Professional Documents
Culture Documents
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BUSINESS SCHOOL
LAW DEPARTMENT
LLB (Hons)
Copyright
Tutor:
le 8
c
i
t
Ar
Ken Brown
Law Department
Room C102 Christchurch House
E-mail:
brownk@bournemouth.ac.uk
Bankru
p
tcy
Priva
cy
y
30
Malicious falsehood
55
Confidentiality
59
Privacy
68
74
ASBO - CRIMBO
81
88
Contempt of Court
94
Copyright
113
124
Inquests
129
Bankruptcy
137
142
151
153
155
165
181
190
IMPORTANT NOTE
COPYRIGHT OWNERSHIP
The teaching materials for this unit have been prepared by myself, Robert
Kenneth Brown (Ken Brown), for use by students undertaking media law
studies at Bournemouth University. With the exception of extracts from various
press articles and possibly photographs Which have been accredited to the
relevant publishers and which are inserted only for educational topic
emphasis, they are subject to the copyright ownership of myself as established
by the Copyright Design & Patents Act 1988.
Any errors or omissions in the contents by way of accreditation, arrangement
or definition are apologised for and are to be attributed entirely to myself.
Disclaimer
The purpose of the materials is to support study only.
The author is not engaged to provide legal advice and expressly disclaims all
and any liability and responsibility to any person in respect of anything, and of
the consequences of anything done or omitted to be done by any such person
in reliance, whether wholly or partially, upon anything contained in these
materials
Use of Language in the legal context
References, where applicable, are in the masculine. This is in the interest of
efficiency and the references are to be read by analogy with the Interpretation
Act 1978 which expressly provides that Unless the contrary intention appears,
words importing the masculine gender shall include females
It is also important to note that any statutory reference to Person includes
bodies corporate in addition to individuals. This interpretation accords with the
accepted principals of legal personality.
Ken Brown
Unit Leader
September 2013
LEGISLATION:
i) Statutes
e.g. Copyright Design & Patents Act 1988
ii) Delegated legislation
.
e.g. Registered Design Regulations 2001
Made under powers given by The Copyright Design & Patents Act 1988
PRECEDENTS:
HUMAN RIGHTS:
everyone has the right to a fair and public hearing within a reasonable time
by an impartial and independent tribunal
THE MEDIA BEING PRESENT AT COURT HEARINGS, IN GENERAL,
AS THE EYES AND EARS OF THE PUBLIC
i.e. Open
Justice
1.Summary Offence
One which must be tried at a magistrates court. e.g. Fail to stop at a stop
sign drunk and disorderly
2,
ii) If an accused pleads not guilty and does not elect to be tried at
Crown Court the magistrates will hear from the prosecution
and defence at A mode of trial hearing.
They will then decide upon seriousness of the offence if the
Court decides it is too complex, a sexual or violent crime, will
commit the case to Crown Court to be dealt with without
any further evidence being presented.
Bail is the only consideration.
(Via Schedule to Criminal Justice Act 2003)
This hearing is subject to media reporting restrictions under
(section 8 M Ct Act 1980) Now replaced by section 54 Crime &
Disorder Act 1998
i.e.10 points only may , in general, be published by the media
Restrictions may be lifted at discretion of the court IN THE INTEREST
OF JUSTICE
If they decide to try as a summary trial then reporting restrictions do
not apply and are lifted for the whole of the proceedings and media
reports which are F A & C
The accused may still be sent to the crown court to be
sentenced but court must hear any application for bail
10
No actual committal hearing i.e. sent direct to Crown Court for trial Reporting restrictions apply
Reporting restrictions as per S 8 M Ct Act 1980 but under sec.54A
Crime & Disorder Act 1998
3. Indictable offences
Such cases are committed directly (i.e. sent) to the Crown Court for
trial by a Jury
e.g. Murder - Manslaughter Rape
After hearing any application for bail magistrates MUST send the
case for trial without hearing any evidence.
Such an accused person only appears at the magistrates court for this
one purpose
But
The accused will be given opportunity to appear before a judge at Crown
Court, within 8 days, to submit that there is no case to answer.
Reporting restrictions (7 Points) apply to such proceedings unless the
application is successful.
(See Mc Naes for the 7 points Learn them)
11
12
Verdicts
May be unanimous
Or
b) Majority either guilty or not guilty
11 to 1 or 10 to 2
If a jury has been reduced i.e. for illness then may be 10 to 1 or 9 to 1
HOSTILE WITNESSES
On occasions a witness called on behalf of the prosecution or defence does
not confirm or contradicts a statement previously given to the party who
called them.
When this happens the party calling the witness may ask the court to
determine that they are hostile to them and if the court then agree the
party calling may then put leading i.e. direct questions to the witness i.e.
Did you see ???? Did you say????
i.e. Not what did you say? or what did you do? which is the normal
required legal position when introducing evidence from a witness
13
N.B.
If bail is opposed a court must state its reasons for not
granting or for granting bail
14
HUMAN RIGHTS:
Human Rights Act 1998
Article 10 (a) European Convention of Human Rights protects the right
to freedom of expression and to impart information
BUT by Article 10 (b) such is subject to exceptions imposed under the
law e.g. defamation contempt other legal dictates
i.e. Freedom of speech, article 10, is FREEDOM UNDER THE LAW
Articles 6 & 8 mentioned previously.
15
DATA PROTECTION Act 1998 - (See page 138 Blackstones Statutes Media
Law 3rd Edition)
If data held
What data held
16
iii)
iv)
v)
vi)
MEDIA EXEMPTIONS
Section 32 Data Protection Act gives protection from disclosure in certain
circumstances with regard to the gathering of information with a view its
publication
e.g. Freedom of expression (Art 10) claimed where publication of
journalistic material is in the public interest and to comply with the
disclosure provisions of the Act would not be compatible with journalistic
practices.
Investigative Media aspects - Use of data relating to a person who is alleged
to have committed an unlawful act, mismanagement in administration or
provision of services.
Section 3 Data Protection (Processing of Sensitive Personal Data) Order
2000
FREEDOM OF INFORMATION ACT 2000
Became law in 2005 and, in general, gave a right of access to all to
information held by Government and local Authority bodies
Overseen by
17
(See Websites)
FREEDOM?:
18
FREEDOM TO COMMUNICATE?
19
The American Constitution 1787 & its first amendment protects the
freedom of the press in the USA
i)
ii)
No personal benefit
Would reporting harm someone even where no legal
restraint on publication
See:
Editors codes OFCOM BBC Trust
20
21
FREEDOM OF MOVEMENT ?
22
THE MEDIA -
POSITION RE FREEDOM??
In general it and its members have no more powers/ rights than other
members of the public
BUT
The media is recognised as being The eyes and ears of the public and as
such may be seen to be given special consideration and have a number of
privileges.
Felixtowe Justices ex.p. Leigh and another [1987]
23
NOTE WELL:
REPORTS THAT ARE NOT CONTEMPORANEOUS HAVE
ONLY QUALIFIED PRIVILEGE and must not be motivated by Malice
24
i.e. a report of a court case where there has been a time lapse between case
ending and the report
NOTE WELL:
MEDIA REPORTS UNDER THE FOLLOWING
CIRCUMSTANCES ARE RESTRICTED TO 10 POINTS
Now s 52A Crime and Disorder Act 1998
25
Court clerks have declined to give names of the sitting magistrates. Held by
the Queens Bench Division to be unlawful
There is no such person known to law as an anonymous justice of
the peace.
R v Felixstowe Justices ex p Leigh (1987)
WHY RESTRICTIONS?
BUT
26
the media may not report previous convictions nor anything which may
cause substantial risk of serious prejudice to the subsequent trial (THIS
WOULD BE CONTEMPT OF COURT)
The 10 points under
not apply when
do
Where an accused is tried and then committed for sentence to a crown court
- no restrictions as to reporting the Magistrates Court proceedings provided
report is fair accurate and contemporaneous.
Such reports then have ABSOLUTE PRIVILEGE
When all defendants have been tried at a Crown Court reports of what
said at committal proceedings may be published providing FAIR &
ACCURATE and will be privileged under the schedule to the
Defamation Act 1996 ( Qualified Privilege)
ADDITIONAL PRE TRIAL RESTRICTIONS
Restrictions on reports of an application made at a Crown Court that the
case be dismissed prior to its trial.
(Such a hearing may be held by video link if accused was remanded to
prison. This obviates the need for the accused to be taken to the court)
Only the 7 points MAY BE REPORTED
27
GENERAL ASPECTS
Publication of an advert or story offering a reward for return of stolen
goods i.e.
i.e. No questions asked
This is an offence under Theft Act 1968 section 23
28
29
30
REGULATORY BODIES:
i)
ii)
iii)
Absolute Privilege?
b)
Qualified privilege?
31
32
33
OR
DISPARAGED IN PROFESSION, TRADE OR BUSINESS
e.g. Publication of an article in a newspaper in which two named
barristers said to be arguing in a cake shop over who should have the
last clair
A spoof but successfully argued by the claimants some person(s) may
have believed it thus they MAY be ridiculed
Glastonbury Rolling Stones Photograph
All have the right to good reputation which includes their professional
ability
Statements may be defamatory even if true but will only result in the
payment of damages if shown to be untrue?
(Exception ? Reynolds defence see bellow)
34
BUT
Not all false statements are defamatory?
e.g. To state someone had reported a crime when they had not
This will change: Section 1 D.A. 2013
The defamatory statement will, to an individual:
i)
ii)
35
36
ii)
Was it defamatory
iii)
37
them
(When introduced Sec. 11 DA 2013 removes presumption of a right to jury
trial UNLESS THE COURT DIRECTS OTHERWISE)
38
Why?
See John Majors case against the New Statesman.
