Defamation Act 2013 – in force now, advice to website operators

I have been receiving a number of requests for guidance and training about the effects of the Defamation Act 2013.

The Act introduces a number of changes, but website operators are particularly interested in the impact it could have on them and the people who provide user-generated content for their sites – their community.

The Act, and in particular, its Section 5 defence changes the way in which websites respond to defamatory posts placed there by users. Whereas before a notice and takedown procedure, based on a European Union e-commerce directive, would evade liability on the part of the website, now in some circumstances, there is a requirement to give the claimant the details of who it was who posted the libellous material. However, if the poster is easily identifiable and contactable from details on the site, it may well be the operator need do nothing as the action lies between the claimant and the poster.

This shifts responsibility for defamatory posts from the host site onto the poster, which ought to reduce liability for websites. However, if a website operator wants to use the Section 5 defence and the poster details are not readily available, they need to comply with some tight deadlines, often just 48 hours, in responding to the claimant and giving them the details of who it was who posted the defamatory content.

So you may need to hand over details of your users – members of your community – to a libel claimant. This could change the nature of your relationship with your online community, many of who may be relatively unaware of the laws of libel and other legal risks they can incur.

Some websites are beefing up their registration procedures and T&Cs to take account of these changes, as well as offering guidance to their users on the main legal problems they may encounter. Others may want to stick to their original practice of takedown on notice. Deciding which procedure you want to adopt depends on the nature of your website and the conversations that it carries.

This is where I come in.

I have been writing guidelines for a number of organisations as well as providing training for moderators and community managers in the Defamation Act 2013 and other laws relevant to their role.

If you want more information about the services I provide in this area, contact me at davidbanksmedialaw@gmail.com

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Five laws editors need to know better than their staff

BEING an editor places great demands on your time.

You might well have arranged training for your staff, but have you thought about your own? When was the last law refresher you attended?

You might reasonably leave day-to-day spotting of legals to your newsdesk and subs, but in some cases it is you that will be held responsible when things go wrong.

Here, briefly, are five areas of law an editor really needs to know.

1 – Sexual offences anonymity
There is now a large number of offences which give anonymity to a victim as soon as a an offence is reported and that report can be to anyone, not just police. Relatively new offences like trafficking and voyeurism are catching journalists out because they do not realise they are sexual offences.

The consequences of breach are very serious, a prosecution under the Sexual Offences Amendment Act 1992 – and the CPS will sometimes prosecute both the paper and the editor. Conviction will result in a criminal record for a sexual offence.

2 – Contempt of Court

The law isn’t new, it’s been around since 1981, but what is new is Attorney General Dominic Grieve’s willingness to prosecute.

He said when he took office that prejudicial publication was a concern and he has been true to his word in allowing prosecutions for contempt.

They can still, theoretically, jail editors for contempt (last time that happened was the editor of The Mirror in 1949 over converage of the Haigh Acid Baths Murders) Nowadays they give the editor a personal fine, as well as the paper. Fines are unlimited, but tend to be in the tens of thousands of pounds.

Publication of material which would not have resulted in prosecution five years ago, is now being being taken to court.

3 – Defamation Act 2013

Libel remains your most potentially expensive problem. The new Act will probably be implemented from summer 2014. It contains new defences and new limits on how claimants can take action against you. You and your staff need to understand the changes it introduces.

4 – Bribery Act, RIPA, Misuse of Computers

The laws we saw Leveson explore at some length. You may well be taking on young, technically adept journalists. They, and you, need to know the legal limits on use of their technical expertise in obtaining stories. Likewise, what is a bribe, who can be bribed and how to avoid a bribery charge?

5 – Copyright

The next big issue coming down the track I think. Journalists are magpies and tend to regard the Internet as a limitless source of free material, especially imagery. People posting pictures online seem to be becoming more aware of their legal rights over such material and we will, I think, start seeing actions for copyright breach in the near future for the sort of online pilfering reporters have regarded as safe up until now.

