5 Ethics, law and free speech
If news instinct as born were turned loose in any newspaper office without the control of sound judgement bred by experience and training, the results would be much more pleasing to the lawyers than the editor
Joseph Pulitzer
North American Review, 1904
In an ideal world journalists would work out of motivation and idealism for the truth, and journalism ethics would be about aspirations and goals rather than minimum standards. Such green-light ethics are seen by some as encouraging journalists to view the decision-making process as a moral obligation to create an informed readership with honest, ethical news and information. The difficulty is that ethical journalists first need to be moral journalists; and to be moral journalists they must first believe in some kind of overriding morality of conduct and belief. And yet providing journalists with this ethical morality also means that their selection of news angles could be biased in a certain moral direction, which is precisely not what ethical journalism is about. Unless there is this underpinning of personal journalistic morality, there needs to be a written code of conduct that underpins the development of the journalist’s moral decision-making process. These lists of commandments are useful when there are no other personal frames of reference for journalists forced to make instantaneous decisions about complex moral or professional problems, not least of which is when this morality is overridden by the ultimate need to expose the truth. Codes of conduct exist in journalist associations and trade unions throughout the world, as they do in most professional organizations. However, as the journalistic workforce increases in intellectual ability and moves on from the apprentice training approach to something much more intellectual, the aim should be to move as far as possible, and as quickly as possible, from the simplistic ‘Thou shalt not’ approach to reliance on moral reasoning and decision making and professional processes learnt during a proper journalism education. Such a development would draw on the idealism of many young journalists, most of whom are dedicated to serving society and its various truths. Ethics should not be a series of minimum standard actions; journalists of the digital age must see further than the principle that if it is not banned it must be acceptable. Journalism professional ethics should make all aware of the need for aspirations and principles rather than rules. By emphasizing the importance of personal integrity and collective concern for serving the public’s right to know, the result will be a cohort of journalists who will actively seek the best possible journalism. A clear and unequivocal emphasis on duty, responsibility and the vital role played by the media in a democratic society should make it abundantly clear to all journalists what sort of behaviour is expected of them. Such an approach will overcome the big dilemma of when ethics makes a journalist self-censor. Self-censorship operates at various levels, and confronts journalists many times in their working lives. Motivations differ for what is sometimes also called self-discipline. Sometimes there are private issues that journalists – editors, columnists and reporters alike – must face when deciding whether or not to exercise a pragmatic self-control of events. Will work that is perceived to be unfavourable to or critical of the government, management or advertisers have severe personal repercussions? What might the degree of these repercussions be? There is greater pressure to conform: the possible loss of job, harassment by the government, or threats of prosecution for subversion or theft of so-called state secrets. In some countries these problems are already acute, with journalists aware of considerable government influence over the media, at times by subtle persuasion and coercion, at others by blunt threats and harassment.
There are other pressures on journalists: from family, peers and from the hierarchy of authority within their own organizations. The climate of self-censorship is often set not by governments but by senior editors, publishers and proprietors. Their position on these matters becomes the tacitly accepted benchmark by which to judge what stories will be covered, and how they are covered. In turn this leads to another problem: the posture that media owners and senior editors themselves take towards political and commercial pressures. Journalists and editors can often find themselves being wooed by authority and business by being offered favours and benefits, with some editors and reporters favoured by politicians because of their self-restraint. The importance of journalism ethics is to highlight the fact that good journalism is journalism which, in the appropriate circumstances, asks the hard questions and refuses to be diverted by attempts at media and political manipulation.
Basic ethical principles transcend media forms and issues. The end result is that every journalist will be able to make a responsible decision alone. The primary objective of every professional journalist is finding and reporting the truth. This demands more of journalists than simply not telling lies. Journalism ethics should always demand honesty, fairness and courage in gathering, reporting, and interpreting accurate information. As a report by the American Society of Professional Journalists points out, journalists should
conscientiously gather as much information as possible so they in turn can inform, engage, and educate the public in clear and compelling ways on significant issues. This goal includes giving voice to the voiceless and holding the powerful accountable.
Acting independently, the second goal of the ethical professional journalist, requires that all journalists try to ‘vigorously guard the essential stewardship role that a free press plays in an open society’, seeking as many opposing views as possible and placing the public interest above pressure from those in power or position. It also requires journalists to remain free of associations and activities that might compromise journalistic integrity or damage credibility.
Cynics say that ethics and journalism can’t exist together. Of course some journalists don’t always meet the expected standards of their profession; but that doesn’t mean there can’t be attempts to give the professional journalist an ethical way of working, which at the same time allows for maximum freedom of expression. The problem with journalism and ethics is that the ethical consideration can often be used as a self-censoring device. The basic beliefs of the professional journalist are not whether it is right to publish such-and-such a piece of information or picture. The basic philosophy should be concerned with truth, freedom of expression, objectivity, honesty of reporting, belief in fairness and the rule of privacy. Even democracy is an ethical, moral term, since it is concerned with the right or the best form of social and political organization. Ethics is inseparable from journalism, as long as journalists understand the meaning of ethics and morality in reporting practices. The problem with ethics as a governor of the profession is that it can be used for control. All governments try to censor and control journalism. Owners use journalism as a means of satisfying their own lust for power and wealth. Even consumers often try to censor the watchdogs of democracy and freedom by their complaints or pressures. The discussions about journalism ethics are centred on serious matters: inaccuracy, lies, distortions, bias, propaganda, favouritism, sensationalism, lapses of taste, vulgarity, sleaze, sexism, racism, homophobia, personal unjustified attacks, deception, betrayal of confidences and invasions of privacy. These are all matters of reprehensible unethical and unacceptable conduct. They all detract from the primary purpose of news gathering and news reporting: the truth.
