LESSON ORIGINAL

JOURNALISM AND NEWSWRITING
LESSON 8
Journalists and the Law
© LONDON SCHOOL OF JOURNALISM
2
LESSON 8
JOURNALISTS AND THE LAW
What is a free press? Defamation and contempt. Digital media risks.
Reporting crime stories. Reporting the courts. Juveniles and the courts.
Sex offences. Contempt of court. Libel risks. Libel defences. Copyright.
Breach of confidence. Privacy.
WHAT IS A FREE PRESS?
How much do you know about the law? Most people would say they have a
reasonable understanding of what society regards as acceptable and
unacceptable behaviour. They will probably be able to name some of the most
common or serious crimes, like theft, burglary, arson or murder, and may even
have committed a less serious offence themselves, like speeding.
Yet much of what we know about the law will have been picked up not through
formal study but by watching detective stories, police dramas or courtroom
thrillers on television, where fact and fiction are closely interwoven.
All published writers need to have a much more detailed and accurate knowledge
of the law than ordinary members of the public, because we run the risk of
breaking less familiar laws than those which provide the storylines for fictional
drama.
Libel, contempt of court, privacy, breach of copyright – do these terms mean
anything to you? If not, your work cannot be published safely without an
experienced editor studying what you have written to ensure you have not broken
the law.
This applies whether you are working for newspapers, magazines, radio, TV or
the internet. It applies whether you specialise in columns or reviews, travel articles
or consumer tests. But it applies most of all if you are a reporter covering hard
news stories.
Aspiring journalists, especially those who have gained their initial writing
experience on student papers and internet websites, sometimes assume they can
write what they like with impunity – that when it comes to freedom of speech,
“anything goes”. This is not the case. There are numerous laws restricting what
we can write, many of them protecting ordinary people’s rights – the right to a fair
trial, for example, or the right not to have one’s reputation unfairly or falsely
attacked.
There are two reasons why all journalists need to have a detailed working
knowledge of the law.
One is so that they know their rights – how far they can safely go when writing
a story without breaking the law. This means knowing when they are permitted to
attend courts and council meetings, understanding what is meant by terms like
freedom of expression, recognising when a story is in the public interest and
knowing what defences exist in defamation and contempt cases. The other is so
that they can recognise potential legal pitfalls and abide by the legal restrictions
imposed on them.
3
Most journalists find the law is a fascinating subject to study, but no one would
suggest it is easy. It’s also a subject where a little bit of theoretical knowledge is
not sufficient to keep you out of trouble. Working journalists need to know how to
apply the law to different real-life situations – and this is a skill which trainee
journalists find hardest to master.
Why do you need to have such a detailed knowledge of the law? Because many
trainee newspaper reporters are expected to cover the courts and there are
numerous examples of cases where both magistrates and judges have made
mistakes when reaching decisions about what reporting restrictions to impose.
In such circumstances, there is no one else present in court who can plead the
journalist’s case. And if the decision is allowed to stand unchallenged, it may
involve a long and expensive legal process to overturn it. The only person who
can make a real difference on the spot is the individual court reporter – provided
that their knowledge of the law is sound.
This means that, up and down the country, young reporters are required to
challenge invalid or inappropriate orders and explain to the magistrate or judge
the legal basis on which their challenge is based. It may not sound fair, but that’s
the way the judicial system operates and journalists have to be quick on their toes
to stand up for their rights.
What are the main restrictions? These are among the most important:
▪ Defamation – are you damaging a person’s or a company’s
reputation?
▪ Contempt – are you posing a substantial risk of serious prejudice to
legal proceedings?
▪ Reporting restrictions – are you breaking the laws relating to the
identification of children and young people, or victims of sexual
offences?
▪ Copyright – are you “stealing” somebody else’s original work?
It is also important to have an understanding of the differences between the main
divisions of the law.
Criminal cases will be heard in the magistrates’ court or crown court
depending on the nature of the offence. Most cases involving young people will
be heard by magistrates sitting as a youth court, although such cases may be
heard in adult court when the crimes are particularly serious.
Civil cases will normally be heard in county court (usually smaller claims and
straightforward cases) or the high court (larger claims and more complex cases),
although some civil issues are dealt with by magistrates.
INTERNATIONAL LAW is concerned with disputes between countries, often
relating to treaties that have been agreed between different governments.
NATIONAL LAW is the law which applies within each country. Scotland, for
example, has a different legal system from England and Wales.
EUROPEAN LAW relates to the law within the European Union, often decided by
treaties agreed between member states. Points of European law are decided by
the European Court of Justice in Luxembourg.
4
Despite the UK leaving the EU, some legal rulings by the ECJ will still have an
impact on UK law, or on companies dealing with countries within the EU, for
example.
Human rights issues are decided at the European Court of Human Rights in
Strasbourg. Individuals may complain to the European Court of Human Rights
that their rights have been violated, although this too is technically not an “appeal”.
The ECHR may rule on breaches of human rights and may award compensation,
but it is up to the UK government to decide what action to take following an
adverse finding.
Courts in England and Wales operate a rigid doctrine of judicial precedent which
has the effect that every court is bound to follow any decision made by a court
above it in the hierarchy.
DEFAMATION AND CONTEMPT
These two areas will form the cornerstones of your legal awareness and you will
be studying both in detail during this course. It is important from the outset that
you have a clear idea in your mind of what the words refer to and the differences
between them. Some exam questions relate to real-life situations where there is
a risk of both defamation and contempt. In such cases you will be required to
demonstrate your knowledge of the different pitfalls involved and what changes
would be required in your copy to make it safe. For this reason it is extremely
important that you never confuse the two.
The law of defamation exists to protect the reputation of individuals from
unjustified attack. A defamatory statement is a false statement, injuring the
reputation of the person about whom it is made, and published to a third party. An
individual, or a corporation, or a company can be libelled, but not a dead person.
Somebody who believes they have been libelled can take civil action against the
publisher, editor and writer involved and, if successful, can be awarded a large
sum of money by way of compensation. Every section of the paper – stories,
headlines and picture captions in news, features and sport alike – has the
potential capacity to be defamatory.
Note that the journalist does not have to be the author of the offending statement.
To report a libellous statement by someone else is to publish a libel. So that if a
town councillor says in an interview “The Mayor is a swindler and a thief. He is
using council funds for his own purposes”, the newspaper which quotes him as
saying so could be sued for libel if the statements are not true. Thus a reporter
may have to omit part of a speech or a statement because it is defamatory, even
though the speaker may not be aware of the libel. (In spoken form it would be a
slander.)
Contempt of court, by contrast, is a criminal offence which relates to the
publication of anything which interferes with the course of justice or prejudices a
pending trial. The main trap for journalists is the reporting of matters which are
sub judice (ie awaiting the decision of the law). When a crime has been
committed, newspapers try to tell the fullest possible story, taking pictures of the
scene and interviewing witnesses. But they must never suggest that a particular
person was responsible, even if they and the police are convinced they know who
did it.
5
DIGITAL MEDIA RISKS
Journalists working on the internet should be aware that the legal restrictions
which apply to print journalists will still be relevant to web writers, irrespective of
the means by which the information is being ‘published’.
For example:
▪ newsgroup postings and bulletin boards
▪ chat rooms and discussion forums
▪ e-mails and other file transfer systems
▪ online archives and libraries
▪ uploaded video clips
A libellous statement is no less libellous simply because it is contained in an email or posted on a bulletin board – so new media journalists need to be very
keenly aware of defamation risks. The same applies to contempt of court.
They may also face problems if the hyperlinks they add to their own site take
readers to other sites on which, for example, defamatory information is published.
Even though you are not the publisher of the libellous material, it is you who are
drawing people’s attention to it through your hyperlink.
New media journalists also need to be aware that simply because they have the
power to publish across international boundaries does not automatically mean
that they are ‘above the law’ in the countries concerned. There is also a particular
risk of being in breach of copyright on the internet – and this applies to sound,
pictures and graphics as well as words.
In addition to legal restrictions, there are also a number of codes of conduct which
encourage or enforce ethical standards in the media.
The Editors’ Code of Practice (Chapter 2) is a form of voluntary self- regulation
endorsed by the print media and giving guidance on a range of issues. Other
codes apply to radio and television journalists.
The code – which from September 2014 has been overseen by the Independent
Press Standards Organisation – tells print journalists how they should handle
a range of issues but permits exceptions to certain clauses when it is
demonstrably in the public interest for journalists to detect or expose crime, protect
public health and safety or prevent the public from being misled.
There are plenty of stories which may be of interest to the public, but this is not
sufficient to justify a breach of the code. The phone-hacking disclosures which
led to the closure of the News of the World in 2011 and the subsequent Leveson
Inquiry into press standards have thrown an unprecedented spotlight on such
issues, paving the way for the introduction of a tougher regulatory regime.
6
REPORTING CRIME STORIES
When a crime has been committed, newspapers try to tell the fullest possible story
of what has happened – and in most cases they will be free to report the incident
in considerable detail, taking pictures of the scene and speaking to both victims
and eyewitnesses. (This is the case as long as the crime is not a rape or sexual
assault, because there are restrictions on identifying the victims of sexual
offences.)
It also applies as long as no one has been arrested for the crime and as long as
we do not suggest that a particular individual was responsible for it. (As well as
any danger of contempt, there would be a serious defamation risk in publishing
such a suggestion).
If a man comes home from work one evening, kills his family with an axe and is
arrested at the scene, we have to be careful what we write, even where the ‘facts’
seem indisputable. Everyone may believe that Mr Smith did it. A dozen people
may have seen him commit the crime. But it’s not our job to decide his guilt before
he has even appeared in court – and sometimes those ‘facts’ will be more
complicated than they might at first appear and open to different interpretations.
So initially, the reporter on a crime story will have a great deal of freedom prior to
an arrest being made. The situation will change as soon as someone is arrested,
so the reporter will make regular checks with the police prior to publication to make
sure no one has been caught.
This is particularly important on weekly papers, where there may be a longer
period between the crime being committed and the paper going to press. Indeed,
to protect themselves fully, reporters should keep a detailed note of their check
calls with the police.
Once someone has been arrested, there are a number of considerations which
could affect how much of the original story we can use:
• whereas we could originally report that police have launched a murder
inquiry, we should be cautious about using the word ‘murder’ in case the
arrested individual is charged with a lesser offence like manslaughter
• incriminating background information like previous convictions or
confessions could now be seriously prejudicial to the arrested man’s trial
• similarly, detailed eyewitness testimony which goes to the heart of the
case could be very damaging, especially since such witnesses are likely
to have to testify at the trial (and might feel obliged to stick to any version
of the events which has been published in a newspaper interview)
• in cases where identification is an issue – ie when witnesses in court
could be asked to identify the person they saw committing the crime, or
where an identity parade is to be held – detailed descriptions and/or
photographs could be prejudicial by confusing or influencing such
witnesses
7
However common ground will be safe to report – who has died and where, for
example, along with other undisputed facts relating to the case.
