Codes of Practice

This is not actual law, but a journalistic code.  It’s more ETHICAL, reassuring the public.  It builds a bond between journalists and their audience.

Three main codes:

PCC (Press Complaints Commission) – newspapers and magazines

Ofcom – broadcasters

BBC – for BBC staff and license payers

Purpose...

The law is specific and limited in action

It also offers a benchmark for behaviour amongst journalists

Key Areas

Ethical behaviour – how far is far enough

Fair Treatment – giving a respect for privacy

There is a requirement for accuracy and impartiality

Vulnerable groups are protected in codes

PCC

This is SELF REGULATING.  It is often considered to have more relaxed rules because of it.

In the editors code of practice (found on pcc.org.uk), asterisks highlight areas which may not be held, if there is an overriding public interest.  Due to this suiting newspapers, there is a lot of cynicism amongst the public over the actual codes effectiveness.

Ofcom

This is much more powerful that the PCC.  They hold statutory powers which can result in much more trouble – for example large fines.

In the past, in response to the ITV competitions scandal, Ofcom fined ITV £5.6m.

                                                                     

They can give directions for a programme not to be repeated, and for the corrections to be broadcast.  Fines of up to 5% of revenue can be imposed or they can even revoke broadcast licenses.  In July 2010, Ofcom served the owners of four adult channels (Tease Me, Tease Me TV, Tease Me 2, Tease Me 3), Bang Channels Limited and Bang Media Limited with a fine of £157,250 for broadcasting sexually explicit material before the 9pm watershed.  Later in November of the same year, the channels had their licenses revoked and were taken off air.

Broadcaster are obliged to be impartial in broadcasting, whereas newspapers appear to get away with more.  Impartiality varies in different circumstances.

BBC

These are the BBC editorial guidelines, and in practice are a working document/reference for journalists. 

They can be found at:

bbc.co.uk/guidelines/editorialguidelines

Take That!...Super-Injunction

Take That's Howard Donald, is the latest celebrity to have their super-injunction over turned. 

The decision was made at the Court of Appeal by Master of the Rolls Lord Neuberger, Lord Justice Maurice Kay and Lord Justice Sedley. 

Originally, Howard Donald had sought the super-injunction in April against former girlfriend Adakini Ntuli, when it was made apparent that she wanted to sell her story and reveal personal information about their relationship via Max Clifford.  Donald not only wanted her story silenced, but also the fact that he had applied for the injunction (therefore becoming a super-injunction).

Even though the super-injunction was rejected by the Court of Appeal, the injunction remains in place; Miss Ntuli still cannot sell any personal information about Howard Donald.

Media Law - Copyright

Copyright laws apply where some intellect has been used to create something – known as intellectual property.  It is covered by Statute law in the Copyright, Designs and Patents Act 1988.  This includes any skill, labour or creativity involved. 

It is classed a breach or infringement of copyright if you are ‘making beneficial use’ of someone else’s work without permission.  If you use their work to your advantage, for instance, making a profit at their expense, this is seen as exploitation. 

What is protected and what is not

Protected: everything in the product of original work

Not Protected: undeveloped ideas, slogans and catchphrases.

Journalists are also covered by the copyright law – in fact it has helped journalism flourish.  There is the idea within journalism that if you respect others copyright, then they will respect yours.  The value of product is heightened by the exclusivity, and the respect of copyright ensures this.

The main reason for the media to care about copyright is because it can cost a lot of money.  Like other media law blunders, it usually results in a large compensation and bad reputation. 

Ways Round – ‘Fair Dealing’

Papers ‘lift’ stories from each other, but only up to a point.  This may include quotes, but not the complete story. 

‘Fair dealing’ can cover a journalist, where they lift the point of a story or the quotes.  They must be attributed to the newspaper sourced from, and it must be in the public interest.  The usage must be ‘fair’.

Copyright material can be used if it is for critical or review purposes.  At the same time, broadcast news obituaries of film stars can use famous movie clips for free, but it has to be contemporary; a clip cannot be used weeks later.

