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Media Law Guidance
By Emma Meese | 18th Jul 2017
As part of our commitment to seeing quality journalism thrive in the community and hyperlocal news sector, and as part of our offering as a representative network for this growing sector, we have joined forces with media law expert and co-author of McNae’s Essential Law for Journalists, David Banks, to provide independent publishers with an accurate, practical and up-to-date introduction to media law. From defamation to copyright, contempt to privacy, here you can find all the information you need to publish with confidence.
DEFAMATION law protects the reputation of individuals and corporations.
In England & Wales defamation comes in two forms – libel, which is permanent so covers print, broadcast and online publication – and slander which is spoken word.
Defamation is a civil matter, not criminal.
Most of the time we are concerned with permanent publication online, which would be libel.
Defamation is punished by damages (cash) set by the court and awarded to the claimant.
There are some important things to remember about defamation which place a defendant at a great disadvantage.
Firstly, the claimant only has to show three things to establish a case
- That the content they are complaining about could have a defamatory meaning
- That they have been identified adequately
- That the material has been published to an audience
Secondly, there are some important assumptions by the court that out the defendant at a disadvantage.
The claimant does not have to prove:
- That what has been published is untrue, if it has a defamatory meaning the court assumes that it is untrue
- That they have a good reputation. If your defence is that the claimant is of such poor character they cannot be defamed, you must prove that to the court
What the claimant must prove:
- Defamation – that the words could cause serious harm to their reputation. Defamatory meaning covers any suggestion of criminal activity, dishonesty, fraud, hypocrisy, immorality, lack of professionalism, incompetence, failing in a duty, sexual impropriety, insolvency and bankruptcy and bullying. This is by no means an exhaustive list.
- Identification – if the claimant is pictured and named in the article, then this is simple. But even if they are not named, they only have to show that someone who knows them would realise the article was about them. There may still be enough detail in an item to allow identification.
- Publication – it must be shown that the defamation had an audience. In printed material, it is assumed by the court that someone has read it. A claimant does not need to call witnesses who will confirm they read the article. For online publication only though, it is technically possible how many people accessed a webpage before it was taken down. If the audience is minimal then it is possible the claimant will decide not to pursue it, or the case will be thrown out by the court.
Once the claimant has shown these three things to the court, then it is up to you to raise a defence. If there is no real argument about identification or defamatory meaning, then the claimant’s case is established very quickly and you find yourself having to raise a defence.
It is important to note that it is not a defence to say you are just repeating what others have said. The rule in defamation is that anyone who repeats a libel has a liability for it. A claimant can theoretically sue the entire chain of people who spread libellous material, and they have been know to do so.
Justification– Truth. Truth is a complete defence against a libel action, which sounds simple – just tell the truth. However, the court assumes anything defamatory to be untrue and so you have to prove truth. What evidence or witnesses do you have? Will they testify for you? Truth is a tough defence and if you lose it will result in heavier damages than if you tried another defence.
- Absolute privilege– a defence for reporting court proceedings in English law and usually present in other jurisdictions. Your report mist be fair, accurate and published when the case is in court, or very shortly afterwards
- Qualified privilege– a defence for reporting much of the material that comes out of government and governmental sources, such as the police. Protects reports of government debates, council proceedings, police press conference and statements. It has now been extended by the courts to cover any public meeting or any press conference, by anyone, so long as it is a matter of public interest. Your report must be fair, accurate, on a matter of public interest and published without malice.
- Honest comment, formerly fair comment. This is a defence of free expression of opinion. The comment must be clearly identified as an opinion and it must be based on facts that are true or privileged. This defence fails when a commenter gets their facts wrong.
- Time limit – In England & Wales this is 12 months from publication in print or online
- Online publishers defence – Available across the European Union, means you are not liable for content placed on your site by a third party – eg comment boards, so long as you do not pre-moderate that comment. If you take down the defamatory material one you are notified of its presence, you avoid liability for it.
- Vulgar abuse – Again, relevant to publishers inviting user-generated-content. Vulgar abuse is not actionable in libel. However, depending on its content, it may break other hate-speech laws.
