Copyright is the element of law that protects the intellectual property of an individual or organisation. It is copyright that prevents anyone using another persons work for their own benefit without permission from the creator or rights holder. Copyright is an area of civil law, and anyone believing their rights have been breached can sue for damages.
Copyright covers such things as music, literature, film and photographs. Undeveloped ideas, short slogans and catchphrases are not protected.
Copyright is vitally important in journalism both in protecting the work of a journalist, and dictating what journalists can use in their own work.
Without copyright law, the journalism industry could not exist, as there would be no value to the work done, as anyone could recycle it. Equally, journalism must not encroach on others copyright, and must strive to be original.
The one exception to this is 'fair dealing'. Fair dealing allows the use of part of a protected work in the interests of reporting current events. Fair dealing does not have specific limitations, but it is accepted that only a small portion of the original article should be used, and should only be used in incidents of public interest. Fair dealing can also be used in the context of a review, using a section of the reviewed work to supplement the piece.
In all cases, anything that has been used under fair dealing must be properly attributed to the original source, and not passed off as original work. This does not apply to sport, where rights to footage is extremely expensive and cannot be used under fair dealing.
An interesting and complex area of copyright law is that of works of parody. Music, in particular, is often used without authorisation for the purposes of parodying the original work. In such circumstances, the rights of the owner are often infringed upon, but the material is changed. These situations have worked out in vastly different ways, with some such pieces of work being unaffected by the rights holder, while others have had to remove their parody pieces from publication due to claims against them.
A recent incident in this area of law happened in America. The law regarding parody is somewhat clearer in the USA, where parody is exempt from copyright law.
A store called 'Dumb Starbucks Coffee' was opened in California, which used the Starbucks logo and trade marks, as well as providing a near identical menu. The store did not sell their products, instead giving them away for free, and claimed on its website that it was a work of parody, so as to protect itself from the famously litigious coffee chain. Situations such as this highlight interesting areas of copyright law, and in which circumstances copyrighted material can be used.
Showing posts with label Media Law. Show all posts
Showing posts with label Media Law. Show all posts
Saturday, 12 April 2014
Privilege, Qualified and Absolute.
Privilege is
the legal allowance for defamatory or untrue statements to be published, protecting
the publisher from any legal action.
There are
two types of privilege, Qualified and Absolute.
Absolute
privilege applies in court, and allows the events of a trial to be published,
provided the reports are fair, accurate and contemporaneous.
Qualified
privilege protects areas of public concern, such as meetings of public bodies.
This provision requires reporting to be fair, accurate and without malice.
The ‘without
malice’ element here is crucial. Privilege will not apply if the published
material contains any malice, and so it is important that any piece published
is balanced, to prevent unintended bias.
Privilege
only applies in certain circumstances within these events. For example,
privilege covers what is said within the events of a council meeting, but
anything said privately, either prior to or after the meeting, is not covered by
privilege, and therefore may not be publishable.
Where privilege does apply, and the guidelines are correctly followed, it is a great allowance for journalists to publish material they would not otherwise be able to, and report in detail on matters of importance.
Sunday, 6 April 2014
Defamation
Defamation
is the area of law that protects individuals and organisations from having
their reputation damaged by another party. This is clearly a very dangerous
area for journalism, and one that requires great care navigating. Any statement
that is defamatory to an individual or organisation, and is broadcast to a
third party, is susceptible to a libel action.
For a libel action
to succeed, one of the following criteria must be satisfied:
A person is:
- exposed to
hatred, ridicule or contempt
- caused to
be shunned or avoided
- lowered in
the estimation of right-thinking members of society
- disparaged
in his or her business, trade, office or profession.
As
defamation is a civil matter, the burden of proof is lower (‘on the balance of
probabilities’). Therefore, the onus is not on the claimant to prove damage has
been suffered, rather the Defendant must demonstrate a successful defence. The main
libel defences are as follows:
- It is true
- It is the
honestly held opinion of the defendant
- The
information is in the public interest
- The
information is protected by privilege.
If the
defendant can prove one of the above, then the claim will not be successful.
In 2013, a
new defamation act was introduced, in order to tighten the law surrounding
libel. This act has brought about two major developments.
The first is
that, prior to suing, the defendant must prove that ‘serious harm’ has been
caused. This has been introduced in an attempt to protect freedom of speech and
expression, and prevent major corporations taking out lawsuits against small
organisations and individuals for minor slights.
The second
development is a stricter test for libel cases being heard in England and Wales
as to their link to this country, preventing ‘Libel tourism’. ‘Libel tourism’
refers to bringing actions under the stricter defamation laws of England and Wales,
despite the claim not originating within this jurisdiction.
