Codes of Practice

Media law

There are several reasons why codes of practice are required:

• to set a benchmark of what is acceptable and what is not
• to keep in touch with contacts.
• to reassure the public - it builds trust between journalists and the audience.

There are three main bodies that set and regulate these codes of practice:

• The Press Complaints Commissioner (PCC) - newspapers and magazines
• OFCOM - broadcasters
• BBC - for staff and licence payers.

A case demonstrating how important codes of practice are is that of Peter Fincham. He was a BBC one controller who resigned after an investigation into footage misrepresenting the Queen. It concerned a documentary trailer which was edited out of sequence and incorrectly, Peter Fincham told the press that the documentary showed the Queen walking out of a photo session 'in a huff'.

The codes are crucial as they guide individuals through ethical issues. Questions such as, how can you go to get the story? what practices are legitimate? and, when do circumstances make a difference? can therefore be checked and answered with a higher degree of accuracy.

The key areas that the codes are used are therefore:

• ethical behaviour
• fair treatment (privacy, crime)
• requirement for accuracy and impartiality.
• to protect vulnerable groups i.e. children.

The PCC

It is considered to be the toothless tiger in comparison with the other codes. This is due to the fact, that it is self-regulated.
On its website, http://www.pcc.org.uk/, it gives brief guidelines and information regarding their stance on the accuracy of reports, the opportunity to reply, privacy, harassment, the intrusion into grief or shock and reports involving children. Rather surprisingly and unlike other codes, it does not include any guidelines on impartiality, which infers that it is less concerned with this.

A controversial and grey area of the PCC code is that some reports are affected or even completely determined by the public interest defence and so it is unclear when exactly and to what extent the rules can be bent.

OFCOM

If the PCC is a toothless tiger, OFCOM is definitely the fierce tiger of the codes as it has clear and established statutory powers attached.
If an error is made, then either the individual or their superior will be fined.
The competition phone - in saga demonstrates this, as stars Ant and Dec, along with programmes Blue Peter and Comic Relief were all caught up in it.
ITV were fined a record amount of £5.6 million, which was reached as it was a percentage of their turnover. This amount turnt out to be a more than even the most serious libel cases.
The BBC was fined £400,000. Still a staggering amount, in so far as claims to broadcasting channels go.
OFCOM also have certain powers that they can enforce upon broadcasters.

These include;

• giving the direction not to repeat the programme.
• corrections to findings must be broadcast, by way of an apology.
• impose fines. These can be up to 5% of their overall revenue. A point of contention concerns how revenue is defined? This seems to be unclear.
• in a very severe case, they can revoke a broadcasting licence. This has never happened, although if it did, it would be more likely to happen to channels with low usage.

On OFCOM's website, it discusses much of the same things as the PCCs, but goes into a lot more depth.

Although acknowledging that the impartiality principle brought up various intellectual difficulties concerning its definition and practice, Evan Davis's case concluded that impartiality was 'probably a public good'.

Impartiality is a requirement for all broadcasters. It is not applicable to any newspaper i.e. the Sun and the Daily Mail would have great difficulty is suddenly they had to adhere to impartiality requirements.
The classic BBC definition of impartiality is that it is the absence of bias or perception and it considers the 'axis of debate'. Examples of these include climate change and economic policy.

In some instances, such as David Irvine's piece on the Holocaust, obviously there is one resounding opinion of those events. However, in terms of producing a balance, the reporter would emphasis that the 'other' view was in the minority.

BBC

The BBC is considered as a wounded teddy bear and has a three-stage complaints process (according to the website):

Stage 1: What happens first when I make a complaint?

• We aim to reply to you within 10 working days depending on the nature of your complaint. We also publish public responses to significant issues of wide audience concern on this website.
• If we have made a mistake we will apologise and take action to stop it happening again.
• If you are dissatisfied with our first response, please contact the department which replied explaining why and requesting a further response to the complaint. If you made your original complaint through this website, you will need to use our web form again. You should normally do this within 20 working days.

Stage 2: If I'm not satisfied with this second reply, what can I do next?

• If you consider that the second response you received still does not address your complaint, we will advise you how to take the matter further to this next stage. You should normally do this within 20 working days
• If it is about a specific item which you believe has breached BBC editorial standards and it was broadcast or published by the BBC, it will normally be referred to the Editorial Complaints Unit. The Unit will independently investigate your complaint (normally in writing), decide if it is justified and, if so, ensure that the BBC takes appropriate action in response.
• Other complaints at this stage will normally be referred to management in the division responsible. For full details of the BBC’s complaints processes please visit the BBC Trust website.

Stage 3: If I still think the BBC has got it wrong what can I do?

• The BBC Trust ensures complaints are properly handled by the BBC and that the complaints process reflects best practice and opportunities for learning.
• Within 20 working days of your response at Stage 2, you may ask the BBC Trust to consider an appeal against the finding. If the BBC Trust upholds an appeal it expects management to take account of its findings.
• You can write to the BBC Trust at 180 Great Portland Street, London W1W 5QZ. Full details of the complaints and appeals processes are on the BBC Trust website.

One of the most recent complaints scandals was that of Russell Brand and Jonathon Ross.
The BBC was fined £150,000 after Brand and Ross left a message on Andrew Sach's answer phone , which OFCOM described as "gratuitously offensive, humiliating and demeaning".

Freedom of Information part two

Records produced on issues relating to public authorities such as city councils and healthcares are paid for by the taxpayer and therefore we, as a nation, own it. The Freedom of Information Act is made for journalists, citizens, taxpayers - no one is excluded from requesting information.

There are 130,000 bodies covered by the act and there are 100,000 freedom of information requests a year, costing around £34 million to produce.

Critics have argued that the act was made purely to make journalists jobs easier, although research has found that only 12% of requests come from journalists.

The Kingsnorth Climate protest concerned the protest arguing for the prevention of a coal - powered station from being built. A report stated that the protest was very violent and that 70 police officers had been hurt. David Laws, a Liberal Democrat MP put in an FOI request and found that only 12 had been injured and only four needed medical treatment. Not as violent as previously claimed!

Andrew Marr's interview with Tony Blair, revealed how much of a big mistake during his time in office, the implementation of the FOI act was. Perhaps this is why it has been seen to have a 'chilling effect' in terms of organisations having to self-sensor themselves for fear of having to reveal information to the public at large. This has the effect of reducing the likelihood of individuals discussing things openly or freely.

Journalists claim that there is at present, a high watermark of FOI requests and that individuals are now resorting to what is known as 'sofa chat'. This is where, as opposed to expressing views or plans in letter, text or email, individuals will have an informal chat, to prevent the likelihood of an FOI request being made.

The BBC is in favour of FOI and state that the basic principle is that:

'Any person making a request for information to a public authority is entitled to have that information communicated to him.'

FOI requests are expressed in either writing or email.

Private companies such as Coca Cola cannot be contacted for FOI requests as although, we buy their products, we do not fund their existence.

Public authorities can say no if producing the records will cost more than £600 (or £450 for smaller authorities) or if the information is exempt:

• Absolute exemption - i.e. court records, security services
• Qualified exemption - i.e. ministerial communications, commercial confidentiality

Individuals must balance the public interest with the need to express information freely. This is however, not specified in law and so must be proven.

In terms of time, organisations must 'respond promptly'. They must send a response within 20 days and then they have 40 days to either produce a record of give reason(s) for why they cannot.

One qualified exemption that is very vague and considered a 'get out' is:

• That information 'intended' for future publication does not have to be published. However, what is considered a reasonable time scale is uncertain and subjective.

If they say no, then the next stages are:

• to request an internal review
•  to visit an information commissioner (six month waiting list)
• to go to an information tribunal
• to lastly visit the High court.

The FOI act is the only reason that the expenses scandal came out. The Daily Telegraph pursued the case and went right up to the High court, spending £150,000.

