{"id":126,"date":"2026-03-30T15:50:25","date_gmt":"2026-03-30T15:50:25","guid":{"rendered":"https:\/\/shahed.org\/news\/?p=126"},"modified":"2026-09-11T12:07:02","modified_gmt":"2026-09-11T12:07:02","slug":"8-lesson-8-journalists-and-the-law","status":"publish","type":"post","link":"https:\/\/shahed.org\/news\/2026\/03\/30\/8-lesson-8-journalists-and-the-law\/","title":{"rendered":"LSJ 8. Lesson 8 : Journalists and the Law"},"content":{"rendered":"
\n

8. Lesson 8 : Journalists and the Law<\/h1>\n<\/div>\n
\n

Legal restrictions and how journalists can avoid costly legal action. The dangers of libel and other pitfalls; qualified privilege and unintentional defamation; criminal libel; and the need for fairness and accuracy. Restrictions on court reporting, and the dangers of contempt of court when matters are sub judice. The Official Secrets Act, the rights of the Press and a brief look at copyright.
\nAssessment tasks include:<\/strong><\/em>
\nTackling a specialist column or feature
\nProducing a safe, fair and accurate crime report
\nDefining legal terminology<\/p>\n

LSJ – NEWS JOURNALISM – COURSE – LESSON 9 – DOCUMENTS – JN8<\/a><\/p>\n<\/div>\n

 <\/p>\n

LESSON ORIGINAL<\/h1>\n

JOURNALISM AND NEWSWRITING
\nLESSON 8
\nJournalists and the Law
\n\u00a9 LONDON SCHOOL OF JOURNALISM
\n2
\nLESSON 8
\nJOURNALISTS AND THE LAW
\nWhat is a free press? Defamation and contempt. Digital media risks.
\nReporting crime stories. Reporting the courts. Juveniles and the courts.
\nSex offences. Contempt of court. Libel risks. Libel defences. Copyright.
\nBreach of confidence. Privacy.
\nWHAT IS A FREE PRESS?
\nHow much do you know about the law? Most people would say they have a
\nreasonable understanding of what society regards as acceptable and
\nunacceptable behaviour. They will probably be able to name some of the most
\ncommon or serious crimes, like theft, burglary, arson or murder, and may even
\nhave committed a less serious offence themselves, like speeding.
\nYet much of what we know about the law will have been picked up not through
\nformal study but by watching detective stories, police dramas or courtroom
\nthrillers on television, where fact and fiction are closely interwoven.
\nAll published writers need to have a much more detailed and accurate knowledge
\nof the law than ordinary members of the public, because we run the risk of
\nbreaking less familiar laws than those which provide the storylines for fictional
\ndrama.
\nLibel, contempt of court, privacy, breach of copyright \u2013 do these terms mean
\nanything to you? If not, your work cannot be published safely without an
\nexperienced editor studying what you have written to ensure you have not broken
\nthe law.
\nThis applies whether you are working for newspapers, magazines, radio, TV or
\nthe internet. It applies whether you specialise in columns or reviews, travel articles
\nor consumer tests. But it applies most of all if you are a reporter covering hard
\nnews stories.
\nAspiring journalists, especially those who have gained their initial writing
\nexperience on student papers and internet websites, sometimes assume they can
\nwrite what they like with impunity \u2013 that when it comes to freedom of speech,
\n\u201canything goes\u201d. This is not the case. There are numerous laws restricting what
\nwe can write, many of them protecting ordinary people\u2019s rights \u2013 the right to a fair
\ntrial, for example, or the right not to have one\u2019s reputation unfairly or falsely
\nattacked.
\nThere are two reasons why all journalists need to have a detailed working
\nknowledge of the law.
\nOne is so that they know their rights \u2013 how far they can safely go when writing
\na story without breaking the law. This means knowing when they are permitted to
\nattend courts and council meetings, understanding what is meant by terms like
\nfreedom of expression, recognising when a story is in the public interest and
\nknowing what defences exist in defamation and contempt cases. The other is so
\nthat they can recognise potential legal pitfalls and abide by the legal restrictions
\nimposed on them.
\n3
\nMost journalists find the law is a fascinating subject to study, but no one would
\nsuggest it is easy. It\u2019s also a subject where a little bit of theoretical knowledge is
\nnot sufficient to keep you out of trouble. Working journalists need to know how to
\napply the law to different real-life situations \u2013 and this is a skill which trainee
\njournalists find hardest to master.
\nWhy do you need to have such a detailed knowledge of the law? Because many
\ntrainee newspaper reporters are expected to cover the courts and there are
\nnumerous examples of cases where both magistrates and judges have made
\nmistakes when reaching decisions about what reporting restrictions to impose.
\nIn such circumstances, there is no one else present in court who can plead the
\njournalist’s case. And if the decision is allowed to stand unchallenged, it may
\ninvolve a long and expensive legal process to overturn it. The only person who
\ncan make a real difference on the spot is the individual court reporter \u2013 provided
\nthat their knowledge of the law is sound.
\nThis means that, up and down the country, young reporters are required to
\nchallenge invalid or inappropriate orders and explain to the magistrate or judge
\nthe legal basis on which their challenge is based. It may not sound fair, but that\u2019s
\nthe way the judicial system operates and journalists have to be quick on their toes
\nto stand up for their rights.
\nWhat are the main restrictions? These are among the most important:
\n\u25aa Defamation \u2013 are you damaging a person\u2019s or a company\u2019s
\nreputation?
\n\u25aa Contempt \u2013 are you posing a substantial risk of serious prejudice to
\nlegal proceedings?
\n\u25aa Reporting restrictions \u2013 are you breaking the laws relating to the
\nidentification of children and young people, or victims of sexual
\noffences?
\n\u25aa Copyright \u2013 are you \u201cstealing\u201d somebody else\u2019s original work?
\nIt is also important to have an understanding of the differences between the main
\ndivisions of the law.
\nCriminal cases will be heard in the magistrates\u2019 court or crown court
\ndepending on the nature of the offence. Most cases involving young people will
\nbe heard by magistrates sitting as a youth court, although such cases may be
\nheard in adult court when the crimes are particularly serious.
\nCivil cases will normally be heard in county court (usually smaller claims and
\nstraightforward cases) or the high court (larger claims and more complex cases),
\nalthough some civil issues are dealt with by magistrates.
\nINTERNATIONAL LAW is concerned with disputes between countries, often
\nrelating to treaties that have been agreed between different governments.
\nNATIONAL LAW is the law which applies within each country. Scotland, for
\nexample, has a different legal system from England and Wales.
\nEUROPEAN LAW relates to the law within the European Union, often decided by
\ntreaties agreed between member states. Points of European law are decided by
\nthe European Court of Justice in Luxembourg.
\n4
\nDespite the UK leaving the EU, some legal rulings by the ECJ will still have an
\nimpact on UK law, or on companies dealing with countries within the EU, for
\nexample.
\nHuman rights issues are decided at the European Court of Human Rights in
\nStrasbourg. Individuals may complain to the European Court of Human Rights
\nthat their rights have been violated, although this too is technically not an \u201cappeal\u201d.
\nThe ECHR may rule on breaches of human rights and may award compensation,
\nbut it is up to the UK government to decide what action to take following an
\nadverse finding.
\nCourts in England and Wales operate a rigid doctrine of judicial precedent which
\nhas the effect that every court is bound to follow any decision made by a court
\nabove it in the hierarchy.
\nDEFAMATION AND CONTEMPT
\nThese two areas will form the cornerstones of your legal awareness and you will
\nbe studying both in detail during this course. It is important from the outset that
\nyou have a clear idea in your mind of what the words refer to and the differences
\nbetween them. Some exam questions relate to real-life situations where there is
\na risk of both defamation and contempt. In such cases you will be required to
\ndemonstrate your knowledge of the different pitfalls involved and what changes
\nwould be required in your copy to make it safe. For this reason it is extremely
\nimportant that you never confuse the two.
\nThe law of defamation exists to protect the reputation of individuals from
\nunjustified attack. A defamatory statement is a false statement, injuring the
\nreputation of the person about whom it is made, and published to a third party. An
\nindividual, or a corporation, or a company can be libelled, but not a dead person.
\nSomebody who believes they have been libelled can take civil action against the
\npublisher, editor and writer involved and, if successful, can be awarded a large
\nsum of money by way of compensation. Every section of the paper \u2013 stories,
\nheadlines and picture captions in news, features and sport alike \u2013 has the
\npotential capacity to be defamatory.
\nNote that the journalist does not have to be the author of the offending statement.
\nTo report a libellous statement by someone else is to publish a libel. So that if a
\ntown councillor says in an interview \u201cThe Mayor is a swindler and a thief. He is
\nusing council funds for his own purposes\u201d, the newspaper which quotes him as
\nsaying so could be sued for libel if the statements are not true. Thus a reporter
\nmay have to omit part of a speech or a statement because it is defamatory, even
\nthough the speaker may not be aware of the libel. (In spoken form it would be a
\nslander.)
\nContempt of court, by contrast, is a criminal offence which relates to the
\npublication of anything which interferes with the course of justice or prejudices a
\npending trial. The main trap for journalists is the reporting of matters which are
\nsub judice (ie awaiting the decision of the law). When a crime has been
\ncommitted, newspapers try to tell the fullest possible story, taking pictures of the
\nscene and interviewing witnesses. But they must never suggest that a particular
\nperson was responsible, even if they and the police are convinced they know who
\ndid it.
\n5
\nDIGITAL MEDIA RISKS
\nJournalists working on the internet should be aware that the legal restrictions
\nwhich apply to print journalists will still be relevant to web writers, irrespective of
\nthe means by which the information is being \u2018published\u2019.
\nFor example:
\n\u25aa newsgroup postings and bulletin boards
\n\u25aa chat rooms and discussion forums
\n\u25aa e-mails and other file transfer systems
\n\u25aa online archives and libraries
\n\u25aa uploaded video clips
\nA libellous statement is no less libellous simply because it is contained in an email or posted on a bulletin board \u2013 so new media journalists need to be very
\nkeenly aware of defamation risks. The same applies to contempt of court.
\nThey may also face problems if the hyperlinks they add to their own site take
\nreaders to other sites on which, for example, defamatory information is published.
\nEven though you are not the publisher of the libellous material, it is you who are
\ndrawing people\u2019s attention to it through your hyperlink.
\nNew media journalists also need to be aware that simply because they have the
\npower to publish across international boundaries does not automatically mean
\nthat they are \u2018above the law\u2019 in the countries concerned. There is also a particular
\nrisk of being in breach of copyright on the internet \u2013 and this applies to sound,
\npictures and graphics as well as words.
\nIn addition to legal restrictions, there are also a number of codes of conduct which
\nencourage or enforce ethical standards in the media.
\nThe Editors’ Code of Practice (Chapter 2) is a form of voluntary self- regulation
\nendorsed by the print media and giving guidance on a range of issues. Other
\ncodes apply to radio and television journalists.
\nThe code \u2013 which from September 2014 has been overseen by the Independent
\nPress Standards Organisation \u2013 tells print journalists how they should handle
\na range of issues but permits exceptions to certain clauses when it is
\ndemonstrably in the public interest for journalists to detect or expose crime, protect
\npublic health and safety or prevent the public from being misled.
\nThere are plenty of stories which may be of interest to the public, but this is not
\nsufficient to justify a breach of the code. The phone-hacking disclosures which
\nled to the closure of the News of the World in 2011 and the subsequent Leveson
\nInquiry into press standards have thrown an unprecedented spotlight on such
\nissues, paving the way for the introduction of a tougher regulatory regime.
\n6
\nREPORTING CRIME STORIES
\nWhen a crime has been committed, newspapers try to tell the fullest possible story
\nof what has happened \u2013 and in most cases they will be free to report the incident
\nin considerable detail, taking pictures of the scene and speaking to both victims
\nand eyewitnesses. (This is the case as long as the crime is not a rape or sexual
\nassault, because there are restrictions on identifying the victims of sexual
\noffences.)
\nIt also applies as long as no one has been arrested for the crime and as long as
\nwe do not suggest that a particular individual was responsible for it. (As well as
\nany danger of contempt, there would be a serious defamation risk in publishing
\nsuch a suggestion).
\nIf a man comes home from work one evening, kills his family with an axe and is
\narrested at the scene, we have to be careful what we write, even where the ‘facts’
\nseem indisputable. Everyone may believe that Mr Smith did it. A dozen people
\nmay have seen him commit the crime. But it’s not our job to decide his guilt before
\nhe has even appeared in court \u2013 and sometimes those ‘facts’ will be more
\ncomplicated than they might at first appear and open to different interpretations.
