Law 2: Confidentiality and privacy

Confidentiality and privacy sound similar, but they are very distinct in terms of the law. The latter as a legal concept is relatively new, but the ramifications of it are wide reaching.

Confidentiality arises from the circumstances in which the information is given: privacy is more intrinsic, and a value judgment is made on the quality of information itself and whether it should be categorised as private and therefore not disclosed.

A good example of a private document would be a diary you happen to find lying on the street - to publish the contents of that would be an infringement of someone's privacy. There was no obligation of confidence between you and that person, so it's not a breach of confidence.

UNLIKE LIBEL, the burden of proof lies on the claimant to prove that they have been damaged by a breach of confidence.

What makes something confidential?

• The information has to have the necessary quality of confidence, in that it's not just some trivial piece of gossip, e.g. Cheryl Cole has herpes v.s. Cheryl Cole said she hates cats
• The information must have been imparted in circumstances that imposed an obligation of confidence i.e. a doctor's office as opposed to a public forum
• There must be an unauthorised used of the information (in most cases, publishing) to the detriment of whoever communicated it.

Governments, businesses and individuals use confidentiality law to protect things that are official or commercial secrets, or private. Injunctions are often used to stop the confidential material from being published.

Why would you want to publish confidential information in the first place? Well, it'll often be information that is very much in the public interest but something that the company/government/person will not want you to know. For example, a whistleblower could leak information to you which proves that a company is producing a harmful product and not warning anyone of the dangers.

When the story has been published and the injured party sees it, they and the courts will come after you and demand that you reveal the source of the leak, because the source has illegally broken their obligation of confidence with their employer.

N.B - you pretty much always have a contractual obligation of confidence with your employer even if it isn't outlined as such. It is an implied term in every contract that you won't act in a way detrimental to your employers interests.

At this point you, as a journalist, must point blank refuse to reveal your source. Protecting sources is a pretty serious deal - you've got to be prepared to pay hefty fines or even go to prison over it. Without sources, we're nothing, and so if it is widely known that we turn sources in as soon as it gets a bit rough, nobody would ever tell us anything ever again. When you're dealing with a legal argument over sources, you have to try and put aside what a nightmare it will be and remember that you're representing your entire profession here.

Case study

Bill Goodwin worked on a magazine called the Engineer and during his time there he used a source to reveal that a company called Tetra was in a bit of a financial pickle, which was at odds with the statements released by the company itself. This is in the public interest as, if the leaked documents were genuine, it showed Tetra to be hypocritical and deliberately misleading its stakeholders.

He tried to rely on Section 10 of the Contempt of Court Act, which gives journalists a legal right to protect their sources (unless it's necessary to disclose the source 'in the interests of justice, prevention of crime or disorder or if it's a matter of national security.')

The courts were unsympathetic and rationed that Goodwin was contrary to the interests of justice by protecting the source who had, according to Tetra, falsified these documents just to damage them. He still refused to reveal his source.

Bill was fined £5,000 and was forced to go to the European Court of Human Rights to appeal against the ruling, but seven years later he was finally out of the woods. They also ruled that the fine violated his right to freedom of expression under Article 10 of European Convention on Human Rights.

Seven years and £5,000 sounds like a lot of hassle, but because of journalists like Bill, members of the public who want to expose some wrongdoing will continue to trust us, and that's the most important thing.

The injunction problem
As mentioned briefly above, injunctions can be taken out to stop confidential information from being published. The real pain in the backside for journalists arises from, in the pursuit of making your story balanced and fair, the need to seek comment from the person or company you're writing about. Once they suss out that you may have confidential information they will immediately get an injunction out against the publication of your story.

A possible way to get around it is to base your inquiry on information that's already in the public domain, but that's not always possible.

Injunctions are granted overnight and irrespective of whether the courts were right to do so in certain cases, the injunction will typically drag on long enough so that the story they were trying to hush up is no longer news by the time it expires.

Privacy

The European Convention on Human Rights recognised a human right to a personal private life, and in 2000 it was incorporated in to English law.

Article 8 – Right to respect for private and family life
 
1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society

• in the interests of national security, public safety or the economic well-being of the country
• for the prevention of disorder or crime
• for the protection of health or morals, or
• for the protection of the rights and freedoms of others.

Article 10 - Right to freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society

• in the interests of national security, territorial integrity or public safety
• for the prevention of disorder or crime
• for the protection of health or morals
• for the protection of the reputation or rights of others
• for preventing the disclosure of information received in confidence, or
• for maintaining the authority and impartiality of the judiciary.

Article 10 and Article 8 are in constant opposition with each other. Article 8 is what people will use against you and Article 10 is your defence.

The Princess Caroline of Monaco case in 2004 was a landmark ruling in favour of Article 8 and from then on photographers and journalists had to respect a right to privacy in a public places. She was being photographed in her daily life and not performing some public duty.

However - in 2012, Princess Caroline lost her latest press privacy fight. The ECHR ruled that that the contested photo of her and her husband walking along in a ski resort was in a public place, and that the lives of 'well-known figures' are of legitimate interest to the media.

The ruling tips the balance back from Article 8 to Article 10, and could present some very interesting common law to protect journalists for years to come.

Case study

The News of the World (RIP) published a story about Max Mosley taking part in a Nazi-themed sadomasochistic orgy with five ladies and put the secretly filmed footage (...ugh) on its website. Their source was one of those women who had taken part in the orgy.

Mosley said there was no Nazi theme and that the activities were all consensual and just a bit of a laugh, really. No harm done.

The judge ruled that the woman informant was in breach of her transitory duty of confidence that she owed to Max. He could not find any evidence of the Nazi allegations which he said would have been in the public interest if true, but that as it stood there was no public interest defence to justify the filming or the intrusion. The material was private and there was no good reason to publish it.

Mosley announced in 2008 that he would challenge the UK's privacy laws in the ECHR to make it compulsory for newspapers to notify someone before publishing private information about them. He said that no-one from the newspaper had sought comment from him and he hadn't had a chance to get an injunction.

Law 2: Investigative Journalism

Investigative journalism is the umbrella term for stories which have been initiated by journalists; it's about not sticking to the traditional news agenda mix of parliament, court, local government, and so on. To paraphrase Chris in our lecture: "We're not just on the treadmill of news, we get off it and make our own news."

Because of this, it's good to categorise investigations as 'news features' - features aren't scheduled, and neither are investigations. The only difference here is that news features would still be editorially led.

So, if you've got no agenda, then how do you come up with lines of investigation in the first place? Usually most big investigations flower from tip-offs or whistle-blowers within an organisation that know something crooked is going on and want the corruption to be exposed through an appropriate agency: you. You, the big, clever, handsome Hero Journalist.

However, lots of investigative journalism stems from a suspicion on the behalf of the journalist that something isn't quite right with a particular individual or organisation, and who then sets about to uncover the truth.

Chris used Louis Theroux and himself as examples of this kind of method. Both examples were pretty similar - investigations of the supposed re-branding of certain political groups.

While working on Michael Moore's TV Nation series, Louis Theroux thought he'd just mosey on along to a Klan meeting to see if their new-and-improved Kuddly Klansmen image actually had any truth to it. The KKK had been trying to claim that the old lynchin' days of yore were long gone, and instead they are simply a white civil rights group.

Theroux's meeting with them highlighted that they were, perhaps, taking creative liberties with the phrase 'civil rights' and that they were still racist idiots.

The premise of Chris's investigation for his book True Blue was similar. He said that he didn't quite believe that the Tories had succeeded in their supposed metamorphosis from a toffee nosed, cravat-wearing old boys club to... well, whatever they were meant to have changed in to. He and another journalist, Dave Matthews, went 'undercover' and signed up for a membership at a local Conservative club.

