Media Law & Risk

Please familiarise yourself with the Publishing Risk Guidelines so that you know what articles should be raised to the Editors-in-Chief and the SU. If you're ever unsure about anything, please do ask - we'd rather you be too cautious than let something slip through the cracks!

MEDIA LAW WITH ADAM LINDSAY, AUGUST 2020

Notes by Imogen Usherwood and Toby Donegan-Cross


Introduction to media law - this is a huge subject, this session will not cover everything but provides useful key elements which are essential for publishing anything. If you know the intricacies, you will know what you can get away with as a journalist, but student papers don’t know that much detail so should err on the side of caution!


Defamation (libel/slander)



A statement is defamatory if it seriously harms (or could seriously harm)  someone’s reputation by: 

Worth noting that ‘people’ also means companies and organizations, who can be defamed in exactly the same way.


If you are writing something about a person who has the capacity to sue (i.e. has a lot of money), you should tread very carefully. Play it by the book and stay safe!


In order to sue, a company must SHOW that the statement has caused it, or is likely to cause it, serious financial loss


‘Right thinking members of society’ is now ‘a reasonable person’ = judges consider how such a person would read the content you have published and how it would affect their judgement of the person/company. In court, the meaning of anything you publish is NOT how you intended it, it is ONLY the way in which this ‘reasonable person’ would interpret it. This ‘reasonable person’ is:


‘Bane and antidote principle’


How is defamation decided?


How to avoid defamation action



Golden rules to avoid defamation


‘Irrefutable evidence’ - you have to weigh up whether the evidence you have is reliable enough. You might want multiple examples to corroborate the evidence, or ask a witness’s contacts if they know this person to be reliable. Screenshots are good but can easily be doctored, so do some digging on who sent you the screenshots - does that person have a personal reason to have said something to you (such as an ongoing dispute with a person involved)?


What must the claimant prove to charge you with defamation? Three things:

They do NOT have to prove that the statement is false or had an intention to cause harm!


Anybody who was involved in the publication can be sued. Writer, Editor-in-Chief and any sub editors involved in commissioning/proofreading it (even if it was just for SPaG), publisher responsible (DSU), and anybody who repeats the libel (including sharing it on social media). A claimant could choose to sue any one or all of these people - if they sue you personally as writer/editor, the DSU isn’t obliged to help you.


This is why COMMUNICATION is key - if all the relevant editors have a meeting about commissioning a piece, everyone involved in that meeting is liable to be sued. You’re only safe if you raised any concerns during that meeting - if you’re ever in a meeting about something like this and are concerned about the legality of something, please raise it, even if you aren’t sure! It’s not worth the risk, so if you aren’t sure please say something.


Any resharing of the content counts as a fresh libel case - this applies to personal social media accounts, not just public ones. Even just retweeting something on your personal twitter can see you sued for libel. EG - the BBC defamed Lord McAlpine by saying he had abused children (this proved not to be true). A BBC twitter account tweeted about the story, and McAlpine sued EVERY person who had retweeted it.

NB - putting ‘RTs are not endorsements’ or ‘views my own’ in your twitter bio is not a defence against libel. Especially as an editor, if you tweeted something about a Pal story, it’s possible that the DSU could be sued. ‘Views my own, not those of Palatinate’ is for reputational reasons, not legal ones.


What constitutes ‘identification’?


Mistaken identification can arise as a result of:


Spent criminal convictions


Defences of Defamation

Have your defences ready to go PRIOR to publication. Defences should be at the front of writers’ and editors’ minds when planning/writing/editing/publishing anything.

The public interest defence must show:


What is ‘responsible journalism’?

This can form part of a defence against defamation.


What is NOT a defence against defamation?

Famous example of inference: Liberace v Daily Mirror


How to handle defamation, in summary:


Court Reporting, Active Criminal Cases, and Contempt of Court


Breaching this is a criminal offence and can see you sent to prison. It’s not as big a risk as defamation, but the punishments are far more severe.


Crime and Justice Reporting


Court Reporting

HOWEVER - if you want to run a story on a court case (e.g. a Durham lecturer is on trial, something students would want to know about), there is a limit to what you can do, but it is possible.


The stages of criminal reporting


This is the stage at which you should definitely be reporting - if there is a crime in Durham, students should know. You can report on the crime without covering the rest of the process.

Example in Palatinate, March 2020: Man found with stab wound on Mitchell Street


The following are entitled to lifetime anonymity:


To waive the right to anonymity, a victim must be at least 16, and not be obtained under any duress. Parents cannot waive this right on behalf of someone under 16.


Jigsaw identification - this is even more important in judicial matters, as you could lead to someone guilty getting off, ruining a victim’s life, etc.

Any information which could cause an anonymous person to be identified by somebody ACQUAINTED with them must be handled carefully. This jigsaw can also be assembled with various outlets release different information about the same person, which can be put together if someone reads across several publications.

Naming a defendant, witness or their relationship to a child involved could also identify them. Example, Death of Baby P, Peter Connelly was dead but his name was kept anonymous (‘Baby P’) because he had a living sibling, and naming him would have identified that other child.


Proceedings become active when an arrest is made, or a warrant or summons is issued. From this point onwards, contempt of court laws come into force, and proceedings remain active until:

...and can become active again if an appeal is lodged.


Contempt of Court

It is an office to publish material ‘which creates a substantial risk of serious prejudice or impediment to active legal proceedings’. This includes:


Basic court reporting principles


Reporting and Justice - Summary


Election Reporting


The law states that you must not ‘publish a false statement of fact about the personal character or conduct of a candidate’. It doesn’t have to be defamatory, just false, but honest opinions are ok.

Usually, saying something false but not defamatory doesn’t get anywhere in court (see this article about Robbie Williams - Robbie: I'm NOT gay), BUT regarding a political candidate it is an offence.

You also must not publish a false claim that a candidate has withdrawn, as this can affect results.


WHILE POLLS ARE OPEN, nothing about election issues can be published anywhere, including exit polls.


Copyright

Copyright law protects the creators of artistic and intellectual material - this includes journalism, books, photographs, films, plays, music and sound recordings, TV and radio broadcasts and speeches all covered. Even public transport timetables and maps.

‘Anything worth copyrighting is usually worth protecting’ - anything that requires some element ‘skill, labour and judgement’ is subject to copyright law.



Speeches and interviews:


Fair Dealing - a clause which allows you to use clips/extracts (similar to HIGNFY)


Public interest

This allows for the exceptional use of photos and has a very specific definition. The photo must:


Broadcasting

If you plan to broadcast anything live, you should follow these rules (not entirely applicable to Pal except the podcast, any live streams etc). The OFCOM Broadcasting Code is available for free online.


Protecting under 18s


Harm and Offence

Harmful material must be avoided unless there is valid context, and warnings are given in advance. Harmful material includes:


Crime


Religion


Due impartiality and accuracy


Fairness:


Privacy


Privacy in social media:


Commercial References


THE END


N.B. This is not a fully comprehensive guide to media law! It’s a subject that takes years to learn in full and this doesn’t answer everything, but is a very good foundation for a student journalist. Any further questions, refer to the Editors-in-Chief and/or the deputies.