British Media and Press Law
|Learning objectives||After you have worked through this study material, you will be able to: |
Chapter 1: Court reporting of crime
Chapter 2: Media law torts
Chapter 3: Media law obligations
|Preview||UK Media and Press Law|
Why Open School of Journalism believes that media and press law is important
All media and publications are subject to general conduct and application laws, such as those relating to defamation, obscenity, and hate speech. UK media and press are regulated by law aw well as self-regulated according to practice codes.
UK print media is entirely self-regulating. The Press Complaints Commission (PCC) is the self-regulatory body for the print journalism industry. It is created and funded by newspapers and magazines, and has an established journalistic standards code.
Broadcasting media includes electronically-transmitted materials. The Office of Communications (Ofcom) is the primary regulating body of commercial television and radio in the UK. Broadcast media are also subject to specific content rules. Broadcasting includes Internet media. The nature of the Internet makes it difficult to know where to file a claim. Typically the responsibility for published words lies with the Internet Service Provider (ISP) (a.k.a. the publisher) that hosts the newsgroups to monitor and regulate this media content.
The Video Recordings Act 1984 classifies, labels, and regulates video works supplied to the public for compensation/reward. Video works is electronically-formatted information on disk or magnetic tape, showing a moving picture. Video classification is determined by its content and its potential "harm" to viewers through depicted scenes of criminal, violent, explicit sexual, or horrific behavior and activity. As technology improves new tests decide the particular certificate for any particular video recording. General exemptions apply to educational, religious, sport, or music works, and non- and less-violent video games.
Why study UK media and press law?
- regulations made to prevent harmful, illegal, or undesirable content being disseminated,
- the right to protect freedom of expression,
- the right to promote freedom of information,
- no official interference or harassment of the media, and
- respect for journalists' and other media professionals' choices.
1.1 Media access to the courts
English Law believes court proceedings should be held openly and publically, so the general public can be fully-informed about the justice administered in their (the Public's) name. Regardless, restrictions may be placed on the media regarding what they can and cannot report. The court retains the authority to:
- postpone the reporting of proceedings and
- prevent publication of the names of the parties.
1.2 Media reporting
There are automatic bans on media reporting
- information relating to children,
- sexual offenses hearings, and
- divorce cases.
Reporters document events using audio recorders and notebooks. They tend to blend more easily into the background and crowds. Conversely, photographers and film crews must insert themselves directly into the action, risking clashes with crowd/group participants, police, or authorities.
Guidelines were adopted in 2007 by the Association of Chief Police Officers in cooperation with media organizations to manage media reporting:
- Officers should provide media a good vantage point from which to operate when it is necessary to place cordons,
- The media has a responsibility to take incident photographs and video and make reports,
- Officers have no legal/moral right to prevent/restrict what the media records
- Only media editors control what is published or broadcast, and
- Recorded images cannot be deleted or confiscated without a court order.
The Human Rights Act 1998 prevents publishing confidential information of criminals that can lead to their identification and possibility of revenge attacks by the public. However, custody photos and CCTV footage of defendants (prosecution materials) may be released for media use.
Anonymity for defendants is not provided but is under consideration. The recently published coalition agreement for the UK Government states the government acknowledges defendants have been wrongly-accused, and their reputations ruined. It intends to introduce anonymity for the defendant during the trial, which will be lifted if/when a guilty verdict is declared.
The Youth Justice and Criminal Evidence Act 1999 protects the personal data (name, address, school/place of work) of juvenile defendants under age 18. Section 44 of this Act proposes that media reports do not identify juveniles that might be involved in criminal police investigations.
1.4 Identifying victims
Under the Sexual Offences Act 2003 anonymity is provided to (rape) victims during pre-trial investigations and subsequent case. Under the Act, victims have a right to remain anonymous to the general public, and not be named in any reports released by the press. Victims over age 16 may be identified by the media providing the victim consents, freely, in writing, without any undue pressure.
In family proceedings, publication of material intended, or likely, to identify a child's involvement in the case, or their address or school, is prohibited from being released to the public or any section of the public.
The Youth Justice and Criminal Evidence Act 1999 protects the personal data (name, address, school/place of work) of juvenile victims under age 18. Section 44 of this Act proposes that media reports do not identify juveniles that might be involved in criminal police investigations.
1.5 Identifying witnesses
The court can order the identification of a witness to be forbidden in any media coverage once court proceedings are underway. Media coverage is also restricted in youth court cases where juvenile witnesses are automatically protected from media identification.
