Finally I am blogging about a lecture the week that it happened! Hurrah. I wish I could say my day has been made up of these little victories, but alas, it has been yet another fairly unproductive and uneventful day. Still, I'll chalk this one up in the win column and, if I can do another HCJ blog and book my ticket home for the weekend, call it a good day.
So this particular blog will be coming at you in two parts. This is the first, an actual discussion on the events of the lecture and information on the topic of CONFIDENTIALITY. The second part will be a review of this weeks WINOL production by the second years.
CONFIDENTIALITY
Article 8 of the European Convention on Human Rights protects the privacy of an individual, and guarantees everyone the right to enjoyment of normal family life. If anyone feels that their right has been infringed upon, they can take one of many actions. This blog will focus on the action for Breach of Confidence.
Basically, law states that anyone who receives confidential information must not take unfair advantage of it. It is comprised of three parts:
- It must have the necessary quality of confidence
- The information must be conveyed in circumstances imposing an obligation of confidence
- The information must have been communicated further without authorisation, and to the detriment of the party that originally communicated it.
All three aspects must be present for a breach of confidence to occur, and if it does so then those publishing such information are likely to have action taken against them.
The biggest action against a breach of confidence is an injunction. This can be used when the person to whom the confidence is owed discovers, prior to publication, that the information is intended to be distributed. In this case, if an injunction is granted by a court, the information cannot be published by any source, and if it is then the offending organisation will be fined. Injunctions are, however, temporary, and can be lifted if the publisher can make a compelling case in court as to why the story should be printed. They are only intended to prevent the story being run until such a time as the case can be heard and decided in full.
If an injunction is sought, the individual seeking the injunction must give an undertaking that he will pay any damages to the defendant, if the injunction is proved to be wrongly granted in court.
A court can also order a journalist to declare the source of their information, or destroy the confidential matter.
If the piece is published, a publication can be ordered to pay some or all of the profits they received to the offended party. They may also be able to claim damages from the publisher.
Of course, if the material to be published is "in the public interest", then a judge is unlikely to grant an injunction. This is covered by Section 12 of the Human Rights Act, which defends the freedom of speech. A judge must balance whether it is more in the public interest to protect privacy or disclose important information.
Thursday 27 October 2011
Further Political Philosophy - HCJ Week Four
So week four was seminar time, and having missed the first seminar for this module due to illness in week 2, it was an interesting experience. The students take it in turns to lead the sessions, further discussing the previous weeks reading and lectures.
In my previous blog on this topic I discussed at length the work of Plato, Hobbes and Locke. In the seminar we largely focused on Hobbes and Locke, and the as yet unmentioned Macchiavelli, so I'm going to focus on summarising Macchiavelli.
MACCHIAVELLI
Macchiavelli's work was more or less practical observations on how best to achieve and retain power. His two major works were 'The Prince' and 'The Discourse'. To get a complete picture of his philosophy, it is necessary to read both, as reading either alone will give you a pretty narrow view of what he was all about.
Macchiavelli's views were somewhat controversial, but in many ways he made a lot of sense. His basic argument in The Prince is that a leader must do whatever is necessary to maintain power, forget about what is good and bad, right and wrong, and do what is required to keep power. So for a leader, the number one priority and focus must be the retention of power. This sounds extreme, however it could be argued that many or even all leaders follow this theory to some extent, whether its establishing a military dictatorship or making empty promises in election manifestos, most all leaders will do what they deem necessarry to retain their position of power.
Macchiavelli suggested that the best way to lead was by the generation of fear, as: "love is fickle, but fear is constant". However he also made it clear that you must avoid being hated, as that is bound to lose you power. So the overall picture is do whatever is necessarry to retain power, let people fear you, but don't let them hate you.
I'm gonna leave it at that for this post, keep 'em wanting more and all that. Plus this has the added bonus of finally achieving a reasonably concise blog post. Expect two or three more before the end of today though, I've got some catching up to do...
In my previous blog on this topic I discussed at length the work of Plato, Hobbes and Locke. In the seminar we largely focused on Hobbes and Locke, and the as yet unmentioned Macchiavelli, so I'm going to focus on summarising Macchiavelli.
MACCHIAVELLI
Macchiavelli's work was more or less practical observations on how best to achieve and retain power. His two major works were 'The Prince' and 'The Discourse'. To get a complete picture of his philosophy, it is necessary to read both, as reading either alone will give you a pretty narrow view of what he was all about.
Macchiavelli's views were somewhat controversial, but in many ways he made a lot of sense. His basic argument in The Prince is that a leader must do whatever is necessary to maintain power, forget about what is good and bad, right and wrong, and do what is required to keep power. So for a leader, the number one priority and focus must be the retention of power. This sounds extreme, however it could be argued that many or even all leaders follow this theory to some extent, whether its establishing a military dictatorship or making empty promises in election manifestos, most all leaders will do what they deem necessarry to retain their position of power.
Macchiavelli suggested that the best way to lead was by the generation of fear, as: "love is fickle, but fear is constant". However he also made it clear that you must avoid being hated, as that is bound to lose you power. So the overall picture is do whatever is necessarry to retain power, let people fear you, but don't let them hate you.
I'm gonna leave it at that for this post, keep 'em wanting more and all that. Plus this has the added bonus of finally achieving a reasonably concise blog post. Expect two or three more before the end of today though, I've got some catching up to do...
