On Friday we were asked to write a story for an online publication after receiving information from a police press release. Here is my attempt at the first four pars;
A model dinosaur in Portsmouth was burnt to the ground after a fire in the early hours of this morning.
Fire crews were called to the incident on Southsea Common at 2:30am but were unable to save the model.
It is unclear what caused the fire and police have yet to rule out arson after several people were seen nearby taking videos on their mobile phones.
Police say they are looking into the possibility of launching a forensic investigation but the current bad weather has made it impossible.
To read the Daily Mail's version click here.
Tuesday, 26 October 2010
Bane, Antidote and Harold Bishop
Another defence to defamation is that of bane and antidote; all the writing must be taken together to form one conclusion. So even if a statement appears to be defamatory on the surface, it may not be due to the context that it is in.
In a case heard before the Court of Appeal in 1995 the actors that played Madge and Harold in Neighbours brought an action against the News of the World after they printed photos of a pornographic nature, with the actors faces over the original faces.
The newspaper had used the photos to illustrate their story, which reported on a video game in which the players of the game could see similar photos. The actors lawyers argued that most people would only look at the photo and read the headline, which read:
"Strewth! What's Harold up to with our Madge?"
They argued that readers could only reach one possible conclusion. However, the judges said that it should be up to a jury to decide if the antidote was enough to satisfy the bane. It would all depend on the context of the piece as a whole, and in this case the antidote was said to cure the bain. It was sufficient in this case that the News of the World had made it clear that these were not true photos of the pair.
There is really only one question to ask about this case; who on earth would want to see Harold Bishop naked in the first place?
Monday, 18 October 2010
Media Law 3: Defamation
Defamation is defined in law as a tort, a civil wrong. It is an area of law that journalists must be at least aware of in order to avoid being sued, for what could be a large sum of money.
A defamatory statement can occur if it tends to:
The important bit of this definition is the word "tends to." This implies that the claimant does not have to prove that any of the above actually occurred, only that they could have. The standard that is used is that of the "reasonable man," a term that is widely used in law. In other words, the claimant must prove that the statement would be found defamatory by a man or woman of reasonable intelligence and judgment.
Further problems can arise when statements contain inferences, or innuendos. According to McNae's an inference is:
On the other hand, an innuendo is defined which may appear to be innocuous on the surface, but becomes defamatory because people may have special knowledge of circumstances. For example, Lord Gowrie sued The Star newspaper, after they used the words "expensive habit," and "snort." In the context of the piece it was implied that Lord Gowrie was a regular user of illegal drugs, and although a direct allegation was not made, it is still clear of the meaning that is intended.
Once the claimant has proved the statement is defamatory they must also proved the statement refers to them. Identification need not be direct, therefore defamation can still occur even if the person's name is not mentioned. Basically, if people who know the claimant can identify them from your writing, then the piece can be defamatory.
The claimant must also prove that the defamatory statement has been published. In other words, the defamation must have been communicated to at least one other person, this includes the internet, and the repeated statements of other people. Each fresh statement can create another action for the claimant to pursue.
Several defences exist to protect us. First of all, there is the justification defence. In other words, if the information that is printed is true it is not defamatory. However, the burden of proof is on the journalist to prove that the statement is true, not on the claimant to prove it is not. This is judged "on a balance of probabilities." In other words, it must be more likely that the version you are telling is a statement of the true facts.
A second defence is that of fair comment, which is used to protect opinions , not statements of fact. According to McNae's, case law has established several rules. The published comment must be the honestly held opinion of the person, the comment should be recognisable as opinion, the opinion must be based on what is provably true, which must be alluded to in the publication and the subject must be a matter of public interest. If any malice is intended the defence may no longer stand.
Another set of defences come under the heading privilege.The idea of absolute privilege covers reporting of Parliament and court cases, as long as the report is fair, accurate and contemporaneous. The Defamation Act 1996 list several examples of qualified privilege, if the statement is considered important in the public interest, for example, council meeting and police statements.
The Reynold's Defence is a further protection. As long as the writer has ensured "responsible journalism." A full list of circumstances that will be considered by the courts can be found in McNae's.
Most importantly, we must use all this knowledge to recognise risk.We must ask several questions; who am I writing about? Could they sue me or my organisation? Is what I am writing about potentially defamatory? Do I have a defence? If we are unsure as to the answer of any of these questions it is always better to refer the problem to a someone with more experience or with greater legal knowledge.
A defamatory statement can occur if it tends to:
- lower the claimant in estimation of right-thinking people;
- if it causes them to be shunned or avoided;
- if it disparages them in their business, trade or profession;
- or exposes them to hatred, ridicule or contempt.