\nSo initially, the reporter on a crime story will have a great deal of freedom prior to
\nan arrest being made. The situation will change as soon as someone is arrested,
\nso the reporter will make regular checks with the police prior to publication to make
\nsure no one has been caught.
\nThis is particularly important on weekly papers, where there may be a longer
\nperiod between the crime being committed and the paper going to press. Indeed,
\nto protect themselves fully, reporters should keep a detailed note of their check
\ncalls with the police.
\nOnce someone has been arrested, there are a number of considerations which
\ncould affect how much of the original story we can use:
\n\u2022 whereas we could originally report that police have launched a murder
\ninquiry, we should be cautious about using the word ‘murder’ in case the
\narrested individual is charged with a lesser offence like manslaughter
\n\u2022 incriminating background information like previous convictions or
\nconfessions could now be seriously prejudicial to the arrested man’s trial
\n\u2022 similarly, detailed eyewitness testimony which goes to the heart of the
\ncase could be very damaging, especially since such witnesses are likely
\nto have to testify at the trial (and might feel obliged to stick to any version
\nof the events which has been published in a newspaper interview)
\n\u2022 in cases where identification is an issue \u2013 ie when witnesses in court
\ncould be asked to identify the person they saw committing the crime, or
\nwhere an identity parade is to be held \u2013 detailed descriptions and\/or
\nphotographs could be prejudicial by confusing or influencing such
\nwitnesses
\n7
\nHowever common ground will be safe to report \u2013 who has died and where, for
\nexample, along with other undisputed facts relating to the case.
\nFor the above reasons, press reports following an arrest are generally more
\nguarded (although the national tabloids frequently overstep the mark, which has
\nresulted in some high-profile prosecutions for contempt).
\nREPORTING THE COURTS
\nThere are more than 7,000 criminal offences. The most common include road
\ntraffic offences, minor assaults, misuse of drugs, theft, burglary and a variety of
\noffences involving deception and fraud, criminal damage and sexual offences.
\nThere are three different categories of offence, and the restrictions on court
\nreporting differ considerably depending which category you are dealing with.
\nSUMMARY offences are triable only at Magistrates’ Court \u2013 these are generally
\nless serious offences and magistrates will deal with the defendant right through
\nto the point of sentence. They include most driving offences, common assault,
\nobstructing police, criminal damage which has caused less than \u00a35,000 worth of
\ndamage, soliciting and kerb-crawling.
\nINDICTABLE offences are triable only at Crown Court \u2013 these are serious
\noffences like murder, rape, robbery and arson. But the accused will first appear
\nin front of magistrates who must, after hearing any application for bail, send for
\ntrial at Crown Court. These include murder, manslaughter, rape, robbery,
\npoisoning, false imprisonment, kidnapping, hostage taking, conspiracy to
\ndefraud, incest, blackmail, perjury and perverting the course of justice.
\nEITHER WAY offences can be tried either summarily or on indictment at Crown
\nCourt. In these cases, the accused must be asked to indicate whether he will
\nplead guilty or not guilty. If he pleads guilty, the magistrates must proceed as for
\na summary trial. If he pleads not guilty, they must decide whether the case is
\nsuitable to be tried summarily or should be committed to Crown Court for trial.
\nExamples include theft, assault causing actual bodily harm, wounding or inflicting
\ngrievous bodily harm, possessing or supplying controlled drugs, sexual assault,
\nburglary and handling stolen goods.
\nReporting summary cases rarely poses any serious problems for reporters. But
\nin both of the other categories, reporters can sometimes be confused by the fact
\nthat these cases reach Crown Court by a way of a hearing in front of magistrates,
\nwhen strict reporting restrictions apply.
\nThere are more than 150 Magistrates’ Courts in England and Wales. These are
\nlocal courts, so one will be found in almost every town and there will be several
\nsuch courts in big cities. You can find out more about how the courts operate by
\nconsulting the website for HM Courts & Tribunals Service at www.gov.uk.
\nSo how do you go about reporting the courts? Let’s start by considering a
\nstraightforward summary offence where the defendant has pleaded guilty.
\nThere will normally be a short prosecution outline of the facts followed by a
\ndefence mitigation and then sentencing.
\n8
\nSome offences will be so commonplace and relatively minor that newspaper
\nreports may be restricted to a list of those sentenced, along with their age,
\naddress and details of the fines. An example might be non-payment of a TV
\nlicence.
\nBut long lists are not very interesting for readers and there is usually a little
\nmore detail required to explain the facts. A common difficulty for trainees is to
\ndo this in a lively, newsworthy way while still ensuring that all the vital formal
\ndetails are included.
\nAt this point it is perhaps worth thinking again about your rights and restrictions.
\nYou will recall the comments made by senior judges about the importance of a
\nfree press and the media acting as the “eyes and ears of the general public”.
\nA fundamental principle of the English judicial system is that the courts should
\nadminister justice in public \u2013 that justice should be seen to be done. You will
\nbe studying this in more detail when you look at admission to the courts, access
\nto court information and challenging the courts. The only exception is if this
\nwould make the proper administration of justice impracticable.
\nCoupled with this principle of open justice are certain specific protections for
\nthe court reporter.
\nClearly many things that are said in court are defamatory. But the law
\nrecognises there are occasions when the public interest demands there shall
\nbe complete freedom of speech without any risk of proceedings for defamation,
\neven if the statements are untrue.
\nTo ensure that the press can play their role in the administration of justice, court
\nreports are therefore protected by absolute privilege.
\nAbsolute privilege is a complete answer and bar to any action for defamation
\nand this defence applies to court reports of proceedings in the UK as long as
\nthey comply with three criteria. Court reports must be:
\n\u2022 FAIR
\n\u2022 ACCURATE
\n\u2022 CONTEMPORANEOUS (published in the first available issue).
\nThis is discussed in more detail under the Defamation heading. There is a
\nsimilar protection against the reporter being held in contempt for reporting court
\nproceedings \u2013 as long as no specific court order is broken and no other
\nreporting restrictions apply.
\nLook at those conditions again and consider how they apply to what you are
\nwriting. Contemporaneity is not usually an issue, because you will normally be
\nwriting for the next available issue of your paper, whether it is a daily or a
\nweekly. But you MUST ensure your report is FAIR and ACCURATE, or you
\ncould be landing your paper in serious trouble.
\nLet’s go back to the Magistrates’ Court and a summary case where someone
\nhas pleaded guilty to a minor offence. What are the essential details you need
\nto include in your report?
\nThe name of the court, details about the defendant, the charge(s), the plea, the
\nsentence \u2013 or other arrangements for dealing with the case.
\n9
\nIf all the above are included accurately, you will be off to a flying start. You
\nDON’T have to report the whole case verbatim for it to be fair \u2013 a summary is
\nfine. You don’t have to balance up every statement made in court, particularly
\nif the defendant has pleaded guilty \u2013 although you would be expected to report
\nany relevant mitigating circumstances given by the defence, especially if these
\nare given credence by the magistrates and reflected in the sentence.
\nOther details you MAY wish to include names of magistrates, witnesses,
\ndefence and prosecution counsel and solicitors.
\nThe location of the court is an obvious necessity. But why do we need so much
\ndetail about the defendant? Newspapers argue it is vital to give as much
\ninformation as possible to avoid any confusion over the identity of the accused.
\nThis is particularly important if there are two men with the same name in the
\nsame street, for example. And the age will identify whether it is John Smith (the
\nfather) or John Smith (his son) who has committed the offence.
\nAs well as being in the interests of open justice, this also avoids the potential
\nrisk of someone being wrongly identified as a criminal by their friends and
\nneighbours and subsequently suing the paper for libel.
\nSentences can also hold a few pitfalls for the unwary. Make sure you
\nunderstand the difference between concurrent, consecutive and suspended
\nsentences. And be aware too that the courts can order an offender to pay
\ncompensation for injury, loss or damage, which is not the same as a fine.
\nIf the magistrates feel their sentencing powers are insufficient in view of the
\nserious nature of the crime, they may commit the convicted offender to Crown
\nCourt for sentence. Don’t confuse this with his being sent to Crown Court
\nfor trial.
\nStudy a typical regional paper court report (you will find plenty of examples
\nonline) and see how the essential facts (in bold type) have been worked in to
\nthe story, with the defendant clearly identified, along with the charge, the
\nlocation of the court and the outcome of the case.
\nThe main problem in reporting a summary trial where the defendant has
\npleaded not guilty is that the trial may last a long time because of the amount
\nof questioning involved. This means that the case may have to be reported in
\ninstalments \u2013 particularly in a daily paper.
\nThe first implication of this is that the paper MUST indicate that the trial is
\nongoing and that there is more evidence to be heard. Papers usually have a
\nhouse style for this, often by adding the concluding line to the court report “The
\ntrial continues” or “(Proceeding)”.
\nThe second implication is that for papers to produce a FAIR and ACCURATE
\nreport of the trial, they can’t just dip in and out of it when it suits them, because
\nthey may miss vital evidence.
\nSimilarly, they can’t report one day’s proceedings and ignore the next because
\nthey may only hear the prosecution evidence. This can be a serious problem
\nfor short-staffed papers and is one reason why many local papers no longer
\ncover courts as frequently as they used to, or rely on agency copy rather than
\nsending their own reporter.
\nThe third implication is that because all the evidence has not been heard, the
\n10
\nreporter has to be more careful in ACCREDITING statements made in court
\nwhich may be refuted at a later stage. For this reason, the words “claimed” and
\n“alleged” will appear more frequently in a report of an ongoing trial.
\nFor a full-blown Crown Court trial with a jury, the procedure will depend on
\nwhether the plea is GUILTY or NOT GUILTY, but such cases are normally
\ntackled by experienced court reporters who have passed media law exams
\ngoing into more detail about what can and can\u2019t be reported from the courts.
\nJUVENILES AND THE COURTS
\nJuvenile courts were established under the Children & Young Persons Act
\n1933 and were renamed youth courts in 1992.
\nThe act restricts what may be reported about those under 18 who are involved
\nin court proceedings, whether as a defendant or witness.
\nIn law, a child is defined as being aged between 10 and 13. A young person
\nis aged between 14 and 17. A child under 10 cannot be charged with a criminal
\noffence. A teenager aged 18 or over is an adult.
\nYouth Courts
\nSection 47 of the CYP Act 1933 states that while the general public are barred
\nfrom youth courts, bona fide representatives of the press are allowed to be
\npresent.
\nSection 49 of the act states that reports of youth court proceedings must not
\ncontain:
\n\u2022 the name, address, school or any particulars leading to the
\nidentification of a child or young person involved in the proceedings
\n\u2022 any still or moving photograph of, or including, any such juvenile
\nThus a youth court report can safely report a young person’s age, city or town
\nof residence and job, if appropriate, as long as none of these details could
\nidentify the juvenile in question.
\nA youth court or the Home Secretary has the power to lift the restrictions on
\nidentifying any juvenile concerned in the proceedings to avoid injustice to that
\njuvenile.
\nA youth court, on the application of the Director of Public Prosecutions, may
\ndispense with the restrictions in order to trace a juvenile wanted for violent
\nor sexual offence or an offence where an adult could be jailed for 14 years
\nor more.
\nA youth court can also waive the restrictions on identifying a juvenile when
\nhe\/she is convicted if magistrates believe it would be in the public interest.
\nA Home Office circular said that the lifting of restrictions would be
\nparticularly appropriate where:
\n\u2022 the offending was persistent or serious and\/or had an impact on a
\nnumber of people
\n\u2022 alerting others to the offender’s behaviour would help prevent further
\noffending
\n11
\nJuveniles in adult courts
\nThere is no automatic anonymity for juveniles appearing as defendant, victim or
\nwitness in adult criminal courts, but the court may impose such a ban \u2013 and
\nfrequently does \u2013 under Section 45 of the Youth Justice & Criminal Evidence Act
\n1999
\nApplies to criminal proceedings in adult courts until the age of 18
\nIf made you cannot publish:
\n\u2022 name; address; school; educational or work establishment; still or
\nmoving picture; or anything else likely to lead to the identification
\n\u2022 of a child or young person (under 18)
\n\u2022 concerned in the proceedings (defendant, victim, witness)
\nThe order cannot be made in respect of:
\n\u2022 an adult defendant;
\n\u2022 children not involved in the proceedings; or
\n\u2022 dead children.