It must always be remembered that freedom is about choice, and choice is about making a ‘right’ or a ‘wrong’ decision. In other words, the freedom of the press is precisely about the freedom to make a mistake. The best way to show the importance of ethics in the profession is to adhere to a set of guidelines or code of conduct. The difficulty is that the greatest good is always freedom of expression. Take honesty, for example. Everyone believes in honesty, of course, and everyone agrees that every journalist should be honest in investigating and reporting. But suppose some public corruption can be investigated only under cover, with the journalist pretending to be someone ready to make a corrupt deal? Or take privacy. A journalist might have the highest regard for the right to privacy, but claim that some information about a politician doesn’t qualify for this protection. The question then arises: does the end (in this case the greater public good) justify the means? A code of conduct, with regulations and guidelines by the journalists themselves, is probably the solution. Many countries now have codes for journalists, formulated by the journalists themselves rather than by the countries (which would be the worst solution). Under repressive regimes, a code may be a way of giving moral support to journalists who have been victimized, and of encouraging solidarity within the profession. Under more liberal regimes, codes of conduct place greater emphasis on protecting members of the public rather than the journalists themselves.
Proprietors invariably seem to safeguard their position through the appointment of an editor who shares or accepts their opinions on general policy. The same applies in the relationships between newspapers and the state. The task of a good editor is to allow journalists to write without any conflict with their own principles or knowledge of the facts. This is editorial independence, and it sometimes means independence of complaint. There is never a good reason for not reporting a story simply because of reader or viewer complaint. However, as the battle for circulation increases and money gets tighter, pressures on editors increase to erode journalistic standards on matters of truth, accuracy and ethical acceptability. Commercial decisions on marketing, the publisher’s responsibility, easily overlap with editorial requirements.
The ethics of the modern journalist can be summed up in one word: truth. Having said that, there are a number of important ethical considerations and ways of acting that should guide all journalists everywhere. Below are 10 rules of thumb that could apply to journalists everywhere. Journalists should:
1 Be honest, accurate, fair and disclose all essential facts. Never suppress facts or distort them. Always keep editorial control of stories and don’t show them to interviewees before publication.
2 Be fair and honest in gathering information. Don’t misrepresent and don’t use concealed equipment or surveillance devices.
3 Be true and accurate with pictures and sound. Don’t manipulate digitally or re-enact without saying so.
4 Always attribute fairly and accurately. Never make up quotes; only quote directly what is actually said. Otherwise paraphrase. Don’t let interviewees change quotes afterwards.
5 Disclose any payment made for interviews, pictures or information.
6 Never allow personal beliefs or commitments to change the story.
7 Not use their position for personal gain.
8 Not abuse anyone’s right of privacy. Relatives or friends of those in the public eye have a right of individual privacy.
9 Be sensitive and discreet at times of grief and trauma.
10 Always disclose they are a journalist and for whom they work, unless there is an overriding reason for the public good.
Professional journalist associations throughout the world have their own individual codes of conduct, as do publishing organizations and journalist unions. Check them on the Internet.
FREEDOM OF INFORMATION
In countries such as the USA, Sweden, Canada, Norway, Greece, Holland, Australia, New Zealand, Ireland and France, there is freedom of information legislation. In these countries there is a presumption that the public has a ‘right to know’, and government files are open for inspection (subject to a few clearly prescribed exceptions such as national security etc.). Freedom of information legislation has yet to be enacted in the United Kingdom, and probably won’t be fully in force until about 2004. However, a first step was taken when the British government published a draft freedom of information bill in May 1999. The new bill won’t come into force for several years, but will replace an existing code on access to government information that came into force in 1994. The new Freedom of Information Act will allow journalists a right of access to records held by public bodies and some private bodies carrying out public functions or contracts. The rights will be enforced by an information commissioner with the power to order disclosures. However, authorities wanting to withhold information when requested will only have to show that release would prejudice various interests, allowing Britain still to be a country where much information can be concealed. The new legal right to know as it presently stands will have 21 separate exemptions where the public will not be allowed to get information that could prejudice government unless the departments decide to release it under discretionary powers. The 21 exemptions include a series of catch-all areas covering the security services and information that could be prejudicial to national security or the economy. The police are covered by the bill, but any information that might prejudice prevention or detection of crime or the administration of justice is exempt. They will also have up to 40 days to provide information. This makes it the slowest information act anywhere in the world.
