Law for bloggers and journalists (UK)

Paul Bradshaw Senior 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
Defamation, contempt, confidence, privacy, copyright
Developments in law
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 or
Fair comment
Absolute privilege (parliament, court - e.g. Trafigura)
Qualified 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 -
Remove
Add statement
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
Exposing/detecting crime, corruption, antisocial behaviour, injustice
Exposing lies, hypocrisy, misleading claims
Protecting public health & safety
Disclosing incompetence, negligence, dereliction of duty
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 recommendations
Don't monitor UGC unless necessary
Don't encourage potentially infringing content
Have effective report this post policy; distinguish between UGC and editorial
T&Cs should be expressly agreed by users; give discretion to remove content/suspend accounts; prohibit defamatory etc. content; include copyright licence; privacy policy
Have procedures for complaints & take-down
Notify claimant and poster when material taken down
Deal with users politely
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 Bradshaw Senior Lecturer, Online Journalism, Magazines and New Media, School of Media, Birmingham City University, UK (mediacourses.com) Blogger, Online Journalism Blog OnlineJournalismBlog.com Twitter.com/paulbradshaw

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Law for bloggers and journalists (UK)

by Paul Bradshaw on Nov 20, 2009

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