The BJTC Media Law, Regulation & Ethics Handbook 2021 By Tim Crook Above Logo for UK Broadcast Journalism Training Council http://www.bjtc.org.uk and Royal Courts of Justice in the Strand, London. Image by Tim Crook. Published March 15th 2021 by Kultura Press ISBN 978-1-908842-17-6 1 Contents 2 Contents 3 Author 4 Key Principles on a Page: Avoiding the six media law sins 5 Brief tabulated overview of legal system of England and Wales 6 Basic information about the legal system 8 Introduction to main themes of media law: SPECTACULAR Professional moral values and ethics 21 BBC Values 21 Respecting the rule of law 22 Impartiality 26 Professional skills to a high standard Primary Media Law in detail 27 Open Justice 60 Contempt 66 Reporting court cases 70 Reporting Restrictions and the problems in challenging them or breaching them 79 Defamation also usually known as libel 82 Libel defences 87 Malicious Falsehood 88 Privacy 95 Case History Discussion: Sir Cliff Richard v BBC 110 Background to privacy law development 116 Making editorial privacy decisions in relation to images 120 Data Protection Acts and EU General Data Protection Regulation 124 Copyright/Intellectual Property Additional briefings 131 Reporting Courts-Martial 134 Reporting Inquests 138 Questions to ask yourself in relation to your reporting 142 Analysis of Ethics and Law- case history from the past Secondary Media Law- regulation by statutory and industry bodies 145 Introduction to regulation as secondary media law 146 Ofcom Regulation and the BBC 148 The Ofcom Broadcasting Code 154 Accuracy, Opportunity to reply, Due Impartiality 162 Sources 164 Important UK existing media law relating to journalists’ sources 166 Case History Discussion: Robert Norman v United Kingdom 176 Case History Discussion. The Snoopers’ Charter. 184 Privacy 185 Harassment and Intrusion into grief or shock 187 Professional Values 190 Reporting children and ‘children in sex cases’ 195 Hospitals 196 Reporting of Crime 199 Clandestine devices and subterfuge 201 Victims of Sexual Assault 201 Discrimination 202 Financial Journalism 203 The Public Interest 206 Harm and Offence Short Summaries 208 UK Contempt and Reporting Crime 209 Guide to Court Reporting Key facts and Checklist 210 Libel, Privacy, Accuracy and Balance 211 News Gathering, Story Finding and Public Interest 212 Protecting Children 212 Copyright and Intellectual Property 213 Laws and Rules for Elections and Politics 214 The Secret World 215 Scottish and Northern Ireland differences and issues 216 Social Media/Online/Blogging- Risks in media law 218 US Society Professional Association of Journalists’ Code of Ethics 220 US Radio, Television, Digital News Association Code of Ethic 223 Guidance on using the UK Freedom of Information Act 2000 226 Media Law and Racial Justice 238 Comparative Media Law- Why is US Media Law so different? 2 The Author Professor Tim Crook BA Hum BA Open LLB LLM PhD Emeritus of Goldsmiths, University of London is President of the Chartered Institute of Journalists which is the world’s longest established professional association of journalists and only such body with a Royal Charter. He is the author of Comparative Media Law & Ethics, UK Media Law Pocketbook, (Routledge 2009 & 2013 with 2nd editions in 2021) and BJTC Media Law, Regulation and Ethics Handbook (annual). From 1981 to 2000 he ran a specialist news agency covering the Royal Courts of Justice and Central Criminal Court for UK broadcasters and was the UK’s first specialist broadcast legal affairs correspondent for IRN/LBC. He negotiated the first recorded broadcast from the Lord Chief Justice’s Court of the valedictory ceremony for Master of the Rolls Lord Denning in 1982, and campaigned against courtroom secrecy throughout the 1980s and 1990s. In the process, he secured a European Court of Human Rights settlement with the UK government following a judicial review in his name which exposed the lack of any appeal or legal remedy against court reporting bans and decisions to exclude the press and the public from Crown Court proceedings. This resulted in the special Section 159 appeal procedure in the 1988 Criminal Justice Act which provides the media with a direct appeal route to the Court of Appeal Criminal division against reporting bans and secret hearings. Professor Crook received a Campaign for Freedom of Information Award in recognition of the achievement in improving the rights of journalists and news publishers in 1988. He presented two significant appeals against courtroom secrecy at the Appeal Court during the 1990s and is currently advocating several Freedom of Information cases on Article 10 grounds in the First Tier Tribunal and Upper Tribunal Information rights system. He founded media law and ethics teaching at Goldsmiths, University of London and has been lecturing and seminar leading there for 31 years. He was a visiting media law instructor to the BBC for over 20 years. He also campaigned and lobbied for the inauguration of a law department at Goldsmiths. In 2019 he received a special award from the Broadcast Journalist Training Council for services to Journalism and Journalism training. Follow on Twitter @ciojournalist & @libertarianspir 3 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/discouraging 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 are 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. 4 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.uk/wp-content/uploads/2016/05/international-visitors-guide- 10a.pdf This graphic is not only informative about how the legal system works in terms of the routes of appeal, but it also demonstrates that the England & Wales jurisdiction is among the most complex with one or two