21  Law and ethics

The laws affecting journalists are complex. A script of a staff writer on a national newspaper is checked for libel by a media lawyer for libel and other dangers, and if a case is lost in court the newspaper will cough up. Freelances, in contrast, should remember to warn editors whenever they feel there are any legal dangers in what they’ve written.

Not only are the laws complex but they are liable to frequent change. You should have the latest editions of McNae’s Essential Law for Journalists and Tom Crone’s Law and the Media on your shelves or know where they are accessible. Make sure you are conversant with the NUJ Code of Practice and the Press Complaints Commission’s (PCC’s) Editors’ Code (see pages 375–380) and keep up to date with such magazines as Press Gazette and The Journalist, and the nationals’ media pages.

Here though it’s worth underlining the essential points about the copyright and libel laws, and about attribution.

COPYRIGHT

Infringement of copyright means including in your feature or your book a substantial quotation from someone else’s work without permission. It’s not enough to name the author and the source of the extract. You need that author’s permission. (Plagiarism is reproducing another writer’s words without any acknowledgement.)

How many words is ‘substantial’? Because the word is open to interpretation a measure is supplied by the notions of ‘distinctive’ and ‘fair dealing’. As a rough guide a journalist won’t normally need permission to quote 300 words or one or two short pars from another writer’s work, as long as full accreditation is given. But to quote a couple of lines of poetry can be considered an infringement of copyright because they are so distinctive in relation to the whole. On the other hand, considerably more than 300 words or several pars (as long as acknowledged) can be defended as ‘fair dealing’. To quote Crone:

The defence of fair dealing acknowledges the wider interest of freedom of speech by allowing considerable latitude in the use of copyright material for certain worthy purposes. The CDPA the Copyright, Designs and Patents Act 1988 as amended by the Copyright Regulations 1995] limits these purposes to news reporting, criticism and review, and research and private study.

Since each case of infringement that goes to court is judged on its own merits the journalist has to play safe and get legal advice whenever infringement is a possibility.

LIBEL

In 1958 Liberace, the American singer, won £1.5 million against William Connor (‘Cassandra’), the columnist, and the Daily Mirror for suggesting (though not explicitly) that he was homosexual, although it was well known that the singer had perjured himself in court. Connor was not able to prove that he had. More recently an actress won a libel case against a reviewer who had panned a play she was in. No problem there, of course, but the reviewer had said her bum was too big. Such are the vicissitudes of expressing honest opinions that upset people too much.

The popular nationals occasionally lose a lot of money in sensational libel cases. Sometimes they risk it and succeed in recouping by boosting their circulations. Few freelances can afford to take such risks. Count Nikolas Tolstoy suffered £1.5 million damages for f ailing to prove that Lord Aldington was guilty of war crimes.

Truth is a defence to libel, but as we’ve seen the defendant must produce the proof while the plaintiff doesn’t have to demonstrate that the words are false. Another important defence is fair comment (based on honest opinion). The Human Rights Act of October 2000, which incorporates the European Convention of Human Rights, marks a move in theory towards greater freedom of expression in the media. But against that right is the right of privacy, so you’ve got to watch the court cases to see how judges strike the balance.

Avoiding Libel

The main safeguards have been touched on in other parts of this book but it will do no harm to give them emphasis here:

•  Check sources (cuttings, passages in books, your notes, your tape recordings and transcripts) to make sure you have reproduced them faithfully and that they contain no falsehoods. It is no excuse to say that printed statements you’ve drawn on were false – it’s your job to check.

•  Take care with the spoken words that you have reproduced. Do any of your interviewee’s statements look defamatory? Again, check first that you’ve reproduced them accurately. Then check that you can stand them up before you decide to use them.

•  Although the advice given earlier in this book to avoid giving interviewees script approval generally holds, be more generous if you feel there may be legal dangers in any of the words you’ve quoted. You may, for example, be wise to get the relevant factual parts of such copy checked by a person or organization qualified to do so. To repeat, as a freelance, make a special effort to draw on the advice of a media lawyer.

THE QUESTION OF ATTRIBUTION

Let’s add to what was said about attribution in earlier chapters.

You have established contact with a useful source of information. You may, nevertheless, have doubts about the accuracy of the information. Is it the kind of background information that may need careful cross-checking with another source? Is it information offered on an unattributable (‘off the record’) basis, meaning that you can publish it without using the source’s name? The main problem with ‘off the record’ statements is that the source may have a hidden agenda. A managing director of a company or a government official may want to get a policy idea aired in the press to assess the feedback produced. If the feedback is negative or hostile the source can deny giving out the idea.

The general advice is:

•  Avoid using ‘off the record’ information.

•  Get an agreement with your source from the start on what information they want to be ‘off the record’.

•  Make sure your source means by the phrase exactly what you mean: that you can use the information without their name (some sources mean background information that will need careful checking with another source or sources).

•  If your source is reluctant to go ‘on the record’, explain why your story needs verification by named sources.

•  Never renege on your agreement with the source.

Various kinds of dealings with sources are lucidly covered by David Randall in The Universal Journalist (Pluto Press). See Chapter 6: ‘Handling Sources, Not Them Handling You’.

ETHICAL CONCERNS

These are covered by the Codes of Conduct and Practice. You try to follow them rigorously, but the defence of public interest can override them on occasion. Check with your editors.

The right of privacy figures prominently in the codes and can cause dilemmas. Celebs complain about journalists’ intrusions when inconvenient or allied to unfavourable comment yet want to benefit from favourable publicity. You and your mentors have to do that balancing act again.