Media law

Notes to accompany the Exeter Observer community journalism training course.

Defamation

A (superficial) introduction to media law, focussed on defamation, ignoring crime/court/tribunal reporting and restrictions (beware contempt of court).

Based on McNae’s Essential Law for Journalists, Mike Dodd & Mark Hanna, Oxford University Press (24th edition, 2018).

See also Law for Journalists, Frances Quinn, Pearson (5th edition, 2015) and The Online Journalism Handbook, Paul Bradshaw, Routledge (2nd edition, 2017), Chapter 8 - Introduction to online media law, pp. 186-217.

  1. Defamation is major legal risk for journalists/photographers:

    • complex - get professional advice if publication seems likely to bring action (also may be difficult to fight in court)
    • beware - statements taken to possess a single meaning, not necessarily the one intended
    • context - statements considered in context, so defamation can occur via juxtaposition, or via inference inc. innuendo
  2. Law protects person/company/organisation’s reputation from unjustified attack (written = libel inc. internet, spoken = slander) which:

    • exposes to hatred, ridicule or contempt or causes to be shunned or avoided
    • lowers in estimation of “right-thinking members of society generally”
    • disparages in business, trade, office or profession
    • NB company must show (likely) serious financial loss
  3. Changes in law since 2000 have somewhat addressed historic imbalance in favour of claimants, esp. 2013 Defamation Act. Main defences:

    • truth (replaced common law justification defence in 2013) - applies to statements of fact which can be proved in court to be substantially true “on the balance of probabilities” (lower bar than “beyond reasonable doubt”) -> keep audio recordings and comprehensive notes!
    • honest opinion (replaced common law honest/fair comment defence in 2013) - applies to expressions of opinion which must be recognisable as such (and not factual allegation), must be based on a provably true fact or privileged material (see below) and must im/explicitly indicate (at least generally) the fact or information on which it is based - so must satisfy test that the opinion on an established fact represents a view an honest person could hold -> protects reviewers and humour/satire/irony (sometimes)
    • absolute privilege - covers MPs speaking in House of Commons, Hansard, parliamentary white papers but not reports of such (also some court and tribunal reporting with requirement that report is fair and accurate and contemporaneous)
    • qualified privilege - covers reporting public documents and meetings inc. (local) authority meetings (report must be fair and accurate, published without malice, published in the public interest and subject to a statement of explanation or contradiction on request) cf. ICNN guidance, Defamation Act 1996 schedule 1
    • accord and satisfaction - applies when correction and/or apology already published which claimant accepted as settlement at time
    • offer of amends - applies when written offer to publish suitable correction and apology, and to pay suitable damages and costs, is rejected and not withdrawn, unless claimant can show defendant “knew or had reason to believe” that published statement was false and that it was also defamatory
    • leave and license - applies when claimant previously agreed to publication of defamatory material (proof of consent required)
    • innocent dissemination - applies when anyone not author, editor or publisher of statement took reasonable care in relation to its publication and did not know and had no reason to believe that part played in publication caused or contributed to defamation (used only to apply to newsagents and booksellers, now covers live broadcasts, online hosting and website operators who allow user postings provided they follow certain procedures inc. being able to identify user, provided no moderation - if user not identifiable, then material must be taken down -> suggestion to avoid complexity is to choose not to pre-moderate and take anything down immediately on receipt of complaint - under Regulation 19)
    • limitation - applies when action not started within 12 month period after publication -> date notes and recordings!
    • death
    • public interest defence (replaced common law Reynolds defence in 2013):

      • protects publication of defamatory material even where not proved true when reasonable belief that publication was in public interest and matter is of public interest, with regard to all circumstances of case, where product of “responsible journalism”
      • Leveson suggestion that audit trail of development of story, investigation, issues considered and factors discussed should be required to justify belief in public interest in publication and public interest in story not yet established in case law cf. Warby 2016
      • Act explains public interest as “concept which is well-established in the English common law”
      • degree of public interest required may vary according to publication and market (inc. spatial context)
      • responsible journalism test at heart of defence cf. Lord Nicholls non-exhaustive list of factors to be considered re. Reynolds esp. inc. right to reply
      • also includes “neutral reportage” protection to cover disputes involving allegations or matters of controversy
      • should only be used with legal support

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