They found that Conservatives were mostly still cravat wearing.

Miscarriages of justice

"Who guards the guardians?"

Some of the best investigations were those that sought to uncover a miscarriage of justice. People find miscarriages of justice to be so incredibly mindblowing because it means that somewhere in the production line of justice, in the police or in the courts, something has gone horribly wrong.

While journalists have no legal or constitutional right to hold police accountable to mistakes or corruption, it's taken as a given that the press have a duty to do this. We can be the bloodhound, as well as the watchdog.

The Birmingham Six were six men who were convicted of bombing a pub while working for the Provisional IRA in 1975. Their convictions were later quashed by the Court of Appeal in 1991. World in Action broadcast a series of programmes throughout the 80s which cast serious doubts on the convictions of the six men who were then rotting away in prison; it is argued that without the interest World in Action drummed up in their case, that it would never have been reviewed by the Court of Appeal.

The evidence gap

The evidence gap is where all the good stuff happens.

In a civil court - the court that deals with libel - the standard of proof is 'on the balance of probability.'
In a criminal court, the standard of proof is 'beyond all reasonable doubt.'

It is in the gap between 'probably' and 'almost definitely' that investigative journalism flourishes.

A great example of this is the Daily Mail's front page about Stephen Lawrence - a teenager that was killed by a gang in 1993. Those accused at the time were never convicted, but the evidence against them was strong: strong enough that, should the Daily Mail have been sued for libelling these men as murderers, it was likely that a jury would rule in favour of the Mail. That's because based on the evidence available, they probably are murderers, and so their reputation is not being damaged by the Mail.

Remembering that it's 'probably', not 'definitely', is important. The investigation carried out by journalists should always be thorough, accurate and in the public interest. The evidence they come out with should be incredibly compelling, but it doesn't have to be so compelling as to be admissible in a criminal case because that is not our job.

We're not the police, we're not worrying about double jeopardy and getting a conviction. We don't need to convince the public that someone is guilty of wrongdoing beyond reasonable doubt because that isn't our duty. Our duty as journalists extends far enough to prove that corruption or hypocrisy is probably happening, but then we hand over to the authorities to do the rest.

Sometimes, the police will specifically tell you to write about someone who they know is a criminal but can't quite catch yet with their limited evidence, because the publicity can help to identify witnesses. If a eyewitness comes forward and is willing to testify, then a conviction becomes that much more likely and the police will feel braver to arrest and charge and a a known criminal.

Veronica Guerin

Veronica Guerin was an Irish crime reporter who was murdered in the pursuit of a story. As such, she's often thought of as a 'saint' of journalism, and with little wonder: even though she had previously received numerous death threats and had been hospitalised by the organised criminals she was trying to report on, she still kept at it and ended up being shot three times in the head for her trouble.

She had identified that the police and the local crime lords were in bed with each other, and so to prove this she started writing features asking why certain officers who were on > £13,000 per year and men with no declared income had such luxurious lifestyles.

This attracted extremely negative attention, but she was determined to expose the collaboration of the police and criminals in Ireland.

Subterfuge

Subterfuge is a method of obtaining evidence for a story by pretending you are someone else, and definitely not disclosing that you're a journalist. The most prevalent example is of 'hidden camera' footage that you'll regularly see on shows like Panorama. This is obviously quite unethical, and so before setting out to secretly film people you have to prove that you absolutely will not be able to cover this story without the footage. You also have to prove that it is conclusively in the public interest for you to do so.

The Secret Policeman is a great example of fantastic investigative journalism that used subterfuge - reporter Mark Daly spent 18 months of his life committing himself to becoming a police officer, and when he did he exposed the racist beliefs of his colleagues on camera. His piece was broadcast on Panorama in 2003.

He would have argued to his editor that you can't simply ring up the police and ask 'Hey, are you guys still racist?' - the secret filming would have been the only way to make the story work. It's in the public interest because no one wants racist police, and it was without malice because there was iron clad proof that the assertions Daly was making were true.

The thing Daly would have to have been careful about was not entrapping the officers in to saying racist things - he could only ever participate minimally in such conversations and not deliberate solicit such comment.

In summary, use of subterfuge must be:

• very much in the public interest
• without malice
• approved by the editor
• the only way to make a story viable

Law 2: Copyright

According Geoff Hill who edits Channel 5 News, copyright is something that often trips people up. Reporters and editors focus so much time and energy in to preventing defamation and contempt of court that consideration of copyright can sometimes fall by the wayside - when in fact, copyright issues can be some of the most expensive cases to settle in court. Out of court, it's still expensive - the former Head of Copyright at the BBC, Peter Hodges, told us of a case that recently settled £500,000 outside of court.

That's a lot of money, but in comparison to years and years of legal fees it was probably a wise decision. Copyright cases tend to drag on quite unpleasant - the patent war between Apple and Samsung has been trailing for close to two years now.

What is copyright?

Copyright is the legal protection of work done. It can be physical (a garden shed) or intellectual (an article) and it has to be original and substantial to qualify. Time is valuable, and so the work done is valuable - it's to the detriment of the creator if someone steals this work and unfairly benefits from their labour.

This legal protection doesn't extend to ideas - you can't copyright an idea. Not everyone understands this, and it can lead to very silly situations wherein one blogger threatens another over their use of the word 'blogumentary.' You can't copyright an entire genre. It's why it's fine for supermarkets to produce knock off versions of brand products as long as the packaging doesn't try to pass it off as the real thing. The same applies to intellectual and creative property - you can 'adapt' (read: steal) someone's idea because that isn't a crime - but heavily insinuating that your version is the real thing and drawing in users, viewers and readers under that guise is a crime.

Under the Copyright, Designs and Patents Act 1988, copyright protects any literary, dramatic, artistic or musical work, sound recording, film, broadcast, or typographical arrangement. This copyright doesn't have to be formally registered but it is a good idea to assert copyright in a piece to dissuade anyone from assuming it is free to use.

Copyright lasts for 70 years from the end of the authors death.
Copyright in a broadcast is retained for 50 years.
In 2008, the Government said it was considering extending the copyright of sound recordings from 50 to 70 years as well.

Copyright can apply to some pretty weird stuff. Peter Hodges gave us a guest lecture on the topic, and told us that the lighting arrangement on the Eiffel Tower is in fact protected under copyright, and that if an image is commercially published of the illuminated Eiffel Tower then the publisher is in breach of copyright.

Peter also gave us some guidance on the music in the background of sport matches and 'incidental inclusion' - if the music is too identifiable then its some legally shaky ground, but it still is a part of the natural sound of the story the reporter has gone to cover. Shoving music on top of an unrelated package just to jazz it up, however, is completely out of the question.

Copyright doesn't apply at all to research or private study. As students that's great news, but as journalists this doesn't effect us because the every day aim is to have everything you produce widely published.

Case study

The Hobbit is a pub in Southampton which earlier this year hit the headlines when Hollywood film firm the Saul Zaentz Company threatened them with legal action over use of Lord of the Rings names and characters.

They said that if the The Hobbit wanted to continue trading normally, then they must be properly licensed to use the name and keep the decor.

This story produced a widespread kneejerk reaction from the public and several celebrities over the attitude of the 'big bad guys' trying to bully a small independent little pub. All of that and my own personal feelings about how much I like the pub aside, from a legal point of view The Hobbit are in the wrong.

Why? The decoration and merchandise has pictures and paintings of characters from the film all over it. Not the artist's impression of what they imagined the characters look like in the books; it's definitely Ian McKellen and Elijah Wood. The film company paid for those actors to appear in the films and so all images of them relating to the film belong to it. The work done, therefore, belongs to Warner Brothers and nobody else.

Morally, I think that SZC should probably just let it go, but that's absolutely worthless in a court of law.


