Law Revision

The legal framework in the UK
1) What do Crown Courts do?  What is an indictable offence?
Indictable offence = most serious offences- attract a prison sentence of five years or more e.g. rape, murder. 
Crown courts have 3 functions = 
1. Trial indictable offences
2. Hear appeals from magistrates courts
3. Sentencing

2)What do Magistrates Courts do?  What is a summary offence?
1. Summary  Trials
2. Commital Hearing
3. Youth Court
Summary Offence = minor offence dealt with by magistrates.

3)What is the highest court in the UK?  Where does it sit? How many justices?
The Supreme Court, Located in Central London, there are 12 justices.

4)Three functions of Crown Courts?  (Trys indictable offences, appeals from mags, sentencing)
1. Trial Indictable offences
2. Hear appeals from magistrates courts
3. Sentencing

5)Three functions of Magistrates courts?  
1. Summary Trials
2.Commitals
3. Youth Court

6)What is the difference between a civil and criminal offence?
A Civil offence is against an individual or an organisation e.g. Brown V Smith. A Criminal offence is against the community as a whole and therefore against the Sovereign e.g. R V Smith.

7)Is the legal test of proof the same or different?
No:
Criminal = beyond reasonable doubt
Civil = on the balance of probability

8)Give 3 sources of law in the UK.
1. Common Law
2. Statute
3. EU regulations and directives. 

9)What do journalists mean by the public interest?
Reynolds Defence – the subject is of real public concern

Reporting Crime and the Courts
1)Briefly explain what is meant by ‘prejudice’ and ‘contempt’ in the context of media law.
Prejudice is to have pre-conceived ideas about the defendant or subject prior to trial, that could be detrimental to their right to a fair trial.
Contempt is the publication of material that is in breach of the rules on crime or court reporting and has a high risk of prejudicing legal proceedings.

2)When does a case become legally active?
Once an arrest is made, a warrant has been issued, a person has been charged or when a summons has been issued by magistrates. 

3)After an arrest is made what sort of facts – in general terms – can be reported?  
Facts which are indisputable at trial, ie name, age, occupation and other forms of positive identification. 

4)The accused appears before magistrates – in general terms what can you report? List them… 
7 Things:
1. Name, age, address of defendant.
2. Name of solicitor/barrister
3. Name of magistrates
4. Whether legal aid was granted
5. Appeals for bail and terms of bail
6. Date and location of where the trial is deferred to
7. Charges faced

5)What is meant by an ‘either-way offence?
Can be tried in either a magistrates or crown court.

6)What is maximum sentence magistrates can impose?
6 months for one offence but can be up to 12 for more than one offence if the magistrates choose to impose consecutive sentences. 

7)What is meant by a conditional discharge?
The defendant will not receive punishment unless they re-offend within a specific time period i.e.1 year. They can then be punished for the original offence plus re-offending. 

8)What is the purpose of a ‘Section 49 order’? 
To protect under 18s in Youth Court

9)What is purpose of a Section 39 order?
To protect under 18s in Adult Court

10)What do we mean by ‘jigsaw identification’?
When someone given anonymity is identified due to a collective number of facts being published, either over time or by different publications, which enables them to be identified. 

11)One morning you arrive at court and barristers are making legal arguments about crucial evidence. You notice the jury isn’t there.  Can you report the proceedings?
No – if the jury is not present then you are not protected by any privilege.

12)What is required of your court report for it to attract absolute privilege?
It must be fair, accurate and contemporaneous

13)In this context explain what is meant by ‘fair’.
The report must contain both sides of the trial, not favouring one over the other. Must contain no substantial inaccuracies. 

14)During a murder trial a family member shouts at the defendant from the public gallery. “You lying bastard – you killed our boy!”  Is that safe to report?
No – outcries from the public gallery are not protected by privilege. 

Libel and Defamation
1)How would you define libel?
When a defamatory statement is published which is damaging to an individual, or organisation and their ability to conduct business.

2)How do we know when a statement is defamatory (4 tests used by judges)
In the mind of reasonable people it must:
1. Causes them to become the victim of hatred, ridicule or contempt.
2. Damage their ability to conduct themselves in their chosen profession
3. Lowered them in the eyes of right thinking people
4. Causes them to be shunned or avoided 

3)What particular danger is there of libel for TV journalists?
There is the risk of libel within the use of background or “wallpaper” shots, as you can implicate individuals through inference or innuendo, e.g. if you are covering a story on insider trading, then just use a blanket stock image of city commuters, there is the possibility that you could accidentally identify someone who partakes in that profession but acts legally, therefore damaging their credibility through inference. 