Court Reporting
When
covering the courts as a journalist, there are two fundamental issues to
consider: Prejudice and Contempt.
Prejudice –
the publication of material that could potentially prejudice the jury in a
case. Prevents the trial being fair.
Contempt –
Contempt of court is a criminal offence, set out in the Contempt of Court act 1981.
Publishing any information which breaches the rules of court reporting can be
considered contempt.
As a
criminal case is decided by a jury, it is crucial that the jury is only
influenced by what is heard within the court, and not speculative or
irresponsible media coverage.
Reporting
restrictions for criminal offences come into effect when the case becomes ‘active’.
This is when one of the following occurs:
- An arrest
is made
- An arrest
warrant is issued
- A summons
is issued by a magistrate
- Someone is
charged with the offence
Once this
happens, only very basic information can be published. The case will go to a ‘pre-trial
hearing’ at a magistrates court. When this happens, only the following should
be reported:
- Name, age,
address and occupation of the defendant(s)
- Charges
faced or a short summary
- Names of
magistrates and the magistrates court
- Names of
Solicitors and Barristers present
- Date and
location to which the case has been adjourned
- Whether
legal aid was granted
- Arrangements
of Bail
Once the
trial proper begins, court reporting is covered by Qualified Privilege (coming
up later), provided the reporting is fair, accurate and contemporaneous. This means, essentially, that anything said in court by either the prosecution or defence can be reported.
Wednesday, 30 November 2011
Freedom Of Information - Media Law
As a journalist, one of the most powerful tools in acquiring information for a story is using the Freedom of Information act.
The act allows any citizen, including journalists, the right to information held by public authorities, such as the police, government and hospitals. Under the act, if one of these public bodies receives a request for information, they must respon within 20 working days, either with the information or a reason why it cannot be provided. The information is provided free of charge, providing that it costs the holder £600 or less if they are a government body, or £450 or less for other public bodies.
There are several exemptions under the act however, divided into absolute exemptions and qualified exemptions.
Absolute Exemptions: These are exemptions that do not require an explanation for the information not being disclosed. This covers:
- Information reasonably accessible by other means
- Information supplie to the public authority by or relating to bodies dealing with security matters
- Court records
- Personal information
- Information provided to the authority in confidence by another party
- Information which the disclosure of is forbidden by other law
These are pretty straightforward, information that falls under these categories does not need to be disclosed, an a reason for the lack of disclosure is not required.
Qualified Exemptions: This is yet another use of the 'public interest'.
Essentially, if a public body denies the request for information, they must satisfy the 'public interest test' to justify it, which basically states that the public interest in witholding the information is greater than that of releasing it. The 'public interest' is not defined in the act, however, in 'The Freedom of Information Act: An Introduction, the Information Commissioner lists a number of factors that should encourage public bodies to disclose information:
- Furthering the understanding and participation in the public debate of issues of the day.
- Promoting accountability and transparency by public authorities for decisions taken by them.
- Promoting accountability and transparency in the spending of public money.
- Allowing individuals and companies to understand decisions made by public authorities affecting their lives.
- Bringing to light information affecting public health and safety.
The Qualified Exemptions cover categories such as:
- Information which if disclosed is likely to prejudice national security
- Information which if disclosed is likely to prejudice international relations
- Information held by an authority for law enforcement functions
- Information which relates to formulation or development of Government policy
- Information the disclosure of which is likely to prejudice effective conduct of public affairs
- Protecting commercial interests.
All these exemptions can lead to a delay or a prevention in the release of information.
Despite this, public authorities are obliged under the act to advise parties in their wording of requests, so that they are more likely to be accepted.
Anyone requesting information can also appeal to the Information Commissioner against any authorities refusal to supply information. Appeals against the commissioners decision can be heard by the information tribunal.
The Environmental Information Regulations have the backing of the European Union, which requires public bodies to provide information about environmental matters. These powers far exceed those outlined in the Freedom of Information Act.
The act allows any citizen, including journalists, the right to information held by public authorities, such as the police, government and hospitals. Under the act, if one of these public bodies receives a request for information, they must respon within 20 working days, either with the information or a reason why it cannot be provided. The information is provided free of charge, providing that it costs the holder £600 or less if they are a government body, or £450 or less for other public bodies.
There are several exemptions under the act however, divided into absolute exemptions and qualified exemptions.
Absolute Exemptions: These are exemptions that do not require an explanation for the information not being disclosed. This covers:
- Information reasonably accessible by other means
- Information supplie to the public authority by or relating to bodies dealing with security matters
- Court records
- Personal information
- Information provided to the authority in confidence by another party
- Information which the disclosure of is forbidden by other law
These are pretty straightforward, information that falls under these categories does not need to be disclosed, an a reason for the lack of disclosure is not required.