For the above reasons, press reports following an arrest are generally more
guarded (although the national tabloids frequently overstep the mark, which has
resulted in some high-profile prosecutions for contempt).
REPORTING THE COURTS
There are more than 7,000 criminal offences. The most common include road
traffic offences, minor assaults, misuse of drugs, theft, burglary and a variety of
offences involving deception and fraud, criminal damage and sexual offences.
There are three different categories of offence, and the restrictions on court
reporting differ considerably depending which category you are dealing with.
SUMMARY offences are triable only at Magistrates’ Court – these are generally
less serious offences and magistrates will deal with the defendant right through
to the point of sentence. They include most driving offences, common assault,
obstructing police, criminal damage which has caused less than £5,000 worth of
damage, soliciting and kerb-crawling.
INDICTABLE offences are triable only at Crown Court – these are serious
offences like murder, rape, robbery and arson. But the accused will first appear
in front of magistrates who must, after hearing any application for bail, send for
trial at Crown Court. These include murder, manslaughter, rape, robbery,
poisoning, false imprisonment, kidnapping, hostage taking, conspiracy to
defraud, incest, blackmail, perjury and perverting the course of justice.
EITHER WAY offences can be tried either summarily or on indictment at Crown
Court. In these cases, the accused must be asked to indicate whether he will
plead guilty or not guilty. If he pleads guilty, the magistrates must proceed as for
a summary trial. If he pleads not guilty, they must decide whether the case is
suitable to be tried summarily or should be committed to Crown Court for trial.
Examples include theft, assault causing actual bodily harm, wounding or inflicting
grievous bodily harm, possessing or supplying controlled drugs, sexual assault,
burglary and handling stolen goods.
Reporting summary cases rarely poses any serious problems for reporters. But
in both of the other categories, reporters can sometimes be confused by the fact
that these cases reach Crown Court by a way of a hearing in front of magistrates,
when strict reporting restrictions apply.
There are more than 150 Magistrates’ Courts in England and Wales. These are
local courts, so one will be found in almost every town and there will be several
such courts in big cities. You can find out more about how the courts operate by
consulting the website for HM Courts & Tribunals Service at www.gov.uk.
So how do you go about reporting the courts? Let’s start by considering a
straightforward summary offence where the defendant has pleaded guilty.
There will normally be a short prosecution outline of the facts followed by a
defence mitigation and then sentencing.
8
Some offences will be so commonplace and relatively minor that newspaper
reports may be restricted to a list of those sentenced, along with their age,
address and details of the fines. An example might be non-payment of a TV
licence.
But long lists are not very interesting for readers and there is usually a little
more detail required to explain the facts. A common difficulty for trainees is to
do this in a lively, newsworthy way while still ensuring that all the vital formal
details are included.
At this point it is perhaps worth thinking again about your rights and restrictions.
You will recall the comments made by senior judges about the importance of a
free press and the media acting as the “eyes and ears of the general public”.
A fundamental principle of the English judicial system is that the courts should
administer justice in public – that justice should be seen to be done. You will
be studying this in more detail when you look at admission to the courts, access
to court information and challenging the courts. The only exception is if this
would make the proper administration of justice impracticable.
Coupled with this principle of open justice are certain specific protections for
the court reporter.
Clearly many things that are said in court are defamatory. But the law
recognises there are occasions when the public interest demands there shall
be complete freedom of speech without any risk of proceedings for defamation,
even if the statements are untrue.
To ensure that the press can play their role in the administration of justice, court
reports are therefore protected by absolute privilege.
Absolute privilege is a complete answer and bar to any action for defamation
and this defence applies to court reports of proceedings in the UK as long as
they comply with three criteria. Court reports must be:
• FAIR
• ACCURATE
• CONTEMPORANEOUS (published in the first available issue).
This is discussed in more detail under the Defamation heading. There is a
similar protection against the reporter being held in contempt for reporting court
proceedings – as long as no specific court order is broken and no other
reporting restrictions apply.
Look at those conditions again and consider how they apply to what you are
writing. Contemporaneity is not usually an issue, because you will normally be
writing for the next available issue of your paper, whether it is a daily or a
weekly. But you MUST ensure your report is FAIR and ACCURATE, or you
could be landing your paper in serious trouble.
Let’s go back to the Magistrates’ Court and a summary case where someone
has pleaded guilty to a minor offence. What are the essential details you need
to include in your report?
The name of the court, details about the defendant, the charge(s), the plea, the
sentence – or other arrangements for dealing with the case.
9
If all the above are included accurately, you will be off to a flying start. You
DON’T have to report the whole case verbatim for it to be fair – a summary is
fine. You don’t have to balance up every statement made in court, particularly
if the defendant has pleaded guilty – although you would be expected to report
any relevant mitigating circumstances given by the defence, especially if these
are given credence by the magistrates and reflected in the sentence.
Other details you MAY wish to include names of magistrates, witnesses,
defence and prosecution counsel and solicitors.
The location of the court is an obvious necessity. But why do we need so much
detail about the defendant? Newspapers argue it is vital to give as much
information as possible to avoid any confusion over the identity of the accused.
This is particularly important if there are two men with the same name in the
same street, for example. And the age will identify whether it is John Smith (the
father) or John Smith (his son) who has committed the offence.
As well as being in the interests of open justice, this also avoids the potential
risk of someone being wrongly identified as a criminal by their friends and
neighbours and subsequently suing the paper for libel.
Sentences can also hold a few pitfalls for the unwary. Make sure you
understand the difference between concurrent, consecutive and suspended
sentences. And be aware too that the courts can order an offender to pay
compensation for injury, loss or damage, which is not the same as a fine.
If the magistrates feel their sentencing powers are insufficient in view of the
serious nature of the crime, they may commit the convicted offender to Crown
Court for sentence. Don’t confuse this with his being sent to Crown Court
for trial.
Study a typical regional paper court report (you will find plenty of examples
online) and see how the essential facts (in bold type) have been worked in to
the story, with the defendant clearly identified, along with the charge, the
location of the court and the outcome of the case.
The main problem in reporting a summary trial where the defendant has
pleaded not guilty is that the trial may last a long time because of the amount
of questioning involved. This means that the case may have to be reported in
instalments – particularly in a daily paper.
The first implication of this is that the paper MUST indicate that the trial is
ongoing and that there is more evidence to be heard. Papers usually have a
house style for this, often by adding the concluding line to the court report “The
trial continues” or “(Proceeding)”.
The second implication is that for papers to produce a FAIR and ACCURATE
report of the trial, they can’t just dip in and out of it when it suits them, because
they may miss vital evidence.
Similarly, they can’t report one day’s proceedings and ignore the next because
they may only hear the prosecution evidence. This can be a serious problem
for short-staffed papers and is one reason why many local papers no longer
cover courts as frequently as they used to, or rely on agency copy rather than
sending their own reporter.
The third implication is that because all the evidence has not been heard, the
10
reporter has to be more careful in ACCREDITING statements made in court
which may be refuted at a later stage. For this reason, the words “claimed” and
“alleged” will appear more frequently in a report of an ongoing trial.
For a full-blown Crown Court trial with a jury, the procedure will depend on
whether the plea is GUILTY or NOT GUILTY, but such cases are normally
tackled by experienced court reporters who have passed media law exams
going into more detail about what can and can’t be reported from the courts.
JUVENILES AND THE COURTS
Juvenile courts were established under the Children & Young Persons Act
1933 and were renamed youth courts in 1992.
The act restricts what may be reported about those under 18 who are involved
in court proceedings, whether as a defendant or witness.
In law, a child is defined as being aged between 10 and 13. A young person
is aged between 14 and 17. A child under 10 cannot be charged with a criminal
offence. A teenager aged 18 or over is an adult.
Youth Courts
Section 47 of the CYP Act 1933 states that while the general public are barred
from youth courts, bona fide representatives of the press are allowed to be
present.
Section 49 of the act states that reports of youth court proceedings must not
contain:
• the name, address, school or any particulars leading to the
identification of a child or young person involved in the proceedings
• any still or moving photograph of, or including, any such juvenile
Thus a youth court report can safely report a young person’s age, city or town
of residence and job, if appropriate, as long as none of these details could
identify the juvenile in question.
A youth court or the Home Secretary has the power to lift the restrictions on
identifying any juvenile concerned in the proceedings to avoid injustice to that
juvenile.
A youth court, on the application of the Director of Public Prosecutions, may
dispense with the restrictions in order to trace a juvenile wanted for violent
or sexual offence or an offence where an adult could be jailed for 14 years
or more.
A youth court can also waive the restrictions on identifying a juvenile when
he/she is convicted if magistrates believe it would be in the public interest.
A Home Office circular said that the lifting of restrictions would be
particularly appropriate where:
• the offending was persistent or serious and/or had an impact on a
number of people
• alerting others to the offender’s behaviour would help prevent further
offending
11
Juveniles in adult courts
There is no automatic anonymity for juveniles appearing as defendant, victim or
witness in adult criminal courts, but the court may impose such a ban – and
frequently does – under Section 45 of the Youth Justice & Criminal Evidence Act
1999
Applies to criminal proceedings in adult courts until the age of 18
If made you cannot publish:
• name; address; school; educational or work establishment; still or
moving picture; or anything else likely to lead to the identification
• of a child or young person (under 18)
• concerned in the proceedings (defendant, victim, witness)
The order cannot be made in respect of:
• an adult defendant;
• children not involved in the proceedings; or
• dead children.
The court or appeal court can dispense with such restrictions if it is satisfied:
• it is necessary in the interests of justice
• the effect is to impose a substantial and unreasonable restriction on the
reporting of proceedings and it is in the public interest to remove or relax
the restriction
In considering whether to impose such a ban, courts are expected to weigh up
the balance between the public interest in knowing the identity of the juvenile
and any likelihood of harm to the juvenile.
Most successful challenges relate to cases involving:
• serious crimes
• dead children
• young babies
• identities which are already in the public domain
• attempts to protect adult defendants
Jigsaw Identification
Note the phrasing of the identification ban on juveniles specifies that the reporter
must not include any information leading to the identification of the child or young
person. This means reporters must take care that details in their story cannot be
pieced together like a jigsaw so that they inadvertently reveal the identity of the
young person. This poses particular dangers in cases which involve sexual
offences.