IMPORTANT:

Photographs are never covered by fair dealing

In America, Brownmark Films has in the last week filed a suit against “South Park”, Comedy Central and Viacom.  They have claimed that “South Park” has committed a copyright infringement in a parody of the Brownmark video ‘What What (In the Butt)’, in an episode dating back to 2008.  The company has stated that the creators of “South Park” have wilfully, intentionally and purposefully disregarded the rights of Brownmark.

In defence, Comedy Central has said that their previous parodies have been covered by the ‘fair-use’ part of the Copyright Act and that courts recognise this.  They are confident they will be fully protected in the current suit.

Media Law - Freedom of Information

Freedom of Information Act 2000

Statue – requires all public funded bodies (not private)

-          Must publish documentation on demand

-          Must publish the schedule of information they have

-          Must give in a reasonable time (approx within 20 days to reply to the initial request)

National security matter won’t be digressed, neither will military.

The Business of Freedom

A key figure, Matt Davis has made FOI his business.  He runs a news agency DataNews, which relies alone on FOI researches.

In a press conference attended by the Press Gazette in February 2009, Davis suggested that the BBC would suffer cuts due to their spending being released.   When the accommodation for the world cup in Germany was made public - £1.6m, a small fortune; or the Christmas party in 2007, at £50 a head (with a total bill of £250,000), it’s more than obvious that someone was going to be unhappy that their license fee was spent in that way.  Davis credits the FOI Act for lowering the Christmas party to £25 a head the following year.

It wouldn’t be a surprise if the BBC tried to fight FOI and initially it seems they did, refusing requests on the exemption of ‘journalistic, artistic or literature’ reasons.  However, they finally embraced the idea, setting up a specific team to deal with the questions.

FOI Requests

-          Has to be simple

-          Write to the council, to the information officer of whatever body you wish to contact

Although the law has meant much wider access to information, there can be delays in requests.  The government can refuse or delay requests if it is best for them.  Be sure to simplify the request of information, so it can’t be deemed too expensive to find out the information.  It can also take time to be given the information you’re trying to find out, so planning ahead is best.  Even though FOI does reap its rewards, Jeremy Hayes suggests that costs and time limits could lower the amount of research by newsrooms.   

Does the public really need to know?

I must be honest; I don’t like being kept out of the loop.  If something is worth knowing, I want to know it and I appreciate that FOI has brought things to light that the public should know.  For instance, I would want to know the MP expenses scandal.  If an MP claims for a second house that’s 100 miles from their constituency or claims for lightbulb replacement, it’s in the public interest that these ones should not go unnoticed.  As a result of publicising the expenses (through the original FOI requests made in 2005 by The Sunday Telegraph), MPs will have to closely watch their claims, knowing they cannot claim for mole control; which in turn tightens government spending.

Even so, there are SOME things I don’t particularly want to know.  I believe the Blue Peter Garden - the untouchable haven for those growing up watching the programme, doesn’t need its leaky dyke to be made public; it’s not its fault after all.

Media Law - Confidentiality

Official Secrets Act
The Official Secrets Act 1911 and 1989 enforce national security surrounding the UK State or Crown. They place the duty of confidentiality upon employees where work is sensitive. In part this legislation was designed to punish spies who betrayed UK intelligence, but in later years it has applied to those who give away sensitive information to journalists. Usually the person leaking the information can be prosecuted by the Crown, however, if the journalist is seen as an accomplice, he too can be prosecuted. At the same time, a Crown employee who doesn’t give information to journalists deliberately, but leaves it where it can be found or accessed, they can be punished.

In 1998, a journalist was arrested and charged over the 1984 OSA. After publishing his book The Irish War, Tony Geraghty, once the Sunday Times defence correspondent, had published The Irish War, in which he disclosed computerised surveillance in Northern Ireland by intelligence agencies. It took a whole year before the charges were dropped.


The Right to Privacy
It wasn’t until the Human Rights Act 1998 came into place that English law acknowledge the right to privacy. Under Section 8, it guarantees the right to privacy. Even so, more importantly for journalists; when courts are considering injunctions, Section 12 requires ‘particular regard’ for them to recognise freedom of expression covered in Article 10.


