BJTC Media Law, Regulation & Ethics Student PocketGuide 2017 In association with Goldsmiths, University of London. By Tim Crook 1 Contents 2 Contents 3 Key Principles on a Page: Avoiding the six media law sins 4 Brief tabulated overview of legal system of England and Wales 5 Basic information about the legal system 6 Introduction to main themes of media law: SPECTACULAR Professional moral values and ethics 16 BBC Values 17 Respecting the rule of law 18 Impartiality 20 Professional skills to a high standard Primary Media Law in detail 21 Contempt 24 Reporting court cases 26 Defamation also usually known as libel 30 Libel defences 33 Malicious Falsehood 35 Privacy 37 Background to privacy law development 45 Making editorial privacy decisions in relation to images 50 Copyright/Intellectual Property Additional briefings 55 Reporting Courts-Martial 58 Reporting Inquests 61 Questions to ask yourself in relation to your reporting 65 Analysis of Ethics and Law- case history from the past Secondary Media Law- regulation by statutory and industry bodies 67 Introduction to regulation as secondary media law 68 Ofcom Regulation and the BBC 73 Accuracy, Opportunity to reply, Due Impartiality 78 Sources 80 Privacy 82 Harassment and Intrusion into grief or shock 83 Professional Values 87 Reporting children and ‘children in sex cases’ 91 Hospitals 92 Reporting of Crime 95 Clandestine devices and subterfuge 97 Victims of Sexual Assault 98 Discrimination 99 Financial Journalism 100 The Public Interest 101 Harm and Offence Short Summaries 104 UK Contempt and Reporting Crime 104 Guide to Court Reporting Key facts and Checklist 105 Libel, Privacy, Accuracy and Balance 106 News Gathering, Story Finding and Public Interest 106 Protecting Children 107 Copyright and Intellectual Property 108 Laws and Rules for Elections and Politics 108 The Secret World 110 Scottish and Northern Ireland differences and issues 110 Social Media/Online/Blogging- Risks in media law 113 US Society Professional Association of Journalists’ Code of Ethics 115 US Radio, Television, Digital News Association Code of Ethics 2 Key Principles on a Page. Avoiding the six media law sins. Key notes 1. Libel 2. Privacy 3. Contempt 4. Copyright 5. Criminal 6. Damnum Sine Injuria (ethics/regulation) 1. Libel = serious harm to reputation by online/radio/tv publication including implication and innuendo where meaning is constructed by victim and authorial intention no defence/ commentary/picture juxtaposition always a risk BUT defended through privilege: court/government proceeding = Absolute/high qualified. Public meeting/press conference and release at low qualified level, fairness and accuracy paramount and gist of alleged person’s side when demanded required at the low qualified level. Innocent dissemination/Truth (in substance and fact)/Honest Opinion based on true facts or privileged material/Public Interest through neutral reportage (not adopting allegations) editorial decision-making conditions considered/Web operator’s system/defence for user generated comments moderated or not moderated- complaints need to be addressed within 48 hours/qualified privilege for academic conferences and papers that are peer-reviewed. 2. Privacy = publishing and intrusive conduct about private information and situations- matters of public interest trumping on balance with intense focus of circumstances including confidential information where there is a reasonable/legitimate expectation of privacy and right to family life/filming & sound recording in private geography without permission. 3. Contempt = publishing in any way to third party (including by social media) creating a substantial risk of serious prejudice to administration of justice when cases are active after arrest/warrant/opening inquest hearing or impeding process of justice by monstering and thereby intimidating witnesses/suspects. 4. Criminal = committing crimes through conduct and publication (intention sometimes is not required to be proved) like contempt, disobeying court orders even when wrong (max 2 years jail/unlimited fine/prosecution by attorney general), but more particularly anything that can lead to identification of sexual offence complainants/young people juveniles (17 & under)/harassing by causing distress on at least 2 occasions/computer and phone interception/bribing/and agreeing to incite a civil servant (police officer/service-person etc.) to commit misconduct in public office. Since 2010 Bribery Act paying sources for information likely to be an offence (no public interest defence). Media have to consider risk of people who know victims doing their own detective work to put two and two together. This means pixilation, silhouetting and electronic voice distortion is not enough. Actors have to be used. Individual journalists not just editors can be held liable for criminal offences. 