Media Law & Ethics - Lecture 9, 12/03/14

Media Law Revision session;

Before starting work as a journalist you must have a firm understanding of the key parts of media law which you must know to operate safely.

You do not want to risk your own career or bring costly litigation upon your employer.

The legal framework in the UK;

Hierarchy of courts, the structure represents a pyramid with the Supreme Court at the top. Underneath the Supreme Court is the court of appeal that deals with both criminal and civil law.

•  Split into two divisions; criminal and civil.
• Civil division focuses on family law and contractual disputes between people and organisations. Heard in a County Court. Often judged on the balance of probabilities.
• Criminal division focuses on state offences: murder, burglary, fraud. Often judged on the court standard beyond reasonable doubt.
• Criminal law and civil law – what’s the difference?
• Need to know where the cases are going to be heard therefore you need to know what all the courts are…

Who brings the decisions?

• The CPS, crown prosecution service is headed by the DPP, director of public prosecutions who is Alison Saunders. The David Lee Travis trial had to go back to the DPP and Alison Saunders had to personally decide what to do; she opted to press ahead with the trial. She is a regarded as a high profile media figure as she has to to explain why or why not she is taking the person to trial.
• Ministry of Justice – Chris Grayling is overseeing administration of the courts.
• The other law officer in government; The Attorney General. Their function is to make sure the ministers of government are legally correct when acting. The Attorney General is always an MP, at the moment it is Dominic Grieve. 

Sources of law; 

• The statute law which originates from parliament
• Judicial law also known as case law
• Common law dating from the middle ages
• The body of European law; which particularly focuses on commercial matters about how trade should be carried out in Europe and the UK.

Potential questions;

·         What’s the highest court in the UK? Where does it sit? How many justices?

The Supreme Court located in central London, Middlesex Guild Hall on one side of Parliament Square. There are twelve justices in total.

·         Three functions of the Crown court?

- Indictable offences are tried at a Crown Court; these are serious crimes where sentencing is longer than five years.

- Hear appeals from Magistrates courts

- Sentencing

Reporting Crime and the Courts;

Key concepts to understand are PREJUDICE and CONTEMPT.

These are the danger areas, why is this?

Prejudice – where the publication of certain information will make it difficult for an accused person to be treated fairly at trial i.e. the jury already knows background facts about the defendant.

Contempt – where information is published in breach of the rules on crime or court reporting, this can result in a high risk of prejudicing legal proceedings.

When does a case become legally active?

• When the person is charged
• When an arrest warrant has been issued
• When an arrest has been made
• When a summons has been issued

As a journalist reporting on a case you must construct a plan B if the charges or an arrest is imminent. You must prepare a new script that does not include any details that could potentially damage the legalities of the case. Discuss with your lawyer what to keep and what to take out in your script/report as you always need to be one step ahead.

Stage 1 - The crime is reported, the police begin appeal for witnesses

Stage 2 - Police make an arrest, issue a warrant or say a person is ‘helping with inquiries’ this is when the case becomes legally active. There is a risk of prejudice so take advice before publishing all facts, especially any descriptions of subjects.

Stage 3 – Police lay charges meaning a trial is a definite prospect. You can only report the facts which you will be certain will be uncontested. Other aspects such as community ‘colour’ angles can be reported e.g. shock, distress, laying flowers.

Stage 4 – Magistrates court hearing, this is restricted to seven points only;

-          Name of defendants, ages, addresses, occupations

-          Charges faced or a close summary

-          Name of court and magistrates names

-          Names of solicitors or barristers present

-          Date and place to where case is adjourned too

-          Bail (only whether granted or not) and bail arrangements

-          Whether legal aid was granted

Types of offence;

·         Indictable

·         Either way

·         Summary

Magistrate’s courts; potential questions

What is the maximum sentence a magistrate can impose?

·  Six months

What is meant by a conditional discharge?

·         If you walk free today then you cannot commit another crime again. This differs from a suspended sentence as this is linked to a timeframe. It is a way of keeping people out of jail. Judges are encouraged to use suspended sentences due to the prisons already being full.