Wednesday 26 October 2011
Playing Games - Media Law Week Four
Having been covering the area of defamation in our media law lectures, I have been keeping an eye on the newspapers to see if I could spot any potentially defamatory statements creeping into articles. I hadn't spotted much, until today, when procrastination became inspiration.
I stumbled across this article on the BBC Sport website, whilst carrying out my daily routine of seeing what is going on in the world of my beloved football:
http://news.bbc.co.uk/sport1/hi/football/15455362.stm
For those who don't know, Carlos Tevez is a professional footballer who has had something of a turbulent time in England. He has played for West Ham, Manchester United and Manchester City, and there has been plenty of controversy surrounding him in his spells at these clubs (admittedly, not all of his own creation).
He currently warms the bench of Manchester City, having spent the summer insisting he was leaving, and then refusing to go anywhere. About two weeks ago now he allegedly refused to play against German giants Bayern Munich in the Champions League (prestigious European club football competition). He refutes this claim and is now looking into suing his own manager for DEFAMATION. As it was his manager, Roberto Mancini, who claimed he would not play against Bayern Munich, and there is arguably a reasonable case. As the comment came in a post match interview on the telly, this particular case would fall into libel. Spoken words may be transient, but not when Guy Mowbray (or any other post match interviewer) is pointing a microphone in your face and there's a camera present. The recording makes it permanent, and that makes it libel (as opposed to slander).
Libel requires three things - Defamation, Publication and Identification.
Identification and Publication are pretty concrete here, post match interviews are widely distributed, on TV, Radio and in Papers, so there's plenty there in the way of publication. Identification is also pretty unquestionable, Carlos Tevez the Manchester City forward is specific, and unlikely to muddle the case by defaming multiple people (not that many others by that name would be too offended by the suggestion they refused to play for Manchester City, them being evil and that).
So the point of debate here is whether or not the suggestion that Tevez refused to play for the club that pays his wages amounts to defamation.
I would suggest that it does. It definitely exposes him to hatred and contempt, the reactions of City fans to his alleged refusal to play confirming that. It also would clearly lower him in the estimation of right thinking members of society, as refusing to do the job you get paid £250 000 a week to do is pretty disgraceful.
So it satisfies the criteria, Tevez certainly has a case. That is, of course, unless Mancini can prove that his comment is true, 'on the balance of probabilities'.
All this of course is speculation, it doesn't look likely to make it to court.
In other news, I'm going to endeavour to reduce my use of parentheses.
I stumbled across this article on the BBC Sport website, whilst carrying out my daily routine of seeing what is going on in the world of my beloved football:
http://news.bbc.co.uk/sport1/hi/football/15455362.stm
For those who don't know, Carlos Tevez is a professional footballer who has had something of a turbulent time in England. He has played for West Ham, Manchester United and Manchester City, and there has been plenty of controversy surrounding him in his spells at these clubs (admittedly, not all of his own creation).
He currently warms the bench of Manchester City, having spent the summer insisting he was leaving, and then refusing to go anywhere. About two weeks ago now he allegedly refused to play against German giants Bayern Munich in the Champions League (prestigious European club football competition). He refutes this claim and is now looking into suing his own manager for DEFAMATION. As it was his manager, Roberto Mancini, who claimed he would not play against Bayern Munich, and there is arguably a reasonable case. As the comment came in a post match interview on the telly, this particular case would fall into libel. Spoken words may be transient, but not when Guy Mowbray (or any other post match interviewer) is pointing a microphone in your face and there's a camera present. The recording makes it permanent, and that makes it libel (as opposed to slander).
Libel requires three things - Defamation, Publication and Identification.
Identification and Publication are pretty concrete here, post match interviews are widely distributed, on TV, Radio and in Papers, so there's plenty there in the way of publication. Identification is also pretty unquestionable, Carlos Tevez the Manchester City forward is specific, and unlikely to muddle the case by defaming multiple people (not that many others by that name would be too offended by the suggestion they refused to play for Manchester City, them being evil and that).
So the point of debate here is whether or not the suggestion that Tevez refused to play for the club that pays his wages amounts to defamation.
I would suggest that it does. It definitely exposes him to hatred and contempt, the reactions of City fans to his alleged refusal to play confirming that. It also would clearly lower him in the estimation of right thinking members of society, as refusing to do the job you get paid £250 000 a week to do is pretty disgraceful.
So it satisfies the criteria, Tevez certainly has a case. That is, of course, unless Mancini can prove that his comment is true, 'on the balance of probabilities'.
All this of course is speculation, it doesn't look likely to make it to court.
In other news, I'm going to endeavour to reduce my use of parentheses.
Friday 21 October 2011
What makes a good journalist?
A journalist holds an important role in society, as they have the responsibility of delivering the news and events of the world to an audience of millions. A journalist can hold any individual or organisation responsible for their actions in public, and therefore have an important role in maintaining society. This is a significant amount of power for anyone to have at their fingertips, and as such, there are very high standards for what makes a good journalist.
The most basic requirement, in my opinion, is an enthusiastic interest and in depth knowledge of the area they cover. Whatever field a journalist works in, if they are not informed on the matters they are required to write about, or have little interest in them, the pieces they produce will be severely lacking.