Even more worrying for journalists are the exemptions with no test of prejudice or harm at all. The police and law enforcement bodies will be allowed to withhold any information obtained during an investigation, even if there is no risk to an investigation or prosecution. Information obtained by safety agencies investigating accidents will be dealt with in the same manner, and journalists will not be able to access information about the cause of accidents. The same applies to information about government policy formulation, which will be secret. The Act differs markedly from those in some other countries, such as Australia, for example, which allows internal discussions to be disclosed if it is in the public interest. Information can be concealed if, in the reasonable opinion of a minister or other person, it would ‘prejudice the effective conduct of public affairs’.
The new plans will also double the time public authorities have to reply to people seeking information under the present code – from the present 20 working days to 40 working days. The American Freedom of Information Act (FOIA), for example, has a time limit for disclosure of 20 days maximum. There are other differences between the British proposal and the American Act. In the US, it is used as a major tool for investigating government. It is a federal act, which requires federal agencies to provide certain information. State and local governments have adopted similar laws. The FOIA requires that a letter be written to the agency (which can be done by accessing the website) from the person wanting access. Disclosure laws are not discriminatory, so it doesn’t matter who asks for the information. Indeed, British journalists regularly make use of the American Freedom of Information Act to find out information relevant to Britain and the British government. Whether the information is released is determined by its content and whether the law requires its release. A public agency has a certain amount of time to respond to a request (as in Britain). The Federal Act allows 10 days, during which time the agency must determine whether it will release the information. If it decides the request needs an interpretation of law, the agency can extend the deadline by another 10 days. Requests can be turned down, particularly if they are for:
• classified information that must be kept secret because of national defence or foreign policy
• information required of a corporation in an application for a public contract, but which involves trade secrets
• information that is considered to invade privacy of an individual (such as medical records, for example)
• information that would reveal details of an ongoing investigation, such as the names of suspects before an investigation is complete.
FREEDOM OF EXPRESSION AND THE LAW
Freedom of expression is a fundamental human right. It is guaranteed in many constitutions around the world, and it is safeguarded by journalists. For example, the US Constitution prohibits US Congress from making any law that would infringe freedom of speech or of the press.
The European Convention on Human Rights provides that:
1 Everyone has the right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers
2 The exercise of these freedoms, since it carries duties and responsibilities, may be subject to such conditions, restrictions and 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 and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or of maintaining the authority and impartiality of the judiciary.
Although freedom of expression is fundamental, the freedom of journalists to report is not as universal as it could or should be. Throughout the world the struggle continues to maintain a free press in print, radio and broadcasting. With freedom comes responsibility. Journalists must not abuse either, but must always uphold the freedom of the press and the law. However, freedom of the press and ability to report is not as wide as first thought. Press reporting is always constrained by the relevant laws of the land. In other words, journalists have freedom to report, but only up to a point! Their terms are the ethical considerations already discussed. In addition, there are fundamental legal constraints. These are basically defamation and contempt of court.
These are universal restraints, but each country has individual interpretations of them all; some more stringent than others. Journalists in each country have their own specific requirements, and these will be contained in relevant media law books. It is essential therefore for any journalist working in a country not their own to be aware of these individual laws and ethical constraints.
DEFAMATION
The law is there to protect the reputation of the individual (both moral and professional reputation) from unjustified attack. The law of defamation tries to strike a balance between the individual’s right to have his or her reputation protected, and freedom of speech, which implies the freedom to expose wrongdoing and thus to damage reputations. Defamation applies to statements that affect a person’s reputation and those that affect a person’s business or calling.
The details may differ from country to country, but in general any statement that disparages a person in business, trade, office or profession is defamatory. For example, it is defamatory to write incorrectly that a particular solicitor has been suspended by the Law Society, that a particular doctor is a quack or that a particular bricklayer doesn’t know how to lay bricks properly. It is not defamatory to report incorrectly that a doctor has ceased to practise or a tradesman has ceased to carry on business, even though such reports may result in substantial loss of earnings. There is no misconduct implied. That’s the important consideration. The law provides certain defences for the person who makes a defamatory statement about another for an acceptable reason. If a statement seems likely to bring a threat of libel, take professional advice first. However, always remember: it is only advice. The journalist and editor may still decide to go ahead and publish, particularly if the disclosure is in the public interest. Lord Justice Lawton put it this way:
It is one of the professional tasks of newspapers to unmask the fraudulent and the scandalous. It is in the public interest to do it. It is a job which newspapers have done time and time again in their long history.
In the USA, there are four rules of thumb often used to help jurors decide in libel cases if someone’s reputation has been damaged through hatred, ridicule or contempt:
1 Accusing a person of a crime
2 Damaging a person in their public office, profession or occupation
3 Accusing a person of serious immorality (such as a woman of being unchaste); there are still many states in the USA which allow a claim for libel in such a case
4 Accusing someone of having a loathsome disease.
Types of defamation
A statement will usually be held to be defamatory if, because of it, a person is:
• exposed to hatred, ridicule or contempt
• shunned or avoided
• lowered in the estimation of right-thinking members of society generally
• disparaged in his or her office, profession or trade.
To succeed, an action for defamation must prove that a statement:
• is defamatory
• has been reasonably understood to refer to a person
• has been published to a third person.
