Friday 10 December 2010

Law Revision

DEFAMATION

Malice
-an untrue statement that is written down

The Public Interest
-the opposite of malice
-no single, comprehensive definition in law of this concept
-in journalistic context, 'justify information's value to society as particularly high or potentially so'

Malicious Falsehood
-a lie that was uttered with malice and the utterer knew it would cause damage or harm and that the statement was false
-likely to cause financial damage to the claimant

Innuendo
-implying/suggesting something without saying it - always malice! -no defence!
-a statement which may seem to be innocouos to some people, but which will be seen as defamatory by people with special knowledge

Juxtaposition
-'contrast' - two objects or texts that oppose one another
-a statement innocuous when standing alone can acquire defamatory meaning when juxtaposed with other material

3 point list libel
-publication - to a third party
-identification - positive identification (!)
-defamation

Defamation
-it 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 estimation of right-thinking members of society generally
OR
~disparage the person in his/her business, trade, office or profession

Slander
-libel in its spoken form
-slander between two people not defamatory - needs to be a third party involved

An action for Libel can be started up to 1 year after it has been published. So be very careful as a journalist to keep all you tapes, original rashes of tapes, notes, shorthand to be able to defend yourself.
Case: Gilligan case - journalist tampered with his notes (evidence) after making them

Three main Defences

Justification
-it is true and you can prove it

Fair Comment
-protects published opinion - not any statement put forward as factual
-must be an honestly held opinion
-should be recognisable that it is a comment
-comment must be based on probably true facts

Privilege
Qualified Privilege
-journalists have QP in parliament/court reporting
-exemption - you're above the law
- the Monarch only person in the UK above the law

Absolute Privilege
-judges, lawyers and MP's have

AP and QP when the publication is
fast - in the next possible broadcast/issue
accurate - no spelling mistakes etc
fair - free from malice

Subterfuge
-when gathering information without telling you are a journalist
-hiding the facts you are a journalist - hide camera in bag etc
-do never spy! be straightforward!

Use of Subterfuge
-got to have permission from regulatory bodies before you go ahead
-if you can't do story in any other way
-if it's in the public interest

Political Bias in Print and Broadcast
-no regulation on print media/newpapers - can be as bias as you like
-broadcast - outside election - balance over time (BBC code)
-broadcast - called election - strict balance/equal airtime in proportion to share in last election
-undue prominence

Recording, Interviewing and Filming Children
-need consent if child is under 16
-no harm can be caused!

Regulation relating to Taste and Decency
-use of foul language, 'the F word'
-mustn't be gratuitous
-after the watershed - 9pm
-not use on air - never in studio

-use of 'profoundly offensive' language, ' the C word'
-not gratuitous to use it
-Northern Ireland police documentary - the word was used in an interview but was kept in as the word was in context and also for effect

Interviewing Criminals
-mustn't glamourise or imply that the crime was a good thing
-racial slurs, racial identification - mustn't be gratuitous

CRIMINAL PROCEDURE

Main Function at a Magistrates' Court
-committals
-summary justice
-injunctions in civil cases

When is a case active? What legal risks are there?

Helping police with enquiries
-case not active
-defamatory possible - identification

Arrest and Charged
-case is active
-no danger of libel
-danger of contempt of court

Magistrates' Court - Summary Cases
-
-

Magistrates' Court - Committal
-may be held on remand
-

On Bail/On Remand/Awaiting Trial
-danger of contempt of court
-cannot report reason with police have rejected a bail - prejudice

In Crown Court when Jury is not present
-no danger of contempt of court
-danger of libel
-case is active

In Crown Court when Judge and Jury is present
-full protection (QP)
-case is active

Permitted to Interview Witnesses - if so in what circumstances?
-During? -no, because of the risk of intimidating the witness -->
-contempt of court
-no checkbook journalism
-can interview and report when case is no longer active

Report about trial or accused person after conviction - before sentencing
-no QP
-no risk of contempt of court
-your defence - justification

Impact of Article 8 - European Convention on Human Rights
-Campbell vs MGN Ltd
-a story published about her being treated at Narcotics Anonymous
-photographs taken of her emerging from a treatment session
-paper argued it was in the public interest
-Campbell argued no justification of publishing private photographs alongside the story or reporting the details of the story
-article 8 - only allowed to take pictures in clearly public places
-implied consent

Practical Measures for photojournalists and videojournalists to avoid legal problems
-trespassing - if asked to leave do leave

Confidentiality and Breach of Confidentiality
-it's about the expectation to whom you tell - if you tell your lawyer or doctor you expect them to keep it a secret
-Case: Bill Goodwin - protect your sources even if it can lead to yourself being imprisoned

FOIA - Freedom of Information Act

Provisions of the representation of the People Act affect journalism
-represents opinions of a candidate
(-crime)

'Without Prejudice' letter
-an editor might write this to correct errors
-this is not allowed to be used as evidence

Standards of proof in civil and criminal law - Prinicple of avoidance of double jeopardy - affect the practice of investigative journalism?
-beyond reasonable doubt
-balance of probability
-can't try the same thing twice

Statutory Qualified Privilege
-local government
-balance in the same article
-both sides
-industrial tribunals, cricket club etc

Common Law Qualified Privilege - Reynolds 10 Point Test
-the seriousness of the allegation
-the nature of the allegation
-the source of the allegation
-the steps taken to verify the information
-the status of the information
-the urgency of the matter
-whether comment was sought from the claimant
-whether the article contained the gist of the claimant's side of the story
-the tone of the article
-the circumstances of the publication