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

Student demonstration in London - short version

This is the shorter version of the student demonstration that took place in London on 10/11/10. This package was produced for Wichester News Online (WINOL) and broadcasted with the weekly news bulletin on 17/11/10.

Student demonstration in London 10/11/10 - documentary

A documentary about the events that unfolded in London on the 10/11/10 as 50.000 students demonstrated for the proposed rise of the tuition fee cap.



Produced and Edited by: Madeleine Klippel and Veronica Frydel

Filmed by: Madeleine Klippel, Veronica Frydel, William Cooper and Andrew Giddings

No ifs, no buts - no education cuts!

Recent Cases - Media Law

Lily Allen v Daily Mail
Singer Lily Allen took legal actions against the Daily Mail alleging invasion of privacy and copyright infringement after they published pictures on their website of her home in September, 2010. Lily Allen has earlier won damages against French sports magazine 'So Foot' over an article where they claim she has called Cheryl Cole 'stupid and superficial' and Victoria Beckham a 'monster' and also received an apology from the Sun and £10.000 in damages for repeating some of the claims made in the same 'So Foot' article.

The Spycatcher Affair
The controversial book 'Spycatcher' contains information aquired by Peter Wright, senior officer of MI5, and was published in 1987. The British Government lost the battle to stop the publication of this book. Law Lords ruled that extract from this book could be used by media as any damage to national security had already been done by publications abroad. But it was agreed that Mr. Wright had committed a serious breach of confidence by publishing this book.

In 1991 the European Court of Human Rights found that Mr. Wright's freedom of speech had been violated by the government's actions.

Bill Goodwin Case
Trainee reporter Bill Goodwin refused to hand over the documents that would reveal his source as he investigated the financial difficulties Tetra Ltd faced. Mr. Goodwin's risked imprisonment by refusing to reveal his source - but ended up paying a £5.000 fine.

In 1996 the European Court of Human Rights held that the fine and the court order violated Mr. Goodwin's right to freedom under Article 10 of the European Convention on Human Rights.

Catherine Zeta Jones Case
Michael Douglas and Catherine Zeta Jones were awarded £14.600 for breach of confidence and an additional £3m in costs after paparazzi pictures of their wedding were published in Hello! magazine.

Campbell v MGN Ltd
In 2002 Naomi Campbell sued Mirror Group Newspapers for publishing a story about her receiving treatment for a drug addiction at Narcotics Anonymous and publishing photographs of Ms Campbell emerging from a treatment session. The paper argued it was in the publics interest they published the story and the photographs - Ms. Campbell had earlier stated that she was not taking drugs, and therefore disclosure was necessary to correct a false public image.

In 2004 it was ruled that it was in the publics interest to report the fact of Ms. Campbell's drug addiction and the treatments she was receiving - but there was no justification for reporting on the details of her receiving it at Narcotics Anonymous, neither of the photographs published alongside the story.

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Further reading on:
Lily Allen v Daily Mail - the Guardian
The Spycatcher Affair - BBC
The Spycatcher Affair - MI5
Bill Goodwin Case
Catherine Zeta Jones Case - BBC
Campbell v MGN Ltd - McNae's Essential Law for Journalists, chapter 23

Confidentiality - secrets and secrecy

'Breach of confidence is based upon the principle that a person who has obtained information in confidence should not take unfair advantage of it' (p.381 McNae's)

Information is not generally confidential but information already in the public domain cannot always be published with impunity

Until 2000, English law recognised no right to privacy

Three areas of concern:

§ State secrets

o Official Secrets Act

o Details of military or intelligence operations

§ Commercial secrets

o Common Law Confidentiality

o People have the right to keep secrets as long as it is not against the public interest

o If somebody who is not allowed passes on secrets – a doctor or a lawyer for example –he/she commits ‘breach of confidentiality’ = crime

o A journalist might get caught between commercial secrets and the urge to reveal and report them – third party breach = crime

§ Might just have to accept the fact that you cannot report – legal duty to respect the confidence

§ Privacy

o ‘Privacy’ law

o Human Rights Act, section 8

‘A person is in breach of confidence if they pass on information that:

- Has 'the necessary quality of confidence'

AND

- Was provided in ‘circumstances imposing an obligation’

AND

- There was no permission to pass on the information

AND

- Detriment is likely to be caused to the person who gave in the information’

http://journalism.winchester.ac.uk/?page=229

If a journalist tries to publish confidential information, and the person who has passed on this information finds out that the information is to be disclosed before it has been published– he/she may be able to get a temporary injunction which will prohibit the publication of that material.

