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BUSINESS SCHOOL
LAW DEPARTMENT
LLB (Hons)

LEVEL H (Year 4) (2013 -2014)

MEDIA LAW& ETHICS


UNIT MATERIAL\S

Copyright

Tutor:

le 8
c
i
t
Ar

Ken Brown
Law Department
Room C102 Christchurch House
E-mail:
brownk@bournemouth.ac.uk

Bankru
p

tcy

Priva
cy
y

ownership of these materials

Law - the Media an overview

Responsible Journalism and Ethical considerations


Defamation

30

Malicious falsehood

55

Confidentiality

59

Privacy

68

Reporting children in the news Youth Courts


Family courts Adoptions etc

74

ASBO - CRIMBO

81

The media reports of sexual - indecency offences

88

Contempt of Court

94

Copyright

113

Digital Economy Act 2010

124

Inquests

129

Bankruptcy

137

Official Secrets and DA Notices

142

Injunctions and the doctrine of prior


restraint Blackstone

151

Regulators - Media in general

153

ADDITIONAL REFERENCE ASPECTS:


Jameel v Wall Street Journal (H of L extract)

155

Reynolds v The Times

165

Roberts and another v Gable and others

181

Media Ethics - A brief summary

190

IMPORTANT NOTE
COPYRIGHT OWNERSHIP
The teaching materials for this unit have been prepared by myself, Robert
Kenneth Brown (Ken Brown), for use by students undertaking media law
studies at Bournemouth University. With the exception of extracts from various
press articles and possibly photographs Which have been accredited to the
relevant publishers and which are inserted only for educational topic
emphasis, they are subject to the copyright ownership of myself as established
by the Copyright Design & Patents Act 1988.
Any errors or omissions in the contents by way of accreditation, arrangement
or definition are apologised for and are to be attributed entirely to myself.

Disclaimer
The purpose of the materials is to support study only.
The author is not engaged to provide legal advice and expressly disclaims all
and any liability and responsibility to any person in respect of anything, and of
the consequences of anything done or omitted to be done by any such person
in reliance, whether wholly or partially, upon anything contained in these
materials
Use of Language in the legal context
References, where applicable, are in the masculine. This is in the interest of
efficiency and the references are to be read by analogy with the Interpretation
Act 1978 which expressly provides that Unless the contrary intention appears,
words importing the masculine gender shall include females
It is also important to note that any statutory reference to Person includes
bodies corporate in addition to individuals. This interpretation accords with the
accepted principals of legal personality.

Ken Brown
Unit Leader

September 2013

THE UNIT WILL EMBRACE A NUMBER OF ASPECTS


ADDRESSED DURING PREVIOUS STUDY i.e. At level C & Level I

THESE MATERIALS PROVIDE GUIDANCE & CORE


INFORMATION ONLY AND ARE NOT TO BE REGARDED AS
IN ANY WAY BEING DEFINATIVE

MEDIA - The term?


MEDIA LAW?
GENERIC TERM embraces both the criminal & civil Law as applied to
media
REMEMBER
1.
Total control tyranny?
Total freedom Anarchy?

2. MAIN LEGAL SYSTEMS?


i) ENGLISH LEGAL SYSTEM
i.e. The common law system

ii) ROMAN - GERMANIC LEGAL SYSTEM


i.e. The civil law system
BUT IMPORTANT to remember those countries where aspects of religious
law is prominent
3.
SOURCES OF THE LAW (ENGLISH LEGAL SYSTEM)

LEGISLATION:
i) Statutes
e.g. Copyright Design & Patents Act 1988
ii) Delegated legislation
.
e.g. Registered Design Regulations 2001
Made under powers given by The Copyright Design & Patents Act 1988

PRECEDENTS:

e.g. McKerry v Teesdale and Wear valley Justices [2000]


(This case resulted from journalists via their lawyers making a challenge to
a court order not to report certain matters)

HUMAN RIGHTS:

European Convention upon Human Rights aspects?

MAIN IMPACT WITHIN MEDIA


a) Right to Fair trial - (Article 6)
b) Right to Privacy & Family Life - (Article 8(i) & 8(ii)
c) Right to hold opinions and Freedom of expression - (Article
10(i)) & (10(ii)

THE EUROPEAN UNION


e.g. Equality in the work place - Discrimination
Health & Safety issues

COURTS - CIVIL / CRIMINAL


PROCEDURES ?
OPEN COURT OPEN JUSTICE THUS
DEMOCRACY!
NOT ONLY MUST JUSTICE BE DONE BUT MUST OPENLY AND
MANIFESTLY BE SEEN TO BE DONE
Sussex Justices case 1924
CONFIRMED BY SUPREME COURT - 19 JUNE 2013
ARTICLE 6 OF THE EUROPEAN CONVENTION UPON HUMAN
RIGHTS PROVIDES

everyone has the right to a fair and public hearing within a reasonable time
by an impartial and independent tribunal
THE MEDIA BEING PRESENT AT COURT HEARINGS, IN GENERAL,
AS THE EYES AND EARS OF THE PUBLIC
i.e. Open

Justice

Scott v Scott [1913]


In general, the presence of the public & Media is restricted when it can be
shown their presence at the hearing would frustrate or render impracticable
the administration of justice.
BUT courts have an inherent power at common law to sit in private

Examples: (Note these well)

Defeat course of justice


Secret processes i.e. formula
Civil cases related to Adoption guardianship & wardship cases
State security

CRIMINAL OFFENCES - Three categories


IMPORTANCE TO THE MEDIA??
Direct impact upon contempt of court and Article 6 ECHR

1.Summary Offence

One which must be tried at a magistrates court. e.g. Fail to stop at a stop
sign drunk and disorderly
2,

Either way offences


One which may be tried either summarily at
a Magistrates Court or on indictment at crown court.
If a plea of guilty ( Known as Plea before venue ) entered the case must
be tried at the magistrates court.
The court hears the prosecution case followed by the defence case.
If any facts are disputed as to seriousness of an offence the court must
accept the defence version unless the prosecution is able to prove
otherwise.
Reports upon the defendant are then heard from such agencies as
probation social services employers
Sentence will then be passed unless the magistrates decide their powers
are insufficient then the defendant may be sent for sentence to a
Crown Court
N.B.
i) When an accused states he will plead guilty journalists may report
what is said in these court proceedings providing it is a fair accurate
and contemporaneous report (FA & C).

Such attracts ABSOLUTE PRIVILEGE with regard to reporting


Section 4(2) Contempt of Court Act 1981 and section 14 Def Act 1996
To be replaced by section 7(1) Defamation Act 2013

ii) If an accused pleads not guilty and does not elect to be tried at
Crown Court the magistrates will hear from the prosecution
and defence at A mode of trial hearing.
They will then decide upon seriousness of the offence if the
Court decides it is too complex, a sexual or violent crime, will
commit the case to Crown Court to be dealt with without
any further evidence being presented.
Bail is the only consideration.
(Via Schedule to Criminal Justice Act 2003)
This hearing is subject to media reporting restrictions under
(section 8 M Ct Act 1980) Now replaced by section 54 Crime &
Disorder Act 1998
i.e.10 points only may , in general, be published by the media
Restrictions may be lifted at discretion of the court IN THE INTEREST
OF JUSTICE
If they decide to try as a summary trial then reporting restrictions do
not apply and are lifted for the whole of the proceedings and media
reports which are F A & C
The accused may still be sent to the crown court to be
sentenced but court must hear any application for bail

Pre trial hearings


These may be held by magistrates to determine the
admissibility of evidence where not guilty plea has been
entered and they have decided to try the case summarily
NOT GUILTY PLEA AND ELLECT TRIAL AT CROWN COURT?

10

No actual committal hearing i.e. sent direct to Crown Court for trial Reporting restrictions apply
Reporting restrictions as per S 8 M Ct Act 1980 but under sec.54A
Crime & Disorder Act 1998

3. Indictable offences
Such cases are committed directly (i.e. sent) to the Crown Court for
trial by a Jury
e.g. Murder - Manslaughter Rape

After hearing any application for bail magistrates MUST send the
case for trial without hearing any evidence.

Such an accused person only appears at the magistrates court for this
one purpose

But
The accused will be given opportunity to appear before a judge at Crown
Court, within 8 days, to submit that there is no case to answer.
Reporting restrictions (7 Points) apply to such proceedings unless the
application is successful.
(See Mc Naes for the 7 points Learn them)

MAGISTRATES COURTS Maximum sentence which may be imposed


6 months imprisonment on one charge no more than 12 months in
total. (Courts Act 2003)

11

If magistrates conclude that they cannot award sufficient sentence for


an either way offences it may commit (send) the case to a Crown
Court for sentence.
e.g. This may be due to an accused person having committed previous
criminal offences.

How proceedings commence before the court?

Summons order to appear before a magistrates court

Warrant Court order e.g. to arrest (or search premises )


Arrest
Either detaining a person
on a warrant issued by a magistrate for arrest(s)
having committed, about to commit or committing any offence
For any offence when necessary:
1. to obtain name and address
2. prevent disappearance

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3. harming himself or others


4. preventing prompt and effective investigation
5. prevent damage to property or obstruction of the highway

Verdicts
May be unanimous
Or
b) Majority either guilty or not guilty
11 to 1 or 10 to 2
If a jury has been reduced i.e. for illness then may be 10 to 1 or 9 to 1
HOSTILE WITNESSES
On occasions a witness called on behalf of the prosecution or defence does
not confirm or contradicts a statement previously given to the party who
called them.
When this happens the party calling the witness may ask the court to
determine that they are hostile to them and if the court then agree the
party calling may then put leading i.e. direct questions to the witness i.e.
Did you see ???? Did you say????
i.e. Not what did you say? or what did you do? which is the normal
required legal position when introducing evidence from a witness

GRANTING BAIL - MEDIA RERPORTING ?


Bail Act 1976 The relevant legislation

13

There is always a legal presumption of the right for a person


to be bailed
BUT
Objections to bail may be made by the prosecution on the following six
grounds:
Substantial reasons to believe the accused will abscond
Commit other offences
Obstruct the course of justice
For own safety
Where already serving custodial sentence

Insufficient information available at the time to make a decision (This is


usually the case in murder allegations)

N.B.
If bail is opposed a court must state its reasons for not
granting or for granting bail

But such reasons must not be reported by the media


WHY???
Thus media should only report as:

14

REMANDED IN CUSTODY OR REMANDED ON


BAIL
May report any arrangements made by the court which
are attached to the granting of bail
such as;Report to the police daily surrender passport not to
interfere with witnesses or visit a certain are or address
PUBLICATION OF COURT LISTS OF NAMES AND
ADDRESSES OF PERSONS APPEARING BEFORE THE
COURT?
Reports of such are protected as Qualified privilege re defamation
(Section 15 Defamation Act 1996 lists most areas as to when this qualified
privilege applies Reports must be fair and accurate.)