Anonymity protection is guaranteed for witnesses and informants assisting the police while the case is being investigated
The Youth Justice and Criminal Evidence Act 1999 protects the personal data (name, address, school/place of work) of juvenile witnesses under age 18. Section 44 of this Act proposes that media reports do not identify juveniles that might be involved in criminal police investigations.
1.6 Rights of others
The court may direct a name or other information to be withheld from the public during court proceedings, and forbid publication of that name or information. The Contempt of Court Act 1981, Section 11, allows the court to restrict publication of those names which have not been spoken or made public during the hearing. Otherwise, the press is free to report them.
1.7 Reporting proceedings
To fully report the case, journalists may access prosecution material including film and photo evidence. National protocol was issued in 2005 by the Crown Prosecution Service regarding which prosecution materials may be released to the media for publication:
- individual photos, photographs/video of the crime reconstruction,
- court-produced maps and diagrams,
- post-event crime scene video recorded by police,
- court-produced video of seized property (weapons, drugs, stolen goods),
- court-read transcripts/statements, and
- (copyrighted) CCTV footage of the defendant.
English Law upholds the principal that court proceedings should be open and public.
Publishing confidential information of criminals which may lead to their identification and possibility of revenge attacks by the public is prohibited. Anonymity is currently only afforded victims and witnesses, but may extend to defendants soon. Juveniles' identities and information are confidential.
Chapter 2: Media law torts
A defamatory statement is a false statement which harms an individual or damages their reputation. According to the Defamation Act, responsibility for publishing a defamatory statement rests with the
- Author (statement originator),
- Editor (decides to publish the content of the statement),
- Publisher (issues material containing the statement to the public).
2.2 Pre-action protocols
Pre-Action Protocol for defamation claims encourages the parties to exchange information prior to court proceedings in an attempt to implement an alternative method of dispute resolution.
2.3 Truth and meaning
Libel exists in a permanent form (written words, photographs). Slander exists in a transient form (spoken word). In the media, libel actions are more common.
According to the Broadcasting Act 1990, a defamatory broadcast statement is libel. The burden is on the defendant (journalist) to prove the statement is true. In slander actions the burden is on the claimant to prove consequential damages have occurred.
No libel or slander action is pursued unless the published statement is definitively considered defamatory. Action may be pursued on grounds it is a malicious falsehood, however. A malicious falsehood doesn't always attack an individual's character or abilities, and it must be proved false to have merit.
2.4 Privilege and the public interest
Media organizations may use absolute or qualified privilege defenses that are intended to protect words quoted about the case. Qualified privilege typically protects a conviction report where the offender pleaded guilty or was convicted by a magistrate or jury. These cannot be used, however, if the organization has published a reference it made regarding a spent conviction, and if the conviction was inadmissible due to lack of credible evidence.
News journalism serves the public interest when it reveals, without malice, facts related to past convictions/spent conviction. When the media publishes non-malicious details and comments about spent convictions, such as those in an editorial column, no liable suit or consequences will occur.
2.5 Honest opinion
Although they may also be honest opinions, comments can safely be published when they are in the public interest, editorials, or pertain to a politician or public figure. A comment that may be determined as a malicious falsehood may also simply be an honest mistake. If such an error is realized, the editor should publish a retraction as soon as possible to reduce the possibility of a claimant filing/winning subsequent legal action (on the basis the false statement was published with malice).
The Code of Practice states that "everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications." An individual's privacy must be protected, and editors are expected to justify their invasions of privacy. Photographs used without consent are also unacceptable.
Broadcasters must not only avoid unwarranted infringement of privacy in programming, but also must ensure unwarranted infringement of privacy while obtaining the program material is justified. To be justified, the broadcaster must demonstrate the privacy infringement occurred in the best interest of the public.
2.7 Tort law
Tort law addresses the court's rights, obligations, and remedies applied in civil proceedings to provide relief to victims suffering harm from the wrongful acts of others (defendants). Anyone may sue.. For the court to remedy the case,
- the defendant (publisher) must owe a legal duty to the victim which is legally enforceable and requires an individual to exhibit behavior which is of a certain standard.,
- the defendant must have breached his/her legal duty,
- breach of the legally imposed duty must have caused direct or indirect damage or injury to the victim, and
- the damage or injury may be physical, emotional distress, or embarrassment.