I and a fellow student then proceeded to send an FOI request to the Winchester and Eastleigh healthcare NHS trust.

We asked them to produce a report regarding the number, age and occupations of patients who had been prescribed anti-depressants and/or Viagra in the years 2007/2008, 2008/2009 and 2009/2010.

Media Law

Copyright

Week 7

The first copyright statute was the British Statute of Anne of 1709. The full title of this was "an act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".
Copyright can be extended to photographs, films, sound recordings, broadcasts and computer technology (including software and databases).
It has been internalised from the late 19th century onwards and today adds both a global and European dimension to the law.
Currently copyright law is governed by the Copyright, Design and Patents Act 1988 which simplifies the different categories of works that are protected by copyright. This eliminates the treatment of engravings and photographs:

• literary, dramatic and musical works (s. 3): they must be recorded in writing or otherwise to be granted copyright, and copyright begins from when recording takes place
• artistic works (s. 4): includes buildings, photographs, engravings and works of artistic craftsmanship.
• sound recordings and films (s. 5)
• broadcasts (s. 6): a transmission by wireless telegraphy which is intended and capable of reception by members of the public.
• cable programmes (s. 7). A cable programme is a part of a service transmitting images, sound or other information to two or more different places or to members of the public by means other than wireless telegraphy. There are several exceptions however, including general Internet use.
• published editions (s. 8) refers to the published edition of the whole or part of one or more literary, dramatic or musical works.

A division also exists between the copyright treatment of 'author works', which are governed by the Berne convention and 'media works', governed by the Rome convention.
Copyright has economic functioning which enables the production emanating originally from information, ideas and entertainment to be rewarding for those authors and publishers who have produced them. Copyright also has the non-economic function of providing a legal system the ability to recognise creativity as an aspect of individual personality.

In Sweeney v Macmillan Publishers Ltd, Joyce estate, which owned copyright in Ulysses and preparatory material , claimed that a new edition of the material produced was an infringement of the author's copyright. It was held that copyright subsisted in each chapter and perhaps every page or even sentence of Ulysses, as it was an original piece. However, as each passage was to be incorporated into a larger work, copyright should be regarded as existing in the whole piece, rather than constituent parts.
In Robin Ray v Classic FM, the high court ruled that a contractor providing services owns the intellectual property in the materials created for their client.
In Coffrey v Warner/Chappell Music Ltd, Chappell wrote the music and lyrics to a song called 'Forever after'. Chappell claimed that the copyright for this song had been infringed by another song. The issue was whether these parts, that were contained in a larger piece of work  could by themselves constitute another work. It was held that, when taken in isolation, three features were not, when taken in isolation, sufficiently separable from the remainder of the song to be considered a musical work in its own right and it did not amount to a substantial part of 'forever after' as a whole.

The general principle is that copyright protects the expression of a work rather than ideas.
Lord Hoffman in Designers Guild Ltd v Russell Williams Ltd stated that the connection between an unpredictable idea into a copyright expression was the degree of originality, skill, labour and time depicted by the author.
Pixx Products v Winstone held that although each case should be judged on their own independent facts, it can be inferred that a higher level of generality or abstraction in terms of the idea of the work, the less likely it is to be protected as such.
In the case of Interlego AG v Tyco Industries Inc, concerned the artistic copyright claimed in engineering drawings modifying an earlier design by the same author, the Lego company. 'Nobody draws a tolerance,  nor can it be reproduced three dimensionally' - Lord Oliver. This is important as literary copyright knows no equivalent to the artistic copyright's concept of 3D infringement.

Fixation refers to the concept set out in the Berne convention which says that copyright subsists in literary and artistic works in terms of 'whatever may be made  of formed of its expression' (Art 2(1)). However, this does allow for the law 'to prescribe that works in general or any specified category of works shall not be protected unless they have been fixed in some permanent form' (Art 2(2)). So, copyright does not subsist in a literary, dramatic or musical work unless and until recorded in writing or otherwise (s.3(2)).
In Norowzian v Arks Ltd (No.2), Norowzian produced a film called 'Joy'. It showed a man dancing to music. The use of an editing technique known as 'jump cutting' made it appear that a man was making sudden changes in positions, that were not possible as successive movements in reality. Rattee J said that 'Joy, unlike some films, it is not a recording of a dramatic work , because, as a result of a drastic editing process adopted by Norowzian , it is not a recording of anything that was or could be danced or performed by anyone...'.

'Originality does not in this sense mean that the work must be an expression of originality or inventive thought. Copyright acts not with the originality of ideas, but with the expression of thought...originality which is required relates to the expression of the thought' - Peterson J.
'What is worth copying is worth protecting' - Peterson J.
 In George Hensher Ltd v Restawire Upholstery (Lanchashire Ltd), it was up to the judge to determine whether a rough prototype for a suite of furniture was a work of artistic craftsmanship. It was held that the prototype was not a work of artistic craftsmanship.
In Green v Broadcasting Corporation of New Zealand, the Privy Council had to grapple with the question of whether a few catchphrases used constantly by the host of a television show ('opportunity knocks') constituted a dramatic work. It was held that it did not amount to a dramatic work.

Effort, skill and labour

In Cramp v Smythson it was held that tables and information printed  on part of a pocket diary had no copyright because selection and appointment had not required the exercise of any judgement or taste by the complier.
In Exxon Corporation v Exxon Insurance, the claim was for a literary copyright in the single word 'exxon'. The failure concerned not being able to achieve the production of a literary work, rather than originality, but the point to be stressed is that effort, skill and labour by itself is not necessarily enough to get copyright.

Derivative works:
A new copyright is to be created concerning alterations to text which must be extensive and substantial.
In Black v Murray, it was held that the changes made in Black's second edition of material had their own copyright, but that Murray's takings were substantial and infringed copyright, but only in relation to the editorial notes.
In Walter v Lane, the House of Lords allowed the Times  newspaper copyright in reporter's verbatim transcript of a speech by Lord Roseberry, a leading politician. The reporters work was derivative, but the creation had involved expenditure of individual skill and effort.
Robertson v Lewis depicted the current judicial view, which tends to favour a reporter's copyright.

On the 14th December 2009, the European commission welcomed the ratification of the World Intellectual Property Organisation (WIPO) copyright treaties. So-called 'internet treaties' have now been introduced which are intended to make the world's copyright laws 'fit for the internet.'
 "Today is an important day for the European Union and its Member States and WIPO. We, as a group have shown our attachment to the international system of protection of copyright and related rights. These two treaties brought protection up to speed with modern technologies. As the technological evolution accelerates, protecting creators and creative industries is more urgent than ever" - Charlie McCreevy, Internal Market Commissioner.

Media Law

Freedom of Information

Week 6

The Freedom of Information Act 2000 came into action in 2005, which created a general right of access to information held by different braches of the government and other public authorities in the UK.

In the past, requests under the Act requiring a disclosure from the Government included (1) the advice given by the Attorney General on the legality of the UK's part in the invasion of Iraq and (2) a draft of the controversial dossier published by the Goverment justifying the invasion.

Although most of the stories that make it onto the national news channels are involving controversial or shocking disclosures provoking a reaction throughout the whole of the country, it is important to remember that local and regional journalists also regularly use this Act to retrieve disclosures. Examples of these have included;

• how many children have been excluded from local schools;
• the number of under-16s that have required local hospital treatment for alcohol-related illness and drug issues.

BBC journalists have have managed to receive disclosures concerning;

• elderly residents of a nursing home who allegedly suffered verbal and physical abuse;
• the fact that only two councils had managed to meet Government targets on the welfare of children in council care.

Heather Brooke, the author of her book Your Right To Know, has summed up the Act in a nutshell by saying: 'While not quite the sword of truth some had hoped, the new laws are an effective chisel against government secrecy and corruption.'

The Act covers about 100,000 bodies in the public sector, which includes to name a few:

• the armed forces;
• national park authorities
• universities, schools and colleges - if in the state sector;
• national government departments and ministries.