HUMAN RIGHTS:
Human Rights Act 1998
Article 10 (a) European Convention of Human Rights protects the right
to freedom of expression and to impart information
BUT by Article 10 (b) such is subject to exceptions imposed under the
law e.g. defamation contempt other legal dictates
i.e. Freedom of speech, article 10, is FREEDOM UNDER THE LAW
Articles 6 & 8 mentioned previously.

15

DATA PROTECTION Act 1998 - (See page 138 Blackstones Statutes Media
Law 3rd Edition)

Has important connection with Media - e.g. Privacy


Relates to the keeping of personal information of a living person in
a) Manual systems
b) Electronic systems
Organisations or freelance journalists who maintain such are required to
register with the INFORMATION COMMISSIONER
TV - Radio Print organisations are regarded as DATA CONTROLLERS (as
are the police, the courts and local authorities)
Act sets out 8 principles - re. How and what data should be kept
Principle 1. Most important:
Data must be processed fairly & lawfully
Strong protection given to certain areas of sensitivity.
e.g. Physical & Mental health aspects
Campbell v MGN Ltd [2004]
Offences may be committed by the data controller who unlawfully passes
protected information and also those who obtain & keep it.
BUT
RIGHTS OF A DATA SUBJECT
Establish inter alia:
i)
ii)

If data held
What data held

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iii)
iv)
v)
vi)

Source of the information


To whom may be disclosed
Have data corrected
Claim compensation re loss from unauthorised disclosure or
inaccuracies

Data subject must pay reasonable fee - 10


WHAT OF PROTECTION FOR THE MEDIA ??
10 possibilities here where protection provided to media

MEDIA EXEMPTIONS
Section 32 Data Protection Act gives protection from disclosure in certain
circumstances with regard to the gathering of information with a view its
publication
e.g. Freedom of expression (Art 10) claimed where publication of
journalistic material is in the public interest and to comply with the
disclosure provisions of the Act would not be compatible with journalistic
practices.
Investigative Media aspects - Use of data relating to a person who is alleged
to have committed an unlawful act, mismanagement in administration or
provision of services.
Section 3 Data Protection (Processing of Sensitive Personal Data) Order
2000
FREEDOM OF INFORMATION ACT 2000
Became law in 2005 and, in general, gave a right of access to all to
information held by Government and local Authority bodies
Overseen by

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a) The Information Commissioner to whom appeals are made.


b) Information Tribunal

(See Websites)

The Information Commissioners Office (ICO) the UKs authority under


the Act to uphold information rights in the public interest and promote
openness
Courts and tribunals are not included in the Act nor are MI 5 MI 6 &
GCHQ
Public authorities are not required to gather information it does not
currently hold solely to satisfy a demand from a person
Exemptions to disclosure exist.
i) Absolute
ii) Qualified.
Balance:
Is the public interest in withholding information greater than the public
interest in its disclosure?
But for the F of I Act we would not have had the parliamentary expenses
scandal exposed by the Daily Telegraph.
(See Stumbling over the Truth- Kevin Marsh 2012)
A code of practice exists issued by Ministry of Justice is on line
***********************

FREEDOM?:

18

FREEDOM TO COMMUNICATE?

i.e. Freedom of speech


1215 Magna Carta ( Articles Of the Barons) Fair trial by ones
equals - King not above the law. 63 clauses in all King John tried
to revoke the charter. T he Pope agreed to release him from his
oath. Civil war. Finally became law 1297
1476 Caxtons printing press
1557 Royal Charter to imprison unlicensed printers and to
destroy the presses
1644 - Milton Areopagitica - An address to Parliament on the
liberty of the press
.. Promiscuous reading is necessary to the continuing of human nature.
The attempt to keep out evil doctrine by licensing is like the exploit of that
gallant man who thought to keep out the crows by shutting his park
gate.. Give me liberty to know, to utter and to argue freely according
to conscience, above all liberties.
But this had No effect
Cromwell 1653 - Became Lord protector - Dissolved Parliament and
subsequently appointed 27 Good and wise men to vet and licence
printed works plays etc. They ordered seditious and irreligious books
to be burned by the public hangman.
1660 - Restoration of the monarchy
1688/9 Bill of Rights ** Note well

19

Article 9 of the Bill states:


That the freedom of speech and debates in Parliament ought not to be
impeached or questioned in any court or place out of Parliament
Nor is it Since this time such things said in Parliament have been
protected by ABSOLUTE PRIVILEGE no matter how defamatory or
scandalous they are
Prior Restraint Blackstone 1765
e.g.

Injunctions - Mary Bell /Maxine Carr

The American Constitution 1787 & its first amendment protects the
freedom of the press in the USA

RESPONSIBLE JOURNALISM AND ETHICAL


CONSIDERATIONS
Distinguish from Legal and regulatory aspects
Examples:

i)
ii)

No personal benefit
Would reporting harm someone even where no legal
restraint on publication

See:
Editors codes OFCOM BBC Trust

20

21

FREEDOM OF MOVEMENT ?

i.e. Freedom to come and go as we please?

FREEDOM FOR MEDIA???

AS FOR ALL IT IS FREEDOM UNDER THE LAW


LAW RULES not the media (4th estate)
i.e. The law as:

Identified by the courts through - PRECEDENTS.

Unless and until:

Determined by Parliament - i.e. BY LEGISLATION

(PRIMARY & DELEGATED)


e.g. With regard to reporting the courts -Magistrates Courts
Act 1980 as amended By section 52A Crime & Disorder Act 1998
Contempt of Court 1981 - Children & Young persons Act
1933 Sexual Offences Acts (various)
& by delegated legislation

22

THE MEDIA -

POSITION RE FREEDOM??

In general it and its members have no more powers/ rights than other
members of the public
BUT
The media is recognised as being The eyes and ears of the public and as
such may be seen to be given special consideration and have a number of
privileges.
Felixtowe Justices ex.p. Leigh and another [1987]

RESTRICTIONS UPON REPORTING COURT PROCEEDINGS:


In General
Fair, accurate and contemporaneous accounts of proceedings during any
court trial either civil or criminal are protected
AND
Have ABSOLUTE PRIVILEGE
(i.e. Absolute protection from actions for defamation and contempt of
court Section 14 Defamation Act 1996 (sect.7[1} Def. Act 2013 when
introduced) and Section 4 Contempt of Court Act 1981)
Exceptions
Certain reporting prohibited by other legislation

23

( e.g. Anonymity for victims of sexual offences and of young persons


appearing in youth court proceedings)
or
The court orders otherwise
e.g. Under sections 4(1) or 11 Contempt of Court Act 1981
But such provisions are not there to service the sensitivities of defendants i.e.
open court justice
re S (A child) [2004)

NORMALLY A JOURNALISST MAY REPORT WHATEVER IS SAID IN


THE PROCEEDINGS

BUT NOTE WELL:


Interruptions i.e. shouts from the public gallery(seating area) are not
part of the proceedings and thus care must be taken by the media when
reporting such e.g. may be defamation
possible to for media to report as There was a disturbance or shouting
from the public gallery
Many shouts from gallery are innocuous and therefore may be reported
e.g. To shout He is innocent would not normally be defamatory

NOTE WELL:
REPORTS THAT ARE NOT CONTEMPORANEOUS HAVE
ONLY QUALIFIED PRIVILEGE and must not be motivated by Malice

24

i.e. a report of a court case where there has been a time lapse between case
ending and the report

PRE TRIAL COURT APPEARANCES Magistrates Court


hearings
THE REPORTING OF SUCH?

NOTE WELL:
MEDIA REPORTS UNDER THE FOLLOWING
CIRCUMSTANCES ARE RESTRICTED TO 10 POINTS
Now s 52A Crime and Disorder Act 1998

BUT again note well:


Full reports MAY BE MADE of remands following a pre trial
hearings where the defendant has indicated a guilty plea to an
either way offence & thus magistrates must hear the case.
Committal (i.e. sent) to a Crown Court for trial the reporting
restrictions apply
I.E.
When a person has pleaded not guilty to an either way offence and
elected trial at C.C.
OR
When a person is charged with an indictable offence
i.e. Murder Rape manslaughter.

25

Transfer proceedings? These are at the request of the Crown


Prosecutions Service in cases of serious fraud or
violence/cruelty to a child The only duty of Magistrates is to
deal with any bail application Warn any witnesses to attend
court Legal aid.

Court clerks have declined to give names of the sitting magistrates. Held by
the Queens Bench Division to be unlawful
There is no such person known to law as an anonymous justice of
the peace.
R v Felixstowe Justices ex p Leigh (1987)
WHY RESTRICTIONS?

NOTE WELL EXCEPTIONS:


WHEN DO THESE RESTRICTIONS NOT APPLY FOLLOWING PRE
TRIAL HEARINGS IN A MAGISTRATES COURT
i)When an accused asks they be lifted and thus the reporting of
matters said in court proceedings may take place.
ii) If two or more accused and ONE OR MORE OF THEM
objects to the lifting then the restrictions will not
be lifted unless in a courts judgement it is in the interest
of justice to do so.

BUT

26

the media may not report previous convictions nor anything which may
cause substantial risk of serious prejudice to the subsequent trial (THIS
WOULD BE CONTEMPT OF COURT)
The 10 points under
not apply when

do

None of the accused are sent for trial


One or more of the accused are tried summarily. Full report may be
published even if it may effect the trial of others.

Where an accused is tried and then committed for sentence to a crown court
- no restrictions as to reporting the Magistrates Court proceedings provided
report is fair accurate and contemporaneous.
Such reports then have ABSOLUTE PRIVILEGE
When all defendants have been tried at a Crown Court reports of what
said at committal proceedings may be published providing FAIR &
ACCURATE and will be privileged under the schedule to the
Defamation Act 1996 ( Qualified Privilege)
ADDITIONAL PRE TRIAL RESTRICTIONS
Restrictions on reports of an application made at a Crown Court that the
case be dismissed prior to its trial.
(Such a hearing may be held by video link if accused was remanded to
prison. This obviates the need for the accused to be taken to the court)
Only the 7 points MAY BE REPORTED

27

PHOTOGRAPHY AND SKETCHES IN AND AROUND A COURT??


