Wednesday, 15 December 2010

Rules and Regulations - I would have gotten away with it!

As with any job, profession anything there are always rules and regulations. Journalism is no different. Not only is it affected by the law, it is also closely scrutinised by other organisations that set rules about conduct.
There are a few different organisations that have different codes of practice but all essentially serve the same purpose, to ensure that journalists adhere to a correct code of conduct
The different organisations that enforce codes of practice are:

PCC - Press complaints commission - Editor's code of practice.
Ofcom Broadcasting Code.
BBC Producer Guidlines.

These organisations are in practice to regulate the media and enforce that the correct conduct is followed in order to carry out a job.

Ofcom is basically the regulatory body for the media. It has a stutory right to promote competitions and protect consumers of the media against output which may be seen as harmful or offensive material. It has the power to impose fines and even remove licenses. It is also responsible for the management, regulation, assignment and licensing of the media. It licenses any broadcasting output and sometimes the proces is more difficult than others.
PCC and BBC broadcasting guidelines are both systems of self regulation. The PCC, or press complaints commission is a self regulating system for newspapers and magazines or any form of print journalism. Unlike Ofcom it has no legal power, it cannot impose fines or punishments. Everything to do with PCC is volutary. Newspapers and magazines adhere to the conditions and pay for the body voluntrily, meaning they CAN go against them.

The PCC code of practice has calls for correct code of conduct on the following:
2.Opportunity to reply
5.Intrusion into grief or shock
7.Children in sex cases
9.Reporting of crime
11.Victims of sexual assault
13.Financial journalism
14.Confidential sources
15.Witness payments in criminal trials
16.Payment to criminals

The BBC editorial guideline is also a self regulating body of the media. Just like PCC it also covers many different sections about the code of conduct a journalist should use. It again has know legal power, hence the name, guidline. It can only boast to guide journalists in to exercising the correct conduct.
The most powerful of the three bodies is of course Ofcom. As that is the only one with statutory power. If their code is broken then they can enfore punishments. An example would be when ITV's Ant and Dec were fined £5.6 million for abusing a phone in competition in order to make money.
Ofcom calls for absolute accuracy and impartiality. If neither are present in a boradcast, story, report whatever, then there is a cause for investigation.

Just like any other form of law or rule breaking Ofcom is there to stop a journalist from stepping outside the area of being a normal everyday member of society. A journalist is not above the law or any human right act because they have the same rights as any other citizen. Just because they are on television doesn't mean they can use it to do what they want. This is why Ofcom and the other self regulatory bodies are there. To keep proper conduct in place and to remind journalists that they are merely 'the eyes and ears of the general public' nothing more.

Freedom of Information

The freedom of information act or FOI act is one of the greatest tools ever handed to the journalist for weeding out stories. The FOI was created as an act by Parliament to introduce a right to know.
The basic principle of the FOI is:

"Any person making a request for information to a public authority is entitled to have that information communicated to him."

Requests must be made in writing and are completely free.

The FOI was brought in by Tony Blair and New Labour, although Blair regrets bringing it in as he believes Parliament can no longer have conversations without it being brought into publication by the FOI act and for journalists to use it in stories.
It isn't just the Government who are covered by FOI. But there are over 130,000 public bodies covered by the act for example the NHS, board of education, etc.
Over 100,000 requests are made each year, with only about 12% being from journalists. Once a request is made the body has 20 days to respond, but they do not have to release the information if the it is going to cost the 0ver £600. The information becomes EXEMPT from being public knowledge.

There are two different types of expemtions...
Absolute and Qualified.

Absolute Exemptions
These have no public interest test attached to them the information is simply unattainable. Requests are absolute exemptions if the information:
+ Is attainable elsewhere.
+ Is given in confidence.
+ Is obtained from court records (contempt)
+ Which the applicant could obtain under the Data Protection Act 1998; or where release would breach the data protection principles.

+ Which would breach contempt of court or human rights act.
+ Where disclosure would disrupt the conduct of public affairs.
+ Relating to secutrity matters.

Qualified Exemptions
These are exemptions that are tested against the public interest test. Basically the authority the request is made to must decide whether information is first exempt, then they must decide whether to disclose the information based on whether the public would desire that information to be disclosed.
Qualified exemptions can be divided into two further categories - Harmful (likely to cause harm) and class (information to do with particular classes).