The important bit of this definition is the word "tends to." This implies that the claimant does not have to prove that any of the above actually occurred, only that they could have. The standard that is used is that of the "reasonable man," a term that is widely used in law. In other words, the claimant must prove that the statement would be found defamatory by a man or woman of reasonable intelligence and judgment.
Further problems can arise when statements contain inferences, or innuendos. According to McNae's an inference is:
"a statement with a secondary meaning which can be understood by someone without special knowledge who "reads between the lines in the light of his general knowledge and experience..""In class, an inference could have occurred when talking about the claimant's Bentley car, and how it would be impossible for him to have enough money to afford it without defrauding the council. Again the standard of the "reasonable man" is used. If a "reasonable man or woman" can see the inference, then the statement may well be defamatory.
On the other hand, an innuendo is defined which may appear to be innocuous on the surface, but becomes defamatory because people may have special knowledge of circumstances. For example, Lord Gowrie sued The Star newspaper, after they used the words "expensive habit," and "snort." In the context of the piece it was implied that Lord Gowrie was a regular user of illegal drugs, and although a direct allegation was not made, it is still clear of the meaning that is intended.
Once the claimant has proved the statement is defamatory they must also proved the statement refers to them. Identification need not be direct, therefore defamation can still occur even if the person's name is not mentioned. Basically, if people who know the claimant can identify them from your writing, then the piece can be defamatory.
The claimant must also prove that the defamatory statement has been published. In other words, the defamation must have been communicated to at least one other person, this includes the internet, and the repeated statements of other people. Each fresh statement can create another action for the claimant to pursue.
Several defences exist to protect us. First of all, there is the justification defence. In other words, if the information that is printed is true it is not defamatory. However, the burden of proof is on the journalist to prove that the statement is true, not on the claimant to prove it is not. This is judged "on a balance of probabilities." In other words, it must be more likely that the version you are telling is a statement of the true facts.
A second defence is that of fair comment, which is used to protect opinions , not statements of fact. According to McNae's, case law has established several rules. The published comment must be the honestly held opinion of the person, the comment should be recognisable as opinion, the opinion must be based on what is provably true, which must be alluded to in the publication and the subject must be a matter of public interest. If any malice is intended the defence may no longer stand.
Another set of defences come under the heading privilege.The idea of absolute privilege covers reporting of Parliament and court cases, as long as the report is fair, accurate and contemporaneous. The Defamation Act 1996 list several examples of qualified privilege, if the statement is considered important in the public interest, for example, council meeting and police statements.
The Reynold's Defence is a further protection. As long as the writer has ensured "responsible journalism." A full list of circumstances that will be considered by the courts can be found in McNae's.
Most importantly, we must use all this knowledge to recognise risk.We must ask several questions; who am I writing about? Could they sue me or my organisation? Is what I am writing about potentially defamatory? Do I have a defence? If we are unsure as to the answer of any of these questions it is always better to refer the problem to a someone with more experience or with greater legal knowledge.
Wednesday, 13 October 2010
Higher Priced Education
All except the genuinely rich will struggle under new plans for student tuition fees.
With universities able to charge students whatever fee they see fit there is a genuine risk that we could be left with a two-tier higher education system. The Russell Group universities already have a disproportionate amount of privately educated students in comparison to the ex-polys. If the best universites charge increase fees it may dissuade brighter pupils from working class, and even middle class backgrounds, to apply to these universities, or to apply to any university at all.
Lorde Browne's report suggests that those in families earning up to £60,000 will get financial help on a sliding scale basis. But this does not go far enough, what of students at the bottom end of the scale, or those families already supporting another sibling at university? Only the children of the rich will have guaranteed support from their parents.
Students will not pick a university based on academic ability, rather, on their ability to pay for fees.
Most alarming of all in this situation is the turnaround from the Liberal Democrats. Their election pledge of opposing higher tuition fees has been blown out of the water by Vince Cable's admission that his party will be supporting the government's new position.
The party that heralded itself as the party for students has made a complete u-turn on its pre-election position; a position that the Liberal Democrats have held for years. It is a complete betrayal to those who have voted for them in the past. The Liberal Democrats have an incredible amount of work to do in order to re-establish trust in its younger voters, myself included.
With universities able to charge students whatever fee they see fit there is a genuine risk that we could be left with a two-tier higher education system. The Russell Group universities already have a disproportionate amount of privately educated students in comparison to the ex-polys. If the best universites charge increase fees it may dissuade brighter pupils from working class, and even middle class backgrounds, to apply to these universities, or to apply to any university at all.