A CLAIMANTS POSITION? - Currently
MUST PROVE:
The published statement was POSSIBLY defamatory:
And POSSIBLY Defamatory of them - Only POSSIBLY NOT THAT IT
WAS
Publication to a third party
(Sec. 11 DA 2013 removes right to jury trial UNLESS THE COURT
DIRECTS OTHERWISE)
GROUP DEFAMATION:
Aspro Travel v Owners Abroad Group [1996]
i.e. Travel Co. operated by 4 members of a family. All could sue.
Once the Judge has decided that the statement is capable of being
Defamatory
it is assumed by the court that a statement is false and the publisher of it
must prove, as relative to a defendant,
the TRUTH of the statement or one of the other available defences.
39
though a
statement is still defamatory of the person
e.g. to say a person is a murderer is defamatory but if he has been
convicted the statement is regarded as being true the defence of
JUSTIFICATION would be upheld albeit such a statement it is still
defamatory
i.e. Truth is an absolute defence for a defendant
40
EXCEPT:
When falsely accused of a crime which is punishable by death or
imprisonment
When implied suffering from a contagious disease which might cause
claimant to be shunned or avoided ( to be repealed by Sec 4 D.A. 2013
unless special damage)
i)
41
Example:
In 1986 Lord Gowrie, a former Cabinet Minister, was awarded
substantial damages against the Star newspaper following
publication of an article
What expensive habit can he not support on an income of 33000?Im sure
Gowrie himself would snort at suggestion that he was born with a silver spoon
round his neck
Gowrie v Star Newspaper [1986]
To say a barrister would not act for an inveterate criminal.
i.e. NB Barristers must take cases as they come Known
as The Cab ranking Principle
Tolley v Fry & sons Ltd [1931]
DEFENCES:
DEFAMATION ACT 1996 SECTION 1:
(See Sec. 10 DA. 2013)
Available to anyone who was not the author publisher or editor of the
statement and
who took reasonable care in relation to its
publication and
42
43
44
INFERENCES
Of a defamatory nature which may be drawn from certain reporting style
Such may not be regarded as fact and may lead to claim for defamation
Examples:
M&S v Granada [1998]
To state a person convicted only once of theft was a thief
- (SEC. 3 DA 2013)
45
Telegraph headline:
Telegraph reveals damming new evidence on Labour
MP - (George Galloway)
Telegraph claimed this statement was opinion and thus fair comment but
court held it pointed to guilt
George Gall0way MP v Daily Telegraph Group.[1994]
i.e. It appeared as a statement of fact not opinion based upon fact
46
A middle aged star cant sing, her bum is too big and she has the sort of
stage presence that jams lavatories . Looks just as ugly with makeup
It was known by the defendants that she was 34 of normal weight and
appearance this was held to be motivated by malice
PRIVILEGE
(To be dealt with by sec. 7 DA 2013)
47
48
this includes matters said and documents read out in an actual court
hearing
Such reports must be
FAIR ACCURATE AND CONTEMPORANEOUS
This defence applies to all U.K. courts and the EU Ct of HR
and E Ct of J and is the only time when media has
absolute privilege
Section 14 Defamation Act 1996 (Will be Sec 7 D A 2013)
NOTE WELL:
A.P. does not apply to matters shouted out in court or said after a court
hearing is ended
MEDIA MUST BE WAREY OF PARAPHRASING reports of
STATEMENTS spoken in court
e.g. Smith hit Jones with an iron bar - Should be reported as Jones
said Smith hit him with an iron bar i.e. then is fair and accurate
Such reports must always cover both sides of the case
49
BUT NOTE
THIS PROVISION ONLY APPLIES
TO MATTERS NOT ASSERTED IN THE ACTUAL TRIAL ITSELF
SUCH WOULD ATTRACT ABSOLUTE PRVILEGE
50
i.e. THUS
Other than when reporting a fair accurate and contemporaneous account of
court tribunal proceedings (Which attracts A P )
ONLY qualified privilege applies to the media when reporting matters which
themselves are said under circumstances which are given absolute protection
Aspects covered by QUALIFIED PRIVILEGE?
See Defamation Acts 1952/1996 Schedule 1
To be amended by Sect. 7 D.A. 2013
e.g. Official Police press statements
51
EXPLANATION OR CONTRADICTION?:
52
AND
WHERE ACTUAL TRUTH CANNOT BE ESTABLISHED AS A
DEFENCE ???
53
The Times had not followed the 10 points and thus whilst the existence of
the defence was established in principle, the Times lost
Louchansky v Times Newspapers Ltd [2001]
Alleged money laundering by Louchansky.
Times agreed the publication was defamatory but claimed Qualified
privilege under Reynolds i.e. THE 10 POINTS.
The Times lost they had not followed the most important points e.g.
contacted Loutchansky to obtain his version
BUT IT WAS HELD THAT it was Not necessary to conform to all 10
points, they were guides not hurdles to jump
54
AND
ii)
iii)
NOTE:
The defence is currently precedent based(Will be retained but replaced by sec. 4 D A 2013 thus statute based)
55
56
OTHER DEFENCES
BANE (The Poison) AND ANTIDOTE (The Remedy to it)
This gives some protection to the tabloids who sell on sensational
headlines
e.g. Charleston v News Group Ltd [1995] (News of the World)
Re the Neighbours television programme
THE BANE i.e. HEADLINE (The Poison!)
STREWTH! WHATS HAROLD UP TO WITH OUR MADGE
ANTIDOTE i.e. the remedy?:
The text beneath the headline showed their two faces superimposed on
puppets in what could be taken as a pornographic pose. It went on to
state that this was part of a computer game which the two stars knew
nothing about
This defence was successfully argued and thus negatived the bane and
the claim for defamation failed
But beware not always the case.
e.g. REPETITION OF RUMOURS?
Major v the New Statesman [1993]
57
NOTE WELL:
Summary of main Changes via Defamation Act 2013:
Section 1 - Serious Harm to be shown
Section 2 - Justification defence to be known as Truth
Section 3 - Statutory defences of Honest opinion re Place common law defence Fair comment
Section 4 Responsible journalism defence on
matters of public interest i.e. Replaces
common law Reynolds defence
Section 5 -
58
Define defamation?
2.
List the parties who may be sued in an action for libel against a
newspaper
5.
6.
7.
8.
9.
59
ii)
In your answer, set out what the law requires of reports of court cases
if, when publishing such reports, a media organisation is to enjoy
protection from a libel action 10. Under the headline, The shame of Willow Close a local newspaper
runs a story about partner-swapping couples living in a cul-de-sac in its
area. It does not name any of the couples alleged to be involved, or include
any house numbers. A couple who live in the road, and deny any
involvement in such behaviour, threaten to sue the newspaper for libel.
Consider its position.
11. A reporter hears that a local solicitor has retired after many years in
practice. He does not check the rumour but writes a story which is
published saying that the solicitor has retired. The rumour turns out to be
untrue. May the solicitor take any action against the newspaper for libel or
under any other law? State your reasons.
60
MALICIOUS FALSEHOOD
61
MALICE:
The court will regard a statement as being malicious where:
The statement was known to be untrue
Was Made reckless as to truth
Or with an improper motive
Joyce v Sengupta [1993] - Published in Today- (false hence malicious)
INJUNCTIONS:
Mal F. & Defamation?
May be granted to prevent disclosure of confidential material
BUT
Courts should not grant an injunction if a defendant,
Reasonably, claims he will defend the truth of the defamatory or
malicious statement
Account must be taken of relevant privacy codes
62
FALSEHOOD:
Libel
M.F.
63
NO
NO
YES
NO
YES
YES
YES
NO
YES
NO
64
OVERVIEW:
THE SAME ??
NOT IN LAW!!
BREACH OF EITHER IS A CIVIL MATTER
Starting point for Confidentiality?
65
Examples:
Employment Doctor Lawyer relationships
i.e. Such a relationship automatically gives rise to situations where the
obtaining of information is involved.
e.g. The information may, be of a Private nature.!
i.e. Article 8 ECHR - Right to Respect for private and family life
Examples:
Campbell v M GN [2000]
Von Hanover v Germany [2005]
Hello magazine v Michael Douglas & K.Z. Jones Privacy??
BUT
S.8 protected rights may be overridden
i.e. Qualified
INFORMATION MAY BE PROPERTY and often is in business
66
ii.
iv)
Protection of:
a)
Health or morals or
b)
67
BREACH OF CONFIDENCE:
68
BUT:
69
DOMESTIC RELATIONSHIPS?
Argyll v Argyll [1967] (Husband & wife)
Stephens v Avery [1988] (Confidences between friends
Privacy?)
Barrymore v Newsgroup Newspapers Ltd [1997]
( Kiss & tell)
But - Lennon v News Group Newspapers & Twist [1978]?
70
ii)
71
72
PRIVACY
Claims to prevent publication of material on the basis it is confidentiality
may in effect be claims to a right to the protection of personal privacy
Campbell v MGN [2000]
73
74
Robertson & Nicol Media Law 5th. Ed. highlight the following three cases
as being instrumental in developing the approach now taken by courts.
They are described as involving a lying and petulant model, a minor Euroroyal and a pair of Hollywood luvies.
Campbell v MGN [2004] ( H.L.)
75
And if yes
ii)
76
CHILDREN?
i) Re X (a minor)[1975 See Lord Dennings response
ii) Murray v Express Newspapers Ltd [2008] (JK Rowling)
CODES OF PRACTICE
PRESS COMPLAINTS ? - OFCOM - BBC
i.e. Privacy Harassment Hospitals Hidden listening devices or
cameras long range photography -
77
Eight principles
Media data problems??
NB
Campbell v Mirror Group Newspapers Ltd [2004]
Data included the photographs of Campbell leaving N.A. premises
INFORMATION COMMISSIONER
Data keepers (i.e. Controllers) must register with Commissioner.