A defamatory statement is a false statement which harms an individual or damages their reputation. Libel claims result from misuse of written words and photos. Slander is associated with broadcasts. Falsehoods typically cause no injury or damage, must be proved, and may be retracted. Pre-action protocols are intended to resolve disputes out of court, saving time and cost.
Chapter 3: Media law obligations
3.1 Personal data
Personal data is exempt from Freedom of Information Act disclosures, since to do so breaches terms of the Data Protection Act 1998. Personal Information is a professional privilege and data is exchanged between a solicitor and client. The Freedom of Information Act provides exemptions with regard to releasing personal data:
- when the information is for the purpose of investigating an alleged crime, or
- when the information could prejudice law enforcement matters or investigations if/when disclosed.
The Freedom of Information Act 2000 provides a statutory right to access personal and non-personal information held by public entities such as government departments, local authorities, NKS bodies, academic institutions, police, etc. Each public organization must have a record of information it holds. The Act exempts a public authority from making certain records available to the general public, including:
- information does not have to be made available until the intended publication date,
- information regarding interests of national security, defense of Great Britain, international relations which will be prejudiced if disclosed,
- UK economic or financial interests which will be prejudiced if disclosed,
- information for the purpose of investigating an alleged crime, or
- information that could prejudice law enforcement or investigation matters if disclosed.
Intellectual Property ("IP") is the ownership and rights to ideas and creations. IP comprises the establishment and protection of ownership rights such as copyrights, trademarks, patents and design rights. IP is valuable to individuals, writers, photographers, SMEs, and corporations. IPs are registered and their validity differs depending on the type of right for which it is protected.
The most common IP is the copyright which provides the protected rights of literary/published, dramatic, musical, artistic, visual, audiovisual, broadcasts and electronic works.
Broadcasts made on or after 1 August 1989 are copyright protected under the Copyright, Designs and Patents Act 1988. Earlier broadcasts are protected under earlier legislation.
An Internet transmission is not defined as "broadcast" unless it
- occurs simultaneously on the internet and by other means,
- is a concurrent transmission of a live event, or
- is a transmitted program service of recorded moving images or sounds, transmitted at scheduled times.
3.4 Intellectual property rights – 2
Other intellectual property rights have been established:
- trademark registration (name, image, domain names)
- passing off (celebrity endorsements)
- patent (invention, technical, scientific).
The owner of the copyright may obtain an injunction, restrain the individual, and seek damages for infringing the copyright. Fair dealing with a work is not classified as an infringement, when the author is acknowledged and the work is copyrighted and made available to the public.
Exclusive photographs are frequently borrowed among publications, and as a result, are excluded from the fair dealing defense of the Copyright Designs and Patents Act 1988, Section 30. Similarly, when the published work is a review or critique, fair dealing with a copyright work will not be considered an infringement.
Journalists are forbidden to engage in intimidation, harassment, or persistent pursuit. It is up to the editor to monitor this.
The Press Complaints Commission Editors' Code of Practice is the print journalist's guide to ethics:
- Journalists cannot engage in intimidation, harassment or persistent pursuit.
- Journalists must not persist in questioning, telephoning, pursuing, or photographing individuals once asked to desist.
- Editors must ensure these principles are observed by employees.
The Press Complaints Commission Editors' Code of Practice (PCC) is the print journalist's ethics guide. It can force an editor to publish an adjudication against their newspaper/magazine including a PCC headline, but cannot shut down the operation. The Code applies to online as well as print publications.
Clandestine devices and subterfuge addresses issues of:
- deliberately obtaining/publishing materials from hidden cameras or listening devices, from telephone calls, messages, or email interceptions, from unauthorized or removed documents or photographs, or by accessing private, digitally-held information without permission.
- Engaging in misrepresentation or subterfuge by agents or intermediaries (justifiable only in the interest of the public and when material cannot be obtained by other means).
The Freedom of Information Act provides a right to access personal and non-personal information held by pubic authorities, although certain types of exemptions with regard to releasing personal data exist.
Intellectual property may be protected through copyright, which includes published, dramatic, musical, artistic, visual, audiovisual, broadcasts, Internet, and electronic works. Fair dealing is not considered an infringement if the copyrighted work is made available to the public and the author is acknowledged.
Editors must ensure their journalists do not engage in intimidation, harassment, or persistent pursuit. They must equally ensure all materials collected are authorized for use, and not obtained using clandestine listening devices, intercepted messages, hidden cameras, or from private digital accounts.