Getting around copyright

• Make things yourself. If you've taken your own picture or shot your own footage, then you can do whatever you want with it. You can store it in an archive for later so that you and other reporters can recycle it if you're ever stuck for picture in the future.
  
• Buy it from someone else. Lots of newspapers and bulletins pay agencies for their content if they have nothing of their own to use.
• Fair dealing. The test for whether fair dealing is indeed fair is to ask yourself if your story will be impossible to tell without the content you want. If you can reasonably tell the story without it, then you can reasonably assume that fair dealing won't hold up as a defence in court.
• Be the BBC and have >70 years of archive footage of everything, ever.

Fair dealing

Graham and Ewan's WINOL Games is a review show that's held up as having excellent examples of fair dealing. They do it by the book: every clip of a game they use is clearly attributed to the publishers, is only a few seconds long, and they'll usually speak over it.

Hell, let alone crediting the publishers, the text overlay even tells you how much it costs and where you can buy it.

The crux is this - they wouldn't be able to create the show without the minimal game footage. Another important point is you're not watching their show so you can watch uninterrupted footage of a game so you don't have to buy it (that'd be weird, but if it were a film review show, this would make more sense.)

No - you watch the show for Graham and Ewan's fair and honest reviews on a new game they've played so that you can make an informed decision on whether you want to buy it yourself. That's exactly the purpose of a review - it's a journalist going out and sampling some of these consumer products and relaying their impressions back to you, because it's impossible for even for obscenely rich people to go out and buy every single version of every single item just to test them all out. Reviewers are serving a public duty, like all other journalism should.

Photographs are exempt from fair dealing. If a newspaper steals an exclusive picture from another newspaper, then under Section 30 of the Copyright Designs and Patents Act 1988 they are open to litigation.

Law 2: Regulation and Codes of Conduct

Breaking codes of conduct won't get you in to hot water with the law, but it'll certainly not endear you to anyone else.

Codes of conduct exist as a set of guidelines for journalists to follow during the course of their career, as guidelines for safe broadcasting, or guidelines for what amounts to house style.


The main codes come from:

• The National Union of Journalists
• The now defunct PCC
• OFCOM
• BBC Editorial Guidelines

We'll start with the National Union of Journalists' code of conduct, as every single journalist should stick to the NUJ code as well as the over governing bodies that might apply to them:

NUJ

1. A journalist has a duty to maintain the highest professional and ethical standards. - Obey the code
2. A journalist shall at all times defend the principle of the freedom of the Press and other media in relation to the collection of information and the expression of comment and criticism. He/she shall strive to eliminate distortion, news suppression and censorship. Eliminate distortion 
3. A journalist shall strive to ensure that the information he/she disseminates is fair and accurate, avoid the expression of comment and conjecture as established fact and falsification by distortion, selection or misrepresentation. Fair, accurate, no comment as fact
4. A journalist shall rectify promptly any harmful inaccuracies, ensure that correction and apologies receive due prominence and afford the right of reply to persons criticised when the issue is of sufficient importance. Rectify harmful inaccuracies 
5. A journalist shall obtain information, photographs and illustrations only by straightforward means. The use of other means can be justified only by over-riding considerations of the public interest. The journalist is entitled to exercise a personal conscientious objection to the use of such means. Obtain photographs only by straightforward means unless absolutely necessary
6. Subject to the justification by over-riding considerations of the public interest, a journalist shall do nothing which entails intrusion into private grief and distress. Don't intrude into death - private
7. A journalist shall protect confidential sources of information. Protect your sources
8. A journalist shall not accept bribes nor shall he/she allow other inducements to influence the performance of his/her professional duties. No bribes
9. A journalist shall not lend himself/herself to the distortion or suppression of the truth because of advertising or other considerations. No lying for advertisements
10. A journalist shall only mention a person's age, race, colour, creed, illegitimacy, marital status (or lack of it), gender or sexual orientation if this information is strictly relevant. A journalist shall neither originate nor process material which encourages discrimination, ridicule, prejudice or hatred on any of the above-mentioned grounds. No gratuitous mention of a person's race/gender/creed
11. A journalist shall not interview or photograph children in connection with stories concerning their welfare without the permission of a parent or other adult responsible for their welfare. Don't interview children
12. No journalist shall knowingly cause or allow the publication or broadcast of a photograph that has been manipulated unless that photograph is clearly labelled as such. Manipulation does not include normal dodging, burning, colour balancing, spotting, contrast adjustment, cropping and obvious masking for legal or safety reasons. Do not broadcast manipulated images
13. A journalist shall not take private advantage of information gained in the course of his/her duties, before the information is public knowledge. Do not use information gleaned through investigation for unfair, personal gain
14. A journalist shall not by way of statement, voice or appearance endorse by advertisement any commercial produce or service save for the promotion of his/her own work or of the medium by which he/she is employed. No endorsement

OFCOM

Ofcom's guidelines are thorough and far-reaching, but worth paying attention to as OFCOM literally have the power to take you off the air in addition to slapping you with a heavy fine. I've mangled them in to the following summary:

1. Protect under 18s from viewing unsuitable material
2. Protection continued - observing the watershed
3. Prevent offensive language from being broadcast on the radio, especially when children are likely to be listening
4. Do not publish material that deliberately misleads the audience so as to cause harm and offence
5. Do not publish material that is likely to encourage crime and disorder
6. Protect listeners and viewers from the failure of a proper degree of responsibility, improper exploitation and abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination. 
7. Promote impartiality and accuracy and prevent undue prominence 
8. Observe election guidelines - impartialityPublishers should make sure that their reports are fair, balanced, that contributors have informed consent and that subterfuge is only ever used appropriately
9. Know when the public have an expectation of privacy and ensure that Section 8 is not infringed. Do not intrude on grief, distress, and young and vulnerable people.
10. Limit the extent to which references to products, services and trade marks can feature in programming
11. The same consumer protection as above, but as applied to radio.

BBC Editorial Guidelines

The BBC are not commercial and instead of worrying about the value of their ad space, they have to worry about a thing called Audience Appreciation which is a measure of how successful the BBC is as a publicly funded output.

Here are their 'Editorial Values', taken from http://www.bbc.co.uk/editorialguidelines/page/guidelines-editorial-values-editorial-values/

1 Trust
Trust is the foundation of the BBC: we are independent, impartial and honest.  We are committed to achieving the highest standards of due accuracy and impartiality and strive to avoid knowingly and materially misleading our audiences.   

2 Truth and Accuracy

We seek to establish the truth of what has happened and are committed to achieving due accuracy in all our output.  Accuracy is not simply a matter of getting facts right; when necessary, we will weigh relevant facts and information to get at the truth.  Our output, as appropriate to its subject and nature, will be well sourced, based on sound evidence, thoroughly tested and presented in clear, precise language.  We will strive to be honest and open about what we don't know and avoid unfounded speculation. 

3 Impartiality

Impartiality lies at the core of the BBC's commitment to its audiences.  We will apply due impartiality to all our subject matter and will reflect a breadth and diversity of opinion across our output as a whole, over an appropriate period, so that no significant strand of thought is knowingly unreflected or under-represented.  We will be fair and open-minded when examining evidence and weighing material facts.   

4 Editorial Integrity and Independence

The BBC is independent of outside interests and arrangements that could undermine our editorial integrity.  Our audiences should be confident that our decisions are not influenced by outside interests, political or commercial pressures, or any personal interests.   

5 Harm and Offence

We aim to reflect the world as it is, including all aspects of the human experience and the realities of the natural world.  But we balance our right to broadcast innovative and challenging content with our responsibility to protect the vulnerable from harm and avoid unjustifiable offence.  We will be sensitive to, and keep in touch with, generally accepted standards as well as our audiences' expectations of our content, particularly in relation to the protection of children.  