There are various public bodies that are exempt from the Act. These include:

• The UK's security and intelligence services - MI5, MI6, and GCHQ.
• Courts and Tribunals.

A public authority who receives a request for information must normally make a response within 20 working days, either giving the information or with an explanation as to why it cannot be supplied. This may be because:

• the cost of retrieving the information is to expensive;
• the public authority does not hold the information;
• the information is covered by exemptions under the Act, and therefore does not have to be supplied.

The Act permits authorities to refuse to supply information in certain circumstances, known as exemptions. There are two types of exemptions; absolute and qualified.

The absolute exemptions are contained in:

• Section 21 - information reasonably accessible by other means.
• Section 23 - information supplied to the public authority by or relating to bodies dealing with security matters.
• Section 32 - court records.
• Section 40 - personal information.
• Section 41 - information provided to the authority in confidence by another party.

By qualified exemptions, the Act means those that if the public authority decides not to supply the information in these categories it must gives reasons, showing how it has applied the 'public interest test', laid down in the Act, in order to justify its refusal to provide the information.
The Information Commissioner lists some of the public interest factors that are likely to encourage the public authority to disclose information:

• Promoting accountability and transparency in the spending of public money.
• Bringing to light information affectingpublic health and safety.
• Furthering the understanding and participation in the public debate of issues of the day.

The qualified exemptions are:

• Section 24 -information which if disclosed is likely to prejudice national security.
• Section 27 - information which if disclosed is likely to prejudice international relations.
• Section 31 - information held by an authority for law enforcement functions.
• Section 35 - information which relates to formulation or development of Governement policy.
• Section 36 - information the disclosure of which is likely to prejudice effective conduct of public affairs. Heather Brooke states: 'This is the weakest exemption, frequently overturned on appeal. A public authority's reliance on it shows it is desperate and grasping at straws.'
• Section 43 - commercial interests.

John Connor Press Associates [a freelance news agency] v Information Commissioner

In this case, the Information Tribunal decided that the National Maritime Museum should in fact of disclosed information regarding its finances concerning its purchase of a particular set of artworks. The Museum had argued that when it received the FOI request, it was in discussion with another artist about a different project and their ability to ensure value for public money would of been prejudicedh had information regarding this of been released. The tribunal decided however that no real and significant risk of such a prejudice existed.

Derry City Council v Information Commissioner

This case involved a request by an employee of the Belfast Telegraph for details of an agreement between Ryanair and the council regarding the operation of the Derry City Airport, including how much Ryanair had paid for the airport facility. As a result of an appeal to the Information Commissioner, the council provided the information by way of a document, although some information was missing. The Commissioner upheld a complaint about the information that was not included.

Recent news stories

Tuesday 26th October 2010

The Ministry of Defence has released details of incidents in which troops attacked Afghan civilians, leading the actions of three British military units in Afghanistan to be questioned.
The Guardian made a request under the Freedom of Information Act 2000, which disclosed that of casualities caused by Brtish troops, two thirds of those involoved troops from these three units, causing concern. These were among thousands of incidents that were spoke about in US army logs posted by Wikileaks, the popular whistle-blowing website.

Sunday 17th October 2010

A FOI request resulted in the British Governor of a Caribbean island to question the ownership of a suggested deal between a company allegedly owned by Conservative MP, Lord Ashcroft and a prime minister. Both are now being investigated over alleged corruption, Foreign Office documents suggest.

Monday 11th October 2010

It been has reported that local councils are using the FOI act as a means of avoiding answering questions. Judith Townend reported that when a news blogger questioned a local council of the Isle of Wight about a broken lift, they were told to try and get the answers to this by putting in a FOI request.
Trinity Mirror's multimedia chief, David Higgerson says he sees one or two example of this a week and beleives this 'can kick a tricky issue into the long grass for 20 days (or longer), by which the public body involved will hope the media agenda has simply moved on.'

Recent legal developments

The Conservative- Lib dem coalition governement intend to extend the powers of the FOI act, in order to increase transparency.
One of the central issues that have been scrutinised recently is the issue of 'aggregating public interest considerations'. In cases and particularly so, where the question of exercising the public interest test is needed, the question arises as to whether;

1. It is available to the public authority to aggregate all the public interest considerations which come up in under the different exemptions in a single public interest balancing exercise; or
2. the authority must undergo discrete public interest balancing tests under each individual exemption.

Media Law

Official secrets, Confidentiality and Privacy

Week 5

Official secrets concern government secrets, which if leaked, can lead to prosecution. The

Official Secrets Act 1911, with various amendments, is the leading statute concerning this area of confidentiality.
The six areas of the government that are protected by the act are:

• security and intelligence
• defence
• international relations
• foreign confidences
• information which might lead to the commission of crime
• the special investigation powers under the Interception of Communications Act 1985 and the Security Service Act 198
 

S.1 of the Official Secrets Act 1911 concerns information that is of use to the enemy and can result in up to 14 years in prison.

S.2 concerns 'silly secrets' of any establishment which comes under the branch of the government i.e. the post office and any internal information that is disclosed.

Clive Ponting
The leading case on this area is considered to be the Clive Ponting case. He was charged with leaking an internal Ministry of Defence document about the General Belgrano, the Argentinian cruiser which British forces sank during the 1982 Falklands war, which killed 360 people. Lady Thatcher's government claimed that the Belgrano was threatening British lives when it sank, but Ponting's document suggested that it in fact was sailing out of the exclusion zone, causing gross embarrassment to the government. Despite the judge indicating that the jury should convict him, he was cleared of any breach under the Official Secrets Act.

The 'Spycatcher' case
In 1987, former MI5 officer Peter Wright published a book named Spycatcher, alleging that in the 1960s, the MI5 conspired to discredit the Labour prime minister Harold Wilson. Thatcher's government claimed that Wright owed a duty throughout his life to the confidentiality of internal government activity. Despite this, Wright published his book in America and Australia, with copies making their way into the UK. The government then tried extraditing Wright, who was now living in Australia. A House of Lords judgement came in 1988, which overturned a blanket injunction across all media outlets from reporting information from former intelligence officers.
Lord Goff said: "In a free society, there is a continuing public interest that the workings of government should be open to scrutiny and criticism."

The Bill Goodwin case
In 1989, an engineering company, Tetra Ltd, who were in financial difficulties had prepared a business plan in order to obtain a substantial bank loan. A copy of the draft plan 'disappeared' from the company's offices and the next day Mr Goodwin received a telephone call from an unidentified source giving him information about the company. This included the amount of the anticipated loan and the forecast results for the company. Goodwin then proceeded to check this and so he phoned the company and its bankers. Tetra Ltd obtained injunctions against the magazine The Engineer and the trainee reporter Bill Goodwin. Goodwin and The Engineer were required to hand over notes disclosing the source of their information. Goodwin refused to do so and was fined £5,000. In 1996, the ECHR held that the court order and the fine violated his right to freedom of expression under Art 10 of the ECHR.

Sarah Tisdall
On a rare occasion one case did result in a prosecution: The young Foreign office clerk leaked details of when controversial American cruise missiles would be arriving on British soil, to The Guardian newspaper. She was found guilty under the Official Secrets Act and sentenced to six months imprisonment, although only serving three.

Commercial secrets which are governed by confidentiality common law.

 Privacy became a fundamental, residual right by the enactment of the Humans Right 1998.
 It is contained under Article 8 of the European Convention of Human Rights (ECHR) which covers the 'right to respect for private and family life'. 
The article states that:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There is no set privacy law in the UK. So the judiciary are left to consider individual cases to determine how the privacy law is England will be determined.
Art 8 is always balanced against Art 10 of the ECHR - the freedom of expression.
In terms of Art 8, invasion of privacy is considered lawful if it has a clear public duty. For example, a policeman exercising an arrest in lawful.
However, problems of privacy may arise if photographs of the offender are published. Invasion of privacy is also legal if consent is obtained. Consent can be achieved in two ways: explicitly and implicitly.