The Criminal Justice Act 1925
Prohibits the taking of any photographs or
The making of any sketch in a court or
Of any person entering or leaving the court or its precincts

What are PRECINCTS? This is not defined but photographs may be in


contempt if the identification of a person photographed is an issue
Sketches or computer composites appearing in the media??

GENERAL ASPECTS
Publication of an advert or story offering a reward for return of stolen
goods i.e.
i.e. No questions asked
This is an offence under Theft Act 1968 section 23

JOURNALISTS FREEDOM OF MOVEMENT??

28

i.e. The right to go anywhere in order to report?


NO!
Trespass
To land:
Obstruction of public highways - going on private property etc.
(Harrison v Duke of Rutland)
Harassment
Protection from Harassment Act 1997
Alarming or causing distress to a person
i) High level offence fear of violence
ii) Low level offence no fear of violence
This is the most likely offence for journalists Possible Arrest
Injunction (Princess Diana?? - Privacy)

BENEFITS ACCORDED TO ACREDITED MEDIA


REPRESENTATIVES?
Press benches in courts
Attendance at conferences and meetings as recognised members of the
Media

29

REPORTING EMPLOYMENT TRIBUNALS?


Employment Tribunals Act 1996 & Employment Tribunals Regs. 2004
Where there are allegations of sexual harassment ( Not a sexual
offence i.e. assault to which restrictions apply automatically) ??
an Employment Tribunal or the Employment Appeals Tribunal may
make a temporary order which bans publication of such matter which
would identify:
Such orders should not be made automatically i.e. public interest
to be considered
Kearney v Smith New Court Securities [1997]
May thus restrict identity of:
i) The person making the allegation of sexual misconduct towards
them
ii) the person(s) affected by the allegation
FOR HOW LONG?
Until the tribunal has given its decision
Or
until the order has been revoked by the tribunal or appeals tribunal
NOTE:
Media representatives may appeal the restriction order.
Rule 50
REPORTING FAMILY COURTS

30

Accredited representatives of the media, in general, have the right to attend


subject to court discretion. There are restrictions re children being
identified.
NO RIGHT TO ATTEND
Adoption proceedings
Conciliation proceedings
Financial dispute resolution in Judge Chambers
(If cant agree then court hearing held and media may attend but
restrictions as to reporting may be made0

REGULATORY BODIES:
i)
ii)
iii)

Press Complaints Commission?


OFCOM
BBC TRUST

TEST YOUR KNOWLEDGE AND UNDESTANDING


1. How may we define freedom of expression (Speech)
2. What do you understand by the terms:
a)

Absolute Privilege?

b)

Qualified privilege?

3. When do journalists / TV presenters or others have absolute or


qualified privilege in reporting?
4. Under what legal authorities do such privileges arise?

31

5. Describe legal malice


6. What is the legal position regarding advertisements offering
payment of a reward for the return of stolen goods i.e. no
questions asked?
7. What is the legal position regarding the taking of photographs or
the making of sketches in a court?
8. What do you understand by the term precincts of a court?
9. What are the provisions of the Employment Tribunals Act 1996
with respect to the reporting of employment tribunal hearings?
10.What is the main aspect of the Harassment Act 1997 which media
persons must be aware of?
11. A man pleads guilty in a magistrates court to a charge of theft
from his employer. There is no departure from the usual court
procedure, but at the end of the case, after the man has been
fined, his solicitor asked the magistrates to consider making an
order permanently prohibiting the mans identification in
newspaper reports of the case. The solicitor says that such
publicity would harm his clients chances of finding alternative
employment.
May the magistrates lawfully make such an order at the end of
the case under the provisions Contempt of Court Act? The
answer must indicate how conclusions are reached.

32

DEFAMATION?(A civil law matter)


Who steals my purse steal trash; tis something, nothing; twas mine,
tis his and has been slave to thousands. But he that filshes from me my
good name robs me of that which not enriches him and makes me poor
indeed
Iago Othello Wm. Shakespeare
**********

Defamation Act 2013?? {See end of this topic}


With minor exceptions, i.e. sec. 15 & sub sections 4 - 8 of
sec. 16 the Act comes into force on such day as the Secretary
of State may determine by way of a statutory instrument)
{See end of this topic for brief summary i.e. Page 55}
At present a Common Law developed aspect
A Current Definition:
(Publication & statement defined by sec. 15 DA 2013 remains the same)

33

THE PUBLICATION TO A THIRD PERSON (i.e. putting into the public


domain )
OF
AN STATEMENT (Made by any means whatsoever.)
{Current Law}

WHICH IS CAPABLE OF LOWERING THE CLAIMANT

IN THE EYES OF RIGHT THINKING PEOPLE

OR WHICH MAY EXPOSE HIM TO RIDICULE, HATRED,


CONTEMPT, CAUSE HIM TO BE SHUNNED, AVOIDED

OR
DISPARAGED IN PROFESSION, TRADE OR BUSINESS
e.g. Publication of an article in a newspaper in which two named
barristers said to be arguing in a cake shop over who should have the
last clair
A spoof but successfully argued by the claimants some person(s) may
have believed it thus they MAY be ridiculed
Glastonbury Rolling Stones Photograph
All have the right to good reputation which includes their professional
ability
Statements may be defamatory even if true but will only result in the
payment of damages if shown to be untrue?
(Exception ? Reynolds defence see bellow)

34

BUT
Not all false statements are defamatory?
e.g. To state someone had reported a crime when they had not
This will change: Section 1 D.A. 2013
The defamatory statement will, to an individual:
i)

HAVE TO CAUSE OR BE LIKELY TO CAUSE SERIOUS


HARM TO THE CLAIMANTS REPUTATION

ii)

Re ORGANISATIONS TRADING FOR PROFIT CAUSE OR BE


LIKELY TO CAUSE SERIOUS FINANCIAL LOSS

( e.g. Plc Ltd or LLPS)


THE ALLEGED DEFAMATORY STATEMENT COMPLAINED OF
MUST BE MADE TO A THIRD PERSON IN ORDER TO BE
ACTIONABLE IN LAW

SLANDER - Spoken statements i.e. transitory

LIBEL - Permanent form

i.e. Inter alia

Print any form of writing


photograph or film - drawings - cartoons

Defamatory words spoken on:

Television radio are considered as libel

35

Broadcasting Act 1990

Stage plays or live theatre productions are regarded as libel


Theatres Act 1968

THE TEST - AS TO WHEN A STATEMENT MAY BE


SAID TO BE DEFAMATORY? ?
What a reasonable person might think based upon contemporary
standards
e.g. Liberace v Daily Mirror 1959
The court (Judge) decides if capable of being defamatory
MAIN WEAPON FOR MEDIA
Article 10 (1) of EUROPEAN CONVENTION ON H.R.
Freedom of speech
The right to to receive and impart information and ideas
BUT
Article 10(2) of Convention

36

Accepts there will be restrictions to these rights when necessary in a


democratic society
e.g. Defamation - Breach of confidence Official secrets aspects etc.

POSSIBLE TYPE OF COURT PROCEEDINGS:


SUMMARY PROCEDURE AT A COUNTY COURT
Defamation Act 1996
Heard before a judge sitting alone.
Judge will decide:
i)

If a statement is capable of being defamatory based upon


ordinary reader / listener

ii)

Was it defamatory

iii)

Could it reasonably be thought to refer to the claimant

If yes may Judge order damages up to 10,000.


UNDER D.A.2013 DID IT CAUSE OR WAS IT LIKELY TO
CAUSE SERIOUS HARM TO REPUTATION

IF HEARD BEFORE A JUDGE & at present normally a JURY at the


High Court
(Claims over 10000)
Judge decides if statement could be regarded as being defamatory
according to the reasonable man test
( The Court is said to be the reasonable person )

37

Then a jury decide if claimant was possibly defamed or not


and award any damages as seen appropriate by

them
(When introduced Sec. 11 DA 2013 removes presumption of a right to jury
trial UNLESS THE COURT DIRECTS OTHERWISE)

WHO MAY BE SUED?


Inter alia
Journalists
Producers - Editors
Sub- editors
Publishers
Printers
Distributors
Broadcaster
ALL ARE REGARDED AS PUBLISHERS
News vendors e.g. shops street vendors?
If such are told a statement is defamatory and still continue to distribute i.e.
publish??
WHO PAYS WHAT???? - OUT OF COURT SETTLEMENTS

38

Why?
See John Majors case against the New Statesman.
A CLAIMANTS POSITION? - Currently
MUST PROVE:
The published statement was POSSIBLY defamatory:
And POSSIBLY Defamatory of them - Only POSSIBLY NOT THAT IT
WAS
Publication to a third party
(Sec. 11 DA 2013 removes right to jury trial UNLESS THE COURT
DIRECTS OTHERWISE)

GROUP DEFAMATION:
Aspro Travel v Owners Abroad Group [1996]
i.e. Travel Co. operated by 4 members of a family. All could sue.
Once the Judge has decided that the statement is capable of being
Defamatory
it is assumed by the court that a statement is false and the publisher of it
must prove, as relative to a defendant,
the TRUTH of the statement or one of the other available defences.

39

(SECTION 2 OF D.A.2013 REPLACES THIS Thus No change

Truth of a statement is always an absolute defence and is


currently known as JUSTIFICATION
If so shown this is a defence to the court action even

though a
statement is still defamatory of the person
e.g. to say a person is a murderer is defamatory but if he has been
convicted the statement is regarded as being true the defence of
JUSTIFICATION would be upheld albeit such a statement it is still
defamatory
i.e. Truth is an absolute defence for a defendant

IN A LIBEL ACTION A CLAIMANT IS NOT


CURRENTLY REQUIRED TO PROVE:
Statement is false
There was any intention to defame (i.e. a statement may be published by
accident or negligence)
Newstead v London Express Newspapers [1940]
In a libel action that his reputation was damaged This is assumed once
it is shown that the statement was possibly defamatory of him

40

(Sec. 1 DA 2013 will change to a need for serious harm to reputation.)

IN A SLANDER ACTION the claimant must show reputation was damaged

EXCEPT:
When falsely accused of a crime which is punishable by death or
imprisonment
When implied suffering from a contagious disease which might cause
claimant to be shunned or avoided ( to be repealed by Sec 4 D.A. 2013
unless special damage)
i)

Implying un - chastity in a women (To be repealed sec.14 DA


2013)

Statements which disparages a person in trade business or profession

PUBLISHERS MUST BEWARE OF:

JUXTA POSITION OF STATEMENTS?


