Media Law Lecture #3 - Defamation

Where ever you're sat right now, whoever you are - your clothes are dreadful. Do you really think you can sit there and wear that, let alone go out in public? Those clothes are rags. Also, your hair looks silly and so does your face. Why are you wearing those socks? They're soooo last Friday. It's Tuesday, it says so on the pair you should be wearing.

You're probably sat there wondering what on earth I'm harping on about, well that's called 'attack journalism', a form of the art where you pick away at someone famous and then pass it off as a cheap comment to avoid libel. It's definitely a form of defamation, but not one that's likely to get you in any doo-doo because you can argue that it's what you really believe. I really believe you should be wearing your Tuesday socks today, because it's Tuesday. Rude is good.

Libel is a civil tort and has very recently replaced duelling in our herritage. Instead of slapping someone around the face with a silk glove, nowadays you knock them out with a huge law book, as disputes between parties are settled in a much more humanitarim manner - in the court room. A claimant can claim to be defamed by a comment and thus march the defendant down to the magistrates court, if they feel that their reputation has been damaged in one way or another. However, this proclaimed reputation must be your ACTUAL reputation. There's no point in me storming down to the courts proclaiming I'm a rock god, when people generally think that I'm just a bellend who can barely play a guitar and have published that.

Defamation can be very, very damaging to a claimant as it can not only cost them their reputation, but also all the benefits that go along with it such as money, sex, drugs and rock 'n' roll. A very famous case of defamation involves former solo artist Gary Glitter, who, after being found guilty of paedophillia, can barely leave his own house without having axes and spears flung in his direction.

It's incredibly important to realise that defamation IS NOT about hurt feelings. If you're hurt by my comments about your silly hair at the top of my blog, then I'm sorry, but it's a fair comment. People who go to court because they have been upset by something in the press will get laughed out of the room. Sure, the comments may be hurtful, but everyone knows you're fat - you know your fat, so it doesn't really demolish your reputation. Unless you're a fitness instructor, which you're not.

Libel laws are stricter in some countries than others, so it's not unlikely that a claimant may take their cases outside of their country in order to receive the verdict that they so desire. A number of high profile cases like this involve Scientology, a 'religion' that is absolutely amazing and can do no wrong. I want to say they're a cult, but they hate being called that and they're most likely reading this because THEY ARE EVERYWHERE. In fact, sod it, they're a cult and just, well, god-awful. That's my truthful opinion. Bring on the law suit, Mr. Cruise and Mr. Travolta.

To be considered 'defamatory' a statement only has to tend to defame someone. There's no need to prove that you're losing work and friends because you've been condemned by the media as a dog rapist, there just has to be a level of probability. Stories about you raping dogs are probably going to cost you your reputation as a vetinary surgeon. This leads me on to animal cruelty. The UK is crazy about all things cute and fluffy - anything from dogs to alpachas, dormice to leopards, so going round kicking them and making them fight isn't going to make you Mr. Popular. No, no, quite the opposite, for animal cruelty is considered the worst form of defamation. A furious reporter has a story in today's Sun about a television chef, someone in the public eye, saying that eating puppies is no different to eating beef. In a way he's right, after all they are both meat, but we keep puppies as pets! How dare he be so logical.

Libel and slander are two fruits from the same tree: slander deals with spoken defamtory, whereas libel speaks of the published form. It is the latter that we are most concerned with.