The standard in most countries is that of the ‘reasonable person’. The test is whether, if the statement were published, reasonable people would be likely to understand it in a defamatory sense. There is, however, a very important part to the test to do with understanding. A statement may be defamatory not in the obvious use of the words, but by a more hidden meaning. Such a hidden meaning can be in the text, or in the way the text relates to some other story or picture not connected with the libellous statement. A statement about someone may seem all right on the surface, but be defamatory to those with special knowledge. Such a hidden meaning is referred to as innuendo. Three examples of innuendo follow:
1 Cassidy v. Daily Mirror.
In 1929, the London Mirror published a photo of a Mr Cassidy and a young woman with a caption that they were about to marry. Unfortunately Mr Cassidy was already married; a costly mistake, because the wife sued on the basis of innuendo that her friends might think she was not already married to Cassidy.
2 Hsiang Hsi-kung v. Singtao.
Hsiang Hsi-kung lived in the USA but held a high post in the Chinese Nationalist Government. He brought an action against Singtao, the Chinese newspaper in Hong Kong, alleging that certain articles were expressly defamatory of him and, further, that they contained various hidden defamatory meaning (that he was corrupt) that would be understood only by Chinese language readers. He won his case and had no need to prove the meaning of the innuendoes.
Sleight was a trade unionist, and it was reported that he had tried to work during a strike. This is defamatory because it would be so regarded not just by his fellow trade unionists but by ‘ordinary, just and reasonable people’ generally.
Mistakes over marriages or marriage dates can be libellous (for example, to say a woman was married a month before her child was born).
To imply that someone is unfit to hold office can also be defamation by imputation. For example, to allege that a doctor’s lack of care caused a patient’s death could be defamatory.
Unprofessionalism can be a cause for defamation. For example, to write or allege that a journalist is not careful about the truth, or that a university lecturer didn’t come to classes, could both be defamatory because of an implied allegation of unprofessionalism.
The words must refer to the plaintiff, who need not necessarily be named. For example, where a person was described as having ‘one eye and a name like that of a certain sailor’, the words were held to refer to the plaintiff. Another example: ‘an Australian’, if there is only one Australian in the group specifically referred to. A reference to a person by name only, with no other identifying particulars, may be taken to refer to a namesake and this namesake can sue. There is a classic case in English law: Artemus Jones. A journalist introduced a fictitious character into a descriptive account of a factual event in order to provide additional atmosphere. Unfortunately, the name he chose was that of a real person, a barrister. The real Artemus Jones sued on the basis that his friends associated him with the report. He won and was awarded substantial damages (for a full account, see Welsh and Greenwood (1999), McNae’s Essential Law for Journalists, p. 182).
It’s difficult to libel a group: ‘all lawyers are thieves’. No particular lawyer could sue unless there was something to point to that particular individual. However, when a magazine referred to Old Bailey journalists as ‘beer sodden hacks’, individual journalists successfully sued for libel. It isn’t enough not to name the person about whom the defamatory statement is being made, although it may be a defence when it comes to trial.
For the case of defamation to succeed, the plaintiff needs only to satisfy the jury that a reasonable person would take the word complained of to refer to them. Indeed, it’s often worse not to identify. For example, a paper quoted a report criticizing the deputy manager of a particular department, without naming him. Unfortunately, between the time of publication of the report and the newspaper piece this person changed, so the new deputy manager sued and won.
There is no safety in generalizations. Indeed, the dangers can be increased. For example, ‘I know of at least one member of the local council who has had kickbacks’ is clearly defamatory of someone. Many reading it will know who is referred to, and if there are some members of the council who have legitimately had contracts from the council they can sue and will probably win.
Publication
The plaintiff must also prove the statement has been published. Every repetition of a libel is a fresh publication and creates a fresh cause of action. Anyone who repeats the libel is also responsible. So simply quoting someone as saying something libellous is no help; the fact that a reporter is simply repeating the libellous statement in a published form is still a defamatory statement as far as the newspaper is concerned.
Damages for libel can be large. Journalists have to be careful because it could be argued that the balance of law favours the plaintiff, and large awards have been made to those bringing successful actions – particularly in London, described as the libel capital of the world. An offer to make amends by publishing a full apology can be a defence against unintentional libel. Libellous reports about a democratically elected governmental body can be safe in many countries, including the UK. The House of Lords has held that ‘it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech’. The importance of this judgement is that the Law Lords unanimously declared that ‘free speech is a fundamental part of common law’. It also means that the press is now free to carry out as much investigative journalism as it wishes into the ways and workings of government without fear of harassment, restraint or penalties.
Investigative journalism
Investigative journalists all over the world have to be aware of the legal problems they may encounter. Not only must the facts be right, but they must be able to be proved in court. If, for example, a journalist is relying on witnesses to back up the case, only the witness can give an account of the incident. Everything else is hearsay and will normally not be admissible. If a journalist is working on an investigative story that could be challenged in court, witnesses should provide a signed statement at the time the story is written. Journalists should also tape all tricky telephone calls whenever possible, and keep them.