PUBLISHING ON DIFFERENT DAYS
i.e. Jigsaw identification

INNUENDO i.e HIDDEN MEANING?

41

A statement which to some may be innocuous but to others if they have a


special knowledge may have a defamatory meaning

Example:
In 1986 Lord Gowrie, a former Cabinet Minister, was awarded
substantial damages against the Star newspaper following
publication of an article
What expensive habit can he not support on an income of 33000?Im sure
Gowrie himself would snort at suggestion that he was born with a silver spoon
round his neck
Gowrie v Star Newspaper [1986]
To say a barrister would not act for an inveterate criminal.
i.e. NB Barristers must take cases as they come Known
as The Cab ranking Principle
Tolley v Fry & sons Ltd [1931]

DEFENCES:
DEFAMATION ACT 1996 SECTION 1:
(See Sec. 10 DA. 2013)
Available to anyone who was not the author publisher or editor of the
statement and
who took reasonable care in relation to its
publication and

42

who did not know and


had no reason to believe that whatever part he played in the publication
contributed to the defamatory statement
e.g. News vendors
In considering whether or not to accept the above defence the court look at:
The extent of his responsibility for the content of the statement or
the decision to publish
The nature and circumstances of the publication and
The previous conduct, character of the author - editor publisher

JUSTIFICATION A COMPLETE DEFENCE


(i.e. Substantially the truth of the facts which are
encompassed by the alleged defamatory statement
(THE TERM JUSTIFICATION IS TO BE REPLACED BY THE TERM
TRUTH SECTION 2 D.A. 2013)

BUT HE WHO ALLEGES MUST PROVE THE TRUTH!


Examples:
i.e. Gillian Tailforth v The Sun 1994
and Johnathon Aitken v The Guardian 1997
Both The Sun and The Guardian were able to show
the truth of their published statements
but see:

43

P.R. Williams (Robbie) v Northern & Shell PLC[2005]


Robert Dee v Telegraph Media Group [2010]
Exception to this:
( i.e. The truth)
REHABILITATION OF OFFENDERS ACT 1974
If a publication of a expunged conviction is made with malice
Nor
May absolute privilege be relied upon if during a court hearing such
conviction has been ruled inadmissible by the court
REASON?
To allow offenders to live down their past
AND APPLIES 10 YEARS AFTER A CONVICTION
WHERE
The period of detention awarded by a court has not exceeded 2.5 years
THUS:
Periods of detention in prison
OR youth offender establishments
Which exceed two & a half years
ARE EXEMPT FROM THE PROVISIONS OF THE ACT
and the conviction may be published

44

INFERENCES
Of a defamatory nature which may be drawn from certain reporting style
Such may not be regarded as fact and may lead to claim for defamation

Examples:
M&S v Granada [1998]
To state a person convicted only once of theft was a thief

INVESTIGATIVE MEDIA MUST BEWARE!


Must ensure reliable informants?

Journalists should be advised to keep notes signed statements check


credibility of witnesses
( Elton John v MGN ltd [1996]

FAIR COMMENT (- HONEST OPINION)


Re named as HONEST OPINION
Law remains the same
A statement of honestly held of opinion
based upon true fact(s)

- (SEC. 3 DA 2013)

45

published in the public interest


made without malice

It is for the defendant to show this


Examples:
To say In my opinion Jones is a disgrace to the human race
Is to state a fact not an opinion
argument

i.e. said without any supporting

But to say As his conviction shows Jones is a murderer of children


and is therefore a disgrace to the human race - This is opinion
based upon supportive facts

Telegraph headline:
Telegraph reveals damming new evidence on Labour
MP - (George Galloway)
Telegraph claimed this statement was opinion and thus fair comment but
court held it pointed to guilt
George Gall0way MP v Daily Telegraph Group.[1994]
i.e. It appeared as a statement of fact not opinion based upon fact

THE OPINION MUST BE HONESTLY HELD AND NOT MOTIVATED


BY MALICE
e.g. Singer Charlotte Cornwall was described as:

46

A middle aged star cant sing, her bum is too big and she has the sort of
stage presence that jams lavatories . Looks just as ugly with makeup
It was known by the defendants that she was 34 of normal weight and
appearance this was held to be motivated by malice

Half truths are regarded as Malice

i.e. They are not honest

(Walker Winsail PLC v Yachting World 199 )

IT IS NOT NECESSARY THAT AN OPINION STATED


ACCORDS WITH OTHERS OPINIONS
IF IT IS HONESTLY HELD
AND
IS MADE WITHOUT MALICE
COMMENT MUST BE in the PUBLIC INTEREST
BOOK STAGE FILM REVIEWS ARE ALL everyday examples of
FAIR COMMENT
This defence also covers letters to the editor (but beware of defamation
contained in such a letter?)

PRIVILEGE
(To be dealt with by sec. 7 DA 2013)

47

FAIR ACCURATE REPORTS OF CERTAIN PUBLIC OCCASIONS


Even defamatory statements cannot be subject of a successful action for
defamation.
When reported under circumstances which provide for

ABSOLUTE OR QUALIFIED PRIVILEGE


Defence provided in the interests of Free Speech to those whose role in
society is to raise issues and make criticism
ABSOLUTE PRIVILEGE (A P )
Even if false or malicious the statement is protected from civil court actions
for defamation in the following instances:
Statements made by a member of Parliament during a Parliamentary
sitting or committee of Parliament
Sect.9 Bill of Rights 1688
But not a Journalists report of such (i.e. are qualified)
Hansard reports i.e. Daily reports of parliamentary proceedings
Actual reports published upon the orders of Parliament
e.g. A white paper
The reports by the media upon court proceedings
(SECTION 7 D.A. 2013 REPLACES & EXPANDS TO ALSO COVER
Any Court outside the U.K and includes tribunals or bodies exercising
judicial powers of a state.)
WHY In the public interest open justice

48

this includes matters said and documents read out in an actual court
hearing
Such reports must be
FAIR ACCURATE AND CONTEMPORANEOUS
This defence applies to all U.K. courts and the EU Ct of HR
and E Ct of J and is the only time when media has
absolute privilege
Section 14 Defamation Act 1996 (Will be Sec 7 D A 2013)
NOTE WELL:
A.P. does not apply to matters shouted out in court or said after a court
hearing is ended
MEDIA MUST BE WAREY OF PARAPHRASING reports of
STATEMENTS spoken in court
e.g. Smith hit Jones with an iron bar - Should be reported as Jones
said Smith hit him with an iron bar i.e. then is fair and accurate
Such reports must always cover both sides of the case

CRIMINAL PROCEDURE AND INVESTIGATION ACT


1996 (sections 58 61)
Relates to the reporting of :
Pleas of mitigation in court proceedings made after a plea of guilty or a
finding of guilt but before sentence ?

49

i.e. Courts may issue an order effective for 12 months banning


publication of matters said in mitigation which are believed to
be derogatory of the character of a person (other than the accused)
and
which suggests that a persons conduct has been improper, criminal or
immoral and which is ether untrue or irrelevant to the sentence.

BUT NOTE
THIS PROVISION ONLY APPLIES
TO MATTERS NOT ASSERTED IN THE ACTUAL TRIAL ITSELF
SUCH WOULD ATTRACT ABSOLUTE PRVILEGE

QUALIFIED PRIVILEGE (QP)


Section 15 Defamation Act 1996 &Common law
(Sec.7 DA 201) EXPANDS UPON sec 15 Defamation Act
1996)

The journalists main protection when publishing potentially defamatory


material

50

Because a statement when spoken has absolute privilege it does not


follow that a journalist when writing a report does.
e.g. Reports by a journalist of what has been said in Parliament /
Committees have only qualified privilege
Non contemporaneous reports of court proceedings
Reports to attract QP must be published in a manner which is
FAIR ACCURATE and PUBLISHED WITHOUT MALICE

i.e. THUS
Other than when reporting a fair accurate and contemporaneous account of
court tribunal proceedings (Which attracts A P )
ONLY qualified privilege applies to the media when reporting matters which
themselves are said under circumstances which are given absolute protection
Aspects covered by QUALIFIED PRIVILEGE?
See Defamation Acts 1952/1996 Schedule 1
To be amended by Sect. 7 D.A. 2013
e.g. Official Police press statements

Also gives a wide definition of PUBLIC MEETINGS which are


covered by QP:

51

i.e. Lawful meetings held for discussion or furtherance of matters of public


concern
e.g. press conferences
Press conferences equates with public meeting
McCartan Turkington Breen v Times Newspaper [2001]

EXPLANATION OR CONTRADICTION?:

i.e. Publication of an alleged defamatory statement under


circumstances which have Qualified Privilege under shed 2 Defamation
Act 1996?

Must if asked publish a reasonable letter or statement by way of


contradiction or explanation

Reporting with Qualified Privilege also applies to:

E.U. member state legislatures

Statements of their governments

International organisations & conferences i.e. Fair accurate & without


malice e.g.. OXFAM UNICEF - BRITISH H EART FOUNDATION

Will be covered by S 7 D.A. 2013

THE REYNOLDS DEFENCE?

52

(To be replaced under sec. 4 DA2013)


INVESIGATIVE JOURNALISM
NOTE WELL!!!!!
REPORTING OF MATTERS
SAID TO BE IN THE INTEREST OF THE PUBLIC

BUT WHICH ARE NOT COVERED BY STATUTE AS ABOVE

AND
WHERE ACTUAL TRUTH CANNOT BE ESTABLISHED AS A
DEFENCE ???

In Reynolds v Times Newspaper[1998]


The Times FAILED TO prove there case
i.e. THAT A STATEMENT REPORTED IN THE INTEREST OF THE
PUBLIC
SHOULD THUS BE CONSIDERED AS HAVING
QUALIFIED PRIFILEGE
BUT
An appeal to House of Lords resulted in 10 points being set out for
journalists to follow and which if followed could provide a defence of
qualified privilege.