Family proceedings
Complex restrictions govern the reporting of family proceedings where children
are involved in divorce, adoption or wardship cases, or are being taken into the
care of the local authority.
12
SEX OFFENCES
The law provides protection for victims of most sexual offences by ensuring that
they cannot be identified for as long as they live. This anonymity is enforced
through the Sexual Offences (Amendment) Act 1992 and extends to the following
offences:
• all offences which include the word ‘rape’*
• male rape
• sexual assault (on a male or female)
• intercourse with girls under 16
• intercourse with mentally handicapped people
• indecent conduct towards a young child
• procurement of a woman by threats & false pretences
• giving drugs to obtain intercourse
• procurement of mentally handicapped people
• includes attempted rape; aiding, abetting counselling or procuring rape
or attempted rape; incitement to rape; conspiracy to rape.
Anonymity also extends to the victims of more sexual crimes introduced under
the Sexual Offences Act 2003 – a major overhaul of legislation which also
introduced tougher sentences.
Other offences include sexual activity with a child, engaging in sexual activity in
the presence of a child, causing a child to watch a sexual act, meeting a child
following sexual “grooming”, abusing a position of trust in any of these
offences, indecent photographs of children, abuse of children through
prostitution and pornography, trafficking for sexual exploitation, indecent
exposure and voyeurism.
More recent legislation has also protected victims of female genital mutilation
and, under the Modern Slavery Act 2015, alleged victims of economic
exploitation (ie those who have been trafficked as modern-day slaves, even if no
sexual exploitation is involved).
Offences of abuse of trust relate to people under 18 – so that a teacher may be
jailed for consenting sex with a pupil who is over 16 but under 18. Positions of
trust relate to adults working in schools, hospitals, care homes etc.
There is no automatic anonymity for defendants in sex offence cases, although
care must be taken not to identify the victim if they are connected in some way.
Reporting restrictions do not apply if someone is charged with perjury or
perverting the course of justice by making a false accusation of rape, for
example. Nor is there anonymity in sex-trade offences like soliciting, kerbcrawling or running a brothel.
Ethical considerations
In addition to legal restrictions, the Editors’ Code of Practice also includes two
clauses relating to sex offences.
13
Clause 7 – Children In Sex Cases
1. The press must not, even where the law does not prohibit it, identify
children under the age of 16 who are involved in cases concerning sexual
offences, whether as victims or as witnesses.
2. In any report of a case involving a sexual offence against a child –
I. The child must not be identified.
II. The adult may be identified.
III. The word ‘incest’ must not be used where a child victim might be
identified.
IV. Care must be taken that nothing in the report implies the
relationship between the accused and the child.
Clause 11 – Victims of Sexual Assault
The press must not identify victims of sexual assault or publish material likely to
contribute to such identification unless there is adequate justification and, by law,
they are free to do so.
Jigsaw identification
As with cases involving the identification of juveniles, newspapers must take steps
to avoid jigsaw identification of victims of sexual offences.
CONTEMPT OF COURT
The right to freedom of expression is a guiding principle of life in a democracy and
it has become a specific legal right, contained in Article 10 of the European
Convention on Human Rights.
The right to a fair trial has always been another guiding principle of the British
legal system and since the incorporation of the European Convention on Human
Rights into UK law it too become a specific legal right, contained in Article 6 – a
right which is defended by the Contempt of Court Act 1981.
A journalist held to be in contempt can be jailed or fined. There is also the
possibility of a journalist being prosecuted for common law contempt – ie outside
the provisions of the Contempt of Court Act.
Clearly there may be occasions where there appears to be a conflict between
these fundamental rights. So how might a journalist be in contempt of court?
• by publishing material which might prejudice a fair trial
• by publishing anything which interferes with the course of justice
• by breaching an order of the court
• by breaching an undertaking to the court
• by bribing witnesses or vilifying jurors
• by inappropriate behaviour in court
• by scandalising the court (highly unlikely in modern times)
14
Most problems for journalists arise in relation to the Contempt of Court Act, which
defines circumstances in which contempt by publication is an offence of strict
liability – in other words, regardless of intent.
Section 2 of the Contempt of Court Act 1981 states that a person can be guilty
of contempt by publication under the strict liability rule only if two conditions
are met:
1. proceedings are ACTIVE
2. there is a SUBSTANTIAL RISK of SERIOUS PREJUDICE
When are proceedings active? In CRIMINAL cases, when a warrant or summons
is issued, an arrest made or the individual charged.
Before an arrest
Before proceedings become active, there will normally be no danger under the
strict liability rule of the 1981 Act, although there may still be a possibility of
contempt at common law. This means reporters – especially those on weekly
papers where an arrest is more likely to occur before publication – should check
with the police to confirm that no arrest has taken place or warrant issued.
Police appeals for help
Sometimes when the police have obtained a warrant for a person’s arrest, they
seek help from the press in tracing him. This might technically be at risk of
contempt, but the Attorney-General has said the press has nothing to fear from
assisting the police in the apprehension of a wanted man.
After an arrest – the early stages
As soon as a case becomes active, however, reporters and sub-editors should
be wary of phrasing the story in such a way as to imply that those in police hands
are indeed the culprits. (Note that there may also be libel risks in the way the
arrest is reported.)
One can report a post office robbery and say later that a man was arrested but
not THE man. It would also be dangerous to include descriptions of three men
who raided a bank, lest those arrested answer to the same description, or to refer
to the victim as being found murdered, in case the accused is not being charged
with murder.
Danger Areas
• saying THE man was arrested, assuming guilt of accused
• publishing descriptions, pictures, eyewitness accounts
• incriminating background, previous convictions, confessions etc
The big dangers occur if you publish information which ‘goes to the heart of the
matter’ and prejudices a jury hearing a Crown Court case – so both local and
national papers and websites need to be particularly careful when covering major
crime stories and trials where the coverage may influence members of the jury
sitting in the case.
15
Section 4(1) of the Act gives specific protection to court reporters by stating that
a person will not be guilty of contempt under the strict liability rule in respect of
“a fair and accurate report of legal proceedings held in public published
contemporaneously and in good faith” as long as no order has been made
postponing reporting of certain matters or banning the identification of a name or
other information.
Section 5 – Public interest defence. If you publish a general discussion on a
matter of public interest, you will not be held liable for contempt just because
someone somewhere is on trial for the type of offence you are discussing. But
you will not be able to rely on this defence if your debate is simply an excuse to
publish prejudicial information which does relate to a specific case
Photographs
Pictures can be as dangerous as words when it comes to contempt. In 1994 a
record fine of £80,000 for contempt was imposed on the Sun, which published a
photograph of a man accused of murder just weeks before a police identity
parade. The paper’s then editor, Kelvin MacKenzie, was fined £20,000.
Even if a photograph is not in itself dangerous, it may be rendered risky by the
accompanying caption. A picture taken at a protest march apparently showing a
confrontation between a policeman and a protester, for example, might not be
incriminating until a careless sub-editor decides that the protester is a “thug” or a
“vandal”. (Such a caption would also pose a defamation risk).
Under the Criminal Justice Act 1925, section 41 prohibits the taking of any
photograph in the court or its precincts (or making any portrait or sketch in court
with a view to publication). “Precincts” is not defined in the Act, which can cause
practical difficulties for journalists.
Theory and Practice
For trainee journalists learning about contempt for the first time, the emphasis is
on identifying potential contempt risks. But there are contradictions in the way the
law is applied and the way newspapers and broadcasters react to the risks – some
escaping punishment for contempt in cases where it has been judged that there
was no substantial risk of serious prejudice, others being fined for basic errors
brought about by confusion or complacency.
Contempt v Defamation
Although some stories may involve you identifying both contempt and defamation
risks, it is vital you do not confuse the two.
Remember:
Contempt of court is a criminal offence which relates to the publication of
anything which interferes with the course of justice or prejudices a pending trial.
The law of defamation exists to protect the reputation of individuals from
unjustified attack.
Somebody who believes they have been libelled can take civil action against the
publisher, editor and writer involved and, if successful, can be awarded a large
sum of money by way of compensation. Every section of the paper – stories,
headlines and picture captions in news, features and sport alike – has the
potential capacity to be defamatory.
16
LIBEL RISKS
In a democratic society, journalists have a vital role to play in exposing crime,
deceit, hypocrisy and incompetence. Such freedom of speech also implies that
the press should be able to comment, criticise, debate and campaign on behalf of
the public.
The courts have long supported this principle while attempting to protect other
fundamental freedoms.
The law of defamation – as laid out in the Defamation Act 1996 and 2013 – exists
to protect people (and companies) from unjustified attacks on their moral and
professional reputation – both through the spoken word (slander) and the written
word (libel).
Under the Broadcasting Act 1990, defamatory statements broadcast on radio,
TV or in a cable programme, are treated as libel, as are such statements in a
public performance of a play, by virtue of the Theatres Act 1968.
Since newspapers attack people’s reputations every day, journalists need to have
a clear understanding of the law of defamation – of the potential risks they face,
what they can do protect themselves from libel actions, what defences may be
open to them and how they should respond to complaints.
Three factors make it particularly important that journalists understand this area
of the law:
• libel actions can be extremely costly to defend
• outcomes (especially those decided by juries) can be
unpredictable
• most successful libel actions stem from journalists’ mistakes
The best protection for journalists is for us to abide by a simple ABC – accuracy,
balance and care – in every story we handle.
WHAT IS DEFAMATORY?
There is no comprehensive definition of what constitutes defamation but judges
have told juries a statement about a person is defamatory if it tends to do any of
the following:
• LOWER him/her in the estimation of right-thinking members of society
generally
• INJURE him/her in his business, trade or profession
• CAUSE him/her to be shunned or avoided
• EXPOSE him/her to hatred, ridicule or contempt
Note the words tends to. The person suing does not have to prove the words
actually did expose him to hatred or whatever. However under Defamation Act
2013 the claimant must now show the statement “caused, or was likely to cause,
serious harm to their reputation”. Businesses can only sue if statement “caused,
or was likely to cause, serious financial loss”. Cases have to be brought within
one year of last publication.
17
So what sort of statements could be defamatory? Some are obvious. It would be
defamatory to suggest, wrongly, that someone was involved in criminal activity,
acted immorally or dishonestly or was negligent or incompetent in their job, for
example.
Remember that the context is all-important. It would not automatically be
defamatory to say someone lacked financial acumen – but if they were a merchant
banker or tax consultant, such a statement could be very damaging to their
professional reputation.