Breach of ConfidenceThe law of breach of confidence makes sure that information acquired when given in confidence, cannot be published.

To breach confidence, according to Mr Justice Megarry there are three elements;
- The information must have ‘the necessary quality of confidence’
- The information must have been imparted in circumstances imposing an obligation of confidence
- There must be an unauthorised use of that information to the detriment of the party communicating it


Injunctions
If a person has confided information to a journalist, and they find out that it is going to be published, they can try to get a temporary injunction that prohibits the publication of the confidential information.

In 1984, Southern Evening Echo in Southampton was presented with an injunction from Medina Borough Council, on the Isle of Wight. It stopped the paper from reporting on development plans in Newport, the capital. On arrival of the Hovercraft, the injunction was given which meant that the papers could not be distributed. A new edition had to be distributed to the island.

If an injunction is in place at one newspaper and another in England or Wales learns of the information, they can be in contempt of court if they publish it. This was held in the Court of Appeal in 1987.

Media Law - Privilege

Privilege is important to a journalist, as it can allow something to be written or broadcast that could be of a defamatory nature.  At the same time, it can offer some protection from being sued.

There are two types of privilege; absolute and qualified. 


Absolute privilege

Absolute privilege means that any action for defamation is barred, no matter what the comment is.  Unfortunately it is quite limited for journalists to use.  Within Parliament, MPs are able to say what they like, without the risk of defamation.  Only through Parliament published reports (Hansard - the Official record of the House of Commons and House of Lords) is it possible to report every comment, malicious or not and not run the risk of libel.  Even if a journalist is commenting on what has been debated in the House of Commons, they are only covered by qualified privilege.

The only time a journalist is covered by absolute privilege is when they are reporting court cases or tribunals, as what is said in court is often very defamatory.  Without absolute privilege the media wouldn't be able to report about it at all.  It is only if a hearing is held in private that it doesn't apply. There are specific guidelines on what must be included in court reports.

Reports must be fair - when reporting, you must make a summary of both sides, not just one.  They must also be weighted equally on both sides.  Mr Justice Eady stated in 2006 (Bennet v Newsquest) that a report 'must be fair overall and not give a misleading impression...omissions will deprive a report of privilege if they create a false impression of what took place'.
Reports must be accurate - you must report EXACTLY what is said in court, not adding anything or taking anything away from what someone says.  If there is an allegation, you should state the person who is making the claim as well as what they say.  This way you cannot get into trouble for making it sound as a factual statement.
Reports must be contemporaneous - in the Defamation Act 1996, it says that contemporaneous reports are 'as soon as practicable'.  For a daily newspaper, this would need to be the next day, however for a weekly newspaper it would mean the next week.  It should be the next issue of the publication.


Qualified Privilege

This is more day to day things encountered by journalists.  It applies to reports of court cases, public meetings, council meetings and police statements.  To ensure you are covered by qualified privilege, the reports need to be fair (balanced on both sides), accurate, without malice and on a matter of public concern.

There are two levels of Qualified Privilege:

- With or 'subject to' explanation or contradiction
Public meetings - if something defamatory is said in a public meeting and you get the other side, you can run the story.  At the same time it must still be without malice and have public concern in mind. Public meetings include local councils and committees, tribunals, commissions and inquiries.

Associations have a different status (e.g. GMC, FA).  They would usually have a hearing in private and would then come out with their judgement.  Therefore, findings or decisions by the association arecovered by qualified privilege, but proceedings are not.

- 'Without' explanation or contradiction
Public proceedings in a legislature anywhere in the 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 (Individual interviews must take place in that venue)


Public meetings
Public meetings are discussions of public concern, and the admission can be general or restricted.  Up until 2000, pressers (press conferences) were not seen as a public meeting.  As a result of the McCartan Turkington Breen v Times Newspapers Ltd (2000) appeal, the House of Lords ruled that press conferences were protected by qualified privilege.  In the case, originating from a meeting organised by campaigners for the release of a British soldier, Lee Clegg, the Times reported defamatory comments about the solicitors who represented Clegg.  The solicitors sued the newspaper over the report.  A written press release was also made available to the press, but it wasn't read out aloud in the proceedings, although referred to orally by one of the speakers during it.  Lord Bingham ruled that the press representatives were like the 'eyes and ears of the public' and that the newspaper was covered by qualified privilege, as were the written handouts, also part of the public meeting.