6 Serving the Public Interest

We seek to report stories of significance to our audiences.  We will be rigorous in establishing the truth of the story and well informed when explaining it.  Our specialist expertise will bring authority and analysis to the complex world in which we live.  We will ask searching questions of those who hold public office and others who are accountable, and provide a comprehensive forum for public debate.  

7 Fairness

Our output will be based on fairness, openness, honesty and straight dealing.  Contributors and audiences will be treated with respect.

8 Privacy

We will respect privacy and will not infringe it without good reason, wherever in the world we are operating.  Private behaviour, information, correspondence and conversation will not be brought into the public domain unless there is a public interest that outweighs the expectation of privacy. 

9 Children

We will always seek to safeguard the welfare of children and young people who contribute to and feature in our content, wherever in the world we operate.  We will preserve their right to speak out and participate, while ensuring their dignity and their physical and emotional welfare is protected during the making and broadcast of our output.  Content which might be unsuitable for children will be scheduled appropriately.  

10 Transparency

We will be transparent about the nature and provenance of the content we offer online.  Where appropriate, we will identify who has created it and will use labelling to help online users make informed decisions about the suitability of content for themselves and their children.  

11 Accountability

We are accountable to our audiences and will deal fairly and openly with them.  Their continuing trust in the BBC is a crucial part of our relationship with them.  We will be open in acknowledging mistakes when they are made and encourage a culture of willingness to learn from them.

Law 2: Privilege and Court Reporting

My notes from first year on court reporting.

Flick's Absolute Privilege Check-list

This is a quick and handy way of finding out if you have absolute privilege. (Spoiler: you don't.)

If the answer to all of the above is no, then you do not have absolute privilege. And that's an awful shame, because people who do have absolute privilege can say whatever they like with impunity - they cannot be sued for defamation. Stuff said under absolute privilege can even have malice - a prosecution lawyer can call someone a murderer even if they don't believe it to be true because it's their job to do so, so they have to be protected.

If a judge insinuates that you're a loose woman while you wait at a bus stop then that's a different matter and pretty rude too, but if he/she's sitting in on a court case that you're implicated in, then he/she can slag you off until he/she's blue in the face.

But you're probably not a judge, so you can't do that. Instead, journalists have qualified privilege - it's a way of distilling whatever is said under absolute privilege in to some news as long as the report of what was said is fast, accurate and fair. That is to say that it's good accurate journalism and that it's also being published in the very next available edition.

Court reports enjoy a slightly elevated bit of legal protection, so long as they are a 'a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously.'

This is vital because much of what is said in court is, understandably, fairly slanderous. If newspapers couldn't report on it without fear of being sued then justice wouldn't be seen to be done and that's part of the duties of both the press and the criminal justice system.

To recap:

You do not have absolute privilege.
You have qualified privilege when you're contemporaneously reporting the words of someone who does have absolute privilege - a judge, a barrister, an MP.

Your qualified privilege extends to certain other things too - council meetings, for example. If one councillor accuses another of fraud, then you can report that, but it's subject to refutation - you have to seek comment from the damaged party.

'Subject to refutation' is a practice that we employ at WINOL all the time. A more simple way of explaining it is simply balance. If your report is headed with something sensational but then you also publish the fact that the councillor denies the allegations, then you're probably safe.

Contempt of court

Contempt of court is a strict liability offence. It carries a fine of up to £75,000. It serves to limit a juries' exposure to prejudicial material in the hope of securing a fair trial. Publishing anything about the jurors in addition to prejudicial material is also contempt of court.

Crime and court reporting

Crime and court reporting sound similar but in terms of the law they are distinct.

There are different stages between a crime being committed and someone being sent to jail for it. The scope for interesting and colourful reporting tends to book-ended - it dries up in the middle as the trial is happening because of the very real dangers of publishing prejudicial information which will lead to a contempt of court charge.

Stage 1 - The crime is reported, police are appealing for information. Everything is fair game.
Stage 2 - Police make an arrest or say a person is 'helping with enquiries'. The case becomes active at this point, which means you need to be careful. Take advice before publishing anything, especially anything pertaining to the description of suspects. A victim interview recorded at Stage 1 where she describes the suspect as a 'monster' and describes his height, appearance etc cannot be used again until the case is closed.
Stage 3 - Police lay charges. Only incontestable facts can be reported. Community 'colour' angles can be reported - i.e. that a neighbour is shocked, footage of people laying flowers by the scene of the crime, but that's about it.
Stage 4 - The initial magistrates court hearing. You're restricted to reporting on seven points only, namely:

Defendants name, age, address, occupation
Charge(s)
Bail arrangements
Whether legal aid was offered
Date and place where court will be adjourned to
Name of court
Name of lawyers



Very recently, The Daily Mail and The Mirror were fined £10,000 for contempt of court over their Levi Bellfield coverage. The way and timing with which they reporting certain details were ruled as being potentially prejudicial for a jury and so those two newspapers were fined.

The concept of prejudice is absolutely key here. If you put prejudicial information in the public domain, it could lead to unfairness at a later stage. If a jury member reads an emotive interview with a witness in which she gives a description similar to the defendant they've seen at court every day for the past week, then there is the danger that they will be swayed.

Fairly, in my humble opinion, the law is designed to come down heavily on the publisher in this instance. It is part of our duty as journalists to recognise this risk - we are supposed to work in the public interest, not be complicit to a potential miscarriage of justice.

It's nice to think that the Court want to punish you for prejudicing the jury just in the interest of pure justice, but it's not only a moral decision - it costs a hell of a lot of money to re-try a case and the fine will be in an attempt to recoup some of those losses. In addition to the fine they will also make you pay costs, as the Sunday Mirror found out.

It's our job as journalists when writing our court reports to sort out contested facts vs uncontested facts - it's the contested ones are possibly prejudicial. The contested facts are exactly that - they will be contested in court, and so they cannot be published. The mere virtue of the fact that they have been published could lead someone to think that it's a solid fact, and again, could be incredibly prejudicial in a trial. The exact details are fought about over weeks, sometimes years, and they cannot be reported on while the case is active.

That little detail that you reported could later be entirely disproven in court.

Never forget the presumption of innocence. The accused are innocent until the prosecution manages to prove them, in the minds of the jury, guilty beyond all reasonable doubt.

Restrictions regarding young people in court

According to Section 49 of the Children and Young Persons Act 1933, reports of youth court proceedings must not reveal:

the name
address
school
any particulars that could lead to their identification picture.

Section 39 of the same Act says that under 18s involved in adult court proceedings must not be identified either.

Critique of Channel 5 News, 27.11.12

www.journalism.co.uk

Today's headlines were:

Floods again, featuring an interview of a moist looking David Cameron
Norovirus
Nadine Dorries
Corrie funeral

Sports Personality of the Year.

What I think worked:

The Corrie funeral was good to cover - 5 News is clearly aimed at an older audience and older audiences tend to watch more soaps.

A graphic during a flood update OB was great, it included information about the story but also rail and road closure news which are things people need to know.

The same package ends with footage that was clearly shot from a boat chugging along on the floodwater. That was really good and ended the VT with some natsot.

The interview with the PM by the river.

The interview with the man stranded in his house - reporter was pointing the mic at him as he was leaning out of the top window. I really liked that and it gave the viewer a sense of scale of the destruction that the flood had caused. The crew also filmed a great cut away of the man's wheelie bin floating away in the flood water.

I also loved the shot of the couple in the dinghy with the dog - the scripting went along with this quite well as the reporter said 'and people saved the things that were most important to them..'

Vox pops for the Sports story worked well, as the opinion of your average person is relevant for the story.

