MA Online Journalism: Law for bloggers and journalists with Paul Bradshaw

Warning: this is a long post, get yourself a cuppa before you start….

Last week I popped along to the Coffee Lounge in Brum for one of Paul Bradshaw‘s open MA Online Journalism sessions. This one was about the law & blogging, something I obviously need to be aware of with The Lichfield Blog. As a publisher myself you’ll probably find more of that angle to these notes.

Before I try and turn my 6-pages of notes into blog post form I’m going to re-iterate Paul’s disclaimers;

• 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.
• It appears to be almost impossible to avoid bullet points when talking about law. I’ll let you read the new third disclaimer yourself.

Good, hopefully now you won’t sue me for excessive use of bullet points.

Audit

We started off with an ‘audit’ – shared experiences of law on the ‘net. Key points were;

• The law covers the articles you write and any user-generated content.
• If the Police tell you something, that doesn’t mean you can print it – you have to have evidence to back up everything you say. Put simply, don’t trust anything anyone says.
• The WWW is exactly what it says on the tin – a World Wide Web and as such is covered by global law and the phenomenon known as libel tourism.
• It’s often the easy fish that get caught. We discussed the case of an Indian blogger who was sued because he criticised TV coverage of the Mumbai attacks while the head of the church, who also criticised the coverage, faced no action at all. It seems that newspapers are easy targets because they’re insured and independents are easy targets ’cause it’s too risky for them to fight back so they’ll settle.

We talked about the risks and concluded that there is always some risk, otherwise you would end up publishing very little. It has to be a calculated risk, though. The Times rejected the MPs expenses story after getting the advice of their lawyers. However, the Telegraph obviously went for it. Some lawyers actually don’t mind a fight and you might find you get differing opinions if you consult them.

Then we talked about what exactly defamation is:

• it lowers people’s opinion of someone
• it is without justification (i.e. just an insult for the sake of it)
• it is calculated
• it causes the victim to be shunned and avoided (y’know, like when someone in the playground has the lurgy)
• republishing defamation is also defamation

There is a good list of scenarios provided by the Independent Producer Handbook you can look at, too.

Burden of Proof

Next we discussed the burden of proof. This is an important one. Key points are;

• The burden of proof is on you as the publisher – you have to prove that it’s not defamatory.
• ‘Truth’ isn’t always a defence – you can’t just publish something and claim it’s fine because it’s fact, you have to support that with evidence.
• You need to prove it’s true or one of the following (which I’ll go into later);
  • Fair comment
  • Absolute privilege
  • Qualified privilege

So, who can sue?

• Living people (yep, dead people can’t sue – go figure!)
• Companies, organisations
• Groups of people (though it might be hard for a big group like premiership goalies to sue)

…and who can’t?

• Government (e.g. see the case with Derbyshire County Council but be mindful of Berlusconi)
• Quangos

Note that some are more litigious than others.

Marc Reeves

We also had a visit from Marc Reeves, editor of the Birmingham Post. Marc gave some good insight into how they deal with defamation at the Post. Being part of the Trinity Mirror group means they have a team of lawyers on the end of a phone in head office at Canary Wharf so they can always check first.

Interestingly, when they receive a notice of defamation they will immediately take down the material in question, to be on the safe side. They’ll also make efforts to get the pages removed from Google as that can be a sticking point in libel cases – just being shown to have made the effort is enough.

We also discussed how newspapers are established targets – it’s quite a common occurrence. Marc said they deal with many cases that cost a few hundred to a few thousand pounds. That’s a lot of mullah to be shelling out!

We went on to some specifics of the law;

• In England, there is a 1 year time limit on bringing a libel action from the date of publication.
• In Scotland it is 3 years.
• Each re-publication resets that time-limit back to zero.
• Each view of a web page is considered a re-publication so even a lawyer checking the page out for a case is causing that material to be re-published again.
• The need to keep notes was discussed – because libel action could effectively be brought years after publication it’s important that any notes that you have around the published material are kept in case they are important to the case. We discussed the potential for libel ‘holidays’ where people wait for years to bring action in order to increase their chances of winning.
• There is a Ministry of Justice consultation going on right now on defamation and the internet and it’s available on Write to Reply. Go add your views!

The Defences

Having looked at what is defamatory and who can and can’t sue we discussed the possible defences to a libel action.

Fair comment

• Is not malicious
• Is honest & sincere views
• Based on facts (that are well known or clearly indicated)
• Matters of public interest (such as what politicians are up to)
• Saying “it’s just my opinion” is no defence

Qualified privilege

• Where there is a moral, legal or social duty or a public interest in reporting
• This refers to reporting the likes of court hearings and council meetings
• Reporting must be fair and accurate; missing bits out will land you in trouble
• Whole court hearings must be reported otherwise you could be found in contempt of court

Absolute privilege

• This refers to the ability to print everything that goes on in a court hearing or in Parliament
• Even defamatory statements can be published without the re-publication rule applying
• This supposedly over-rides everything else including injuctions
• Contempt of court still applies if you don’t present a fair and balanced view of proceedings
• You must make it clear a case is ongoing and previous articles about a case should really link to one about the outcome

Reynold’s privilege

• The defence that despite publishing inaccurate accusations it can be acceptable if it was deemed to be responsible journalism
• It comes from the case of Reynolds vs. Times Newspapers Ltd where the court established the Reynolds factors

Innocent dissemination

• This is the “I didn’t see it” defence though as soon as notification of libellous content is found, it should be removed otherwise you may be held responsible
• It’s important to have Terms & Conditions for commenters that hand over the copyright of whatever they right to you so that you may edit/remove their comments
• If a person has consented to defamatory material about him or her being published, that is an absolute defence – remember to have evidence though!

Developments

We briefly went through the developments around the law, including the defamation and the internet consultation. See Paul’s slideshow (below) for more.

Contempt

Contempt of court is very important. During an ongoing trial you should be careful what you report, here’s some pointers;

• Don’t mention too many details about those involved (judge may issue a list of things you shouldn’t print)
• Do not mention previous convictions of accused or their lifestyle as that could prejudice the case
• It is illegal to ask jurors about the case or take photos of them during the trial or around the courts buildings
• It’s important to publish dates of follow up hearings, sentencing and the like
• Don’t even think about printing stuff about under 18s or family proceedings unless specifically given permission by the courts

Privacy

This is very important. Be wary of;

• revealing private details
• filming/recording without consent
• doorstepping (i.e. just knocking on people’s doors without warning)
• public spaces may be more protected but it’s still best to warn people
• obtain signed permission slips if you can or recordings of consent
• low resolution video may offer some protection

As a general rule, just be respectful of people’s privacy and you should be alright.

Confidentiality

Some things will be covered by confidentiality. These could include;

• Official Secrets Act
• Data Protection Act
• Non-Disclosure Agreements

Copyright

• Don’t quote from anything not in the public domain unless given express permission to do so
• Make sure you include sufficient acknowledgements to copyright owners
• Understand Creative Commons
• Don’t assume you have the right to publish

Regulation

We touched on regulation, too. Check out the NUJ which aims to promote ethical standards in journalism amongst other things, and also the EFF which seeks to defend the rights of bloggers and citizens in the digital world.

That’s it. If I’ve missed anything important, please let me know, and here is Paul’s presentation;