Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
to be published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
PRIMARY MEDIA LAW & ETHICS OF THE UK & USA
Pocket Guide to Media Law In England & Wales
[Very similar to other common law jurisdictions. As an exercise if you are in the USA, Canada, Australia, India and New Zealand, write down a list of how your media law is different.]
Journalists need to be aware of three major areas of the law when reporting and writing articles:
1. Ensuring people have a fair trial (The Law of Contempt)
2. Ensuring that people’s reputations are not unfairly damaged by inaccurate and malicious information. (Defamation),
3. Privacy. Demonstrating respect for the right to privacy (family, home and correspondence)There are many criminal sanctions for journalists who break media law and draconian punishment and embarrassment through secondary media law and ethics regulation (Press Complaints Commission, Ofcom and BBC Trust enforcing Editorial Guidelines.)
Contempt
Contempt carries criminal sanctions such as an unlimited fine and maximum jail sentence of two year’s imprisonment. Once someone has been arrested for a crime, or a warrant has been issued for their arrest, and until proceedings are over, you may not ‘create a substantial risk of serious prejudice’ for example by:
a. publishing previous convictions
b. suggesting the defendant has confessed
c. suggesting accusations of more serious crimes or crimes they are not facing
d. suggesting they are guilty
e. saying something so bad about them that you could prejudice a potential juror against them.Reporting court cases: some simple ground rules
a. Never report anything said in the absence of the jury until after all the verdicts have been returned.
b. Stick to reporting accurately what is said in court and do not paraphrase using ‘sexier’ and more sensationalist language
c. Make sure your reports are fair and accurate. To be fair involves putting the other side of the story. Accuracy speaks for itself.1. Never ever publish anything that can lead to the identification of somebody involved in legal proceedings who is aged 17 and under unless the court specifically allows it. (16 and under in Scotland)
2. Never ever publish anything that is likely to lead to the identification of anyone complaining of a sexual offence unless they agree to be identified and that agreement is in writing [range of sexual offences includes voyeurism, indecent exposure, ‘flashing’ and has substantially expanded]
3. You also need to watch out for special court orders banning identification of frightened witnesses, blackmail victims and undercover police, intelligence and customs officers.
4. Go out of your way to check if there are any special reporting bans/orders relating to the legal case and/or proceedings that you are covering. Keep proof of any emails and contacts demonstrating your efforts to carry out this checking.Defamation
Defamation carries civil law sanctions such as being sued for loads of money and having to pay lawyers huge amounts in fees. [A research study in 2008 demonstrated that lawyers in England charge 140 times more than in other European countries.]
Defamation: four basic definitions:
a. what you write exposes someone to hatred, ridicule and contempt
b. what you write lowers the estimation of right thinking people generally
c. what you write damages someone in their trade, profession or office
d. what you write causes people to shun and avoid your subjectIdentification: even if you do not name someone explicitly if it is possible to work out who you are talking about you are in trouble.
Publication to a third party: not just a newspaper or magazine, sending a postcard with a defamatory comment is good enough.
Golden rule of testing your copy: Imagine you are the most sensitive person being criticized and think the very worst interpretation of what could be misunderstood by the language you have used in your copy.
Bane and antidote: When evaluating your copy consider the worst possible ‘reading’ of your material (known as the bane), make your assessment on one quick and immediate reading (the natural and ordinary meaning expected of your audience), then look for any antidote in terms of putting the other side, indicating that the bane is ridiculous, meaningless satire that nobody would believe, and contextualisation which would ensure that any reasonable reader would not derive any defamatory meaning.
Separating fact from comment: Facts have to be proved and if defamatory are the most dangerous parts of your copy. Comment should be opinion, honestly held and based on true facts or allegations made in legally privileged contexts.
Avoid alleging and/or imputing defamatory motive: Not even the prosecution has to prove motive in a criminal trial. It is almost impossible to prove unless admitted. There is a famous legal quotation about how impossible it is to guess the state of man’s mind as it would be to guess the state of his digestion.
Defenses
You may be able to avoid getting sued if any of the following apply:
1. It has come from a senior police officer or government department – you may have qualified privilege [subject to explanation or contradiction]
2. It was said in open court, or in the House of Parliament – you should have absolute privilege/high qualified privilege.
3. It was said at a public meeting [held for a lawful purpose] – you should have qualified privilege but you need to get the side of the person being attacked and offer a reply
4. It was part of a review or editorial. You might have a defence called ‘fair comment’ but the comments must be honestly held opinions, based on true facts which are also a matter of public interest. Get all this right, then you might be let off the hook.
5. You might have a public interest privilege for responsible journalism that has mistakenly libeled somebody. The criteria for responsible journalism includes various criteria such as: giving fair opportunity for people criticized to give their side of the story, reporting a gist of this; evaluating reliability of your source who might have an axe to grind, and avoiding sensationalist language and bias.
The critical thing in the field of defamation is if in doubt get professional legal advice before publication.
Privacy
The Human Rights Act 1998 now means freedom of expression is balanced with the right to respect for privacy. The English and European courts recognize that private information cannot be reported unless it is in the public interest. No go areas include the nature of health treatment and state of health, education, sexuality, and personal relationships. It now means that people who do not give permission to be photographed in public and are not the subject of a public interest story are entitled to privacy protection.
This is a very simple outline of how to survive the law in English journalism. For more information read: McNae’s Essential Law for Journalists, (20th Edition, 2009) by Mark Hanna and David Banks, Comparative Media Law & Ethics (2009) by Tim Crook, Law for Journalists (2nd Edition 2009) by Frances Quinn, or Media Law by Geoffrey Robertson and Andrew Nicol. (5th Edition 2008) [Remember to read the latest editions]
