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.

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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.