THIS is another civil wrong related to defamation, but slightly different. You commit a malicious falsehood if you recklessly publish something about someone, which is false and causes them damage.
For example, you might say someone has retired, or they are dead, when they are neither. Both suggestions are not defamatory, but clearly if they are not true they could have a serious impact on the claimant’s livelihood.
The claimant has to show that what has been said is false; caused them loss and that it was made maliciously, ie, a failure to check properly.
Damages, which can be quite severe if substantial financial loss can be shown by the claimant.
The best way to deal with a malicious falsehood is prompt and prominent correction, which undoes or minimises the damage and makes legal action a less rewarding prospect for the claimant.
Copyright is part of the laws that protects intellectual property.
You need to know how much of other people’s words or photography you can use.
What is protected?
Literary, dramatic, artistic, musical works, sound recordings, photographs, film, broadcast or typographical arrangement (layouts)
Copyright does not have to be registered – so just because there’s no © sign, doesn’t mean you can copy.
In order to gain protection there must be some degree of originality, some work or effort must be involved.
Brief slogans and catchphrases do not get copyright.
There is NO copyright in facts, news, ideas or information. Copyright exists in the form it is expressed.
There is no copyright in the facts of a news story – but there would be in the exact words used.
There is copyright in a verbatim report of a speech – skill, labour and judgement has been used in compiling the report.
They own the copyright of their work – unless they have signed a deal handing it over to you.
But in case of letters for publications – they have licensed the paper to publish on one occasion, but still hold copyright.
For works created after 31 July 1989 – the owner is the author – unless in case of work done in employment – where it is the employer.
Papers don’t own copyright on freelance work, even when ordered, unless a contrary agreement is signed – and many are starting to insist on this.
Photographs – copyright is owned by the photographer – but if they were taken before 1988 Act – it is owned by the person who commissioned the photograph.
NB – moral rights – in 1988 Act – a person who commissions has the right not to have the picture distributed without their permission.
Fair dealing for reporting current events is not a breach, but you must acknowledge the author.
Fair dealing allows you to quote from books, plays, films and TV programmes when writing a criticism, review story or feature.
There is no fair dealing defence for news purposes if you use a photograph.
Length of copyright
In 1995 this was extended from 50 years to 70 years from the end of the year of the author’s death. Broadcast copyright is 50 years from date of broadcast
Injunction, damages and under 1988 Act – criminal penalties.
But if you innocently infringe the claimant has a right to account of profits, but not damages.
Online and social media
The presence of material online does not make it copyright free. It is in public, but not public domain. But this makes it very easy to copy. Best to always check with the copyright holder for permission to use their work.
Be careful, some large picture agencies use programmes to detect use of their photographs and generate automated invoices. Breach can be very expensive. One photographer was recently awarded £20,000 for the unauthorised use of one of his photos.
CONTEMPT OF COURT
Contempt laws protect the judicial process and a person’s right to a fair trial.
For publishers contempt laws sometimes punish publication of articles that might prevent a witness giving true testimony or a jury reaching a true verdict.
For contempt to be an issue there usually needs to be some sort of judicial process running. In England&Wales this is referred to as ‘active proceedings’ and for that to happen someone needs to have been arrested, or a warrant has to have been issued for their arrest. In other countries rules of judicial secrecy apply once a police investigation has been launched, which have a similar effect.
Once the law of contempt applies, care must be taken to avoid prejudicial publication.
How is contempt breached?
By publishing something which causes:
Substantial risk of serious prejudice or serious impediment to active proceedings.
What does that mean?
Avoid the following:
Pictures, video or descriptions, ‘where identity is at issue’ ie the defendant is denying the offence completely and the prosecution are calling eyewitnesses. Those eyewitnesses will be involved in an ID parade and must rely on their memory of the crime, not your publication.
Assumptions of guilt – reporting that the arrested person is the one who committed the crime.
Character assassination – Blackening a defendant’s name, so preventing a jury from trying him fairly.