All who keep data must comply with the eight principles
If requested, in general, must advise those on whom data is kept
Powers of entry and inspection.
Google gathered vast amount of photographs of homes for its Street
View project. Gathered other data from texts & e mails.
In 2010 told delete but later discovered a number of hard drives it had
missed Accidentally.
IN June 2013 given 35 days to destroy or face contempt of court
action if it does not produce a certificate of destruction to ICO. Just a
slap on the wrist??
78
79
ii)
4. Define Injunction
5. Where confidential information has be injuncted what is the legal
position if the material is subsequently published outside the
jurisdiction of the English Legal system?
6. Give examples of news items which may be described as:
i)
ii)
7. What does the PCC code of practice advise by way of the use of long
range photography?
8. How does the Regulation of Investigatory Powers Act 2000
impact upon a journalists activities?
9. A two way test has been established to determine misuse of
information in privacy cases. What are they?
10.How did the Data Protection Act 1984 impact upon the courts
Decision in the case of Campbell v MGN Ltd?
11.A reporter learns, in an unofficial conversation with the personal
secretary of the manager of a firm.
The secretary states that the company has made a decision
to change the design of one of its well-known products and
intends to take on 100 more workers when the new design is
launched.
A regional TV producer asks your advice as to any
legal problems which may arise if this information is broadcast
in the evening news program
12. A reporter investigating claims of fraudulent practice telephones a
second hand car dealer as a member of the public and records the call
without informing the dealer that she/he is a reporter or that the call
80
is being taped.
a)
b)
c)
81
Rape - Certain offences of rape due to Sexual Offences Act [2003] wider
definition of the term may now be dealt with at discretion of court.
AGs Reference (No 92 of 2009)
District Court Judges often sit on such cases
W v Warrington Magistrates Court [2009]
82
83
84
85
EXAMPLES:
Young persons charged with serious offences e.g. murder,
manslaughter or serious rape must be tried at a Crown Court.
OR
In an adult court when jointly charged with an adult with a criminal
offence
BUT
Sect. 39 C&YPA 1933 gives the adult court power to impose the
same anonymity as in a Youth Court. i.e. as victim - witness accused or as
a co - defendant with an adult. But not the adult
Good reason must be shown by the court as to why such an order is
imposed
Reporting name etc of young child victims?
Young persons almost 18 yrs of age?
What of family considerations??? (See Press Codes Of Practice - code
5)
i.e. effect upon other members of family?
86
DEAD CHILDREN ??
No anonymity
This was decided per Judge Grigson at the Old Bailey (Central Criminal
Court London) 1994.
Many other judges have concurred
Also the Judicial Studies Board in its guidance to magistrates have so
stated
87
To be replaced by CRIMBO
i.e. Criminal Behaviour Orders & Crime prevention Injunctions
88
ii)
89
90
REPORTING OF SUCH
Only the following 4 points may be published of such matters:
(Magistrates Courts Act 1980 section 71)
Names & addresses of the parties and witnesses other than those
under 18years (Beware of Jigsaw identifications.)
The grounds of the application and a brief statement of allegations
defences and counter allegations
Submissions upon points of law and the court decision on this
91
The final decision of the court and any observations made by the
court
ADOPTIONS
These are regarded as family proceedings held in the High Court or
before magistrates.
WARDS OF COURT
Cases involving wardship of young persons are held usually in
chambers County court or Family Division of the High Court.
Section 97 Children Act 1989 gives anonymity to a child involved
Contempt of court to publish information re any child involved.
The Sun newspaper was fined 5000 and the editor 1000 for
publishing extracts from a medical report.
Proceedings may be reported when a judge permits but no
identification of young persons must be made
92
NOTE WELL:
INJUNCTIONS OR SECTION 11 ORDERS UNDER THE CONTEMPT
OF COURT ACT 1981 SHOULD NOT BE PLACED UPON THE MEDIA:
DIRECTING THAT THEY MUST NOT PUBLISH
IDENTITY OF AN ADULT DEFENDANT IN A
CRIMINAL TRIAL IN ORDER TO PROTECT
IDENTIFICATION OF A CHILD NOT INVOLVED IN THE
CASE ????
Held: Press freedom should not be inhibited in this way
Re S (A child) [2004]
93
What do you understand by the term ASBO and to whom may such
apply?
Who may apply for such an order and before which court
Two 14 year old boys are due before a magistrates court where the
local council is to apply for anti-social behaviour orders against them
under the Crime & Disorder Act 1998 prohibiting repetitions of late
night rowdy behaviour on the estate where they live. No criminal
charges are involved at this stage.
a)
What type of magistrates proceedings will hear the
application?
b) May the boys be named in a newspaper report of the
proceedings? Explain the relevant law.
c)
If the boys infringe the anti-social behaviour order, which court
will normally hear the case?
d) Give details of any reporting restrictions which will apply under
10
94
95
Sexual Offences Act 2003 Consolidated & is now the main Act Extended
to include trafficking for sex breach of trust resulting in sex aspect with
achild
WHY ANONYMITY??
Heilbron Report- 1975 Sexual Offences (Amendment Act
1976
THUS:
No publication of :
96
NB
April 2012 - Ched. Evans Sheffield Uniteds top scoring footballer found
guilty of rape and sentenced to 5 yrs imprisonment. Numerous Facebook &
Twitter entries by his fans followed naming and abusing the victim.
November 2012 - Nine persons appeared at Prestatyn Magistrates Court.
Their on line entries identified the victim and fined 624 each
See Daily Mail Tuesday 6th November 2012
December 2012, Director of Public Projections released a set of interim
guidelines outlining regulations for communications sent via social media,
such as Twitter, and when prosecutions are likely to take place. i.e.
Harassment / Threats.
LIFTING OF ANONYMITY:
MAY BE
At a trial (following application by media) when anonymity would result
in a substantial & unreasonable restriction upon reporting
R v Hutchinson [1986]
97
Where the victim, at least 16 years of age, gives up the right to life time
anonymity IN WRITING. This must be without any pressure and thus
entirely voluntarily. Following this publication of the identity may be
made.
(SO(A)Act 1992)
NB
98
99
POSSIBLE DEFENCE??
A publisher was not aware did not suspect nor had reason to suspect a
breach had been committed no i.e. no negligence
N.B.
100
101
CONTEMPT OF COURT
102
BUT
(CCA)
103
104
105
INQUESTS?
When an inquest is opened
IN A CIVIL CASE?
When the date for a trial is fixed
106
But remember:
A.G. v MNG. Ltd [1997] 5 newspapers charged with contempt
Held there was only slight risk
R v West [1996]
107
A case is discontinued
After the issue of a warrant no arrest is made within 12 months
The defendant is acquitted or has been sentenced.
Thus if a person found guilty and case adjourned for sentence the
proceedings are still active but less likely to be substantial risk of
etc.
COMMON LAW CONTEMPT ? AG normally issues Fiat re prosecution when proceedings are pending/
imminent
108
(The Sun)
Higher courts:
Up to two years imprisonment and or unlimited amount in a fine
109
Statements made
Opinions held
Arguments put forward
Voting
b) Identifying by photograph
Witnesses
Offering to pay a witness for information given about the case
which will vary according to the result of the trial. i.e. more if
guilty
Photographs
i) Publishing a photograph of an accused person when
identity is an issue may be contempt
i.e. possible cause a Substantial risk of serious prejudice
110
ii) Jurors ?
DEFENCES TO CONTEMPT:
111
iii)
iv)
v)
112
NB:
APPEALS BY POLICE FOR MEDIA/PUBLIC ASSISTANCE ?
i.e. - The publication WHEN PROCEEDINGS ARE ACTIVE of a police statement regarding a wanted person with or without
a photograph e.g. T.V. programme Crime Watch
Is this Contempt ? ?
YES!
BUT
See the Attorney Generals statement in House of Commons during
the debates which led up to the passing of the Contempt of Court Act
1981 - Recorded in Hansard
113
The publication must stay within the actual police media statement
given
and
Be removed from any archives when a suspect is arrested or not
proceeded against
114
Matters said in absence of jury and not put to them later for
consideration
May follow a successful request made by the defence for details of the
publication of proceedings to be postponed due to a mistrial having been
declared
115
N.B.
When an order is made court must state why it has been put in place and
when it ends The length of this period must be no longer than necessary
to avoid THE SUBSTANTIAL RISK
116
NOT
AFTER trial OR sentence when identity has already been mentioned
in open court
R v Arundel Justices ex parti Westminster Press [1985]
On the grounds that the defendant was a prison officer or Police officer
A police officer where a teenage girl knocked down and injured by the
police constable in an unmarked car speeding to deal with an armed
robbery
117
IN RESPECT OF :
Orders made under s.4 or s.11 Contempt of Court Act 1981
A challenge, on the grounds of contrary to open justice,
against a courts restriction on the admission of journalists to
the court
118
119
ii)
Become re activated?
120
Give one example from legal history where this section of the Act has
involved a journalist.
A man who says he has reported to the police that he has been raped
recently tells a local morning newspaper that he would like to be
named in a report of his ordeal.
His reason is that he suspects other men have been victims of the same
middle-aged attacker and he wishes to encourage them to come forward.
The newspaper plans to carry an interview with the man who
contacted them, naming him, the next day. As the interview is being
written, a check call with the police at 4pm establishes that no-one has
been arrested.
Can the newspaper safely publish the interview? Indicate how your
conclusions are reached and what further checks, if any, must be made
before publication to comply with legal requirements?
A man s being tried at Crown Court for the murder of his gravely-ill
wife. The prosecution call evidence that he strangled her to save her
further suffering. The trial gets national coverage. A newspaper is
about to run a feature on mercy killings. Can it go ahead and safely
publish the feature? Give reasons.