 There are four factors that will 'define' if san incident can be rendered to be an invasion of one's privacy;
 1. If it has the necessary quality of confidence i.e. as Justice Eady commented 'not just tittle-tattle' and;
 2. it has been provided in 'circumstances imposing an obligation' and;
 3. there has been no permission to pass on the information and;
4. it has caused actual detriment.

The landmark area in this case is Campbell v MGN Ltd. The case concerned a photographs of Naomi Campbell coming out of a Narcotic Anonymous meeting. The "Mirror" then published these photographs which included pixilations of the faces of other attendees of the meeting. This was done in order to protect their identities. The headline alongside the photograph read "Naomi: I'm a drug addict". Attached was an article which contained very general details relating to Ms Campbell's treatment for drug addiction, which included the number of meetings that she had attended. Campbell claimed damages for breach of confidentiality and compensation under s.13 of the Data Protection act 1998. Morland J upheld both these claims at trial. The Court of appeal reversed this decision. Ms Campbell appealed this decision. The issue here was whether the publication of the additional information contained in the photographs along with the nature and details of Ms Campbell's treatment was a breach of confidence. In the House of Lords, the decision from the Court of Appeal was reversed by a 3:2 majority and it was held that the additional information was confidential as its publication would have caused substantial offence to a person of ordinary sensibilities in Ms Campbell's position. Ms Campbell's Article 8 rights outweighed the Defendant's Art 10 rights and so as a result the publication of the additional information was an infringement of Ms Campbell's Article 8 rights and she was entitled to damages. In light of this decision, it has been commented that similar to the decision in Reynolds v Times Newspapers, the House of Lords judgements create more questions than answers to how privacy law will work in the future. Giving practical advice to wannabe claimants on the scope of the law relating to privacy is now difficult.

In a Pennsylvanian court, a US couple lost their battle against Google, claiming that the street view technology 'invaded their privacy.' Aaron and Christine Boring accused the giant search engine of privacy violation, negligence, unjust enrichment and trespassing for showing their home in the street view technology, which adds 360-degree-street-level photographs to Google world maps. They were seeking more than $25,000 (£17,400) in compensation and damages. Judge Amy Hay said that the Borings could not prove they have suffered as a result of having their home photographed, as they had not contacted Google asking them to remove the images. In addition to this, the Borings had published their addresses on court documents.

 Privacy law has recently adorned legal websites such as IPkat, as more and more celebrities have been claiming their privacy has been without justification. These have come from the likes of Max Mosely, Sienna Miller and Tiger Woods. The most recent comes from the rumoured soon-to-be latest royal, Kate Middleton, who reportedly instructed solicitors, after photographs of her playing tennis in Germany were published. It is reported that Ms Middleton feels her privacy rights have been infringed and requests that the pictures be withdrawn from the publication and damages to be awarded from the photographers and distributing agency. The European Court of Human Rights later held that the UK's actions had violated the right to freedom of speech. In a neat historical detail, David Shayler - then editor of the Durham University student newspaper - also published some of Wright's allegations.

How the law on qualified privilege has progressed

Week 4

Until fairly recently, the common law only protected those relationships that contained a rigid classification of confidence i.e. between a solicitor and client, a husband and wife and interests involving national security or of the state. To be excluded from providing evidence, confidential communications usually have to fall within these established classes. There is no general privilege protecting communications given in confidence.

The case of Slavutych v. Baker [1975] created a flexibility within the law as it started to look at non - traditional classes of confidential communications in certain circumstances. In this case, a university professor, Slavutych, was invited to fill out a 'tenure form sheet' commenting on his colleague. His head of department indicated that the sheet would be held in confidence and destroyed after its use. Slavutych completed the form with highly derogatory comments about his colleague. University officials then took steps to dismiss him due to these comments. The courts reached the conclusion that the privilege was satisfied in the circumstance and the document, which was in deed prepared in confidence, but feel outside the strict perimeters surrounding confidentiality, was privileged and so inadmissible in evidence.
In reaching this decision, the courts considered Wigmore's four conditions, as necessary for the establishment of privilege. These are;

1. the communications must originate in a confidence that they will not be disclosed;
2. this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
3. the relation must be one which in the opinion of the community ought to be sedulously fostered, and
4. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

Different approaches have been adopted by the courts. The broadest of which is that 'it is left open to the courts, in the exercise of their judicial discretion, to recognise and give effect to new categories on privilege of a case-by-case basis.

Other countries such as Canada have been more reluctant to adopt this approach as demonstrated in the case of Moysa v. Alberta (Labour Relations Board). In this case, a journalist, relying on Slavutych, claimed that she had a right to protect her sources of information on the basis of qualified privilege. The Supreme Court of Canada stated that: "Even if such a qualified testimonial privilege exists in Canada this appeal must be dismissed as the appellant here does not fall within any of the possible tests which have been proposed as establishing the conditions necessary to justify a refusal to testify".

Sinclair J.A. characterised the issue before the Alberta Court of Appeal as: "In what circumstances does the law preclude the admission of evidence simply because its source is confidential?"
"It is clear, nevertheless, that the types of evidence to which privilege will be ascribed have not been settled once and for all." He then quoted from Lord Parker C.J. in Attorney-General v. Clough and stated that
'To adopt the words of Lord Parker C.J. in the circumstances of the present case, is it clear that public policy demands a recognition of the appellant’s claim to privilege because the tenure form sheet was secured from him on a confidential basis?'

The courts have found that claims to privilege with respect to the following confidential communications did not satisfy Wigmore’s four conditions: documents gathered by a hospital in the course of inquiring into an allegation of medical malpractice, (Finley v. University Hospital Board, supra) a report prepared by a committee of the College of Dental Surgeons investigating a complaint against a dentist, (Bergwitz v. Fast, supra) a special nursing audit committee report, (British Columbia (Attorney General) v. Messier) documents evidencing complaints made against a psychiatrist in the possession of the College of Physicians and Surgeons, (F. v. a psychiatrist ) statements given to investigators of the Toronto Stock Exchange, (Merrill Lynch v. Granove) internal police reports (Bass v Toronto Star Newspapers Ltd) a videotape of a family counselling session (R. v. S. (R.J.), supra) and a confession made to a church pastor ( R v Fosty, supra).

With this new 'flexibility' and extension to the law, should bring further opportunities for journalists to report on the crucial matters, the public yearn for more information on. As the 21st century continues, the freedom of expression vs. privacy battle rages on, with the power struggle seeming to favour freedom of speech and so in turn the increased ability for journalist's to report on these crucial matters.

Media Law

Week 4

Privilege

So why does it matter? Routine reports are protected as they allow us as journalists to write or broadcast or  material which may be defamatory or untrue, or even both at the same time. It gives us protection from being sued.

There are two types of privilege;

1. Absolute
2. Qualified

Absolute privilege concern Acts of Parliament, Hansard and also court reports, providing they are taken in a fair, accurate and contemporaneous manner.
Qualified privilege is available for material that is taken in a fair and accurate manner, that is without malice and is on a matter of public concern. 

The Defamation Act 1996 sets out two levels of qualified privilege;

1. With or 'subject to' explanation or contradiction
2. 'Without' explanation or contradiction. Clarification such as notes need to by carried by someone.

In terms of  part. 1(i) this covers;

(i) public proceedings in legislature anywhere in the world
(ii) public proceedings in a court anywhere in the world
(iii) public proceedings of a public enquiry anywhere in the world
(iiii) public proceedings of an international organisation or conference i.e. the Copenhagen climate summit

Part 1 (ii) covers such things like an extract of a document or register, which is legally required by the public.

Part 2 covers instances of;

(i) public meetings
(ii) local councils and committees
(iii) tribunals, commissions, inquiries

 Associations such as the Football Association and the General Medical Council have a different status. The proceedings are not covered by legal paragraphs and therefore the public are excluded.