For an act to be considered libel it must match up to the three stages of it:

1. A defamatory statement must be made involving one of:
• Ridicule: Just like laughing at someone in the playground for having one testicle, ridicule is where you mock someone over how they look like, their actions or their beliefs.
• Hatred: This is trying to rally hate against an individual - for example, Jade Goody was touted as the most hated person in Britain. Ironically, the same publications portrayed her as an angel when she was dying of Cancer. Don't get me started on this though, I've written an extensive argument on the subject in the past and it gets me riled up every time I think about it.
• Contempt: Basically, the statement must lower the claimants public standing or discredit their trade/profession for contempt to be involved.
2. The defamatory comments must be published in a particular form and be permenant:
• Radio and TV broadcasts, newspapers and websites, are all forms of publications that can be used in a libel case as they are all published to a third party (the public) and are all permenant as they are all recorded in one way or another.
3. There must be positive identification:
•  A libel case cannot be brought by the whole of France if you claim that all French people stink of garlic, as you cannot libel an uncorporated association. In a defamation case the person must be identified in order to be defamed against. There are various forms of positive identification, but the ones most likely used in court reports are:

• Name
• Age
• Residence
• Occupation
• Photo
• A photo is especially important as, in a very unlikely case, there could well be another person with the same name, age, residence and occupation as the person in the report. They could quite easily turn round and say that they feel defamed by it. A photo is used to counter this because the chances of them being an exact replica of the offender are even slimmer. Practically nill, unless of course you're their identical twin, in which case it could very easily have been you sat in that nice box up there, so it's probably best to keep shut-um.
• So, going back to my opening paragraph, it does not defame anyone specifically as I am referring to 'you' the reader, not you as in yourself.

The meanings of words can change over time. If ShowBiz SCANDALZZZ outed someone as gay in the 19th Century it would have been seen as very defamatory and the likelihood would be that the accused would go the same way as Gary Glitter. In recent times though, being homosexual is not viewed in the same light. You could argue that a portion of society still see being gay as a bad thing, but it's less frowned upon and more openly accepted than it used to be. The public are more obsessed by the people who get their money and taxes now, so a more defamatory story would accuse an MP of buying second and third houses with the tax payer's money. Not that that's ever happened, has it?

Finally, we come to the defences - the ways in which journalists can defend themselves against libel suits. These are the three biggies:

• Justification: If a journalist can prove that a story they have ran is true, it's like a fist up the bum and a big "F you" to the claimant. They won't be seeing your money this time round.
• Fair Comment (based on fact): Journalists have a certain scope in which they can say harmful things about people, so long as they make it clear that it's an opinion not a fact. I can say "I think Vinnie Jones is a pansy," but I can't say "Vinnie Jones is a pansy" and present it as a fact, as this would damage his reputation of being a propa 'ard nut.
• Qualified Privilege: Journalists can be exempt from libel actions on certain occassions due to qualified privilege. They're allowed to say some things, but as they do not hold absolute privilege like judges, lawyers, barristers and witnesses do, they cannot say everything. However, qualified privilege can be lost if the publication is not:
• Fast - Printed in the next publication / Aired in the next TV broadcast
• Accurate - Spelling must be 100% accurate, as should the facts being presented
• or Fair - Journalists must report pleas of not guilty and summarise the defendants defence.

Media Law Lecture #2

Here's an expansion on the notes I took in my second law lecture:

Court Reporting

Basic Legal Principles
          Presumption of Innocence
This means that you are innocent until proven guilty "beyond reasonable doubt." When a defendant enters a court he is to be tried on that case and that case only, so any previous convictions are not taken into account. The jury do not know about these and thus can't judge the offender on them, even sub-consciously. To be proven beyond reasonable doubt, there must be forms of either forensic evidence, reliable witnesses, or the defendant can confess. However, a confession isn't always concrete as history shows that police can interrogate people to the extent that they give a false confession. This happens particularly with young offenders.

         The Right to a Jury Trial
In the UK every offender has the legal right to be tried by a jury. A jury is a group of 12 members of the public who are randomly selected from the electoral roll to try the defendant. They must sit through the entire case and then weigh up the evidence and decide if the defendant is guilty or innocent. This is done by a vote, but a majority is needed to be able to decide either way. If the jury can't reach a majority vote then there will be a retrial. Another factor that could lead to a retrial would be if a member of the jury interferes of contacts the defendant, this would pervert the course of justice.