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Further reading on Confidentiality:

http://journalism.winchester.ac.uk/?page=229

Still a very long way to go...

Even though this week turned out to be a bit of a disaster and a catastrophe, we did manage to pull something together and in the very last minute broadcast our weekly bulletin. It was unfortunately not a bulletin up to the standards we have produced before, and hopefully we will not see one like this again. The week started off with a news meeting where not even half of all our reporters showed up - which makes it really difficult to plan the week ahead of us, seeing as noone knows what is going on, and if the reporters not present are working on a story, or not even awake yet...

It is vital that everyone attends the news meetings, the Monday morning debriefs and anything else that concerns us as an organisation, and us as a team. If we aren't fully updated on what is going on from week to week, I don't think we can contribute and produce material up to the standards as we did before the summer. It is understandable that things to happen that concerns for example your private life and due to this you cannot attend a meeting, or even a whole news week - but if this is the case you need to be sure that you catch up on what you might have missed while away, both for your own and everyone elses sake.

The bulletin, as I said, was far from perfect. The few things that sort of saved it was Andy's piece, concerning GBH (Grevious Bodily Harm) and his interview with the victim whos attacker pleaded guilty to the charges, and the sports teams packages that holds the standard week in and week out.

When we are accompanied by guests in the studio, which is a really good and interesting thing that also looks professional, we have to think about the backdrop and the greenscreen, because it looks quite random and sloppy when the same backdrop appears all the time and it looks as if the presenter and the interviewees are jumping between the shots. Is there anything we could do about this?

Also, we need to pay attention and work even harder to improve our technical skills, such as pictures and sound - it is important, once we have got the story put together and the interviewees on camera, to make sure the sound quality is usable. One of the worst things ever is listening to something that you find interesting but you cannot hear the interviewee due to for example wind. In addition to this, I personally think we use too many zooms and need to cut down on these as the human eye is not used to this movement. Rather get more general views, than using the zoom - unless the zoom adds something to the piece.

I think it was a good choice to change presenters to give others a chance to try it out, even though Claire and Tom always make a brilliant job! Seeing as we are at Uni and want to learn everyone should get a shot to try this, and other things they desperately want to try out, as this is really the only opportunity we get to try these things out and find out whether or not we enjoy doing this.

Even though we all felt a bit defeated and quite frustrated after this week, I am sure we will be in next week again, giving it our best and hopefully producing a bulletin we can be proud of again!

Social networking, libel and defences

Defamation occurs in two different forms:

*Libel - which is the written form of defamation

*Slander - which is the spoken form of defamation

When a claimant is suing for libel he or she has to show three things

1) the publication is defamatory
2) it refers to him/her – he/she is identified
3) it has been published

DEFAMATION + IDENTIFICATION + PUBLICATION = LIBEL

So, once a journalist publishes an article that defames Mr. X, who is clearly identified in the publication – the journalist has libelled Mr. X and the outcome is that not only the journalist who has written this article, but also everyone else involved (from journalist, to editor, to publisher and so on) is responsible and can be sued.

This means that the claimant does not have to prove that the statement is actually false or any proof of damage – only that the statement tends to discredit and harm the reputation of him/her.

What is defamation then?
• Lowering someone in the estimation of right thinking people
• Cause them to be shunned or avoided
• Disparage them in their business, trade or profession
• Expose them to hatred, ridicule or contempt

Don’t forget that defamation doesn’t only take place in written format – defamation with pictures, juxtaposition, is just as common. It is important that the journalist pays attention to what he/she includes in their publication so that individuals and companies aren’t identified in the wrong context. Also cropping and altering pictures so they change their meaning falls under the defamation category, and this is quite a common problem today with the new technology that people all over the world use to share their pictures over the Internet - see this Facebook case.

Innuendo - a published statement that might seem perfectly innocent for people who does not have special knowledge about the subject published but will be seen defamatory by people with this special knowledge.

But there must surely be some sort of defence?

Justification – this defence applies to the statement of facts and the matter must be proved true ‘on the balance of probabilities’

Fair comment – an honest held opinion that is clearly recognised as an opinion where the subject commented on is in the public’s interest

Absolute privilege – exists under law and statute and to report this the journalist must be fair (balance) and accurate (no substantial inaccuracies)

Qualified privilege – a defence where the material and the facts are thought to be freely known in the public interest (for example police quotes)

Accord and Satisfaction – an apology or a correction that has been accepted by the claimant – no defence just to publish an apology or correction though – the claimant must prove that he/she is satisfied with it

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Further Reading:

What is defamation?

BBC College Defamation

McNae's Essential Law for Journalists Chapter 17-21