\nThe court or appeal court can dispense with such restrictions if it is satisfied:
\n\u2022 it is necessary in the interests of justice
\n\u2022 the effect is to impose a substantial and unreasonable restriction on the
\nreporting of proceedings and it is in the public interest to remove or relax
\nthe restriction
\nIn considering whether to impose such a ban, courts are expected to weigh up
\nthe balance between the public interest in knowing the identity of the juvenile
\nand any likelihood of harm to the juvenile.
\nMost successful challenges relate to cases involving:
\n\u2022 serious crimes
\n\u2022 dead children
\n\u2022 young babies
\n\u2022 identities which are already in the public domain
\n\u2022 attempts to protect adult defendants
\nJigsaw Identification
\nNote the phrasing of the identification ban on juveniles specifies that the reporter
\nmust not include any information leading to the identification of the child or young
\nperson. This means reporters must take care that details in their story cannot be
\npieced together like a jigsaw so that they inadvertently reveal the identity of the
\nyoung person. This poses particular dangers in cases which involve sexual
\noffences.
\nFamily proceedings
\nComplex restrictions govern the reporting of family proceedings where children
\nare involved in divorce, adoption or wardship cases, or are being taken into the
\ncare of the local authority.
\n12
\nSEX OFFENCES
\nThe law provides protection for victims of most sexual offences by ensuring that
\nthey cannot be identified for as long as they live. This anonymity is enforced
\nthrough the Sexual Offences (Amendment) Act 1992 and extends to the following
\noffences:
\n\u2022 all offences which include the word ‘rape’*
\n\u2022 male rape
\n\u2022 sexual assault (on a male or female)
\n\u2022 intercourse with girls under 16
\n\u2022 intercourse with mentally handicapped people
\n\u2022 indecent conduct towards a young child
\n\u2022 procurement of a woman by threats & false pretences
\n\u2022 giving drugs to obtain intercourse
\n\u2022 procurement of mentally handicapped people
\n\u2022 includes attempted rape; aiding, abetting counselling or procuring rape
\nor attempted rape; incitement to rape; conspiracy to rape.
\nAnonymity also extends to the victims of more sexual crimes introduced under
\nthe Sexual Offences Act 2003 \u2013 a major overhaul of legislation which also
\nintroduced tougher sentences.
\nOther offences include sexual activity with a child, engaging in sexual activity in
\nthe presence of a child, causing a child to watch a sexual act, meeting a child
\nfollowing sexual “grooming”, abusing a position of trust in any of these
\noffences, indecent photographs of children, abuse of children through
\nprostitution and pornography, trafficking for sexual exploitation, indecent
\nexposure and voyeurism.
\nMore recent legislation has also protected victims of female genital mutilation
\nand, under the Modern Slavery Act 2015, alleged victims of economic
\nexploitation (ie those who have been trafficked as modern-day slaves, even if no
\nsexual exploitation is involved).
\nOffences of abuse of trust relate to people under 18 \u2013 so that a teacher may be
\njailed for consenting sex with a pupil who is over 16 but under 18. Positions of
\ntrust relate to adults working in schools, hospitals, care homes etc.
\nThere is no automatic anonymity for defendants in sex offence cases, although
\ncare must be taken not to identify the victim if they are connected in some way.
\nReporting restrictions do not apply if someone is charged with perjury or
\nperverting the course of justice by making a false accusation of rape, for
\nexample. Nor is there anonymity in sex-trade offences like soliciting, kerbcrawling or running a brothel.
\nEthical considerations
\nIn addition to legal restrictions, the Editors’ Code of Practice also includes two
\nclauses relating to sex offences.
\n13
\nClause 7 \u2013 Children In Sex Cases
\n1. The press must not, even where the law does not prohibit it, identify
\nchildren under the age of 16 who are involved in cases concerning sexual
\noffences, whether as victims or as witnesses.
\n2. In any report of a case involving a sexual offence against a child –
\nI. The child must not be identified.
\nII. The adult may be identified.
\nIII. The word ‘incest’ must not be used where a child victim might be
\nidentified.
\nIV. Care must be taken that nothing in the report implies the
\nrelationship between the accused and the child.
\nClause 11 \u2013 Victims of Sexual Assault
\nThe press must not identify victims of sexual assault or publish material likely to
\ncontribute to such identification unless there is adequate justification and, by law,
\nthey are free to do so.
\nJigsaw identification
\nAs with cases involving the identification of juveniles, newspapers must take steps
\nto avoid jigsaw identification of victims of sexual offences.
\nCONTEMPT OF COURT
\nThe right to freedom of expression is a guiding principle of life in a democracy and
\nit has become a specific legal right, contained in Article 10 of the European
\nConvention on Human Rights.
\nThe right to a fair trial has always been another guiding principle of the British
\nlegal system and since the incorporation of the European Convention on Human
\nRights into UK law it too become a specific legal right, contained in Article 6 \u2013 a
\nright which is defended by the Contempt of Court Act 1981.
\nA journalist held to be in contempt can be jailed or fined. There is also the
\npossibility of a journalist being prosecuted for common law contempt \u2013 ie outside
\nthe provisions of the Contempt of Court Act.
\nClearly there may be occasions where there appears to be a conflict between
\nthese fundamental rights. So how might a journalist be in contempt of court?
\n\u2022 by publishing material which might prejudice a fair trial
\n\u2022 by publishing anything which interferes with the course of justice
\n\u2022 by breaching an order of the court
\n\u2022 by breaching an undertaking to the court
\n\u2022 by bribing witnesses or vilifying jurors
\n\u2022 by inappropriate behaviour in court
\n\u2022 by scandalising the court (highly unlikely in modern times)
\n14
\nMost problems for journalists arise in relation to the Contempt of Court Act, which
\ndefines circumstances in which contempt by publication is an offence of strict
\nliability \u2013 in other words, regardless of intent.
\nSection 2 of the Contempt of Court Act 1981 states that a person can be guilty
\nof contempt by publication under the strict liability rule only if two conditions
\nare met:
\n1. proceedings are ACTIVE
\n2. there is a SUBSTANTIAL RISK of SERIOUS PREJUDICE
\nWhen are proceedings active? In CRIMINAL cases, when a warrant or summons
\nis issued, an arrest made or the individual charged.
\nBefore an arrest
\nBefore proceedings become active, there will normally be no danger under the
\nstrict liability rule of the 1981 Act, although there may still be a possibility of
\ncontempt at common law. This means reporters \u2013 especially those on weekly
\npapers where an arrest is more likely to occur before publication \u2013 should check
\nwith the police to confirm that no arrest has taken place or warrant issued.
\nPolice appeals for help
\nSometimes when the police have obtained a warrant for a person’s arrest, they
\nseek help from the press in tracing him. This might technically be at risk of
\ncontempt, but the Attorney-General has said the press has nothing to fear from
\nassisting the police in the apprehension of a wanted man.
\nAfter an arrest \u2013 the early stages
\nAs soon as a case becomes active, however, reporters and sub-editors should
\nbe wary of phrasing the story in such a way as to imply that those in police hands
\nare indeed the culprits. (Note that there may also be libel risks in the way the
\narrest is reported.)
\nOne can report a post office robbery and say later that a man was arrested but
\nnot THE man. It would also be dangerous to include descriptions of three men
\nwho raided a bank, lest those arrested answer to the same description, or to refer
\nto the victim as being found murdered, in case the accused is not being charged
\nwith murder.
\nDanger Areas
\n\u2022 saying THE man was arrested, assuming guilt of accused
\n\u2022 publishing descriptions, pictures, eyewitness accounts
\n\u2022 incriminating background, previous convictions, confessions etc
\nThe big dangers occur if you publish information which ‘goes to the heart of the
\nmatter’ and prejudices a jury hearing a Crown Court case \u2013 so both local and
\nnational papers and websites need to be particularly careful when covering major
\ncrime stories and trials where the coverage may influence members of the jury
\nsitting in the case.
\n15
\nSection 4(1) of the Act gives specific protection to court reporters by stating that
\na person will not be guilty of contempt under the strict liability rule in respect of
\n“a fair and accurate report of legal proceedings held in public published
\ncontemporaneously and in good faith” as long as no order has been made
\npostponing reporting of certain matters or banning the identification of a name or
\nother information.
\nSection 5 \u2013 Public interest defence. If you publish a general discussion on a
\nmatter of public interest, you will not be held liable for contempt just because
\nsomeone somewhere is on trial for the type of offence you are discussing. But
\nyou will not be able to rely on this defence if your debate is simply an excuse to
\npublish prejudicial information which does relate to a specific case
\nPhotographs
\nPictures can be as dangerous as words when it comes to contempt. In 1994 a
\nrecord fine of \u00a380,000 for contempt was imposed on the Sun, which published a
\nphotograph of a man accused of murder just weeks before a police identity
\nparade. The paper’s then editor, Kelvin MacKenzie, was fined \u00a320,000.
\nEven if a photograph is not in itself dangerous, it may be rendered risky by the
\naccompanying caption. A picture taken at a protest march apparently showing a
\nconfrontation between a policeman and a protester, for example, might not be
\nincriminating until a careless sub-editor decides that the protester is a “thug” or a
\n“vandal”. (Such a caption would also pose a defamation risk).
\nUnder the Criminal Justice Act 1925, section 41 prohibits the taking of any
\nphotograph in the court or its precincts (or making any portrait or sketch in court
\nwith a view to publication). “Precincts” is not defined in the Act, which can cause
\npractical difficulties for journalists.
\nTheory and Practice
\nFor trainee journalists learning about contempt for the first time, the emphasis is
\non identifying potential contempt risks. But there are contradictions in the way the
\nlaw is applied and the way newspapers and broadcasters react to the risks \u2013 some
\nescaping punishment for contempt in cases where it has been judged that there
\nwas no substantial risk of serious prejudice, others being fined for basic errors
\nbrought about by confusion or complacency.
\nContempt v Defamation
\nAlthough some stories may involve you identifying both contempt and defamation
\nrisks, it is vital you do not confuse the two.
\nRemember:
\nContempt of court is a criminal offence which relates to the publication of
\nanything which interferes with the course of justice or prejudices a pending trial.
\nThe law of defamation exists to protect the reputation of individuals from
\nunjustified attack.
\nSomebody who believes they have been libelled can take civil action against the
\npublisher, editor and writer involved and, if successful, can be awarded a large
\nsum of money by way of compensation. Every section of the paper \u2013 stories,
\nheadlines and picture captions in news, features and sport alike \u2013 has the
\npotential capacity to be defamatory.
\n16
\nLIBEL RISKS
\nIn a democratic society, journalists have a vital role to play in exposing crime,
\ndeceit, hypocrisy and incompetence. Such freedom of speech also implies that
\nthe press should be able to comment, criticise, debate and campaign on behalf of
\nthe public.
\nThe courts have long supported this principle while attempting to protect other
\nfundamental freedoms.
\nThe law of defamation \u2013 as laid out in the Defamation Act 1996 and 2013 \u2013 exists
\nto protect people (and companies) from unjustified attacks on their moral and
\nprofessional reputation \u2013 both through the spoken word (slander) and the written
\nword (libel).
\nUnder the Broadcasting Act 1990, defamatory statements broadcast on radio,
\nTV or in a cable programme, are treated as libel, as are such statements in a
\npublic performance of a play, by virtue of the Theatres Act 1968.
\nSince newspapers attack people\u2019s reputations every day, journalists need to have
\na clear understanding of the law of defamation \u2013 of the potential risks they face,
\nwhat they can do protect themselves from libel actions, what defences may be
\nopen to them and how they should respond to complaints.
\nThree factors make it particularly important that journalists understand this area
\nof the law:
\n\u2022 libel actions can be extremely costly to defend
\n\u2022 outcomes (especially those decided by juries) can be
\nunpredictable
\n\u2022 most successful libel actions stem from journalists\u2019 mistakes
\nThe best protection for journalists is for us to abide by a simple ABC \u2013 accuracy,
\nbalance and care \u2013 in every story we handle.
\nWHAT IS DEFAMATORY?
\nThere is no comprehensive definition of what constitutes defamation but judges
\nhave told juries a statement about a person is defamatory if it tends to do any of
\nthe following:
\n\u2022 LOWER him\/her in the estimation of right-thinking members of society
\ngenerally
\n\u2022 INJURE him\/her in his business, trade or profession
\n\u2022 CAUSE him\/her to be shunned or avoided
\n\u2022 EXPOSE him\/her to hatred, ridicule or contempt
\nNote the words tends to. The person suing does not have to prove the words
\nactually did expose him to hatred or whatever. However under Defamation Act
\n2013 the claimant must now show the statement \u201ccaused, or was likely to cause,
\nserious harm to their reputation\u201d. Businesses can only sue if statement \u201ccaused,
\nor was likely to cause, serious financial loss\u201d. Cases have to be brought within
\none year of last publication.