53

The Times had not followed the 10 points and thus whilst the existence of
the defence was established in principle, the Times lost
Louchansky v Times Newspapers Ltd [2001]
Alleged money laundering by Louchansky.
Times agreed the publication was defamatory but claimed Qualified
privilege under Reynolds i.e. THE 10 POINTS.
The Times lost they had not followed the most important points e.g.
contacted Loutchansky to obtain his version
BUT IT WAS HELD THAT it was Not necessary to conform to all 10
points, they were guides not hurdles to jump

Jameel v Wall Street Journal Europe (WSJ)[2006]


Money laundering issue to aid terrorists investigated
At the request of USA authorities the Saudi Government monitored a
number of prominent Saudi families
One of them, the claimant Jameel, sued the WSJ for defamation
BUT the WSJ claimed publication was in the public interest
THE HOUSE OF LORDS, ON APPEAL, HELD THE CLAIM NOT TO BE
ACTIONABLE FOR DEFAMATION
i.e. THE PUBLICATION HAD QUALIFIED PRIVILEGE AT
COMMON LAW

54

Lord Hoffmann in his judgement in Jameel preferred to refer to the defence


as - the Reynolds public interest defence
Jameel was later found not to be involved and sued again but lost.
THUS NOW HELD:
The media is entitled to publish defamatory material as
i)

part of a duty of neutral reporting if it is believed the published


statement has substance

AND
ii)

The publishers have acted responsibly thus without malice

iii)

in the interest of the public

NOTE:
The defence is currently precedent based(Will be retained but replaced by sec. 4 D A 2013 thus statute based)

ACCORD AND SATISFACTION


Publication by the media of a correction and an apology WITHOUT
PREJUDICE
AND which has been accepted by the claimant in full settlement
Prior to such publication must make the point with the claimant that
what is said or written in the apology is WITHOUT PREJUDICE

55

This should be agreed in writing - or the new statement may be


regarded as a further publication of the defamatory statement
Take care clients do not libel others in making the correction

OFFER OF AMENDS Defamation Act 1996


Statement unknown to be defamatory of the claimant and had no reason
to believe so
Defendant must make:
A written offer to make a correction and apology
To publish a correction in a reasonable manner
And
Pay suitable damages
NB. Ensure a written agreement to such publication obtained before the
publication .
Cassidy v Daily Mirror [1929] - Newstead v London Express Newspaper Ltd
[1940] - Artimus Jones

THE CLAIMANT AGREED TO THE PUBLICATION

Known as LEAVE & LICENCE

Essential to obtain a signed statement from the claimant should be


obtained not enough to state claimant agreed. Otherwise agreed to what?

56

OTHER DEFENCES
BANE (The Poison) AND ANTIDOTE (The Remedy to it)
This gives some protection to the tabloids who sell on sensational
headlines
e.g. Charleston v News Group Ltd [1995] (News of the World)
Re the Neighbours television programme
THE BANE i.e. HEADLINE (The Poison!)
STREWTH! WHATS HAROLD UP TO WITH OUR MADGE
ANTIDOTE i.e. the remedy?:
The text beneath the headline showed their two faces superimposed on
puppets in what could be taken as a pornographic pose. It went on to
state that this was part of a computer game which the two stars knew
nothing about
This defence was successfully argued and thus negatived the bane and
the claim for defamation failed
But beware not always the case.
e.g. REPETITION OF RUMOURS?
Major v the New Statesman [1993]

57

THAT THE PROCEEDINGS AGAINST THE CLAIMANT WERE NOT


COMMENCED WITHIN THE PERIOD OF LIMITATION

i.e.12 months Limitation Act 1980

NOTE WELL:
Summary of main Changes via Defamation Act 2013:
Section 1 - Serious Harm to be shown
Section 2 - Justification defence to be known as Truth
Section 3 - Statutory defences of Honest opinion re Place common law defence Fair comment
Section 4 Responsible journalism defence on
matters of public interest i.e. Replaces
common law Reynolds defence
Section 5 -

Operators of Websites - Trolling on line


Comments. Defence for website owners who
allow a user to comment providing they
provide information which allows
complainants to resolve matters with the
author directly.
(May be prosecuted under Malicious
Communications Act 1988 Distress or
Anxiety caused)

Section 8 Section 9 Section 11 -

Single publication rule


Libel tourism
No presumption of trial by jury

58

TEST YOUR KNOWLEDGE AND UNDERSTANDING


1.

Define defamation?

2.

Define the following terms:


b) Slander?
c) Libel?
d) Give examples of (a) & (b)

3 In which courts may claims for defamation be heard and what


determines a particular venue?
4.

List the parties who may be sued in an action for libel against a
newspaper

5.

What do you understand by the terms Bane & Antidote?

6.

Detail the main provisions of the Rehabilitation of Offenders Act 1974

7.
8.

Define the defence of FAIIR COMMENT


What elements are essential to successfully plead the REYNOLDS
DEFENCE of common law privilege? Identify relevant case law

9.

A woman pleads guilty, in a magistrates court, to stealing goods


worth 30 from a supermarket. She tells the court that she stole to feed her
two hungry children that day, after her benefit money ran out.
She is placed on probation for 2 years.
One local newspaper, in its first available issue, reports the court case
fairly and accurately, except that it names the wrong supermarket.
Another weekly paper carries, on the same day, a report of the case
which is fair and accurate and gives the same quote and detail but for
the fact that it states the value of the stolen goods to be 300.
i)

Explain the position in defamation law of both


newspapers, with regard to these two particular court
reports?

59

ii)

May either or both be sued successfully or libel?

In your answer, set out what the law requires of reports of court cases
if, when publishing such reports, a media organisation is to enjoy
protection from a libel action 10. Under the headline, The shame of Willow Close a local newspaper
runs a story about partner-swapping couples living in a cul-de-sac in its
area. It does not name any of the couples alleged to be involved, or include
any house numbers. A couple who live in the road, and deny any
involvement in such behaviour, threaten to sue the newspaper for libel.
Consider its position.

11. A reporter hears that a local solicitor has retired after many years in
practice. He does not check the rumour but writes a story which is
published saying that the solicitor has retired. The rumour turns out to be
untrue. May the solicitor take any action against the newspaper for libel or
under any other law? State your reasons.

12. A reporter travelling on a train a few seats away from a councillor


witnesses that the councillor is unable to produce a valid ticket when
approached by an inspector and is required to pay the penalty fare. The
reporter writes a story for his newspaper.
It appears under the headline, Councillor fined for fare dodging.
Do you consider this a safe headline? If not, give your reasons and write
what you consider to be a safe headline.

60

MALICIOUS FALSEHOOD

THE PUBLICATION OF A FALSE AND MALICIOUS STATEMENT


Which if
IN PERMANENT FORM IS LIKELY TO CAUSE PERSONAL
FINANCIAL DAMAGE
IN SPOKEN OR PERMANENT FORM IS LIKELY TO CAUSE
FINANCIAL DAMAGE TO THE CLAIMANT IN HIS PROFESSION
OR CALLING

Differs from defamation in that it does not need to lessen


respect for the claimant as required in defamation

61

Not necessary to show actual damage


Kaye v Sunday Sport [1990]

Grappelli v Block [1981] Did in fact show quantum of damages


and express malice

MALICE:
The court will regard a statement as being malicious where:
The statement was known to be untrue
Was Made reckless as to truth
Or with an improper motive
Joyce v Sengupta [1993] - Published in Today- (false hence malicious)

INJUNCTIONS:
Mal F. & Defamation?
May be granted to prevent disclosure of confidential material
BUT
Courts should not grant an injunction if a defendant,
Reasonably, claims he will defend the truth of the defamatory or
malicious statement
Account must be taken of relevant privacy codes

62

All reasonable steps must be taken to notify intention to apply for an


injunction . - Section 12 Human Rights Act1998
The balancing of Rights Article 10(i) & 10(ii)?

TO SUCCEED IN MALICIOUS FALSEHOOD


THE CLAIMANT MUST PROVE:
The Publication of a statement
That the Statement was untrue
Legal malice on part of the defendant

FALSE & MALICIOUS STATEMENTS


DISPARAGING GOODS?
Yachting World?- Remember this was dealt with as defamation BUT
No legal aid available since Access to Justice Act 1999)
Legal time limitation for taking action - 1 year Limitation Act 1980

DIFFERENCE BETWEEN DEFAMATION & MALICIOUS

FALSEHOOD:
Libel

M.F.

63

Statement must be false


There must be probable a financial loss
Must be damage to reputation
Publication must be malicious
Subject must be a living person

NO
NO
YES
NO
YES

YES
YES
NO
YES
NO

TEST YOUR KNOWLWDGE AND UNDERSTANDING


1. Define Malicious falsehood (M.F.)
2. How does it differ from defamation?
3. Give two leading case examples of M.F.
4. Describe the nature of Legal Malice
5. What do you understand by the term Injunction?
6. What impact has the Human Rights Act 1998 had upon the obtaining
of injunctions?
7. What must a claimant prove in order to succeed in a claim for M.F?
8. A reporter hears that a local solicitor has retired after many years
in practice. He does not check the rumour but writes a story which is
published saying that the solicitor has retired.
The rumour turns out to be untrue. May the solicitor take any action
against the newspaper for libel or under any other law? State your
reasons.

CONFIDENTIALITY & PRIVACY (Civil law matters)

64

OVERVIEW:
THE SAME ??
NOT IN LAW!!
BREACH OF EITHER IS A CIVIL MATTER
Starting point for Confidentiality?

(Prince) Albert v Strange &Others [1849]??

CONFIDENTIALITY: DEVELOPED BY EQUITY Often commercial aspects &


contract based
LAW OF CONFIDENTIALITY WILL NOT PROTECT
INIQUITOUS BEHAVIOUR
i.e. Crime or wrongful behaviour related to what is claimed to be a
confidential matter.

Frequently relates to investigatative journalism

65

Confidentiality arises automatically out of the circumstances of


a relationship under which the information is acquired

Examples:
Employment Doctor Lawyer relationships
i.e. Such a relationship automatically gives rise to situations where the
obtaining of information is involved.
e.g. The information may, be of a Private nature.!

Privacy arises out of the nature of


Information itself

i.e. Article 8 ECHR - Right to Respect for private and family life
Examples:
Campbell v M GN [2000]
Von Hanover v Germany [2005]
Hello magazine v Michael Douglas & K.Z. Jones Privacy??

BUT
S.8 protected rights may be overridden
i.e. Qualified
INFORMATION MAY BE PROPERTY and often is in business

Article 10 (1) of Convention on Human Rights


Right to to receive and impart information and ideas

66

i.e. Freedom of speech

Total freedom anarchy.

Total control tyranny?

THUS NOT TOTAL & UNRESTRICTED FREEDOM


i.e. Article 10(2) of the Convention
Restrictions to these rights when necessary in a democratic society
Thus may be overridden
Also - s7 Human Rights Act 1998
i.

In interest of National Security, its economic wellbeing or safety of


the public

ii.