Many successful libel actions have been based on arguments over the meaning
of words, any innuendo contained in them and any inferences which might be
drawn from them by reasonable people.
Note that the danger lies in false accusations. However, do not assume that even
when you know a controversial statement to be true, you are on safe territory.
One of the defences against a libel action is truth (formerly known as justification
but renamed and made a statutory defence in the Defamation Act 2013) – that
you can prove the words complained of are substantially true.
But it is a difficult defence to mount because the burden of proof rests on the
journalist. The claimant does not have to show the words were untrue.
The burden of proof extends not only to obvious allegations but any innuendoes
or hidden meanings which may be interpreted as being defamatory.
The difficulties have been illustrated by a number of high-profile cases – including
that involving Jeffrey Archer, the disgraced Tory peer, won his 1987 libel case
against the Daily Star over claims that he slept with prostitute Monica Coghlan,
but was later jailed for four years for perjury and perverting the course of justice
during the libel trial. Civil actions launched by the Star and News of the World
resulted in him repaying sums of up to £3m to the papers for costs, the original
damages and interest.
Who can sue?
Anyone capable of having a reputation is capable of losing it, although those with
most to lose are likely to fight hardest to protect themselves. The fact there is no
legal aid in libel has meant in the past that claimants with financial backing have
tended to pose the most risk. However media law specialists Peter Carter-Ruck
and Partners in 1998 became the first company to launch a “no-win, no-fee”
scheme for those who cannot afford libel actions, so you cannot presume that
those with limited means are in any way safe targets.
A number of organisations are also quick to support libel actions on behalf of
members ranging from headmasters to police and prison officers. MPs, judges,
diplomats and council executives can also be highly litigious, along with those
with large egos and/or substantial bank balances – including rock, TV and film
stars, sporting heroes, magistrates, lawyers and even journalists.
Companies and incorporated associations can sue, while local authorities,
government departments and most unincorporated associations cannot – but in
all cases, the risk is that posed by the individuals who run organisations or hold
power within them.
Can children sue? Anyone old enough to have reputation is old enough to lose
18
it. The first case of a libelled child to come before the courts was in 1991 when a
five-year-old boy alleged by The Sun to be “the worst brat in Britain” received
substantial damages. The boy, wrongly accused of having cut off his ear and
killing the family cat, was in fact registered disabled with a behavioural disorder.
Can criminals sue? Yes – although you could probably falsely call a convicted
rapist a careless driver without facing any substantial risk. If the charges were
reversed, of course, the risk would be very great indeed.
Can anyone sue on behalf of someone who dies? Beware only those who
breathe. The dead cannot sue for libel and angry or distraught relatives have no
legal redress unless they are personally targeted.
What a claimant must prove
To succeed in an action for defamation, a claimant must prove three things about
the statement:
Defamation – it is defamatory
Identification – it may be reasonably understood to refer to him
Publication – it has been published to a third person
He does not have to prove the statement is false. He does not have to prove intent
– ie that the writer meant to discredit him. He does not have to prove he has been
damaged in any way, only that the statement tends to discredit him. The court will
presume damage.
As mentioned earlier, under the Defamation Act 2013 someone bringing a libel
action will now have to prove that the statement caused, or was likely to cause,
serious harm to their reputation.
Most people who start libel actions do so because a statement did cause them
serious harm. However the change may have helped to deter trivial, timeconsuming complaints that usually go nowhere and libel actions against web-only
publications are likely to fail if the page did not attract many clicks.
Of these three elements, publication is usually not open to argument – although
a third person must be involved. Thus a sealed letter written to an individual is not
‘published’, whereas a postcard, which can be read by other people, including the
postman, is ‘published’.
This has implications for e-mail messages, too. There have already been libel
actions over e-mails sent to colleagues, but even a single e-mail message sent to
someone’s private address may be ‘published’ if anybody else has access to their
computer.
Libels contained on web pages, news groups, chat rooms and bulletin boards are
also regarded as being ‘published’ – indeed, prior to the Defamation Act 2013
they were published every time someone accesses the relevant site.
This has now changed so that the one-year time limit for starting a libel action
begins when an article is first published online and does not restart every time the
article is viewed.
(This protection will not help internet service providers who republish libellous
articles from another site, however.)
Identification is a thorny issue. Inexperienced journalists sometimes assume
19
they can protect themselves against libel actions by blurring the identity of the
person against whom accusations are made. In practice, this may well make
matters worse by extending the libel to other people the journalist had never
intended to target.
If a paper mentions that an unnamed former officer in charge of a local children’s
home has been put on the sex offenders register, the gentleman in question is
unlikely to complain to the paper – but every other former officer in charge of the
home for the past four decades will feel aggrieved enough to sue.
In court cases, full details should be given to avoid confusion. In 1940, the Daily
Express reported that Harold Newstead, a 30-year-old Camberwell man, was
jailed for bigamy. The paper was sued by another 30-year-old Harold Newstead
who claimed some people felt the article referred to him. If the paper had not
omitted Newstead’s address, the problem would not have arisen.
This may be a particular problem in those parts of the country where many people
in a town or a village share the same Christian name and surname.
A case in 2003 highlighted that publications should be more alert to the risks of
libelling someone they have never heard of or intended to libel. The leading dog
magazine Dog World carried a lengthy article on allegations of abuse by a dog
trainer called Stephen King, but overlooked the fact that there was another
Stephen King with a prominent reputation in the canine world.
There was nothing in the article to alert readers to the fact that Stephen Barry
King, who was subsequently prosecuted by the RSPCA and convicted of offences
relating to cruelty to animals, was not Stephen Geoffrey King, a respected pioneer
in a particular training technique. The test is whether a reasonable reader might
understand the article to be referring to the latter man – and the publication had
no option but to apologise and pay compensation.
Former Conservative politician Lord McAlpine won a pay-out of £185,000 from
the BBC in 2012 after it aired a Newsnight investigation into child abuse at a North
Wales care home. The BBC said the settlement reflected the gravity of the
allegations that were wrongly made. Although the peer was not named in the
programme, he was widely identified on the internet in connection with the story.
Sometimes the nationals have appeared to take a calculated gamble in publishing
such details even when they are aware it might lead to a libel action. However this
attitude may have changed following the Leveson Inquiry into press standards.
Although the inquiry’s focus was on illegal activities by newspapers and in
particular intrusions into privacy, concern over massive compensation payouts
and political calls for tighter regulation of the press have encouraged many editors
to take a more responsible approach towards publishing claims where there are
clear libel risks.
There were a number of calls in 2010/11 to reform the libel laws to offer more
protection to freedom of expression, taking account of the realities of 21st century
publication, particularly on the internet. There was also a widely perceived need
to limit the growth of “libel tourism” and cut back “conditional fee agreements”
which had become so prohibitively high that they posed a “chilling effect” on free
speech by encouraging papers to settle libel claims rather than pursue costly High
Court actions, editors argued.
The changes introduced in the Defamation Act 2013 followed some very high-
20
profile libel actions involving the Fleet Street tabloids.
In 2008 The Express Newspaper group paid out £550,000 in libel damages to
Kate and Gerry McCann, whose daughter Madeleine went missing in Portugal the
previous year, the size of the payout reflecting the fact that more than four papers
were involved in publishing more than 100 stories containing a variety of
defamatory allegations.
And coverage of the arrest of retired schoolmaster Chris Jefferies in relation to
the murder of landscape architect Joanna Yeates resulted in eight newspapers
paying out “substantial” damages in relation to more than 40 articles published in
late December 2010 and early January 2011. Mr Jefferies was described by his
lawyer as “the latest victim of the regular witch hunts and character assassinations
conducted by the worst elements of the tabloid press”.
Damages payouts in the UK have tended to remain relatively low compared to
those in some other countries (including Australia and Ireland), but the amounts
have been dwarfed by the high court costs involved.
Internet libel
Individuals and companies who host websites, bulletin boards and chatrooms (or
who contribute to them) need to be aware that the defamation laws apply as much
to the internet as they do to newspaper publishers and broadcasters.
Section 1 of the Defamation Act provides a very limited defence of innocent
dissemination. Intended to provide a defence to those who unwittingly providing
a conduit enabling another person to publish defamatory material, it is only
available to those who are NOT the “author, editor or publisher”.
This may sound like a possible defence for internet service providers to claim they
had no knowledge of a libel published in a newsgroup, chat forum or another site
to which they directed users through a hypertext link.
In August 2009 a judge ruled that Google was not responsible for publishing
information shown in its search results.
However the case of Godfrey v Demon Internet Ltd in 2001 appeared to establish
that under British law, service providers are held as being responsible for
defamation if they either store material or have any form of editorial control over
its contents. The test of ISPs is whether they take reasonable care to ensure
defamatory material is not posted on web pages – and whether they take steps
to remove such defamatory material once notified of its existence.
The £475,000 bill faced by Demon Internet after it settled two libel actions brought
by lecturer and researcher Laurence Godfrey was regarded as a “wake-up call”
to online providers. Demon settled out of court, agreeing to apologise to Dr
Godfrey and pay him £15,000 damages and £230,000 legal costs.
Demon did not suggest the libels were true, but argued it was not liable for their
publication or under any duty to remove them from its news servers, claiming it
had a defence under Section 1 of the Defamation Act. At an interlocutory hearing
Mr Justice Morland rejected Demon’s arguments, saying the defence was
available only to a defendant who had taken reasonable care in respect of
publication and had no knowledge or reason to believe that what it did
caused or contributed to the publication of a defamatory statement.
The same dangers apply to e-mail messages. There have already been libel
21
actions over e-mails sent to colleagues, but even a single e-mail message sent to
someone’s private address may be “published” if anybody else has access to their
computer. The same concerns apply to other restrictions on publishing like
contempt of court or the provisions of the Children and Young Persons Act 1933
and Sexual Offences (Amendment) Act 1992.
In 2004, there were a number of cases in which the courts upheld the right, in
principle, of individuals to sue for libel in the English courts over statements
published on internet websites run from other parts of the world. But the
Defamation Act 2013 sought to limit the risk of “libel tourism” by insisting that
claimants from outside the EU will now have to prove that the UK is the most
appropriate jurisdiction to hear a case.
A new defence introduced under the Electronic Commerce (EU Directive)
Regulations 2002 protects ISPs in situations where they act as a temporary
conduit for information, have no prior knowledge that the information is illegal and,
as soon as they are informed that is, remove it quickly.
Initially few internet libel cases reached the courts, but in July 2008 a
businessman whose personal details were “laid bare” in fake libellous entries on
Facebook won £22,000 damages against a former friend who created the profile
– £20,000 for libel and £2,000 for breach of privacy.