If the above has given you pause for though, I run in-house law refreshers for editors and their staff. All sessions are tailored to the individual publication concerned. If you would like to talk about training, drop me a line at davidbanksmedialaw@gmail.com

Media law refresher/intro days in London and Manchester

Law Refresher/Intro to Media Law

Tuesday June 18 and Tuesday July 16, The Space Centre, Judd Street, King’s Cross WC1H 9NT, 10am-4pm, Manchester, Tuesday, July 9, venue TBC, 10am -4pm

A one-day course covering the basics of media law that can affect anyone publishing in the UK either in print or online. It includes areas such as libel, contempt, reporting the courts, sexual offences, children, privacy&confidentiality, copyright and ethics in light of the Leveson report and recent decisions made by Parliament and the newspaper industry.

If you would like more information, or want to book a place on any of the courses, email me at davidbanksmedialaw@gmail.com

Sex, death, brass bands and libel by photograph

IF you want to find mistakes in papers look at the pictures.

The Sun on Sunday has just paid out in a libel settlement after running a story about a man discovering he was the son of Fred West – but the picture they printed on the front page was the man’s half-brother who was entirely unconnected to the serial killer. It has been reported that a five figure sum has changed hands as a result.

I’ve some sympathy for the Sun on Sunday, such things are all too easily done and let me share with you the story of one such disaster, which, sadly, I had a hand in. I’ve blogged this elsewhere on a previous occasion, but it bears repetition as it highlights the legal dangers of the photograph and its caption.

This is back in the days when I was a jobbing hack on the Daily Post and it was my turn to ‘do the calls.’

This was the round of phone calls made several times a day to the emergency services to see if there were any crimes, deaths, disasters or other human misery happening for us to report on. It was also in the days when such calls were made to human beings – usually a duty inspector in the police control room, or a desk sergeant at individual police stations. Since then these humans, who one could have a conversation with, have been replaced by pre-recorded ‘voicebanks’, which are a journalistic dead-end and should only ever be used as a starting point for a story by any reporter worth their salt.

Anyway, I digress, back to the sex and death. You see the virtue of talking to a human is that they do love a bit of gossip and so it was that morning when I made the call and was informed of a sudden death in a nearby market town, woman in custody as a result. Slowly, but surely, the story emerged.

It would seem the local brass band was a hotbed of illicit passion, and the alleged crime involved two of its members. She was 30, he was in his 60s, and after band practice they would adjourn to the local marshes in his roomy estate car where they would consummate their affair. Both were married.

The police were holding her as they believed she’d hit him in a lovers’ tiff, causing a fatal heart attack. She said he had died while they made love. The Daily Post at the time was intent on becoming the ‘Daily Mail of the North’ and for us the story had everything – sex, death, death caused by sex, and a brass band.

So, I set out hotfoot to the market town with a photographer, and crucially got to the bandmaster before word had spread of just how this bandsman had died. The family were letting people know of his death, but were, understandably, not sharing the grisly detail.

Most important, we got a photo of the band. Dead man, back row centre, and the bandmaster never queried it, but we got him to name every single band member, and there she was, in the front row – the, quite literally, femme fatale.

So, were were very happy with ourselves, we had the story, the picture, the whole lot and off to Liverpool it all went to be printed the next day in the Daily Post.

The next day, when I opened the paper, it was one of those moments as a reporter and you will all have them, when you close the paper, wanting what you see not to be true.

Because, on the front row far right there was a man in a wheelchair, and there was no-one sitting or standing behind him – what a designer would call ‘dead space’ a blank wall. So the man in the wheelchair was cropped off to neaten the pic. However, when the caption, which has already been written, reads: “Mrs X, fourth from the right,” the crop means that the identification moves along to the right. So instead of accusing the femme fatale of killing a fellow bandsman with her amorous attentions, we accused the 16-year-old schoolgirl sitting next to her.

So, I have some sympathy with the Sun on Sunday, as I said, it is easily done.

But if you do do it, then get it sorted quickly, which is precisely what the Daily Post did.

Firstly, we didn’t wait for a complaint. Eric Langton, who was on the DP newsdesk – one of the best news editors I’ve ever worked with, a real newsman, totally unflappable and a pleasure to work for – went straight round to the girl’s family with a letter of apology from the paper.

Her dad, you will understand, was not a happy man. Let’s face it, his daughter is 16 – she’s not on drugs, she’s not pregnant, not a tattooed death metal fan. She plays in a brass band for heaven’s sake, she is every dad’s vision of perfection, and here you have the Daily Post suggesting she kills elderly bandsmen with sex.