Qualified Exemptions: This is yet another use of the 'public interest'.
Essentially, if a public body denies the request for information, they must satisfy the 'public interest test' to justify it, which basically states that the public interest in witholding the information is greater than that of releasing it. The 'public interest' is not defined in the act, however, in 'The Freedom of Information Act: An Introduction, the Information Commissioner lists a number of factors that should encourage public bodies to disclose information:
- Furthering the understanding and participation in the public debate of issues of the day.
- Promoting accountability and transparency by public authorities for decisions taken by them.
- Promoting accountability and transparency in the spending of public money.
- Allowing individuals and companies to understand decisions made by public authorities affecting their lives.
- Bringing to light information affecting public health and safety.
The Qualified Exemptions cover categories such as:
- Information which if disclosed is likely to prejudice national security
- Information which if disclosed is likely to prejudice international relations
- Information held by an authority for law enforcement functions
- Information which relates to formulation or development of Government policy
- Information the disclosure of which is likely to prejudice effective conduct of public affairs
- Protecting commercial interests.
All these exemptions can lead to a delay or a prevention in the release of information.
Despite this, public authorities are obliged under the act to advise parties in their wording of requests, so that they are more likely to be accepted.
Anyone requesting information can also appeal to the Information Commissioner against any authorities refusal to supply information. Appeals against the commissioners decision can be heard by the information tribunal.
The Environmental Information Regulations have the backing of the European Union, which requires public bodies to provide information about environmental matters. These powers far exceed those outlined in the Freedom of Information Act.
Thursday, 24 November 2011
Investigative journalism - Media Law
I wrote this entry a while ago but forgot to post it, so here are notes on our law lecture from a couple of weeks ago on Investigative Journalism.
The key difference between investigative and everyday journalism is who sets the agenda for the piece being written. Whilst in mainstream journalism jobs the agenda is set by the editor, and is based on events that are either planned and anticipated, or surprise events that need to be reported, investigative journalism is far more independent. For an investigative piece, the agenda is set by the journalist themselves, who then seeks to uncover a story which someone, somewhere, does not want published. Investigative journalism aims to reveal hidden problems and plots in public organisations, companies or society for the benefit of the community. A good example of this is the MP's expenses scandal, revealed by The Daily Telegraph in 2009.
Of course, an undercover journalist has to be incredibly careful to do all research within the law, however when this is done correctly, it leads to some of the most incisive and important pieces of reporting.
Alongside this, the reading covered how journalists must behave when covering elections, terrorism and photography and film footage in journalism. I'll make it a quick summary.
Election coverage - under the Representation of the People Act of 1983, it is a criminal offence to make or publish false statements about election candidates as it may affect the number of votes the individual receives. The only defence is the genuine belief at the time of publishing that the statement was true. It is punishable by a fine of up to £5000. It is also illegal to publish any data gathered from exit polls before polls have closed. This is again punishable by a fine of up to £5000, or a prison sentence of up to six months.
Terrorism - under the Terrorism Act 2006, it is an offence to publish any statement or material that can be seen to 'glorify' or encourage terrorism or terrorist organisations. If a journalist conducts an interview with someone who glorifies terrorism, the journalist is protected as long as it is clear in the publication that the journalist themself was not encouraging terrorism, and it was reported neutrally.
It is also a crime, under the Terrorism Act 2000, to fail to disclose to police any information acquired that could help prevent an act of terrorism, or information that could assist in the apprehension, prosecution or conviction of a terrorist. This is punishable by up to five years imprisonment. Of course journalists must be aware of this in their work, especially if interviewing or researching anyone linked to a terrorist organisation or terrorist activities.
Further, it is an offence to elicit information that could be beneficial to any person in preparing or committing an act of terrorism, or to publish information about a member of the armed forces, UK intelligence services or a police officer that may assist a terrorist.
Under counter-terrorism law, the police have far more power than under any other law to compel a journalist to surrender research material, and so this is a delicate area for a journalist to work in.
The use of Photography and Filming - If one person is persistently followed by photographers they may successfully sue the photo journalist for breach of privacy or for harassment, this particularly affects the paparazzi. The Press Complaints Commission Code of Practice also states that journalists should not photograph individuals anywhere were they have a reasonable expectation of privacy, unless it can be justified by public interest.