\n17
\nSo what sort of statements could be defamatory? Some are obvious. It would be
\ndefamatory to suggest, wrongly, that someone was involved in criminal activity,
\nacted immorally or dishonestly or was negligent or incompetent in their job, for
\nexample.
\nRemember that the context is all-important. It would not automatically be
\ndefamatory to say someone lacked financial acumen \u2013 but if they were a merchant
\nbanker or tax consultant, such a statement could be very damaging to their
\nprofessional reputation.
\nMany successful libel actions have been based on arguments over the meaning
\nof words, any innuendo contained in them and any inferences which might be
\ndrawn from them by reasonable people.
\nNote that the danger lies in false accusations. However, do not assume that even
\nwhen you know a controversial statement to be true, you are on safe territory.
\nOne of the defences against a libel action is truth (formerly known as justification
\nbut renamed and made a statutory defence in the Defamation Act 2013) \u2013 that
\nyou can prove the words complained of are substantially true.
\nBut it is a difficult defence to mount because the burden of proof rests on the
\njournalist. The claimant does not have to show the words were untrue.
\nThe burden of proof extends not only to obvious allegations but any innuendoes
\nor hidden meanings which may be interpreted as being defamatory.
\nThe difficulties have been illustrated by a number of high-profile cases \u2013 including
\nthat involving Jeffrey Archer, the disgraced Tory peer, won his 1987 libel case
\nagainst the Daily Star over claims that he slept with prostitute Monica Coghlan,
\nbut was later jailed for four years for perjury and perverting the course of justice
\nduring the libel trial. Civil actions launched by the Star and News of the World
\nresulted in him repaying sums of up to \u00a33m to the papers for costs, the original
\ndamages and interest.
\nWho can sue?
\nAnyone capable of having a reputation is capable of losing it, although those with
\nmost to lose are likely to fight hardest to protect themselves. The fact there is no
\nlegal aid in libel has meant in the past that claimants with financial backing have
\ntended to pose the most risk. However media law specialists Peter Carter-Ruck
\nand Partners in 1998 became the first company to launch a \u201cno-win, no-fee\u201d
\nscheme for those who cannot afford libel actions, so you cannot presume that
\nthose with limited means are in any way safe targets.
\nA number of organisations are also quick to support libel actions on behalf of
\nmembers ranging from headmasters to police and prison officers. MPs, judges,
\ndiplomats and council executives can also be highly litigious, along with those
\nwith large egos and\/or substantial bank balances \u2013 including rock, TV and film
\nstars, sporting heroes, magistrates, lawyers and even journalists.
\nCompanies and incorporated associations can sue, while local authorities,
\ngovernment departments and most unincorporated associations cannot \u2013 but in
\nall cases, the risk is that posed by the individuals who run organisations or hold
\npower within them.
\nCan children sue? Anyone old enough to have reputation is old enough to lose
\n18
\nit. The first case of a libelled child to come before the courts was in 1991 when a
\nfive-year-old boy alleged by The Sun to be \u201cthe worst brat in Britain\u201d received
\nsubstantial damages. The boy, wrongly accused of having cut off his ear and
\nkilling the family cat, was in fact registered disabled with a behavioural disorder.
\nCan criminals sue? Yes \u2013 although you could probably falsely call a convicted
\nrapist a careless driver without facing any substantial risk. If the charges were
\nreversed, of course, the risk would be very great indeed.
\nCan anyone sue on behalf of someone who dies? Beware only those who
\nbreathe. The dead cannot sue for libel and angry or distraught relatives have no
\nlegal redress unless they are personally targeted.
\nWhat a claimant must prove
\nTo succeed in an action for defamation, a claimant must prove three things about
\nthe statement:
\nDefamation \u2013 it is defamatory
\nIdentification \u2013 it may be reasonably understood to refer to him
\nPublication \u2013 it has been published to a third person
\nHe does not have to prove the statement is false. He does not have to prove intent
\n\u2013 ie that the writer meant to discredit him. He does not have to prove he has been
\ndamaged in any way, only that the statement tends to discredit him. The court will
\npresume damage.
\nAs mentioned earlier, under the Defamation Act 2013 someone bringing a libel
\naction will now have to prove that the statement caused, or was likely to cause,
\nserious harm to their reputation.
\nMost people who start libel actions do so because a statement did cause them
\nserious harm. However the change may have helped to deter trivial, timeconsuming complaints that usually go nowhere and libel actions against web-only
\npublications are likely to fail if the page did not attract many clicks.
\nOf these three elements, publication is usually not open to argument \u2013 although
\na third person must be involved. Thus a sealed letter written to an individual is not
\n\u2018published\u2019, whereas a postcard, which can be read by other people, including the
\npostman, is \u2018published\u2019.
\nThis has implications for e-mail messages, too. There have already been libel
\nactions over e-mails sent to colleagues, but even a single e-mail message sent to
\nsomeone\u2019s private address may be \u2018published\u2019 if anybody else has access to their
\ncomputer.
\nLibels contained on web pages, news groups, chat rooms and bulletin boards are
\nalso regarded as being \u2018published\u2019 \u2013 indeed, prior to the Defamation Act 2013
\nthey were published every time someone accesses the relevant site.
\nThis has now changed so that the one-year time limit for starting a libel action
\nbegins when an article is first published online and does not restart every time the
\narticle is viewed.
\n(This protection will not help internet service providers who republish libellous
\narticles from another site, however.)
\nIdentification is a thorny issue. Inexperienced journalists sometimes assume
\n19
\nthey can protect themselves against libel actions by blurring the identity of the
\nperson against whom accusations are made. In practice, this may well make
\nmatters worse by extending the libel to other people the journalist had never
\nintended to target.
\nIf a paper mentions that an unnamed former officer in charge of a local children\u2019s
\nhome has been put on the sex offenders register, the gentleman in question is
\nunlikely to complain to the paper \u2013 but every other former officer in charge of the
\nhome for the past four decades will feel aggrieved enough to sue.
\nIn court cases, full details should be given to avoid confusion. In 1940, the Daily
\nExpress reported that Harold Newstead, a 30-year-old Camberwell man, was
\njailed for bigamy. The paper was sued by another 30-year-old Harold Newstead
\nwho claimed some people felt the article referred to him. If the paper had not
\nomitted Newstead\u2019s address, the problem would not have arisen.
\nThis may be a particular problem in those parts of the country where many people
\nin a town or a village share the same Christian name and surname.
\nA case in 2003 highlighted that publications should be more alert to the risks of
\nlibelling someone they have never heard of or intended to libel. The leading dog
\nmagazine Dog World carried a lengthy article on allegations of abuse by a dog
\ntrainer called Stephen King, but overlooked the fact that there was another
\nStephen King with a prominent reputation in the canine world.
\nThere was nothing in the article to alert readers to the fact that Stephen Barry
\nKing, who was subsequently prosecuted by the RSPCA and convicted of offences
\nrelating to cruelty to animals, was not Stephen Geoffrey King, a respected pioneer
\nin a particular training technique. The test is whether a reasonable reader might
\nunderstand the article to be referring to the latter man \u2013 and the publication had
\nno option but to apologise and pay compensation.
\nFormer Conservative politician Lord McAlpine won a pay-out of \u00a3185,000 from
\nthe BBC in 2012 after it aired a Newsnight investigation into child abuse at a North
\nWales care home. The BBC said the settlement reflected the gravity of the
\nallegations that were wrongly made. Although the peer was not named in the
\nprogramme, he was widely identified on the internet in connection with the story.
\nSometimes the nationals have appeared to take a calculated gamble in publishing
\nsuch details even when they are aware it might lead to a libel action. However this
\nattitude may have changed following the Leveson Inquiry into press standards.
\nAlthough the inquiry\u2019s focus was on illegal activities by newspapers and in
\nparticular intrusions into privacy, concern over massive compensation payouts
\nand political calls for tighter regulation of the press have encouraged many editors
\nto take a more responsible approach towards publishing claims where there are
\nclear libel risks.
\nThere were a number of calls in 2010\/11 to reform the libel laws to offer more
\nprotection to freedom of expression, taking account of the realities of 21st century
\npublication, particularly on the internet. There was also a widely perceived need
\nto limit the growth of \u201clibel tourism\u201d and cut back \u201cconditional fee agreements\u201d
\nwhich had become so prohibitively high that they posed a \u201cchilling effect\u201d on free
\nspeech by encouraging papers to settle libel claims rather than pursue costly High
\nCourt actions, editors argued.
\nThe changes introduced in the Defamation Act 2013 followed some very high-
\n20
\nprofile libel actions involving the Fleet Street tabloids.
\nIn 2008 The Express Newspaper group paid out \u00a3550,000 in libel damages to
\nKate and Gerry McCann, whose daughter Madeleine went missing in Portugal the
\nprevious year, the size of the payout reflecting the fact that more than four papers
\nwere involved in publishing more than 100 stories containing a variety of
\ndefamatory allegations.
\nAnd coverage of the arrest of retired schoolmaster Chris Jefferies in relation to
\nthe murder of landscape architect Joanna Yeates resulted in eight newspapers
\npaying out \u201csubstantial\u201d damages in relation to more than 40 articles published in
\nlate December 2010 and early January 2011. Mr Jefferies was described by his
\nlawyer as \u201cthe latest victim of the regular witch hunts and character assassinations
\nconducted by the worst elements of the tabloid press\u201d.
\nDamages payouts in the UK have tended to remain relatively low compared to
\nthose in some other countries (including Australia and Ireland), but the amounts
\nhave been dwarfed by the high court costs involved.
\nInternet libel
\nIndividuals and companies who host websites, bulletin boards and chatrooms (or
\nwho contribute to them) need to be aware that the defamation laws apply as much
\nto the internet as they do to newspaper publishers and broadcasters.
\nSection 1 of the Defamation Act provides a very limited defence of innocent
\ndissemination. Intended to provide a defence to those who unwittingly providing
\na conduit enabling another person to publish defamatory material, it is only
\navailable to those who are NOT the \u201cauthor, editor or publisher\u201d.
\nThis may sound like a possible defence for internet service providers to claim they
\nhad no knowledge of a libel published in a newsgroup, chat forum or another site
\nto which they directed users through a hypertext link.
\nIn August 2009 a judge ruled that Google was not responsible for publishing
\ninformation shown in its search results.
\nHowever the case of Godfrey v Demon Internet Ltd in 2001 appeared to establish
\nthat under British law, service providers are held as being responsible for
\ndefamation if they either store material or have any form of editorial control over
\nits contents. The test of ISPs is whether they take reasonable care to ensure
\ndefamatory material is not posted on web pages \u2013 and whether they take steps
\nto remove such defamatory material once notified of its existence.
\nThe \u00a3475,000 bill faced by Demon Internet after it settled two libel actions brought
\nby lecturer and researcher Laurence Godfrey was regarded as a \u201cwake-up call\u201d
\nto online providers. Demon settled out of court, agreeing to apologise to Dr
\nGodfrey and pay him \u00a315,000 damages and \u00a3230,000 legal costs.
\nDemon did not suggest the libels were true, but argued it was not liable for their
\npublication or under any duty to remove them from its news servers, claiming it
\nhad a defence under Section 1 of the Defamation Act. At an interlocutory hearing
\nMr Justice Morland rejected Demon\u2019s arguments, saying the defence was
\navailable only to a defendant who had taken reasonable care in respect of
\npublication and had no knowledge or reason to believe that what it did
\ncaused or contributed to the publication of a defamatory statement.
\nThe same dangers apply to e-mail messages. There have already been libel
\n21
\nactions over e-mails sent to colleagues, but even a single e-mail message sent to
\nsomeone\u2019s private address may be \u201cpublished\u201d if anybody else has access to their
\ncomputer. The same concerns apply to other restrictions on publishing like
\ncontempt of court or the provisions of the Children and Young Persons Act 1933
\nand Sexual Offences (Amendment) Act 1992.
\nIn 2004, there were a number of cases in which the courts upheld the right, in
\nprinciple, of individuals to sue for libel in the English courts over statements
\npublished on internet websites run from other parts of the world. But the
\nDefamation Act 2013 sought to limit the risk of \u201clibel tourism\u201d by insisting that
\nclaimants from outside the EU will now have to prove that the UK is the most
\nappropriate jurisdiction to hear a case.