In the 2000 case of Turkington and Others v Times Newspapers Ltd, a meeting was not a public meeting just because the public attended without objection. A press conference where the public only had invitations was not as such public and a report of it was not protected under the act.
Written handouts are also covered under this law.

Journalists must recognise the risk of live broadcasts. Individuals who are suddenly newsworthy, in highly charged and emotional situations may blurt out defamatory statements and so a 'delay button' should be used to prevent being sued. The audience should be made aware of this.

No privilege is granted outside of the main proceedings. If defamatory, spontaneous comments shouted from the public gallery cannot be reported. Otherwise they can. These add the drama and 'colour' to the story.

George Galloway MP v Telegraph Group Ltd [2004]

The news headline read 'Telegraph reveals damning new evidence on Labour MP'. When sued, the paper did not claim the allegations were true but claimed the headline was merely an expression of opinion. The judge however said that 'damning' had a plain meaning, 'that is to say, that the evidence goes beyond a prima facie case and points to guilt.' The MP therefore won his case.

 Loutchansky v Times Newspapers Ltd [2001]

The Times published an articles about an international businessman, Grigori Loutchansky. The stories alleged that he controlled a major Russian criminal organisation involved in money-laundering and also the smuggling of nuclear weapons. The newspaper agreed the stories were defamatory, but argued it had a defence of qualified privilege. The defence was rejected and the case then went to the Court of Appeal, who agreed that the articles dealt with matters of public concern (point 2). To implicate him in this misconduct is highly likely to be very damaging to his reputation. Therefore a proportionate degree of responsibility was needed by the journalist and the editor. They failed to show this, in particular because the allegations were vague, the sources were unreliable, sufficient steps had not been taken to verify the information , and no comment had been obtained from Loutchansky before publication. The reporter claimed he had copied an interview down with a very important source, although he said he must of wrote this down on a scrap of paper and must of subsequently thrown it away. The Appeal court rejected the newspaper's appeal.

Scenario

A farmer, John Wagstaff, has put in a planning application to build six wind turbines on his land near Stockbridge.
Many residents are strongly opposed and call a public meeting to fight the plans.
The turbines will be sited adjacent to a golf club. Members there are already saying the noise will ruin their enjoyment.
Your WINOL news editor asks you to go to the meeting.
Emotions are running high - especially when the newly elected chairman of the SOS campaign group (Save Our Stockbridge) passes around artists impressions of what the turbines will look like on the hill above the town.
Henry Fisher (the chairman) tells the meeting:
'Mr Wagstaff says he's a supporter of green energy. In fact, this is all about making money and he doesn't give a damn about ruining the skyline above one of the most beautiful towns in Hampshire.'
Jim Eagle, golf club secretary, says :'This will ruin our course. It's environmental vandalism on a massive scale. No respect for our members or the countryside. If this happens we can forget the Ryder Cup bid.'
Mr Wagstaff isn't at the meeting, but one of his employees Geoff Salt is. He says: 'I'm no expert on green energy, but Mr Wagstaff has told me that without the income from the turbines, he might have to pack it in, and I'll be on the dole. So I think it's a good idea.'
There's an overwhelming vote to lobby the council against the turbines, and to start a petition.
After the meeting has ended, Mr Eagle comes up to you and says: 'The truth is that Wagstaff was black-balled by the committee last year and this is his revenge. Not a lot I can say, but many of us think he was routinely handing in falsified cards. Never settled his bar bill either. Not our sort at all.'
Both Henry Fisher and Jim Eagle's quotes are acceptable and ready for publication as they are both non - defamatory. The former is an honestly held opinion and the latter, a comment.
The third quote by George Salt ensures a fair balance of opinions are made. The reporter will be required to get in contact with Mr Wagstaff and so there will comments from both the employer and the employee.
The fourth quote, however, from Mr Eagle is defamatory. It certainly is not fair, as Mr Wagstaff is not there to defend himself and so the accuracy of the statement is under question. The statement is also made with malice in mind and is of no concern to the public. Therefore the quote would fail on both the grounds of absolute privilege and qualified privilege.

Media Law

Week 3
Further Reading

Defamation and Libel

A claimant has to show the court three things when suing for libel:

1. the publication is defamatory
2. it may be reasonably understood to refer to him/her, i.e. 'identification';
3. it has been published to a third person.

In terms of identification, the test in defamation law of whether the published matter identified the person suing is whether it would reasonably lead people acquainted with him/her to believe that he/she was the person referred to. In 1826, a judge said 'It is not necessary that all the world should understand the libel; it is sufficient if those who know the claimant can make out that he is the person meant'. This is still the law today. During the 1980s and the 1990s the Police Federation fought 95 libel actions , winning all of them and recovering £1,567,000 in damages. In one case, the Burton Mail paid £17,500 compensation plus legal costs to a woman police constable who featured anonymously in a story following a complaint about an arrest. It was argued that the story's details identified her.

Statute law
 
The Defamation Act 1996

S.1 allows newsagents and booksellers the defence of innocent dissemination, whereby they say they are merely the conduit for the passage of the words complained of and thus not responsible for them. However, this defence was not available to others such as distributors and broadcasters. The 1996 act extended this and now applies to the author, editor or publisher who took reasonable care in relation to its publication and who did not know and had no reason to believe that whatever part he/she had in the publication caused or contributed to the publication of a defamatory statement. This is also available to internet service providers, which provide as 'host' a service to allow individuals and companies to publish their own content on the their websites.

When deciding this, the court shall consider;
1. the extent of his/her responsibility for the content of the statment or the decision to publish it;
2. the nature or circumstances of the publication and
3. the previous conduct or character of the author, editor or publisher.

S.5 of the Act states that, in a defamation case where two or more 'charges' have been published against the claimant, 'a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the [claimant's] reputation, regarding the truth of the remaining charges.'

A defence is provided known as 'offer to make amends.' A defendant must make a written offer to make a suitable correction in a reasonable manner, and to pay the claimant suitable damages It can only be used the defendant did not know and had no reason to believe that the statement complained of referred to the claimant and was false and defamatory of him. The claimant has the 'onus' of showing that the publication was not innocent. Bearing this is mind, the defendant will have a defence, if the offer of amends is rejected.

Reduced the limitation period from three years to one year. This defence whereby proceedings were not started within the limitation period constitutes a complete defence, unless there is a new publication of offending material. Reporters should date their notebooks and store them carefully in case they are required to produce them in court.

The Civil Evidence Act 1995

The act makes hearsay evidence acceptable in court subject to certain conditions. For example, where the statement is contained or comprised in a document, it needs to be signed in order to make it admissable.

The Obscene Publications Act 1959

This in a large way replaces the common law offence of libel law, and introduced a defence that the publication was 'for the public good...in the interests of science, literature, art or learning, or of other objects of public concern.'


Case Law




Newstead v London Express Newspapers Ltd [1940]

The Daily Express had reported that 'Harold Newstead, a 30 - year - old Camberwell man', had been sent to prison for nine months for bigamy. The paper was successfully sued by another Harold Newstead, who worked in Camberwell, and who claimed that the account had been understood to refer to him. The claimant claimed that if the words were true of another person, which they were, it was the duty of the paper to give a precise and detailed description of that person, but the paper had 'recklessly struck out' the occupation and address of the person convicted.

Riches and others v News Group Newspapers Ltd [1986]

A case in 1986 concerned a reference published by a newspaper to an allegation that detectives at Banbury CID had raped a woman. The newspaper did not name those allegedly involved, and was successfully sued for reference to this group, which comprised only of 12 detectives.