4)What are the 3 major libel defences?
1.Its true
2.It is covered by privilege
3.It is in the public interest

5)Something re the McAlpine affair
BBC had to make a payout to Lord McAlpine following a Newsnight programme regarding child sex offences. They did not name him in the programme, but the programme lead to speculation all over twitter by third parties, through which Lord McAlpine’s name became trending, and inferred that he had involvement.

Qualified privilege
1)Why is the legal principle of privilege so important to journalists?
It allows you to report on matters that are in the public interest without fear of legal repercussions. 

2)Why was a public meeting in 2000 about the jailed paratrooper Lee Clegg so significant?
Lord Bingham ruled journalists would act as the eyes and ears of the public.

Copyright
1)What’s the purpose of copyright law?
To protect original artistic, musical and literary pieces from being used freely without any credit given to its creator and without their consent, it provides you with control over how your creation is used.

2)You use a photo off the internet.  Is it free of copyright? 
No everything on the internet is still subject to copyright restrictions,  you may only use creative commons photos from the internet, providing you follow their terms of use and credit the owner, otherwise you need explicit permission from its owner. 

3)Why is the principle of fair dealing important and what are its limitations?
It allows you to use images in news broadcasts covering current events to illustrate the story you are covering, however you cannot take unfair commercial advantage of the copyright owner. You are also allowed to fair deal images for the purpose of criticism and review, however the subject must have been released to the public with the explicit consent of the owner for fair dealing to apply (i.e. it does not apply to leaked works).

Confidentiality – breach of confidence
1)What is the purpose of the law of confidence?
To protect information that is obtained during confidential circumstances

2)What are the danger areas for journalists?
1. Exposing state/military secrets
2. Exposing information which a person would reasonably expect to remain private
3. Exposing confidential information regarding a business or organisation

3)What dilemma does a journalist face when newsworthy information comes into his or her possession?
1.Whether to appeal for a response, risking the imposition of an injunction
2.Or whether to just publish the information risking legal action

4)Privacy is now better protected under Human Rights Act Art 8. Give an example of where public figures have won cases where they have claimed breach of privacy or confidence.
Max Mosely V News of the World – 2008 NOTW had to pay out after publishing a story regarding Max Mosely partaking in a Nazi-themed sadomasochistic orgy. The Judge ruled that the publication of this story was not in the public interest. 

Press Regulation
1)What bodies are responsible for regulating the professional conduct of journalists?
Ofcom, Press Complaints Commission (PCC) and the BBC Trust which is self-regulatory.

2)Which body has most power and why?
Ofcom as it has statutory power and can impose fines of up to 5% of their revenue, revoke or postpone licenses, prevent the re-viewing of a programme, and can enforce that a public apology takes place.  

3)Define impartiality.   Would there be any difference in your approach to this if you were working in newspapers or broadcasting?
Impartiality is to maintain neutral without bias. Newspapers are permitted to be partial to a particular political party, however broadcasters must maintain complete impartiality. 

Reporting Elections
1)Why is accuracy and impartiality especially important at election times?
Broadcast journalism is heavily influential and the lack of impartiality could have the ability to alter the way individuals vote, therefore undermining and damaging the democratic process. Without impartiality it could simply become a battle of which political party has deeper pockets.

2)What are the danger areas for journalists during campaign reporting?
1. False statements about candidates
2. Providing equal coverage of all major parties- maintaining impartiality
3. Reporting opinion or exit polls

3) Must all candidates standing in a constituency be covered equally?
No – minor and major candidates do not have to be treated equally, however all major candidates must be covered equally. 

4) On polling day when can we start reporting exit polls?
When the polls have closed.

5) On polling day a candidate makes a final plea to voters – can we report this?
No – the final day cannot be used for reporting political arguments, its main objective is to encourage members of the public to vote. 

Reporting Elections

Broadcast journalists must maintain impartiality during their coverage of elections and referendums. This different to print publications who can have party partiality.