But, in typically civilised British fashion, he was polite with Eric and said that what action they took depended on how she reacted, she was at school and hadn’t seen the paper yet.

She arrived home, took one look at the Post…..and burst out laughing. She didn’t think anyone in the town would really think it was her, and didn’t think it would be taken seriously. So, they didn’t sue us. Nor did they want a correction, which they felt would just draw more attention to the story.

A close call, but a lesson that being straight with people and admitting your error, no matter how stupid it may make you look, can get you off the hook.

I’m not sure we would have been so lucky if it had happened now. Today as soon as it appeared on our website, her schoolmates would have Facebooked and Tweeted it to all and sundry, whereas we were just in print back then – chip-paper a day later – and I think that would put more pressure on the faily to take action and nail the lie of the story.

Oh, and the femme fatale? She was acquitted at trial.

Ten Tips to help you pass NCE Law&Newspaper Practice

NCE is fast approaching and for hundreds of junior reporters around the country a lot hangs on this. A pass means they become senior reporters, and for those in training contracts it traditionally means the freedom to ply their trade elsewhere. A pay rise often accompanies elevation to senior status too. So you can see why it is taken seriously.

It’s a tough test though, with a number of different papers and a portfolio of work to complete as well. There are lots of opportunities to mess it up.

For about four years I was chief examiner for the NCE newspaper practice – which is a test of legal and ethical knowledge as well as your reporting skills.

Here are my 10 tips to junior reporters facing the exam, I hope they help.

1. Watch the time. You only have one hour for the exam. There are 50 marks for the law question and 25 each for the two practice questions. So, logically you might allocate 30 minutes to law and 30 to newspaper practice, but keep your eye on the clock. It is very easy to get carried away with the law question and not allow yourself enough time for the practice. If you really nail the law, that might just be ok, but you will really need to nail the law. I saw far too many papers with a rushed final question that hardly got any marks at all.

2. Know your law. The NCE when I was writing it anyway, focused on mainstream legal issues – contempt, libel, mags court restrictions, children, sexual offences and the PCC code. There might be other items such as privacy, confidentiality and copyright thrown in, but those main items should get you through.

3. Don’t confuse your defences. A favourite question of examiners features the defences for a court report. All too often candidates claimed absolute privilege – a libel defence – as a defence against contempt of court. There’s a simple mnemonic I invented to avoid this. “Banksy says remember your ABCAbsolute privilege has Bugger-all to do with Contempt. The defence against contempt for court reporting is S4(1) of the Contempt of Court Act 1981 which says a fair, accurate contemporaneous report of court proceedings cannot be in contempt of court, sop long as no order has been made under S4(2) postponing the report.

4. Don’t scattergun. You might want to play on the safe side and put down every single thing you know about the law, but that just tells the markers that you can’t spot the problem at hand. Keep the law relevant.

5. Be specific. If you think the problem in the question is libel explain why. Many candidates lose marks by simply saying: “The problem here is libel…” then going on to explain the defence that might apply. There will be marks available for explaining exactly which  words are libellous and why. The same goes for any other legal issue, analyse why it is a problem, then go on to explain the defence that might apply.

6. Know your PCC Editors’ Code. Go to the PCC website, look at recent cases. Know the code inside out. It’s in your contract of employment, you’ve probably been given it a few times during your traineeship, it’s on the PCC website, there really is no excuse for not knowing it. In the current climate I would not be at all surprised if it features more often in NCE exams than it has before.

7. Be realistic. On the practice questions, where you are explaining how you would handle a story, make suggestions that you would expect to work every day. You might like to talk to the Prime Minister on the issue at hand – he would not return your call.

8. To vox pop or not to vox pop. This has become a standard part of many candidates practice answers. Sometimes it is a relevant idea, very often it is not. If you think it is, then do please tell the examiner what you would ask and how the responses would add to the story. The same goes for the digital equivalents of a telephone or internet poll.

9. Check your answer. Build in time to check your answer. You are not marked down for spelling on this exam, or at least weren’t when I was examining it. But nevertheless, checking your copy might avoid some terrible howler being submitted that might cost you marks.

10. In the unhappy event you fail, stump up for a failure report. It will certainly help you get through it next time and so it is worth the money.

In any event, I hope the above is useful, and good luck on the day.