Online publishers may also need to vet the “tagging” system used for accessing
associated archive stories.
A court case with tags to earlier stories containing damaging background
information might pose a contempt risk – and there could be similar problems in
terms of libel if archives are not monitored to eliminate links to a previous
defamatory statement, for example.
However, giving judgement in Smith v ADVFN Plc in 2008, Mr Justice Eady drew
comparisons between postings on bulletin boards and a casual conversation, in
that both can be informal, sometimes ill-conceived and, crucially, not always taken
as the literal truth by participants.
Legal actions are increasingly likely to involve an overlap between different areas
of the law, with a libel claim perhaps being brought alongside other actions, such
as privacy, false attribution, breach of copyright and data protection.
The Defamation Act 2013 introduced a new section 5 defence under which
responsible website operators provide a ‘report and remove’ system that people
can use if they believe they have been defamed on a website message board.
Larger publishers have tended to favour the less complication Section 1 defence.
However, Tweets written by staff writers have proved very expensive.
In 2017 a claim made by Jack Monroe against Katie Hopkins over defamatory
comments made on Twitter resulted in a damages payout of £24,000 and costs
of £300,000 for the Mail Online columnist when it was settled at the High Court.
Hopkins was refused leave to appeal in January 2018.
We know that libel actions can be extremely costly to defend and outcomes
(especially those decided by juries) can be unpredictable.
22
Accusations of hypocrisy or deceit are dangerous, especially when they involve
high-profile celebrities with big egos
Innuendo
Many statements which sound innocuous may carry a defamatory inference to
those readers with special knowledge who read between the lines of your report.
It is not automatically defamatory to describe someone as having socialist
leanings – but if the person in question is known by your readers to be a Tory
councillor, the statement may well imply that he is politically dishonest and a
hypocrite. This is a danger area because a defamation can occur which was never
intended on the part of the newspaper.
Your choice of words is important in this context, especially in comment and diary
columns. Former PA court correspondent Tom Corby accepted damages from the
Daily Mail and an apology over comments in the Ephraim Hardcastle column in
December 2003 which suggested he was honoured with an MVO (membership of
the Royal Victorian Order) for “diligent crawling”. The Daily Mail had previously
denied the piece was defamatory.
Identification
The examples demonstrate just how complex and dangerous this aspect of libel
law can be. Can you avoid liability by avoiding the full name, age, address of the
target? Possibly, but only by blurring the identity to the point where the story is
hardly worth using. In many cases, the victims of your accusation will be able to
show that they could be identified by someone reading your paper, even if their
names were not used. Worse still, blurring the identity may draw in people you
never intended to attack.
Pictures
Cock-ups account for more problems with identity – using the wrong picture
alongside defamatory comments, for example, or picking a fictitious name for a
target which happens to coincide with that of a real person or company.
In May 2000, for example, the Daily Mail had to print an apology about a
photograph of a clown who had given evidence in the court case. Instead of
showing Banjo the Clown – alias Paul Thorlsog – the picture showed Brillo the
Clown – Mr Brian David Russell, who had nothing to do with the trial.
Group libels
These are discussed in more detail in McNae and include the 1971 case where a
group of journalists regularly reporting the Old Bailey each received £150
damages when The Spectator attacked the “beer-sodden hacks” reporting on an
obscenity trial.
Companies
Particular care must be taken by business journalists because of the potentially
catastrophic problem of claims being based on the company’s fall in value
following the publication of a defamatory article.
Libel defences
There are a number of defences against an action for defamation, some of them
very powerful indeed.
23
The main defences are:
• Truth
• Honest opinion
• Privilege
• “Public interest”
• Accord and satisfaction
• Offer of amends
Other possible defences are:
• Innocent dissemination
• Consent
• The claimant has died
• Proceedings were not started within the limitation period
• The matter has already been dealt with
The truth defence
“Truth” is a complete defence to a libel action. The defence (formerly known as
justification) applies to statements of fact, where the burden of proof rests with
the defendant – although the journalist must convince the court that his story is
true on the balance of probabilities, which is a lower requirement than beyond
reasonable doubt, the standard in criminal cases.
This may sound straightforward, but in practice is likely to be costly and complex,
with no guarantee of success.
The passage of time is one problem – witnesses who were eager to speak out
at the time may have changed their minds, moved away or forgotten the incident
before it comes to court.
Cases can be costly. The cost of proving the truth can sometimes be prohibitive
for a small or impecunious paper.
The credibility of witnesses is a factor, too.
Persistence may be penalised. Pursuing a truth defence can be dangerous
because, if it fails, the court is likely to take a critical view of your persistence in
sticking to a story it has decided is not true – and the jury may award greater
damages accordingly.
Honest opinion
Newspapers frequently rely on this defence, which relates only to comment,
made honestly and without malice (improper motive).
Comment, not facts – The defence does not provide a defence for the publication
of defamatory facts. But the comment must be based upon true facts.
Honest opinion – We are all entitled to hold and express strong views on matters
of public interest, provided they are honestly held. Our views may be considered
exaggerated, obstinate or prejudiced by other people, but that does not matter as
long as they are honestly held.
24
Without malice – For the defence to succeed, it is essential that the statement
was made without malice. In legal terms, this means more than spite or ill-will, but
extends to any dishonest or improper motive. An editor making remarks because
of a personal grudge, for example, would be acting with malice. So would a
journalist who comments on facts he knows to be untrue.
What happens if your facts are wrong? Getting key “facts” wrong could
seriously undermine or destroy your defence. Actor David Soul accepted £20,000
damages and costs estimated at £150,000 from the Mirror in 2001 over a review
of a black comedy, The Dead Monkey, which he helped produce in London’s West
End.
The review was attributed to Matthew Wright, the Mirror’s showbusiness
columnist, although he had actually sent a freelance journalist to review it on his
behalf. Soul’s solicitor highlighted the fact Wright had dubbed the play as being
“without doubt the worst West End show” he had ever seen – yet referred to a
Monday performance where there had not been one and had included other
inaccuracies. Soul said afterwards: “I stand strongly on the side of fair comment
and information about the theatre. I think it is the cornerstone of the theatre. But
you have to see the play, you have to be there. You have to have the facts”.
Imputing improper motives to someone may negate your defence and is a
common cause of libel actions. You may fairly criticise someone’s conduct or
judgement, but should not imply a corrupt or dishonourable motive to their
behaviour you cannot possibly prove.
Absolute privilege
The law recognises there are occasions when the public interest demands that
there shall be complete freedom of speech without any risk of proceedings for
defamation, even if the statements are defamatory and even if they are untrue.
Such occasions are said to be privileged.
Absolute privilege is a complete answer to any action for defamation,
irrespective of whether the words are true or false or spoken maliciously. Section
14 of the Defamation Act 1996 clarifies that this applies to a fair, accurate and
contemporaneous report of judicial proceedings in public within the United
Kingdom and permits journalists to safely cover the courts, where statements are
often highly defamatory.
Reports MUST be fair, accurate and contemporaneous to be covered by absolute
privilege. A report which only carries the prosecution case, which does not report
an acquittal or which contains incorrect charges, will lose the protection.
Inaccurate headlines which misrepresent the story lead to many complaints.
Privilege extends only to the actual report of the proceedings – it does not apply
to defamatory statements shouted out in court or comments made by solicitors in
the court corridor after a case.
Qualified privilege is another powerful defence for journalists.
This relates to occasions where it is considered important that the facts should be
freely known in the public interest.
A paper claiming the protection of qualified privilege must ensure their report is:
• fair
• accurate
25
• published without malice
• in the public interest
Circumstances in which qualified privilege applies are explained in the schedule
to the Defamation Act 1996.
There are two categories: Part I defines statements privileged without explanation
or contradiction. Part II defines statements privileged subject to explanation or
contradiction.
Part I – Not subject to explanation or contradiction
This protects fair and accurate reports published without malice of the
proceedings in public of a legislature or court anywhere in the world, of a copy or
extract from any register or other document which must be open to public
inspection and to notices published by or on the authority of the court.
Part II – Subject to publication, on request, of a reasonable letter or
statement by way of explanation or contradiction
This covers the findings or decision of a body with power in its constitution to deal
with people under its control in a charity, sport, trade, industry, profession, art,
science, religion or learning.
It covers the proceedings at any public meeting or sitting of any local authority or
local authority committee, magistrates not sitting as a court, or any commission,
tribunal, inquiry or committee appointed by any Act of Parliament or by a Minister
of the Crown.
It covers a general meeting of a public company and, following a House of Lords
decision in 2001, extends to fair and accurate reports of press conferences and
press releases issued at them. This was reinforced by statute in the Defamation
Act 2013.
Finally, it also applies to any notice or other matter issued for public information
by or on behalf of a government department or body exercising governmental
functions, including the police.
These definitions clarify just how powerful and far-reaching the qualified privilege
defence is for journalists, encompassing council and public meetings and official
statements by a police or local authority spokesperson.
Notice the obligation on editors under Part II to publish a ‘reasonable letter or
statement by way of explanation or contradiction’. Failure to publish such a
statement would destroy the qualified privilege defence. However, the word
reasonable is important.
Editors will need to take legal advice to ensure such a statement does not risk
libelling another person – for example, by contradicting what he has been reported
as saying and therefore branding him a liar.
Accord and satisfaction
This is a plea that the matter has been otherwise disposed of, for example by the
publication of a correction and apology that has been accepted by the claimant in
settlement of his complaint.
Another way a paper can ‘satisfy’ a claimant is by making a payment into court. A
26
sum of money is lodged which the claimant can take at any time to end the
litigation – if he does not accept it, the action continues.
Offer of amends
This was a new defence introduced by the Defamation Act 1996. To use it, a
defendant must make a written offer to make a suitable correction and apology,
publish the correction in a reasonable manner and pay the claimant suitable
damages – although the precise terms may be left to be agreed at a later date.
Public interest
Until 1998, Britain had no defence of the publication in good faith of factual matter
in the public interest where the truth of the allegation could not be proved.
However in 1999 the House of Lords upheld a 1998 High Court decision that there
may be a qualified privilege defence at common law where a newspaper has
a legal, moral or social duty to the public to publish the material in question, the
public has a corresponding interest in receiving it and the nature, status and
source of the material are such to invite privilege in the absence of malice.
This defence depends on information being presented in as fair, reasonable and
even manner as possible.
Consent
The so-called “journalist’s defence” depends on balanced reporting and making
an honest effort to give full weight to the opinions of the person under attack both
in the headline and in the text. It will probably apply if someone approaches you
to help them refute a defamatory rumour, as long as your motives are honourable.
