Chapter 1
Essential Law for journalists
The premise that the UK is under a 'free press', is shrouded by the ongoing fundamental judicial struggle of deciding cases upon finding the balance between individual privacy vs. freedom of speech/information.
In 2000, in supporting a convicted prisoner, the House of Lords ruled a press conference amounted to a 'public meeting' and with this gave higher protection for journalists, protecting them from defamation suits.
Lord Bingham is quoted as saying that the press represent members of the public and so are 'the eyes and ears of the public to whom they report.'
Mainly, members of the public only contribute indirectly, i.e. by voting, pressure groups and to seek authorities help. It is up to the media and press to be alerted and informed on the latest news.
Court reporters play an essential, watchdog role on the justice system. The freedom of information allows ideas and information to be communicated. Without this, democratic life would be impossible.
The UK has no written constitution. The rights of individuals are residual. This means that citizens are free to do whatever the law does not prohibit.
Previously, there was no written code to define and guarantee the extent of individual freedoms. Now, since the Freedom of Information Act 2000 and the European Convention of Human Rights 2000, freedoms were adopted directly into UK law. This was the first codification of human rights including freedom of expression. Freedom of expression is restricted by law. It is agreed by journalists and law professionals that a balance is needed to be struck between the ability of the media to be able to expose wrongdoing and for individuals to be able to defend their reputation from baseless attacks.
Defamation, comprising of libel and slander, libel meaning defamatory permanent statements usually in writing and slander concerning temporary statements that are usually spoken, aims to achieve this balance.
Laws make certain, potentially harmful statements illegal i.e. the incitement of racial hatred.
Previously, statutory restrictions of freedom of expression were kept to a minimum. In the last 55 years, however, more restrictions have been imposed i.e. such as court reporting, emanating from the Contempt of Court Act 1981. Before this, it was rare for judges to order journalists to postpone reporting of a criminal trial. Once codified in the act, this was frequent and the principle of open justice was eroded.
The question exists however if this legislation restricting freedom, is too severe?
It was thought that the Human Rights Act 1998 would provide better protection of freedoms for individuals. For example, s.19 requires that the minister introducing a bill into parliament must declare provisions are compatible with the European Convention including commitment to freedoms of expression. This ultimately disappointed journalists.
This did not safeguard freedoms. The Coroners and Justice Bill 2009 increased the potential for a secrecy inquest system. To counter this, The Terrorism Act 2006 introduced the new and vague offence of 'eliciting information' as regards questioning asked about police and military personnel.
As there is no written constitution, freedom of expression depends upon 1. Jury trial and 2. the rule against prior restraint.
Jury trial
Albert Dicey believed that the 'freedom of discussion was little else than a right to write or say anything which a jury of twelve shopkeepers, think is expedient to be said or written.'
Juries are more likely to acquit defendants including journalists for actions in dissent from government policy than judges.
In terms of the rule against prior restraint, a system of government censorship died out in England in 1695. In the 18th century, Sir William Blackstone was quoted as saying that 'the liberty of the press..consists in laying no previous restraints on publication, and not in freedom from censure for criminal matters when published.' This safeguards freedom of expression from forms of censorship, resulting of libel laws, unless exceptional circumstances refuse to grant an application that the media should be prevented by court order from publishing material. After publication, if deemed defamation, an action for damages may be sought.
Injunctions stop publication of material and more likely if damages/breaches or privacy or a breached duty of confidence owed. Firstly, an interim measure will be given before there is a full hearing of whether this is lawful or not. Media gagged by injunctions have to decide if they want to pay for heavy legal costs for a full hearing, but could lose the case.
The UK government have controversially used this for state interests. This was demonstrated by the 1980 Spycatcher cases. Here, the government used laws of breaches of confidence to prevent media publication of stories claiming breached official secrets law. The Contempt of Court Act was used, without a jury.