          Justice Must be Seen to be Done
All trials  (unless they are a threat to social security or the anonymity of a child is concerned) are to be aired in public. The general public can sit in the court's viewing gallery so that they can see justice be done, or even, in some cases, mis-justice. The press can also view trials as they are seen as the "eyes and ears of the public." Judges can rule against this, however, but the public and the press can challenge the judgement.

Criminal Court
          The Jury, Barristers and the Judge
Juries are only found in crown courts. They can only decide on whether the defendant is innocent or guilty, only a judge is able to pass a sentence. Juries are only able to judge the defendant on the evidence provided, any previous convictions are mentioned only when relevant or after the Jury has reached it's verdict.


Barristers are high-up lawyers who argue the cases for the defendants and the prosecutors. They question the evidence and fight tooth and nail for their cases.


Judges head each trial. They decide on the accessibility of the evidence, meaning that they can discard evidence they don't find relevant to the case. Another duty of the judge's is to guide them on the law, although they must be careful not to lead them. A judge must decide on the punishment if the defendant is found guilty.
        
          The Crown Court
Crown courts deal with indictable offences that carry a sentence of five years or more, cases such as these are bypassed by the magistrates as they are too hardcore for them to deal with. Crown courts also hear appeals by people who have already lost trials and been convicted. Smaller cases (summary) also pass through these courts, fines are laid down for actions such as drink driving and parking tickets. Either way cases, such as the use of Class B drugs can also go through Crown courts should the defendant wishes to be trialled by a duty.

         Contempt of Court - Strict Liability
Contempt of Court happens when anything is done to prevent the court of convicting justice, such as threatening the jury and witness, this carries a prison sentence of five years. A good example of this involves two footballers: Jonathan Woodgate and Lee Bowyer, who were accused of attacking Asian youths. Colin Myler, the former editor of the Sunday Mirror, interviewed the families of the victims whilst the trial was in progress. The interviews were published, thus prejudicing the jury and committing contempt of course, rendering the case a mis-trial.

          Prejudice
Prejudice can destroy journalists, so it's very important that they stick to the facts. Pre-judice means to pre-judge before any facts are revealed. It can involve assuming guilt due to the appearance and personality of the defendant. It stops them from having a fair trial due to the lack of presumption of innocence.

Media Law - Introduction

Freedom of Expression

With freedom of expression, both journalists and the public have the right to communicate information and ideas, within reason, of course. As a whole, 'Freedom of Expression' is what makes a democracy exactly that, if the media and the public were stifled and oppressed (such as they were in the Soviet Union) it would become a dictatorship - the country and the media would be in a situation where they would be dictated on what they can or cannot say, with severe consequences if they do not abide.

Using Soviet Russia as an example, their constitution stated that the public and media must not say anything against the Party or it would be treated as an act of treason/Western influence. To help omit any of these issues before they arose, the Soviet government acted on banning anything they considered of a Western source, be it literature, art or music (Stalin famously banned the Saxophone for this reason). However, in a stark comparison, the UK does not have a constitution that limits anyone's rights. This is known as being 'residual', a term used when the constitutional position of the country is that it's citizens and journalists are free to do whatever they please, so long as it is within the law. Until the year 2000, when the European Convention of Human Rights was inhabited by the UK, there was no clear horizon on the extent of people's freedom.

Some would agree that the freedom of expression has been greatly dented within the last few decades, however, they would also say that this is understandable and to acceptable to an extent. The law has a duty to find a balance between the media condemning an individual and giving the individual a chance to defend themselves against such attacks. An example of this would be the ongoing trial of Italian Prime-minister Silvio Berlusconi who is accused of having sexual intercourse with a 17 year old prostitute. The law of defamation is in place in the UK to help find the middle ground.

With no written constitution, freedom of expression in the UK is dependant on two things: jury trial and the law against prior restraint.

Jury Trial   

There are certainly a number of legal cases that have seen journalists face a jury for breach of the law. However, some journalists who have been acquitted against can be considered lucky as they were not found guilty by juries, despite the law being against them. Such an example would be the case of Clive Ponting, a civil servant who leaked government information and thus breached the official secrets law. History suggests that a jury made up of citizens is more likely to acquit a defendant (journalists included) who act in dissent against government policies than a judge would be.