It will not protect you against publishing malicious, unfounded rumours.
The claimant has died
The action for libel is personal and an action begun by a claimant cannot be
continued by his heirs and executors – the action dies with him.
Proceedings were not started within the limitation period
The period was reduced to one year under the Defamation Act 1996.
The matter has already been dealt with
The court will not entertain a second action based on the same complaint against
the same defendant. However that does not stop the claimant taking action
against any number of defendants who are separately responsible for publishing
the statement and it will not prevent a second action from a claimant if he were
defamed a second time, for example by a poorly phrased apology.
The main defences outlined here can provide powerful protection for journalists
and a detailed knowledge of them is a vital requirement of all journalists.
COPYRIGHT
While there is no copyright in facts, news, ideas or information, there is
copyright in the way information is expressed, selected and arranged if it involves
skill and labour. This means that alarm bells should start ringing for any journalist
considering copying material from any particular source for their own use,
particularly if such “lifting” is done on a persistent basis. Print journalists also need
to be aware this applies to information sourced from the web unless specific
27
authorisation is granted.
Breach of copyright
Remedies for breach of copyright may involve civil action or prosecution:
Criminal law: Under the Copyright, Designs and Patents Act 1988 a person
guilty of infringement can be prosecuted – although this is more likely to involve
fraudulent activity such as counterfeit DVDs or illegal file-sharing.
Civil action: The copyright owner may obtain an injunction restricting someone
from infringing his copyright. He can also seek damages and an order for the
possession of the infringing copies. In certain circumstances, the owner’s first
approach is likely to be in the form of a demand for payment for the unauthorised
use of copyright material – with the subsequent threat of civil action if no payment
is forthcoming.
How old is the contested material? The law changed with the introduction of
the above Act, which applies to work created after 31 July 1989. If you are
accused of copyright infringement, you will need to establish whether it was
created before or after this date to establish the law regarding its ownership.
Moral rights: The 1988 Act introduced the concept of moral rights to protect
those commissioning a photograph for private and domestic purposes. A
newspaper publishing such a photograph could therefore find itself facing two
people who claim their rights have been infringed – the photographer who took
the picture and owns the copyright (who may seek payment for its use) and the
person who commissioned the photograph (and who seeking damages for its
unauthorised publication).
DEFENCES
Innocent infringement – This will protect you from a claim for damages if you
did not know and had no reason to believe that the work was subject to
copyright. But since you are aware that copyright does not have to be registered
and protects the products of people’s skill, labour, creativity and time, you will not
be able to claim innocent infringement simply because you did not know who the
specific owner was.
Fair dealing – The most commonly used defence when copyright material is used
either for the purposes of reporting current events or for the purposes of
criticism or review of that work or of another. However this is subject to you
giving sufficient acknowledgement of the work and its author and will not justify
“substantial” extracts.
What is “substantial”? Clearly we would expect a short review which includes a
couple of relevant quotes to provide the reader with a flavour of the work
concerned as being protected by the fair dealing defence. But dangers arise when
reviewers and sub-editors decide, for example, that the book in question is of
sufficient interest to devote a substantial amount of space to extracts.
Test questions journalists should ask themselves in such circumstances include
whether they are using a “review” as a means of filling space without having to
pay for the material concerned, and whether such use is preventing the copyright
owner from gaining financial benefits from the sale of rights to his work. In such
cases, fair dealing is unlikely to be an acceptable defence.
Similar considerations will apply to lifting large sections from published news
28
stories without proper attribution.
Public interest – The Act does not specifically provide a public interest defence
to the infringement of copyright although there may be circumstances in which
such an argument is relevant.
Freedom of expression – This does not appear to be a defence with any
reasonable prospect of success against a claim for breach of copyright.
Acquiescence – If the owner of copyright material has encouraged or permitted
its use without complaint, this may destroy a claim for infringement of copyright.
But note that this will not be a convincing defence if the owner was unaware of
any such prior infringement.
MAPS, DRAWINGS AND PICTURES
A £20m settlement in 2001 between Centrica and Ordnance Survey over the
unauthorised use of copyright maps should provide a salutary warning to
newspaper and web artists and picture editors about the dangers of “adapting”
published material and passing it off as their own original work.
COPYRIGHT AND CONFIDENTIALITY
Copyright issues can be closely connected with breach of confidence arguments,
especially when, for example, journalists obtain access to private diaries. In June
2007 the House of Lords rejected the Mail on Sunday’s bid to appeal against a
December Court of Appeal ruling that the paper should return Prince Charles’s
journals about the 1997 handover of Hong Kong.
The appeal court said the Prince had an overwhelming case that his copyright
had been breached by extracts from the journals, and that the disclosure was an
interference with his private and family life under the Human Rights Act.
PLAYING FOR HIGH STAKES
As the Centrica case above illustrates, breach of copyright can have costly
repercussions. Two authors who claimed their work was plagiarised by Dan
Brown to produce his bestseller The Da Vinci Code faced financial ruin in March
2007 after losing their court appeal. The pair faced a legal bill estimated at around
£3m.
Journalists need to be increasingly aware of the online risks of copyright
infringement, particularly when potentially linked to privacy, libel or harassment
actions – for publication of “private” copyright images from someone’s Facebook
profile, for example.
BREACH OF CONFIDENCE
The law regarding breach of confidence has developed rapidly over the past 20
years to encompass attempts to prevent the divulging of sensitive commercial,
business, Government, security and matrimonial information as well as a means
to prevent intrusions into privacy.
At one extreme it has even been used, in the case of the killers of the child James
29
Bulger, to protect the killers’ right to life at the expense of the press’s right to the
freedom of expression.
It has also been used by the Government – alongside prosecution under the
Official Secrets Act 1989 – to silence former members of the security services.
The main means of preventing a breach of confidence is through an interim
injunction preventing a publication from disclosing confidential information – and
an important Court of Appeal decision in 1987 confirmed that an injunction
against one paper is an injunction against all others, who may be found in
contempt of court if they publish information when an injunction is in force.
Journalists have expressed concern that governments have used breach of
confidence as a means of enforcing news management in cases when no genuine
issue of confidentiality is involved, and that individuals have used the law to
introduce a privacy law “by the back door”.
A major dilemma is that in order to balance and stand up contentious stories –
and to protect against libel actions – it is a natural journalistic instinct to approach
the person against whom a serious allegation is being made. Yet if this results in
an injunction, it could kill the story by preventing the use of the information.
One way round this is to seek to obtain the facts from a different, non-confidential
route before confirming them with the original source. However there is also the
danger that a court could insist on you “delivering up” confidential material which
could lead to your source being identified and even jailed. Yet to deliberately
mutilate or destroy a document likely to be called for in a pending action could be
construed as contempt of court.
Last-minute injunctions may pose a publisher or a broadcaster serious problems
by generating considerable expense and inconvenience, yet defiance of a court
order would represent a serious contempt of court.
What are the possible consequences of a breach of confidence?
▪ obeying an injunction may be costly and inconvenient
▪ disobeying an injunction may result in prosecution for contempt
▪ challenging an injunction can be costly
▪ a journalist can be ordered to reveal the name of his informant
▪ a court can order that confidential matter be delivered up or
destroyed
▪ a person misusing confidential information may be asked to account
for the profits to the person who confided the information
▪ if confidential matter is published, the person whose confidence has
been breached may be able to claim damages
What are the key elements of a breach? Mr Justice Megarry clarified this in a
judgement in 1968:
▪ the quality of confidence
▪ the obligation of confidence
▪ unauthorised use to the detriment of the party communicating it
Breach of confidence may thus be used to protect not only information which is
30
marked “confidential” or “top secret”, but other information which has been
obtained by an employee who has a contractual obligation to keep his employer’s
secrets.
This may extend not only to a diary or private correspondence but to marital
secrets, kiss-and-tell stories and pictures taken with a telephoto lens of someone
engaged in a private act, as well as to information obtained through other
unethical means such as trespass, theft or listening devices.
Sensitive medical or commercial information, for example, might be at the “upper”
end of the confidentiality “scale”. But cases which go to court are once again likely
to hinge on a debate over the issues discussed earlier:
▪ Is the information already in the public domain?
▪ Would publication be in the public interest?
▪ Has the journalist adhered to the relevant privacy code?
Despite the importance accorded to freedom of expression by the Human Rights
Act and the long-standing principle that the rule against prior restraint is
designed to prevent censorship and protect press freedom, the limitations
imposed by paragraph 2 of Article 10 clearly extend to “preventing the disclosure
of information received in confidence”.
Public interest defence
Lord Denning made it clear in 1984 that there is public interest in preserving
confidence as well as in making known to people matters of public concern. These
competing interests have to be balanced by the courts.
Section 12 of the Human Rights Act says that any court considering a matter
affecting freedom of information must have particular regard to “any relevant
privacy code”.
The Editors’ Code of Practice has a number of clauses relating to privacy, but
stresses that there may be exceptions to these rules if the information can be
demonstrated to be in the public interest. The code offers its own, non-exhaustive
list of what this includes:
▪ detecting or exposing crime or a serious misdemeanour
▪ protecting public health and safety
▪ preventing the public from being misled by some statement or action
of an individual or organisation
An editor must be able clearly to demonstrate how the public interest is served by
publishing private or confidential information. People in the public eye, like
celebrities and politicians, still have the right to privacy, in the right circumstances.
But a public interest defence may apply in circumstances where the individual has
courted publicity in the past, particularly if the new information reveals a different
aspect to their “image” and it can be shown that it is in the public interest for this
to be made known.
A seminal case in clarifying the press’s position on the reporting of confidential
information was the high-profile 2002 clash between supermodel Naomi Campbell
and the Daily Mirror.
31
Campbell had conceded that she was having therapy for drug addiction and –
because she had previously lied about this – that the Mirror was entitled, in the
public interest, to publish this otherwise confidential information in order to set the
record straight. However she contended that there was no public interest in the
publication of details of her treatment, such as photographs of her emerging from
a Narcotics Anonymous centre and that therefore the Mirror had published these
in breach of confidence. Her argument was initially accepted by Mr Justice
Morland, who awarded Campbell £3,500 damages against the paper.
The Court of Appeal reversed that ruling, finding that the information published by
the paper was “justified in order to provide a factual account of Miss
Campbell’s drug addiction that had the detail necessary to carry credibility”.
The court considered that where the publication of particular confidential
information is justified in the public interest, journalists must be given
“reasonable latitude” as to the manner in which that information is conveyed to
the public.