COPYRIGHT LAW
121
i)
ii)
iii)
iv)
122
Written works
Dramatic works - plays
Films
Music
Sound recordings - which include the arrangement of a work
Broadcasts (includes cable programmes)
Photographs
Spoken words - e.g. Speeches? Interviews taped?
Data base contents e.g. Stock exchange prices/ football
league tables/ football pool coupons
Works of art - sculptures/ drawings/maps/architectural
works- buildings or models of them
Breach examples:
The Ordnance Survey Office received 20,000000
from Centrica (A.A.) for using their maps
without permission
The Queens Christmas Day speech 1992 Sun Newspaper?
Taking a photograph of a programme from a T.V. screen
(Screen Grab) may be a breach of copyright
Copyright Designs &Patents Act - section 17
Numerous differing copyrights will generally exist in a
film or play
123
ii)
iii)
iv)
124
Do I have a defence?
OWNERSHIP:
The Media:
Employed Journalists
Contract of employment?
Freelance
Owns work unless otherwise agreed in writing i.e. assigned
(Sold)
Letters to the editor?
Photographs?
Freelance commercial photographer own unless
assigned - Subject to Moral rights?
125
Film?
Complex Numerous copyrights
126
127
128
129
130
PUBLIC INTEREST?:
Courts will not enforce copyright if a work is held to be
Immoral - scandalous or contrary to family life
Injurious to public life public health -- safety or the
administration of justice
Incite or encouraged others to act in a way injurious to such
matters
Issued by police in order to trace persons as witnesses or
wanted in connection with serious crime
Misleading information set record straight
Lion Laboratories Ltd v Evans [1985] (Intoximeter case
Daily Express)
Public interest was raised and approved as an existing defence in
the Hyde Park Residents case mentioned above
but not upheld as a defence in that instance
INNOCENT INFRINGEMENT:
No reason to know or believe a work was subject to copyright.
Negligence no defence
Those in breach must account for all profits but no damages are
payable
131
INCIDENTAL INCLUSION
OWNER ACQUIESCED IN THE PUBLICATION
The owner of the copyright had knowledge of an infringement
at the time it occurred but failed within a reasonable time to
take any action.
132
133
COPYRIGHT PENALTIES:
134
135
Licence?
Assignment?
manufacturing company gives a newspaper reporter a computerprepared design of the new model of a car that the company
intends to launch at next years Paris motor show. He also gives the
reporter reports on wind-tunnel tests and simulated crashes.
136
The reporter telephones the companys press office, and indicates that her
newspaper intends to publish an article based on the material passed to her.
The press office protests and promptly informs the companys solicitors of
this intention.
What action may the solicitors take on behalf of the newspaper in
a)
b)
confidentiality
copyright.
13. A relative of a 93 year old woman who has been murdered lends a
reporter a print of a photograph of the victim that the victim ordered for
her 70th birthday from a commercial photographer. The photo is used to
accompany the murder report and after publication the photographer says
he owned the copyright in it
Discuss
INQUESTS
Inquests are held by a CORONER normally in a CORONERS COURT.
THE OFFICE OF CORONER?
A very ancient Office Now Lawyers of at least 5 years standing ( 127
appointed coroners + deputy coroners)
CORONERS & Justice ACT 2009 main legislation
Coroners Rules (Made under the provisions of the act)
These regulate the proceedings
137
PURPOSE
To enquire into:
Sudden or unnatural deaths
i.e. those due to an unknown cause
approx. 235000 per year
which result in approx 30000 actual inquests
138
Not the purpose of the jury to determine who was liable for
death. This is a civil court or a criminal court issue
prejudice a future trial?
A jury may identify a failure if would prevent repetition i.e. in a
health and safety matter
e.g. A radiation leaks Afghanistan
NOTE WELL:
139
140
141
The coroner must read out in court unless he states will not for valid
reasons which would thus prevent the media and public from knowing
contents
e.g. Suicide notes in the interest of sensitivity?
TREASURE TROVE?:
Definition
Found objects at least 300 years old, which contain substantial amounts
of silver or gold, (at least 10%) or finds of other valuables the owner/
descendants of which cannot be traced.
Finders must report finding to the coroner within 14 days. Normally
taken to a museum who inform British Museum or Welsh National
Museum
If either of these museums wishes to have the find an inquest is then held
to decide if it is treasure or the property of the finder/owner of the land
and if treasure and the museum wish to have it the full market value paid
to finder and possibly the land owner concerned
Otherwise finder/land owner receive it back
142
143
144
BANKRUPTCY
BANKRUPTCY PROCEEDINGS:
145
PURPOSE IS TO ESTABLISH:
ASSETS AND LIABILITIES
146
CAUSE OF BANKRUPTCY
ANY CRIMINAL OFFENCES
IF ASSETS HAVE BEEN TRANSFERRED TO ANOTHER PERSON
TO AVOID PAYING CREDITORS THEY MAY BE RECOVERED
i.e. TRANSACTIONS WITHIN LAST 10 years MAY BE DECLARED
VOID IF MADE WITH INTENT TO DEPRIVE CREDITORS
EMPLOYEES ARE PREFERENTIAL CREDITORS
147
COMPULSORY LIQUIDATION
When company insolvent
And a winding up order made. Then monies (if any)
distributed amongst creditors
148
At a Creditors Meeting?
A Bankruptcy hearing?
149
ii)
150
Any person for any purpose prejudicial to the safety or interests of the
statei)
ii)
iii)
Sub paragraph (Iii) most likely to be most relevant with regard to the
media.
Section 2.
i) Had been drafted in Whitehall and held in waiting for some time
prior to the Act being introduced .
General purpose when written?
To stop leakage to the press of any information
I.e. Not specifically secret material but anything of an embarrassing
nature to the serving government.
Created more than 2000 different offences in its few paragraphs.
iii)
151
and
iv)
152
Defence:
i)
ii)
iii)
ii)
153
All three were additionally charged under section 2 with receiving the
information and Berry with passing it.
Cambell & Berry received Conditional discharges and Berry a six
month suspended sentence
154
The AG stated he had been misled by the security services and our
Defence Ministry
ii)
iii)
iv)
155
DEFENCE
Must prove
Damage to capability to armed forces loss of life or injury to its
members equipment or installations obstruction of British interests
abroad or to the safety of its citizens abroad.
BUT
No need to show damage with regard to crime aspect
Only likely to do so regarding prevention detecting of or the apprehension
or prosecution of suspects.
NO PUBLIC INTEREST DEFENCE
HUMAN RIGHTS
Article 10(1) applies but subject 10(2) restriction as being
necessary in a democratic society
Difficult for court to determine but when information in the public
domain already difficult for the courts to ban publication
But House of Lords felt it was in accordance with article 10(2) to
restrict free speech on the part of former security service officers.
R v Shyler [2002]
156
As the title indicates the notices are advisory and have no legal
sanction.
Issued by
THE PRESS AND BROADCASTING ADVISORY COMMITTEE
Comprises representatives of the armed services Senior civil
servants the press and broadcasting organizations.
The committee has a secretary who is an ex senior member of the
armed services e.g. Major General/Admiral
and
who is available to give advice at short notice to the media
Editors/producers are fully aware of the notices and have access to
the D A Notice secretary
Currently 5 standing notices covering:
i)
ii)
iii)
Military operations
Nuclear and non nuclear weapons
Ciphers and secure communications
157
iv)
Sensitive information
BEWARE:
Trust in the system?
Requests for advice may result in injunctions against a publication
- ( e.g. Journalist Jock Kane 1985)
158
159
160
161
162
paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom's
central bank, was, at the request of US law enforcement agencies,
monitoring bank accounts associated with some of the country's most
prominent businessmen in a bid to prevent them from being used,
wittingly or unwittingly, for the funnelling of funds to terrorist
organisations. This information was attributed to US officials and Saudis
familiar with the issue. In the second paragraph a number of companies
and individuals were named, among them the Abdullatif Jamil Group of
companies who, it was stated later in the article, couldn't be reached for
comment.
[5] The jury in due course found that the article referred to was
defamatory of both Respondents. But it was a difficult matter to
investigate and report since information was not freely available in the
Kingdom and the Saudi authorities, even if co-operating closely with
those of the United States, might be embarrassed if that fact were to
become generally known.
[7] The judge also rejected the newspaper's claim to Reynolds privilege
([2004] EWHC 37 (QB)). On this question also the Court of Appeal
upheld his decision, but on a more limited ground. This calls for more
detailed consideration.
[9] Mr Dorsey described attempts to obtain a response from the Group
about his proposed article. He said he had telephoned the Group office at
about 9.0am and left a recorded message. The jury found that the
newspaper had not proved on the balance of probabilities that that was
so. There was, it was agreed, a telephone conversation between Mr
Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5
February, the day before publication. During that conversation, according
to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for
a comment by the Group. He had, he said, no authority to make a
statement and the First Respondent was in Japan, where the time was
3.0am Mr Dorsey denied that Mr Munajjed had asked him to wait. But the
jury found that Mr Munajjed had made that request. It was on this ground,
as I understand, that the Court of Appeal upheld the judge's denial of
Reynolds privilege:
The judge found that there was no compelling reason why Mr
Jameel could not have been afforded 24 hours on the article.
II REYNOLDS PRIVILEGE
[28] The decision of the House in Reynolds v Times Newspapers Ltd
built on the traditional foundations of qualified privilege but carried the law
163
forward in a way which gave much greater weight than the earlier law
had done to the value of informed public debate of significant public
issues. Both these aspects are, I think, important in understanding the
decision.
[29] Underlying the development of qualified privilege was the
requirement of a reciprocal duty and interest between the publisher and
the recipient of the statement in question.
Thus where a publication related to a matter of public interest, it was
accepted that the reciprocal duty and interest could be found even where
publication was by a newspaper to a section of the public or the public at
large. In Reynolds the Court of Appeal restated these tests ([2001] 2 AC
127, 167, 177), although it suggested a third supplemental test which the
House held to be mistaken.