Another basic criterion for a good journalist is that they have a wide ranging vocabulary, understanding of grammar and punctuation, a distinct writing style and the ability to spell. Of course, everyone makes mistakes from time to time, but a good grasp of the english language is crucial in delivering high quality journalism.
Additionally, as we have been reminded on a daily basis, you've got to be fast, accurate and fair. These qualities have two benefits, the article will be strong, and you won't get sued (at least not as much).
Finally, I would suggest a good journalist is opinionated, as this allows interesting comment where the opportunity presents itself, but they must also be able to shelve their opinions when necessary to keep their writing fair.
And I guess there's nothing wrong with a bit of wit as well.
Thursday 20 October 2011
Why should I obey the law? History and Context of Journalism, Week Three
So the HCJ side of the course is moving quiiiiiiiiiiickly, and having been ill in week two, there was some catching up to do. Here I'm going to try and summarise Week Three's learnings in a more concise post than my others, bearing in mind that we've been trying to be more economic with words in our Precision English lectures. Though four lines for an introductory paragraph doesn't bode particularly well. Here we go...
So week three was political philosophy, and there's a few bright thinkers involved. Plato, Hobbes, Locke and Rousseau are the individuals we focused on.
PLATO - Couple of major points, The Crito and The Cave (not the mumford and sons track, though you could link the two). The Cave will come back at the end of the blog, first off:
Crito - a Dialogue written by Plato. It takes place between two people, Socrates (merely a character) and Crito. Socrates is imprisoned and Crito offers to help him escape. Socrates' argument for refusing this generous offer is the philosophical point in question, and an interesting one. Socrates says that by living in the city of Athens, he is bound by its laws, his dwelling there can be seen as him voluntarily entering into a contract with the city to obey its laws. If he were to attempt escape, he would be destroying the entire city, as if one man disobeys the laws then he is setting an example to others, like a domino, it could lead to the crumbling of an entire city, all on the basis of one man breaking one law. Anyone who switched on the news in August saw the result of such an event in the London Riots, many people jumping on the violent, looting bandwagon, for no sensible reason.
This then, was the first occasion on which any philosopher touched on the idea of the Social Contract. This idea was picked up by...
THOMAS HOBBES - Much further down the line, in 1651, he published his 'Leviathan', examining the idea of the Social Contract.
The Leviathan is a biblical creature, a big monstrous thing, originally a sea monster referred to extensively in the book of Job. Hobbes' Leviathan does not refer to this biblical sea monster, but a commonwealth.
Hobbes' view on social contract is shaped by his context, written during the English Civil War, and so his thoughts are influenced by the violence that surrounded him. As such, Hobbes believed that human nature was essentially aggressive, and in the 'state of nature' (a time before any form of social contract, without law or government) the world would regress to a war of all against all. As such, Hobbes' suggested that mankind required a central, ruling figure, to avoid this situation. In the book, the Leviathan sets out a contact between himself and his subjects, trading all power in return for his protection. This book sets out a limited democracy, with the people able to nominate their initial leader, however from there, the succession of power is determined by the sovereign. It strongly supports the concept of a monarchy and is firmly against the separation of powers, Hobbes arguing that the Civil War took place as a result of the division of power between Kings, Lords and Commons. However, there was some limitation to the Leviathan's power, as he stated that if he failed to fulfil his side of the contract then he could be removed, as well as each subject having the fundamental right to self preservation, entitled to resist the monarchy in self defence. Basically, Hobbes believed in a monarchy as government, with the divine right of kings, and desired a submissive public.
LOCKE - Also discussed social contract, but coming from a completely different angle than Hobbes. His thoughts on the matter are contained within his two 'Treatises on Government'.
Locke had a far more optimistic view of human nature than Hobbes, believing that all humans followed natural laws that were intuitive, "interwoven in the constitution of the human mind". Therefore Locke's view of the state of nature was of a peaceful place, in vast contrast to Hobbes'. Despite these natural laws, Locke acknowledged the need for a governing state, as he was aware that disputes could arise over property, and as such a judge like figure was required. Locke believed in the necessity of government, however thought that the people should only be governed consentually, and that laws should be in place to restrict governmental power, not civil liberties. He also argued that taxes could not be levied without public consent, a principle that became a cornerstone of the manifesto used in the American revolution, and his thinking went on to provide a backbone to the US constitution. Overview - Locke believed in the necessity of a government, but in a far more democratic style, and viewed human nature as basically positive.
ROUSSEAU - Some similar views to Locke.
Believed that the state of nature was a utopian paradise, argued that civilisation makes humans unhappy. Saw some sort of fundamental conscience in humans, and thought that the public must be part of the creation of legislature, as they are the ones who must live by the laws. Believed law should not be restrictive as there is a general will and acceptance of what is right amongst uhmans, therefore the general will of the people should become law.
PLATO - The Cave
Plato had a theory named The Republic, or The Cave theory, which examines the way humans think, and the general make up of the populus.
Plato suggested that all people are in a cave, and that our reality is merely shadow puppets on the wall of this cave, it is not in fact reality. The theory states that this 'cave' existence is a poor replica of the real, perfect world, which humans could see if only we could leave the cave. Plato argued that only philosophers could leave the cave and access the perfect world, and it is from here that Plato discovered "the forms". The Forms are essentially three parts which combine to make the human soul. These forms are Reason, Spirit and Desire. Plato suggests that all people have some awareness of the forms, but cannot understand them fully, as demonstrated by the fact that no man can imagine perfection. Which of these 'forms' dominates our personality dictates our understanding of them, and our being.