\nA new defence introduced under the Electronic Commerce (EU Directive)
\nRegulations 2002 protects ISPs in situations where they act as a temporary
\nconduit for information, have no prior knowledge that the information is illegal and,
\nas soon as they are informed that is, remove it quickly.
\nInitially few internet libel cases reached the courts, but in July 2008 a
\nbusinessman whose personal details were \u201claid bare\u201d in fake libellous entries on
\nFacebook won \u00a322,000 damages against a former friend who created the profile
\n\u2013 \u00a320,000 for libel and \u00a32,000 for breach of privacy.
\nOnline publishers may also need to vet the \u201ctagging\u201d system used for accessing
\nassociated archive stories.
\nA court case with tags to earlier stories containing damaging background
\ninformation might pose a contempt risk \u2013 and there could be similar problems in
\nterms of libel if archives are not monitored to eliminate links to a previous
\ndefamatory statement, for example.
\nHowever, giving judgement in Smith v ADVFN Plc in 2008, Mr Justice Eady drew
\ncomparisons between postings on bulletin boards and a casual conversation, in
\nthat both can be informal, sometimes ill-conceived and, crucially, not always taken
\nas the literal truth by participants.
\nLegal actions are increasingly likely to involve an overlap between different areas
\nof the law, with a libel claim perhaps being brought alongside other actions, such
\nas privacy, false attribution, breach of copyright and data protection.
\nThe Defamation Act 2013 introduced a new section 5 defence under which
\nresponsible website operators provide a \u2018report and remove\u2019 system that people
\ncan use if they believe they have been defamed on a website message board.
\nLarger publishers have tended to favour the less complication Section 1 defence.
\nHowever, Tweets written by staff writers have proved very expensive.
\nIn 2017 a claim made by Jack Monroe against Katie Hopkins over defamatory
\ncomments made on Twitter resulted in a damages payout of \u00a324,000 and costs
\nof \u00a3300,000 for the Mail Online columnist when it was settled at the High Court.
\nHopkins was refused leave to appeal in January 2018.
\nWe know that libel actions can be extremely costly to defend and outcomes
\n(especially those decided by juries) can be unpredictable.
\n22
\nAccusations of hypocrisy or deceit are dangerous, especially when they involve
\nhigh-profile celebrities with big egos
\nInnuendo
\nMany statements which sound innocuous may carry a defamatory inference to
\nthose readers with special knowledge who read between the lines of your report.
\nIt is not automatically defamatory to describe someone as having socialist
\nleanings \u2013 but if the person in question is known by your readers to be a Tory
\ncouncillor, the statement may well imply that he is politically dishonest and a
\nhypocrite. This is a danger area because a defamation can occur which was never
\nintended on the part of the newspaper.
\nYour choice of words is important in this context, especially in comment and diary
\ncolumns. Former PA court correspondent Tom Corby accepted damages from the
\nDaily Mail and an apology over comments in the Ephraim Hardcastle column in
\nDecember 2003 which suggested he was honoured with an MVO (membership of
\nthe Royal Victorian Order) for \u201cdiligent crawling\u201d. The Daily Mail had previously
\ndenied the piece was defamatory.
\nIdentification
\nThe examples demonstrate just how complex and dangerous this aspect of libel
\nlaw can be. Can you avoid liability by avoiding the full name, age, address of the
\ntarget? Possibly, but only by blurring the identity to the point where the story is
\nhardly worth using. In many cases, the victims of your accusation will be able to
\nshow that they could be identified by someone reading your paper, even if their
\nnames were not used. Worse still, blurring the identity may draw in people you
\nnever intended to attack.
\nPictures
\nCock-ups account for more problems with identity \u2013 using the wrong picture
\nalongside defamatory comments, for example, or picking a fictitious name for a
\ntarget which happens to coincide with that of a real person or company.
\nIn May 2000, for example, the Daily Mail had to print an apology about a
\nphotograph of a clown who had given evidence in the court case. Instead of
\nshowing Banjo the Clown \u2013 alias Paul Thorlsog \u2013 the picture showed Brillo the
\nClown \u2013 Mr Brian David Russell, who had nothing to do with the trial.
\nGroup libels
\nThese are discussed in more detail in McNae and include the 1971 case where a
\ngroup of journalists regularly reporting the Old Bailey each received \u00a3150
\ndamages when The Spectator attacked the \u201cbeer-sodden hacks\u201d reporting on an
\nobscenity trial.
\nCompanies
\nParticular care must be taken by business journalists because of the potentially
\ncatastrophic problem of claims being based on the company\u2019s fall in value
\nfollowing the publication of a defamatory article.
\nLibel defences
\nThere are a number of defences against an action for defamation, some of them
\nvery powerful indeed.
\n23
\nThe main defences are:
\n\u2022 Truth
\n\u2022 Honest opinion
\n\u2022 Privilege
\n\u2022 \u201cPublic interest\u201d
\n\u2022 Accord and satisfaction
\n\u2022 Offer of amends
\nOther possible defences are:
\n\u2022 Innocent dissemination
\n\u2022 Consent
\n\u2022 The claimant has died
\n\u2022 Proceedings were not started within the limitation period
\n\u2022 The matter has already been dealt with
\nThe truth defence
\n\u201cTruth\u201d is a complete defence to a libel action. The defence (formerly known as
\njustification) applies to statements of fact, where the burden of proof rests with
\nthe defendant \u2013 although the journalist must convince the court that his story is
\ntrue on the balance of probabilities, which is a lower requirement than beyond
\nreasonable doubt, the standard in criminal cases.
\nThis may sound straightforward, but in practice is likely to be costly and complex,
\nwith no guarantee of success.
\nThe passage of time is one problem \u2013 witnesses who were eager to speak out
\nat the time may have changed their minds, moved away or forgotten the incident
\nbefore it comes to court.
\nCases can be costly. The cost of proving the truth can sometimes be prohibitive
\nfor a small or impecunious paper.
\nThe credibility of witnesses is a factor, too.
\nPersistence may be penalised. Pursuing a truth defence can be dangerous
\nbecause, if it fails, the court is likely to take a critical view of your persistence in
\nsticking to a story it has decided is not true \u2013 and the jury may award greater
\ndamages accordingly.
\nHonest opinion
\nNewspapers frequently rely on this defence, which relates only to comment,
\nmade honestly and without malice (improper motive).
\nComment, not facts \u2013 The defence does not provide a defence for the publication
\nof defamatory facts. But the comment must be based upon true facts.
\nHonest opinion \u2013 We are all entitled to hold and express strong views on matters
\nof public interest, provided they are honestly held. Our views may be considered
\nexaggerated, obstinate or prejudiced by other people, but that does not matter as
\nlong as they are honestly held.
\n24
\nWithout malice \u2013 For the defence to succeed, it is essential that the statement
\nwas made without malice. In legal terms, this means more than spite or ill-will, but
\nextends to any dishonest or improper motive. An editor making remarks because
\nof a personal grudge, for example, would be acting with malice. So would a
\njournalist who comments on facts he knows to be untrue.
\nWhat happens if your facts are wrong? Getting key \u201cfacts\u201d wrong could
\nseriously undermine or destroy your defence. Actor David Soul accepted \u00a320,000
\ndamages and costs estimated at \u00a3150,000 from the Mirror in 2001 over a review
\nof a black comedy, The Dead Monkey, which he helped produce in London\u2019s West
\nEnd.
\nThe review was attributed to Matthew Wright, the Mirror\u2019s showbusiness
\ncolumnist, although he had actually sent a freelance journalist to review it on his
\nbehalf. Soul\u2019s solicitor highlighted the fact Wright had dubbed the play as being
\n\u201cwithout doubt the worst West End show\u201d he had ever seen \u2013 yet referred to a
\nMonday performance where there had not been one and had included other
\ninaccuracies. Soul said afterwards: \u201cI stand strongly on the side of fair comment
\nand information about the theatre. I think it is the cornerstone of the theatre. But
\nyou have to see the play, you have to be there. You have to have the facts\u201d.
\nImputing improper motives to someone may negate your defence and is a
\ncommon cause of libel actions. You may fairly criticise someone\u2019s conduct or
\njudgement, but should not imply a corrupt or dishonourable motive to their
\nbehaviour you cannot possibly prove.
\nAbsolute privilege
\nThe law recognises there are occasions when the public interest demands that
\nthere shall be complete freedom of speech without any risk of proceedings for
\ndefamation, even if the statements are defamatory and even if they are untrue.
\nSuch occasions are said to be privileged.
\nAbsolute privilege is a complete answer to any action for defamation,
\nirrespective of whether the words are true or false or spoken maliciously. Section
\n14 of the Defamation Act 1996 clarifies that this applies to a fair, accurate and
\ncontemporaneous report of judicial proceedings in public within the United
\nKingdom and permits journalists to safely cover the courts, where statements are
\noften highly defamatory.
\nReports MUST be fair, accurate and contemporaneous to be covered by absolute
\nprivilege. A report which only carries the prosecution case, which does not report
\nan acquittal or which contains incorrect charges, will lose the protection.
\nInaccurate headlines which misrepresent the story lead to many complaints.
\nPrivilege extends only to the actual report of the proceedings \u2013 it does not apply
\nto defamatory statements shouted out in court or comments made by solicitors in
\nthe court corridor after a case.
\nQualified privilege is another powerful defence for journalists.
\nThis relates to occasions where it is considered important that the facts should be
\nfreely known in the public interest.
\nA paper claiming the protection of qualified privilege must ensure their report is:
\n\u2022 fair
\n\u2022 accurate
\n25
\n\u2022 published without malice
\n\u2022 in the public interest
\nCircumstances in which qualified privilege applies are explained in the schedule
\nto the Defamation Act 1996.
\nThere are two categories: Part I defines statements privileged without explanation
\nor contradiction. Part II defines statements privileged subject to explanation or
\ncontradiction.
\nPart I \u2013 Not subject to explanation or contradiction
\nThis protects fair and accurate reports published without malice of the
\nproceedings in public of a legislature or court anywhere in the world, of a copy or
\nextract from any register or other document which must be open to public
\ninspection and to notices published by or on the authority of the court.
\nPart II \u2013 Subject to publication, on request, of a reasonable letter or
\nstatement by way of explanation or contradiction
\nThis covers the findings or decision of a body with power in its constitution to deal
\nwith people under its control in a charity, sport, trade, industry, profession, art,
\nscience, religion or learning.
\nIt covers the proceedings at any public meeting or sitting of any local authority or
\nlocal authority committee, magistrates not sitting as a court, or any commission,
\ntribunal, inquiry or committee appointed by any Act of Parliament or by a Minister
\nof the Crown.
\nIt covers a general meeting of a public company and, following a House of Lords
\ndecision in 2001, extends to fair and accurate reports of press conferences and
\npress releases issued at them. This was reinforced by statute in the Defamation
\nAct 2013.
\nFinally, it also applies to any notice or other matter issued for public information
\nby or on behalf of a government department or body exercising governmental
\nfunctions, including the police.
\nThese definitions clarify just how powerful and far-reaching the qualified privilege
\ndefence is for journalists, encompassing council and public meetings and official
\nstatements by a police or local authority spokesperson.
\nNotice the obligation on editors under Part II to publish a \u2018reasonable letter or
\nstatement by way of explanation or contradiction\u2019. Failure to publish such a
\nstatement would destroy the qualified privilege defence. However, the word
\nreasonable is important.
\nEditors will need to take legal advice to ensure such a statement does not risk
\nlibelling another person \u2013 for example, by contradicting what he has been reported
\nas saying and therefore branding him a liar.
\nAccord and satisfaction
\nThis is a plea that the matter has been otherwise disposed of, for example by the
\npublication of a correction and apology that has been accepted by the claimant in
\nsettlement of his complaint.
\nAnother way a paper can \u2018satisfy\u2019 a claimant is by making a payment into court. A
\n26
\nsum of money is lodged which the claimant can take at any time to end the
\nlitigation \u2013 if he does not accept it, the action continues.
\nOffer of amends
\nThis was a new defence introduced by the Defamation Act 1996. To use it, a
\ndefendant must make a written offer to make a suitable correction and apology,
\npublish the correction in a reasonable manner and pay the claimant suitable
\ndamages \u2013 although the precise terms may be left to be agreed at a later date.
\nPublic interest
\nUntil 1998, Britain had no defence of the publication in good faith of factual matter
\nin the public interest where the truth of the allegation could not be proved.