It is wise to have originals of documents rather than photocopies. Sometimes a court will allow copies if it can be satisfactorily explained that the original is no longer available but the copy is authentic. Courts also attach considerable weight (as they do with police officers) to a properly kept shorthand note accurately dated as evidence. The difficulty is that much of what is published in newspapers is taken on trust from other people, and it is often impossible to check everything because of deadlines. Because of the possibility that claimants can apply to the court for access to a journalist’s notes and anything that might reveal a source, it is very important not to reveal any sources in the way notes are written or to make any personal remarks about contacts that might undermine the credibility of the source, just in case the court grants the claimant access to the source material (see also Chapter 15).
International variations of libel
Australia
Australia has a libel system very similar to that of England and Wales. The definitions are almost identical to those there, although there are some differences. These libel laws can also differ from state to state. There is, however, in Australia a constitutional protection for political discussion. Australian journalists (particularly broadcast journalists) have qualified privilege for discussion about the conduct, policies and fitness for office of political parties, public officers and public bodies. However, it must be remembered that there are significant differences between the states as to what is defamatory and how it is treated. The variations are considerable, but the broad proposition of the Australian defamation laws is the same in all states and territories: a person who publishes a statement of fact or comment that injures or could injure the reputation of someone else is guilty of libel, and would be liable to damages unless he or she can positively justify the publication in the particular circumstances of the case. This was part of the judgement given in the Australian High Court by Judge Deane in the benchmark case of Theophanus v. The Herald and Weekly Times Ltd in 1994 (see Pearson (1997) for further details).
The United States
The Americans have the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The US Supreme Court, in the 1964 case New York Times v. Sullivan, held that: ‘debate on public issues should be uninhibited, robust, and wide open and it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials’. The court also declared that: ‘neither factual error nor defamatory contempt suffices to remove the constitutional shield from criticism of official conduct’. This means that it has to be shown that the reporter or newspaper acted with actual malice, i.e. a statement of fact either known to be false or made with reckless disregard as to its probable falsity. Unlike in most other countries, it is not the ‘reasonable person’ test, but the subjective state of mind of the journalist. The libel plaintiff has to prove the statement is false rather than, as is more widely the case, the defendant proving the truth of the defamatory statement. However, American libel laws are quite liberal when compared with those operating in countries more closely associated with British law.
As in Australia, individual American states can have their own libel variations. While the Federal law makes it necessary for all libel plaintiffs to prove fault, individual states have their own precedents, statutes and case law. If, for example, a report attacks a public figure or official, there will be no First Amendment protection if the journalist had actual knowledge that the report was untrue, or had a reckless disregard for the truth of the statement. If a report libels a private person in a public interest story, it is safest for journalists also to publish a response and explanation from the private person named or identified. This at least could avoid a charge of negligence in publishing a false statement.
Defences against libel
The defences against libel for journalists in most countries are similar. They include truth, fair and accurate reports of court, legislative hearings, and public records.
The best defence of all to potential libel is a finely-tuned and loud internal warning bell. Journalists can’t be legal specialists, and certainly the small excursion into the journalistic legal minefield that is contained in this chapter can’t do anything except make suggestions about when that warning bell should ring! Keep a copy of a good up-to-date media law book by you. In the UK, for example, the most famous and widely used is McNae’s Essential Law for Journalists, by Welsh and Greenwood (1999). Equally good books can be found in most countries, that relate specifically to the local media law.
Journalists should check with the editor and with the lawyers if necessary. In a quick-moving broadcast situation, for example, it is often wise to leave something out if there is any doubt until the possible libel is checked. When in doubt – leave it out.
Having taken as much care as possible, there will still be situations that become libellous for good journalistic reasons. Don’t despair. There are defences to libel, and these are the main general ones:
1 Justification. Truth is always a complete justification. In the US, as already mentioned, it is up to the plaintiff to show the words are false; in most other countries it is up to the defendant–the journalist who has uttered the libel–to show the words are true. This defence applies when the words complained of are a statement of fact; if the words are merely an expression of opinion they may have to be defended by some other defence, such as fair comment, since comment is obviously not fact.
2 Fair comment. If journalists accurately report what some public person has done and then say: such conduct is disgraceful, that is merely an expression of opinion, a comment on the person’s conduct.
3 Privilege. The law recognizes that there are occasions when the public interest demands that there be complete freedom of speech without any risk of proceedings for defamation. It may be safe under absolute privilege or under qualified privilege. Absolute privilege is a complete defence, and it does not matter whether the words used are true or false. They are protected by absolute privilege. This refers to words used during the proceedings of parliament. However, the defamatory words, privileged when used in parliament, are privileged only in a qualified way when used in print. Court reporting is also privileged if the report is fair, accurate and contemporaneously reported.
4 Accord and satisfaction. This applies when you publish a correction and apology that has been accepted by the plaintiff in settlement of the complaint.
Summary
Libel is about protecting a person’s reputation. If someone believes a story has damaged him or her by a false statement, then legal action may be taken. Libel actions can be very expensive, both in damages and costs. If the damaging statement published is true, the newspaper generally has a complete defence. However, the newspaper has to prove the truth of the statement; the libelled person does not have to prove it is untrue. The newspaper also has to prove that any hidden meaning (innuendo) that the plaintiff says the words contain is also true. Reporters writing a story that contains damaging material must therefore make sure they get it right. In particular, reporters must make sure they get all sides to the story so that there is a better chance of presenting a story that is balanced. This will help mitigate, although not necessarily eliminate, any liability.