What I think didn't work:

The Sports Personality of the Year leaves you with a cliff hanger - the headline clip freeze-frames, then zooms in to a corner of the guy's face. I personally didn't like that but maybe it appeals to a soap-watching target audience.

Emma Crosby is great, but from both watching her and from reading the comments viewers have left on her profile page on the 5 News website, I've got to agree that she is far too smiley when reading about serious stuff. The death of the old woman in St Asaph wasn't treated seriously enough.

As before, I'm really not sure about including the reporters in shot with interviewees unnecessarily. If it is to patch a cut, then fine, but not as a matter of course. The only package that didn't have the back of someone's head in it was the Yasser Arafat one because it was made up of archive footage.


The norovirus package started and ended with the exact same shots. These shots also had some sinister music underneath them which I didn't like - the norovirus isn't really a killer but it almost implied that it was.

The crane OOV - footage taken from ABC News. Why was this reported on?

Critique of Channel 5 News, 26.11.12

www.journalism.co.uk

5 News is a 20 minute bulletin not too dissimilar to WINOL. The opening sequence features a three or four second graphic move of the 5 News logo which goes straight in to the presenter in vision accompanied by a light, modern music bed for the headlines.

I really like the brevity of the beginning and it made me think that WINOL's opening sequence and headlines might possibly be a bit drawn out, especially when you consider the fact that our bulletin is typically < 15 minutes long.

Anyway, back to this evening's episode of 5 News:

Today's headlines were:

• Floods. Many flood.
• Foster parents
• Eurovision

There was quite a long sting accompanied by a graphic after the headline for the floods, which confused me as I took it as a cue that the programme was going to move on - but it didn't, it went back to the other two headlines.

A musical sting and a flash is fine but I think the gap in between the first headline and the rest is too long and confusing for the viewer, especially ones as remarkably unintelligent as me.

Over half of the bulletin was dedicated to flood coverage. I'm wondering if this was too much when a lot was made of the fact that there was going to be a 5 News special about the floods to be broadcast at 18:30.

Despite perhaps being too long, most of it was well done: the structure of the segment started with the presenter in vision as she threw out some stats as graphics played out in the greenscreen behind her. This was effective and a device that's used in pretty much every other news channel.

There were also three OBs which linked back to reporters who gave updates on the scene with rivers overflowing behind them which was nice to look at. The OBs were fantastic because of the visuals - it was some of the prerecorded packages that let them down.


What I think worked:

Astons/straplines for reporters, not just interviewees. Straplines which included the reporter's twitter account so that viewers can easily directly engage with them.

After thinking about it, I can't fault the decision to dedicate so much of the bulletin to the floods. In terms of pictures there was an excellent range of shots and all of them were extremely visually engaging. It was a pretty good excuse to crack out the helicopter to get shots of the flood damage and there were some excellent GVs of people trudging around in their wellies. Natural sound too was strong in this, with one reporter beginning their VT with water gushing from a pipe. It's also very relevant to their viewers and viewers would definitely be expecting updates about flood warnings and interested to hear from people who have suffered the worst of it. Editorially and visually, it was a good call.

The OOV belt was mostly good. The assault was sensitively handled and although it was just a compilation of shots of the park where the crime happened nothing more could really have been done. The Bank of England governor OOV was concise and I felt like I knew the story.

There was a back anno to the flood special which was great. We've done that a lot in our bulletin this semester and it always works very well.

The Eurovision 'and finally' had two interviews, but apart from that it was all either official or BBC footage of the event itself. I don't think there was any other way to effectively cover it, and the scripting was good at the top of the piece/in the link - it referred to the fact that some people think it's a bit of a joke, but that it's still a national institution rather than treating it super-seriously like I probably might do if I had to write a link for such a package on WINOL.


What I think didn't work:

There's a sweeping jib shot of the presenter when the bulletin returns from a commercial break which would have been nice if she wasn't side on. It's in profile and she's not looking any where near the camera, so it almost looks like there was a mistake in vision mixing. (It obviously wasn't, because someone had to make the conscious effort to move the jib but I wouldn't be thinking about that if I was a casual viewer.)

It's possibly a matter of house style here, so I won't be too scathing. But reporters being unnecessarily in shot  is something that seems to be widely scorned by our lecturers, and yet, more often than not, I could see the back of a admittedly very nice head of hair framed in to an interview. It wasn't a device used to patch a cut in the interview - they were just there. I suppose there's nothing intrinsically wrong with that and perhaps it's just a pet hate that has been laboured upon by the journalists teaching us, but it bothered me.

One of the OB reporter's packages was almost entirely composed of shots where the lens of the camera had steamed up. I bet he was gutted. It obviously had happened right at the start of the day and I'm sure the camera crew must have noticed it. It had the unfortunate effect of screwing with some of the lighting and colours of the footage but perhaps the executive decision was made to run it despite not being top quality because of the nature of the story - it's about floods and there's water on the lens, so hopefully the viewer will cut them some slack.

The reporter who covered the foster parent package used some really bizarre effects. There was a black bloom applied to shots she or her crew had taken of close ups of toys (presumably) inside the foster parents house. It just had the overall effect of being quite creepy to look at and gave the impression of a terrible nightmare. Those same shots were used more than once in the VT which I know from experience means she was stuck for pictures. Finally, there were two written statements in the package, both from the actual subjects of the story. If we did that at WINOL it would be argued that there is no story. One of the statements was from an interview the parents did with the Telegraph, so it wasn't even comment they gave to 5 News directly.


The last OOV on the belt was about anti-semitic chants in a West Ham match, but the pictures were just football matches taken from BBC Sport. Including identifiable pictures of people generally chanting would have been clear libel so I can see why they avoided that, but had I been news editor I wouldn't have ran it at all because I don't think it told the story.

-------------------------


Well, that was a fascinating foray in to criticising the work of people who are much cleverer than I am. I feel like a timid little first year being made to review WINOL all over again.

Until next time.

Law 2: Defamation and Libel

PUBLICATION + DEFAMATION + IDENTIFICATION = LIBEL

The odds really are stacked against journalists when it comes to libel and although times are changing with high profile campaigns pushing to get libel laws relaxed (and even for the law to only apply to individuals, and not companies like it currently does) the flakiness of the burden of proof shows just how careful you have to be when writing anything controversial.

http://www.indexoncensorship.org/ - A good international resource for journalists exploring censorship and freedom of speech.

Defamation checklist:

If what you have published about someone or a company could be described as tending to:

• LOWER them in the estimation of right thinking people; or
• Cause them to be SHUNNED or AVOIDED; or
• DISPARAGE them in business, trade or profession; or
• Expose them to RIDICULE and CONTEMPT...

  ... then you're going to have a bad time.

Always remember that the burden of proof lies on you, the publisher, to defend a defamatory publication in a libel lawsuit. The threshold for proof is another problem - it's lower here because libel is not dealt with in criminal courts (where something must be proven "beyond reasonable doubt") but in civil courts (where the standard is "on the balance of probability.")

Despite being dealt with through the civil courts, a libel case will still ultimately be tried in front of a jury in a high court. All the libel lawyer in this case has to do is convince the jury that the defamatory statement probably makes their client look bad; they don't have to put forward any tangible evidence that the defamatory work has indeed damaged their client's reputation.