Master of the Rolls Lord Phillips said the appeal court did not consider the
information that Campbell was receiving NA therapy was to be equated with
disclosure of clinical details of medical treatment.
However the court also clarified that confidential information does extend
to aspects of an individual’s private life that he or she does not choose to
disclose and which a fair-minded person would think it offensive to publish.
The fact that an individual has achieved prominence on the public stage does not
mean their life can be laid bare by the media, the court said – once more
emphasising the distinction between information that is in the public interest and
information in which the public is interested.
The Naomi Campbell case went to the House of Lords, where the judges held
unanimously that English law provides a cause for action for the unjustified
publication of private information. The main issue in the Naomi Campbell case lay
not in revealing the fact of her addiction or that she was receiving therapy, but in
showing her leaving a Narcotics Anonymous meeting, discussing details of the
treatment and her reaction to it.
An important press victory came in October 2004 when the House of Lords ruled
that the Liverpool Echo could run a story about alleged financial irregularities
involving the nightclub promoter Cream, despite these being based on information
obtained from the former financial controller of Cream.
The ruling overturned a provisional High Court injunction on the basis that to
succeed in obtaining an injunction gagging a newspaper when a breach of
confidence is alleged, the individual or company will have to persuade a judge
that they are “more likely than not” to get the injunction upheld at trial.
Protecting your sources
Despite such a range of different ways in which authorities may attempt to prevent
journalists from disclosing sensitive information, there were signs that the
introduction of the Human Rights Act might safeguard freedom of expression to a
greater degree than had been previously demonstrated by the UK courts.
In particular, the Bill Goodwin case highlighted a difference in attitudes between
32
the UK courts and the European Court of Human Rights. Goodwin was fined for
failing to comply with a judge’s order to reveal his sources, but his appeal was
unsuccessful in both the Court of Appeal and the House of Lords, which both
maintained that disclosure was “necessary in the interests of justice”.
But the European Commission found for Goodwin in 1994, saying: “Protection
of the sources from which journalists derive information is an essential
means of enabling the press to perform its important function of ‘public
watchdog’ in a democratic society.”
In 1996 the European Court reached the same decision, stressing the protection
of journalistic sources was one of the basic conditions for press freedom. An order
of source disclosure could not be compatible with Article 10 of the Convention
unless it was justified by “an overriding requirement in the public interest”.
August 2007 saw the closing chapter in a seven-year court wrangle over a
journalist’s right to protect their sources. The case relates to a story published by
The Mirror in 1999 and provided by freelance journalist Robin Ackroyd. It
concerned the alleged mistreatment of Moors murderer Ian Brady at Ashworth
mental hospital and Mersey Care NHS Trust demanded to know the source of the
confidential medical information provided. But the claim was thrown out by the
Court of Appeal, and the House of Lords refused permission for the Trust to mount
a further appeal. In an earlier hearing, High Court judge Mr Justice Tugendhat
had ruled in Ackroyd’s favour and described him as “a responsible journalist
whose purpose was act in the public interest”.
However another case in 2007 illustrated the bewildering consequences that can
befall a journalist suddenly caught up in a police investigation. Reporter Sally
Murrer of the Milton Keynes Citizen was bugged and tracked by police, locked in
a cell for hours, strip searched and warned she could face life imprisonment when
she found herself suspected of corrupting a policeman to give her stories.
Police raided her office and home, produced a search warrant and seized her
laptop and files. She was arrested as a suspect “alleged to have committed a
serious offence”, said Banbury Police. She said: “I’m a mother of three, I work 12
hours a week. I don’t know why they are treating me like some sort of spy.”
In March 2008 Murrer denied obtaining police information illegally and charges of
aiding and abetting misconduct in a public office. The charges were thrown out in
November 2008 when the case came to Kingston Crown Court and the judge
decided her Article 10 rights had been breached. The policeman in the case, a
detective sergeant, also walked free.
The editors’ code
Launched in 1991 as a replacement for the much-criticised Press Council, the
Press Complaints Commission’s role was to deal with complaints from members
of the public about possible breaches of the editorial code of practice and aims to
resolve complaints swiftly and amicably. Central to its work was “the protection of
the vulnerable”.
During the Leveson inquiry into press standards in 2012, the PCC confirmed that
it would close, to be replaced by the Independent Press Standards
Organisation, which began dealing with code complaints in September 2014.
33
The code itself is fairly short, although settling disputes relating to the code may
not be as easy as it sounds. You can find out more about past adjudications on
ipso.co.uk.
In general, the code provides guidance on ethical matters where certain forms of
journalistic behaviour are not specifically prohibited by law and is particularly
designed to help ordinary people temporarily caught in the spotlight of media
attention.
Note that when a publication accepts that it has broken the code but is claiming a
public interest defence, the editor is required to give a full explanation of how the
public interest was served.
In cases involving children, this must be an “exceptional public interest” to
override the normally paramount interests of the child. A change in the code in
September 2009 meant that editors must now demonstrate “a reasonable belief”
that they were acting in the public interest.
Criticism of the PCC for being “toothless” in its treatment of the press led to the
commission introducing some reforms following the creation of Ofcom, including
an increase in the number of lay commissioners.
The code itself is buttressed by a series of useful editors’ guidance notes on
specific issues which are of use to writers – and a codebook for editors is also
available to view online: editorscode.org.uk.
Although IPSO has also come under fire from critics and only regulates those
publishers who sign up to its conditions, IPSO pledged in 2015 to increase its
authority and restated its determination to “condemn unfair and abusive intrusion”
while recognising the need for “bold and unruly” journalism.
A revised code of conduct came into force on January 1, 2025.
Key changes in recent years have included:
• Specific reference is now made to headlines not supported by the text of the
article beneath.
• The reporting of suicide became a stand-alone clause, reflecting concerns
about the publication of excessive detail about methods of suicide.
• Gender identity was added to categories covered by the discrimination clause,
which protects individuals from prejudicial and pejorative reporting.
• The duty of editors to maintain procedures to resolve complaints swiftly, and to
co-operate with the Independent Press Standards Organisation, was enshrined
in the code’s preamble.
• The Code’s definition of the public interest, and the circumstances in which
editors can invoke it, was updated and expanded in line with the Defamation
Act, Data Protection Act and Crown Prosecution Service guidance.
Clause provisions on privacy are now contained in Clause 2, with Clause 3 dealing
with harassment, Clause 4 with intrusion into grief or shock and Clause 5 the
reporting of suicide.
The public interest definition has been expanded. The code now says public
interest “includes, but is not confined to”:
• Detecting or exposing crime, or the threat of crime, or serious impropriety.
34
• Protecting public health or safety.
• Protecting the public from being misled by an action or statement of an
individual or organisation.
• Disclosing a person or organisation’s failure or likely failure to comply with
any obligation to which they are subject.
• Disclosing a miscarriage of justice.
• Raising or contributing to a matter of public debate, including serious cases
of impropriety, unethical conduct or incompetence concerning the public.
• Disclosing concealment, or likely concealment, of any of the above.
The code reasserts the fact that there is a public interest in freedom of expression
itself.
It goes on to say that editors invoking the public interest will need to demonstrate
that they reasonably believed publication – or journalistic activity taken with a view
to publication – would both serve, and be proportionate to, the public interest and
explain how they reached that decision at the time.
In its annual reports successive IPSO chairs have maintained the body remains
the only effective way by which members of the public could complain and seek
redress from papers following intrusion and inaccuracy. However critics –
particularly members of the Hacked Off campaign – continue to insist that IPSO
had failed in its duty and remains “toothless”, complaining that it has not used its
powers to issue fines or initiative standards investigations.
Ofcom
New legislation was introduced in 2003 to merge the functions of five existing
watchdogs into a new radio and TV watchdog, Ofcom.
Ofcom has powers to criticise and fine broadcasters. In 2004, it fined a British
porn channel £50,000 for showing hard-core sex scenes before the 9pm
watershed. Ofcom also adjudicated that a blasphemous outburst by celebrity chef
Gordon Ramsey in the series Hell’s Kitchen, broadcast in May and June 2004, in
which he used the phrase “fucking Jesus”, was a breach of the television
programme code. ITV admitted it had made a mistake in allowing the phrase to
“slip through” under high pressure and against very tight deadlines.
In 2006, the watchdog imposed its largest ever financial penalty of £175,000 on
Kiss FM in relation to 10 complaints about the London-based dance music
station’s breakfast show, received over a seven-month period.
In 2008 Ofcom fined ITV £5.67m for abusing premium-rate phone services in
viewer competitions. Channel 4 was fined £1.5m for misconduct in a Richard and
Judy phone-in contest, Channel Five paid out £300,000 for faking the winner of a
quiz on Brainteaser and the BBC was fined £50,000 over a Blue Peter phone-in.
Music station MTV was fined £255,000 in 2008 for broadcasting offensive
language on four of its channels. The same year saw the BBC fined a total of
£400,000 for numerous breaches of its broadcasting code relating to deceiving
viewers and listeners in competitions run on a variety of shows, including Comic
Relief, Children In Need, the Liz Kershaw show on 6 Music and Jo Whiley Show
on Radio 1.
35
From April 2017, the BBC was brought under Ofcom regulation for the first time
after more than 90 years of self-regulation, following criticism of confusion in the
role played by the BBC Trust.
Information about Ofcom and its rulings can be found on ofcom.org.uk.
PRIVACY
Until 2000 and the introduction of the Human Rights Act the law of England did
not specifically protect the right to privacy. Now that right is enshrined in Article 8
of the European Convention on Human Rights and has been incorporated into UK
law.
In the years immediately following the introduction of the Act, the PCC tried to
stress that the Act had not given rise to the “creation” of a privacy law. However
case law in the intervening years has heralded some important developments in
the interpretation of privacy issues, culminating in the phone-hacking scandal
which engulfed the News of the World and the subsequent revelations in the
Leveson Inquiry about press intrusions into privacy.
In 2015 the publishers of the Daily Mirror and Sunday Mirror were ordered to pay
£1.2m in damages to eight phone-hacking victims, including Sadie Frost and
footballer Paul Gascoigne. Frost’s payout of £260,250 was thought to be the
single biggest privacy damages payout since the scandal broke in 2010, with
other large payouts to Gascoigne, soap stars and BBC executive Alan Yentob.
More significant awards followed – phone-hacking victims included actor Steve
McFadden, TV presenter Natasha Kaplinsky and comedian Les Dennis, Lord
Archer, former home secretary Charles Clarke and actress Patsy Kensit.