Dow Jones and Co Inc v Yousef Abdul Latif Jameel [2005]

In 2005 the Court of Appeal held that it would be an abuse of process (resulting in the claim being rejected in court) for a claimant to bring a libel action over material on the internet unless 'substantial publication' in England could be shown. The court made reference to an article from a US - based internet service which was only downloaded by five people in England, three of whom were in the claimant's camp (including its lawyer), and the other two were unknown. The court did not consider that the article required provision of a fair trial and public hearing in relation to an alleged infringement of rights when it was not considered to be 'real or substantial.

Amoudi v Brisard [2006]

It will not be assumed by the court that the internet publication is necessarily regarded as substantial publication.

Crookes v Wikimedia Foundation Inc, [2008]

A Canadian court ruled that hyperlinks to articles containing defamatory material did not amount in that individual case, to substantial publication of defamatory statements by the publisher of the article containing the hyperlinks.

Birmingham six case

In 1993 and 1994 newspapers paid damages to defendants in the Birmingham six case, who had been sentenced to prison for terrorism but were later cleared on appeal. Police officers were accused of fabricating evidence, but prosecution of those officers involved, were never brought to court and so were abandoned. After this, the Sunday Telegraph reported one of the three officers, as referring to the Birmingham six incident as: 'In our eyes, their guilt is beyond doubt'. An article was published by the Sun newspaper based upon the Sunday Telegraph's interviews. It later carried an apology and was reported to have paid £1 million in damages.

Duke of Brunswick case

This 1849 case concerned the Duke who sued a newspaper for defamation after sending his butler to buy back a copy. These days, he would be able to call up the archive version on the internet. It is normally a defence to a libel action that it was not published until one more year after the publication. However, the law takes the view that every time an article in an archive is accessed this amounts to a new publication and can give rise to a new action. The Court of Appeal in 2001 confirmed that the rule in this case was still the law and did apply to the internet.

Jim Carr case

In 2006, a businessman, won a second libel suit form the Sunday Telegraph over the exact same story, s the newspaper had mistakenly left the piece accessible through its website. Already receiving a 12,000 payout plus an apology, he later received a further £5,000 in damages as a result of the internet based story.

The MORI and BBC case

In 1999, the BBC was sued by the research firm MORI and the head of its company. Bob Worcester, for defamatory remarks made by the controversial politician Sir James Goldsmith, during an interview that went out live on the radio. The BBC said that it had a defence under section 1 - but did it take 'reasonable care'? It was argued that the BBC should have known that he was likely to say something which sparked controversy, perhaps even defamatory, and therefore should of used a 'delay button' at least. the case was settled before the jury could reach a verdict.
I believe that the BBC should of completed sufficient research, if unaware of their subject's interview style and personality in order to prevent this situation arising. Therefore, if this had of reached court, I believe the jury would of ordered the BBC to pay damages to the MORI.

Godfrey v Demon Internet Ltd [2001]

The Internet service provider was successfully sued for matter on a newsgroup it hosted after the matter was left there for about ten days, after a complaint was made. The claim was for the damages for those ten days.

Gillian Taylforth case

The Sun newspaper successfully used the defence of justification when sued in 1994 by Gillian Taylforth , the television actress, and her boyfriend after it published a front - page story headlined 'TV Kathy's 'sex romp' on A1' saying the couple had indulged in oral sex in a parked car. The Sun received confirmation from the press office that her boyfriend had been cautioned for indecency, and when sued the paper 'joined' the police in the defence, with the result that the main defence witness was in fact the officer who claimed he saw the event. The jury found for the paper 10-2.

Jeffrey Archer case

In 1987, the politician and novelist was £500,000 against the Star newspaper, which said that he had paid a prostitute for sexual intercourse. He also sued the News of the World for a story headlined 'Tory boss Archer pays off vice girl'. It was true that Archer had paid £2,000 to the prostitute to go abroad in order to avoid scandal but he claimed the article implied that he had had a sexual relationship with her. The paper argued that it had never intended such an allegation, but it had to pay Archer £50,000 damages in an agreed settlement. In 2001, he was found guilty of perjury and perverting the course of justice in the libel action and jailed for four years. He ended up repaying the damages to the two papers, and their costs.

Lewis v Daily Telegraph, and Lewis v Associated Newspapers Ltd [1964]

When considering reports linking a claimant with criminal conduct, the courts recognise three levels of meaning:

1. the report may mean the person is guilty of the criminal offence (a level 1 meaning);
2. or he/she is reasonably suspected of the offence (level 2);
3. or there are grounds for an investigation (level 3)

These were set out by Lord Devlin in a case in which two national newspapers said the City of London fraud squad was inquiring into the affairs of a company. The statement was true, but the claimant said the words meant (by implication) that he and the company were guilty of fraud, or at least were suspected of fraud, and heavy damages were initially awarded against the newspapers. On appeal, the House of Lords ruled that the words were not capable of meaning that fraud had been committed, but they were capable of meaning that the claimants were suspected and that whether they had this meaning or not should be left to a jury.

Shah v Standard Chartered Bank [1999]

The reason it is defamatory to say a person is reasonably suspected of an offence is that it implies conduct on the person's part that justified that suspicion being made. So, if you are to succeed in a plea of justification you must show conduct on the person's part giving rise to the suspicion. It is no use saying other people told you about their suspicions.

Elaine Chase v News Group Newspapers Ltd [2002]

In 2003 the Sun newspaper had to pay £100,000 damages to a nurse for a story headlined 'Nurse is probed over 18 deaths'. The police had been investigating the circumstances of the deaths of a number of terminally ill children, who the defendant had treated but they concluded (after the Sun's story) that there were no grounds to suspect her of an offence. The newspaper attempted to show that there were reasonable grounds for suspicion, but the Court of Appeal said the paper was pretty much solely relying on the fact that allegations were made against the nurse to the police and the hospital trust. The newspaper only focused upon an allegation made after publication, and the court said that could not be taken into consideration.

Lowe v Associated Newspapers [2006]

In terms of fair comment, the judge gave an example of a publication of opinion which is protected by the defence of fair comment. 'Such conduct is disgraceful', is merely an expression of your opinion , your comment on the person's conduct. If on the other hand, you said 'he has been guilty of disgraceful conduct and do not state what that conduct was, this is an allegation of fact for which there is no defence, other than justification or privilege. The rule was relaxed in this case where Mr Justice Eady said a defendant was not confined to relying in support of the comment on facts actually stated or alluded to in the article itself.

Silkin v Beaverbrook Newspapers [1958]

A defendant must satisfy the jury that the comment upon established facts represents a view that a person could honestly hold on those facts. Lord Diplock stated 'people are entitled to hold and express strong views on mattes of public interest, provided they are honestly held. They may be views which some or all of you think are exaggerated, obstinate, or prejudiced.'

Tse Wai Chun Paul v Albert Cheng, Court of Final Appeal, Hong Kong [2001]

Lord Nicholls explained that when fair comment was being considered as a defence, malice covered a situation where a defendant 'put forward as his view something which, in truth, was not his view. It was purely a pretence. The law does not protect such statements.'

Branson v Bower [2001]

Bower, commenting on the attempt by Branson to run the national lottery, said: 'Sceptics will inevitably whisper that Branson's motive is self - glorification.' Bower claimed, when sued, that this was fair comment but Branson argued that it was factual allegation ( that his bid to get the national lottery stemmed from a questionable intention) and that this was untrue. Lord Justice Latham in the Court of Appeal said that comment was 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation. He agreed with the lower courts in that Bower was merely expressing opinions about Branson's motives.

Convery v The Irish News Ltd [2007]

The fair comment defence suffered a setback when a libel jury in Northern Ireland awarded £25,000 damages to the owner of a restaurant called Goodfellas over an unpleasant review in the Irish News. The award was quashed on appeal in 2008, with the Northern Ireland Chief Justice , Sir Brian Kerr, saying:
'Only if the jury has a clear understanding of what is capable of constituting comment, can it address the thorny issue of whether the facts on which comment is based are capable of justifying the comment made.