In the other corner of the ring, you can only hit back with the following:

• JUSTIFICATION - truth. Specifically, the special kind of journalistic truth that can be backed up with evidence admissible in court. This is the standard every journalist should be working to anyway, and why we are always encouraged to hold on to our shorthand notes and rushes. But no one is infallible, and apparently nastier litigious types will purposely wait until close to the one year time limit to sue in the vain hope that the journalist will have lost or binned their notes and rushes. That time limit used to be much longer, but it's still a good idea to archive notes and rushes for as long as is practicable. 
• PRIVILEGE - absolute and qualified privilege. Absolute or Parliamentary privilege refers to the right of members of the House of Lords or Commons to speak freely. They can say anything they want without fear of being sued - in the past, MPs have used this privilege to break overblown super-injuctions like the one Ryan Giggs took out last year. Qualified privilege refers to those in a position of authority or trust, such as the courts or the police, who can also make statements without fear of libelling anyone. Journalists can repeat statements made by these authorities with near impunity, as long as the report is fast, accurate and fair.
• FAIR COMMENT - publication of an honestly held opinion based on privileged material and in the public interest.
• PUBLIC INTEREST - something which is a matter of concern to the public. If they are being misled by someone in a position of trust or authority or if it is a matter of public health, then there is very much a public interest defence available. E.g. publishing findings about fast food restaurant employees spitting in food is defamatory, but completely in the public interest if it is true.
• BANE AND ANTIDOTE - defamation removed by context. E.g. publication of defamatory photoshopped images, but then later on in the article making it clear that they are faked up.
• APOLOGIES AND CLARIFICATIONS - settled before it even gets to court. Promise to rectify mistake and issue a retraction or broadcast an apology on air in a timely way.

Picture libel - especially important for broadcast journalists

Or juxtaposition libel. Here are some examples of how it happens:

• During a report, cutting to a random GV with an identifiable person walking along the road as details about the story being voiced; this could reasonably be argued that the story is about the man on the street because there is a strong inference that because he is in vision, that he is the subject of whatever contentious details are being spoken of
• In a court report - if you're using a GV of the defendant and their family walking in to the court, it is very important to clearly identify which one is the defendant in the voice over, or you risk libelling everyone else in the shot because it will be unclear who is standing trial.

You've generally got to be really careful when using 'wallpaper shots' or GVs - simply pasting a random shot of a street to cover a jump cut is not only lazy, it's dangerous. In one of my own news reports, I showed an image of a certain website while I was talking about adverse health effects - the owners of the website could easily claim that it looked like I was saying that they were responsible for these health effects, and I had to change it.

While it's overwhelmingly unlikely that I would have been sued, it's just good practice to be vigilant about that kind of thing. Avoid innuendo at all costs, even innuendo you (paradoxically) didn't actually intend. It also highlights the importance of writing to your pictures, as opposed to bolting your script down and then awkwardly shoving your pictures over the top of it.

The Reynolds Defence

This defence stems from a landmark case where a judge ruled in our favour and set out the guidelines for a public interest defence against libel. Albert Reynolds, a former Irish Prime Minister, sued the Sunday Times over a story which he thought led people to believe that he had deliberately misled his government.

The Sunday Times lost a subsequent appeal, but during the appeal Lord Chief Justice Bingham said:

"As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty."

Lord Nicholas said that the court must consider the following things when looking at the Reynolds defence:

• The seriousness of the allegation. The more serious the charge, the more the public is misinformed/the individual harmed if the allegation is not true.
• The nature of the information, and the extent to which it is a matter of public concern.
• The source of the information. Some informants have no direct knowledge of events, may be acting in their own interest or are being paid for their stories.
• The steps taken to verify the information.
• The status of the information. The allegation may have already been the subject of an investigation which commands respect.
• The urgency of the matter. News is often a perishable commodity - i.e. the subject may just be fashionable at the time
• Whether comment was sought from the claimant. He may have information no-one else had access to.
• Whether the article contained some mention of the claimants side of the story.
• The tone of the article. It cannot adopt allegations as statements of fact.
• The circumstances of the publication, including the timing.

A defenseless position

So, when do you have no defence at all and what do you have to do to effectively end your professional working life as a journalist?

• Not checking facts. You should always double-check your sources, even or especially if it came from another news agency; just because they published it, it doesn't necessarily make it true and a childish 'They did it too!'-style excuse does not hold up in court (Spycatcher case)
• Not 'referring up' - if you're not sure about something, always consult your editor. They are paid to make the tough decisions and if they clear something then it is on them, not you. If you make a bad decision without consulting others then it is on your shoulders completely.
• Getting carried away by the story - trying to over-egg it and forgetting to put yourself in the shoes of the person you're writing about.
• Not consulting the shift lawyer.

Recognising risk

A few things to consider before each and every publication:

Who am I writing about, and could they sue?

If you're writing about someone who has no money and whose reputation is already in the dirt then it's probably going to be okay, but this isn't likely to make an interesting story anyway. Attacking celebrities and big companies are much more of a concern and you want to be absolutely sure that what you're saying is provable. Simply be aware of who the litigious people are and unless you have a really good reason to write about them, avoid them.

Is what I'm writing potentially defamatory?

Could it reasonably be construed as damaging to someone's reputation?

Do I have a defence?

You need to be able to pick one or more: justification, fair comment, privilege, public interest.


Learn it, kids. Libel cases can cost millions of pounds in settlements and legal fees; better safe than sorry.

Law 2: Election reporting

Election reporting for dummies

While reporting an election won't necessarily make your heart race, it's a topic which is very much in the public interest and therefore part of our public duty as journalists to provide that service. The press is the so-called 'eyes and ears of the public', and it is usually only with our fast, accurate, fair and, above all, impartial coverage that the public can get an idea of who they want to vote for.

Impartiality

Impartiality is more important than ever during election time. The BBC have their own stringent Editorial Guidelines; every other broadcaster is subject to Ofcom. More than that, each party will be meticulously poring through every bit of political media coverage at the time, and if they think they've been shafted out of some airtime then you can rest assured that you'll be the first to know about it. So, there are both internal and external measures in place to make sure you get it right, and to quickly come down on you if you get it wrong.


It is important to note that newspapers can be as partisan as they like. The argument here is that it takes much more of an active effort on the part of the consumer to actually pick up and read a newspaper - broadcasting is by nature intrusive, and so that's why these rules only apply to broadcast media.

Back to broadcasting - if you're covering a story that includes a candidate  soundbite from one major political party, then you've got to chase interviews up from the others; it's illegal around election time just to hear one political voice.

This can make it editorially difficult to run certain stories. You don't want to cram your story full of pompous self-servicing soundbites, but to stay within the guidelines and to not get harassed by shadowy PR people then you must. It's all or nothing.

The general rule is that you have to speak to all major party candidates, and possibly even a minor one if there is a real chance that their party could influence the outcome of the election.

In the UK, you typically have to grab quotes from the following:

Labour
Liberal Democrats
Conservatives
UKIP (depending on area - an example of when to include a party which might influence the outcome of the election.)

You don't have to speak to every minor fringe party if you don't want to - a particularly mental one might add some colour to the package, but it's your editor's choice to include that. If you did, you would also have to be careful to ensure you didn't give the fringe candidate a similar amount of airtime as you gave to a major party because then the impartiality of the piece would be rightly questioned.



Defamation

Delicious slander is hard to contain during any sort of political race. Door to door, campaigners and candidates will say some pretty hideous things about the opposition but that's accepted as par for the course and usually hard to prove in a court of law. Defamation is very different.

Phil Woolas is an ex Labour government minister who had held the Oldam East and Saddleworth seat in the 2010 general election. He subsequently lost that seat and was banned from standing for Parliament for three years after publishing two false statements about Lib Dem candidate in his election material. It said that Robert Watkins was 'wooing the extremist Muslim vote' and refused to condemn their use of violence.

He was charged with breaching the Representation of the People Act 1983, which slaps you with a £5,000 fine in addition to other punitive measures.

Representation of the People Act 1983

Section 106(1) - makes it a criminal offence to make or publish a false statement of fact about the personal character or conduct of an election candidate, if the purpose of publishing the false statement is to affect how many votes he/she will get.

