Why the media should not back Brexit

THIS is a hard sell, I know, but Paul Dacre, editor of the Daily Mail, should love the European Union.

Every day, he, along with every other UK newspaper editor, should pen a love letter to the bureaucrats of Brussels.

They should be praying fervently that on June 23 we vote Remain and stay in the EU.

Why? Because it is the only thing keeping him, and every other editor, website owner and blogger out of jail.

Anyone who allows third party content on a site under their control ought to give thanks we are in the EU where they are under the protection of the catchily-titled Electronic Commerce Directive 2000/31/EC.

This is a very useful bit of Brussels bureaucracy that was enacted to protect those providing platforms for others to access internet publication. So it protects ISPs and it has always protected newspaper forums – where readers get to express an opinion online about content.

Now, I don’t know whether you’ve ever been ‘below the line’ on a Daily Mail story, but it can be a very, very strange place to be. On stories involving race, gender, immigration and refugees, it is like lifting a rock on society and seeing the ugly stuff scuttling about underneath.

And this is not behaviour confined to the Daily Mail either. Recently The Guardian analysed comments made on stories on its site and while much was positive, there was nevertheless a range of comment that was ‘crude, bigoted and vile’.

The directive also protects any website with a comment function and it protects bloggers like me when people comment on my posts. As I said, enormously useful and given to us by the EU.

Often the main concern about online forums is the threat of libel and we do have our own homegrown bit of law that protects us in the Defamation Act 1996. The defence of innocent publication says that as long as you did not know the material was there and removed it promptly when notified, you do not have a liability.

But this very good bit of law only protects us against libel, nothing else.

Now, let’s delve ‘below the line’ again in a newspaper forum. You will soon see all manner of legal liability is to be found there, not just libel.

You can find contempt of court, harassment, inciting hatred, breaches of privacy and copyright violation to name but a few. Now, to be prosecuted for some of these offences it would need to be shown that we had some form of intent to commit an offence. But with some offences, such as contempt of court, there is no such requirement – if you’ve got the content on your site, you’re guilty.

The beauty of the EU directive is that it protects you from all legal liability for user-generated-content, not just libel.

At the moment if you are hosting a site which attracts content like that, you are protected by the EU Directive, so long as you are acting as a ‘conduit for publication’. If you are not actively editing or pre-moderating the content then you do not have any legal liability for it unless you leave it up on your site once you have been notified of it.

This defence also protects platforms like Twitter and Facebook against liability for anything posted by their users.

So anyone running a ‘lively’ forum better hope we stay in the EU.

If we don’t, then start hiring moderators, lots of them.

Sexual offence anonymity – newsrooms beware

JOURNALISTS need to be very careful with any detail they report about an alleged victim of a sexual offence, as the conviction of former Sun Editor David Dinsmore demonstrates.

The Sun published a photograph of the 15-year-old victim of Adam Johnson- the Sunderland and England international who was convicted of sexual offences against her last week.

The Sun had done a number of things to try to ensure she could not be identified from the photo – they had changed her hair length and colour; they had removed the entire background of the original photo and they had Photoshopped her onto an entirely unrelated background.

However, this was not enough to avoid a decision to bring an action and for the former editor of The Sun to be convicted.

What journalists should note from this case is the impact a Facebook audience had on identification of the victim. The court said that some Facebook users familiar with the image would still recognise her despite The Sun’s efforts.

It is important to understand the test that is applied to determine whether a victim has been identified here. It is not ‘can any man or woman in the street identify the victim from details in the report’. The test is ‘can someone who already knows this person realise they are a victim as a result of any detail in this report.’

People who know the person will have lots of knowledge of context and background which might allow them to identify a victim where the ordinary man or woman in the street would not.

For example, one newspaper was prosecuted for including the fact that the victim in a case had cerebral palsy. This was given in open court and no order was made preventing publication – the courts expect publishers to make their own judgement here and to exercise proper caution.

That detail would not allow the whole world to identify the victim, but in the context of the case, knowing who the defendant was and the area in which the offence was committed, it was a detail leading to identification and the publication was convicted.

Some points to remember about this area of law:

  • A victim gets legal anonymity as soon as the report the offence
  • That report does not have to be to the police, it could be to anyone – a doctor, teacher, work colleague, passer-by – any third party
  • Anonymity lasts a lifetime and is unaffected by the outcome of any proceedings
  • Adult victims can waive their anonymity, in writing
  • Child victims cannot give such a waiver and their parents or guardians have no legal power to do so either
  • An alleged victim who is subsequently prosecuted for an offence in relation to the report, such as perjury; perverting the course of justice or wasting police time lose their anonymity
  • Prosecutions for identification are sometimes brought against the publication and the ‘responsible journalist’ which is often the editor, but chief subs, night editors and reporters have also faced such a prosecution
  • Prosecution is for a sexual offence

It is this final point that journalists should be particularly wary of – this is a criminal conviction for a sexual offence and can have a massive impact on a journalist’s life.