The key difference between investigative and everyday journalism is who sets the agenda for the piece being written. Whilst in mainstream journalism jobs the agenda is set by the editor, and is based on events that are either planned and anticipated, or surprise events that need to be reported, investigative journalism is far more independent. For an investigative piece, the agenda is set by the journalist themselves, who then seeks to uncover a story which someone, somewhere, does not want published. Investigative journalism aims to reveal hidden problems and plots in public organisations, companies or society for the benefit of the community. A good example of this is the MP's expenses scandal, revealed by The Daily Telegraph in 2009.
Of course, an undercover journalist has to be incredibly careful to do all research within the law, however when this is done correctly, it leads to some of the most incisive and important pieces of reporting.
Alongside this, the reading covered how journalists must behave when covering elections, terrorism and photography and film footage in journalism. I'll make it a quick summary.
Election coverage - under the Representation of the People Act of 1983, it is a criminal offence to make or publish false statements about election candidates as it may affect the number of votes the individual receives. The only defence is the genuine belief at the time of publishing that the statement was true. It is punishable by a fine of up to £5000. It is also illegal to publish any data gathered from exit polls before polls have closed. This is again punishable by a fine of up to £5000, or a prison sentence of up to six months.
Terrorism - under the Terrorism Act 2006, it is an offence to publish any statement or material that can be seen to 'glorify' or encourage terrorism or terrorist organisations. If a journalist conducts an interview with someone who glorifies terrorism, the journalist is protected as long as it is clear in the publication that the journalist themself was not encouraging terrorism, and it was reported neutrally.
It is also a crime, under the Terrorism Act 2000, to fail to disclose to police any information acquired that could help prevent an act of terrorism, or information that could assist in the apprehension, prosecution or conviction of a terrorist. This is punishable by up to five years imprisonment. Of course journalists must be aware of this in their work, especially if interviewing or researching anyone linked to a terrorist organisation or terrorist activities.
Further, it is an offence to elicit information that could be beneficial to any person in preparing or committing an act of terrorism, or to publish information about a member of the armed forces, UK intelligence services or a police officer that may assist a terrorist.
Under counter-terrorism law, the police have far more power than under any other law to compel a journalist to surrender research material, and so this is a delicate area for a journalist to work in.
The use of Photography and Filming - If one person is persistently followed by photographers they may successfully sue the photo journalist for breach of privacy or for harassment, this particularly affects the paparazzi. The Press Complaints Commission Code of Practice also states that journalists should not photograph individuals anywhere were they have a reasonable expectation of privacy, unless it can be justified by public interest.
Monday, 7 November 2011
Copyright - Media Law Week Six
This one will be a quickie, so lets rattle through.
COPYRIGHT
Basically, any work you do is yours unless you pass it on to others deliberately. Two major ways of passing on work:
- It can be licensed out, where the rights remain with the original owner, but the second party is allowed to publish it.
- Copyright can be sold on, in which case the rights of ownership pass completely, the original owner having no possession over the work from that point.
This only covers 'physical' work (for lack of a better word), intellectual property is not protected, e.g. facts and ideas are not protected by copyright, however words, images, sound recordings and video footage are. As a general rule, a result of someone's skill, creativity, labour or time IS protected. Contrary to popular belief, Copyright DOES NOT HAVE to be registered, but it helps when proving that the original work is yours.
In a journalistic context, this means that a news story is not protected in itself, but the words used to convey it are.
The major defence to all this is Fair Dealing, which applies if a short extract from a piece protected by copyright is used, provided it is properly credited to the author and is not extensive. This does not apply to photographs.
If Copyright is breached, as before, the injured party can claim for damages or seek an injunction.
Simples! (the use of which would not breach copyright)
COPYRIGHT
Basically, any work you do is yours unless you pass it on to others deliberately. Two major ways of passing on work:
- It can be licensed out, where the rights remain with the original owner, but the second party is allowed to publish it.
- Copyright can be sold on, in which case the rights of ownership pass completely, the original owner having no possession over the work from that point.
This only covers 'physical' work (for lack of a better word), intellectual property is not protected, e.g. facts and ideas are not protected by copyright, however words, images, sound recordings and video footage are. As a general rule, a result of someone's skill, creativity, labour or time IS protected. Contrary to popular belief, Copyright DOES NOT HAVE to be registered, but it helps when proving that the original work is yours.
In a journalistic context, this means that a news story is not protected in itself, but the words used to convey it are.
The major defence to all this is Fair Dealing, which applies if a short extract from a piece protected by copyright is used, provided it is properly credited to the author and is not extensive. This does not apply to photographs.
If Copyright is breached, as before, the injured party can claim for damages or seek an injunction.
Simples! (the use of which would not breach copyright)
Thursday, 27 October 2011
CENSORED - Media Law Week Five (PART ONE)
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.
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.
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.
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.
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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