Rule Against Prior Restraint

The rule against prior restraint was developed in UK law to prevent variations of censorship on freedom of expression. An example of this can be found in libel law, where judges are highly likely to reject an application that stops the press from printing stories about certain cases. If the defendant feels that they have been defamed in someway by what has been printed, they are able to attempt to secure compensation through damages.

Injunctions are a much more widely used form of censorship when the press plans to report on stories where a defendant may argue that it would be an invasion of their privacy. These measures are generally temporary and are only in place until the courts decide whether or not the press are allowed to publish stories on the issues. When a 'super injunction' is put in place, it means that the press are gagged on the issue and will not be allowed to report on it, whenever it is. If they do they could face prosecution and heavy legal fees. A very recent example of this would be that of Premiership footballer Ryan Giggs. Giggs felt that claims made by a former Big Brother contestant that he committed adultery with her would damage his public image as a role model for aspiring footballers, and also as a genuine family man. The court ordered that a super injunction would be put in place, however, what Giggs did not anticipate was that the law did not stretch over the boarder to Scotland, where the Scottish Herald printed a picture of the football star on their front page, only with his eyes censored out.

In the case of normal injunctions, the party who intend to argue that the publication should go ahead will be given a chance to air their views. Usually they would state that the issue would be in the public interest.

The Public Interest

In journalism, the public interest is defined by how highly society values the issue. A case for a story to be published can be argued that it is 'in the public interest' if it has a high value in society. There are a number of situations where this can be suggested, namely that a politician could be misleading them, or that a criminal has been moved to the local area. This has caused controversy in the last 20 years in the case of the murder of a toddler, James Bulger. The killers were ten years old at the time and have since been sent to correctional facilities and been given new ID's, causing uproar within the public as they would have no idea if these people are residing in their neighbourhoods. The identity of John Venables was not known until recently, as he was caught reoffending. It is argued that it is in the public interest for people to know the new identities of the murderers. However, the defendants argue that they should be given a new start in life and not be haunted by their past.

Sources of Law

          Custom:

In the middle ages royal judges were appointed to oversee 'law and custom of the realm'. In other words, these are nation-wide laws, as opposed to local laws which are only applied within that area.

          Precedent:

In short, a precedent is where the decision of a court is over-ruled by one of more supremacy. A case may begin in a local court in front of a small committee, but the ruling may be appealed at a higher court. The ruling made by the higher court then over-rules that of the smaller one, and so on and so forth, until a decision is made. Metaphorically speaking, an example of this would be when a child asks their older sibling if they are allowed to do something, if the sibling says no, the child will then cry to their mother who may say yes or could agree with the sibling.

Magistrates Court -> Crown Court -> (may bypass) High Court -> (may bypass) Court of Appeal -> Supreme Court

Tribunals -> (may bypass) County Court -> (may bypass) High Court -> (may bypass) Court of Appeal -> Supreme Court

          Equity

The term 'equity' means fairness and impartiality. In law, this term encompasses these alongside doctrines and procedures that have developed over the centuries with common law. These allow the judge's the movement to make rulings which they believe are just within individual circumstances. The 'maxims of equity' express such values. For example, if someone comes to court having violated the rights of others, their chances of getting obligations that the victims owe them are reduced. 'He who comes into equity must do so with clean hands.'

          Statutes and Statutory Instruments

Statutes are acts of parliament that are drafted in and approved by politicians in the House of Commons and House of Lords. They are mingling with common law and becoming part of it. These are acts of primary legislations. Secondary legislations are known as statutory instruments which are passed by the departmental Minster in great detail, who will then work at setting out this law in regulations or rules. They are also used to phase legislation in gradually.