If reporters can’t check the accuracy of the story, they should tell the news editor immediately. There are several other possible defences against libel: fair comment when the statement is opinion not fact and is honestly held by the writer, and if it is based on true facts or privileged information. The law in England and Wales, and in many other countries, recognizes that damaging statements will be made on some occasions when it is in the public interest that these be reported. Reports of these occasions enjoy a protection called privilege. Matter protected in this way includes reports of court hearings, council meetings and public meetings, and official statements made by police and local authorities. (They have to be official statements, not simply a police officer giving an opinion that someone has committed the crime.) Again, the report must be fair, accurate and balanced, giving due weight to both sides of the story; for example, if defamatory statements are reported, denials should also be reported.
Reporters must always take care not to say that unproved allegations are facts. All such remarks must be attributed to the person who made them, preferably by using direct quotes and qualifying them as ‘allegations’.
It is not a defence to say that a damaging report does not name the person about whom the statement is made. The person can successfully sue if he or she can convince a jury that acquaintances believe the story refers to that person. It is not a defence to say that the reporter was merely repeating a damaging statement made by someone else. The law says everyone who repeats a libel is responsible for it. It is important for journalists to make sure they have as much evidence as possible; eyewitnesses and admissible documentation (originals), both written and taped. Notes and documentation should be kept so that reasonable care can be shown if the need arises.
COURT REPORTING
There’s no big mystery about court reporting. All the rules of normal reporting apply, and a court story is a story just like anything else. However, there are additional responsibilities that every reporter working on a court story needs to be aware of.
The job of reporters and journalists in reporting court cases is to make sure that justice is not only done but seen to be done. That’s their role, as well as reporting news and what is in the public interest for readers to know. It is vital that newspapers publish nothing that might prejudice a fair trial. Journalists have a right to observe and report what happens in court, but it is a right that has certain restrictions attached to it. Court reporting must be a fair and accurate report of legal proceedings in open court, published contemporaneously and in good faith. Points to remember include:
1 An article is considered to be published contemporaneously if it is published as soon as practicable after the events in court. It is then treated by law as having been published or broadcast contemporaneously with the committal proceedings (next day is acceptable for a newspaper).
2 Always check the indictment or the charge sheet.
3 Remember, report only what has happened in open court. Extra background details from court clerks or lawyers not in open court may destroy the privilege under which journalists report.
4 A statement from someone concerned with a trial made outside the court must be clearly stated to be happening outside court.
Pre-trial stories
Reporters can find themselves in contempt of court once an arrest has been made, or once police have started questioning the suspect. Although the crime can still be reported, the story must be carefully worded lest it suggest that those in police hands are the same people responsible for the crime. Thus a robbery can be reported, and a later report can say that a man was arrested, but not the man (i.e. the person who did it) was arrested. It would also be contempt to describe the appearance of three men who raided a bank as being tall, or dark-haired or bearded, lest those arrested answered to that description. To publish that would be to deny the defence the possibility of contesting identity. Once a person has been charged with an offence, specific details about the case cannot be mentioned (such as the person’s name and what happened) until the person appears in court.
Reporting restrictions
There are some specific reporting restrictions, which differ in different countries, e.g. reporting reasons for bail applications or objections to bail. In many countries, if a story reported reasons which, if revealed, would prejudice a fair trial, this could be contempt. Likewise, if a case is heard in a lower court first before being sent for trial to a superior court, there are likely to be restrictions on what can be published about the initial court hearing in case there is any prejudice of the later trial. Again, check in a local media law book for precise details. There are some areas of the law where there will almost certainly be specific reporting restrictions. Areas such as reporting juvenile court cases and sexual offences such as rape all need to be looked at closely before attempting to write even the simplest story. In most countries there will be strict laws about not identifying juveniles (and each country will have its own definition of the age under which someone is a juvenile) and not identifying the victim of a sexual offence. Often, because of the strictness of the non-identification rule, no identification will be allowed of anyone connected with the case because of the possibility of accidental identification of a victim.
There may be occasions when the court allows identification of the victim, but these are strictly governed and are always for very specific purposes, such as if the judge is asked and agrees in order to induce possible witnesses to come forward. Reporters must listen to the proceedings with great care to make sure they know what they can and can’t report.
As well as the specific restrictions mentioned above, there can often be others. Sometimes reporters are allowed into court, but are not free to report what happens. It is vital always to be aware of whether the court proceedings are open or closed, so that it is apparent what can and can’t be reported. Unless reporting restrictions are lifted, and this must be quite specifically by order of the presiding judge, journalists can only report very specific facts. These usually refer only to such things as:
• the names, addresses, ages and occupations of parties involved and the witnesses (unless there is some reason, e.g. prohibition by the judge or the nature of the offence, for not publishing the names or anything that might identify them)
• the names of counsel and solicitors
• the decision
• the charges on which each defendant is committed
• the date and place to which the hearing was adjourned
• arrangements for bail.