Class-based exemptions
Information intended for future publication
Information is exempt if required for the purpose of safeguarding national security
Information held for purposes of investigations and proceedings conducted by public authorities
Information relating to the formation of government policy, ministerial communications, advice from government legal officers, and the operation of any ministerial private office
Information that relates to communications with members of the Royal family.
Prevents overlap between FoI Act and regulations requiring disclosure of environmental information.
Information covered by professional legal privilege
Trade secrets

Harm-based exemptions
Under these exemptions the exemption applies (subject to the public interest test) if complying with the duty under s.1 would or would be likely to:

Prejudice international relations
Prejudice relations between any administration in the United Kingdom and any other such administration
Prejudice the economic interests of the UK
Prejudice law enforcement

Prejudice the auditing functions of any public authorities
In the reasonable opinion of a qualified person: prejudice the effective conduct of public affairs; prejudice collective responsibility; or inhibit the free and frank provision of advice or exchange of views
Endanger physical or mental health, or endanger the safety of the individual
Prejudice commercial interests

Personally I think society benefits from the FOI act. As a journalist having the responsibilty to be the eyes and ears of the public it enables us to make things known without being fed selective bits of information from and interviewee (ie a press officer.) The freedom of information act has unveiled many secrets that people have tried to keep hidden. For instance, one of the biggest examples I could use is the scandal of Government expenses. It was unveiled that members of the Government were listing things under expenses that shouldn't have been (new houses, duck ponds these are just examples). All I can say is this would be beneficial to the general public to know.
Just because certain bodies don't want you to know... doesn't mean you shouldn't.

Tuesday, 14 December 2010

Confidentiality - Shhh. Do you mind?

Section 8 of the Human Rights act states that EVERYONE has a right to privacy and the right to enjoy a private family life.
So what does that mean for journalists... Who yes. Make a living of delving into your dirty laundry to share things that SHOULD be known. Unfortunately the law says that a person who has obtained information in confidence must not take unfair advantage of it. Which means that journalists have to be careful when taking information from a source.

In Mcnae's it is stated that, traditionally, there are three elements of a breach of confidence. These are:

+ The information muct have the 'necessary quality of confidence' - even though information can be freely used if it is in the public domain, if the information is obtained in a way that breaches confidence then it cannot be used.
+ The information must have been imparted in circumstances imposing an obligation of confidence - Where there is an obligation to keep information private then you cannot use that information freely.
+ There must be an unauthorised use of that information to the detriment of the part communicating it - The person to whom the confidence is owned must not suffer in any form of detriment.

A claimant must prove EVERY single point in order to prove a breach has been made.
In some cases a breach may not have been made but a claimant may worry about a possible breach. If he/she has reason to suspect that this is going to happen they can get an injunction from a court against the information to stop it from being published. These are usually expensive and time sensitive. Once the injunction has been placed then the case is usually argued in front of a judge.

The law of confidence basically protects companies, organisations or even individuals against information obtained in confidential circumstances. There are usually only three areas which a journalist should be concerned with:

Revealing state secrets or ‘official’ secrets
•Revealing commercial secrets
•Revealing facts about a person they would have expected to remain private.

'Official secrets' are protected by the Official secrets acts and usually involve the military or intelligence. Be wary when using photo's of military proceedings. Although it is rarely used as a jury find it hard to shop a 'whistle blower'.
Commercial secrets are usually protected by employer contracts. It is unusual for an employee taking information about a company to use it in detriment to that company. However if a publication is balanced against public interest then the story proves to b desirable and therefore unconfidential.

Personal/ private
•Risk an injunction (legal stop) by seeking a response to the allegation


•Publish material and take the risk of legal action for breach of confidence or possibly defamation is there is inaccuracy.

Gagging clauses.
In most cases employees owe their employees an confidence. A gagging clause is a clause (a condition) set out in the employment contract of an employee ( normally senior)
It prevents the employee from discussing certain details considered important or sensitive with third parties.
While designed to protect the company from damage caused by leaks which could impact on their share price (takeover plans, insider trading, negative forecasts) they have become known to be used in the prevention of whistleblowing.

Whistleblowing is when an employee brings to the attention of the public/media actions carried out by the organisation which may be illegal or contrary to the common good. (inflated prices, dangerous products, unsafe practices etc etc etc)
By gagging the employees they prevent such information from coming to public attention. Many countries are enacting pro whistleblowing legislation to counter gagging clauses in the wake of the various financial scandals.

However, once again we come back to public interest. If something SHOULD be known then it is a reporters responsibilty to share. In this case you must make the employee fully aware of what you are doing/ try to protect them.

