It's been a while since my last review of media law. During that time we've seen the Snowden and NSA scandal ratchet up public anxiety about the surveillance state and received confirmation of the High Court's tough stance on defamatory tweets post-McAlpine. Not forgetting the musings of the Leveson report. Neither the industry, nor free speech organisations such as Index on Censorship, nor the political parties could agree: does the report go too far, or not far enough in curbing the intrusive behaviour of the press following the News of the World revelations?
In other news… In an effort to discourage more trivial claims in court, preserve some element of freedom of speech and curb those engaging in 'libel tourism' (shopping around for somewhere to have a case), the government passed a new defamation act. This came into force in January and imposes a steeper burden of proof on the claimants – a need to show "serious harm" to their reputation.
Now the general feeling is that things are getting better – democracy has kicked into action and forced those in power to have more respect for our civil liberties. At the same time, it's widely acknowledged that an inquisitive, largely unfettered press is crucial to the health, safety and general wellbeing of society. But I'm still not absolutely clear on what I can and can't do as an editor and blogger. Case law, codes of practice, statutes. It's a minefield.
So I decided to sign up for an Ideastap masterclass with Gill Phillips, Director of editorial legal studies at the Guardian. If anyone could help me to navigate the choppy waters of media law, it's Roberts. Here is an extract from her CV, courtesy of The Lawyer…
1982-84: Trainee, Coward Chance
1984-87: Litigation associate, Clifford Chance
1987-97: In-house solicitor, BBC
1997-98: In-house solicitor, News Group Newspapers
1998-2000: Lecturer, College of Law
2000-09: Head of litigation, Times Newspapers
2009-present: Director of editorial legal services, Guardian News & Media
Roberts had to deal with the News of the World phone-hacking scandal in her first month, followed by Trafigura, WikiLeaks and Snowden/NSA – all on behalf of the same employer. Not to mention the years of frontline experience acquired at some of the country's other major media institutions. As you'd expect, she was highly authoritative, up to speed and great at bringing to life hermetic statutes and codes with examples of case and tales from the office. Here is a comprehensive overview of media law for content creators…
Codes of Practice
The Press Complaints Commission (PCC) Code of Practice and the NUJ Code of Conduct are our "ethical benchmarks", as Roberts puts it. They cover a wide range of areas including privacy, children and undercover and covert surveillance… It's important to familiarise yourself with both and know which points each organisation stresses, but this is a useful checklist:
- Distinguish between fact and opinion
- Do not plagiarise (did you use the same quotes?)
- Always report accurately and fairly
- Offer the right to reply
- Respect the privacy of others, both in their home or in public places where there's a reasonable expectation of privacy
- Protect the identity of sources giving information in confidence
- Use caution when covering stories about children under 16, protect their anonymity and be prepared to approach parents and guardians first
- Be considerate when reporting about matters of grief and distress
On the last point Roberts mentioned the recent photos of a distraught Mick Jagger on the front front page of several British newspapers, taken after hearing of the death of girlfriend L'Wren Scott. These seem to contravene the PCC code and she suggests that there may be a civil cause of action. Some are wondering whether Leveson has made any difference at all.
This comes in two forms: libel (written) and slander (spoken).
To start an action the claimant needs to prove that they were identified, that there was a publication (an article in a newspaper/magazine, a blog piece or a comment on a social network) and that the story is defamatory. The definition of defamatory according to case law? A comment that, "lowers someone’s reputation in the estimation of right-thinking members of society." There are other phrases that have been used: it "discredits" someone or would "cause people to shun or avoid them", "belittles", "demeans" or "subjects them to ridicule or contempt". This becomes a greater potential pitfall for journalists who make things personal; for instance when CEOs of companies and figureheads are criticised using words loaded with meaning such as dishonest, corrupt, liar and tantrum. Always report as a neutral: avoid making unnecessary analogies and using words that impute motive.
Finally, the claimant will need to prove that the statement has caused serious harm to his/her reputation or serious financial loss, according to section 1 of the new Defamation Act.
The burden of proof then switches to the author or publisher to prove that what they said was true, or that it was an honestly held opinion based on fact at the time of publication (section 3). There are levels of meaning attached to accusations, for which the burden becomes greater and greater: from "this asks questions of…" and "there are reasonable grounds to suspect…" up to "X is guilty of". As with qualified privilege (see below) this defence can be defeated if the respondant is shown to have acted maliciously or in bad faith.
Two other points: in this age of global publishing, you can be sued anywhere in the world – whether you're a publisher, editor or author. Also it is no defence to say you are simply quoting/repeating what someone else said. If you make a claim or you receive a hot tip from the police for example, you must make sure you have your own facts to back it up. A good example is the Sunday Times, who managed to successfully prove that businessman David Hunt was the head of an organised crime group.