          European Regulations and Directives

As the UK is part of the European Union, the EU laws are part of UK law. The European Court of Law in Luxembourg clarifies how the law should be interpreted by member states and their courts. For example, the court can rule that EU law has been infringed by a member state, maybe to gain advantages in trade and commerce. The court can penalise states for the infringement.

The European Convention on Human Rights
After the fall of Berlin and World War II had come to a climatic end Western European nations signed a treaty to create 'The Council of Europe'. This was an immediate response to the genocide caused by the Nazi's and other totalitarian regimes. The council was set up to promote individual freedom, political liberty and the rule of law. If such a council existed in the African nations, regimes such as Colonel Gadaffi's may have crumpled much sooner; instead it was up to the people of Libya to rise up and tear down the tyrant, city by city, town by town, village by village.

The European Convention on Human Rights was created by the Council of Europe to preserve the right to life, freedom of expression and freedom from torture. The UK was one of the 47 signatory nations to adopt this act. History shows that it was successful, as the government of Soviet Russia stopped pillaging and torturing their own people, although it can be argued that such acts were still performed by the KGB, though no official order had been made.

Based in Strasbourg, the European Court of Human Rights was created as a result. This is where individuals can hold cases against their signatory nation and argue that they have failed to protect their human rights against public authority. Public authority can include national governments, local government bodies and other state agencies. If, for example, an individual felt that someone had violated their human rights and their governing body refuses to acknowledge this, the person may take the case to the ECtHR, so long as they have appealed extensively against the rulings in their nation's court system. The ECtHR can make the defending nation pay compensation if they are found guilty. The Council of Europe's Committee of Ministers must check if the nation as obeyed the judgement.
          The Human Rights Act 1998
Coming into force on October 2nd 2000, the Human Rights Act has greatly increased the influence of the ECtHR within the UK courts, now allowing individuals to take cases that would usually be seen in Strasbourg to any court in the UK. Strasbourg can still be an option if they feel that the ruling passed is wrong or unfair.

The act states:
          1) A UK court determining a question in connection with a Convention right must take account of decisions made by the ECtHR.
          2) New legislation must be in accordance and compatible with the Convention rights, and any old laws must be stretched to fit them as well as possible. A bit like a hat that doesn't fit.
          3) A government minister may be called in if the UK deems legislation 'incompatible.' This is because the UK courts have no power to remove legislation that does not match up to the convention. If the minister feels similarly to the court, they can introduce amending legislation.
          4) UK authorities MUST NOT act in a way that is incompatible with the Convention rights.

As a journalist, the most important part of the Convention for me is Article 10: "Everyone must have the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority." Any restriction on this act MUST be justified: "They must be necessary  in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others." Any restrictions must be "prescribed by the law." In other words, this means they should have a legal basis to be imposed.

This may seem rosy for journalists, but any journo wanting to argue in court may well be met by Article 8, which is a basis for a lawsuit by an individual to prevent publications about their personal life, and pictures / films that may invade their privacy.
          Weighing Competing Rights
Article 8 and Article 10 share an equal significance. Lord Steyn states that each point of view must be weighed up to see which argument will prevail. Significant justifications or interfering with each right must be taken into account. Each case is different and as such, should be treated individually. This leads to the rights being claimed being extensively compared. Public interest is also taken into account, as is the importance the case has to society as a whole.

In a case involving a child, the child remains anonymous. An example of this is the case of 'Re S' where giving the child anonymity was argued as right under Article 8, on the grounds that the trial was too public and the child needed shielding. Lord Steyn argued against this (along with other media organisations) under Article 10, stating that the public interest in unrestricted coverage of the trial would be too greatly harmed if anonymity was granted.

Proportionality is an important factor. A judge will consider whether the media's invasion of the person's private life will be disproportionate to the level of public interest involved. If the value is deemed low, it would be classed as illegal if the media breached their privacy. However, this can work the other way round as the judge must consider whether the ruling will have a disproportionate effect on the media, which can lead to half-stories being published; stories where the censored sections must not be aired but the rest can.