Section 106(5) makes it an offence to publish a false claim that a candidate has withdrawn from the election, if the publisher knows it to be false and published it to promote or procure the election of another candidate.

According to McNae's, the law 'aims to deter dirty tricks by election candidates and their supporters', and isn't specifically aimed at the media - though, like with libel, the act of  publishing of defamatory material leaves you culpable.

False statements don't have to be defamatory - a journalist was fined £250 in 1997 after alleging that an election candidate was gay. The statement was judged to be damaging not because everyone involved was 7 years old and in a school playground, but because such an allegation could cost a candidate votes if those with religious beliefs decided not to support the candidate based on the allegation.


Exit polls

An exit poll is a survey taken straight after people have voted in which they are asked how they voted. In some countries, reporting on opinion polls in addition to exit polls is shut down at least a week leading up to an election. Things aren't as strict here in the UK, but the results of exit polls absolutely must not be reported until polls have officially shut.

This is because the results of the exit poll might have a chance of skewing the results of the real one - if people hear that a certain party are being slaughtered then they might vote another way or not vote at all.

Representation of the People Act 1983

Section 66A makes it a criminal offence:

• to publish, before a poll is closed, any statement about how people have voted in that election, where this statement is, or might reasonably be taken to be, based on information they gave after voting;
• to publish, before a poll is closed, any forecast - including any estimate - of the election result if the forecast is based on exit poll information for voters, or which might reasonably to be taken to be based on it.
  

 
So what can we report on close to an election?

• Voter turnout
• Polls of how people intended to vote before the election began
• Mechanics of voting
• Voting fraud
• Election counts - media can attend these, but have no statutory right to be there, because it is all at the discretion of the Returning Officer at the polling station.

After polls have closed, all of these restrictions disappear, and it becomes open season on speculation and reporting of exit polls in full.

You still can't defame anyone, though. How disappointing.

The New Journalism

Historical Context of New Journalism

The standard of 'objectivity' in journalism as we know it only ever achieved its popular commercial status because news wires depended on the legitimacy of their stories in order to sell them on to newspapers. The Associated Press would go out and gather information and found that the only way to make it profitable was to present it quite blandly, which gave individual news organisation a blank slate to put their own spin on it. To put any slant on it themselves would make it really hard to sell to a wholesale market.

The 'first' new journalism was the Yellow Press - so named because of the bidding war between two papers for a popular cartoon called 'The Yellow Boy'. The Yellow Press was the name given to the sensationalist tabloid style newspapers owned by Hearst and Pulitzer in the late 19^th century. They were often emblazoned with huge, emotive headlines with big striking pictures, which doesn't sound all that different to what you'd see at a newsagents today. 

The agenda was driven by exclusives, sob stories, dramatic stories, romance, shock and crime. Many people called this first wave of New Journalism the 'New Journalism without a soul' because all the stories were about sin, sex and violence.

The era in which Wolfe and Truman Capote did some of their best work was during a time of incredible change. America in the 60s and 70s was similar in this way to the day of Hearst and Pulitzer – there was a great deal of political and social upheaval, and fighting in foreign lands with ever more serious military threats. It was an extremely fearful and paranoid time; young people had the military draft for the Vietnam War constantly hanging over them and everybody else lived in fear of nuclear annihilation from the Red Threat.

The assassination of John F. Kennedy in 1963 was a massive blow to the collective consciousness of America and any hopes they had had riding on him. Kennedy was handsome, young and intelligent. He was essentially the President Obama of the day – someone symbolic of the hope for change. The war in Vietnam was a disaster and nobody really seemed to know why they were there. Muhammed Ali refused the conscript, and was quoted as saying: “I ain't got no quarrel with them Viet Cong.”

Among all this darkness, people everywhere were understandably feeling rebellious. Protests were happening worldwide for civil rights, both for women and different ethnicities. The advent of the contraceptive pill, coupled with the publishing Reich's work which completely refuted Freud and said that sexual desires must be expressed freely without recrimination, led to the sexual revolution that carried on throughout the decades. There was a general anti-establishment feeling and this very much began to seep in to journalism, breaking the bland narrative style of non-tabloid newspapers of the day.

Most journalists at the time tended to report in a very formulaic way, but the New Journalism was an attempt to record things in a way that mirrored the language and the style of the events. It allowed the feeling of a place and time to bleed in to the copy, rather than keeping it at arm's length and doggedly attempting to stay whatever their interpretation of 'objective' was, in the face of telling a story.

It was then that journalists started to question whether relying on press releases, official statements from the establishment and bought-in stories could ever really be called objective, or a true reflection of the events. They began to experiment with interpretive reporting, focusing on setting, plot, sounds, feelings, direct quotes and images, while still making sure that the facts were straight.

This sort of journalism was much more personal, and expressed an individual's point of view as opposed to that of a faceless, seemingly all-knowing mass. It was due to this highly personal nature that it irritated a lot of people and was regarded as quite controversial.

New Journalism: Show and Tell, Gonzo Journalism

Think of a very old newspaper article or a BBC News Bulletin around the time when radio was cutting edge technology, and you'll think of a posh old man dryly reading out events in an 'impartial' tone. Tom Wolfe, a journalist who influences the way in which we tell a story even to this day, highlighted this and said that it was just plain wrong. Tom Wolfe literally write the book on 'The New Journalism.'

Tom Wolfe speaking at the White House

Tom reckoned that since we're only human, we're not infallible; but to adopt this boring, beige narrator voice is almost to claim that we're somehow omniscient in our coverage of a certain event. He asked why a situation shouldn't influence the reporter – if the reporter is reporting on something exciting, then why should it be a crime to affect an excited tone?

He was a great fan of Emile Zola, the famous French photojournalist, saying that Zola had “crowned himself as the first scientific novelist, a “naturalist” to use his term, studying the human fauna.”

It is this obsession with people and interesting details that made Tom Wolfe himself such an engaging writer. He would set the scene with small details that would help a reader to get a feel for what the reporter was seeing and feeling – details like the colour of the curtains, the smell in the air, what shoes somebody might be wearing.

He outlines how journalists and indeed all writers can improve their writing through these four points:

Scene by scene construction.

Never rely on second-hand information and sources. Writing is much easier if you go out and actually experience an event first hand to then relay back to the reader.

Dialogue.
Dialogue is important, therefore it should be recorded and subsequently reported as fully as possible. It sounds more real, engages the reader more, and gives the speaker character.

The third person.
Treat the people involved in an article as if they are protagonists in a novel. Ask them how they are feeling, why they are here and what they are thinking so that you can report without speculation what their motivation is and what they are thinking, but without it being 'in their voice.' It gives the reader a feeling of the people and the events involved and is much easier to digest than vanilla facts.

Status details.
The “social autopsy” - comment on what people have chosen to surround themselves with, how they treat their peers, their children, their subordinates; the colour of the curtains and what kind of shoes they are wearing as mentioned before. Allows to reader to get even more of a feel of the person's character.

So: whenever you read a newspaper article where the author spends a paragraph introducing the scene rather than launching straight in to the classic inverted pyramid of who, what and when, they have taken a leaf out of Tom's book. One article I read recently was describing the poor conditions of a council flat in Southampton. Although the journalist did include pictures of the damage and decay, the words he used gave the reader an even more succinct feeling of the bleak situation the protagonists (those unfortunate enough to live in that flat) found themselves in.

The 'new' journalist will, apparently, sacrifice objectivity in the face of subjective experience. Performance journalism is entertaining to watch; it's in the name. It includes people like Michael Moore and Morgan Spurlock, the bloke who did 'Supersize Me'. The enjoyment of their programmes doesn't really stem from any controversial facts that they might uncover, but just from watching them going out and physically doing stuff, whether its Moore shouting at a building or Spurlock chundering Big Mac slurry all over the side of his car.