Lifting the restrictions
The press can usually apply for the lifting of restrictions on the grounds that the ban imposes a substantial and unreasonable restriction on reporting. Sometimes a defendant has the right to ask for the restrictions to be lifted. This restriction is sometimes applied by judges for questionable reasons, and reporters should not back away from making formal requests or appeals against such decisions since they mean the open justice system is in danger. In fact it has been held by the European Convention on Human Rights that if there is no mechanism for an appeal by newspapers, a judge’s secrecy order is a potential breach of human rights (Crook, 1998).
Protection for court reports
Court reporting is fully protected from libel, whatever is said in court, so long as the conditions concerning all court reporting are followed. Fair reporting means that, when publishing details of the commencement of the proceedings, journalists should at least also publish the result. Reporters can have qualified privilege in reporting if what they report is fair and accurate but not necessarily contemporaneous with the court proceedings (it is therefore possible to write a later ‘think piece’ or a book).
Pictures
Publication of a photograph can in general be contempt just as much as an accompanying story. The rule is that publication of the photograph of a defendant is not likely to be contempt provided there is no question of his or her identity being at stake. However, if the case is about the witnesses identifying the defendant in court or at an identity parade, using a picture would be clear contempt.
Journalists’ sources
Reporters never reveal their sources. The law does not, however, recognize any special protection for journalists when asked questions about this in court, and some journalists have been fined or jailed for refusing to answer questions about sources. However, a judge of the British appeal court held that:
while a journalist had no privilege entitling him as of right to refuse to disclose the source of his information, so the interrogator had no absolute right to require such disclosure. In the first place the question has to be relevant to be admissible at all; in the second place it ought to be one the answer to which will serve a useful purpose in relation to the proceedings in hand. Both these are matters for the consideration and, if need be, the decision of the judge, and there may be in addition other considerations which may lead a judge to conclude that more harm than good would result from compelling a disclosure or punishing a refusal to answer. The judge should always keep the ultimate discretion; and this would apply not only in the case of journalists but in other cases when information is given and received under the seal of confidence.
Criticizing the courts or judges
One of the most important judgements for journalists came with the following words from Lord Justice Atkin in 1936:
justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men … provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune.
However, if a reporter says the judge is biased or even may be biased, it will be contempt. Write something about a court case and the judge and, so long as it is done in good faith and without imputing improper motives to those taking part in the administration of justice, it will not be a contempt. Journalists now have much greater scope for criticizing the judiciary than in past times. There are now regular criticisms of sentencing by judges, and of decisions by judges and the courts. For example, if a story said that a particular case would not get a fair hearing from a particular, named judge, this would be contempt of court. But if a newspaper criticized a decision of the court, it might not be contempt if the story had been written in good faith and did not imply improper motives.
CONTEMPT OF COURT
In general, the laws of contempt are aimed at protecting the administration of justice and ensuring that every person charged is given a fair trial. However, the law is not always simple. In most legal systems there are problems that can result in contempt of court. It is a continuing source of conflict. Journalists can be in contempt because of disobedience to a court order. This could involve journalists whose actions bring them into conflict with the court, or it could come about because they interfere with the course of justice. Publication of matter that could interfere with the administration of justice remains the greatest danger, since judges take a serious view of anything that is published and that might hinder a fair trial. Punishment can be severe.
It’s contempt if there has been a serious risk of interference with the course of justice. Anything written or reported before and during a trial must never imply (or say) that the accused is guilty. That’s what the court case is all about and, in British-based law, there is always a presumption of innocence. The law takes the view that if there is a real risk, as opposed to a remote possibility, that publication of a statement or photograph would prejudice a fair trial, then publication should not occur. The danger in criminal cases is usually that a potential juror might read an article and be prejudiced. This would mean that a defendant might not have a fair trial, something on which the law is very clear. The legal fiction applies, however, that judges are not capable of being prejudiced in this way.
For contempt, a useful test that can be applied in most countries is that of a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced by something that is published.
Again, there are different interpretations of contempt in various countries, mainly between Australia, the UK and the USA.
In the United States, all criminal court proceedings are open to the public and reporters cannot be denied access. The Supreme Court relies on the common law traditions of England and Wales to justify the absolute nature of the open justice principle. However, it should be noted that, in the UK, courts are moving towards a rather arbitrary practice of closed proceedings from which the press and public are excluded. All UK bail applications at crown court level are heard in secret, as are applications by the police to seize reporters’ notebooks, tape and video recordings of events to help them investigate a crime.
In the United States, judges are required to hold a hearing when deciding to exclude the media or public.
In Australia, there are similar restrictions to those in the UK but there are also differences. There are, for example, strict rules preventing the media from identifying the parties in a family case, but the courts are open to media scrutiny.
The identification of children who appear in children’s courts as well as adult courts is prohibited in Australia, as it is in the UK. The law also applies to children who are witnesses or victims, and the age at the time of the offence is taken into account rather than that at the time of the trial. The age is normally 17 years and under. In Scotland, youngsters can be identified over the age of 16 years. In Australia, in some states – Victoria, Tasmania and Queensland – a child has to be under the age of 17 years at the time of the offence. In all other Australian states the age is 18 years. In Britain, journalists have a legal right to attend youth courts even though members of the public are excluded. In Australia, journalists can attend children’s courts in South Australia, Queensland, the Australian Capital Territory, Northern Territory, Tasmania and Victoria. In New South Wales, however, the magistrate has to give permission. In Tasmania publication of the result of a children’s court case is forbidden by state law.