Lorde Browne's report suggests that those in families earning up to £60,000 will get financial help on a sliding scale basis. But this does not go far enough, what of students at the bottom end of the scale, or those families already supporting another sibling at university? Only the children of the rich will have guaranteed support from their parents.
Students will not pick a university based on academic ability, rather, on their ability to pay for fees.
Furthermore, Lord Browne suggests that subsidies will be removed for all courses that are not seen as strategically important. Arts faculties around the country will struggle. Many will argue this is sensible, we need more doctors and engineers. Yet the benefits of a classical education, reading history or english, are abundant and should not be belittled. Besides, a tradition of free choice exists at our universities. Those wishing to better themselves by going to university should not be forced in to a practical education when they yearn for the philisophical.
The party that heralded itself as the party for students has made a complete u-turn on its pre-election position; a position that the Liberal Democrats have held for years. It is a complete betrayal to those who have voted for them in the past. The Liberal Democrats have an incredible amount of work to do in order to re-establish trust in its younger voters, myself included.
Tuesday, 12 October 2010
Media Law 2: Criminal Courts
Often, the criminal courts are a brilliant source of news for journalists. However, it is a source that comes with certain risks. We must realise these risks to ensure we do not prejudice the outcome of a case, and find ourselves in contempt of court.
As journalists we must understand the complex nature of the criminal courts. Cases start out in the magistrates court. The magistrates court usually consist of three lay persons who decide upon the outcome of a case. When a trial concerns a summary offence, the least serious crimes, the case will be heard in its entirety by magistrates.
The Crown court deals with the most serious offences that take place, known as indictable offences. These tend to be crimes that are particularly newsworthy as they have a huge effect on the community, for example, rape and murder. Trials that take place at the Crown court take place in front of a judge and jury. The Crown court has more scope to hand out a longer sentence than the magistrates court.
Either-way offences create an interesting situation whereby defendants may be tried at either court. Some evidence establishes that those tried at the Crown are more likely to be acquitted and as it is usually up to the defendant to decide where he is tried, he can risk a longer sentence at the Crown or play it safe knowing he will get much shorter sentence at the magistrates.
In our lecture we looked at an example involving the reporting of a robbery as the case unfolded, reaching preliminary hearings at the magistrates. It became obvious as we worked through the case that the facts that we can report on are very limited once a case becomes "active." A case is legally active if several things happen;
Firstly, we cannot report on any evidence that has been heard. For example, Graham Glen, editor of The Citizen, was fined a substantial sum for reporting on the confession by Fred West of the murder of his daughter, after this information was disclosed at a preliminary hearing. It is quite obvious that information such as this could prejudice any prospective jury member.
Secondly, we cannot report on any previous convictions that the defendant may have. The very nature of "the presumption of innocence" rests on the jury being impartial of any factors that may influence them. Any information on previous convictions has obvious implications for this, as many could go by the old maxim; "once a crook, always a crook."
Special rules are set out for cases involving sexaul offences in the Sexual Offences (Amendment) Act 1992. A separate set of complex rules also governs the reporting of children in court. In most cases they will remain anonymous. We must not risk identifying them, especially inadvertadly by being too precise in descriptions.
Other factors that can effect journalists who report on court cases include fair and balanced reporting of the trial. For example, we cannot report the prosecution and then refuse to report the defence. This would not allow for a fair and balanced report of the case and could leave the journalist open to losing their absolute privilige.
As journalists we must understand the complex nature of the criminal courts. Cases start out in the magistrates court. The magistrates court usually consist of three lay persons who decide upon the outcome of a case. When a trial concerns a summary offence, the least serious crimes, the case will be heard in its entirety by magistrates.
The Crown court deals with the most serious offences that take place, known as indictable offences. These tend to be crimes that are particularly newsworthy as they have a huge effect on the community, for example, rape and murder. Trials that take place at the Crown court take place in front of a judge and jury. The Crown court has more scope to hand out a longer sentence than the magistrates court.
Either-way offences create an interesting situation whereby defendants may be tried at either court. Some evidence establishes that those tried at the Crown are more likely to be acquitted and as it is usually up to the defendant to decide where he is tried, he can risk a longer sentence at the Crown or play it safe knowing he will get much shorter sentence at the magistrates.
In our lecture we looked at an example involving the reporting of a robbery as the case unfolded, reaching preliminary hearings at the magistrates. It became obvious as we worked through the case that the facts that we can report on are very limited once a case becomes "active." A case is legally active if several things happen;
- police make an arrest;
- an arrest warrant is issued;
- magistrates issue a summons, or;
- a person is charged with the crime.