[30] I do not understand the House to have rejected the duty/interest
approach: see Lord Nicholls of Birkenhead, pp 194-195, 197, 204; Lord
Steyn, p 213; Lord Cooke of Thorndon, pp 217, 224, 227; Lord Hope of
Craighead, pp 229, 235; Lord Hobhouse of Woodborough, pp 237, 239.
But Lord Nicholls (p 197) considered that matters relating to the nature
and source of the information were matters to be taken into account in
determining whether the duty-interest test was satisfied or, as he
preferred to say in a simpler and more direct way, whether the public
was entitled to know the particular information.
[31] The necessary pre-condition of reliance on qualified privilege in this
context is that the matter published should be one of public interest. In
the present case the subject matter of the article complained of was of
undoubted public interest. But that is not always, perhaps not usually, so.
It has been repeatedly and rightly said that what engages the interest of
the public may not be material which engages the public interest.
[32] Qualified privilege as a live issue only arises where a statement
is defamatory and untrue. It was in this context, and assuming the
matter to be one of public interest, that Lord Nicholls proposed (at p
202) a test of responsible journalism, a test repeated in Bonnick v
Morris [2002] The rationale of this test is, as I understand, that there is
no duty to publish and the public have no interest to read material which
the publisher has not taken reasonable steps to verify. As Lord Hobhouse
observed with characteristic pungency (p 238), No public interest is
served by publishing or communicating misinformation. But the
publisher is protected if he has taken such steps as a responsible
journalist would take to try and ensure that what is published is
accurate and fit for publication.
164
[33] Lord Nicholls (at p 205) listed certain matters which might be
taken into account in deciding whether the test of responsible
journalism was satisfied. He intended these as pointers which might
be more or less indicative, depending on the circumstances of a
particular case, and not, I feel sure, as a series of hurdles to be
negotiated by a publisher before he could successfully rely on
qualified privilege. Lord Nicholls recognised (at pp 202-203), inevitably
as I think, that it had to be a body other than the publisher, namely the
court, which decided whether a publication was protected by qualified
privilege. But this does not mean that the editorial decisions and
judgments made at the time, without the knowledge of falsity which is a
benefit of hindsight, are irrelevant. Weight should ordinarily be given
to the professional judgment of an editor or journalist in the
absence of some indication that it was made in a casual, cavalier,
slipshod or careless manner.
[34] Some misunderstanding may perhaps have been engendered by
Lord Nicholls' references (at pp 195, 197) to the particular information. It
is of course true that the defence of qualified privilege must be
considered with reference to the particular publication complained of as
defamatory, and where a whole article or story is complained of no
difficulty arises. But difficulty can arise where the complaint relates to one
particular ingredient of a composite story, since it is then open to a
Plaintiff to contend, as in the present case, that the article could have
been published without inclusion of the particular ingredient complained
of. This may, in some instances, be a valid point. But consideration
should be given to the thrust of the article which the publisher has
published. If the thrust of the article is true, and the public interest
condition is satisfied, the inclusion of an inaccurate fact may not
have the same appearance of irresponsibility as it might if the whole
thrust of the article is untrue.
[35] These principles must be applied to the present case. As recorded in
para 8 above, the Court of Appeal upheld the judge's denial of Reynolds
privilege on a single ground, discounting the jury's negative findings
concerning Mr Dorsey's sources: that the newspaper had failed to delay
publication of the Respondents' names without waiting long enough for
the Respondents to comment. This seems to me, with respect, to be a
very narrow ground on which to deny the privilege, and the ruling
subverts the liberalising intention of the Reynolds decision. The subject
matter was of great public interest, in the strictest sense. The article
was written by an experienced specialist reporter and approved by
senior staff on the newspaper and The Wall Street Journal who
themselves sought to verify its contents. The article was
165
166
167
168
right to know, which lies at the heart of the matter, maintains the essential
element of objectivity. Was there an interest or duty to publish the
information and a corresponding interest or duty to receive it, having
regard its particular subject matter? This provides the context within
which, in any given case, the issue will be assessed. Context is important
too when the standard is applied to each piece of information that the
journalist wishes to publish. The question whether it has been satisfied
will be assessed by looking to the story as a whole, not to each piece of
information separated from its context.
LORD SCOTT:
QUALIFIED PRIVILEGE
[130] Lord Nicholls did not turn his back on the reciprocal
duty/interest test for qualified privilege. Instead he moulded the test
so as to cater for the publication of information that the public as a
whole, as opposed to a specific individual or individuals, was
entitled to know.
It seems to me that the Reynolds case was less a breakthrough
than a reminder of the width of the basic common law principles as
to privilege.
169
NOTE:
Highlighting mine Ken Brown
170
171
Public interest has never been defined, but in London Artists Ltd v Littler
[1969] 2 QB 375 at 391 Lord Denning MR rightly said that it is not to be
confined within narrow limits. He continued:
'Whenever a matter is such as to affect people at large, so that they may
be legitimately interested in, or concerned at, what is going on; or what
may happen to them or others; then it is a matter of public interest on
which everyone is entitled to make fair comment.'
the basis of our public life is that the crank, the enthusiast, may say what
he honestly thinks as much as the reasonable person who sits on a jury.
The true test is whether the opinion, however exaggerated, obstinate or
prejudiced, was honestly held by the person expressing it (see Silkin v
Beaverbrook Newspapers Ltd [1958] 1 WLR 743 at 746 per Diplock J).
Privilege: factual inaccuracies
There are occasions when the person to whom a statement is made has
a special interest in learning the honestly held views of another person,
even if those views are defamatory of someone else and cannot be
proved to be true. When the interest is of sufficient importance to
outweigh the need to protect reputation, the occasion is regarded as
privileged.
Sometimes the need for uninhibited expression is of such a high order
that the occasion attracts absolute privilege, as with statements made
by judges or advocates or witnesses in the course of judicial
proceedings. More usually, the privilege is qualified in that it can be
defeated if the plaintiff proves the defendant was actuated by
malice.
Over the years the courts have held that many common form situations
are privileged. Classic instances are employment references, and
complaints made or information given to the police or appropriate
authorities regarding suspected crimes. The courts have always
emphasised that the categories established by the authorities are not
exhaustive. The list is not closed.
The established categories are no more than applications, in particular
circumstances, of the underlying principle of public policy. The
underlying principle is conventionally stated in words to the effect
that there must exist between the maker of the statement and the
recipient some duty or interest in the making of the communication.
172
173
174
175
176
None of these three latter cases involved political discussion, but for this
purpose no distinction is to be drawn between political discussion and
discussion of other matters of public concern (see Thorgeirson v Iceland
(1992) 14 EHRR 843 at 863864 and 865 (paras 61 and 64)).
Conclusion
My conclusion is that the established common law approach to
misstatements of fact remains essentially sound. The common law
should not develop 'political information' as a new 'subject matter'
category of qualified privilege, whereby the publication of all such
information would attract qualified privilege, whatever the circumstances.
That would not provide adequate protection for reputation. Moreover, it
would be unsound in principle to distinguish political discussion
from discussion of other matters of serious public concern. The
elasticity of the common law principle enables interference with
freedom of speech to be confined to what is necessary in the
circumstances of the case. This elasticity enables the court to give
appropriate weight, in today's conditions, to the importance of freedom of
expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into
account include the following. The comments are illustrative only.
(1) The seriousness of the allegation. The more serious the charge,
the more the public is misinformed and the individual harmed, if the
allegation is not true. (2) The nature of the information, and the
extent to which the subject matter is a matter of public concern. (3)
The source of the information. Some informants have no direct
knowledge of the events. Some have their own axes to grind, or are
being paid for their stories. (4) The steps taken to verify the
information. (5) The status of the information. The allegation may
have already been the subject of an investigation which commands
respect. (6) The urgency of the matter. News is often a perishable
commodity. (7) Whether comment was sought from the plaintiff. He
may have information others do not possess or have not disclosed.
An approach to the plaintiff will not always be necessary. (8)
Whether the article contained the gist of the plaintiff's side of the
story. (9) The tone of the article. A newspaper can raise queries or
call for an investigation. It need not adopt allegations as statements
of fact. (10) The circumstances of the publication, including the
timing.
177
This list is not exhaustive. The weight to be given to these and any
other relevant factors will vary from case to case. Any disputes of
primary fact will be a matter for the jury, if there is one. The decision on
whether, having regard to the admitted or proved facts, the publication
was subject to qualified privilege is a matter for the judge. This is the
established practice and seems sound.
In general, a newspaper's unwillingness to disclose the identity of its
sources should not weigh against it.
Above all, the court should have particular regard to the importance of
freedom of expression. The press discharges vital functions as a
bloodhound as well as a watchdog.
Privilege and the facts of this case
A most telling criticism of the article is the failure to mention Mr Reynolds'
own explanation to the Dil. An article omitting all reference to this
statement could not be a fair and accurate report of proceedings in the
Dil.
LORD STEYN. My Lords, I gratefully adopt the account of the
background given by Lord Bingham of Cornhill CJ, in sections I, II,
and III of the judgment of the Court of Appeal ([1998] 3 All ER 961 at
965972), as well as the summary given by my noble and learned
friend Lord Nicholls of Birkenhead. I therefore turn directly to the
central issues.
THE NEW LANDSCAPE
The present case involves a defamatory and factually false statement
which the newspaper honestly believed to be true.
(1999) 7 BHRC 289 at 308
It is worth considering why Lord Goff and Lord Keith could so confidently
assert that the law of England and art 10 of the convention is the same.
In my judgment the reasons are twofold. First, there is the principle of
liberty. Whatever is not specifically forbidden by law, individuals
and their enterprises are free to do (see [1990] 1 AC 109 at 283 where
Lord Goff stated that in England 177177177erybody is free to do
anything, subject only to the provisions of the law'). By contrast the
executive and judicial branches of government may only do what the law
specifically permits.