What is the purpose of a section 49 order?

·         Giving anonymity to under 18s in youth courts.

What is the purpose of a section 39 order?

·         Giving anonymity to under 18s in adult courts.

What do we mean by jigsaw identification?

· The innocent reader on the bus may be able to deduce who the publications/press is talking about when reporting on a trial.

Crown courts;

• If the jury is not present proceedings should not be reported.
• Reporters in covering court proceedings enjoy ABSOLUTE PRIVILEGE – ‘a complete defence against any action for defamation’
• But it depends on the report being ‘fair, accurate and contemporaneous (fast)’
• Defamatory shouts from the public gallery are not privileged.

The protection we have as a journalist when reporting from court is absolute privilege, if you are not reporting accurately you will lose your absolute privilege.

·         What is required of your court report for it to attract absolute privilege?

·         In this context explain what is meant by ‘fair’?

·         During a murder trial a family member shouts at the defendant from the public gallery. “You lying bastard – you killed our boy” Is that safe to report?

Libel and defamation;

Libel is a civil wrong resulting from a published defamatory statement which identifies a person or company. A defamatory statement can cause individuals or an organisation to be;

• Lowered in the mind of right thinking members of the public
• Causes them to be shunned or avoided
• Damages their reputation, disparages them in their business, trade, office or profession.
• Exposes someone to hatred, ridicule or contempt

Publication + Identification + Defamation = Libel

This is a low standard of proof.

Beware inference (secondary meaning) and innuendo (possible defamatory suggestion). 

In broadcast be careful of picture libel, careless use of inaccurate shots that are out of context with your voice over or script, for example if you are talking about fraud and have shots of shop signs and businesses that have nothing to do with the report can cause huge libel problems.

The New Act of Libel;

The defences of libel; It has to be proved that it has caused you or your company serious harm, this is one of the new thresholds as it has to have affected your lifestyle either through loss of trade or income.

Truth or at least substantial truth.

Honest opinion – The statement must be clearly an honestly-held opinion based upon a fact or facts which existed at the time of the statement, it no longer had to be a matter of public interest but as before there must be no malice.

Publication on matters of public interest;

This new section enshrines principles behind previous judgements. If material is published because 'it is reasonably believed' to be in the public's interest i.e. of value for the public to know. 

Website defence and peer reviewed journals. 

Qualified privilege – The defamation took place in a situation where QP applies e.g. council meeting, police statement, press conference.

Potential questions;

How would you define libel?

How do we know when a statement is defamatory? (four tests used by judges)

What particular danger is there of libel for TV journalists?

What the three major libel defences?

Something regarding the McAlpine affair

Qualified privilege;

• Privilege offers day to day protection for many routine journalistic activities. E.g. reporting public meetings, council hearings, press conferences and police statements.
•  Allows journalists to write or broadcast material which may be defamatory or untrue. We have legal protection from being sued as long as reports are ‘fair, accurate and with malice’ (intent to harm) and are a matter of public concern.
• Remember there are two levels of Qualified Privilege – with and without explanation and contradiction. 
• An example of qualified privilege without explanation or contradiction would be proceedings of a legislature anywhere in the world.
• Comments outside the public meeting do not attract qualified privilege. 

Copy right;

The exclusive legal right, given to an originator or an assignee to print, publish, perform, film or record literary, artistic or musical material, and to authorize others to do the same.

Purpose is to protect intellectual property - the product of skill, creativity and labour of time. Journalism as a business could not exist without it but undeveloped ideas, brief slogans or catchphrases are not protected. 

Ignorance is no defence. 

'Fair dealings' allows other media outlets to lift journalistic material but 

• Work cannot be passed off as your own
• Usage must be fair - not greater than originator
• Material must be in the public interest

You cannot fair deal photographs or in normal circumstances TV news pictures. You must always attribute to the creator. 

Internet material is still subject to copyright. 

Possible questions;

·         What is the purpose of copyright law?

·         You use a photo off of the internet, is it free of copyright?

·         Why is the principle of fair dealing important and what are its limitations?

