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.