178
179
180
181
182
who exercise great practical power over the lives of people or great
influence in the formation of public opinion or as role models. Such power
or influence may indeed exceed that of most politicians. The rights and
interests of citizens in democracies are not restricted to the casting of
votes. Matters other than those pertaining to government and politics
may be just as important in the community; and they may have as strong
a claim to be free of restraints on freedom of speech.
(v) The existing balance between the right to personal reputation and
freedom of speech has been carefully and gradually developed over the
years by common law and statutes. It is true that the restrictions on
freedom of speech that have been thought necessary to give reasonable
protection to personal reputation may have a tendency to chill the
publication, not only of untruths, but also of that which may be true but
cannot be proved to be true. But there is nothing new in this. Nor, as far
as I am aware, is there any way of assessing which tendency is the
greateralthough experience of libel litigation is apt to generate a
suspicion that it is the former.
183
184
185
The purpose of the article complained of was not to suggest that the
allegations of either side were true, but to expose the very fact of the
divisions within a political party trying to present a united and respectable
front in advance of coming elections.
It was in those circumstances that he wrote the piece which is now the
subject of this libel claim.
THE LIBELLOUS ARTICLE
The Defendants' case is that the activities of prominent members of
a political party are always a matter of public interest and that they
were merely reporting the allegations without adopting or endorsing
them thus giving them a good defence under the recently emerging
reportage doctrine referred to in Al-Fagih v HH Saudi Research and
Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] EMLR 215.
THE JUDGMENT UNDER APPEAL
[26] The case is now reported at [2006] EMLR 23. Eady J made these
findings:
16 It will thus be apparent that reporting both sides, in a
disinterested way, is an important element in the doctrine of
reportage.
[27] He then dealt with the Claimants' submission that the Defendants
would fail each and every one of Lord Nicholls ten non-exhaustive tests
set out in Reynolds observing:
25 . . . I note in passing that they do not necessarily fit the reportage
template (which was only articulated subsequently) as well as those
situations where defamatory allegations appear to readers to have been
adopted. Nevertheless, it is still no doubt right to have them in mind.
28 No steps were taken to verify the information (as was also true in AlFagih). That would not be fatal, however, in a reportage case, where the
186
187
(1) The chilling effect which the common law's rigorous protection
of reputation has had on the media must now to be acknowledged
and, according proper weight to ECHR jurisprudence, reputation
must now give some way to what may be regarded as the
higher priority of what Lord Steyn at p 207 G describes as the
fundamental constitutional right, that of freedom of
expression.
(2) Though the categories of privilege are not exhaustive and the
list is not closed, a generic qualified privilege of political speech
was to be rejected. The duty/interest test remains the essential
element in the structure of qualified privilege even though
Lord Hoffmann prefers in Jameel para 46 to call it the
Reynolds public interest defence and Baroness Hale in para
146 prefers a defence of publication in the public interest.
(4) The first is that the article as a whole must be in the public
interest. What engages the interest of the public, as in the example
given by Baroness Hale, the most vapid tittle tattle about the
activities of footballers' wives and girlfriends, may not be material
which truly engages the public interest.
188
REPORTAGE
[34] Reportage is a fancy word. The Concise Oxford Dictionary
defines it as the describing of events, esp the reporting of news etc
for the press and for broadcasting. It seems we have Mr Andrew
Caldecott QC to thank or to blame for its introduction into our
jurisdiction. The doctrine first saw the light of day in Al Fagih.
Simon Brown LJ said in para 6 that it was a convenient word to
describe the neutral reporting of attributed allegations rather than
their adoption by the newspaper. That may indeed conveniently
describe what it is but there is more to it than that and it is necessary to
see how this new doctrine fits into the firmament.
AL FAGIH
[35] Since Mr Tomlinson seeks to distinguish his case from Al Fagih, it is
necessary to examine it closely. The Claimant (AF) and a Dr Al Mas'aari
(AM) were prominent members of a dissident political organisation (the
Committee) opposed to the existing Saudi Arabian government. The
Defendant newspaper supported the government and was sponsored by
the Saudi royal family. The Committee was riven by a dispute between
AF, the manager of its London office, and AM its spokesman. This dispute
escalated to the point that both men were issuing press releases
reporting their side of the problem and these were avidly reported by the
Defendant on a day to day basis as the saga unfolded. On 5 March 1996
189
190
191
particular preference for either, have the consequence that the denial is
to be regarded as the antidote to remove the bane of the publication in a
way which results in its losing its otherwise defamatory meaning. This
court found there was no inconsistency between the repetition rule and
decisions of the European Court of Human Rights and that it was only in
cases where the antidote so obviously extinguished the bane that no
issue could properly be left to the jury that the judge should rule at an
interim stage that the article was not capable of being defamatory. In the
course of his judgment Simon Brown LJ said of Al-Fagih:
35 In short, whilst I am certainly prepared to recognise that the
approach adopted in Al-Fagih may need to be taken further still
rather than perhaps confined merely to the reporting of statements
(attributed and un-adopted) by both sides to a political dispute I
reject entirely the argument that the repetition rule as such needs
changing. To regard reportage as being incapable of harming a
person's reputation would be to introduce into the law a fiction
which the repetition rule is designed to avoid.
[42] The doctrine is next mentioned in Galloway v Telegraph Group
Ltd [2006] EMLR 221. The articles concerned asserted that Mr Galloway,
a well-known Member of Parliament, was in the pay of Saddam Hussein,
secretly receiving sums to the order of 375,000 a year, that he had
diverted monies from the Oil for Food Programme thus depriving the Iraqi
people whose interests he claimed to represent of food and medicine and
that he had probably used the Mariam appeal as a front for personal
enrichment. The Daily Telegraph did not seek to justify these defamatory
statements as true but, relying upon the fact that they were based on
documents found by their reporter in Baghdad claimed that the
publication was protected by privilege, inter alia, as reportage. The Court
of Appeal held:
48 It is not in dispute that the Baghdad documents were of great interest
to the public and The Daily Telegraph was naturally very keen to publish
them. If the documents had been published without comment or further
allegations of fact Mr Galloway could have no complaint since, in so far
as they contained statements or allegations of fact it was in the public
interest for The Daily Telegraph to publish them, at any rate after giving
Mr Galloway a fair opportunity to respond to them. Such publication
would be reportage. The balance would come down in favour of freedom
of expression, which, subject to art 10.2, is protected by art 10.1 of the
Convention, and the statements would be protected by privilege . . .
192
193
194
195
196
197
PAYMENTS TO SOURCES:
PCC Code:
i) No payments to witnesses or potential witnesses in current criminal
proceedings except where material OUGHT TO BE PUBLISHED IN THE
PUBLIC INTEREST AND THERE IS AN OVERRIDING NEED TO MAKE
OR PROMISE TO MAKE A PAYMENT FOR THIS TO BE DONE.
Must take every possible step to ensure no influence on the evidence
those witnesses may give and disclose offer to both prosecution and
defence.
ii) No payments for information or pictures to convicted or confessed
criminal or their associates where stories, pictures or information seek to
exploit a particular crime or glorify crime in general, except where
OUGHT TO BE PUBLISHED IN THE PUBLIC INTEREST AND
PAYMENT IS NECESSARY FOR THIS TO BE DONE.
BBC Producers Guidelines take the same approach.
198
Criminals
Public interest includes:
i)
Detecting or exposing crime or serious impropriety
ii)
Protecting public health and safety
iii)
Preventing the public being misled by an action or statement of a
person/organisation
There is public interest in freedom of expression itself, consideration to
the extent that information already in public domain or will become so.
Cases re under 16s must show an exceptional public interest.
RE DEFAMATION:
Jameel and others v Wall Street Journal Europe SPRL
HOUSE OF LORDS
LORDS, BINGHAM, HOFFMANN, HOPE, SCOTT, BARONESS HALE
26, 27, 28 JUNE, 11 OCTOBER 2006
11 OCTOBER 2006
G Robertson QC, R Elliott, G Vassall-Adams for the Appellants
J Price QC, J Dean for the Respondents
Finers Stephens Innocent LLP; Carter-Ruck and Partners
LORD BINGHAM:
MY LORDS,
[1] This appeal raises two questions on the law of libel. The first concerns
the entitlement of a trading corporation such as the Second Respondent
to sue and recover damages without pleading or proving special damage.
The second concerns the scope and application of what has come to be
called Reynolds privilege, an important form of qualified privilege.
[4] On 6 February 2002 the newspaper published the article which gave
rise to these proceedings. It was headed Saudi Officials Monitor Certain
199
200
201
no duty to publish and the public have no interest to read material which
the publisher has not taken reasonable steps to verify. As Lord Hobhouse
observed with characteristic pungency (p 238), No public interest is
served by publishing or communicating misinformation. But the
publisher is protected if he has taken such steps as a responsible
journalist would take to try and ensure that what is published is
accurate and fit for publication.
[33] Lord Nicholls (at p 205) listed certain matters which might be
taken into account in deciding whether the test of responsible
journalism was satisfied. He intended these as pointers which might
be more or less indicative, depending on the circumstances of a
particular case, and not, I feel sure, as a series of hurdles to be
negotiated by a publisher before he could successfully rely on
qualified privilege. Lord Nicholls recognised (at pp 202-203), inevitably
as I think, that it had to be a body other than the publisher, namely the
court, which decided whether a publication was protected by qualified
privilege. But this does not mean that the editorial decisions and
judgments made at the time, without the knowledge of falsity which is a
benefit of hindsight, are irrelevant. Weight should ordinarily be given
to the professional judgment of an editor or journalist in the
absence of some indication that it was made in a casual, cavalier,
slipshod or careless manner.