If they are happy to continue... Don't argue... Just listen!

********* Important ***********

These are some important cases highlighting privacy and confidentiality.

Max Mosley v News of the World- In 2008 the News of the World printed a story about Max Mosley having an orgy with 5 women saying it had a Nazi theme and he was dressed as a Nazi. But the High Court ruled that there was no public interest in revealing this, so Mosley had a right of privacy and damages were awarded.

Naomi Campbell v Mirror Group 2004 - The Mirror had published a couple of photographs of Naomi Campbell leaving a meeting for Narcotics Anonymous and of course reported her as trying to get over a drug addiction. The House of Lords ruled there was a breach of confidence, that she could have expected privacy to be able to attend such a meeting as it is 'anonymous'.

Monday, 13 December 2010

Copyright - Where have I seen that before!

Copyright is an area of the law that is changing rapidly. The law of copyright is there to protect intellectual property - the products of skill, labour, time and creativity i.e their creative WORK. It is important to remember that copyright doesn't protect IDEAS but the actual work as a result of those ideas.
The definition of copyright is

"the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same."

Copyright is a MASSIVE part of journalism, it has allowed journalism as a business to grow, seeing as journalism exists as a business by selling information it attains. Journalists turn information into sellable facts by applying an angle or turning those facts into a story - that is protected by copyright. An originator can print, publish, perform, photograph and film material and authorise others to do so and it is only the originator who has that power over it, until they decide to sell it. Once they sell for a fee or wage that property no longer belongs to them but the person they have sold it to.

There are certain defences that a journalist has from breaching the laws of copyright. You will notice that in many newspapers reporters will take information from one paper and put it in their own. In order to do this they must fully credit the original source even if it is a rival paper. The rules of fair dealing allow this to a certain point.

Fair dealing allows a journalist to 'lift' certain facts from a story (for example, from another newspaper) in order to report 'current events' there are certain rules for this though. When looking at fair dealing it must be found that in order to be able to a lift another story from a newspaper without infringing upon copyright the story must be in the interest of the public, the work CANNOT be passed off as your own and the original source should be accredited and usage of the story must be fair. It cannot be greater that the originators.

Creative commons is another way to protect against copyright. It allows photographs etc to be used but a publisher must inform and credit the original source. Also, they must share profits if at any point they arise.

As with any other laws journalists may find themselves in trouble with from time to time. The most important thing to remember is to check... and then check again. Learn to recognise risk, and know what to do when it arises.

Wednesday, 1 December 2010

Defamation and Libel - "What did you say about me!?"

Libel and Defamation are a problem that a journalist faces everyday, whether it be in print broadcast or even just reporting the courts.
Libel is all to do with damaging the reputation of members of society. Everyone has a reputation in the eyes of the people that know them. Celebrities and people who hold a public office even more so. In many cases these reputations (good) are worth a lot of money. If a journalist comes along and completely rips that reputation apart with no good reason to do so (public interest) then that person can sue for libel. It is important to recognise that it doesn't have to be proved that the reputation was ACTUALLY ruined, it only has to be proved that the reputation COULD HAVE been ruined for a libel case to be successful.
A journalist becomes libel through publication identification and defamation. This means that a defamatory comment must be published with a clear identification of who the comment has been made about. a comment that can be seen to be defamatory. A comment becomes defamatory when a reasonable man thinks the statement 'tends' to -

+ Lower someone in the estimation of right thinking members of the public.
+ Cause someone to be shunned or avoided.
+ Disparage someone in their trade, office or profession.
+ Expose someone to hatred, ridicule or contempt.

There are so many examples of cases for defamation and libel because in a journalist's life it is such a common occurance. A big case that highlights defamation or libel in journalism is:

Rahamin vs. Channel 4/ITN

In July 1998 channel 4 broadcast a major news report on the 7o’clock news that made allegations against locum consultant Joseph Rahamin that he maintained were completely untrue and defamatory as they damaged both his personal and professional reputations. The accusations made on the broadcast were that:

1. First that Mr. Rahamim was probably responsible for the death or serious injury of many of his patients including two who had died during their operations.
2. Secondly that Mr Rahamim was not competent to practice as a consultant thoracic surgeon and that he was seriously under qualified and inadequately trained.
3. Thirdly that he had fraudulently obtained his post as a Consultant by misrepresenting his qualifications and employment history.
4. Fourthly that Mr. Rahamim had dishonestly sent out letters to local GP’s in which he had falsely described himself as an FRCS
5. Fifthly that he had dishonestly concealed from his employers the fact that as a result of injuries sustained in a road accident he was unable to operate safely and
6. Lastly that by reason of these matters the GMC ought to have Mr. Rahamim struck off.