- the name of the court;
- the name, address and occupation of the persons involved;
- the charges;
- the names of legal representatives;
- information on bail (although generally not reasons for refusal as this could be prejudicial;)
- information on legal aid
- and, if proceedings are adjourned to another time and place.
Firstly, we cannot report on any evidence that has been heard. For example, Graham Glen, editor of The Citizen, was fined a substantial sum for reporting on the confession by Fred West of the murder of his daughter, after this information was disclosed at a preliminary hearing. It is quite obvious that information such as this could prejudice any prospective jury member.
Secondly, we cannot report on any previous convictions that the defendant may have. The very nature of "the presumption of innocence" rests on the jury being impartial of any factors that may influence them. Any information on previous convictions has obvious implications for this, as many could go by the old maxim; "once a crook, always a crook."
Special rules are set out for cases involving sexaul offences in the Sexual Offences (Amendment) Act 1992. A separate set of complex rules also governs the reporting of children in court. In most cases they will remain anonymous. We must not risk identifying them, especially inadvertadly by being too precise in descriptions.
Other factors that can effect journalists who report on court cases include fair and balanced reporting of the trial. For example, we cannot report the prosecution and then refuse to report the defence. This would not allow for a fair and balanced report of the case and could leave the journalist open to losing their absolute privilige.
Sunday, 3 October 2010
Media Law Introduction
On Thursday, we had out first lecture in media law with Ian Anderson. The lecture consisted of a basic overview of the English legal system and it’s importance to us as journalists. It had the feel of a revision lecture for me, having studied law for my undergraduate degree.
The main focus of the lecture detailed the problems that we face as journalists, including the various laws that make our job harder. Including that the defamation laws of this country are the strictest in the world.
Despite these draconian rules we do have the tradition of free press in this country. Lord Donaldson states in the Spycatcher case that a free press is an essential component in maintaining democracy and the "British way of life as we know it."
This is in direct contrast to somewhere like Iran, for example, where this week the blogger Hossein Derakhshan was sentenced to a 19-year jail term for commenting on political reform. The Times reports that Iran now has around 40 journalists in its jails, the worst record in the world. The Iranian regime argue that these innocent journalists are a threat to public security, and therefore a threat to the state.
Theoretically, this could occur in the UK. As journalists our right to freedom of expression is enshrined in the European Convention of Human Rights (ECHR) and since 1998 has been incorporated into English law via the Human Rights Act.
However, the second paragraph of Article 10 (freedom of expression) sets out a number of areas where this right can be withdrawn where “necessary in a democratic society.” These reasons include “interests of national security, territorial integrity or public safety.” Other restrictions can occur when considering conflicts between the right to freedom of expression as a journalist, and the right to privacy and family life of those we report on.
Luckily, we have a number of other checks and balances in English law that protect the work of journalists, it is therefore very unlikely that a situation could arise in which a journalist was imprisoned. These include the rule against prior restraint, and rules governing the “public interest,” which we will learn about over the coming weeks.
The main focus of the lecture detailed the problems that we face as journalists, including the various laws that make our job harder. Including that the defamation laws of this country are the strictest in the world.
Despite these draconian rules we do have the tradition of free press in this country. Lord Donaldson states in the Spycatcher case that a free press is an essential component in maintaining democracy and the "British way of life as we know it."
This is in direct contrast to somewhere like Iran, for example, where this week the blogger Hossein Derakhshan was sentenced to a 19-year jail term for commenting on political reform. The Times reports that Iran now has around 40 journalists in its jails, the worst record in the world. The Iranian regime argue that these innocent journalists are a threat to public security, and therefore a threat to the state.
Theoretically, this could occur in the UK. As journalists our right to freedom of expression is enshrined in the European Convention of Human Rights (ECHR) and since 1998 has been incorporated into English law via the Human Rights Act.
However, the second paragraph of Article 10 (freedom of expression) sets out a number of areas where this right can be withdrawn where “necessary in a democratic society.” These reasons include “interests of national security, territorial integrity or public safety.” Other restrictions can occur when considering conflicts between the right to freedom of expression as a journalist, and the right to privacy and family life of those we report on.
Luckily, we have a number of other checks and balances in English law that protect the work of journalists, it is therefore very unlikely that a situation could arise in which a journalist was imprisoned. These include the rule against prior restraint, and rules governing the “public interest,” which we will learn about over the coming weeks.
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