- Reason - If reason dominates, we can understand the forms and the perfect reality, hence the view that philosophers can access this perfect world.
- Spirit - If spirit dictates, we seek honour and pride, and are aggressive people.
- Desire - If desire dominates, we are distracted by the obsession with material gain.
Plato went on to say that one day the Philosophers, who have accessed the perfect world, will return to the cave and educate those watching shadows.
Next blog will analyse Locke and Hobbes further, compared with Machiavelli.
That one is likely to be even less concise.
So week three was political philosophy, and there's a few bright thinkers involved. Plato, Hobbes, Locke and Rousseau are the individuals we focused on.
PLATO - Couple of major points, The Crito and The Cave (not the mumford and sons track, though you could link the two). The Cave will come back at the end of the blog, first off:
Crito - a Dialogue written by Plato. It takes place between two people, Socrates (merely a character) and Crito. Socrates is imprisoned and Crito offers to help him escape. Socrates' argument for refusing this generous offer is the philosophical point in question, and an interesting one. Socrates says that by living in the city of Athens, he is bound by its laws, his dwelling there can be seen as him voluntarily entering into a contract with the city to obey its laws. If he were to attempt escape, he would be destroying the entire city, as if one man disobeys the laws then he is setting an example to others, like a domino, it could lead to the crumbling of an entire city, all on the basis of one man breaking one law. Anyone who switched on the news in August saw the result of such an event in the London Riots, many people jumping on the violent, looting bandwagon, for no sensible reason.
This then, was the first occasion on which any philosopher touched on the idea of the Social Contract. This idea was picked up by...
THOMAS HOBBES - Much further down the line, in 1651, he published his 'Leviathan', examining the idea of the Social Contract.
The Leviathan is a biblical creature, a big monstrous thing, originally a sea monster referred to extensively in the book of Job. Hobbes' Leviathan does not refer to this biblical sea monster, but a commonwealth.
Hobbes' view on social contract is shaped by his context, written during the English Civil War, and so his thoughts are influenced by the violence that surrounded him. As such, Hobbes believed that human nature was essentially aggressive, and in the 'state of nature' (a time before any form of social contract, without law or government) the world would regress to a war of all against all. As such, Hobbes' suggested that mankind required a central, ruling figure, to avoid this situation. In the book, the Leviathan sets out a contact between himself and his subjects, trading all power in return for his protection. This book sets out a limited democracy, with the people able to nominate their initial leader, however from there, the succession of power is determined by the sovereign. It strongly supports the concept of a monarchy and is firmly against the separation of powers, Hobbes arguing that the Civil War took place as a result of the division of power between Kings, Lords and Commons. However, there was some limitation to the Leviathan's power, as he stated that if he failed to fulfil his side of the contract then he could be removed, as well as each subject having the fundamental right to self preservation, entitled to resist the monarchy in self defence. Basically, Hobbes believed in a monarchy as government, with the divine right of kings, and desired a submissive public.
LOCKE - Also discussed social contract, but coming from a completely different angle than Hobbes. His thoughts on the matter are contained within his two 'Treatises on Government'.
Locke had a far more optimistic view of human nature than Hobbes, believing that all humans followed natural laws that were intuitive, "interwoven in the constitution of the human mind". Therefore Locke's view of the state of nature was of a peaceful place, in vast contrast to Hobbes'. Despite these natural laws, Locke acknowledged the need for a governing state, as he was aware that disputes could arise over property, and as such a judge like figure was required. Locke believed in the necessity of government, however thought that the people should only be governed consentually, and that laws should be in place to restrict governmental power, not civil liberties. He also argued that taxes could not be levied without public consent, a principle that became a cornerstone of the manifesto used in the American revolution, and his thinking went on to provide a backbone to the US constitution. Overview - Locke believed in the necessity of a government, but in a far more democratic style, and viewed human nature as basically positive.
ROUSSEAU - Some similar views to Locke.
Believed that the state of nature was a utopian paradise, argued that civilisation makes humans unhappy. Saw some sort of fundamental conscience in humans, and thought that the public must be part of the creation of legislature, as they are the ones who must live by the laws. Believed law should not be restrictive as there is a general will and acceptance of what is right amongst uhmans, therefore the general will of the people should become law.
PLATO - The Cave
Plato had a theory named The Republic, or The Cave theory, which examines the way humans think, and the general make up of the populus.
Plato suggested that all people are in a cave, and that our reality is merely shadow puppets on the wall of this cave, it is not in fact reality. The theory states that this 'cave' existence is a poor replica of the real, perfect world, which humans could see if only we could leave the cave. Plato argued that only philosophers could leave the cave and access the perfect world, and it is from here that Plato discovered "the forms". The Forms are essentially three parts which combine to make the human soul. These forms are Reason, Spirit and Desire. Plato suggests that all people have some awareness of the forms, but cannot understand them fully, as demonstrated by the fact that no man can imagine perfection. Which of these 'forms' dominates our personality dictates our understanding of them, and our being.
- Reason - If reason dominates, we can understand the forms and the perfect reality, hence the view that philosophers can access this perfect world.
- Spirit - If spirit dictates, we seek honour and pride, and are aggressive people.