Section 6 of the Ofcom broadcasting code outlines the rules on how broadcasters must remain impartial during an election, the BBC is not subject to his section but they contain similar regulations in their own guidelines.

Broadcasters must allocate equal coverage to all of the major parties, and appropriate coverage to all other parties and independent candidates. The major parties are primarily considered as being Conservative, Liberal Democrat and Labour. However over the last several years UKIP have landed themselves in the public view and their popularity has increased dramatically, as was evident during the Eastleigh by-election. Ofcom have since ruled that during the European Election, UKIP must be regarded as a major party.

Under the Representation of the People Act 1983 it is a criminal offence to publish a false statement about the character or conduct of an election candidate, if the purpose of publishing this material is to affect how many votes they will get. Such claims can only be published if they can be justified on reasonable grounds as being a fact (even if it turns out later to be untrue). The ban on such false statements is in place from the date that the election is formally announced, until the end of the election. If the false statement is defamatory then the publication may also face libel action.

Defamation is a massive risk to publications during the election period as opposing parties may publish defamatory material against other candidates. There is no privilege in place which protects the media in re-publishing this content which leaves them open to being sued for libel. An example of this is former Labour Government Minister Phil Woolas, who in 2010 lost the Oldham East and Saddleworth seat which he had held at that years general election with a majority of 103. He was banned from standing for Parliament for three years after being convicted of knowingly publishing two false statements about the Liberal Democrat candidate, Robert Watkins, in election leaflets. As broadcasters it is our responsibility to ensure that we aren’t publishing false information.

In the UK it is a criminal offence, under section 66A of the Representation of the People Act 1983, to publish an exit poll, or any information regarding how people have vote, before the poll is closed. It is also a criminal offence to publish any forecast or predictions on how the voting may go, before the poll is closed. This is because such information may influence how people choose to vote, thus resulting in an unfair election. This would be highly damaging to the democratic process. 

The WINOL team provided a highly competent report of the Eastleigh By-Election, whilst ensuring that we all adhered to the Ofcom and BBC guidelines.  

Press Regulation

Broadcast:
Journalism output on television and radio is regulated by statute. Ofcom (the Office of Communications) is an independent regulator that adjudicates on complaints against broadcast journalists.

Commercial broadcasts must be impartial when covering political and social issues. They must also be accurate, fair, respectful of privacy, and must avoid causing harm or offence. Ofcom can enforce substantial fines if there is any breach of the code or even revoke their licence.

The BBC is slightly different in that they are still regulated by Ofcom, but they also have their own system of self-regulation in the form of the BBC Trust. Ofcom doesn’t regulate web content published by the BBC as it isn’t technically classed as broadcast content.

The BBC code of conduct is the system we have chosen to follow on our WINOL publication. The code is in the public domain and can be viewed here.

Ofcom does not have the power to suspend or revoke the licenses of the BBC, S4C or Channel 4 as these are all public service broadcasters, but they can award them a hefty fine for any breach of the code.  

There are 10 sections that fall under the Ofcom Code of Conduct:
1: Protecting the Under-Eighteens
2: Harm and Offence
3: Crime
4: Religion
5: Due Impartiality and Due Accuracy and Undue Prominence of Views and Opinions
6: Elections and Referendums
7: Fairness
8: Privacy
9: Commercial References in Television Programming
10: Commercial Communications in Radio Programming

Now for those of you who are avid campaigners for freedom of speech, this form of regulation on the press may not float your boat, but I assure you, it is in your best interest, and protects the integrity of your chosen profession.

Broadcast media has the capability to influence and offend their audiences much more than printed press. This is because the moving images and additional sound have a greater emotional impact on an audience, whereas printed text and images allow the audience to still maintain a sense of detachment from the report. The regulation of broadcasters is also necessary to prevent indecent or explicit from being portrayed to an unsuitable audience, such as children.

The regulation of broadcast media also prevents broadcasters from being politically partial which protects the integrity of the journalistic industry.

Print:
The PCC (Press Complaints Commission) is the regulator for printed publications, including newspapers and magazines. The PCC investigates complaints made by members of the public and aims to deal with these complaints within 35 days. This enforces a code that is drawn up by 13 editors from national, regional, and local newspapers and magazines. This means that effectively this is a form of self-regulation, the press regulating the press. This was put in place to prevent there from being a statutory form of regulation put in place and to protect the freedom of the press, however the PCC has always been regarded as somewhat of a “toothless tiger” posing no real threat to publications.