So whenever you're reporting, stick to the facts. If you're a blogger or a small company and you do run into trouble, a swift removal of the defamatory statement coupled with an apology will usually suffice. Otherwise, for bigger cases such as whistleblowing and public scandals, there is the defence of public interest. Fellow law school graduates will recognise remnants of the old Reynolds defence here. The publisher or author will have to prove that the statement (of fact or opinion) was made on a matter of public interest (objective) and that they reasonably believed (subjective) that publishing that statement was in the public interest. Worryingly, there is no definition of what is in "the public interest"; some people have confused this with matters that are interesting to the public. The court needs to consider "all the circumstances of the case" so make sure you keep hold of possible evidence such as email chains and taped interviews.
Section 5 and web comments
These modern day public forums, inhabited by wicked trolls, are a goldmine for libel. So what happens when somebody makes an intemperate comment under an article? According to section 5 of the act, website operators not responsible for posting the statement complained of, will have a complete defence unless:
- The claimant cannot identify the poster in order to bring proceedings and
- The claimant gives the website operator a notice (with correct information) and they do not respond properly. Either they don't or can't contact the poster, or the poster doesn't respond
In which case, the website operator will be liable unless it removes the statement, typically within 48 hours. And if the poster refuses to allow the operator to give details to the claimant, then the claimant will have to sue the operator for information. All clear? Good.
If you're interested in exploring this area in more detail then read Olswang partner Ashley Hurst's article about why this section offers weak protection to website operators when anonymous comments are made. His key point:
"People blog and comment on websites anonymously for a reason: because they do not want to be identified. Why would an anonymous blogger suddenly identify himself without a court order because a website operator tells him that a legal complaint has been received? There is absolutely no incentive, especially for a whistleblower, someone intent on causing damage, or someone who cannot afford to be sued, to come forward and identify themself voluntarily as a potential defendant."
Online publications and infinite liability
If you run a website or blog that happens to have a defamatory statement, which is published more than once, then give thanks for section 8 of the act. You will only be liable for the first infringement, so long as the publication is by the same person and in the same manner.
Contempt of court
A strict liability rule applies when reporting on legal proceedings that are "active" – from the moment an arrest is made until a decision is reached. A contempt offence occurs if material is published, which creates a substantial risk of serious prejudice or impediment. High stakes. That's why publications such as the Guardian turn off their comments section upon arrest because they would be liable for anything published below the line.
Be especially cautious when dealing with jury trials. You should not refer to previous convictions, bad character or evidence that the jury may not hear about. Magistrates and Crown Courts impose their own tricky set of restrictions.
Children should also be handled with care. Under section 97 of the Children Act it is an offence to publish any material intended to, or likely to, identify a child under 18 as involved in the proceedings. Section 39 of the Children and Young Persons Act grants a judge discretionary power to impose a ban on the identification of under-18s involved in proceedings before the adult court. Section 49, on the other hand, stipulates an automatic ban in relation to the youth courts (where serious cases such as rape and murder are likely to be heard). Reporters must not publish the name, address, school, photograph or any other details "likely to lead to the identification of any child [under 14] or young person [under 18] involved in proceedings as a defendant or witness."
Remember, the courts will not differentiate between a traditional news publication and a status update on a social network as Neil Harkins and Dean Liddle discovered when they posted photos in connection with the Bulger murder. So think before you tweet.
When dealing with sexual offences cases, the anonymity of the victims is taken very seriously. In 2012 several people were prosecuted and fine for posting the name of a woman raped by former Sheffield United footballer Ched Evans on several social media sites.
Copyright arises in "original literary, dramatic, musical or artistic works." These artistic works are defined as "a graphic work, photograph, sculpture or collage irrespective of artistic quality, a work of architecture (model or actual building) or a work of artistic craftsmanship." Still images or frames taken from films may be protected as part of that film. Copying a "whole or substantial part" is a civil wrong unless justified by a defence or exception. "Substantial" refers to quality rather than quantity – that crucial sentence in plot of the final Harry Potter book for example. Copyright exists for the lifetime of the owner plus 70 years. There are defences to copyright infringement: video journalists and documentary makers will be relieved to know that if usage is incidental – let's say publicly displayed works of art or background music on location – then the law will be on their side.
At the risk of stating the obvious, you cannot just take images and videos from websites and social networks unless they are issued under a Creative Commons licence. There is no copyright defence of "already in the public domain". So make sure you identify the copyright owner (through a press organisation, picture desk or image library). Embedding links and pointing to URLs is preferable; in that way you are not publishing others' work and depriving them of potential advertising revenue. The recent Svennson decision in the European Court of Justice shows that it's ok to link to someone's work unless you're allowing others to circumvent a paywall.
On a similar point, a defence of fair dealing is available to work that has already been published with the copyright owner's consent, in a way that does not jeopardise their commercial rights, and has been sufficiently attributed and legitimately used for the purposes of review or criticism.