- Desire - If desire dominates, we are distracted by the obsession with material gain.
Plato went on to say that one day the Philosophers, who have accessed the perfect world, will return to the cave and educate those watching shadows.
Next blog will analyse Locke and Hobbes further, compared with Machiavelli.
That one is likely to be even less concise.
Wednesday 19 October 2011
In My Defence - Media Law Week Three
Having previously discussed the various restrictions on journalists in the UK, and the law regarding what can and cannot be published, it is important to be aware of the defences available, should a law suit be filed against a reporter.
As outlined in my previous law post, journalists, when reckless, can find themselves being sued for defamation. This offence is divided into two areas, slander (defamatory statements made in a transient form) and libel (defamatory statements made in a permanent form).
As with any offence, when in court the defendant can use one of a number of specific defences, in the case of defamation, the main defences available are:
- Justification
- Fair Comment
- Absolute Privelege
- Qualified Privelege
In lamens terms, Justification is proving that the offending statement was truthful. Obviously, this defence may only be used when the offensive comment was phrased as a statement of fact, it cannot defend opinion. The burden of proof is on the defendant to prove that the statement is true, 'on the balance of probabilities'. This of course makes it a difficult defence to use; however, there is some benefit to the defendant, in that only the most damaging allegation (the sting) must be proved true, rather than the entire piece. Despite this, the fact that many such cases are decided by juries means that if some statements are not proved to be true, the integrity of the defendant in the eyes of the jury could become vulnerable. Additionally, inferences and innuendoes must also be proved, so if a statement could have multiple defamatory meanings, each one must be proved to be true. This overall makes the defence very hard to successfully use, as there is so many requirements to meet for the defendant. As a result, journalists must be incredibly careful as to what information they present as being factual, as, if they do not have compelling evidence that their statement is accurate, they are likely to lose in court.
The second major defence availalable is that of Fair Comment. Fair Comment essentially means that the defamatory statement was merely the opinion of the writer, clearly not stated as fact and honestly held by the author, printed without any malice. The comment must also be based on fact or priveleged matter (although not necessarilly referred to within the same article, see 'Lowe v Associated Newspapers 2006') and must be of public interest. Any defendant using the defence of Fair Comment must run this defence in tandem with one of the other available defamation defences.
Importantly, the Defendant is not required to convince the jury or judge to agree with their opinion, only that the opinion itself is honestly held by the author. It is this defence that particularly protects reviews, as they are articles of comment based on experience.
Privelege as a whole protects complete freedom of speech where it is in the public interest to do so, regardless of whether the statements may be defamatory and later found to be untrue. It falls into two categories, Absolute Privelege and Qualified Privelege.
Absolute Privelege completely prevents any action for defamation, where the defence is available. Absolute Privelege is restricted to court cases and particular tribunals, and to be covered by Absolute Privelege, the contents of the report must be "a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously" - 'McNae's essential law for journalists'. This also covers the European Court of Justice, European Court of Human Rights, and any international criminal tribunal established by the Security Council of the United Nations or by an international agreement to which the United Kingdom is a party.
The requirements on reporting to qualify for Absolute Privelege are incredibly stringent, as it offers complete protection for the publication of defamatory material.
Firstly, the report must be fair, presenting a summary of both sides involved, no substantial inaccuracies and a balanced, unbiased view on proceedings. If it fails to achieve any of these, it immediately loses its protection under privelege.
Secondly, the report must be accurate, all allegations made in court must be attributed to an individual, so as to avoid preventing any allegation as fact. Journalists must also be careful to report the facts of the case accurately, simple, avoidable mistakes can disqualify a report from privelege. Thirdly, the report must be contemporaneous, meaning 'as soon as is practicable'. This would mean printing the report in the next available edition of the publication, unless reporting restrictions are in place, in which case it may be published in the first edition of the publication after restrictions are lifted. Earlier reports of court cases may be used later to place current proceedings in context, and will still attract the defence of Absolute Privelege.
The final main defence for Defamation is Qualified Privelege. This covers a far wider range of situations, including council meetings, public meetings and police statements, and has the same basic requirements - that the report is fair and accurate - however with the additional requirement that the report must be without malice. The report must also be a matter of public concern, the material published must be seen to benefit the public. Qualified Privelege can only apply when the reporter in question is predominantly motivated by providing information in the public interest, hence "Qualified".
There is one additional defence to Defamation available to journalists, the Reynolds defence, born out of a 1998 case between Reynolds and The Sunday Times newspaper. The Reynolds defence gives privelege to a story considered to be in the public interest, so long as it is responsibly reported. In the original case, Lord Nicholls set out a list of ten points which must be met for a story to fall under this defence. These requirements can be found in 'McNae's essential law for journalists', page 357. The overall conclusion is that the story must be in the public interest, with the information having come from a reliable source with satisfactory attempts made to verify the information, a comment sought from the claimant and an overall balanced tone and unbiased presentation in the article itself. Not every single one of the ten points must be met to use the defence, however it must be clear that the story was reported responsibly, with appropriate steps taken to ensure its accuracy and neutrality.
The availability of these defences mean that, the majority of the time, an accurate, responsible journalist should not be successfully sued. Of course, with many defamation cases meeting jury trial, there can be unexpected results, however these defences provide a good deal of protection for honest and professional journalists.
