Here are my notes from today's media law session:
Defamation
Definitions:
Defamation: Any statement which will cause a person to lose or diminish their reputation. A statement that exposes the person to ridicule, hatred, causes them to shunned & avoided or lowers them in the minds of right thinking people of society.
Malice: Writing down with intent anything you know to be untrue.
Public Interest: From the PCC code of conduct The Public Interest includes: 1) Exposing danger to the community or 2) Exposing a health risk to the community or 3) Exposing the fact that the public is being misled.
Malicious Falsehood: A statement that may not be defamatory but is damaging to a person's reputation. It is a statement that is written with the intent to damage the person it is written about even if it isn't actually defamatory to their reputation.
Innuendo: A statement that is used to imply that someone has done something. The idea that you are safe if you defame somebody without naming them isn't true.
Juxtaposition (libel): Unintentional libel arising from placing a defamatory article/picture/package next to an innocent article/picture/package.
Libel
Three Elements of Libel:
1) Publication - It is libel if the defamatory statement is published to a third party.
2) Identification - The person the statement is about has to be identified. Be careful of Jigsaw Identification where the person could be identified if the audience can work out who the person is from the description in the article.
3) Defamation - See above.
The plaintive has 1 year to take libel action - you must therefore keep your rushes and notes for at least a year.
Three Main Defences Available for Libel:
1) Justification: The statement is true & can be proved.
2) Fair Comment: 1) You believe the comment to be true, 2) The comment is based on fact, 3) The statement has to be in the public interest.
3) Qualified Privilege: There are two types. Statutory QP gives protection to things reported from law courts, parliaments, local authorities etc but are subject to refutation. The reports need to be accurate, contemporaneous and without malice. Common Law QP gives protection to bodies not mentioned in the statute.
How Media is Regulated in Relation to Political Bias:
According to the Representation of The People Act it is a crime for a broadcast to show political preference to any political party. Unless we are in a general election period, the broadcaster only has to show balance over time. If we are in a general election period, the broadcast has to give each political party time in proportion to the votes they received in the last election. It has to be precise and is called strict airtime.
Newspapers are not controlled by the Representation of The People Act and can therefore be biased for or against a political party.
Regulations to do with taste and decency:
Swearing in broadcasts:
The "F-Word": This can be used if it is not gratuitous and is it after the watershed.
Profoundly offensive language - "C-Word": Never allowed to say without special prior consent from Ofcom.
Material which may be offensive to religious viewers: You must be reporting on religious issues.
Interviewing Criminals: You must not pay criminals or glamourise them or their crime. (You musn't pay witnesses for interviews as well.)
Contempt of Court
Contempt of Court exists so that the accused can have a fair trial.
There are two types of court, Magistrates Court and Crown Court.
Functions of a Magistrates Court:
1) The starting point of all cases
2) Applications for injunctions in civil cases take place here
3) Bail hearings - applications for bail take place
Types of Cases at a Magistrates Court:
Summary Cases - Minor offences
Committal - Serious offences, a Magistrates Court does not have the power to deal with these cases and therefore commits the case to Crown Court
Bail - Bail cases take place at Magistrates Court - You can report that bail has been denied but the reasons for the denial cannot be reported.
*All are protected by Qualified Privilege when the court is session in the presence of a judge and jury or magistrate*
The case becomes active when the accused is arrested and charged - this means that you cannot be sued for libel for reporting what the defendant is accused of. The case is no longer active once a verdict has been given.
Accused on remand/bail/awaiting trial: Whilst on remand you must not report anything as there is danger of contempt of court as this is the time that a jury is being assembled.
You musn't report anything in a Crown Court when the jury is not present - contempt of court.
But you have Qualified Privilege to report when the Judge and Jury are present.
Interviewing the Jury:
You cannot interview members of the jury whilst the case is active.
You can interview members of the jury after the case but only very generally.
Interviewing the Witness(es)
It is permitted to interview the witness(es) but against the codes of conduct to pay them. You cannot interview a witness when the case is active.
Anything can be reported after conviction but before sentencing because the case is no longer active.
Privacy
Article 8 of the European Convention on Human Rights deals with Privacy.
"Everyone is entitled to the 'normal enjoyment of family life.'
A good example of this is the case of Princess Caroline of Monaco. She won a major legal battle over the right of newspapers to publish pictures of her. The European Court of Human Rights said that the newspaper shouldn't have published photos of her and her children even if they were in a public place. The Court ruling said: "Every person, however well-known, must be able to enjoy a legitimate hope for the protection of... their private life ". You can see the BBC report on this here.
Practical Measures to be taken by a Photojournalist or Videojournalist:
Ensure that in GV's (general views) nobody is identifiable unless they have given their consent. Explicit consent is given by a signed consent form, waving at the camera etc.
Trespass:
You need permission to film on any private property. If you are filming on private property and are asked to leave you must do so. The person is not allowed to take your tapes.
Confidentiality:
The information protected by confidentiality must have:
1) Quality of confidentiality
2) It was imparted in circumstances implying confidentiality
3) It has to be proven that it caused detriment.
Ten Point Test: Reynolds Defence:
This is the ten point test of responsible journalism and if you have done these ten things then you have a degree of legal protection:
1) The allegation must be serious. The more serious, the more protection will be applied.
2) The nature of the information must be of public concern.
3) The source of the information must be good. The more authoritative source, the more you are entitled to report their allegations.
4) The steps taken to verify the allegation. You must try and put the allegations to the person.
5) Status of the information is not old, e.g. allegations are not being bought up that have already been denied.
6) The urgency of the matter - reasons for running the article now.
7 Whether comment was sought from the claimant.They may have information that others don't possess. It may be practical to get the other side of the story and give the person the opportunity to deny it but it is not always necessary.
8) Whether the article contains the jist of the claimant's side of the story.
9) The tone of the article - the article should be written in a sober way, sticking to the facts.
10) The circumstances of the publication. The allegations should be bought to public attention as quickly as possible.