Another defence, potentially, is parody and pastiche. However if the use is more than incidental, like this case involving Miriam Elia's spoof series of Ladybird books, then a breach is likely to stand. Copyright owners might have other means of recourse through passing off or defamation. Or a claim under sub-sections 80-83 of the Copyright Designs and Patents Act 1988, which safeguards their moral right to object to the derogatory treatment of their work such as a remake.
Breach of confidence, privacy and data protection
There are three elements to a cause of action in breach of confidence:
- The information has a necessary quality of confidence (material that is not public knowledge and is novel and original rather than vague and trivial)
- It was communicated in circumstances importing an obligation of confidence (think doctor-patient or employer-employee relationship)
- There was an unauthorised use of information (to the detriment of the party communicating it)
There are defences to a claim under breach of confidence. The material in question may already be in the public domain and common knowledge, eg The Stig's identity in BBC v HarperCollins or there may be a public interest in allowing publication, which outweighs the duty of confidence. Where the claimant is a public authority, section 41 of the Freedom of Information Act has granted them an absolute exemption from disclosure. But as this case demonstrates, the public interest test in common law still applies.
Privacy has encroached further and further into the realm of breach of confidence and defamation, broadening their scope. What we have now is a tense balancing act between the right to privacy (section 8 of the Human Rights Act) and the right to freedom of expression (section 10 of the European Convention on Human Rights). Does the claimant have a reasonable expectation of privacy and does that outweigh the perceived public interest and freedom of expression suggested by the defendant?
The PCC states in its code that, "Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into an individual's life without consent. It is unacceptable to photograph individuals in private places without their consent."
There may be exceptions to this where the publisher can demonstrate that there is a public interest. Situations include "detecting or exposing crime or serious impropriety, protecting public health and safety, and preventing the public from being misled by an action or statement of an individual or organisation."
However cases such as Axel Springer show obvious favour in the European Court of Human Rights for a person's right to privacy over the pursuit of truth in freedom of expression. In order to balance these two competing freedoms, the court established six criteria:
- A contribution to the debate of general interest – political, sporting personalities or performing artists
- How well known the person concerned was and what was the subject matter of the report
- The prior conduct of the person concerned
- The method used to obtain the information and its veracity
- The content, form and consequences of the publication
- The severity of the sanction imposed
Hugh Tomlinson QC argues that the criteria "are not well suited to balancing reputation and freedom of expression where the claim is for defamation." Padraig Reidy, of Index on Censorship, goes one further and fears that "Introducing breaches of privacy as extra criteria in defamation could seriously hamper investigative journalism, which, pretty much by its nature, involves delving into details some would prefer to remain secret."
Data protection is also something you must be aware of: your rights and obligations as a publisher, editor or journalist. The act protects personal data relating to a living individual can be identified from that data, and other information that the data controller has or could obtain. Examples include an email address, a photograph, purchase history and cookie-captured data.
Section 32 provides an exemption for journalistic purposes, where data processing is undertaken with a view to publication, and there is a reasonable belief that it would be in the public interest. This would be assessed on a case-by-case basis but does give hope to those undertaking investigations. According to the ICO, citizen bloggers would be covered. Use the PCC code of practice to gauge what is "reasonable" and in the "public interest", and make sure you adhere to your own employer's policies otherwise you probably won't be able to rely on this exemption.
Trespass, consent and Public Order
Think before you step on to someone else's property. Land owners that object to you filming on their site may enforce objections through the tort of trespass. This could be "to the person" (compelling someone to be filmed there) or "to goods" (picking up a document and filming it). They could seek an injunction to prevent further trespass and/or damages. Worse still, a journalist could be accused of aggravated trespass at somewhere like the Ministry of Defence, fined or sentenced to up to three months in prison.
If you want to shoot or film in public places – shopping malls, rail stations, hospitals, parks – you must seek permission. And don't think that just because you've bought a ticket to watch an event or to travel in a train/plane, you also have a licence to film in these places.
Be "open, honest and fair," as the BBC puts it, in your dealings with the public. Make sure you have the consent of those you intend to interview and film unless, due to the investigative nature of your piece, there is a public interest justification for proceeding without it. Section 10 of the PCC covers the use of clandestine devices and subterfuge in obtaining material.
If you're covering riots and demonstrations, be aware of the following: section 89 of the Criminal Justice & Public Order Act (where persistent photojournalists might be arrested if they "resist or wilfully obstruct a constable in the execution of their duty"); section 5 (they may "cause harassment, harm or distress" to others); and section 137 (a journalist may be arrested if they fail to move on when asked). The NUJ has created some helpful notes regarding safety in these situations.
Further reading suggested by Ideastap
McNae’s Essential Law for Journalists gets updated every year and has everything you could want as a journalist.
Inforrm's Blog is a good legal website about media law that covers all ongoing cases.
Press Gazette has lots of legal advice on their website offering advice.
The Society of Editors publishes a very useful booklet about court orders and reports.