As a result of this broadcast Mr. Rahamim was subjected to a thorough investigation both by the Plymouth NHS Trust and a Government appointed independant enquiry which would automatically damage (or be seen to damage) his professional reputation as a medical consultant. But these confirmed that there was no reason to question his fitness to practice as a Consultant Thoracic Surgeon.
Shortly after the Channel 4 broadcast ITN published these same allegations on their news archive website under the heading "Bogus Doctor." Regrettably the allegations resurfaced in a programme entitled "Great Frauds" which was broadcast overseas where it was seen by relatives and friends of Mr. Rahamim. They were also distributed in this country in the form of a video and DVD, all of which greatly damaged his personal relationship and COULD have subjected him to hatred.
Mr. Rahamin won £1 million in damages as the allegations were wholly defamatory.

A more recent account of defamation that may make it clearer for young 'budding journalists' BBC news recently reported on solicitors in Cardiff taking defamatory cases arising because of the social networking site 'facebook.' It was stated in the report that anyone can be a publisher as once something is written down on facebook it is accessible by millions of people.
One example given in the story was of a woman who worked with children. Someone who she wasn't friends with wrote on her 'wall' making allegations of violence about her. This lead to an investigation of her by her employer which can be seen to damage her professional reputation or could expose her to hatred.

Something to remember when talking about the internet is that once something is published it can be passed on downloaded over and over again until it doesn't even matter if the sourse of the defamatory comment is removed. It is essentially there forever.

Even if it isn't an outright allegation that someone has made journalist also face subtle hazards that could land them face first in libel. Other things that journalist should beware of are innuendoes, inferences and defamation in pictures (wallpapering). Innuendoes in defamation can occur when a statement 'hints' at a defamatory suggestion that only people involved with the matter or knowledge would understand. Inferences in defamation are made when there is a secondary meaning behind the initial statement that is made.
Defamation in pictures is a big problem in television. If a picture of someone who can be clearly identified, for instance by strapline, is incorrectly paired with a voiceover to a story about a peadophile then it could be taken that that person is the accused peadophile - thus damaging their reputation. Once it is broadcasted it is technically a publication. This is commonly known as juxtaposition defamation, or puzzle defamation.

There ARE defences against libel cases. But you can only use these under certain circumstances.

Justification - The allegations made by the defendant against the claimant are true, and can be proved to be true in court. The standard of proof is that of civil law - on the balance of probabilities. It is solely the defendants responsibilty to prove that the allegations made are true, NOT the claimants.

Fair comment - It must be proved to be an honest opinion based on fact. It also must be on a matter that is regarded as 'public interest'

Privilege - Absolute privilege is only enjoyed by journalists when court reporting. Even then a report must be fast (as it happens) accurate (word for word of the judicial proceedings) and fair (a fair representation not prejudice) if any of these cannot be found then a journalist loses this privilege.
- Qualified privilege is a little more simple. It applies to ares of public interest. If knowledge published is deemed to be in the interest of the public to know then it is a journalists responsibilty to make it known as 'the eyes and ears' of the general public.

Reynolds defence
The defence was raised in the case Reynolds vs. Times Newspaper where it was found that a journalist could not be sued if it was found that they had a duty to publish an allegation even if it is wrong.
The reynolds defence will be judged against TEN criteria:

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.

A journalist should always be aware when publishing material of the risk that may be around. They should always check with the editor as they are the absolute. Only then when they have checked and double checked the facts can they have the rights to the defence.

Sunday, 28 November 2010

What journalists should know about law - And reporting on it

UK law is such a broad subject broken down into hundreds and hundreds of different sections (probably more). One of the most important things you should know the difference between? Criminal and Civil law.
Criminal law is the body of law pertaining to crimes against the the state or sovereign this is shown when criminal cases are listed as (for example) "R vs. Thomas." The R in the listing refers to Rex or Regina meaning King or Queen. These offences are usually harmful to the entire society.
Civil law is the opposite. It deals with disputes between individuals or organisations usually about financial matters or other entitlements. Civil cases will usually deal with acts or omissions that lead to a certain group or party being able to sue for a settlement but criminal cases will deal soley with guilty acts.
Although there are clear differences between the two in practice they can overlap. For instance in civil law an omission that entitles a party to a claim can also be an offence so it is important that journalists know the differences between the two to avoid prejudice or contempt. For instance cases involving breaches of copyright fall under civil law but they can be dealt with in criminal courts if thought to be in breach of criminal laws.
Basic differences between the two can be found within the terminology. For instance, in criminal law a journalist should refer to the individual who is on trial as the defendant. Whereas the individual or organisation involved with a civil law case would be a claimant. Small slip ups like this could make a render a journalist as being 'libel'.
Within these divisions of law there are different types of offences. The three main categories of offences are:

+ Indictable only offences - The most serious of the offences. Punishable by the most severe sentences like long prison terms. Offences that may fall under this category could be murder or rape. They will usually be tried at a crown court by a judge and jury.

+ Either way offences - Its all in the name really, not the most serious but in some cases can be extremely distressing and harmful. It all depends on the facts of the case as to whether it is tried at a crown court or a magistrates. The defendant does have a right to request a jury in which case it would go to trial at a crown court. Offences that could be either way offences are robbery, assault, sexual assault etc.

+ Summary offences - These are considered the most minor offences. Tried at a magistrates courts where the defendant has no right to a jury but benefits from the whole process being dealt with quicker. Offences that fall into this category are usually small offences such as common assault, drunkenness etc.

The two different courts mentioned here have significant differences. Obviously I have established in explaining the offences that the Crown court is responsible for trying more serious offences. But it also serves many other purposes, the crown court allows the defendant to a right of a jury as it is essential (with the consequence of harsher sentencing) that it must be proved beyone all reasonable doubt that the defendant has committed that crime. However it is also responsible for hearing appeals and it can simply deal with cases sent for sentencing from magistrates courts.
It is important to remember that all court cases are heard first at the magistrates courts for a summary hearing, they can then be sent on the the crown courts depending on the seriousness of the crime. I will cover the courts in more detail when taling about reporting of the courts in a later blog.

As I mentioned earlier journalists enjoy the same rights as any other civillian. In the UK that means freedom of expression and the principle that a journalist can report anything that is believed to be in the interest of the public. So these can be used in favour of the journalist. Another principle is that justice must be seen to be done. This entitles a journalist to report the courts in certain cases as the 'eyes and ears' of the general public.

Thursday, 11 November 2010

Media Law - A cheeky introduction to the freedoms we enjoy and why we are so closely entwined with the law.

Us journalists are sometimes hated, sometimes judged, sometimes we're just regarded as right nosey old parkers. Its not that we're nosey, we just have a responsibility to inform, expose wrongdoing and let you 'the majority' know what is going on in YOUR democratic society. But we are restricted by laws just like everyone else and this little note is to let you good people (but also to help me in my upcoming exam) know what's what in our little corner of the law. Media law.
Even though critisised for what they do and bound by the same laws as an ordinary citizen, a journalist holds an important role in democratic society. Their importance was emphasised in the ruling that a press conference was in fact a public meeting. A ruling in which a statement was made by Lord Bingham pretty much saying that as a democracy the majority of society cannot directly participate in decisions that are made. They can only have their say indirectly in the form of voting, pressure groups, express their opinions etc. They can only do this if they have been informed about these decisions and actions first. How do they do this? Well in modern society you can know anything thats going on in Government simply by reading the paper, watching the news or at a click of a mouse (the internet). It was also said that if modern society was to work properly that the media, including the press, need to be 'free, active. professional and enquiring' if they are to be 'the eyes and ears' of the public.
The biggest freedom that journalists and every other resident of the UK can enjoy is the freedom of expression. This includes the right to freely communicate information and ideas. However, even this can be restricted by the law. Laws such as 'Contempt of Court act 1981" can prevent or prolong a report on a court case. Staturary restrictions on this freedom have progressed and there are many that can prove difficult for journalists to get around. But without a written constitution in the UK the freedom of expression has depended on two things - a jury trial and the rule against prior restraint.
A jury trial refers to several incidents in the past being brought to trial in front of 12 independently minded jurors where journalist's have been aquitted of flagrant disregards of the law. It has been argued that the freedom of expressions is merely the right to say or write anything that 12 ordinary people deem SHOULD be said. Whether factually in breach of the laws or not.

The most important factor that a journalist should be concerned about when looking at law... Always learn to recognise risk and then be able to seek advice before publishing!