As outlined in my previous law post, journalists, when reckless, can find themselves being sued for defamation. This offence is divided into two areas, slander (defamatory statements made in a transient form) and libel (defamatory statements made in a permanent form).
As with any offence, when in court the defendant can use one of a number of specific defences, in the case of defamation, the main defences available are:
- Justification
- Fair Comment
- Absolute Privelege
- Qualified Privelege
In lamens terms, Justification is proving that the offending statement was truthful. Obviously, this defence may only be used when the offensive comment was phrased as a statement of fact, it cannot defend opinion. The burden of proof is on the defendant to prove that the statement is true, 'on the balance of probabilities'. This of course makes it a difficult defence to use; however, there is some benefit to the defendant, in that only the most damaging allegation (the sting) must be proved true, rather than the entire piece. Despite this, the fact that many such cases are decided by juries means that if some statements are not proved to be true, the integrity of the defendant in the eyes of the jury could become vulnerable. Additionally, inferences and innuendoes must also be proved, so if a statement could have multiple defamatory meanings, each one must be proved to be true. This overall makes the defence very hard to successfully use, as there is so many requirements to meet for the defendant. As a result, journalists must be incredibly careful as to what information they present as being factual, as, if they do not have compelling evidence that their statement is accurate, they are likely to lose in court.
The second major defence availalable is that of Fair Comment. Fair Comment essentially means that the defamatory statement was merely the opinion of the writer, clearly not stated as fact and honestly held by the author, printed without any malice. The comment must also be based on fact or priveleged matter (although not necessarilly referred to within the same article, see 'Lowe v Associated Newspapers 2006') and must be of public interest. Any defendant using the defence of Fair Comment must run this defence in tandem with one of the other available defamation defences.
Importantly, the Defendant is not required to convince the jury or judge to agree with their opinion, only that the opinion itself is honestly held by the author. It is this defence that particularly protects reviews, as they are articles of comment based on experience.
Privelege as a whole protects complete freedom of speech where it is in the public interest to do so, regardless of whether the statements may be defamatory and later found to be untrue. It falls into two categories, Absolute Privelege and Qualified Privelege.
Absolute Privelege completely prevents any action for defamation, where the defence is available. Absolute Privelege is restricted to court cases and particular tribunals, and to be covered by Absolute Privelege, the contents of the report must be "a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously" - 'McNae's essential law for journalists'. This also covers the European Court of Justice, European Court of Human Rights, and any international criminal tribunal established by the Security Council of the United Nations or by an international agreement to which the United Kingdom is a party.
The requirements on reporting to qualify for Absolute Privelege are incredibly stringent, as it offers complete protection for the publication of defamatory material.
Firstly, the report must be fair, presenting a summary of both sides involved, no substantial inaccuracies and a balanced, unbiased view on proceedings. If it fails to achieve any of these, it immediately loses its protection under privelege.
Secondly, the report must be accurate, all allegations made in court must be attributed to an individual, so as to avoid preventing any allegation as fact. Journalists must also be careful to report the facts of the case accurately, simple, avoidable mistakes can disqualify a report from privelege. Thirdly, the report must be contemporaneous, meaning 'as soon as is practicable'. This would mean printing the report in the next available edition of the publication, unless reporting restrictions are in place, in which case it may be published in the first edition of the publication after restrictions are lifted. Earlier reports of court cases may be used later to place current proceedings in context, and will still attract the defence of Absolute Privelege.
The final main defence for Defamation is Qualified Privelege. This covers a far wider range of situations, including council meetings, public meetings and police statements, and has the same basic requirements - that the report is fair and accurate - however with the additional requirement that the report must be without malice. The report must also be a matter of public concern, the material published must be seen to benefit the public. Qualified Privelege can only apply when the reporter in question is predominantly motivated by providing information in the public interest, hence "Qualified".
There is one additional defence to Defamation available to journalists, the Reynolds defence, born out of a 1998 case between Reynolds and The Sunday Times newspaper. The Reynolds defence gives privelege to a story considered to be in the public interest, so long as it is responsibly reported. In the original case, Lord Nicholls set out a list of ten points which must be met for a story to fall under this defence. These requirements can be found in 'McNae's essential law for journalists', page 357. The overall conclusion is that the story must be in the public interest, with the information having come from a reliable source with satisfactory attempts made to verify the information, a comment sought from the claimant and an overall balanced tone and unbiased presentation in the article itself. Not every single one of the ten points must be met to use the defence, however it must be clear that the story was reported responsibly, with appropriate steps taken to ensure its accuracy and neutrality.
The availability of these defences mean that, the majority of the time, an accurate, responsible journalist should not be successfully sued. Of course, with many defamation cases meeting jury trial, there can be unexpected results, however these defences provide a good deal of protection for honest and professional journalists.
Saturday 8 October 2011
Are You Enthused?
Bertrand Russel was undoubtedly a great man. The mere fact he can produce a book the length of 'History of Western Philosophy' (744 pages, small type) impresses me greatly. That it is also interesting, intelligent and well written is nothing short of a wonderful achievement as far as I'm concerned, considering 2000 word A level essays were, for me, taxing. This book is required reading for my course, and the further I get, the more relieved I am. Looking at it sitting on a shelf can be daunting, however once I pick it up I find it easy to get lost in the words. It's not the historical element that I've found fascinating, more his examination of it. It is one statement of his in the early chapters that has prodded me to write, as I found myself re-reading it at this unholy hour of the morning.