The other type of restriction common to Australia and the UK is prohibition of identification of the victims of sexual offences, and any information such as their address, school, place of employment and other details that may lead to identification. In Britain, the anonymity is from the moment someone complains of a sexual offence and remains forever unless the victim provides written consent or a court has been persuaded to lift the restrictions for a serious reason.
In federal systems such as in Australia and the United States, journalists need to be aware of particular state laws. The open justice principle, which is fundamental to freedom of reporting, is coming under considerable attack in many parts of the world. This open justice principle still remains intact in the United States. A diminution of the open justice principle can result in censorship and an erosion of the public right to know. After several cases in Australia in recent years, the federal government asserted the principle of openness and set up an appeal machinery to enable journalists to challenge reporting bans by individual courts or judges. In the UK, there is a growing problem with journalists involved in court reporting who are being subjected increasingly to censorship and interference by judges and lawyers. This is certainly not the situation in the United States. The First Amendment and a more liberal culture of media rights means that American journalists have considerably more freedom. There are no statutory controls on the identification of sexual offence complainants, children and other participants in court cases. American journalists tend to believe that open reporting helps underline the nature of the offence, and often helps to provide other witnesses.
In Australia, the sub judice rules come into force when a warrant for arrest or a summons has been issued, and in civil actions when the writ has been issued. Australia also allows for a public interest discussion defence. The principles of contempt in Australia are more or less identical to those in the UK. This means that journalists cannot prejudge the case; should avoid publishing previous criminal convictions of an accused person; should avoid publishing anything that is prejudicial before or during the trial; should not publish photographs of defendants where there is likely to be an issue of identification; and should never publish evidence prior to it being given before a jury or do anything that might look as though pressure is being applied to a witness or another participant. In Australia, judges and magistrates sometimes stop a lawyer’s questions being answered by a witness. In these circumstances the court considers the question never asked, and any reporting of the question is probably contempt.
Summary
The law of contempt of court is about not hindering the administration of justice. The greatest risk is when a reporter writes a story that might create a substantial risk of serious prejudice of a trial. After a crime has been committed and the criminal is on the run, the newspaper is, in general, free to give full details of the offence (being careful of libel). After a person is arrested or a warrant is issued, a reporter must not include any material that would seriously harm the defence or prosecution. In particular, there must be no link between the accused person and the crime. Neither should any mention be made of anything that would imply that the person arrested is capable of committing the crime.
Newspapers cannot publish a photo of an accused if identification might be an issue at the trial. When reporting trials, reporters cannot include anything the jury has not been allowed to hear, e.g. any discussions about the admissibility of evidence or guilty pleas to charges that the jury are not trying. Courts may ask that reporters delay publication of a report to avoid a substantial risk of prejudice. Courts may also order that a name be withheld and not reported in public.
Remember: Reports in open court will normally be safe to report, but be alert for any specifically imposed court restrictions. Warning bells should ring when the cases concern children (as defendants and witnesses), family proceedings, sexual assaults and rape cases.
COPYRIGHT
In Britain and the rest of Europe copyright lasts 70 years after the author’s death, or 70 years after the first publication if that takes place after death. Copyright on photographs lasts for 70 years after first publication. The Copyright Act protects creative work from being used by others without permission. In Australia the time limit is 50 years; in the USA it is usually 75 years.
Fair dealing
This is a defence against copyright infringement for newspapers and periodicals when reproducing extracts from copyright works. Fair dealing is satisfied when the newspaper reproduces extracts from a literary, dramatic, musical or artistic work for the purpose of criticism or review or for reporting current events. However, it has to be accompanied by sufficient acknowledgement identifying the work and its author. It is therefore permissible to quote from books, plays, films, etc. when writing a criticism of them as a story or feature. However, there cannot be fair dealing (i.e. copyright is infringed) if there is a substantial part of the piece reproduced. The UK Copyright Act says: Any extract may be published if its publication is genuinely intended to enable the reviewer to make his comments and not to enable the reader of the review to enjoy the work concerned without buying it. It should not be an important part of the work, such as that in which the author conveys the main idea of the piece.
FURTHER READING
Armstrong, M. (1995). Media Law in Australia. OUR
Belsey, A. and Chadwick, R. (1992). Ethical Issues in Journalism and the Media. Routledge.
Braithwaite, N. (ed.) (1995). The International Libel Handbook. Butterworth-Heinemann.
Carey, P. (1998). Media Law. Sweet and Maxwell.
Crone, T. (1995). Law and the Media. Focal Press.
Crook, T. (1998). International Radio Journalism. Routledge.
Gage, L. (1999). A Guide to Commercial Radio Journalism. Focal Press.
Mckain, B., Bonnington, A. and Watts, G. A. (1995). Scots Law for Journalists. Sweet and Maxwell.
Pearson, M. (1997). The Journalist’s Guide to Media Law. Allen and Unwin.
Robertson, G. and Nicol, A. (1992). Media Law. Penguin.
Welsh, T. and Greenwood, W. (1999). McNae’s Essential Law for Journalists. Butterworth.