Contempt of court and how to avoid it

I have spent 12 years training journalists and others in media law and I, like many, thought contempt of court was a bit of a  paper tiger.

We had had very few actions for contempt brought by the Attorney General over the years and those that had been were so blindingly blatant that anyone with a rudimentary knowledge of the law could have avoided them – the Leeds footballers, Bowyer and Woodgate contempt by the Sunday Mirror, for example.

But recently we have had a series of contempt actions, with more pending.

The Sun and Daily Mirror were prosecuted over reporting of the arrest of Chris Jefferies, landlord of Joanna Yeates – an innocent man ‘monstered’ by the tabloids.

The Daily Mail and The Sun were prosecuted for contempt for publishing a photograph online of a man holding a gun during his trial.

The Attorney General is due to decide whether to bring an action against a journalist who allegedly tweeted details of pornography found on Vincent Tabak’s computer which was ruled inadmissible as evidence at his trial for the murder of Joanna Yeates.

The Mail and the Mirror face a contempt action over reports of a trial of Levi Bellfield, killer of Milly Dowler

Now The Spectator awaits a decision from the AG after columnist Rod Liddle weighed in with commentary on the Stephen Lawrence murder trial which the jury were directed not to read.

I have written many, many times about the AG Dominic Grieve’s attitude to contempt and the fact that he has warned he will take action where there has been prejudicial reporting.

So, for those of you out there wondering what contempt is and how you might steer a path through it, here is a quick guide.

1. What is contempt?

The law that protects the judicial process. It covers many things from obedience to orders of the court to behaviour in the courtroom itself. But if you are in media then you worry about contempt by publication – ie putting something out there which might derail the judicial process.

2. When do I worry about contempt?

When proceeding are active. The old common law of contempt used a wooly phrase – proceedings ‘pending or imminent’ which was whatever a judge took it to mean – a week, a month, a year. The Contempt of Court Act 1981 swept this aside and created the concept of ‘active’ proceedings. Proceedings are active when someone has been arrested; a warrant has been issued; they have been orally charged or an information has been laid. If none of these things has happened then contempt evaporates as a problem – publish whatever you like.

3. OK, proceedings ARE active, what should I avoid

Publishing something which creates a substantial risk of serious prejudice or serious impediment to those proceedings.

4. What does that mean?

Well, that’s a little subjective, but case law has shown the following to be a problem:

*Photos or descriptions where identity is at issue – ie the defendant claims it was not him who committed the crime and the prosecution has eyewitnesses whose testimony has to be tested by way of an ID parade. They must rely on their memory of the offence, not a photo helpfully published by the media. This action cause the record fine for contempt (so far) £80,000 for the Sun and £20,000 for Kelvin MacKenzie as editor.

*Assumptions of guilt – in crime reports, police have arrested A man, not THE man.

*Previous convictions – not normally allowed in as evidence, so don’t go informing the jury of them.

*Blackening a defendant’s character – if the prosecution do it in front of the jury, that’s fine. Just don’t do it yourself as they await trial.

5. Does this mean a media blackout about a crime if proceedings are active?

No. The CCA 1981 was drafted in response to the Sunday Times coverage of the Thalidomide scandal, which had been found in contempt under the old common law. The ST took an appeal all the way to the European Court of Human Rights, which ruled that the common law contempt, as applied, was in breach of the ST’s right to freedom of speech. So the CCA 1981 includes a Section 5 defence of ‘discussion of public affairs’. So, for example, a euthanasia trial does not shut down all mention or discussion in the media of the issues of euthanasia. But such discussion should avoid direct commentary on the trial.

6. What other defences do I have?

Section 3 defence – you didn’t know and had no reason to suspect there were active proceedings. But you have to show you checked. So if you’re reporting a crime and the police fail to inform you, when asked, that someone has been arrested, then you have a defence.

Section 4 (1) defence – you can’t be in contempt of court if you are reporting court. As long as the judge has not exercised powers under Section 4 (2) ordering you to postpone reporting of some aspect of the trial.

That’s about all there is to it. I realise that when the Pack are covering a story it is sometimes hard to resist carrying the same stories as others and to outdo your rivals at any cost. However, I cannot emphasise enough the folly of doing so. Dominic Grieve takes this very seriously and he has shown he is prepared to act.

If you need further assistance in any of this, you can find my contact details on the contact page of this site.