Since the phone hacking scandal the PCC has come under fire for not regulating the unethical actions of journalists and publications. Although the PCC is still in place journalism is currently in a regulatory limbo as journalists desire their own independent regulatory body, and the government wants there to be statute in the form of a royal charter.

The real debate is whether the journalism industry deserves another opportunity to self-regulate, and also the dangers that the over involvement of the government can pose. Freedom of speech is a foundation of our society and it should be protected.  

Absolute and Qualified Privilege

Journalists – listen up! You need to know this.

There are two types of privilege, absolute privilege and qualified privilege.

Absolute privilege covers the content revealed in a court or tribunal as long as your report is FAF (Fast, Accurate and Fair). The “fast” aspect is often referred to as “contemporaneous” which in layman’s terms means you have to publish it as soon as is possible, this still covers  weekly and monthly publications. However this doesn’t cover defamatory matter that gets shouted out in court, it only covers the actual contents of the proceedings.

Qualified privilege covers any material that is considered important to the public interest. 

This covers:
1) Debates held in public (this includes parliamentary debates)
2) Court proceedings
3) Public meetings and press conferences held in the EU
4) Council meetings, including their committees and sub-committees in the UK
5) Official reports published by the government
6) Statements issued to the public by the government, councils, the police and other governmental agencies in the EU.

The information must be in the public interest, not merely of interest to the public.

There must not be any malice held by the publication in regards to the subject of the qualified content. So you can’t go off reporting things about people simply because you don’t like them.

Qualified Privilege allows you to publicise otherwise defamatory material, on the basis that it is true and it is in the public interest. For example the BBC published a story regarding Credit Suisse, headlining the story “Credit Suisse aided US tax evaders”. ““From at least 2001 to 2008 Credit Suisse employed banking procedures that facilitated tax evasion by US customers” the report by a US congressional committee said” the article then linked to the report. Because the BBC have outlined the basis of the report and then linked to the source they have been protected from defamation. 

Copyright and Fair Dealing

Copyright is essential to how our society runs, without it no one would receive credit or acclamation for their hard graft as it could simply be taken and publicised by anyone and everyone.

Fortunately there is protection out there for the creative types in the form of Copyright law, primarily in the Copyright, Designs and Patents Act 1988. This is a law which controls who can use or copy your work that has been achieved by artistic or intellectual endeavour.

It is essential for journalists to understand the laws surrounding copyright as this effects what you can include in your publication, and it also protects your own journalistic articles as well.

Copyright does not protect ideas it only protects the form in which those ideas are executed. There is also no copyright in facts, news or information. This allows for news organisations to “lift stories” which have been broken by other publications. However there may be infringements in lifting phrases or quotes from the original report (this shouldn’t be your only concern if you plan to lift other people’s quotes – you should be primarily concerned with whether they are true).

Copyright of a literary, musical, dramatic or artistic work lasts for the lifetime of the author and then another 70 years after the date of their death.

A beautiful tool for journalists that gives a little bit of freedom when it comes to copyright is “fair dealing”. When reporting current events, fair dealing allows publications to use otherwise copyright protected work. Now this doesn’t mean you can be cheeky and take advantage, you still have to be respectful. You should not take “unfair commercial advantage of the copyright owner by excessive publication of the copied work”. You must also allow for sufficient acknowledgement by either naming its author or creator, or cite the works title, or include at least an identifying description of it. This is almost a weekly battle on WINOL as journalists debate what can be used, or how much of something can be used, whilst still being protected by “fair dealing”. Basically as long as you don’t exploit someone else’s work for your own gain, then you’re good. 

A WINOL example of this is my story on the energy price hike:

You are also protected by “fair dealing” if you are using the work for the purpose of criticism of review. To be covered the work must have already been made available to the public with the consent of the owner, so it doesn’t count if it has been somehow leaked. 

A perfect WINOL example of this instance of “fair dealing” would be Harry Parkhill’s film reviews:

You are also exempt from the rules of copyright if it is for the purpose of parody. An example of this is “Dumb Starbucks” which used the Starbucks logo and store design for the purpose of parody.
Dumb Starbucks - The Independent