I. DEFAMATION
Malice
– intentional, reckless, untrue statement written down (permanent form) without checking
The public interest
- opposite of malice
- there is no specific definition of this concept in law – as it is not defined in the Code of Conduct but is journalistic context is seen as a valuable or potentially so information to the society - reported in the interest of the public
- the editors Code of Practice: defined it in three tings – reporting on threat of the safety of the community (e.g terrorism) to help and fight the corruption etc.and it is where we consider the information to be in advantage to make the public aware (Jameel vs Wall Street case, WSJ acted responsibly)
Malicious Falsehood
- a false statement made with malice and intention to damage or harm (also likely to cause financial damage to the claimant)
Innuendo
-implying something throughout pictures/things assuming (hidden/not only one meaning)
- it's malicious, you can't prove it (no justification – no defence)
- statement that may seem to be innocuous to some people, but can be seen as defamatory to people with special knowledge
Juxtaposition (libel)
- intentional/unintentional setting of two things- usually done through the pictures for example when two objects or texts are set next to each other but that oppose one another
- a statement innocuous when standing alone can acquire defamatory meaning when juxtaposed with other material
– most libel actions are misidentification (for example) or misspelling, there has to be identification next to a picture
LIBEL
Libel is a civil wrong doing resulting from a defamatory statement. The Libel takes place when it may apply to a person or a company; For the statement to be labelous it has to be: Published – in a permanent form to a third party
Identified- positive identification (group under 40 people – The Banbery Police station – officers – broad brush identification – to avoid it we use positive identification.
Defamed – damaging reputatin causing them to be shunned and avoided or exposed them to hatered, redicule or contempt
Defamation
the statement is defamatory if it tends to do any of the following:
- expose the person to hatred, ridicule or contempt
or
- cause the person to be shunned or avoided
or
- lower the person in the eyes of the right thinking members of the society
or
- disparage the person in his/her business, trade, office or profession
Action for Libel can be started up to 1 year after it has happened/ been published (Gilligan case – journalist tampered with his notes – evidence after making them)
Libel defences are:
Justification (it is true and I can prove it);
Fair Comment and honestly held opinion/comment (based on fact and made on a matter of public interest); recognisable as a comment
Absolute Privilege/ Qualified Privilege (on Press Conferences, public meetings – has to be fast, accurate, contemporaneous and without malice)
Slander
Is libel in spoken form (impermanent), and it has to involve a third party overhearing the two people.
2. How long has the plaintiff got before he/she can start on action for libel comment briefly with regard to evidence and techniques of newsgathering
- they can wait one year before starting the case so always keep all the tapes and notes (it used to be 3years Robert Maxwell – would sue after one year for example)
- judges would comment to juries that the notes you took are the evidence – your contemporary notes will be acccepted as evidence (shorthand)
- keep all your notes/shorthand, tapes, rushes of the tapes no edits as there is no forensic evidence in edited material you need original footage.
- digital cameras/pictures are less reliabele, analouge camera is actually better (the Gilligan's case – changed notes on the lapstop)
III. DEFENCES IN DEFAMATION
1. Justification
- it is true and we can prove it, it's a fact (if you can prove that the fact is true and is without malice it is fully defended- full on justification)
2. Qualified Privilege
- journalists have it in Parliament/Court/public meetings Reporting
- exception- you are above the law (the Quinn is the board of justice, she is above the law) - constitutional power is the monarch. R v 'whoever has been accused of the crime'. It is in reporting the courts, parliament (parliamentary privilege). Qualified Privilege in general is a distinction with/without explanation .
- Lee Clegg case, significant
Absolute Privilege
- judges, lawyers and MP’s have it
- is from the monarch- so far as it is to do with the trial they can't be prosecuted for that, also lawyers and judges have the Absolute Privilege.
Privilege is kept:
- so long as it is without Malice e.g. Dennis Skinner & Graham Ridic – questioning over cocaine, Dennis Skinner had Absolute Privilege in Parliament so he could ask this question once they were in there, they could say anything.
Your report has to be:
- Fast: published in the first available bulletin - contemporaneous
- Accurate: no spelling mistakes, checked with facts
- Fair: free of Malice (in court reporting it has to be written for example that person has denied/admitted to be guilty of the charges)
3. It has to be done in the Public Interest
II. CODES OF CONDUCT
1. Subterfuge definition - in which circumstances it may be used according to the PCC Code of Conduct. Subterfuge is gathering the information without telling people that you are a journalist (hiding the fact that you are journalist from people). Point 2 of the NUJ code of conduct says that you should always identify yourself and subterfuge is when you are hiding or pretending you are not a journalist.
You can do it if:
- it is in the public interest
- there is no other way to obtain the information
- and you have got to have a permission in advance – legally, formally (this is in the BBC code of Conduct as well) BBC guidelines give that you on subterfuge- you have to have permission in advance and show it is in the interest of the public as well as there is no other way to obtain that information but incognito.