Prevention of crime or disorder

iv)

Protection of:
a)

Health or morals or

b)

Rights & freedoms of other persons

Public interest? Campbell v MGN [ 2000]


HRH Prince of Wales v Ass Newspapers [2006]

67

BREACH OF CONFIDENCE:

In order for material to be regarded as ACTIONABLE


The information must meet three criteria : (Per - Coco v AN (Engineers) Ltd. [1969] )

1. HAVE BEEN IMPARTED IN CIRCUMSTANCES


WHICH IMPOSE AN OBLIGATION OF
CONFIDENCE
Employment (any type of ) in general carries this obligation
Peter Wright ex MI5 Author of Spycatcher
Stephen Laurence enquiry
Schering Chemicals Ltd v Falkman Ltd [1981]

2. HAVE THE QUALITY OF CONFIDENCE


Not be in the public domain
( i.e. Published to at least one third party)
Re book Spycatcher Peter Wright - Ex M15
The AG v Guardian Newspaper Ltd [1987]
David Shayler M15`
R v Shayler [2003]
Creation Records Ltd v News Group Newspapers [1997]
(Oasis band photo shoot)
AND

68

3. There must have been an UNAUTHORISED USE OF


THE MATERIALTO THE DETREMENT OF THE
OWNER OF THE INFORMATION
NOTE WELL:
PUBLICATION OF INFORMATION RECEIVED BY A JOURNALIST IN
BREACH OF CONFIDENCE IS ALSO A BREACH BY THOSE WHO
PUBLISH IT
Subject to any appropriate defence e.g. overriding public interest i.e. need to
set record straight

BUT:

Not everything of interest to the public is in the interest of


the public
INJUNCTIONS:
a) Rule against PRIOR RESTRAINT Blackstone 1765

b) Section 12 Human Rights 1998


May be Interim or Permanent

Robert Maxwell? Watford Observer case 1982


Sun Printers v Westminster Press Ltd [1982]
N.B.

69

a) INTRIM INJUNCTIONS AGAINST ONE IS AN


INJUNCTION AGAINST ALL WHO KNOW ABOUT IT OR
REASONBLY SHOULD KNOW
Observer & Guardian fined 50,000 each - Contempt of Court Re Spycatcher case 1989
b) PERMANENT INJUNCTIONS ARE THOUGHT TO BIND
ONLY THOSE AGAINST WHOM OBTAINED THUS
INJUNCTIONS NOW MADE contra mundum
Breach of an injunction is CONTEMPT OF COURT @
COMMON LAW
MATERIAL INJUNCTED IN G. BRITAIN & THEN LATER
PUBLISHED ABROAD???

As in the Spy Catcher scenario


Per European Court of Human Rights - 1991

DOMESTIC RELATIONSHIPS?
Argyll v Argyll [1967] (Husband & wife)
Stephens v Avery [1988] (Confidences between friends
Privacy?)
Barrymore v Newsgroup Newspapers Ltd [1997]
( Kiss & tell)
But - Lennon v News Group Newspapers & Twist [1978]?

TELEPHONE TAPPING: - Criminal offence

70

Regulation of Investigatory Powers Act 2000 - (RIPA)


(Hacking into phone telecommunication systems either public or
private)
Up to 2 years imprisonment and or a fine. Applies to both mobile
hacking and hacking of land lines
Private systems
Sender or person receiving may sue if the interception without
lawful authority
Leveson Inquiry;
Inquiries Act 2005 LJ Leveson 14th Nov. 2012
i)

Examine culture, practices & ethics of the


media

ii)

Relationship of the press within the public,


police & politicians
Levesoninquiry.org.uk

Recommendations impact upon FREEDOM OF THE PRESS??


LONG RANGE PHOTOGRAPHY:
Duchess of York - France?
Duchess of Cambridge France?

71

FOUND CONFIDENTIAL DOCUMENTS?


Per lord Goff
AG v Guardian Newspapers (No2) [1990]

PREVENTION OF CORRUPTION ACT 1906


Payments made to induce a person to divulge confidential material

PUBLIC INTEREST DEFENCE


The balance - i.e. Art 8 or Art 10?
Woodward v Hutchins [1977] - Tom Jones (Misleading public)
Cork v Mc Vicar Daily Express - October1995
(Public interest may be held to override a breach of contract or a
breach of confidence )
Times Newspapers Ltd v MGN) [1993] (Daily Mirror) - Thatcher years
(Thatchers view of John Major - Public interest defence)

PROTECTION OF A JOURNALISTS SOURCES


Goodwin v UK [1996] Know as the Engineers case

PCC Editors Codes of Practice ?

72

WHEN MAY JOURNALISTS BE ORDERED TO HAND OVER


RESEARCHED MATERIAL/ PREMISES SEARCHED
Contempt of Court Act 1981
Police & Criminal Evidence Act 1984
Terrorism Act 2000
Official Secrets Acts

PRIVACY
Claims to prevent publication of material on the basis it is confidentiality
may in effect be claims to a right to the protection of personal privacy
Campbell v MGN [2000]

Privacy Back door libel for celebrities ?


Terry{ previously LNS} v Persons unknown [2010]
Human Rights Act 1998 (HRA)
European Convention thereby introduced
Article 8 (1) - ECHR
Everyone has the right for his private and family life, his home and
his correspondence
Article 8 (2)

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There shall be no interference by a public authority with the exercise


of this right except such as in accordance with the law and is
necessary in a democratic society in the interests of:
i) National security
ii) Public safety
iii) Economic well-being of the country
iv) Prevention of disorder or crime
v) Protection of health or morals
vi) Protection of the rights and freedoms of others
As previously stated claims to prevent publication of material on the basis it
is confidential are in effect often claims to the right to the protection of
personal privacy or to protect private property or both.
Converse? i.e. claims for an alleged breach of privacy may be to protect
reputation.
GOOGLE & THEIR OTHER BUSINESSES YOU TUBE G MAIL
Information Commissioners Office (ICO) state Data Protection Act
provisions breached- Google keep, use & pass on.
WEBCAM HACKERS?
EXAMPLES:
The various aspects of restrictive reporting legislation supporting
privacy? (e.g. Children & young Persons Act 1933
Victims in Sexual offences)
Secret formulae Doctor Lawyer
Confidentiality/Privacy?
Wireless Telegraphy Act 1949
Regulation of Investigatory Powers Act 2000

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i.e. interception of Mail public/private.

Phone or other telecommunication systems

Also covered in Codes of Practice.


News of the World 2007 Royal editor , Clive Goodman given 6 months
imprisonment for offences under Section 1 of the act relating to the
interception voicemail messages of members of our royal family
NOW Leveson Inquiry
Journalists recording telephone calls???
80% of phone hacking on behalf of law firms telecom companies and
insurers. Leveson knew report of Serious Organised Crime Agency
(SOCA) 2008.
Devices fixed to relevant signal box by trained telecoms engineer.

STATUTORY PROTECTION OF PRIVACY??


Kaye v Robinson & Another [1990]

PRIVACY v FREEDOM OF EXPRESSION?

Robertson & Nicol Media Law 5th. Ed. highlight the following three cases
as being instrumental in developing the approach now taken by courts.
They are described as involving a lying and petulant model, a minor Euroroyal and a pair of Hollywood luvies.
Campbell v MGN [2004] ( H.L.)

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Von Hanover v Germany [2004]


(Princess Caroline Monaco)
Douglas v Hello Magazine [2001 2007] -Michael Douglas & K.Z
Jones
NO precise CAUSE OF ACTION:
Thus Cause of action by way of CONFIDENTIALITY
but the obligation of confidence being abused by unauthorised use - Coco v
AN Other to its replacement by a two way test:
Held in cases involving misuse of private information the court should
apply a two way test:
i)

Did the claimant have a reasonable expectation of privacy


regarding the information?

And if yes
ii)

Is the persons right to privacy more important, in all the


circumstances, than someone elses right to freedom of expression
under article 10 E.U.C. of H.R?

Campbell v MGN [2004]


i.e. Did the information contribute to public debate of high interest or not
in Campbell the photographs did not
Photographs taken on a private occasion and disclosed private
information. Thus breach of art.8.
e.g. Douglas - right to sell pictures was similar to selling a trade secret
and thus confidential and a breach occurred.

PRIVACY IN PUBLIC PLACES?

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Campbell Von Hanover

PRIOR NOTIFICATION OF PUBLICATION


Mosley V News Group Ltd [2008]

CHILDREN?
i) Re X (a minor)[1975 See Lord Dennings response
ii) Murray v Express Newspapers Ltd [2008] (JK Rowling)

CODES OF PRACTICE
PRESS COMPLAINTS ? - OFCOM - BBC
i.e. Privacy Harassment Hospitals Hidden listening devices or
cameras long range photography -

DATA PROTECTION Protection of privacy ??


DATA PROTECTION ACT 1984
Applies to computerised records of personal data
DATA PROTECTION ACT 1998
Applies now to structured manual records of personal data
not just computerised records

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Eight principles
Media data problems??
NB
Campbell v Mirror Group Newspapers Ltd [2004]
Data included the photographs of Campbell leaving N.A. premises
INFORMATION COMMISSIONER
Data keepers (i.e. Controllers) must register with Commissioner.
All who keep data must comply with the eight principles
If requested, in general, must advise those on whom data is kept
Powers of entry and inspection.
Google gathered vast amount of photographs of homes for its Street
View project. Gathered other data from texts & e mails.
In 2010 told delete but later discovered a number of hard drives it had
missed Accidentally.
IN June 2013 given 35 days to destroy or face contempt of court
action if it does not produce a certificate of destruction to ICO. Just a
slap on the wrist??

Courts? Clerk to a court determines disclosure policy but should


supply addresses of accused?
NB failure to identify correctly
Defamation Newstead case!