\nHowever in 1999 the House of Lords upheld a 1998 High Court decision that there
\nmay be a qualified privilege defence at common law where a newspaper has
\na legal, moral or social duty to the public to publish the material in question, the
\npublic has a corresponding interest in receiving it and the nature, status and
\nsource of the material are such to invite privilege in the absence of malice.
\nThis defence depends on information being presented in as fair, reasonable and
\neven manner as possible.
\nConsent
\nThe so-called \u201cjournalist\u2019s defence\u201d depends on balanced reporting and making
\nan honest effort to give full weight to the opinions of the person under attack both
\nin the headline and in the text. It will probably apply if someone approaches you
\nto help them refute a defamatory rumour, as long as your motives are honourable.
\nIt will not protect you against publishing malicious, unfounded rumours.
\nThe claimant has died
\nThe action for libel is personal and an action begun by a claimant cannot be
\ncontinued by his heirs and executors \u2013 the action dies with him.
\nProceedings were not started within the limitation period
\nThe period was reduced to one year under the Defamation Act 1996.
\nThe matter has already been dealt with
\nThe court will not entertain a second action based on the same complaint against
\nthe same defendant. However that does not stop the claimant taking action
\nagainst any number of defendants who are separately responsible for publishing
\nthe statement and it will not prevent a second action from a claimant if he were
\ndefamed a second time, for example by a poorly phrased apology.
\nThe main defences outlined here can provide powerful protection for journalists
\nand a detailed knowledge of them is a vital requirement of all journalists.
\nCOPYRIGHT
\nWhile there is no copyright in facts, news, ideas or information, there is
\ncopyright in the way information is expressed, selected and arranged if it involves
\nskill and labour. This means that alarm bells should start ringing for any journalist
\nconsidering copying material from any particular source for their own use,
\nparticularly if such \u201clifting\u201d is done on a persistent basis. Print journalists also need
\nto be aware this applies to information sourced from the web unless specific
\n27
\nauthorisation is granted.
\nBreach of copyright
\nRemedies for breach of copyright may involve civil action or prosecution:
\nCriminal law: Under the Copyright, Designs and Patents Act 1988 a person
\nguilty of infringement can be prosecuted \u2013 although this is more likely to involve
\nfraudulent activity such as counterfeit DVDs or illegal file-sharing.
\nCivil action: The copyright owner may obtain an injunction restricting someone
\nfrom infringing his copyright. He can also seek damages and an order for the
\npossession of the infringing copies. In certain circumstances, the owner\u2019s first
\napproach is likely to be in the form of a demand for payment for the unauthorised
\nuse of copyright material \u2013 with the subsequent threat of civil action if no payment
\nis forthcoming.
\nHow old is the contested material? The law changed with the introduction of
\nthe above Act, which applies to work created after 31 July 1989. If you are
\naccused of copyright infringement, you will need to establish whether it was
\ncreated before or after this date to establish the law regarding its ownership.
\nMoral rights: The 1988 Act introduced the concept of moral rights to protect
\nthose commissioning a photograph for private and domestic purposes. A
\nnewspaper publishing such a photograph could therefore find itself facing two
\npeople who claim their rights have been infringed \u2013 the photographer who took
\nthe picture and owns the copyright (who may seek payment for its use) and the
\nperson who commissioned the photograph (and who seeking damages for its
\nunauthorised publication).
\nDEFENCES
\nInnocent infringement \u2013 This will protect you from a claim for damages if you
\ndid not know and had no reason to believe that the work was subject to
\ncopyright. But since you are aware that copyright does not have to be registered
\nand protects the products of people\u2019s skill, labour, creativity and time, you will not
\nbe able to claim innocent infringement simply because you did not know who the
\nspecific owner was.
\nFair dealing \u2013 The most commonly used defence when copyright material is used
\neither for the purposes of reporting current events or for the purposes of
\ncriticism or review of that work or of another. However this is subject to you
\ngiving sufficient acknowledgement of the work and its author and will not justify
\n\u201csubstantial\u201d extracts.
\nWhat is \u201csubstantial\u201d? Clearly we would expect a short review which includes a
\ncouple of relevant quotes to provide the reader with a flavour of the work
\nconcerned as being protected by the fair dealing defence. But dangers arise when
\nreviewers and sub-editors decide, for example, that the book in question is of
\nsufficient interest to devote a substantial amount of space to extracts.
\nTest questions journalists should ask themselves in such circumstances include
\nwhether they are using a \u201creview\u201d as a means of filling space without having to
\npay for the material concerned, and whether such use is preventing the copyright
\nowner from gaining financial benefits from the sale of rights to his work. In such
\ncases, fair dealing is unlikely to be an acceptable defence.
\nSimilar considerations will apply to lifting large sections from published news
\n28
\nstories without proper attribution.
\nPublic interest \u2013 The Act does not specifically provide a public interest defence
\nto the infringement of copyright although there may be circumstances in which
\nsuch an argument is relevant.
\nFreedom of expression \u2013 This does not appear to be a defence with any
\nreasonable prospect of success against a claim for breach of copyright.
\nAcquiescence \u2013 If the owner of copyright material has encouraged or permitted
\nits use without complaint, this may destroy a claim for infringement of copyright.
\nBut note that this will not be a convincing defence if the owner was unaware of
\nany such prior infringement.
\nMAPS, DRAWINGS AND PICTURES
\nA \u00a320m settlement in 2001 between Centrica and Ordnance Survey over the
\nunauthorised use of copyright maps should provide a salutary warning to
\nnewspaper and web artists and picture editors about the dangers of \u201cadapting\u201d
\npublished material and passing it off as their own original work.
\nCOPYRIGHT AND CONFIDENTIALITY
\nCopyright issues can be closely connected with breach of confidence arguments,
\nespecially when, for example, journalists obtain access to private diaries. In June
\n2007 the House of Lords rejected the Mail on Sunday\u2019s bid to appeal against a
\nDecember Court of Appeal ruling that the paper should return Prince Charles\u2019s
\njournals about the 1997 handover of Hong Kong.
\nThe appeal court said the Prince had an overwhelming case that his copyright
\nhad been breached by extracts from the journals, and that the disclosure was an
\ninterference with his private and family life under the Human Rights Act.
\nPLAYING FOR HIGH STAKES
\nAs the Centrica case above illustrates, breach of copyright can have costly
\nrepercussions. Two authors who claimed their work was plagiarised by Dan
\nBrown to produce his bestseller The Da Vinci Code faced financial ruin in March
\n2007 after losing their court appeal. The pair faced a legal bill estimated at around
\n\u00a33m.
\nJournalists need to be increasingly aware of the online risks of copyright
\ninfringement, particularly when potentially linked to privacy, libel or harassment
\nactions \u2013 for publication of \u201cprivate\u201d copyright images from someone\u2019s Facebook
\nprofile, for example.
\nBREACH OF CONFIDENCE
\nThe law regarding breach of confidence has developed rapidly over the past 20
\nyears to encompass attempts to prevent the divulging of sensitive commercial,
\nbusiness, Government, security and matrimonial information as well as a means
\nto prevent intrusions into privacy.
\nAt one extreme it has even been used, in the case of the killers of the child James
\n29
\nBulger, to protect the killers\u2019 right to life at the expense of the press\u2019s right to the
\nfreedom of expression.
\nIt has also been used by the Government \u2013 alongside prosecution under the
\nOfficial Secrets Act 1989 \u2013 to silence former members of the security services.
\nThe main means of preventing a breach of confidence is through an interim
\ninjunction preventing a publication from disclosing confidential information \u2013 and
\nan important Court of Appeal decision in 1987 confirmed that an injunction
\nagainst one paper is an injunction against all others, who may be found in
\ncontempt of court if they publish information when an injunction is in force.
\nJournalists have expressed concern that governments have used breach of
\nconfidence as a means of enforcing news management in cases when no genuine
\nissue of confidentiality is involved, and that individuals have used the law to
\nintroduce a privacy law \u201cby the back door\u201d.
\nA major dilemma is that in order to balance and stand up contentious stories \u2013
\nand to protect against libel actions \u2013 it is a natural journalistic instinct to approach
\nthe person against whom a serious allegation is being made. Yet if this results in
\nan injunction, it could kill the story by preventing the use of the information.
\nOne way round this is to seek to obtain the facts from a different, non-confidential
\nroute before confirming them with the original source. However there is also the
\ndanger that a court could insist on you \u201cdelivering up\u201d confidential material which
\ncould lead to your source being identified and even jailed. Yet to deliberately
\nmutilate or destroy a document likely to be called for in a pending action could be
\nconstrued as contempt of court.
\nLast-minute injunctions may pose a publisher or a broadcaster serious problems
\nby generating considerable expense and inconvenience, yet defiance of a court
\norder would represent a serious contempt of court.
\nWhat are the possible consequences of a breach of confidence?
\n\u25aa obeying an injunction may be costly and inconvenient
\n\u25aa disobeying an injunction may result in prosecution for contempt
\n\u25aa challenging an injunction can be costly
\n\u25aa a journalist can be ordered to reveal the name of his informant
\n\u25aa a court can order that confidential matter be delivered up or
\ndestroyed
\n\u25aa a person misusing confidential information may be asked to account
\nfor the profits to the person who confided the information
\n\u25aa if confidential matter is published, the person whose confidence has
\nbeen breached may be able to claim damages
\nWhat are the key elements of a breach? Mr Justice Megarry clarified this in a
\njudgement in 1968:
\n\u25aa the quality of confidence
\n\u25aa the obligation of confidence
\n\u25aa unauthorised use to the detriment of the party communicating it
\nBreach of confidence may thus be used to protect not only information which is
\n30
\nmarked \u201cconfidential\u201d or \u201ctop secret\u201d, but other information which has been
\nobtained by an employee who has a contractual obligation to keep his employer\u2019s
\nsecrets.
\nThis may extend not only to a diary or private correspondence but to marital
\nsecrets, kiss-and-tell stories and pictures taken with a telephoto lens of someone
\nengaged in a private act, as well as to information obtained through other
\nunethical means such as trespass, theft or listening devices.
\nSensitive medical or commercial information, for example, might be at the \u201cupper\u201d
\nend of the confidentiality \u201cscale\u201d. But cases which go to court are once again likely
\nto hinge on a debate over the issues discussed earlier:
\n\u25aa Is the information already in the public domain?
\n\u25aa Would publication be in the public interest?
\n\u25aa Has the journalist adhered to the relevant privacy code?
\nDespite the importance accorded to freedom of expression by the Human Rights
\nAct and the long-standing principle that the rule against prior restraint is
\ndesigned to prevent censorship and protect press freedom, the limitations
\nimposed by paragraph 2 of Article 10 clearly extend to \u201cpreventing the disclosure
\nof information received in confidence\u201d.
\nPublic interest defence
\nLord Denning made it clear in 1984 that there is public interest in preserving
\nconfidence as well as in making known to people matters of public concern. These
\ncompeting interests have to be balanced by the courts.
\nSection 12 of the Human Rights Act says that any court considering a matter
\naffecting freedom of information must have particular regard to \u201cany relevant
\nprivacy code\u201d.
\nThe Editors\u2019 Code of Practice has a number of clauses relating to privacy, but
\nstresses that there may be exceptions to these rules if the information can be
\ndemonstrated to be in the public interest. The code offers its own, non-exhaustive
\nlist of what this includes:
\n\u25aa detecting or exposing crime or a serious misdemeanour
\n\u25aa protecting public health and safety
\n\u25aa preventing the public from being misled by some statement or action
\nof an individual or organisation
\nAn editor must be able clearly to demonstrate how the public interest is served by
\npublishing private or confidential information. People in the public eye, like
\ncelebrities and politicians, still have the right to privacy, in the right circumstances.
\nBut a public interest defence may apply in circumstances where the individual has
\ncourted publicity in the past, particularly if the new information reveals a different
\naspect to their \u201cimage\u201d and it can be shown that it is in the public interest for this
\nto be made known.
\nA seminal case in clarifying the press\u2019s position on the reporting of confidential
\ninformation was the high-profile 2002 clash between supermodel Naomi Campbell
\nand the Daily Mirror.
\n31
\nCampbell had conceded that she was having therapy for drug addiction and \u2013
\nbecause she had previously lied about this \u2013 that the Mirror was entitled, in the
\npublic interest, to publish this otherwise confidential information in order to set the
\nrecord straight. However she contended that there was no public interest in the
\npublication of details of her treatment, such as photographs of her emerging from
\na Narcotics Anonymous centre and that therefore the Mirror had published these
\nin breach of confidence. Her argument was initially accepted by Mr Justice
\nMorland, who awarded Campbell \u00a33,500 damages against the paper.