"Prudence may easily involve the loss of some of the best things in life".
Boom. That got to me.
I may have now read the paragraph containing that sentence about ten times. I should really be reading the chapters required for this weeks lecture, but I find myself reluctant to pass this part just yet.
Russel's point is an interesting one, he expands further and suggests that prudence can drain joy and enthusiasm from life, by distracting one with trivial, monotonous, everyday preoccupations. After a day where I have seriously lacked joy and enthusiasm, I found it something of a revelation.
Now I'm not suggesting that prudence is the reason I have not been particularly enthused today. I woke up at 4pm and have done little else but eat and watch 'How I Met Your Mother' online. The enemy of enthusiasm today was laziness. But at other times, when I find myself bored, languid and unhappy, it is often because I am endlessly focusing on practical issues. Now this is in no way a bad thing, but it leads me to feeling joyless on occasion, as I haven't made time to do anything else (it probably doesn't help that I think of all the things that need doing, rather than doing them, but that's another issue). It seems to me that prudence really can be preventative, at times it overrides passion and adventure, which are crucial to deriving excitement and happiness from life.
Now prudence in itself is an admirable quality. As someone who could do with a little more, I am impressed by those who have that level of forethought, who are careful, who plan for the future. It is also incredibly important, it is key to feeling secure. Despite the argument that it can "easily involve the loss of some of the best things in life", it can also lead to great things.
So I find myself on the fence. I spend far more of my time looking for joy than I do planning for a rainy day, and yet on the rare occasions I attempt to be more organised I find myself listless (unintentional irony). And yet, often when I look for joy I can't seem to find it, it tends to arrive when I'm spontaneously wandering through my day.
After a few glances at Russel's words, however, the answer seems simple.
Balance, as I'm sure my good friend George would agree, is the key to happiness. There is nothing wrong with playing the long game, planning for the future and making allowances, it will reward you in weeks, months and years to come. Equally there is a lot to be said for seeking out pleasure and excitement, it gives you a feeling that cannot be matched. But neither can be truly fulfilling without the other. If you lack all prudence, nothing gets done. If you're nothing but prudent, you'll plan your life but never live it. Balancing the two on a daily basis allows the benefits of both, without detracting from the other, and you can "find your bliss", to quote the aforementioned TV show that has taken over my day. So that's what I'm gonna get to work on, balance. That, and my reading for this weeks lectures. One concrete assertion I derived from today is that nothing good can come of spending all day in bed, watching TV and munching cereal. Although that realisation won't change a thing.
Anyway, back to the genius of Neil Patrick Harris. I never learn.
"Prudence may easily involve the loss of some of the best things in life".
Boom. That got to me.
I may have now read the paragraph containing that sentence about ten times. I should really be reading the chapters required for this weeks lecture, but I find myself reluctant to pass this part just yet.
Russel's point is an interesting one, he expands further and suggests that prudence can drain joy and enthusiasm from life, by distracting one with trivial, monotonous, everyday preoccupations. After a day where I have seriously lacked joy and enthusiasm, I found it something of a revelation.
Now I'm not suggesting that prudence is the reason I have not been particularly enthused today. I woke up at 4pm and have done little else but eat and watch 'How I Met Your Mother' online. The enemy of enthusiasm today was laziness. But at other times, when I find myself bored, languid and unhappy, it is often because I am endlessly focusing on practical issues. Now this is in no way a bad thing, but it leads me to feeling joyless on occasion, as I haven't made time to do anything else (it probably doesn't help that I think of all the things that need doing, rather than doing them, but that's another issue). It seems to me that prudence really can be preventative, at times it overrides passion and adventure, which are crucial to deriving excitement and happiness from life.
Now prudence in itself is an admirable quality. As someone who could do with a little more, I am impressed by those who have that level of forethought, who are careful, who plan for the future. It is also incredibly important, it is key to feeling secure. Despite the argument that it can "easily involve the loss of some of the best things in life", it can also lead to great things.
So I find myself on the fence. I spend far more of my time looking for joy than I do planning for a rainy day, and yet on the rare occasions I attempt to be more organised I find myself listless (unintentional irony). And yet, often when I look for joy I can't seem to find it, it tends to arrive when I'm spontaneously wandering through my day.
After a few glances at Russel's words, however, the answer seems simple.
Balance, as I'm sure my good friend George would agree, is the key to happiness. There is nothing wrong with playing the long game, planning for the future and making allowances, it will reward you in weeks, months and years to come. Equally there is a lot to be said for seeking out pleasure and excitement, it gives you a feeling that cannot be matched. But neither can be truly fulfilling without the other. If you lack all prudence, nothing gets done. If you're nothing but prudent, you'll plan your life but never live it. Balancing the two on a daily basis allows the benefits of both, without detracting from the other, and you can "find your bliss", to quote the aforementioned TV show that has taken over my day. So that's what I'm gonna get to work on, balance. That, and my reading for this weeks lectures. One concrete assertion I derived from today is that nothing good can come of spending all day in bed, watching TV and munching cereal. Although that realisation won't change a thing.
Anyway, back to the genius of Neil Patrick Harris. I never learn.