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POLICE - (ACPO GUIDELINES)


Victims witnesses next of kin in crime road accident etc cases are
entitled to retain anonymity if desired except in exceptional
circumstances
DEAD PEOPLE?
GLOBAL ASPECT?
France:
Ultimatum given to GOOGLE by French National Commission on
Computing and Freedom Explain how it uses information i.e.
tracking data from You Tube Gsmall Google+
Users of Google information no option to opt out.
********
TEST YOUR KNOWLEDGE & UNDERSTANDING
1. Fill in the missing words:
i)
ii)

Confidentiality arises out of.. information was


imparted
Privacy arises out of.. the information
itself

2. Give three examples of when the requirement of legal confidentiality


arises between two parties in every day life
3. Elements essential to any claim for breach of confidence were
established by the legal precedent ???????
i)

Name this decided case

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ii)

List the essential elements

4. Define Injunction
5. Where confidential information has be injuncted what is the legal
position if the material is subsequently published outside the
jurisdiction of the English Legal system?
6. Give examples of news items which may be described as:
i)
ii)

Being in the public interest


Of public interest

7. What does the PCC code of practice advise by way of the use of long
range photography?
8. How does the Regulation of Investigatory Powers Act 2000
impact upon a journalists activities?
9. A two way test has been established to determine misuse of
information in privacy cases. What are they?
10.How did the Data Protection Act 1984 impact upon the courts
Decision in the case of Campbell v MGN Ltd?
11.A reporter learns, in an unofficial conversation with the personal
secretary of the manager of a firm.
The secretary states that the company has made a decision
to change the design of one of its well-known products and
intends to take on 100 more workers when the new design is
launched.
A regional TV producer asks your advice as to any
legal problems which may arise if this information is broadcast
in the evening news program
12. A reporter investigating claims of fraudulent practice telephones a
second hand car dealer as a member of the public and records the call
without informing the dealer that she/he is a reporter or that the call

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is being taped.
a)

What is the legal position of the reporter in this scenario?

b)

What does the PCC Code of Practice say about


clandestine listening devices and misrepresentation?

c)

How does the code apply to this situation?

13.) In what circumstances does the 1981 Contempt of Court Act


require a journalist to reveal a confidential source of
information?
ii) What does the PCC Code say about confidential sources?
iii) Give one example of a journalist refusing to reveal a source.

YOUNG PERSONS IN THE NEWS


The codes of practice i.e. OFCOM PCC The BBC Trust, together with
certain specific pieces of legislation, embrace aspects of anonymity for
young persons (Juveniles)
WHY??
YOUTH COURTS ARE PRESIDED OVER BY MAGISTRATES OR A
DISTRICT JUDGE
THEY DEAL WITH THOSE PERSONS WHO HAVE NOT REACHED
AGE OF 18 AT THE TIME OF COMMISSION OF AN OFFENCE
RANGE OF OFFENCES DEALT WITH??

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Rape - Certain offences of rape due to Sexual Offences Act [2003] wider
definition of the term may now be dealt with at discretion of court.
AGs Reference (No 92 of 2009)
District Court Judges often sit on such cases
W v Warrington Magistrates Court [2009]

REPORTING IN THE MEDIA DETAILS OF YOUNG PERSONS


INVOLVED IN CRIMINAL & CIVIL MATTERS?
Child
Under 14 years of age
Young person
Reached 14 but under 18 years of age
Applicable legislation : includes inter alia
Children & Young Persons Act 1933 ( C&YP Act 1993)
Criminal Justice & Public Order Act 1994 (CJ&PO Act 1994)
Crime (Sentences) Act 1997 (C(S) Act 1998)
Crime and Disorder Act 1998 (C&D Act 198)
Youth Justice & Criminal Evidence Act 1999 (YJ&CE Act 1999)
Serious Organised Crime and Police Act 2005 (SOC&P Act 2005)
Human Rights Act 1998 (HR Act198) ( In particular sections 8 & 10 of
the European Convention of Human Rights )
Children Act 1989

MEDIA REPORTING OF:

YOUTH COURTS (Y.C.)

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Previously known as Juvenile Courts. Part of the Magistrate Court


system
Main, relevant, provisions under this act are sections
39 47 - & 49 Children & Young persons Act
1933
In general public are excluded from the court but bono fide
members of the media news gathering agencies are allowed
Sect.47 C.&Y.P. Act 1933
Journalists are regarded as the eyes and ears of the public and
in this respect are the guardians of the publics right to know
i.e. open justice
Overriding authority of a court to exclude the media??
(Distinction between public and bona fide members of the media?)

IDENTIFICATION OF YOUNG PERSONS WHO APPEAR IN YOUTH


COURT PROCEEDINGS?
Defendants witnesses victims?
Unless the court order otherwise all have immediate
AUTOMATIC ANONYMITY
BUT
Todd v DPP- 6th October 2003 ends when young person reaches 18
AND
NOT APPLICABLE TO DEAD CHILDREN.
No such power is vested in the court per Judge Grigson
Ex P Crook [1995]

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What may be reported?


FAIR ACCURATE & CONTEMPORANEOUS REPORTS OF WHAT IS
SAID IN COURT BUT THIS MUST NOT IDENTIFY ANY YOUNG
PERSON
i.e. ACCUSED/ VICTIM/ WITNESS
S. 49 C&YP Act 1933 provides what may not be published
Name, address, school or anything which is likely to identify the child or
young person
i.e. No reporting details of Parents relatives associates small
community in a way which would identify.
Any photograph or moving picture of or including such persons

Beware such may identify by Jigsaw


Evening Herald Plymouth Magistrates court 2003 fined 2500
i.e. A photo printed with young defendants face blocked out but persons could
still identify through association with other aspects of the photo
Maximum fine under the act 5000. Prosecution requires the consent of the
A.G.
Under section 49 C.&Y.P. Act 1933 this anonymity may be lifted when:
a) The Y C court lifts the automatic ban to AVOID INJUSTICE to
any young person involved in proceedings
b) AFTER CONVICTION the anonymity may be lifted by the
Y.C. in the public interest, in order to permit the identification
of a youth offender

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i.e. Where conviction follows a serious offence in order to alert the


public to the identity of an offender in order to prevent possible re
occurrence
The Crime (Sentences) Act 1997
A magistrate sitting alone may lift as above (YJ & C E Act
1998)
c) Also may be lifted on the application of the Director of Public
Prosecutions in order to trace a young person charged with and
wanted for a serious violent or sexual offence ( the sentence of
which may be 14 yrs or more if an adult -- CJ&PO Act 1994)
EXAMPLE:
R v Lee [1993]
A 14 year old took part in robbery whilst on bail for rape
The existing order was lifted In the public interest
d) Persons who become 18 years of age during youth court
proceedings lose anonymity thus identity may be reported even
though the trial continues in the youth court
Todd v D of PP [2003]
BUT
Media must beware of jigsaw identification of other young persons
in the case!!!

APPEALS FROM YOUTH COURTS?


The automatic anonymity still continues to apply!

85

REPORTING IDENTITY OF YOUNG PERSONS WHO


APPEAR IN ADULT CRIMINAL or THE CIVIL
COURTS
AS WITNESS VICTIM or as an ACCUSED??
NO AUTOMATIC ANONYMITY ARISES

EXAMPLES:
Young persons charged with serious offences e.g. murder,
manslaughter or serious rape must be tried at a Crown Court.
OR
In an adult court when jointly charged with an adult with a criminal
offence
BUT
Sect. 39 C&YPA 1933 gives the adult court power to impose the
same anonymity as in a Youth Court. i.e. as victim - witness accused or as
a co - defendant with an adult. But not the adult
Good reason must be shown by the court as to why such an order is
imposed
Reporting name etc of young child victims?
Young persons almost 18 yrs of age?
What of family considerations??? (See Press Codes Of Practice - code
5)
i.e. effect upon other members of family?

86

N.B. Any court imposing an order under Section. 39 may lift it

DEAD CHILDREN ??
No anonymity
This was decided per Judge Grigson at the Old Bailey (Central Criminal
Court London) 1994.
Many other judges have concurred
Also the Judicial Studies Board in its guidance to magistrates have so
stated

But see Press Complaints Commission Codes of Practice Intrusion


into grief or shock

RESTRICTIONS ON IDENTIFICATION OF ADULT


DEFENDANTS IN AN ADULT COURT WHERE YOUNG
PERSON(S) INVOLVED) ???
Court orders for non publication of defendants identities in order to
prevent identification of child victims or witnesses where an order
Under sect 39 C&YP Act 1933 is in place???
Such orders not permitted to avoid identification of young persons. It
is for the media to decide how to avoid such identification
See Codes of Practice.

ANONYMITY FOR YOUNG PERSONS BEFORE


COURT PROCEEDINGS COMMENCE ??

87

YJ&CE Act 1999 section 44 makes provisions for anonymity (same


provisions as Sect 49 C&YP Act 1933) once commence a criminal
investigation commences

This provision HAS NOT BEEN implemented


Section 25 of the Act - Special measures exclude anyone from court when
child or vulnerable person involved Does not routinely apply to media
reps.
If such order made the media may appoint 1 member to remain

ANTI SOCIAL BEHAVIOUR ORDERS


(ASBO) Crime & Disorder Act 1998
See Home Office Guide to Anti Social Behaviour Orders

To be replaced by CRIMBO
i.e. Criminal Behaviour Orders & Crime prevention Injunctions

MAY BE APPLIED TO PERSONS OF ANY


AGES.
Examples:
i)

ASBO given to widow of 87 years


(See Daily Mail 11th April 2012)

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ii)

67 year old pensioner accused Police of


corruption and threatened a Methodist
minister. Called a former mayor an SS Officer.
( See Daily Mail Jan. 24th 2012)

Against young persons?


Applications for orders are CIVIL not criminal matters
May be brought against any person (over 10 years of age) for
objectionable conduct?
The standard of proof required in order to obtain is BEYOND A
REASONABLE DOUBT.
Why? - (A breach is a criminal offence matter )
NO AUTOMATIC IDENTITY BAN APPLIES RE AN ASBO placed on a
young person
but
order(s) will generally be in place re the criminal offence in a youth court
(i.e. via sect. 49 CYPA such is automatic)
A court may however impose a sect 39 C&YP Act 1933 ban upon reporting
the identity of the Y.P. additional to any criminal
offence in which the Y.P. is involved.
Re s 39 orders Courts must show good reason for applying.
Two types of ASBO:
1.Applications by Local Authorities police registered social landlords
AGAINST A Y.P. OR AN ADULT
If the application is solely for an ASBO and is not running alongside a
criminal offence, may be made against young persons in

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adult magistrates court


county court
OR
2. May be applied in a YOUTH or ADULT COURT if following directly
upon a conviction for a criminal offence. This is known as
A BOLT ON ASBO

Alternatively Y.C. may lift the automatic anonymity under


sect. 49 thus allowing full reporting of both the ASBO &
the Criminal offence.
N.B.
If an ASBO is made as a bolt on to a criminal offence in a youth court
and no order is made re non identification of the ASBO? - media must
beware of Jigsaw identification
BREACH OF ASBO?:
Young persons who breach an order will normally be dealt with in a
youth court
No automatic anonymity - under Serious Organised Crime & Police
Act 2005 but a court may impose sect 39 orders.
N.B.
If the court does make a s.39 order it must state its reasons.
Serious Organised Crime and Police Act 2005
(i.e. no point in making an order and then withholding name etc.)
MEDIA EXCLUSION FROM THE YOUTH COURT?