\nThe Court of Appeal reversed that ruling, finding that the information published by
\nthe paper was \u201cjustified in order to provide a factual account of Miss
\nCampbell\u2019s drug addiction that had the detail necessary to carry credibility\u201d.
\nThe court considered that where the publication of particular confidential
\ninformation is justified in the public interest, journalists must be given
\n\u201creasonable latitude\u201d as to the manner in which that information is conveyed to
\nthe public.
\nMaster of the Rolls Lord Phillips said the appeal court did not consider the
\ninformation that Campbell was receiving NA therapy was to be equated with
\ndisclosure of clinical details of medical treatment.
\nHowever the court also clarified that confidential information does extend
\nto aspects of an individual\u2019s private life that he or she does not choose to
\ndisclose and which a fair-minded person would think it offensive to publish.
\nThe fact that an individual has achieved prominence on the public stage does not
\nmean their life can be laid bare by the media, the court said \u2013 once more
\nemphasising the distinction between information that is in the public interest and
\ninformation in which the public is interested.
\nThe Naomi Campbell case went to the House of Lords, where the judges held
\nunanimously that English law provides a cause for action for the unjustified
\npublication of private information. The main issue in the Naomi Campbell case lay
\nnot in revealing the fact of her addiction or that she was receiving therapy, but in
\nshowing her leaving a Narcotics Anonymous meeting, discussing details of the
\ntreatment and her reaction to it.
\nAn important press victory came in October 2004 when the House of Lords ruled
\nthat the Liverpool Echo could run a story about alleged financial irregularities
\ninvolving the nightclub promoter Cream, despite these being based on information
\nobtained from the former financial controller of Cream.
\nThe ruling overturned a provisional High Court injunction on the basis that to
\nsucceed in obtaining an injunction gagging a newspaper when a breach of
\nconfidence is alleged, the individual or company will have to persuade a judge
\nthat they are \u201cmore likely than not\u201d to get the injunction upheld at trial.
\nProtecting your sources
\nDespite such a range of different ways in which authorities may attempt to prevent
\njournalists from disclosing sensitive information, there were signs that the
\nintroduction of the Human Rights Act might safeguard freedom of expression to a
\ngreater degree than had been previously demonstrated by the UK courts.
\nIn particular, the Bill Goodwin case highlighted a difference in attitudes between
\n32
\nthe UK courts and the European Court of Human Rights. Goodwin was fined for
\nfailing to comply with a judge\u2019s order to reveal his sources, but his appeal was
\nunsuccessful in both the Court of Appeal and the House of Lords, which both
\nmaintained that disclosure was \u201cnecessary in the interests of justice\u201d.
\nBut the European Commission found for Goodwin in 1994, saying: \u201cProtection
\nof the sources from which journalists derive information is an essential
\nmeans of enabling the press to perform its important function of \u2018public
\nwatchdog\u2019 in a democratic society.\u201d
\nIn 1996 the European Court reached the same decision, stressing the protection
\nof journalistic sources was one of the basic conditions for press freedom. An order
\nof source disclosure could not be compatible with Article 10 of the Convention
\nunless it was justified by \u201can overriding requirement in the public interest\u201d.
\nAugust 2007 saw the closing chapter in a seven-year court wrangle over a
\njournalist\u2019s right to protect their sources. The case relates to a story published by
\nThe Mirror in 1999 and provided by freelance journalist Robin Ackroyd. It
\nconcerned the alleged mistreatment of Moors murderer Ian Brady at Ashworth
\nmental hospital and Mersey Care NHS Trust demanded to know the source of the
\nconfidential medical information provided. But the claim was thrown out by the
\nCourt of Appeal, and the House of Lords refused permission for the Trust to mount
\na further appeal. In an earlier hearing, High Court judge Mr Justice Tugendhat
\nhad ruled in Ackroyd\u2019s favour and described him as \u201ca responsible journalist
\nwhose purpose was act in the public interest\u201d.
\nHowever another case in 2007 illustrated the bewildering consequences that can
\nbefall a journalist suddenly caught up in a police investigation. Reporter Sally
\nMurrer of the Milton Keynes Citizen was bugged and tracked by police, locked in
\na cell for hours, strip searched and warned she could face life imprisonment when
\nshe found herself suspected of corrupting a policeman to give her stories.
\nPolice raided her office and home, produced a search warrant and seized her
\nlaptop and files. She was arrested as a suspect \u201calleged to have committed a
\nserious offence\u201d, said Banbury Police. She said: \u201cI\u2019m a mother of three, I work 12
\nhours a week. I don\u2019t know why they are treating me like some sort of spy.\u201d
\nIn March 2008 Murrer denied obtaining police information illegally and charges of
\naiding and abetting misconduct in a public office. The charges were thrown out in
\nNovember 2008 when the case came to Kingston Crown Court and the judge
\ndecided her Article 10 rights had been breached. The policeman in the case, a
\ndetective sergeant, also walked free.
\nThe editors\u2019 code
\nLaunched in 1991 as a replacement for the much-criticised Press Council, the
\nPress Complaints Commission\u2019s role was to deal with complaints from members
\nof the public about possible breaches of the editorial code of practice and aims to
\nresolve complaints swiftly and amicably. Central to its work was \u201cthe protection of
\nthe vulnerable\u201d.
\nDuring the Leveson inquiry into press standards in 2012, the PCC confirmed that
\nit would close, to be replaced by the Independent Press Standards
\nOrganisation, which began dealing with code complaints in September 2014.
\n33
\nThe code itself is fairly short, although settling disputes relating to the code may
\nnot be as easy as it sounds. You can find out more about past adjudications on
\nipso.co.uk.
\nIn general, the code provides guidance on ethical matters where certain forms of
\njournalistic behaviour are not specifically prohibited by law and is particularly
\ndesigned to help ordinary people temporarily caught in the spotlight of media
\nattention.
\nNote that when a publication accepts that it has broken the code but is claiming a
\npublic interest defence, the editor is required to give a full explanation of how the
\npublic interest was served.
\nIn cases involving children, this must be an \u201cexceptional public interest\u201d to
\noverride the normally paramount interests of the child. A change in the code in
\nSeptember 2009 meant that editors must now demonstrate \u201ca reasonable belief\u201d
\nthat they were acting in the public interest.
\nCriticism of the PCC for being \u201ctoothless\u201d in its treatment of the press led to the
\ncommission introducing some reforms following the creation of Ofcom, including
\nan increase in the number of lay commissioners.
\nThe code itself is buttressed by a series of useful editors\u2019 guidance notes on
\nspecific issues which are of use to writers \u2013 and a codebook for editors is also
\navailable to view online: editorscode.org.uk.
\nAlthough IPSO has also come under fire from critics and only regulates those
\npublishers who sign up to its conditions, IPSO pledged in 2015 to increase its
\nauthority and restated its determination to \u201ccondemn unfair and abusive intrusion\u201d
\nwhile recognising the need for \u201cbold and unruly\u201d journalism.
\nA revised code of conduct came into force on January 1, 2025.
\nKey changes in recent years have included:
\n\u2022 Specific reference is now made to headlines not supported by the text of the
\narticle beneath.
\n\u2022 The reporting of suicide became a stand-alone clause, reflecting concerns
\nabout the publication of excessive detail about methods of suicide.
\n\u2022 Gender identity was added to categories covered by the discrimination clause,
\nwhich protects individuals from prejudicial and pejorative reporting.
\n\u2022 The duty of editors to maintain procedures to resolve complaints swiftly, and to
\nco-operate with the Independent Press Standards Organisation, was enshrined
\nin the code\u2019s preamble.
\n\u2022 The Code\u2019s definition of the public interest, and the circumstances in which
\neditors can invoke it, was updated and expanded in line with the Defamation
\nAct, Data Protection Act and Crown Prosecution Service guidance.
\nClause provisions on privacy are now contained in Clause 2, with Clause 3 dealing
\nwith harassment, Clause 4 with intrusion into grief or shock and Clause 5 the
\nreporting of suicide.
\nThe public interest definition has been expanded. The code now says public
\ninterest \u201cincludes, but is not confined to\u201d:
\n\u2022 Detecting or exposing crime, or the threat of crime, or serious impropriety.
\n34
\n\u2022 Protecting public health or safety.
\n\u2022 Protecting the public from being misled by an action or statement of an
\nindividual or organisation.
\n\u2022 Disclosing a person or organisation\u2019s failure or likely failure to comply with
\nany obligation to which they are subject.
\n\u2022 Disclosing a miscarriage of justice.
\n\u2022 Raising or contributing to a matter of public debate, including serious cases
\nof impropriety, unethical conduct or incompetence concerning the public.
\n\u2022 Disclosing concealment, or likely concealment, of any of the above.
\nThe code reasserts the fact that there is a public interest in freedom of expression
\nitself.
\nIt goes on to say that editors invoking the public interest will need to demonstrate
\nthat they reasonably believed publication \u2013 or journalistic activity taken with a view
\nto publication \u2013 would both serve, and be proportionate to, the public interest and
\nexplain how they reached that decision at the time.
\nIn its annual reports successive IPSO chairs have maintained the body remains
\nthe only effective way by which members of the public could complain and seek
\nredress from papers following intrusion and inaccuracy. However critics \u2013
\nparticularly members of the Hacked Off campaign \u2013 continue to insist that IPSO
\nhad failed in its duty and remains \u201ctoothless\u201d, complaining that it has not used its
\npowers to issue fines or initiative standards investigations.
\nOfcom
\nNew legislation was introduced in 2003 to merge the functions of five existing
\nwatchdogs into a new radio and TV watchdog, Ofcom.
\nOfcom has powers to criticise and fine broadcasters. In 2004, it fined a British
\nporn channel \u00a350,000 for showing hard-core sex scenes before the 9pm
\nwatershed. Ofcom also adjudicated that a blasphemous outburst by celebrity chef
\nGordon Ramsey in the series Hell\u2019s Kitchen, broadcast in May and June 2004, in
\nwhich he used the phrase \u201cfucking Jesus\u201d, was a breach of the television
\nprogramme code. ITV admitted it had made a mistake in allowing the phrase to
\n\u201cslip through\u201d under high pressure and against very tight deadlines.
\nIn 2006, the watchdog imposed its largest ever financial penalty of \u00a3175,000 on
\nKiss FM in relation to 10 complaints about the London-based dance music
\nstation\u2019s breakfast show, received over a seven-month period.
\nIn 2008 Ofcom fined ITV \u00a35.67m for abusing premium-rate phone services in
\nviewer competitions. Channel 4 was fined \u00a31.5m for misconduct in a Richard and
\nJudy phone-in contest, Channel Five paid out \u00a3300,000 for faking the winner of a
\nquiz on Brainteaser and the BBC was fined \u00a350,000 over a Blue Peter phone-in.
\nMusic station MTV was fined \u00a3255,000 in 2008 for broadcasting offensive
\nlanguage on four of its channels. The same year saw the BBC fined a total of
\n\u00a3400,000 for numerous breaches of its broadcasting code relating to deceiving
\nviewers and listeners in competitions run on a variety of shows, including Comic
\nRelief, Children In Need, the Liz Kershaw show on 6 Music and Jo Whiley Show
\non Radio 1.
\n35
\nFrom April 2017, the BBC was brought under Ofcom regulation for the first time
\nafter more than 90 years of self-regulation, following criticism of confusion in the
\nrole played by the BBC Trust.
\nInformation about Ofcom and its rulings can be found on ofcom.org.uk.
\nPRIVACY
\nUntil 2000 and the introduction of the Human Rights Act the law of England did
\nnot specifically protect the right to privacy. Now that right is enshrined in Article 8
\nof the European Convention on Human Rights and has been incorporated into UK
\nlaw.
\nIn the years immediately following the introduction of the Act, the PCC tried to
\nstress that the Act had not given rise to the \u201ccreation\u201d of a privacy law. However
\ncase law in the intervening years has heralded some important developments in
\nthe interpretation of privacy issues, culminating in the phone-hacking scandal
\nwhich engulfed the News of the World and the subsequent revelations in the
\nLeveson Inquiry about press intrusions into privacy.
\nIn 2015 the publishers of the Daily Mirror and Sunday Mirror were ordered to pay
\n\u00a31.2m in damages to eight phone-hacking victims, including Sadie Frost and
\nfootballer Paul Gascoigne. Frost\u2019s payout of \u00a3260,250 was thought to be the
\nsingle biggest privacy damages payout since the scandal broke in 2010, with
\nother large payouts to Gascoigne, soap stars and BBC executive Alan Yentob.