A full report of the hearing can be found at
http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd001102/turk-1.htm



Remember: there are risks of live broadcasts of public meetings, it is generally a good idea to put a delay in.

Also, there is NO PRIVILEGE outside of main proceedings.

If in court someone shouts out from the gallery, it is possible to report it if the comment isn't defamatory (this would then be reported as ' a member of the gallery shouted out as he was taken away', as this gives an accurate report of the atmosphere inside the court).

Media Law - Defamation and Libel

What is defamation?

This is when something that you write:
- lowers them in estimation of right-thinking members of society generally
- causes them to be shunned or avoided
- disparages them in their business, trade or profession
- exposes them to hatred, ridicule or contempt.

This can also occur via pictures and is a common danger in TV.  It can be through the careless use of a background, shots with voice over can be defamatory.  People or companies must not be identifiable in certain contexts e.g. child abuse and fraud.  'Imprecise' shots make it unclear who the suspect is, or which house is being spoken about, especially when it is terraced or attached to another house.


Reputation is vital to somebody who lives in public life, but also someone who has money. 

Inference
When reporting something, it should be written to be interpreted by the 'reasonable man' .  It is not necessary according to how the person who wrote the piece wanted it to mean, or to extreme views of others, but that of what a reasonable person would take it to mean. 

Innuendo
Is just as big a hazard as inference and this is where a hidden meaning in the report is clear to ones who have a particular knowledge.  The example of Lord Gowrie in 1986, who after the use of 'snort' in a question of what 'expensive habits' he was unable to support on his former income, sued for the creation of the innuendo that he took illegal drugs, in particular cocaine.  He received 'substantial damages'.

Bane and Antidote
The context of a report may remove a defamatory meaning.  In the instance of Charleston v News Group Newspapers Ltd [1995], although actors' heads were super-imposed on porn stars in a picture (something defamatory), it was seen from the text, that the newspaper was reporting a game where this was actually happening (without the actors' knowledge).  The House of Lords applied this rule, saying that most people who read past the first paragraph would realise the report not to be defamatory.

As a journalist, it is important to realise that someone's reputation is key - if they have a lot to lose, they are more likely to sue, so BEWARE!


Libel Defences
- Justification - it is true and can be proven in court.
- Fair comment - honestly held opinion based upon facts, or privileged material, in the public interest.
- Absolute privilege - court reporting.
- Qualified privilege - police quotes, pressers.


Other Defences
- Banes and Antidote - defamatory removed by context (see above).
- Apologies and clarifications - the speed you respond by makes a difference too.
- Reynolds Defence
    - Material must be:
                               In the public interest, a product of 'responsible journalism' (more in favour of BBC).




No Defence
There is no defence for you against defamatory or libel when you:
- haven't checked your facts.
- haven't 'referred up' - you haven't flagged it up to someone.
- haven't put yourself in the shoes of the person or company you write about.
- have got carried away by a 'spicy' story.
- haven't bothered to wait for a lawyer's opinion.

**If there is the option between leaving something out (whilst waiting for the lawyer) or putting it in before the deadline, LEAVE IT OUT**



KEY QUESTIONS
Who am I writing about, could they sue?
Is what I'm writing potentially defamatory?
Do I have a defence? Am I covered?

REMEMBER - Lawyers never mind being asked!