'Gonzo' journalism is a highly prized sort of performance journalism. Those attempting it have no pretence of objectivity: Gonzo favours personality and 'grit' over a polished end product. It has a fly-on-the-wall, authentic sort of quality to it.

Hunter S. Thompson penned the famous novel Fear and Loathing in Las Vegas, which was also adapted in to a film. Thompson believed that journalists shouldn't separate themselves from the action, but actively participate in it. He wrote a book about the Hell's Angels after living and riding with them for over a year, a true Gonzo journalist in every sense of the word. He did copious amounts of drugs and wrote about drug use extensively in Fear and Loathing in Las Vegas.

Louis Theroux is a good example of an incredibly good modern gonzo journalist. If he decides to do something about Neo-Nazis, he will literally rock up to a Neo-Nazi camp and spend some time with them. People find other people fascinating, even if those people in question are hateable, and following them around with a camera gives a viewer an insight in to these people's minds that they won't be able to get anywhere else.

New journalism is, in essence, all about people. While doing a load of drugs and driving down the road at 90 miles per hour isn't really my cup of tea, I'm definitely a believer of at least one of the core tenets of New Journalism. That if you want to write about something convincingly, go out and experience it for yourself. How can anyone argue with that?

Logical Positivism and Wittgenstein

"Of that which we cannot speak, we must remain silent." - Ludwig Wittgenstein, final chapter of his Tractatus Logico-Philosophicus

Wittgenstein is known as an Austrian philosopher, but he was first and foremost an engineer. He wasn't classically trained as a philosopher and because of this and his engineer background, he brought a fresh outlook on philosophy and logic; he was not not bound up in the same ideas which had been taught for the last thousand or so years.

Wittgenstein was a contemporary of Russell, Einstein and Freud. The philosophy espoused in the Tractatus was the foundation of the Vienna circle's beliefs - a collection of eminent minds who would meet regularly at the beginning of the 20th century and discuss their attitudes to philosophy, science and mathematics. They were all logical positivists, were great proponents of scientific method and analysis, and rejected metaphysics and the idea of perfect Platonic forms. Incidentally, this gave them some quite robotic ideas about 'beauty' and what made something beautiful; beauty to them was something that is perfectly designed to complete a certain function. If you were to look at that in terms of architecture- out go fancy houses, in come tower blocks.

It was Wittgenstein's training as an engineer could have influenced him to look upon human beings and elements of language as cogs in a machine. He initially thought (before coming pervasively pessimistic of his own life's work) that language could be taken apart and studied in this manner, rather than looking at language as an organic whole. One of his claims was that words in themselves have no intrinsic or therefore metaphysical worth but are merely parts of a 'language game' that all participants agree to play. He likens language to a game because the meaning behind an arbitrary collection of sounds or marks on paper must be agreed upon before they have any worth. A language game can be found at any level - where anyone meets and begins to speak about specific things, they are playing a language game. There is the language game of a certain religion (words like 'rapture' take on a very definite and emotive meaning where to a layperson it might not); the language games contained within actual games (vocabulary within card games, for example, like hit, stick, twist, flop that must be learned to effectively play the game); and so on.

Entire languages themselves are language games at a macro level as stated before - everyone who speaks English is implicitly agreeing to the rules of English; the grammar, the vocabulary, the idioms, etc.

Idioms (such as "It's raining cats and dogs") are another example of a language game - it is a meaningless and nonsensical expression which is given meaning simply by consensus.

Wittgenstein also held a belief that language 'infects' you, and influences you and everyone around you in ways that you don't even realise. Previously it was thought that language is just a transparent medium, a means to an end of purely expressing whatever was in your head. He also believed that reality was bonded by language: that you can't have a idea of something without some means of describing that idea, and that means is language.

George Orwell was clearly greatly influenced and inspired by the above when writing his novel Nineteen Eighty-Four - throughout the book, a dictatorship only known as the Party is constantly screwing around with language, working to transform Standard English in to the pared down 'Newspeak'. A government branch is even dedicated to the destruction of words, where in the aim is for every new edition of the dictionary to be thinner than the last; the idea is if you destroy dangerous or 'rebellious' words, then you destroy the ability to even conceive of rebellious thoughts, or 'thoughtcrime' as it is called in the book. This ties in exactly with what Wittgenstein was saying - if reality and language are inexorable, then you can mould the shape of reality by changing or restricting language.

Another key point in the book is where the Party issues a correction that only the main character Winston seems to notice - all of a sudden a speaker changes mid-sentence from saying 'Oceania is at war with Eurasia' to 'Oceania is at war with East Asia' and it goes on to say that it has always been at war with East Asia; so overwhelming is the propaganda and the complicit response of everyone around him at the rally that Winston begins to doubt his own sanity.

Verification Principle - Freddy Ayer

Freddy Ayer was a logical positivist. He was deeply inspired by the Vienna circle and their wholesale rejection of anything that was not, to put it simply, 'scientific.' He thought that anything that could not be verified in some way or another was meaningless; in his book Language, Truth and Logic he says religious discourse is meaningless as all religious language is non-verifiable quacking of the duck (see below.) To this end, even though he himself was not a religious man, he rejected the staunch atheist claim of 'There is no God' with the same vigour as a fanatical 'There is a God and he loves me' - both cannot possibly be verified, so both are nonsense.

The Verification Principle sorts statements out in to the following:

• Statements that can be verified as provably true (i.e. non-contradictory) e.g. The sky is blue
• Statements that can be verified as definitely false (contradictory) e.g. The sky is green
• Statements that cannot be verified (non-verifiable - gibberish, quacking of a duck) e.g. Tea is nice.

This last one is effectively nonsense, it's just people emoting. And incidentally that's what a journalist should be looking for in a good, solid quote. You don't want someone to write in to your show or newspaper and dispute the truth of a quote - 'Nope, that's not true, I can prove it with logic' - you just need a person's opinion for linguistic 'colour', as Frege might put it.

Ayer also said: "The method of verification IS the truth of a statement." This means that a statement is only as truthful as the means of testing it are reliable. Scientific method has been axiomically established as reliable, so therefore by studying the behaviour of light the sky can be shown to be verifiable blue, and the statement "The sky is blue" has meaning.

The Tractatus

Technically one of the 'shortest' books ever written, consisting of seven one-sentence chapters. Of course, (and we all saw this coming from a mile away when we were assigned to read this for a seminar) the book comes complete with a few thousand miles of footnotes to accompany the complex ideas expressed in each chapter. This has the overall effect of visually breaking each idea down to increasingly less complex bits of information in a sort of logic tree form - 'atoms of thought.'

Here, sans footnotes, is the Tractatus:

1. The world is everything that is the case.

2. What is the case, the fact, is the existence of atomic facts.

3. The logical picture of the facts is the thought.

4. The thought is the significant proposition.

5. Propositions are truth-functions of elementary propositions. (An elementary proposition is a truth-function of itself.)

6. The general form of truth-function is: [, , N()]. This is the general form of proposition.

7. Whereof one cannot speak, thereof one must be silent.

Atomic facts are those which cannot be broken down any further - atoms of thought, as mentioned above. These atoms are all chained together and each object illuminates another - the totality of all of these facts gives you reality, which is the idea expressed in 1. By studying a facts relation to other facts, you can determine which objects are actually true or not true. The existence of an atomic fact is a 'positive fact', and the non-existence is a 'negative fact.'

So essentially Wittgenstein is saying that the universe is made up of things which are true, and things which are not true. The 'negative facts' fill in logical gaps created by propositions such as 'There is nobody on the road.'

He also staunchly believes that you cannot conceive of an object without first relating its existence to other things.