Paul BradshawSenior Lecturer, Online Journalism, Magazines and New Media, School of Media, Birmingham City University, UK (mediacourses.com)Blogger, Online Journalism Blog

The UK law and online journalism

Disclaimer #1

• I am not a lawyer, so the following does not constitute legal advice but an academic overview of law as it affects journalists and bloggers.

Disclaimer #2

• It appears to be almost impossible to avoid bullet points when talking about law

Disclaimer #3

• The law makes you paranoid, and include pointless disclaimers in everything. Anyone know any lawyer jokes?

Conversation-starter:

Audit(legal experiences)

Themes

1.Defamation, contempt, confidence, privacy, copyright

2.Developments in law3.Regulation

It's defamatory if...

• Lowers people's opinion of someone• Without justification• Calculated• To be shunned and avoided without

any moral discredit

You are the publisher (no excuses)

 

Examples

• http://bit.ly/libelegs (http://www.independentproducerhandbook.co.uk/66/5a-defamation/what-is-defamatory.html)

Burden of proof

• Claimant has to show it was injurious (they have UK reputation), and was published

• Defendant has to prove it's true oroFair commentoAbsolute privilege (parliament, court - e.g. Trafigura)

oQualified privilege 

Who can sue?

• The living - not the dead• Companies and organisations• Groups of people - but if large, case

may be weak (e.g. goalkeepers)• Some more litigious than others• Not councils, quangos etc.

(Derbyshire CC case)

Who can be sued?

• Anyone.• Really, anyone. If you wiped a bead

of sweat from the interviewee's brow you could be in for it.

• (Or involved in publication, from interviewees through to journalists, editors, publishers, printers, distributors)

The gag with the £10,000 punchline

When?

• Within 1 year of publication (Scotland 3 yrs)

• But online each access = publication

Fair comment

• Honest & sincere opinion (not malicious)

• Based on true facts (must be indicated or well known)

• On matters of public interest• "I think that..." is not enough

 "She can't sing, her bum is too big, and she has the sort of stage presence that blocks

lavatories." 

http://mavrkylawofdefamation.blogspot.com/2007/01/defences-of-defamation-chapter-3.html

“The chips were pale, greasy and undercooked ... the cola was flat, warm and watery ... marsala so sweet as to be

inedible ”

http://www.pressgazette.co.uk/story.asp?storycode=40807

Qualified Privilege

• Moral, legal, social duty/interest in publishing

• "Fair & accurate" reporting of Inquiries and public documents

• More at http://www.opsi.gov.uk/Acts/acts1996/ukpga_19960031_en_3#sch1 

Absolute Privilege

• Parliament, e.g. Minton report & Trafigura 

• Court• Need for accuracy: story based on

prosecution evidence may need defence added later? Links?

• 'The trial continues'

Reynold's Privilege

• Responsible journalism on matters of public interest

• Took precautions• included response• (but correct your archives if you were

wrong)• The 10 point test

Reynold's Privilege

"The defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information."

http://netk.net.au/Defamation/Jameel.asp

Consent 

Innocent dissemination

• Defamation Act 1996• Not liable for UGC content if not

responsible• No defence if put on notice: then -

oRemoveoAdd statemento Investigate & verify/remove

• Monitoring = responsible?

Innocent dissemination

• What if streaming defamatory content? Defence under lack of control?

• Responsibility to add apology during stream? captions?

• But as soon as finished it becomes publication and editable

Developments• UN Human Rights Committee report, July 2008 - criticised

English libel law: may breach Article 19 of international Covenant on Civil and Political Rights (freedom of expression)

• 'Rachel's Law' passed in US to protect citizens from being sued in UK

• Index on Censorship/PEN report on libel, Nov 2009• MOJ consultation on defamation & multiple publication, Dec

2009 (following 2002 recommendation)• Wragge & Co pursuing anonymous defamers• Case history: see libelreform.org Appendix

Contempt

• Prejudicing active legal proceedings• Previous convictions• Lifestyle, if relevant• Details of jury deliberations• Payment to or promise of payment to

witness during trial• Breaching court orders• Misuse of documents disclosed

during proceedings

Contempt - when

• (someone has been arrested; warrant/summons issued; charged)

• Active until acquitted/convicted• Re-active if application for leave to

appeal made• Civil proceedings active when hearing

date arranged

Contempt - watch

• Archives when proceedings active (But Attorney General said unlikely to bring prosecution unless published again)

• Print distribution (local) on proceedings elsewhere vs online distribution (global)

Contempt - defences

• Innocent publication (limited)• Fair & accurate contemporary reports

of court proceedings• Discussion of public affairs (AG v

English re: Down Syndome)

Under 18s

• Legal proceedings in Youth Court: no name, address, school or details that could identify a minor involved as defendant or witness

• In adult courts no automatic restriction but section 39 likely to be made which would do same

• Family proceedings likewise

Privacy...• Revealing private information• Filming without consent, particularly

in private places• Doorstepping• Public spaces more protected, but

typically warn people you are filming• Low resolution of streaming

protective?• Permission slips (or on film)

Privacy...

• Human Rights Act 2000• 2004: Princess Caroline, photos in

public place but private life

...and confidence

• Confidential information imparted under a duty of confidence

• Or acquired as part of your job (confidentiality agreements)

• Publishing documents containing confidential information

Defences

• Consent• Public interest

o Exposing/detecting crime, corruption, antisocial behaviour, injustice

o Exposing lies, hypocrisy, misleading claimso Protecting public health & safetyo Disclosing incompetence, negligence, dereliction of

dutyo Exposing dangerous/exploitative behaviour

Injunctions

• Against publication• Need clear evidence of iniquity/false

impression• 3rd parties aware of injunction can be

guilty of contempt if they publish

Copyright

• Fair Dealing (EU directive 2003) research for non-commercial purpose

• Reviews can quote only if material has been made available to the public

• Acknowledgements to copyright owners need to be 'sufficient'

• Do you have web rights? Global rights?• Understand Creative Commons• Don't take ownership for granted• Seeking permission isn't just polite - it's good

distribution too

T&C and data protection

• Copyright (needed if you are distributing)

• Defamation• Ethics• Permissions• Flagging posts• Closing accounts• What you will & will not do with data

Taylor Wessing's recommendations1. Don't monitor UGC unless necessary2. Don't encourage potentially infringing content3. Have effective report this post policy; distinguish between UGC and

editorial4. T&Cs should be expressly agreed by users; give discretion to

remove content/suspend accounts; prohibit defamatory etc. content; include copyright licence; privacy policy

5. Have procedures for complaints & take-down6. Notify claimant and poster when material taken down7. Deal with users politely8. Have policy for dealing with identity requests

Regulation & misc.

• Ofcom Broadcasting Code (being revised 2009)

• PCC Code• IWF (self-regulation) (more)• NUJ Code of Conduct• EFF (bloggers' rights)• IndyMedia

 

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Paul BradshawSenior Lecturer, Online Journalism, Magazines and New Media, School of Media, Birmingham City University, UK (mediacourses.com)Blogger, Online Journalism Blog

OnlineJournalismBlog.comTwitter.com/paulbradshaw