Confidentiality; breach of confidence

Law of confidence safeguards information obtained in confidential circumstances e.g. between private individuals or between a company and its employees. 

For journalists there are three areas of concern;

1. Revealing state secrets or 'official' secrets
2. Revealing commercial secrets
3. Revealing facts about a person they would have expected to remain private

The Official Secrets Act protects state secrets (military or intelligence matters) Beware of inadvertent breach by publishing photos of sensitive military installations. Breaches are a criminal offence.

But the act is rarely used as juries have been reluctant to convict 'whistleblowers' (Clive Ponting) or others who can be 'victims' of the state. 

Commercial confidentiality is normally protected by the contract of employment. Staff will not do things detrimental to their employers interests e.g. reveal finance information helpful to competitors. 

But this interest must always be balanced against the public interest which might dictate that publication is desirable. E.g. the 1985 case which ruled that it was in the public's interest to reveal that a police breathalyser did not work. 

Personal confidences or privacy; now also protected under Article 8 of the European Convention on Human Rights. 

Elements of breach of confidence; (page 297)

•  Information must have ‘quality of confidence i.e. not trivial
• Circumstances must impose an ‘obligation of confidence’
• Unauthorised use of the information must cause ‘detriment’
• Personal confidences or privacy – now also protected under Article 8 of European Convention on Human Rights. (Privacy page 307)

Breach of confidence and the journalist’s dilemma;

Journalists must decide when newsworthy confidential information is uncovered to either;

• Risk an injunction (legal stop) by seeking a response to an allegation OR
• Publish material and take the risk of legal action for breach of confidentiality.

Case studies;

• Max Mosley VS The News of the World. In 2008 the paper printed the story of Mosley's sado – masochistic orgy with five women saying it had a Nazi theme. But the high court ruled that there was no public interest in revealing the activities so Mosely had a right of privacy and damages were awarded. 
• Naomi Campbell VS The Mirror Group. In 2004 The Mirror had published photographs of Campbell leaving a meeting of Narcotics Anonymous and reported her therapy for drug addiction. The House of Lords ruled there was a breach of confidence and that she could have expected privacy. 

The PCC, OFCOM and BBC Guidelines;

• Covers journalistic behaviour in getting a story, what is justified and what is not. E.g. secret recording. 
• Under OFCOM rules there is an absolute requirement for accuracy and impartiality. 
• Press Complaints Commission discredited post-Levenson, the next move is unclear. 
• BBC Editorial Guidelines are also designed as a system of self regulation. 
• OCOM code has STATUTORY power. OFCOM can impose large fines and remove broadcast licenses. 
• Examples include the fines on BBC for the Sachsgate scandal, £400,000 for fake phone ins and ITV's Ant and Dec who were fined £5.6 million for abusing phone-in votes to make money. 

Potential questions;

·         What bodies are responsible for regulating the professional conduct of journalism?

·         Which body has the most power and why?

·         Define impartiality.

Reporting elections;

Remember journalistic obligations for accuracy and impartiality is greater than ever at election time - our reporting will assist the democratic process to allow voters to make choices.

Key danger areas for journalists;

• False statements about candidates
• Maintaining impartiality
•  Reporting election polls

• Remember broadcasters are obliged to maintain strict impartiality. This is done by assessing coverage daily and over several days. Also by keeping a log.
• Major party candidates and minor party or fringe candidates do not have to be treated equally. 
• It is an offence to refer to exit polls (about how real votes were cast) until close of polling. 
• No coverage of political issues or argument on polling day itself. 

     Possible questions;

Why is accuracy and impartiality especially important at election times?

What are the danger areas for journalists during campaign reporting?

Must all candidates standing in a constituency be covered equally?

On polling day when can we start reposting exit polls? 

On polling day a candidate makes a final plea to voters - can we report this?

      

     The public interest - defining it;

• Where it is to the advantage of the public to know certain information: e.g. that there has been a case of bird or swine flu in Winchester. Shopkeepers in the town will not like the loss of visitors, but it is clearly in the interest of residents to know so they may take precautions.