Diversions of the Law
Criminal law deals with cases that could harm the public, making them an offence against the Sovereign. They are filed as the crown vs the defendant. An example of this would be R v Smith. R stands for Regina (Queen) or Rex (King), V stands for versus and Smith is a random name I inserted.

Civil law engulfs disputes between individuals and organisations in financial matters, or other entitlements such as rights to more breaks at work or medical negligence. Civil law is also used to settle disputes between couples, such as divorces.

These two laws can overlap. If a victim gains compensation, it's very possible that the offender can also be prosecuted for criminal charges. An example of this may be if a person gets injured on a building site - they could gain compensation for their injuries and the construction company may get prosecuted for undue care. Breaches of copyright can also be taken on by both courts.

Something to take note of is that defendants in civil courts are not being prosecuted. Using this language suggests that they have committed a crime. In civil courts, the party taking legal action is known as the 'claimants' and are suing the defendants. If they lose the case they are known as being 'found liable.' The term 'sentence' is only used in criminal court.

The Legal Profession
Lawyers are either solicitors or barristers. Solicitors deal with the client. They can advise them and prepare their case, whilst taking advice from barristers who have specialised into that particular branch of law. Solicitors can represent their defendants in court, although they are typically only allowed in the lower courts. From 1993, solicitors have been able to gain qualifications to compete with barristers to represent defendants in the higher courts. Sometimes a solicitor can 'brief' a barrister to conduct the case. This is where they gain their title 'solicitor' as they 'solicit' the services of a barrister for their client.

Barristers get their title from 'working the bar', a physical barrier between themselves and the judge, although it is no longer found in most courts. Collectively, they are known as 'counsel.' DO NOT call them solicitors, this is wrong.

Legal Posts in Government
Lawyers traditionally hold three senior government positions: Lord Chancellor, Attorney General and the Solicitor General. Until 2005, the Lord Chancellor was head of the judiciary, but the Constitutional Reform Act  changed to reinforce that the judiciary is separate from the government.

Lord Chancellor: Responsible for justice system, political head of Ministry of Justice (NOT magic).
Attorney General / Solicitor General: advise government on legal issues.


Regulation and Self-Regulation of the Media
OFCOM is the regulating body of broadcasting and can fine organisations for breaching regulations. It can close down official or pirate broadcasts. The BBC is regulated by OFCOM and self-regulated by the BBC Trust. OFCOM set out ethical rules for broadcast journalists, but it's their employers who face the music if they breach legislation. A constant example of this would be Top Gear presenter, Jeremy Clarkson, who is constantly offending baby otters and tribes from Ipswich, causing the BBC to apologise for his actions. BBC journalists must stick to the ethical code set out by the BBC Editorial Guidelines, which incorporate various elements from the OFCOM code.

Broadcasting is subject to statutory regulations, as countless times in the past, politicians have regarded it as a harmful medium if it fell into the wrong hands. All sorts of hideous things could be sent to the minds of children among the country, brainwashing them to hang old people on washing lines, whilst spraying them with vinegar-filled Super-Soakers. Or, in there words, inciting violence.

An important use of regulation would be the governing of the airwaves. This stops the radio channels of the emergency services suffering from interference. However, digitalisation is currently making this more irrelevant.

Newspapers and magazines, anti-monopoly legislation aside, are not subject to statutory control on who owns them, or statutory regulation on their journalist's ethics. They can be politically free. They are self-regulated by the Press Complaints Commission, an organisation they set up to deal with complaints on output (print/internet/etc.), or how their information is gathered. This has been major news very recently as Rupert Murdoch's News International owned newspaper 'The News of the World' has been accused of phone-hacking to gain information. The Editor's Code (PCC code) is drawn up not by the organisation, but by editors, to set out a code of ethics. The only part the PCC plays in this is shaming any editor's publication who breaches it.

The above information is cited from: McNae's Essential Law for Journalists, D. Banks and M. Hanna (Oxford University Press, New York), Chapter 1