*There are three main Codes of Practice for journalists:
PCC – self regulation (Codes of Conduct, NUJ)
OfCom – statutory power
BBC Code of Practice
2. *Examples and differences in regulations between print journalism and broadcast journalism in a matter of subterfuge:
To be completed
3. The way in which media is regulated in relation to political bias on preference again (references to the difference between print and broadcast journalism)
- time before that Election is a difficult period in broadcast as well as in print in the coverage because journalists have to be highly aware of avoidance of undue prominence - make sure to give equal air time/ attention to candidates of all parties taking part in the election.
- pre-election time, bio-election or on the day of election for example (no regulation on print media/newspapers – they can be bias wheras broadcast musn't)
- broadcast –even outside election there has to be balance over time in any of the political programs or radio shows (BBC Code of conduct)
- newspapers have to make sure they cover it fairly but they of course don’t have to worry about equal air time so this does not apply to newspapers at all.
- in case of bio election they have to give a reasonable amount of time to all the sides (keep the balance all the time) – balance over time has to be kept and avoidance of undue prominence again. Example The Question Time show – everyone given equal opportunity to express their stance – the output is balanced)
4. Regulations related on Codes of Conduct on children:
- must do nothing to harm children and always require consent for children under 16 from the parents.
*Section 49 Order – gives anonymity to U-18s in Youth Courts
*Section 39 Order – when someone under 18 has to give evidence in adult court– they are covered by anonymity.
* ‘Jigsaw identification’ - about anonymity to under 18s
5. Regulations related to taste and decency in relation to the following:
a) use of language such as ‘the F word’
- we always must not be gratuitous (Given freely; unearned; Not called for by the circumstances; uncalled for; without reason, cause, or proof; adopted or asserted without any good ground; unjustified )
b) use of profoundly offensive language such as ‘the C word’
- possibility of being punished by OfCom
- people will complain
- it is not gratuitous to use it
- F and C words you could probably use so long as it is after 10pm and it is not gratuitous and it is needed in the context of the content.
- never to be used on air of the record by presenters for example– never in the studio
c) Use of material that may be offensive to religious believers
- do not use it if it is gratuitous and it can be blasphemy ,
- you mustn’t use the word ‘occult’ in connection to sex and violence
d) Interviewing criminals – you mustn’t glorify the crime or encourage it in any way
e) Racial status, racial identification (e.g. in crime stories)
- not gratuitous
- especially in the crime story as it can create a racial innuendo
- you can express the honestly held opinion within the law even if it’s racial
III. CRIMINAL PROCEDURE and Contempt of Court
* Prejudice & Contempt
Prejudice appears when it is made hard to treat someone fairly, when the decision is influenced in any way and if you are prejudicing someone’s trial you are committing a crime – Contempt of Court
* Differences between the Civil and Criminal Law
Civil law deals disputes between citizens (Smith VS Smith) where the community is not much affected except by the need for finding the solution to resolve the dispute (divorces, libel actions, compensations etc) e.g. The Diane Blood case
Criminal Law deals with offences against society (murder, violence, blasphemy) or offences against another person that are abhorrent to the society as a whole (fraud, dangerous driving, robbery etc.)
* There are two types of crimes: indictable- ‘arrestable’ (more serious crimes) and non-indictable – accusations or crimes carrying less than five years sentence .
1. Functions of a magistrates Court
a) Committals (big murders)
b) Summary Justice
c) Injunctions in Civil cases
2. When is the case active? – as soon as the has been an arrest/ warrant/charged!
a) Helping police with the enquiries – when the crime is reported
- case not active - if case is inactive there is a danger of libel /defamation (identification)
- but no danger of the Contempt of Court YET!
- no risk of Prejudice
- no charges
- no identification
b) Arrest and charged
- after the arrest/ issue of warrant - the case becomes active
- the person is identified and charged
- there is no danger of libel anymore as the person has been charged by the court so our report would be factually accurate to say that person X has been charged with the offence without libelling them – it is stating legal facts
- danger of Contempt of Court
- now we are limited with our report – stick to allowed facts only, basic facts like who was arrested because of what, who was charged with what
* next stage is the Magistrates court – where the penalty can be up to 6months of prison or/and £5.000 fine,
*Conditional discharge – is in other words a conditional sentence dependant on the good behaviour which may make the sentence shorter.
c) Magistrates’ Court (summary cases) – court hearing
- summary cases are minor cases
- at this stage case is continuously active so - no danger of libel but there is a danger of Contempt of Court
- we are limited in our report to write 7points only:
1. Names of defendants, ages, addresses, occupations
2. Charges faced
3. Courts name and magistrates names
4. Names of solicitors or barristers present
5. Date and place to where case is adjured
6. Bail (only whether it is or not) and bail arrangements
7. Whether legal aid was granted
d) Magistrates Court (Committal)
- the defendant may be hold on remand
e) Magistrates (Bail)- on remand- awaiting trial
- non violent, defendant will be put on bail
- danger of Contempt of Court as the judge can object the bail – and we cannot report the reasons not to prejudice the jury
- but no danger of libel
f) if on Remand
- Do not report the reasons
g) In Crown courts :
- when jury is not present there is no danger of Contempt of Court; there is danger of libel and the case is active; if the jury isn’t there, there are chances are that you can’t report it.