[34] Some misunderstanding may perhaps have been engendered by
Lord Nicholls' references (at pp 195, 197) to the particular information. It
is of course true that the defence of qualified privilege must be
considered with reference to the particular publication complained of as
defamatory, and where a whole article or story is complained of no
difficulty arises. But difficulty can arise where the complaint relates to one
particular ingredient of a composite story, since it is then open to a
Plaintiff to contend, as in the present case, that the article could have
been published without inclusion of the particular ingredient complained
of. This may, in some instances, be a valid point. But consideration
should be given to the thrust of the article which the publisher has
published. If the thrust of the article is true, and the public interest
condition is satisfied, the inclusion of an inaccurate fact may not
have the same appearance of irresponsibility as it might if the whole
thrust of the article is untrue.
[35] These principles must be applied to the present case. As recorded in
para 8 above, the Court of Appeal upheld the judge's denial of Reynolds
privilege on a single ground, discounting the jury's negative findings
concerning Mr Dorsey's sources: that the newspaper had failed to delay
202
203
the newspaper invited the House to declare a similar privilege for the
publication of political information. But the House refused to do so.
I therefore agree with the opinion of the Court of Appeal in
Loutchansky v Times Newspapers Ltd (Nos 2-5) [2001] that
Reynolds privilege is a different jurisprudential creature from the
traditional form of privilege from which it sprang. It might more
appropriately be called the Reynolds public interest defence rather
than privilege.
APPLYING REYNOLDS
(a) The Public Interest Of The Material
[48] The first question is whether the subject matter of the article
was a matter of public interest. In answering this question, I think that
one should consider the article as a whole and not isolate the defamatory
statement.
If the publication is in the public interest, the duty and interest are
taken to exist.
(b) Inclusion Of The Defamatory Statement
[51] If the article as a whole concerned a matter of public interest, the
next question is whether the inclusion of the defamatory statement
was justifiable.
(c) Responsible Journalism
[53] If the publication, including the defamatory statement, passes
the public interest test, the inquiry then shifts to whether the steps
taken to gather and publish the information were responsible and
fair.
[55] But the standard of responsible journalism is as objective and
no more vague than standards such as reasonable care which are
regularly used in other branches of law. Greater certainty in its
application is attained in two ways. First, as Lord Nicholls said, a body of
illustrative case law builds up. Secondly, just as the standard of
reasonable care in particular areas, such as driving a vehicle, is made
more concrete by extra-statutory codes of behaviour like the Highway
Code, so the standard of responsible journalism is made more specific by
the Code of Practice which has been adopted by the newspapers and
204
ratified by the Press Complaints Commission. This too, while not binding
upon the courts, can provide valuable guidance.
[56] In Reynolds, Lord Nicholls gave his well-known non-exhaustive
list of ten matters which should in suitable cases be taken into
account. They are not tests which the publication has to pass. In the
hands of a judge hostile to the spirit of Reynolds, they can become ten
hurdles at any of which the defense may fail. That is how Eady J treated
them. The defence, he said, can be sustained only after the closest and
most rigorous scrutiny by the application of what he called Lord Nicholls'
ten tests. But that, in my opinion, is not what Lord Nicholls meant. As he
said in Bonnick (at p 309) the standard of conduct required of the
newspaper must be applied in a practical and flexible manner. It must
have regard to practical realities.
[58] I therefore pass to the question of whether the newspaper
satisfied the conditions of responsible journalism. This may be
divided into three topics: the steps taken to verify the story, the
opportunity given to the Jameel group to comment and the
propriety of publication in the light of US diplomatic policy at the
time.
DISPOSAL
[88] In my opinion there was no basis for rejecting the newspaper's
Reynolds defence.
LORD HOPE:
MY LORDS,
[92] I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Bingham of Cornhill. I agree with it,
REYNOLDS PRIVILEGE
[105] I should like to emphasise at the outset that the only question on
which there was a difference of view in the House in Reynolds v Times
Newspapers Ltd [2001] 2 AC 127 on any matter of substance was
whether the issues of justification and qualified privilege should be
reconsidered at a new trial: see Lord Steyn at pp 216D-217A and my own
speech at p 237F-G. It has sometimes been suggested that Reynolds
was a majority decision. But the primary question raised by the
case was whether there should be a new category of privileged
subject matter a generic qualified privilege of political speech, as
Lord Steyn called it at p 209C-D. On that question the House was
unanimous. Everyone accepted that the duty-interest test was an
essential element in the structure of the law of qualified privilege.
There was no dissent from the analysis by Lord Nicholls of Birkenhead of
205
the way in which the common law test should be adapted so as to strike
a balance between the role of the media and the restrictions that are
necessary in a democratic society for the protection of the reputation of
the individual. Nor was there any dissent from his observation at p 202EF that the common law does not seek to set a higher standard than that
of responsible journalism.
Responsible journalism is a standard which everyone in the media and
elsewhere can recognise. The duty-interest test based on the public's
right to know, which lies at the heart of the matter, maintains the essential
element of objectivity. Was there an interest or duty to publish the
information and a corresponding interest or duty to receive it, having
regard its particular subject matter? This provides the context within
which, in any given case, the issue will be assessed. Context is important
too when the standard is applied to each piece of information that the
journalist wishes to publish. The question whether it has been satisfied
will be assessed by looking to the story as a whole, not to each piece of
information separated from its context.
LORD SCOTT:
QUALIFIED PRIVILEGE
[130] Lord Nicholls did not turn his back on the reciprocal
duty/interest test for qualified privilege. Instead he moulded the test
so as to cater for the publication of information that the public as a
whole, as opposed to a specific individual or individuals, was
entitled to know.
It seems to me that the Reynolds case was less a breakthrough
than a reminder of the width of the basic common law principles as
to privilege.
206
There is only a little I wish to add on the issue of Reynolds privilege but
rather more on the issue of damage.
THE REYNOLDS DEFENCE
[146] It should by now be entirely clear that the Reynolds defence is
a different jurisprudential creature from the law of privilege,
although it is a natural development of that law. It springs from the
general obligation of the press, media and other publishers to
communicate important information upon matters of general public
interest and the general right of the public to receive such
information. It is not helpful to analyse the particular case in terms
of a specific duty and a specific right to know. That can, as
experience since Reynolds has shown, very easily lead to a narrow
and rigid approach which defeats its object. In truth, it is a defence
of publication in the public interest.
[147] This does not mean a free-for-all to publish without being damned.
The public only have a right to be told if two conditions are fulfilled. First,
there must a real public interest in communicating and receiving the
information. This is, as we all know, very different from saying that it is
information which interests the public the most vapid tittle-tattle about
the activities of footballers' wives and girlfriends interests large sections
of the public but no-one could claim any real public interest in our being
told all about it. It is also different from the test suggested by Mr
Robertson QC, on behalf of the Wall Street Journal Europe, of whether
the information is newsworthy. That is too subjective a test, based on
the target audience, inclinations and interests of the particular
publication. There must be some real public interest in having this
information in the public domain. But this is less than a test that the public
need to know, which would be far too limited.
[149] Secondly, the publisher must have taken the care that a
responsible publisher would take to verify the information
published. The actual steps taken will vary with the nature and sources
of the information. But one would normally expect that the source or
sources were ones which the publisher had good reason to think reliable,
that the publisher himself believed the information to be true, and that he
had done what he could to check it. We need more such serious
journalism in this country and our defamation law should encourage
rather than discourage it.
[151] In short, My Lords, if the public interest defence does not
succeed on the known facts of this case, it is hard to see it ever
succeeding.
207
NOTE:
208
209
210
211
212
213
214
215
216
the familiar requirements of duty and interest. The Court of Appeal then
stated a third and separate requirement.
the Court of Appeal observed:
it is one thing to publish a statement which the person defamed has been
given the opportunity to rebut, and quite another to publish a statement
without any recourse to the person defamed where such recourse was
possible; it is one thing to publish a statement which has been so far as
possible checked, and quite another to publish it without such verification
as was possible and as the significance of the statement called for. While
those who engage in public life must expect and accept that their public
conduct will be the subject of close scrutiny and robust criticism, they
should not in our view be taken to expect or accept that their conduct
should be the subject of false and defamatory statements of fact unless
the circumstances of the publication are such as to make it proper, in the
public interest, to afford the publisher immunity from liability in the
absence of malice.
For the newspaper counsel argued that the particular requirements of the
circumstantial test stated by the Court of Appeal are unduly restrictive.
There is force in this argument. I will return to it. Counsel for Mr Reynolds
pointed out that there is a structural flaw in the circumstantial test. He
invited your Lordships not to adopt it. I would not accept the
circumstantial test is soundly based. Having reached this point I would
not wish to be taken to reject entirely the reasoning of the Court of
Appeal.
I would however rule that the circumstantial test should not be
adopted.
Issue (3): the alternative tests of duty and interest
If both the generic test and the circumstantial test are rejected, as I
have done, the only sensible course is to go back to the traditional
twofold test of duty and interest. These tests are flexible enough to
embrace, depending on the occasion and the particular circumstances, a
qualified privilege in respect of political speech published at large.
The context in which the qualified privilege of free speech should be
applied is all-important. It was said by counsel for the newspaper that the
English courts have not yet recognised that the press has a general duty
to inform the public of political matters and that the public has a right to
be so informed. If there is any doubt on the point, this is the occasion for
the House to settle the matter. It is an open space in the law which can
217
be filled by the courts. It is true that in our system the media have no
specially privileged position not shared by individual citizens. On the
other hand, it is necessary to recognise the 'vital public watchdog role of
the press' as a practical matter (see Goodwin v UK (1996) 1 BHRC 81 at
95 (para 39)). The role of the press, and its duty, was well described by
the European Court of Human Rights in Castells v Spain (1992) 14
EHRR 445 at 476 (para 43) in the following terms:
' the pre-eminent rle of the press in a State governed by the rule of
law must not be forgotten. Although it must not overstep various bounds
set, inter alia, for the prevention of disorder and the protection of the
reputation of others, it is nevertheless incumbent on it to impart
information and ideas on political questions and on other matters of
public interest. Freedom of the press affords the public one of the best
means of discovering and forming an opinion of the ideas and attitudes of
their political leaders. In particular, it gives politicians the opportunity to
reflect and comment on the preoccupations of public opinion; it thus
enables everyone to participate in the free political debate which is at the
very core of the concept of a democratic society.'