Sir Elton John v Guardian News and Media Ltd [2008]

Sir Elton John sued the Guardian for libel over a spoof article written by Marina Hyde under the headline 'A peek at the diary of...Sir Elton John'- a regular feature in the paper's Weekend section satirising the activities of celebrities. John claimed the article made his commitments to the Elton John Aids Foundation appear insincere and that once the costs of his White Tie and Tiara fundraising  ball were met only a small proportion of the funds raised would go to good causes. The Guardian's defence was that the words were merely comment and could not have the meaning claimed by John. Mr Justice Tugendhat accepted the Guardian's argument that the words were a form of teasing and if they were really trying to unearth a story about the ball's costs, it would not of used humour to do this.

Cassidy v Daily Mirror Newspapers Ltd [1929]

Cassidy was at the races and was photographed with a woman he described as his fiance.This was how she was described in the caption to the photograph used in the newspaper. Cassidy, however, was already married, and his wife sued on the ground that people who knew her would assume she had been 'living in sin.'

Muhamed Veliu v Xhevdet Mazrekaj and Skender Bucpapaj [2006]

A journalist here won damages over an article that accused him of being involved in bomb attacks in London the previous year. He sued both the publisher of the newspaper, that had used the story and its editor. The publisher made an unqualified offer of amends, but the editor 'did nothing'. The judge held both the publisher and the editor were jointly liable for the damages. A 30% discount was applied to the publishers, setting their maximum liability to £120,000. He said the claimant should receive £175,000 and made the editor liable for the whole amount.

Reynolds v Sunday Times Newspapers [2000]

In its defence, the Sunday Times said that, in keeping with Article 10 of the ECHR, the public interest in political issues and the conduct of elected politicians should be protected by qualified privilege at common law. In the first instance, the Sunday Times lost the case, but in 1998 in Reynolds v Times Newspapers [1998] Lord Bingham in the Court of Appeal said: 'As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty. Reynolds defence was introduced. When the case reached the House of Lords, though Times Newspapers lost, the court confirmed the principle that the media do have a duty and the Reynolds defence was introduced.

Lord Nicholls set out a list of circumstances to consider when when looking at the defence;

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter, News is often a perishable commodity.
7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.
8. Whether the article contained the gist of the claimant's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
Sticking purely to these ten points was considered to narrow by the House of Lords and so the whole context of the case needs to be looked at.

Jameel v Wall Street Journal Europe [2006]

Lord Bingham in the House of Lords said that the matter published had to be of public interest and the story had to be the product of 'responsible journalism'.

Leeds Weekly News case

The existence of the reporter's notebook was crucial in the successful defence. Being able to produce good, accurate notes is important when trying to show the 'steps taken to verify this information (point 4) when using the Reynold's defence.

GKR Karate Ltd v Yorkshire Post Newspapers Ltd [2001]

A judge found for the Leeds Weekly News, a free newspaper, which was being sued for an article warning readers against the conduct of door salesman selling karate club membership. It appeared on the front page under the headline, 'Give em the chop' and a sub-head, 'Doorstep salesmen flog dodgy karate lessons'. The fundamental question was one of public interest. Was it in the public interest for the newspaper to publish information as it did? The judge said he found the reporter to be an honest, sensible, and responsible person on whose evidence he could rely on and who was naturally concerned by the dangers, particularly to children, resulting from this organisation.

Al - Fagih v HH Saudi Research and Marketing (UK) Ltd [2001]

The Court of Appeal ruled that a newspaper was entitled to rely upon the Reynolds defence where it has reported, in a completely objective way, an allegation made in the course of a political dispute by one of the opponents. The defence was not lost merely because the newspaper had not verified the allegation. At trial, the judge rejected the defence of qualified privilege. The journalist had made no attempt to verify the truth of the allegations (point 4). However, on the facts, the failure to do this did not outweigh the public interest in publication.

Christopher Roberts and Barry Roberts v Gerry Gable, Steve Silver and Searchlight Magazine [2006]

Here, it was indicated that the defence of 'neutral reportage' could be used even when. by contrast to the above case, the journal and the staff were clearly not neutral. The test is not the stance the journalists take, but the way the story is reported. National party members failed to win their bid to sue against the anti-fascist magazine Searchlight, its editor and a journalist for libel when a judge upheld a qualified privilege defence based on the doctrine of reportage. A report made in the BNP's bulletin that the two claimants had threatened to 'kneecap, torture and kill' BNP members and their families. The defendants claimed they had a defence of qualified privilege because they were simply reporting the allegations. without adopting or endorsing them. 

Prince Radu of Hohenzollern v Housten and Another [2008]

An appeal was rejected  to overturn Mr Justice Eady's decision to strike out a Reynold's defence to an action by the Prince,

Media Law

Week 3

Defamation and Libel

Defamation cases can cost thousands, even millions of pounds and despite years in the industry, a momentary lapses can quickly end a career.

What is defamation?
If what you write about someone 'tend' to';
1. lower them in the estimation of right thinking people
2. causes them to shunned or avoided.
3. disparages them in business, trade or profession.
4. exposes them to hatred, ridicule or contempt.
The UK bar is very low and so is easier for claimants to succeed and win their case.

Artemus Jones case

It is also possible to defame someone you did not know exists. The classic English case was that of Artemus Jones. A journalist wrote an article about a factual event but invented a character he called "Artemus Jones", to add human interest. The journalist probably chose that name because it was so unusual. Unfortunately, there was someone with this name in real life, a London lawyer, and he sued the paper for a lot of money claiming that his friends had made fun of him believing that the article had been about him.
There is always this danger, so a journalist should always be extra careful in inventing fictional names or pseudonyms for people who do not want their real name used.

Defamation via pictures
This is a common danger in TV. The careless use of background shots with voice over can be defamatory. People or companies must not be identifiable in certain contexts e.g. child abuse, fraud.
Be careful with 'imprecise shots' e.g. a photo of two front doors and two people, (one suspect and one policeman) and it is not made clear which person is which.

Reputation and Meaning
A person or companies reputation is precious. Especially if you are in the public eye, have money or both!
The meaning is interpreted by the 'reasonable man'.
Both inferences and innuendos that can be made, may be hazardous and the whole context must be assessed.

Michael Foot (meaning case)

In 1995, The Sunday Times carried a story which alleged that Michael Foot, the former labour leader, had been an agent of influence for the KGB, working under the code-name of agent Boot. A former KGB man, Oleg Gordievski, had provided most of the material for the article. Michael Foot was deeply hurt by the allegations and he issued a writ for libel.
The Sunday Times admitted that it had named Mr Foot as an unwitting agent of influence, but the newspaper said that it honestly believed that it was not accusing Mr Foot of being a KGB spy. To most readers though, or in legal terms, to the reasonable man or woman, the article’s meaning was that Mr Foot was a spy who had supplied information to the KGB. Michael Foot won the case and was awarded substantial damages.

Lord Gowrie (Innuendo case)

Even if a statement seems innocuous on the surface, it could be interpreted as defamatory to those with special knowledge.
In 1986, Lord Gowrie, a former Cabinet Minister sued The Star newspaper over an article which implied that he took drugs.
He had resigned the previous year from his post as Minister for the Arts, and The Star newspaper, under the headline 'A lordly price to pay', stated: "There's been much excited chatter as to why dashing poetry-scribbling Minister Lord Gowrie left the Cabinet so suddenly. What expensive habits can he not support on an income of £33,000 ? I'm sure Gowrie himself would snort with disgust at suggestions that he was born with a silver spoon round his neck."
Lord Gowrie's counsel argued that: "The reference to Lord Gowrie's expensive habits, the suggestion that he was unable to support those habits on his ministerial salary, the use of the word 'snort' and the reference to a 'silver spoon around his neck' all bore the plain implication, to all the many familiar with the relevant terminology, that Lord Gowrie was in the habit of taking illegal drugs, in particular cocaine, and had resigned from the Cabinet because his ministerial salary was insufficient to finance the habit."
Lord Gowrie won 'substantial damages'.