- when jury is present case is also active and journalists are covered with full protection (QP) - Privilege reporting (Fast , accurate, contemporaneous and balanced throughout the trial)
- a person shouting in the court from the gallery – you can report what was shouted out so long as it is non defamatory
so the danger is when:
- when in courtroom jury is not present – this is when there is no danger of Contempt of Court but there is danger of libel
- the minute the jury is sworn in and present we have Qualified Privilege
h) It is not permitted to interview members of jury during the case
i) it is not permitted to interview witnesses during the case because of the risk of intimidating the witness, contempt of court but it is allowed to interview witnesses after the case is closed (no longer active)
j) After the conviction – before the sentencing – the case is no longer active
- we have no more Qualified Privilege and there is no danger of the Contempt of court
- there is defence of justification here
k) There is no danger or restrictions before the Appeal
IV) PRIVACY & CONFIDENTIALITY- Impact of Article 8, European Convention of Human Rights Act
1. Princess Caroline of Monaco case – after her case there has been significant change recognised within the area of Privacy- journalists have permission only to take pictures when the photographed person is on public duty but there is allowance to do so if there is explicit or implied consent to do so.
2. Definition of Confidentiality- it’s simply a secret and depends on expectation that is given in circumstances that imply that there is a need for keeping that secret (Confidentially)
- it’s all about expectations and circumstances of passing the information
- Breach of Confidence – Bill Goodwin case
* recent case – Wikileaks
* other cases: Naomi Campbell – drug addiction case – which she won as she had an expectation privacy when talking about her matter- story published about her treated at Narcotics Anonymous, there were photographs taken of her emerging from treatment session; paper argued it was in the public interest; she responded it to have a significant level of circumstances implying confidence and that there was no justification of publishing it for public interest as it was not within interest of the public and there was no consent given. (Clive Porting – Official Secreats Act; Max Mosley vs The News of The World)
* There are three areas of concern here:
- revealing state secrets or official secrets
- revealing commercial secrets
- revealing facts about a person that would be expected to remain private
*The Official Secrets Act
* What’s the purpose of the law of confidence – and injunctions – to have people like for example celebrities away from breaching into their private lives/ family lives or in public people to draw a line for where press or public should be informed about their activities and to what extent (Caroline of Monaco- public duty).
3. Human Rights Act and trespassing
- journalists have to take practical measures
- always leave when being asked to do so if there is the sign on Section 8 official Secrecy Act
- you can film from the public place
- do not force entry
- and do it within reasonable judgment of the courtesy
V. OTHER ASPECTS
1. FOI stands for Freedom of Information Act
2. Provisions of the representation of the people Act that affect journalism are:
- it’s a crime to falsely represent the opinions of politicians - misrepresentation and libel
3. Circumstances that an editor might write a ‘without prejudice letter’:
- without the prejudice – on attempt to correct the error without allowing it to be used as evidence but to solve the issue.
4. Standards of proof in civil and criminal law – Principle of avoidance of double jeopardy –affect the practice of investigative journalism
- beyond reasonable doubt
-balance of probability
-can’t try do the same thing twice
- example: Steven Lawrence killer – The Daily Mail
5. In terms of statutory QP “subject to refutation”
- local government
- one councillor says something bad about something and we repeat it - we have to put a balance from that person accused of wrongdoing at the same article (bane & antidote)
- industrial tribunals, cricket club etc
* COPYRIGHT – protection of intellectual property (definition and purpose, Fair Dealing-‘lifting’- taking abstracts from other pieces- we can’t pass it off as our own, we have to make it clear it isn’t ours.
* Reporting Election – Phil Woolis case
VI. Raynolds 10 Points TEST
Qualified Privilege is available as a defence where it is considered important that the facts should be freely known in the public interest. ALBERT REYNOLDS vs SUNDAY TIMES 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)
Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC here.
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).*Reynolds Defence can be implied when the facts are in public interest and is the product of reasonable journalism, and as given above it is a subject to Lord Nicholls’ list of criteria which must be satisfied. (Ref.4)
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.
1. The seriousness of the allegation
the more serious the allegation, the more protection will be applied.
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 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.
3. The source of the information
The more authoritative the source, the more you are entitled to report their allegations, even if those allegations cannot be proved or even if they turn out to be incorrect. So obviously chequebook journalism 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. Sources ‘on the record’ are more protected than anonymous sources.
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. 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.
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.
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.
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.4)
* Overall – learn how to recognise risks and seek advice!
References:
Ref.1) McNae’s essential law for journalists (Twentieth Edition) Banks, D. Hanna, M. (2009)
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) weeks 1-11 http://journalism.winchester.ac.uk/?page=102
3) Media Law Lectures throughout the whole semester and Law revision in week 11, ba Journalism, year 3
4) My blog posts on Media law, year3, 2010