If convicted you have a criminal record which will come up when anyone does a DBS (formerly CRB) check on you. The result they will receive is that you have been convicted of an offence under the Sexual Offences Amendment Act.

One editor I know was facing such a prosecution and was planning a holiday to the US at the same time. He was told by the US authorities that he would not be granted a visa is he was convicted.

In many cases the CPS has dropped the case against the journalist where the publication itself enters a guilty plea. However, this did not happen in the case of David Dinsmore, a clerical error in this case meant The Sun escaped prosecution whereas he did not.

In my view this is an appalling piece of law. To equate what is often an accidental identification of a victim with an act of sexual violence is repellent. It is yet another piece of law used to criminalise journalism.

Of course journalists should take great care with victims and by all means prosecute them where they do not – but not for a sexual offence. It could quite easily be redefined in a Courts Act, or as a contempt.

Until that happens though, this is yet another area where great care needs to be taken by journalists.

If you want your newsroom properly trained to avoid this, and other legal problems, details of the courses I offer can be found on the Training page.

The continuing threat of contempt

THE publisher of GQ magazine was recently fined £10,000 in a case that reminds us contempt of court remains a serious legal threat to journalists.

GQ was found guilty of contempt last year after they published an article by US journalist Michael Wolff during the phone hacking trial of Rebekah Brooks.

Last month they were fined £10,000 for the offence, which is pretty low for contempt fines – courts have unlimited powers of fine for contempt. Those of us with long memories know The Sun set the record when it was fined £80,000 for contempt and it’s then editor Kelvin McKenzie was personally fined £20,000 (and that was in the ’90s, so allowing for inflation that would be an even more savage fine today.

The GQ article was a piece of commentary, and it was run in the magazine during the trial itself. It also included certain information that the jury had not been told about during the trial.

The contempt proceedings are reported by the Guardian here, and last week’s hearing to set the fine can be found here.

Some points about the case worth noting:

Firstly, journalists will often point out that jurors are warned not to do Internet research about a case and so any juror finding the material must have ignored that warning. That sounds logical on the face of it, but in practice that is not how things work.

This was a contemporaneous report, not something sitting in GQ’s online archive that a juror had to unearth. It was published during the trial and was trailed in the front page of the magazine.

Jurors are warned not to do research, but they are not told to avoid the daily reporting of proceedings. Fair, accurate reports of the day’s evidence are not a contempt risk, so long as they stick to what the jurors have heard or seen in court that day. The GQ article went beyond that and included information the jury had not heard as well as suggesting Rebekah Brooks was a disreputable woman.

Any commentary attacking the character of a defendant during trial is a real risk of contempt, unless, of course, it was given in evidence during the trial and so would have been heard by the jury.

Secondly, even if the material was published before trial and unearthed by a juror ignoring the judge’s warning, the publisher could still be prosecuted. The Attorney General and the courts take the view that the publisher is wrong for putting it there and the juror is wrong for looking for it, so both could be prosecuted.

Finally, it illustrates the perils of ‘comment’ journalism, which is very popular at the moment. In many areas it is completely risk-free, but running commentary on a live court case that is being tried by a jury is fraught with danger.

This threat to fair trials posed by prejudicial online material is one of the reasons we have seen an increase in the number of contempt prosecutions in recent years. The last Attorney General, Dominic Grieve QC warned when he took office that the so-called fade factor, the idea that prejudicial material published at the time of a crime was safe because it would have faded from a juror’s memory by the time of trial, no longer held true in these days of searchable online publication.

The current Attorney General, Peter Wright QC, does not seem to share quite the same enthusiasm for prosecution as his predecessor, but the GQ case should serve as a warning to editors that he is prepared to prosecute where publications overstep the mark

GQ were able to point to mitigating factors which helped reduce their fine. They had taken legal advice over the article, so it was not a case of them being reckless about contempt, even though they made the wrong call on the day. They withdrew thousands of magazines from circulation and pulped them when the legal problems with the article became clear. They also paid the AG’s prosecution costs of £50,000.

If you want to avoid contempt of court, you could start by reading my post on doing just that. It remains by far and away the most-read post on this site, which perhaps shows how worried journalists are about it (although in reality libel is much more frequent and potentially more expensive).

In the long run though, I wonder how long contempt can try to hold back the tide of prejudicial publication in high profile trials. You only have to take a brief look (though definitely not if you are a juror in the case) at some of the social media postings about the trial of Adam Johnson to see that the law is struggling here.

You might argue that no rational juror would take any notice of social media blowhards with minimal followings. But some of the people commenting are well-known themselves and clearly know nothing of this area of law (and why should they) or else do not think it applies to social media.

They are wrong, but it will take a prosecution to hammer home that message. If the Attorney General is prepared to prosecute a newspaper with 50,000 readers, how can he justify not prosecuting someone with a million Twitter followers?