Thursday 6 October 2011
What can I say? Media Law Part Two
Despite missing this weeks Law lecture through illness, the required reading set gave me quite an insight into the way the law affects journalists, specifically how it limits the amount and type of information one can disclose regarding a court case. Essentially, if a court case is ongoing there is very little detail you can release without being vulnerable to legal action. With regards to either way offences in Magistrates courts, the restrictions of reporting fall under the 1980 Magistrates' Courts Act. The result of which is that while a preliminary hearing is ongoing in a Magistrates court, only the following may be published:
- the name of the court
- the names, addresses and occupations of the parties
- the charge(s)
- the names of any legal representatives involved
- arrangements as to bail
- if proceedings are adjourned, where and when they will resume
- whether legal aid was granted
- the fact that reporting restrictions are in place
This is sufficient detail to describe basics of the case and those involved, however it prevents, or is designed to prevent, the release of any information which may create prejudice, including previous convictions of the defendant, and any reference to evidence in the case. Journalists will routinely publish these details, along with any protestations of innocence, as long as they apply to all charges faced, and if the defendant has chosen trial by jury. If it is a committal hearing, reporters may additionally tell of any decision of the magistrates to commit any defendant to Crown court for trial, the charge(s) and the court to which the defendant is commited. It is also permissible for journalists to report scene setting information, as long as the information is unbiased and not likely to affect any potential juror who may read the article. These restrictions are more or less identical for adult trials in Crown courts, with the restrictions being lifted automatically once the trial ends. Defendants may also request to have the restrictions lifted if they desire, however the decision is down to the magistrate or judge.
There are two main situations, however, where the restrictions are more severe.
The first is in summary cases in a magistrates court. The restrictions are largely the same, however only;
- the name of the court
- the names, ages, addresses and occupations of defendants and witnesses
- the charge(s)
- the names of solcitors and barristers involved
- if the case is adjourned, where and when it will resume
- arrangements as to bail
- whether legal aid was granted
Magistrates can choose to lift the restrictions, as long as there are no objections from the defendant and it is in the interests of justice.
The major difference is where the defendant is considered a juvenile, and in this situation only limited information may be released.
Section 49 of the Children and Young Persons Act 1933 prohibits the identification of any defendant or witness under the age of 18 in a juvenile court case, unless in exceptional circumstances.
There is no automatic protection for young people appearing in adult courts, although the court has discretion to apply the restrictions of section 39 of the above act. Under section 49, the restrictions can be lifted in the 'public interest' (see previous blog post), or to avoid injustice.
There are obvious motives for these restrictions, they ensure fairness in court proceedings, protect those involved and still allow the public some knowledge of what is occuring in a given court case.
However, do defendants in court cases deserve protection? In the UK everyone is innocent until proven guilty, however to be taken to court there is almost always substantial evidence that they are guilty, so should there not be more freedom for reporters to describe proceedings?
As for ensuring fairness, should journalists not be both motivated and committed to releasing only information which would not influence the case, regardless of legal restrictions?
- the name of the court
- the names, addresses and occupations of the parties
- the charge(s)
- the names of any legal representatives involved
- arrangements as to bail
- if proceedings are adjourned, where and when they will resume
- whether legal aid was granted
- the fact that reporting restrictions are in place
This is sufficient detail to describe basics of the case and those involved, however it prevents, or is designed to prevent, the release of any information which may create prejudice, including previous convictions of the defendant, and any reference to evidence in the case. Journalists will routinely publish these details, along with any protestations of innocence, as long as they apply to all charges faced, and if the defendant has chosen trial by jury. If it is a committal hearing, reporters may additionally tell of any decision of the magistrates to commit any defendant to Crown court for trial, the charge(s) and the court to which the defendant is commited. It is also permissible for journalists to report scene setting information, as long as the information is unbiased and not likely to affect any potential juror who may read the article. These restrictions are more or less identical for adult trials in Crown courts, with the restrictions being lifted automatically once the trial ends. Defendants may also request to have the restrictions lifted if they desire, however the decision is down to the magistrate or judge.
There are two main situations, however, where the restrictions are more severe.
The first is in summary cases in a magistrates court. The restrictions are largely the same, however only;
- the name of the court
- the names, ages, addresses and occupations of defendants and witnesses
- the charge(s)
- the names of solcitors and barristers involved
- if the case is adjourned, where and when it will resume
- arrangements as to bail
- whether legal aid was granted
Magistrates can choose to lift the restrictions, as long as there are no objections from the defendant and it is in the interests of justice.
The major difference is where the defendant is considered a juvenile, and in this situation only limited information may be released.
Section 49 of the Children and Young Persons Act 1933 prohibits the identification of any defendant or witness under the age of 18 in a juvenile court case, unless in exceptional circumstances.
There is no automatic protection for young people appearing in adult courts, although the court has discretion to apply the restrictions of section 39 of the above act. Under section 49, the restrictions can be lifted in the 'public interest' (see previous blog post), or to avoid injustice.
There are obvious motives for these restrictions, they ensure fairness in court proceedings, protect those involved and still allow the public some knowledge of what is occuring in a given court case.
However, do defendants in court cases deserve protection? In the UK everyone is innocent until proven guilty, however to be taken to court there is almost always substantial evidence that they are guilty, so should there not be more freedom for reporters to describe proceedings?
As for ensuring fairness, should journalists not be both motivated and committed to releasing only information which would not influence the case, regardless of legal restrictions?
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