By June 2017 the total number of victims exceeded 100 – and in October 2017
Steve Coogan won a six-figure payout and said senior figures like former Mirror
editor Piers Morgan had not yet been put under proper scrutiny over the scandal.
Payouts from News International over phone-hacking are thought to have
exceeded £1bn, with numerous journalists investigated and some prosecuted for
breaches of criminal law. Mirror Group Newspapers are thought to have paid out
more than £100m in damages and costs.
In July 2018 Sir Cliff Richard won £210,000 in damages (and £850,000 costs) in
a high court privacy action against the BBC over “serious and sensationalist”
coverage of a police raid on his home. He was never arrested or charged over
historical child sex allegations dating from the 1980s.
And yet in the 1990s, there seemed to be little action that celebrities could take to
stop the tabloid press from focusing in minute detail on every aspect of their lives.
But when DJ Sara Cox won a £50,000 out-of-court payment from The People in
2003 after the paper published pictures of her topless on a private beach, the
PCC stressed that there had been no judgement in the case and therefore it had
no bearing on the UK case law.
Previously Amanda Holden reached a £40,000 settlement with the Daily Star after
it published photos of her bathing topless in the garden of her Tuscany villa, but
again this took place out of court.
By 2016, when Princess Beatrice complained about gratuitous long-lens bikini
photos being taken of her on board a private yacht off Monaco and published by
Mail Online, IPSO ruled there had been a serious breach of Clause 2 of the code.
36
Similarly, in 2017 IPSO ruled pictures taken of Prince Harry in his swimming
trunks while on holiday with his girlfriend Meghan Markle – taken on a private
beach using a long-lens camera – were a breach of the code.
A PCC complaint brought by TV news presenter Anna Ford, who was upset after
pictures were published of her and her partner on a beach in Majorca taken with
a long-lens camera, was rejected in 2000. But in the Naomi Campbell case
referred to in Lesson 9 under breach of confidence, the law lords held in 2004 that
English law provides a cause of action for the unjustified publication of private
information.
The main issue in the Naomi Campbell case lay not in revealing the fact of her
addiction or that she was receiving therapy, but in showing her leaving a Narcotics
Anonymous meeting, discussing details of the treatment and her reaction to it.
The implication of the ruling is that the media will need to adopt a structured
approach to any article containing private information.
1. Is the information sufficiently private in nature to engage Article 8 (the right
to privacy)?
2. Can each element of private information contained in the article be
justified?
3. Photographs must be considered separately – and if they have been taken
surreptitiously, their publication is likely to be regarded as intrusive.
4. To what extent is any such private information in the public interest?
However, fears began to grow over the development of a law of privacy in England
after a couple of high-profile cases in the summer of 2004.
The European Court of Human Rights in Strasbourg held that respect for the
private life of Princess Caroline of Monaco was breached by photographs from
her daily life showing her shopping or on holiday with her children in public places.
German courts had originally rejected her claim, but on June 24 the ECHR held
that pictures of Princess Caroline either on her own or with other people “falls
within the scope of her private life.”
The pictures had shown the princess involved in a variety of activities of a purely
private nature.
Although the court recognised the essential role played by the press in a
democratic society and the importance of freedom of expression, the decisive
factor in balancing the protection of private life against freedom of expression
should lie in the contribution that the published photographs and articles made to
a debate of public interest.
The court considered there was no public interest in the princess’s case, and that
the public did not have a legitimate interest in “knowing where the applicant is and
how she behaves generally in her private life, even if she appears in places that
cannot always be secluded and despite the fact that she is well known to the
public.”
In July 2004 Trainspotting Ewan MacGregor won payouts from The Sun and Daily
Record – thought to be £5,000 damages plus £35,000 costs – over an agency
picture showing him relaxing on holiday with his children on a beach in Mauritius
and in 2007 actress and model Elle Macpherson had a complaint to the PCC
upheld that Hello! Magazine had breached her privacy by taking pictures of her
37
and her children on holiday at a private house in Mustique.
However, in October 2016 IPSO ruled that pictures showing Andy Murray’s baby
daughter in a pram pushed by her mother at Wimbledon did not constitute a
breach of the codes clauses of privacy and children. IPSO concluded that Gate
16 was a public location overlooked by photographers where there was no
reasonable expectation of privacy and that both taking and publishing the
photographs was not a breach of Clause 2, particularly in view of the fact the
pictures were taken within the grounds of Wimbledon during the championship.
IPSO added that the photographs did not feature information about the baby’s
welfare or private life, and there was therefore no breach of Clause 6 either.
In 2006 the PCC upheld a complaint by Harry Potter author JK Rowling that the
Mirror had intruded into her privacy by publishing a picture of her London home
along with the name of the road. The PCC accepted that the author had “gained
her fair share of stalkers and obsessive fans” and said the information was not
sufficiently in the public domain to justify publication.
Privacy arguments could also impact on the activities of press photographers,
where other legislation may be used to restrict their movements or behaviour.
The Protection from Harassment Act, for example, could be used to prosecute
persistent reporters and press photographers who “stalk” celebrities, and by 2009
injunctions under the Act were increasingly being used by stars – including Sienna
Miller, Amy Winehouse and Lily Allen – as civil remedies, enforceable in the
criminal courts, to keep paparazzi away from their front doors. The PCC code was
changed in 2009 to require journalists in situations where harassment might be
an issue to identify themselves if requested to do so.
Technological advances are likely to pose new challenges for journalists in the
field of privacy. Using videos or stills from social networking sites, for example,
could breach personal privacy or amount to harassment. YouTube tightened their
privacy policy in 2009, warning contributors not to post other people’s personal
information online.
Care should be taken with images provided by third parties like a pub or nightclub,
for example, where the images could be regarded as infringing individuals’
privacy.
By December 2009 there were indications that the Royal family were wanting to
clamp down on intrusion by photographers following a separate incident involving
the England football manager Fabio Capello and his wife on a Spanish beach
earlier that year.
The News of the World and Daily Mail published pictures of Capello and his wife
enjoying a mudbath on a public beach – ostensibly not in breach of the PCC code.
But the Football Association had been proactive in writing to every editor to
explain that Capello wanted his privacy respected.
Capello would give the sports journalists interviews and briefings, but he would
not be seeking publicity beyond that. He refused requests for interviews and
picture sessions with magazines.
In other words, he was not seeking the limelight and, most definitely, neither was
his wife. Just the reverse. The FA made it clear that she wished to remain an
entirely private individual. The errors certainly proved costly. The News of the
World paid out a five-figure sum to the Sir Bobby Robson foundation while the
38
Mail’s donation was “close to five figures”.
The payments show just how far the law of privacy has developed since 2000.
The early victory of Ewan MacGregor in 2004 in protecting his children’s privacy,
for example, has paved the way for claims from other stars.
In April 2010 Jude Law accepted £9,500 in damages and legal costs from Hello!
after the magazine breached his privacy by publishing pictures of him and his
children on a beach in the Caribbean.
The public debate was reignited by pictures published in 2012 after nude pictures
of Prince Harry were posted online when he played a stripping game in a hotel
room in Las Vegas.
The publication in 2013 in the foreign press of the princess pregnant in her bikini
again raised questions about how to police privacy issues online and in the
international press, although UK papers – whether fearing a public backlash or
because of concerns over Article 8 – were reluctant to publish the images.
Topless pictures of Kate Middleton published in the French magazine Closer
culminated in criminal charges being brought against the editor, publishing
director and photographers. In December 2017 Closer was fined £92,000 over
the photographs.
In 2018 Meghan Markle sent her estranged father a five-page letter which became
the centre of a lengthy legal battle between the royals and Associated
Newspapers, publishers of the Mail and Mail on Sunday, on the grounds of breach
of privacy and copyright violations.
Identifying individuals arrested on suspicion of involvement in a crime but never
charged could lead to claims for intrusion into privacy (as well as possible libel
actions). The Mail Online faced an £83,000 bill for damages after naming
Alaedeen Sicri, who was arrested on suspicion of involvement in the 2017
Manchester Arena terror attack but never charged.
It was the third major ruling setting a precedent that suspects should not be named
before charge, following Cliff Richard’s landmark privacy win against the BBC and
an anonymous businessman’s win against Bloomberg. The BBC was told to pay
Sir Cliff £210,000 in damages while Bloomberg was ordered to pay £25,000.
39
ASSIGNMENT EIGHT
Give detailed answers to the following questions:
1) What restrictions exist on identifying young people in:
a) youth courts;
b) adult courts?
2) A newspaper publishes photographs of a celebrity couple taken in the
following circumstances:
a) a picture of the couple enjoying a candlelit anniversary meal
in a local restaurant;
b) a long-lens picture of the couple walking hand-in-hand on a
public beach;
c) a long-lens picture of the pair, with the woman sunbathing
topless on the balcony of her holiday home.
What arguments would the Independent Press Standards Organisation
consider in adjudicating a subsequent claim for intrusion into privacy
under Clause 2 of the Code of Conduct?
3) You have a story scheduled for publication tomorrow, which includes a
detailed description of a man the police wish to trace in connection with
a string of burglaries. You get a call from the police this afternoon
telling you they have now arrested and charged a man in connection
with the offences.
a) can you publish your original story?
b) What information, if any, would you be able to print?
4) A commercial photographer sends a newspaper a wedding picture ‘with
compliments’ asking for an acknowledgement if it is used on the paper’s
weddings page. The picture has been sent with the permission of the
bride’s father, who ordered the wedding photographs. The newspaper
publishes the picture and files it. Ten months later, the bride is killed in
a boating accident and the paper publishes the picture again. What is
the position under the law of copyright with regard to:
a) the newspaper;
b) the photographer;
c) the bride’s father?
40
5) A junior reporter has filed the following report for publication and says
there was no mention in court of any reporting restrictions. What
changes would you make to the copy – and why?
A teenage cinemagoer told a court today how he saw a bearded man sitting in
the front row indecently assaulting a terrified young girl soon after the main film
started.
Fred Merton, 15, of Westfield Terrace, Melford, a pupil at St Saviour’s school,
said in evidence at Newtown Magistrates Court that he saw the man fondle the
girl.
The girl protested but was told to be quiet by people around her who did not
realise what was happening. But eventually the cinema manager was called
and the man was arrested.
Lawson Pickering, 42, of Central Avenue, Newtown, denied the assault on 13-
year-old Sandra Spacek at the Palace Cinema in Melford. He was found guilty
and fined £500.
6) A sports report says a well-known international rugby referee “opted out
of making difficult decisions” when it came to dealing with players
fighting on the pitch. “He earns a match fee and should have had the
courage to send them off, but bottled out,” the report adds. Where’s the
legal danger?