Media Law - Criminal Coverage (Part 2)

Court

When a case reaches court, there is usually a 'pre-trial' or 'preparatory' hearing.  At this point automatic reporting restrictions (mentioned in Part 1) come into place, and a journalist cannot publish anything other than the basic seven points:

1.  Names of defendants, ages, addresses and occupations
2.  Charges faced or a close summary
3.  Name of court and magistrate's name (or judge's name if held at a Crown court)
4.  Names of solicitor and barristers present
5.  Date and place to where the case is to be adjourned
6.  Any arrangements as to bail
7.  Whether legal aid was granted

If the facts of a case are broadcast, they can affect the jury's opinion or ideas separate to those heard in court. This can lead to contempt of court.


Key Stages of Trial

- Prosecution opening
- Key prosecution witnesses
- Defence opening
- Key defence witnesses
- Judge's summing up
- Jury sent out, deliberation and verdict
- Sentencing (this may be adjourned and the journalist with have to return)

When a trial begins, the media can report what is heard in court from that day, whilst the jury is present.  There are rules as to how it is reported; it needs to be fair, accurate and contemporaneous (you cannot report that day's news next week, unless it is a weekly newspaper).  There is no sound recording or photography allowed.

Under 18's are classed as juveniles and generally enjoy anonymity.  Juveniles (10-18 years of age) are usually tried at youth courts, unless it is a very serious case which will then go to the Crown court.  This is illustrated in the case of the murder trial of James Bulger that took place in 1993, where two children (aged 10 at the time of murder) were charged.  Their preliminary hearing was held at Bootle magistrates court, not at a youth court, and the case was sent to trial at Preston Crown court.  During the trial the identities of the children were withheld from being published, by order of the court.  However, on the day a verdict was reached, the judge agreed to the public identification of the two boys (by now 11 year olds), Jon Venables and Robert Thompson.

Media Law - Criminal Court Coverage (Part 1)

Prior To Court

It’s important to find out whether a suspect is under arrest or is voluntarily assisting with police enquiries. As soon as there is an arrest, this makes the case ‘active’ under the Contempt of Court Act thus affecting what the Media can publish about it. Also a magistrates' issue of an arrest warrant makes a case 'active'. If a suspect isn’t arrested but released on police bail, the case is still 'active' until the bail ends without arrest or charge.

Limits to detaining suspects by the police prior to any charge are normally for no more than 24 hours.  If there is no charge, the suspect must be released.  If the crime is an indictable offence (see below), then under the Police and Criminal Evidence Act a police officer of superintendent rank can authorise another 12 hours.  Police can then apply to a magistrates' court for up to a further 36 hour extension.  They can apply again, but in total a person cannot be detained beyond 96 hours.  However, under the Terrorism Act, a person suspected of a terrorism offence can be detained for up to 28 days without charge.


Libel

Even if a media organisation find out that an individual is being investigated by the police or another agency, prior to a charge, and name they release the name of that person or details that will identify them; they have the right to sue the organisation for libel if it doesn’t result in a criminal prosecution. At times, a media organisation may release this at risk, if they have received information that the police are close to charging that suspect (as the libel fades into the background by the actual charge for that person) or if they are quite certain that person won’t wish to alienate the media (i.e. a Celebrity or Politician) by suing them.

There are guidelines on naming suspects in the media from the ACPO. If a person is under investigation but has not been charged, some details may be released as long as the suspect isn’t identified by this information. After a charge has been made, the police will identify the suspect by their name, age and occupation, as well as the charge and upcoming appearance at court.


Criminal Charges

Criminal charges determine where the case will be going, either remaining at the magistrates court or passed onto the Crown court. As a journalist, it is important to know what the categories mean.

Criminal charge categories:
Indictable-only offences, can only be dealt with by a Crown court with a jury trial (after a preliminary hearing at the magistrates court)

Either-way offences, can be dealt with by a Crown court or a magistrates court (depending on what the magistrate decides or whether the defendant elects a Crown court trial by jury)

Summary offences, almost all are dealt with by a magistrates court. There is no right to a Crown court jury trial.
Automatic reporting restrictions depend on the category of the charge/offence and the procedures of that particular court. These restrictions make it illegal to report some details in the media.


