledge of the section 1 defence. “There is a defence under section 1 of the Defamation Act 1996 for a defendant who can show, among other things, that he/she had no control over the publication.” Well, as an editor of features and a person who authorised the upload onto youtube I am not covered by that section unfortunately and neither is Thom. I am also responsible for the mistake even though I was not the author; I have supervised the whole process of creating the debate. I was not made aware that our claimant was not informed we were not going live but as an editor I should have checked it. I was not responsible for editing it but I checked it for errors when it was nearly done, I should have spotted that the timings for answers of our guests were unequal and unfortunately I haven’t. It was not malicious and we have not done that purposely. Thom edited it looking for good quotes and concentrated on trying to make the piece shorter on my request and kept the balance of the content of what the guests were saying but we both forgot about the timing.
According to common law, “a person who has been defamed may sue the reporter, the sub-editor, the editor, the publisher, the printer, the distributor, and the broadcaster. All have participated in the publishing of the defamatory statement and are regarded as ‘publishers’.” In our case people who are responsible for making the whole process right and getting an accurate output fair have taken the responsibility and have taken the action that had to be pursued.
I requested to take the debate off immediately after I found out about complaint, even though I was off sick I spoke to Thom, and then I contacted Catherine about the situation, I found out that Chanin was appointed to take my place in my absence. Also, in my absence Jon and Chris corresponded with the claimant informing about the investigation in process and apologising for breach of sect 7.3 of the Ofcom code - fair dealing with participants in programmes. The programme was presented to the world as an 'as live' debate, and therefore should not have been edited at all without permission of all guests. Any balance in the programme needed to be dealt with while it was being broadcast ('as live'). The claimant was informed about that via email from Chris and told that students are learning and so will make mistakes and this was a bad one and were given a lots of teaching points on that situation. Chris also mentioned in his email that “it was a cock-up resulting from lack of experience in trying to set up an ambitious debate programme of this sort without sufficient preparation. I am sure that the mistake was made without malice.” As I also informed the claimant myself, the piece was removed from youtube and will remain so until re-edited. He was informed that the student team would be delighted to publish an article by him setting out the UCU case, as an authored piece in his name. I have all the copies of the emails and will keep it for evidence and proof of all the offers and apologies.
“A court deciding whether a person took reasonable care, or had reason to believe that what he/she did cause or contributed to the publication of a defamatory statement, shall regard to:
- the extent of his/her responsibility for content of the statement or decision to publish it;
- the nature or circumstances of the publication; and
- the previous conduct or character of the author, editor, or publisher.” (Ref.2)
I was responsible for checking that the content was rightly balanced and non defamatory. And this was the first time we have experienced a problem of this matter, we have always given an equal amount of time for interviewees (I have personally e.g. in my package for an immigration issue before the general election 2010) but this was the first time where such ambitious debate was organised and being overwhelmed with the amount of content we had misjudged the timing unintentionally.
I have gone thoroughly through possible defences that we should take upon the situation that has happened and our lawsuit in this case has been taken to its all extent. The three main defences that we have in the debate issue are:
1. Justification- we are still inexperienced and the proof for it is that people involved in organising, producing, directing, hosting the program and then editing are all students of second and third year of Journalism course at the university and that implies itself that we are still in the learning process. We are all students and we have certificates of being students and winol is part of our course at the University of Winchester. We are not getting paid for doing winol and it is one of our modules. It is true that we have not organised such debate before and we are still learning and our mistake, and the mistake was purely matter of being still in the process of learning as this is the idea of the winol project to learn on mistakes and make sure we don’t make them while being in the professional environment in the future.
The latest email I sent to the claimant included apologies regarding any inaccuracies that he felt had happened during debate including the imbalance of as he put it "particularly given the nature of the debate which was very politically charged". I requested to have the debate taken off as soon as I found out about your complaint (Monday) and it will remain off until it is re-edited, unfortunately I will not have a chance to work on it until I come back next week but as I said I will go through all the footage and offered him that I would like him to join me with that if sometime next week.
I will make sure that all the balance will be kept and piece re-edited, and I said in the email that if he felt that it was not only a matter of editing or airtime for him, additionally I would like to give him an opportunity to write us about whatever he felt he had not had a chance to say during the debate or even if he would prefer we could video interview him and record his say in that form, and we will incorporate it either within the peace or run it just next to it.
Further on I added that, I understand that he said that "it makes it very difficult to believe that the editing was innocent of political bias" but I assured him that there was no malicious intention in what we have done and once again I apologised that he felt this way, we really did not mean it, it was purely a mistake of inexperience as we have done such debate for the very first time and the mistake we made will certainly never happen again. I also said that I know this is a lot to ask but he must understand that we are still learning, everyone who took part in organising and running/publishing etc the debate was either from second or third year and as he can imagine we are still in the process of learning and this was certainly an excellent case study for all of us.
Lastly I reassured again that, the video will remain off, it will be all re-edited and his additional written or videoed say will be added to it if needed and I will not publish the new version of it until it is all done and our apology to him (apart from the ones that he has already received via email) will be published on winol.
2. Offer of amends - “To use this defence a defendant must make a written offer to make a suitable correction and apology, to publish the correction in a reasonable manner, and to pay the claimant suitable damages.”(Ref.2) This is usually used in situations in which the media had defamed a person unintentionally. This has been done, Jon, Chris and I have corresponded with the claimant and apologised for all the inaccuracies that have happened because of our inexperience and we are in the process of writing a letter of apology, which will be also published on winol, (apology by email has been already sent as I showed earlier on), The offer to reply via letter has been sent, the film will be re-edited and I also sent an offer to film a video interview if the claimant would prefer to have it done in that matter and either that vide or letter will be published and run by re-edited piece next week (as soon as I return to university).
3. Accord and satisfaction- “This is a plea that the matter has been otherwise disposed of, for example by the publication of correction and apology which has been accepted by the claimant in settlement of his complaint. “(Ref.2)
“A complaint to a media organisation may be made by a telephone call to the editor or to another member of the stuff; by a letter from the complainer direct, or from his/her solicitors. “ (Ref.2) In our situation there is no need to get the solicitor involved as our winol website is not a professionally organised media, we are a student based online magazine and our output should still be measured in matters of learning process rather than fully professional matter. The action was taken right with the moment that I found out about the complaint and the piece was taken off youtube. “Anything said or written in the course of negotiations to settle is described as ‘without prejudice’ (that is, off the record) and cannot subsequently be used against a party in court if negotiations fail. The rule applies whether or not the phrase ‘without prejudice’ is expressly use, but it is generally good practice to do so. “ On the other hand, “in the former case, which often involves the journalist and the subject themselves, the discussion need not necessarily be ‘without prejudice’; the journalist may well want to refer to this discussion in court, to show fairness or lack of malice, or to mitigate the damages.” And I have saved all the emails that have been forwarded to me or I have corresponded with the claimant as that will be a proof of all the offers and apologies done between the claimant and us.
Through the emails I sent I have expressed the highest care that I will put to the apologies and necessary corrections that will be made next week and even offered that the claimant is there to watch over the process of re-editing. All the necessary approaches have been made to ‘satisfy’ our claimant and show non malicious intentions to the situation that has happened. The rest of the defences like fair comment, absolute or qualified privilege did not apply in this specific case.
( I have still received no reply from the claimant - the letter of apology is being worked on and also after a descussion with my tutor we have decided not to put the debate on anymore, we decided to spike it.
Outside of the issue: The WINOL bulletin of the week: 3rd November 2010
Also the launch of the The New Winchester review has been moved because of my absence and that is why we will be getting the content ready for the magazine in week 7.