Contempt is also committed by disobeying an order of the court, such as an injunction.
In the UK courts also have powers under the Contempt of Court Act 1981 to make orders restricting reports of proceedings
- Section 4 order – an order postponing reports of part of proceedings, an example would be to prevent a jury knowing a defendant had pleaded guilty to some offences already
- Section 11 order – a banning order, sometimes used to restrict reporting in cases involving national security
Online publication is a particular risk here. While court reporters are familiar with these orders and contempt rules, the public often are not, and will breach them. Care should be taken when inviting user comment on reports of court proceedings or crime.
It is usually a defence to show that you did not know proceedings were active when you published. However, you must show the court that you checked.
Contempt is a criminal offence. It is dealt with by a heavy fine.
People who live in European countries signed up to the European Convention on Human Rights have, among others, a right to privacy.
This means that a number of aspects of their lives are not to be revealed unless it can be shown it is in the public interest to do so.
Matters which are often regarded by the courts as being private are:
- Family life and children
- Sexual relationships
- Commercially confidential relationships
- Employee/employer relationships
- Religious confessions
Such matters can be breached, if a publisher can show it is the public interest to do so.
Public interest defences can be mounted if it can be shown the article was:
- Exposing crime
- Revealing fraud
- Exposing hypocrisy
- Is this person a public figure?
- Have they put this aspect of their life in public before and to what extent?
- Did the behaviour documented take place in a public place?
- Could they reasonable expect privacy there?
- Are you exposing hypocrisy, fraud or crime?
- How far do you need to go to expose it?
In many jurisdictions court orders can be obtained to prevent publication which breaches privacy. This can cause substantial interference with a publisher’s business. If the breach has already happened, the a claimant can seek damages for breach instead, which can be substantial.
VICTIMS, CHILDREN AND OTHER VULNERABLE PEOPLE
IF you carry items on crime or court proceedings you need to be careful of laws aimed at protecting those involved.
These will vary from one country to another, and anonymity laws are not international in their application and enforcement
In the UK victims of sexual offences are given anonymity as soon as they report a sexual offence. That report can be to any third party – a bystander, a friend or colleague. Anonymity last for the victim’s lifetime, regardless of the outcome of any subsequent trial of the offence.
Anonymity can be lifted if:
- An adult victim gives written consent, without duress
- The victim dies
- A judge orders that anonymity be lifted in the interests of justice (rare)
- If the victim is charged with an offence in relation to the complaint – perverting the course of justice, or perjury
Defendants in sexual offence cases do not get any anonymity in the UK, although in some European countries it is the practice to give anonymity to victim and defendant until a guilty verdict is reached.
Sexual offending covers a wide range of offences and in the UK now includes news offences such as voyeurism, trafficking for sexual exploitation and grooming.
You must not publish ‘any matter’ that would identify someone as a victim of a sexual offence. The offence is committed if a detail is included which allows someone who knows the victim to identify them as such.
It is a criminal offence, a sexual offence, in the UK to identify a victim of a sexual offence. Sometimes the prosecuting authorities will charge not only the publication, but also its editor, or other responsible manager. The penalty is usually a fine, but a conviction for this type of offence can have far-reaching consequences personally, and is to be avoided.
Children are often given legal protection when involved in legal proceedings either as a defendant, victim or witness.
They are to be treated with caution. Again, the law frequently forbids publication of any detail which might allow a member of their community to identify them as the child involved in the case.
The age of criminality for children varies widely from one country to another. In England & Wales it is 10, Scotland 8, many European countries 14. It is best to check in the jurisdiction in which you are based and reporting.
Even where a child is not the subject of legal restrictions, care needs to be exercised on ethical grounds and the impact of publicity on the child and any vulnerable siblings ought to be considered. It is generally accepted the children should not be interviewed on subjects concerning their welfare without the consent of a parent or guardian.
These guidelines were produced by David Banks, journalist, author and media law consultant and are to the best of my knowledge a correct statement of the law as it stood in March 2017.
Journalist & Media Law Consultant
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