Magistrates' powers are limited, and this would be a reason why they may choose to send an either-way offence to trial at Crown court.  They have the ability to give 6 month jail sentences and fines up to £5,000.  They can issue suspended sentences, conditional discharge (conditional on good behaviour over a specific period), community orders, binding over (where you are bound to keep the peace on a sum of money, which has to be paid if you break it) and ASBOs.

Journalists must be aware of accurate reporting of crime charges. For example, a theft is not the same as a robbery which indicates the use of force by violence within the crime. If reported incorrectly, they may be libellous (as mentioned above).

There are usually two parts to a crime, an act (which is potentially criminal) and a guilty mind (meaning the crime was planned and carried out/attempted).  The prosecution generally has to prove both parts, but in some circumstances it is possible a crime can become something different if there was no malice in the action, for example, a killing can become manslaughter or a tragic accident (not criminal).

At the same time, the law acknowledges that a crime can be committed without the need to prove guilty of intent.  These offences are known to be of 'strict liability' and protect a safe and just society.  If a motorist drives with too much alcohol in their system without the intention of breaking the alcohol limit, they are still committing an offence.  In the same manner, if you own a TV and not a TV licence, this too is an offence.

Media Law - An Introduction to the Legal System

Knowing the law around Media and how it affects Journalism can act as a distinguishing mark.  Instead of being classed as a 'citizen journalist' (one that needs no professional training or qualifications - that is to say, anyone from the public) you will be make a better journalist. 


Becoming aware of the pitfalls within the profession is vital, without an understanding of Media Law it is possible to find yourself in a situation that could result in your career coming to a swift end.  For example, if a claim in a report turns out to be inaccurate, it is highly likely to result in appearing in court for libel.  This in itself gives a negative reputation to that particular journalist, suggesting that he is unreliable, untrustworthy of producing factual work.


It seems a simple point, but it's important to know when to stop and think.  A fantastic story may take your fancy, but whilst writing the exposé of the year, be sure to check nothing written carries any legal implications.  Don't sleep walk your way into problems, you'll only pay for it in the end.


Although the United Kingdom has an established legal system, it is not contained within a written constitution unlike other countries such as the US.  In contrast, it is made up from a variety of sources such as historic documents (the Magna Carta), Statute Law (Acts of Parliament, notably the Act of Settlement 1701) and case law (the decisions reached by judges and juries).  At the same time, UK law has been affected by the European Convention on Human Rights and the Human Rights Act.  Within the Human Rights Act, Articles 8 (a right for privacy) and Article 10 (a right to freedom of speech) are relevant to journalists.


The UK legal system works on the basic principle that the law is a contract between the monarch and the citizen.  We obey the law in return for the monarch ensuring our access to justice and freedom of action.  This however does not give a person complete free rein, as these actions cannot infringe on the rights of others, security of the state or public order. 


The Queen herself, as head of state is immune from any prosecution.  This is also the same for other heads of state, but this immunity only continues whilst they hold the office.  The Queen holds her office until she dies.
Stephen Bates in an article for The Guardian online (Is the Queen Above the Law?) dryly states if 'she found herself without money to buy something and decided to do a runner - an unlikely prospect - she would not get done for shoplifting'.  This issue of immunity also caused a stir during the Diana inquest in 2007, with the possibilty of the Queen being called to give evidence at court.  The idea of Regina v Regina was a rather strange thought.

Moving further into the Legal System, prosecution is always in the name of the crown within the Criminal Courts.  On the other hand, the Civil Court doesn't involve the state and are disputes between two parties.  To make things a little more complicated, Scotland and Northern Ireland have thier own legal systems.  When reporting nationally, this must be remembered and taken into account.

At the top of the English court hierarchy is The Supreme Court, held in Middlesex Town Hall where the Law Lords sit.  Below this is the Court of Appeal and then The High Court.  After this, the Civil and Criminal Courts are divided separately.  For Criminal Courts, The Crown Court is below The High Court and then the Magistrates Court.  The Civil Courts follow The High Court firstly by the County Court and then Tribunals (usually for Industrial disputes).

This basic introduction to the Legal System will help as a foundation for further information on Media Law in following weeks.