With the Human Rights Act 1998, the government were responding to media concern about the historic rule against prior restraint, undermined by court judgements. S.12 requires that before an injunction affecting the right to freedom of expression, the court must be 'satisfied that the applicant likely to establish publication should not be allowed'. The option also to argue against it must be given.
The public interest is used when the information's value to society is argued to be particularly high i.e. to warn people of a particular criminal. The public interest criterion used to justify waiving of normal ethical restraints, when reporters gather information. Judges emphasise that public interest does not include of interest to the public i.e. a kiss and tell story.
Sources of law emanate from the 'authorities' and include customs, precedents, statutes and recently the ECHR and courts form new precedents. Customs include the administration of 'law and customs of the realm'. Precedents are common law which are applied and recorded decisions. Higher court's decisions bind lower courts and so shape future rulings. Equity is based upon fairness and impartiality, which refers to a system of doctrines and procedures which have developed over centuries, alongside common law. Statutes and statutory instruments are acts of parliament that enshrine broad principles. Finally, there are European regulations and directives. The European Communities Act 1972 meant that the UK is a member of the European Union and with that EU treaties and EU law are adopted into UK law. This has the aim of harmonisation across member states and it is up to individual states to decide how directives should be implemented through its own legislation. The European Court of Justice clarifies how legislation should be interpreted i.e. if an infringement by a member state has occurred.
The ECHR was a response to repression and genocide of totalitarian regimes. Europe signed the treaty after World War two creating the council of Europe.
The Human Rights Act 1998 integrated the convention into UK law. An individual can require any UK court to consider rights under convention. They now do not have to wait until the ECHR.
The general right of privacy did not exist before 2000 (Art 8), which created a rapid development of case law. The most important part of the Human Rights Act 1998 for journalists is Art 10. This allows the freedom of expression and so to give opinions, receive and impart information and ideas without interference by public authorities.
Restrictions must be justified and so if it is 1. necessary in a democratic society, 2. in the interests of national security, 3. for territorial integrity, 4. for public safety, 5. for the prevention of disorder of crime or 6. for the protection of health or morals, for the protection of reporting rights of others.
Art 10 restrictions must be prescribed by law and not imposed without legal basis or more widely used than law permits.
Art 8 privacy vs. Art 10 freedom of expression - In the case of Re S (A child) (2004), it was held that the D in a pending criminal trial should have anonymity in media trial reports, to shield their son. Art 10 prevented the public interest defence. From this case, Lord Steyn developed several rule for establishing whether Art 8 or Art 10 prevailed;
1. Neither has precedence over the other.
2. If the two articles are in conflict, specific rights of an individual case are focused upon.
3. Justifications for interfering with or restricting each right must be taken into account.
4. The proportionality test must be applied to each. This is the ultimate balancing test.
5. It may also be considered what is more important for society - the public interest or the freedom of expression.
Before the Constitutional Reform Act 2005 - the Lord Chancellor was the head of the judiciary, however legislation ended this role and it is now held by the Lord Chief Justice.
In terms of regulation and self - regulation of the media, commercial TV and radio stations are subject to statutory regulation on who owns them, how programmes are transmitted and content including journalism.
The Editor's code (PCC code) was created and funded by the industry. Gross or persistent breaches risks being fired.
Codes - Clause 4 - i/ journalists must not engage in intimidation, harassment or persistent pursuit.
ii/ must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them.
Clause 10 - i/ press must not seek to obtain or publish material acquired by using hidden cameras or clandestine devices or by intercepting telephone calls etc.
ii/ Engaging in misrepresentation or subterfuge. requires that journalists are brought to court and that individuals must have the option to be found not guilty by a independent minded jurors. This may be seen as a disregard of strict legal position. This has been demonstrated by the 1985 acquittal of Clive Ponting, a civil servant who leaked government information. He was prosecuted for breaching the official secrets law. Since then, there has been no prosecutions under this law, as successive Attorney Generals were unsure if juries would convict.
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