\nMore significant awards followed \u2013 phone-hacking victims included actor Steve
\nMcFadden, TV presenter Natasha Kaplinsky and comedian Les Dennis, Lord
\nArcher, former home secretary Charles Clarke and actress Patsy Kensit.
\nBy June 2017 the total number of victims exceeded 100 \u2013 and in October 2017
\nSteve Coogan won a six-figure payout and said senior figures like former Mirror
\neditor Piers Morgan had not yet been put under proper scrutiny over the scandal.
\nPayouts from News International over phone-hacking are thought to have
\nexceeded \u00a31bn, with numerous journalists investigated and some prosecuted for
\nbreaches of criminal law. Mirror Group Newspapers are thought to have paid out
\nmore than \u00a3100m in damages and costs.
\nIn July 2018 Sir Cliff Richard won \u00a3210,000 in damages (and \u00a3850,000 costs) in
\na high court privacy action against the BBC over \u201cserious and sensationalist\u201d
\ncoverage of a police raid on his home. He was never arrested or charged over
\nhistorical child sex allegations dating from the 1980s.
\nAnd yet in the 1990s, there seemed to be little action that celebrities could take to
\nstop the tabloid press from focusing in minute detail on every aspect of their lives.
\nBut when DJ Sara Cox won a \u00a350,000 out-of-court payment from The People in
\n2003 after the paper published pictures of her topless on a private beach, the
\nPCC stressed that there had been no judgement in the case and therefore it had
\nno bearing on the UK case law.
\nPreviously Amanda Holden reached a \u00a340,000 settlement with the Daily Star after
\nit published photos of her bathing topless in the garden of her Tuscany villa, but
\nagain this took place out of court.
\nBy 2016, when Princess Beatrice complained about gratuitous long-lens bikini
\nphotos being taken of her on board a private yacht off Monaco and published by
\nMail Online, IPSO ruled there had been a serious breach of Clause 2 of the code.
\n36
\nSimilarly, in 2017 IPSO ruled pictures taken of Prince Harry in his swimming
\ntrunks while on holiday with his girlfriend Meghan Markle \u2013 taken on a private
\nbeach using a long-lens camera \u2013 were a breach of the code.
\nA PCC complaint brought by TV news presenter Anna Ford, who was upset after
\npictures were published of her and her partner on a beach in Majorca taken with
\na long-lens camera, was rejected in 2000. But in the Naomi Campbell case
\nreferred to in Lesson 9 under breach of confidence, the law lords held in 2004 that
\nEnglish law provides a cause of action for the unjustified publication of private
\ninformation.
\nThe main issue in the Naomi Campbell case lay not in revealing the fact of her
\naddiction or that she was receiving therapy, but in showing her leaving a Narcotics
\nAnonymous meeting, discussing details of the treatment and her reaction to it.
\nThe implication of the ruling is that the media will need to adopt a structured
\napproach to any article containing private information.
\n1. Is the information sufficiently private in nature to engage Article 8 (the right
\nto privacy)?
\n2. Can each element of private information contained in the article be
\njustified?
\n3. Photographs must be considered separately \u2013 and if they have been taken
\nsurreptitiously, their publication is likely to be regarded as intrusive.
\n4. To what extent is any such private information in the public interest?
\nHowever, fears began to grow over the development of a law of privacy in England
\nafter a couple of high-profile cases in the summer of 2004.
\nThe European Court of Human Rights in Strasbourg held that respect for the
\nprivate life of Princess Caroline of Monaco was breached by photographs from
\nher daily life showing her shopping or on holiday with her children in public places.
\nGerman courts had originally rejected her claim, but on June 24 the ECHR held
\nthat pictures of Princess Caroline either on her own or with other people \u201cfalls
\nwithin the scope of her private life.\u201d
\nThe pictures had shown the princess involved in a variety of activities of a purely
\nprivate nature.
\nAlthough the court recognised the essential role played by the press in a
\ndemocratic society and the importance of freedom of expression, the decisive
\nfactor in balancing the protection of private life against freedom of expression
\nshould lie in the contribution that the published photographs and articles made to
\na debate of public interest.
\nThe court considered there was no public interest in the princess\u2019s case, and that
\nthe public did not have a legitimate interest in \u201cknowing where the applicant is and
\nhow she behaves generally in her private life, even if she appears in places that
\ncannot always be secluded and despite the fact that she is well known to the
\npublic.\u201d
\nIn July 2004 Trainspotting Ewan MacGregor won payouts from The Sun and Daily
\nRecord \u2013 thought to be \u00a35,000 damages plus \u00a335,000 costs \u2013 over an agency
\npicture showing him relaxing on holiday with his children on a beach in Mauritius
\nand in 2007 actress and model Elle Macpherson had a complaint to the PCC
\nupheld that Hello! Magazine had breached her privacy by taking pictures of her
\n37
\nand her children on holiday at a private house in Mustique.
\nHowever, in October 2016 IPSO ruled that pictures showing Andy Murray\u2019s baby
\ndaughter in a pram pushed by her mother at Wimbledon did not constitute a
\nbreach of the codes clauses of privacy and children. IPSO concluded that Gate
\n16 was a public location overlooked by photographers where there was no
\nreasonable expectation of privacy and that both taking and publishing the
\nphotographs was not a breach of Clause 2, particularly in view of the fact the
\npictures were taken within the grounds of Wimbledon during the championship.
\nIPSO added that the photographs did not feature information about the baby\u2019s
\nwelfare or private life, and there was therefore no breach of Clause 6 either.
\nIn 2006 the PCC upheld a complaint by Harry Potter author JK Rowling that the
\nMirror had intruded into her privacy by publishing a picture of her London home
\nalong with the name of the road. The PCC accepted that the author had \u201cgained
\nher fair share of stalkers and obsessive fans\u201d and said the information was not
\nsufficiently in the public domain to justify publication.
\nPrivacy arguments could also impact on the activities of press photographers,
\nwhere other legislation may be used to restrict their movements or behaviour.
\nThe Protection from Harassment Act, for example, could be used to prosecute
\npersistent reporters and press photographers who \u201cstalk\u201d celebrities, and by 2009
\ninjunctions under the Act were increasingly being used by stars \u2013 including Sienna
\nMiller, Amy Winehouse and Lily Allen \u2013 as civil remedies, enforceable in the
\ncriminal courts, to keep paparazzi away from their front doors. The PCC code was
\nchanged in 2009 to require journalists in situations where harassment might be
\nan issue to identify themselves if requested to do so.
\nTechnological advances are likely to pose new challenges for journalists in the
\nfield of privacy. Using videos or stills from social networking sites, for example,
\ncould breach personal privacy or amount to harassment. YouTube tightened their
\nprivacy policy in 2009, warning contributors not to post other people\u2019s personal
\ninformation online.
\nCare should be taken with images provided by third parties like a pub or nightclub,
\nfor example, where the images could be regarded as infringing individuals\u2019
\nprivacy.
\nBy December 2009 there were indications that the Royal family were wanting to
\nclamp down on intrusion by photographers following a separate incident involving
\nthe England football manager Fabio Capello and his wife on a Spanish beach
\nearlier that year.
\nThe News of the World and Daily Mail published pictures of Capello and his wife
\nenjoying a mudbath on a public beach \u2013 ostensibly not in breach of the PCC code.
\nBut the Football Association had been proactive in writing to every editor to
\nexplain that Capello wanted his privacy respected.
\nCapello would give the sports journalists interviews and briefings, but he would
\nnot be seeking publicity beyond that. He refused requests for interviews and
\npicture sessions with magazines.
\nIn other words, he was not seeking the limelight and, most definitely, neither was
\nhis wife. Just the reverse. The FA made it clear that she wished to remain an
\nentirely private individual. The errors certainly proved costly. The News of the
\nWorld paid out a five-figure sum to the Sir Bobby Robson foundation while the
\n38
\nMail’s donation was “close to five figures”.
\nThe payments show just how far the law of privacy has developed since 2000.
\nThe early victory of Ewan MacGregor in 2004 in protecting his children\u2019s privacy,
\nfor example, has paved the way for claims from other stars.
\nIn April 2010 Jude Law accepted \u00a39,500 in damages and legal costs from Hello!
\nafter the magazine breached his privacy by publishing pictures of him and his
\nchildren on a beach in the Caribbean.
\nThe public debate was reignited by pictures published in 2012 after nude pictures
\nof Prince Harry were posted online when he played a stripping game in a hotel
\nroom in Las Vegas.
\nThe publication in 2013 in the foreign press of the princess pregnant in her bikini
\nagain raised questions about how to police privacy issues online and in the
\ninternational press, although UK papers \u2013 whether fearing a public backlash or
\nbecause of concerns over Article 8 \u2013 were reluctant to publish the images.
\nTopless pictures of Kate Middleton published in the French magazine Closer
\nculminated in criminal charges being brought against the editor, publishing
\ndirector and photographers. In December 2017 Closer was fined \u00a392,000 over
\nthe photographs.
\nIn 2018 Meghan Markle sent her estranged father a five-page letter which became
\nthe centre of a lengthy legal battle between the royals and Associated
\nNewspapers, publishers of the Mail and Mail on Sunday, on the grounds of breach
\nof privacy and copyright violations.
\nIdentifying individuals arrested on suspicion of involvement in a crime but never
\ncharged could lead to claims for intrusion into privacy (as well as possible libel
\nactions). The Mail Online faced an \u00a383,000 bill for damages after naming
\nAlaedeen Sicri, who was arrested on suspicion of involvement in the 2017
\nManchester Arena terror attack but never charged.
\nIt was the third major ruling setting a precedent that suspects should not be named
\nbefore charge, following Cliff Richard\u2019s landmark privacy win against the BBC and
\nan anonymous businessman\u2019s win against Bloomberg. The BBC was told to pay
\nSir Cliff \u00a3210,000 in damages while Bloomberg was ordered to pay \u00a325,000.
\n39
\nASSIGNMENT EIGHT
\nGive detailed answers to the following questions:
\n1) What restrictions exist on identifying young people in:
\na) youth courts;
\nb) adult courts?
\n2) A newspaper publishes photographs of a celebrity couple taken in the
\nfollowing circumstances:
\na) a picture of the couple enjoying a candlelit anniversary meal
\nin a local restaurant;
\nb) a long-lens picture of the couple walking hand-in-hand on a
\npublic beach;
\nc) a long-lens picture of the pair, with the woman sunbathing
\ntopless on the balcony of her holiday home.
\nWhat arguments would the Independent Press Standards Organisation
\nconsider in adjudicating a subsequent claim for intrusion into privacy
\nunder Clause 2 of the Code of Conduct?
\n3) You have a story scheduled for publication tomorrow, which includes a
\ndetailed description of a man the police wish to trace in connection with
\na string of burglaries. You get a call from the police this afternoon
\ntelling you they have now arrested and charged a man in connection
\nwith the offences.
\na) can you publish your original story?
\nb) What information, if any, would you be able to print?
\n4) A commercial photographer sends a newspaper a wedding picture ‘with
\ncompliments’ asking for an acknowledgement if it is used on the paper’s
\nweddings page. The picture has been sent with the permission of the
\nbride’s father, who ordered the wedding photographs. The newspaper
\npublishes the picture and files it. Ten months later, the bride is killed in
\na boating accident and the paper publishes the picture again. What is
\nthe position under the law of copyright with regard to:
\na) the newspaper;
\nb) the photographer;
\nc) the bride’s father?
\n40
\n5) A junior reporter has filed the following report for publication and says
\nthere was no mention in court of any reporting restrictions. What
\nchanges would you make to the copy \u2013 and why?
\nA teenage cinemagoer told a court today how he saw a bearded man sitting in
\nthe front row indecently assaulting a terrified young girl soon after the main film
\nstarted.
\nFred Merton, 15, of Westfield Terrace, Melford, a pupil at St Saviour’s school,
\nsaid in evidence at Newtown Magistrates Court that he saw the man fondle the
\ngirl.
\nThe girl protested but was told to be quiet by people around her who did not
\nrealise what was happening. But eventually the cinema manager was called
\nand the man was arrested.
\nLawson Pickering, 42, of Central Avenue, Newtown, denied the assault on 13-
\nyear-old Sandra Spacek at the Palace Cinema in Melford. He was found guilty
\nand fined \u00a3500.
\n6) A sports report says a well-known international rugby referee “opted out
\nof making difficult decisions” when it came to dealing with players
\nfighting on the pitch. “He earns a match fee and should have had the
\ncourage to send them off, but bottled out,” the report adds. Where’s the
\nlegal danger?<\/p>\n

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