Libel Defences

1. Justification - A statement is true and can be proven to be so.
2. Fair Comment- An honestly held opinion based upon facts of privileged material, that are in the public interest.
3. Absolute privilege - concerns court reporting.
4. Qualified privilege - concerns police questioning.
5. Baine and antidote refers to the defamation being removed by the context of the publication.
6. Apologies and clarifications
7. The Reynolds’s defence- material must be;
(i) In the public interest
(ii) A product of 'responsible journalism'
Gordon Ramsay has been quoted as saying 'This restaurant has seen more action than Paris Hilton's knickers. This is unlikely to make it to court as it can be proven that Paris Hilton has had lots of boyfriends and there is strong evidence to prove this.

Reynolds vs Sunday Times Newspaper Ltd

The case provided the Reynolds defence, which can be raised where it is clear that the journalist had a duty to publish an allegation even if it turns out be wrong. In adjudicating on an attempted Reynolds defence a court will investigate the conduct of the journalist and the content of the publication. Albert Reynolds had been the Taioseach (Prime Minister) of Ireland, until a political crisis in 1994. The Times had published an article in Ireland to the effect that Reynolds had misled the Irish Parliament; this article was then published in mainland UK. However, the UK version omitted an explanation that Reynolds had given for the events, which had been printed in the original article. Reynolds brought an action for defamation. The defences of justification and fair comment were unavailable, given the factual nature of the article. Times Newspapers Ltd appealed that the defence of qualified privilege be considered; the Court of Appeal denied this. The appeal to the House of Lords was therefore on the matter of whether the defence qualified privilege be extended to cover the mass media.
Lord Nicholls, speaking for the majority, upheld Lord Bingham's judgement, adding to it a list of ten criteria against which attempts to use the Reynolds defence should be judged:Elton John has ended his libel claim against the Guardian newspaper over an article that poked fun at his celebrity fundraising.In December a high court judge struck out his claim for libel, agreeing with the Guardian that the article did not carry the factual meanings that John had claimed.







The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern. Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
1.The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
The nature of the information, and the extent to which the subject-matter is a matter of public concern.
2.The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
The steps taken to verify the information.
3.The status of the information. The allegation may have already been the subject of an investigation which commands respect.
4.The urgency of the matter. News is often a perishable commodity.
5.Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
6.Whether the article contained the gist of the plaintiff's side of the story.
The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
7.The circumstances of the publication, including the timing.This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.Jameel vs. Wall Street Journal (2005)

Five law lords unanimously overturned high court and appeal court libel judgments against the Wall Street Journal Europe in December 2003 and quashed damages awards totalling £40,000 to a Saudi billionaire businessman, Mohammed Jameel, and his companies over an article which said the Saudi Arabian authorities were monitoring the bank accounts of prominent Saudis for evidence of supporting terrorism.
The judges ruled that the lower courts had been interpreting an earlier protective ruling in a case brought by the former Irish taoiseach Albert Reynolds too restrictively and set out the principles that should apply in future libel cases.
They held that where the topic of a media investigation was of public importance, relevant allegations that could not subsequently be proved true should not attract libel damages if they had been published responsibly. In deciding whether the publication was handled responsibly, judges with "leisure and hindsight" should not second-guess editorial decisions made in busy newsrooms.
Lawyers said the ruling considerably reduced the "chilling effect" libel law had long exerted on freedom of speech. Lord Hoffmann, delivering the leading judgment, said the question in each case was whether the media outlet "behaved fairly and responsibly in gathering and publishing the information".
If the journalists did behave fairly and responsibly and the information was of public importance, the fact that it contained relevant but defamatory allegations against prominent people would not permit them to win libel damages.
Lady Hale, one of the law lords, said: "We need more such serious journalism in this country and defamation law should encourage rather than discourage it."

Oryx and the BBC case

'The Oryx Group has won a first court victory in its libel case against the BBC over an allegation that it funded Osama bin Laden and the al Qaeda network, with the amount of damages to be paid yet to be decided by the court.
The BBC broadcast a report called 'The diamonds that pay for bin Laden's terror', and then issued an apology on November 19 2001. "The BBC never had a shred of evidence for its broadcast. The broadcast injured Oryx. Our reputation suffered and we sustained enormous financial damage," explains Geoffrey White, Deputy Managing member.'

No defences exist when;
1. You have not checked your facts.
2. You have not 'referred up'.
3. You have not put yourself in the shoes of the person or the company who you write about.
4. You have got carried away by a 'spicy story'.
5. You are not bothered to wait for a lawyer's opinion.

Recognise Risk

Who am I writing about and could they sue?

The Elton John and Marina Hyde case

'Sir John's law firm, Carter-Ruck, today decided not to challenge last week's court of appeal decision to refuse to grant leave to appeal an earlier high court judgment in the Guardian's favour.
The singer had been seeking an apology and damages after he was the subject of the A Peek at the Diary Of … column written by Marina Hyde for the Weekend magazine supplement of the Saturday Guardian on 5 July last year.
John had accused Hyde of defamation and using a "gratuitously offensive, nasty and snide tone" in the piece.
The singer claimed that the article poked fun at his celebrity fundraising, suggested his commitment to the Elton John Aids Foundation was insincere, and that his annual fundraising White Tie and Tiara Ball was used to meet celebrities and for self-promotion rather than raising money for his charity.

Mr Justice Tugendhat also refused John permission to appeal and ordered him to pay costs.
Carter-Ruck then took the case to the court of appeal. Last week that court rejected Carter-Ruck's written application seeking leave to appeal, giving the law firm one week to launch a further challenge, which expired today.'

Is what I'm writing potentially defamatory?


Do I have a defence?Lawyers never mind being asked and it is crucial to avoid being involved in a libel case.

Subsequently, Publication + Identification + Defamation = Libel!

Scenario 1

When does a routine story become defamatory?As a reporter you visit a block of flats where the tenants say they are being ripped off by a social housing company.
They claim the company has failed to fix the heating, the drains are blocked and the roof is leaking.
They plan to stop paying rent from next week.
Several families say their children have got ill as rooms are dripping with condensation, and they cannot keep bedrooms warm at night.
You look around the flats, talk to tenants and the leader of the 'Tenants' Association, Alan Lord.
Alan Lord tells you: 'It's a disgrace. Forward Housing is doing nothing to fix the problems. They are just making money, out of us, lining their pockets at the council's expense.'
One of the residents, Joan Stocks, says: 'They keep making promises they will fix things, but nothing happens. There's definitely something wrong with this company. I reckon the boss of their's John Smith is raking off all the cash and hiding it from the council - how else could he be driving that Bentley of his?'
Another resident Jim Peters, says: 'Yes that John Smith riding around in his flash car makes me sick. That contract he signed with the council has been a disaster for us. I bet if his drains were blocked and his boiler packed up he wouldn't put up with it for very long.;
Tenants Association leader added: 'If you ask me most of the problems seem to be with the sub-contractor they've been using - Peerless Plumbing. Totally incompetent and haven't a clue what they are doing. I wasn't at all surprised to see that Hampshire Trading Standards took them to court last week for making a total mess of an old lady's house and then overcharging her for the privilege.
Here, there are more than one party involved;
1. Forward Housing
2. John Smith
3. Peerless Plumbing
'Lining their pockets at the council's expense' needs to be run by the lawyer and omitted if required.
The quote by Joan Stocks needs to be taken out, as this is defamatory; 'John Smith is raking off all the cash'.
Jim Peter's quote; 'The contract he signed with the council has been a disaster for us' is protected by the defences of justification and fair comment.
The statement made by the Tenant's Association has to be proved to be true. Although, it is unlikely Trading Standards will sue as their reputation is currently so low.
So, it needs to be checked whether the council are doing anything to help and if the connotations/context of the piece are that of the 'reasonable man.'