In De Haes v Belgium (1997) 25 EHRR 1 the European Court of
Human Rights again emphasised that the press plays an essential
role in a democratic society. The court trenchantly observed ((1997)
25 EHRR 1 at 53 (para 39)):
'It is incumbent on the press to impart information and ideas of
public interest. Not only does the press have the task of imparting
such information and ideas: the public also has a right to receive
them.'
This principle must be the foundation of our law on qualified
privilege of political speech.
The correct approach to the line between permissible and impermissible
political speech was indicated by the European Court of Human Rights in
Lingens v Austria (1986) 8 EHRR 407 at 419 (para 42) as follows:Implicit
in that dictum is the distinction that speech about political matters has a
higher value than speech about private lives of politicians.
Moreover, it will always be necessary to take into account the
dynamics of the role of the press and that 'news is a perishable
commodity and to delay its publication, even for a short period, may
well deprive it of all its value and interest' (see Sunday Times v UK
(No 2) (1991) 14 EHRR 229 at 242 (para 51)).
218
219
law regarding qualified privilege (which are not limited or abridged by the
statutory privileges: see s 7(4) of the 1952 Act and cf s 15(4) of the 1996
Act); or unless the court could be persuaded to introduce into English law
a new generic head of qualified privilege for political discussion.
As I understand it, none of your Lordships who sat in this case and in the
New Zealand Lange v Atkinson case favours any new form of generic
privilege for political discussion; and I am of the same mind for the
following main reasons.
(i) Although investigative reporting can be of public benefit, the
commercial motivation of the press and other sections of the media
can create a temptation, not always resisted, to exaggerate, distort
or otherwise unfairly represent alleged facts in order to excite the
interest of readers, viewers or listeners.
. In the United Kingdom the common law and practice regard protection
of media sources has been strengthened by s 10 of the Contempt of
Court Act 1981, ing prohibiting any court from requiring disclosure of a
journalistic source unless satisfied that disclosure is necessary in (inter
alia) the interests of justice.
(iii) There are further reasons why the exception of malice is a dubious
safeguard. (iv) It is doubtful whether the suggested new defence could
sensibly be confined to political discussion. There are other public figures
who exercise great practical power over the lives of people or great
influence in the formation of public opinion or as role models. Such power
or influence may indeed exceed that of most politicians. The rights and
interests of citizens in democracies are not restricted to the casting of
votes. Matters other than those pertaining to government and politics
may be just as important in the community; and they may have as strong
a claim to be free of restraints on freedom of speech.
(v) The existing balance between the right to personal reputation and
freedom of speech has been carefully and gradually developed over the
years by common law and statutes. It is true that the restrictions on
freedom of speech that have been thought necessary to give reasonable
protection to personal reputation may have a tendency to chill the
publication, not only of untruths, but also of that which may be true but
cannot be proved to be true. But there is nothing new in this. Nor, as far
as I am aware, is there any way of assessing which tendency is the
greateralthough experience of libel litigation is apt to generate a
suspicion that it is the former.
220
221
222
The purpose of the article complained of was not to suggest that the
allegations of either side were true, but to expose the very fact of the
divisions within a political party trying to present a united and respectable
front in advance of coming elections.
It was in those circumstances that he wrote the piece which is now the
subject of this libel claim.
THE LIBELLOUS ARTICLE
The Defendants' case is that the activities of prominent members of
a political party are always a matter of public interest and that they
were merely reporting the allegations without adopting or endorsing
them thus giving them a good defence under the recently emerging
223
224
(1) The chilling effect which the common law's rigorous protection
of reputation has had on the media must now to be acknowledged
and, according proper weight to ECHR jurisprudence, reputation
must now give some way to what may be regarded as the
higher priority of what Lord Steyn at p 207 G describes as the
fundamental constitutional right, that of freedom of
expression.
(2) Though the categories of privilege are not exhaustive and the
list is not closed, a generic qualified privilege of political speech
was to be rejected. The duty/interest test remains the essential
225
(4) The first is that the article as a whole must be in the public
interest. What engages the interest of the public, as in the example
given by Baroness Hale, the most vapid tittle tattle about the
activities of footballers' wives and girlfriends, may not be material
which truly engages the public interest.
REPORTAGE
226
227
228
It is the fact that the allegation of a particular nature has been made
which is in this context important, and not necessarily its truth or
falsity (emphasis added).
...
67 . . . It seems to me that in the context of allegation and counterallegation as was undoubtedly the case here, the interested reader
was entitled to know what type of allegations were being made from
time to time by one side against the other,
OTHER CASES OF REPORTAGE
[41] Reportage is next mentioned in Mark v Associated Newspapers
Ltd [2002] EMLR 38. There the Daily Mail repeated assertions in the
Mail on Sunday that Miss Mark, the Prime Minister's former nanny, had
authorised publication of material from her book which she ought not to
have done without the Blairs' consent and, moreover, that she had
misrepresented her position when claiming to have been devastated by
the publication of extracts from her book in the Mail on Sunday. These
were defamatory remarks. The Daily Mail, however, also published her
denial that she had authorised publication. The two central questions
which arose on the appeal were (1) whether the repetition rule was
reconcilable with Strasbourg jurisprudence, and (2) even if it is, does the
reporting within the same publication of two conflicting statements, the
one defamatory, the other its denial, without the publishers disclosing a
particular preference for either, have the consequence that the denial is
to be regarded as the antidote to remove the bane of the publication in a
way which results in its losing its otherwise defamatory meaning. This
court found there was no inconsistency between the repetition rule and
decisions of the European Court of Human Rights and that it was only in
cases where the antidote so obviously extinguished the bane that no
issue could properly be left to the jury that the judge should rule at an
interim stage that the article was not capable of being defamatory. In the
course of his judgment Simon Brown LJ said of Al-Fagih:
35 In short, whilst I am certainly prepared to recognise that the
approach adopted in Al-Fagih may need to be taken further still
rather than perhaps confined merely to the reporting of statements
(attributed and un-adopted) by both sides to a political dispute I
reject entirely the argument that the repetition rule as such needs
changing. To regard reportage as being incapable of harming a
person's reputation would be to introduce into the law a fiction
which the repetition rule is designed to avoid.
229
230
231
See www.bbc.co.uk/guidelines/editorialguidelines/
No discussion of misrepresentation, only subterfuge
Press Complaints Commission PCC Code
Cl. 8 Hospitals and similar institutions- identify and obtain permission
from a responsible executive before entering non-public areas. Subject
to public interest as below.
Cl. 10 Clandestine devices and subterfuge Press must not seek to
obtain or publish material acquired by using hidden cameras or listening
devices, or by intercepting phone calls, messages or e-mails or by
removal documents or photographs.
ENGAGING IN MISREPRESENTATION OR SUBTERFUGE CAN
GENERALLY BE JUSTIFIED ONLY IN THE PUBLIC INTEREST AND
ONLY WHEN THE MATERIAL CANNOT BE OBTAINED BY OTHER
MEANS.
Ofcom Code for broadcast journalists
Factual programme makers should not normally obtain or seek
information or pictures through misrepresentation or deception, EXCEPT
WHERE THE DISCLOSURE IS REASONABLY BELIEVED TO SERVE
AN OVERRIDING PUBLIC INTEREST.
232
PROTECTION OF SOURCES:
No duty of confidentiality but where risk to informant, reporter may
guarantee confidentiality to a source, matter of ethical honour.
International Federation of Journalists
The journalist shall observe professional secrecy regarding the source of
information obtained in confidence.
NUJ Code a journalist shall protect confidential sources of information
PCC Code: a moral obligation to protect no legal protection
4 Main legal provisions re. the identification of source/material:
a) S10 Contempt of Court Act 1981 No court may require a person to
disclose, nor is any person guilty of contempt of court for refusing to
disclose the source of information contained in a publication for which he
is responsible, unless it is established to the satisfaction of the court that
it is necessary in the
interests of justice
national security or
for the prevention of disorder and crime.
b) Police and Criminal Evidence Act 1984
233
234
PCC CODE:
235
PAYMENTS TO SOURCES:
i) No payments to witnesses or potential witnesses in current
criminal proceedings except where material OUGHT TO BE
PUBLISHED IN THE PUBLIC INTEREST AND THERE IS AN
OVERRIDING NEED TO MAKE OR PROMISE TO MAKE A
PAYMENT FOR THIS TO BE DONE.
Must take every possible step to ensure no influence on the
evidence those witnesses may give and disclose offer to both
prosecution and defence.
ii) No payments for information or pictures to convicted or
confessed criminal or their associates where stories, pictures or
information seek to exploit a particular crime or glorify crime in
general, except where OUGHT TO BE PUBLISHED IN THE
PUBLIC INTEREST AND PAYMENT IS NECESSARY FOR THIS
TO BE DONE.
BBC Producers Guidelines take the same approach.
236
Privacy
Harassment
Children
Hospitals
Friends and acquaintances of criminals
Criminals
Public interest includes:
i) Detecting or exposing crime or serious impropriety
ii) Protecting public health and safety
iii) Preventing the public being misled by an action or statement
of a person/organisation
There is public interest in freedom of expression itself,
consideration to the extent that information already in public
domain or will become so. Cases re under 16s must show an
exceptional public interest