5. Copyright = publishing substantial part of image, script, publication, table, database of person/organization without permission unless there is a defence of fair dealing by criticism/review, parody, ‘quotation or otherwise’, or use in reporting current event BUT photographs excluded from current event defence, rare public interest defence available where image is something so awful/outrageous/depicting wrong and no other way of reporting. Also defence of public domain 70 years after death of author/70 years after death of director/producer/composer/original production (but beware of other layered copyright interests. Only photographs/images put into public domain prior July 1912 safe from copyright liability. 6. Damnum Sine Injuria (ethics/regulation) = being nasty/unpleasant/discourteous/using people instrumentally instead of intrinsically/being on the wrong site of prevailing ‘public interest’/breaching IPSO Editors’ Code/Ofcom Code/IMPRESS Code/BBC Editorial Guidelines, employer’s contract/professional trade union’s code of honour/not treating other people as you would yourself. 3 Brief Over-view of Legal System England & Wales. The diagram ‘The Structure of the Courts’ features on page 6 of the excellent guide on the Judicial System of England and Wales at https://www.judiciary.gov.uk/wp-content/uploads/2016/05/international-visitors-guide-10a.pdf 4 Some basic information about the nature of the legal system in England and Wales. There are three legal jurisdictions in the United Kingdom. Scotland has its own legal system and so does Northern Ireland though that is more similar to the system in England and Wales. The English and Welsh system affects the vast majority of the UK population; that’s 57 million. Scotland has a population of 5.3 million and Northern Ireland 1.8 million. There are two spheres of law: criminal law and civil law. Criminal System. Crimes are mostly investigated by the police and prosecuted by the independent Crown Prosecution Service (CPS) whose head is the Director of Public Prosecutions. (DPP) The police process involves either an on the sport fine, or reporting an offence for minor motoring crimes, or arrest for the more serious offences. After an arrest suspects will be questioned, there will be the collection of evidence and a decision will be made to charge or not by the CPS. Most crimes are dealt with in Magistrates Courts that can sit with full-time District Judges or panels of lay magistrates. These courts can sentence to a maximum of 6 months for a single offence and up to one year for two offences. If they think a crime with a high maximum penalty requires harsher punishment they can refer the case to the Crown Court. In March 2015, the cap of £5,000 on fines by Magistrates Courts was lifted. When people are arrested for very serious crimes, known as indictable offences, they appear first at the Magistrates Court and the case is then immediately transferred to the Crown Court for trial. Trial at the Crown Court takes place in front of a jury of 12 people which decides the facts in terms of a guilty or not guilty verdict. A single judge decides matters of law and imposes the sentence. The Prosecution have to prove the cases so that the jury are sure- used to be known as beyond reasonable doubt. Appeals against sentence and verdict go the Court of Appeal- Criminal Division. Civil System. Civil wrongs in law are litigated by private parties known as the claimant and defendant. Small disputes involving property and services of less than £5,000 are dealt with in the Small Claims Court. The parties usually represent themselves. Disputes and claims for larger amounts are sued over in the County Courts with single judges deciding the facts on the balance of probabilities and making any decision concerning damages, or injunction. Disputes involving larger potential claims (over £15,000) are heard before the High Court that mainly sits in London, but also sits in regional centres such as Birmingham, and Manchester. The High Court has several divisions: Chancery, Queen’s Bench Division, Family and Administrative which can deal with first instance cases for judicial review or appeals on points of law from County and Magistrates courts. It is very rare for civil actions to be decided by juries. It is now only known to happen in actions for malicious prosecution or unlawful imprisonment. There is an Appeal Court Civil Division and further appeals on points of law of general public importance can be heard at the UK Supreme Court. If there are human rights’ issues there is recourse to the European Court of Human Rights in Strasbourg and if there are European Union law issues appeals can be made to the European Court of Justice in Luxembourg. While the UK remains a member of the EU, the rulings of the ECJ are binding. After ‘Brexit’, the government has not yet decided on the status of EU law before or after the UK’s official departure. Under section 2 of the 1998 Human Rights Act, UK courts are supposed to ‘take into account’ ECtHR rulings. Under section 3 the interpretation of UK legislation ‘must be read and given effect in a way which is compatible with the Convention rights’.