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.

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

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?

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

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

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)

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

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)

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)

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

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

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

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'

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

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

"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?

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

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

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

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

(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)

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)

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

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)

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

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

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

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

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

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

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

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

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