90

This power is normally exercised when


In the interests of justice
Taking indecent evidence
Hearing matters which effect public decency

REPORTING COURT PROCEDINGS WHICH


DEALWITH FAMILY MATTERS AND WHICH
INVOLVE CHILDREN?
e.g. Care protection and supervision of contact with children
Media may attend unless court decide otherwise
But not the public
Children Act 1989

REPORTING OF SUCH
Only the following 4 points may be published of such matters:
(Magistrates Courts Act 1980 section 71)
Names & addresses of the parties and witnesses other than those
under 18years (Beware of Jigsaw identifications.)
The grounds of the application and a brief statement of allegations
defences and counter allegations
Submissions upon points of law and the court decision on this

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The final decision of the court and any observations made by the
court

ADOPTIONS
These are regarded as family proceedings held in the High Court or
before magistrates.

Magistrates must hear in private - Media position??

Any media reports ARE regarded as contempt of court

Young persons have anonymity and an offence to publish anything


which identifies

WARDS OF COURT
Cases involving wardship of young persons are held usually in
chambers County court or Family Division of the High Court.
Section 97 Children Act 1989 gives anonymity to a child involved
Contempt of court to publish information re any child involved.
The Sun newspaper was fined 5000 and the editor 1000 for
publishing extracts from a medical report.
Proceedings may be reported when a judge permits but no
identification of young persons must be made

92

NOTE WELL:
INJUNCTIONS OR SECTION 11 ORDERS UNDER THE CONTEMPT
OF COURT ACT 1981 SHOULD NOT BE PLACED UPON THE MEDIA:
DIRECTING THAT THEY MUST NOT PUBLISH
IDENTITY OF AN ADULT DEFENDANT IN A
CRIMINAL TRIAL IN ORDER TO PROTECT
IDENTIFICATION OF A CHILD NOT INVOLVED IN THE
CASE ????
Held: Press freedom should not be inhibited in this way
Re S (A child) [2004]

TEST YOUR KNOWLEDGE AND UNDERSTANDING


1. Define
a) A young person?
b) A child?
2. Who presides over youth courts?
3. What restrictions apply regarding reporting
the identities of young people involved in Y.C. proceedings?
To whom do such restriction apply and when do they come
into effect?

93

Name the relevant section and act of parliament concerned


4. List the situations when the reporting restrictions may be lifted by
magistrates at a youth court
5

What power does an adult criminal court have to prevent the


media from identifying children or young persons involved in
its proceedings? Explain the scope of this power. What is the
medias legal position as regards identifying such individuals if
this power is not invoked?

What do you understand by the term ASBO and to whom may such
apply?

Who may apply for such an order and before which court

What is the standard of proof required by such applicants?

Two 14 year old boys are due before a magistrates court where the
local council is to apply for anti-social behaviour orders against them
under the Crime & Disorder Act 1998 prohibiting repetitions of late
night rowdy behaviour on the estate where they live. No criminal
charges are involved at this stage.
a)
What type of magistrates proceedings will hear the
application?
b) May the boys be named in a newspaper report of the
proceedings? Explain the relevant law.
c)
If the boys infringe the anti-social behaviour order, which court
will normally hear the case?
d) Give details of any reporting restrictions which will apply under

10

Under what circumstances may the media be required to leave a Y.C.


during a trial?

11 A case heard by a youth court is appealed to the crown court. The

defendant is still under 18 yrs. What may you report?

94

SEXUAL OFFENCES - REPORTING BY THE MEDIA?


MEDIA MUST BEWARE!!!
ANONYMITY APPLIES AUTOMATICALY FOR LIFE
TO
MALE & FEMALE VICTIMS Not defendants
R (Press association) v Cambridge Crown Court [2012]
FROM THE MOMENT AN ALLEGATION HAS BEEN MADE
NO MATTER TO WHOM!
This even applies as between consenting parties i.e. under age parties)
Sexual offences (Amendment)Act 1992
INCLUDES:
RAPE (i.e. All assaults involving any form of penetration)
AND
OTHER OFFENCES INVOLVING A WIDE RANGE OF SEXUALLY
ORIENTATED ACTVITY:
Sexual Offences (Amendment) Act 1992 anonymity for greater number of
offences
Youth Justice and Criminal Evidence Act 1999 Common reporting
restrictions for all Sexual Offences

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Sexual Offences Act 2003 Consolidated & is now the main Act Extended
to include trafficking for sex breach of trust resulting in sex aspect with
achild

WHY ANONYMITY??
Heilbron Report- 1975 Sexual Offences (Amendment Act
1976
THUS:
No publication of :

Name address School place of work

Nor any other material which might identify


ANONYMITY WHICH APPLIES AUTOMATICALLY ONCE A
COMPLAINT HAS BEEN MADE
Remains in force
If the case or allegation is withdrawn
Even if Accused found not guilty
If accused is found guilty of a non sexual offence such as an assault but
not the sexual offence
Dead victims?

e.g. murder + sexual offence - NO ANONYMITY

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i.e. No longer a legal person

NB
April 2012 - Ched. Evans Sheffield Uniteds top scoring footballer found
guilty of rape and sentenced to 5 yrs imprisonment. Numerous Facebook &
Twitter entries by his fans followed naming and abusing the victim.
November 2012 - Nine persons appeared at Prestatyn Magistrates Court.
Their on line entries identified the victim and fined 624 each
See Daily Mail Tuesday 6th November 2012
December 2012, Director of Public Projections released a set of interim
guidelines outlining regulations for communications sent via social media,
such as Twitter, and when prosecutions are likely to take place. i.e.
Harassment / Threats.

LIFTING OF ANONYMITY:
MAY BE
At a trial (following application by media) when anonymity would result
in a substantial & unreasonable restriction upon reporting
R v Hutchinson [1986]

Following a successful application to a court, by defence, to prevent


injustice to a defendant

When a person is tried for wasting police time or for perjury

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Where the victim, at least 16 years of age, gives up the right to life time
anonymity IN WRITING. This must be without any pressure and thus
entirely voluntarily. Following this publication of the identity may be
made.
(SO(A)Act 1992)

NB

Victims under 16 years of age cannot give this


consent -

98

MEDIA MUST BEWARE OF:


Jigsaw identification by the naming of other persons etc. and thus a link
is made
Use of terms such as INCEST which implies close relationship.
(The PCC code of practice (Editors code) draws attention to this
aspect)
Anything which may imply a relationship with an accused and thus
result in identification

A BREACH OF THE LAW AS TO ANONYMITY MAY


LEAD TO:

99

Criminal prosecution - Enforced thro S.O. (Ammd.) Act 1992 &


subsequent A of P
AND
Civil action by the aggrieved party sue for damages
i.e. The Tort of breach of a statutory duty
e.g. A rape victim was awarded 10000 damages for publication of
information which allowed identification (Not reported)

POSSIBLE DEFENCE??
A publisher was not aware did not suspect nor had reason to suspect a
breach had been committed no i.e. no negligence

DEFENDENTS IN SEXUAL OFFENCE CASES ??

NO ANONYMITY FOR DEFENDANTS


It is for the judgment of an editor or producer as to whether or not to
publish a defendants name and in doing so risk a breach of anonymity of
a victim via a jig saw identification.

N.B.

100

Courts do from time to time make prohibiting


orders, e.g. under section 11 Contempt of Court
Act 1981, to prevent the naming of defendants
Such orders have no basis in law this section of the C of C Act was not
enacted for the benefit and comfort of defendants.
Per Mr Justice Watkins R v Evesham Justices [1988]

HOW MAY THIS SITUATION BE DEALT WITH ON


BEHALF OF A MEDIA CLIENT?
Speak to the court clerk
Speedy letter to the court clerk
If to no avail fall back upon appeal under Section 159 Criminal Justice
Act 1988
Such an appeal is very costly and no costs can be awarded

TEST YOUR KNOWLEDGE AND UNDERSTANDING


1. What restrictions apply to reporting upon sexual offences?
2. When do such restrictions commence?
3. To whom do they apply?

101

4. Under what circumstances would the restrictions not apply?


5. A woman faces a charge at a magistrates court of wasting police time,
by making a false accusation of rape. May she be named in a report
of proceedings for wasting police time?
Explain the relevant law.
6. What defence may be available to a publication charged with
breaching reporting restrictions?

CONTEMPT OF COURT

THE COMMON LAW DEVELOPED CONTEMPT TO PROTECT THE


INTEGRITY OF THE COURT PROCESS

102

i.e. Administration of justice for all:

IT EMBRACES THE NEED TO ENSURE A FAIR & IMPARTIAL


HEARING - i.e. no undue influence
IN CRIMINAL TRIALS, IN THE CIVIL COURTS AND
inter alia TRIBUNALS

Now under article 6 European Convention Human Rights


(ECHR) (Fair hearing )
Still embraced and protected by:
COMMON LAW

BUT

NOW MAINLY EMBRACED BY STATUTE

i.e. The Contempt of Court Act 1981

(CCA)

BREACH OF EITHER COMMON LAW OR STATUTE:


Criminal Offence!
Max. penalty - 2 years imprisonment and/or an unlimited fine

103

Contempt offences heard before a judge sitting alone i.e. NO JURY


NORMALLY REQUIRES THE ATTORNEY GENERALS
PERMISSION TO PROSECUTE

The CONTEMPT OF COURT ACT 1981


CREATED:
A STATUTORY OFFENCE of
STRICT LIABILITY
i.e. No intent necessary
BUT
THIS STRICT LIABILITY CONTEMPT CAN NOW ONLY BE
COMMITTED
When:
COURT PROCEEDINGS (either criminal or civil) are ACTIVE
Thus - if proceedings are not active then no risk of committing
STRICT LIABILITY contempt
AND EVEN WHEN ACTIVE

104

There must be A SUBSTANTIAL RISK of

SERIOUS IMPEDIMENT OR PREJUDICE created by the


publication of material
Section 2 of the Contempt of Court Act 1981
R v Knights - Harrow Crown Court 1995 (Not reported
A.G. v Daily Mirror [2011] - Christopher Jefferies murder of
Joanna Yeates - Daily Mirror fined 50,000

Note:- not a slight risk


Example:
AG v MGN Ltd. [1997]

(Publishing of Knights Previous


Convictions by five newspapers)

Juror given 6 months imprisonment for checking defendants past history


on the internet

( See Daily Mail 24th Jan. 2012

COURT PROCEEDINGS ARE ACTIVE?


IN CRIMINAL CASES WHEN?
Summons issued?

105

Warrant for arrest issued?


Person arrested?
A person charged orally

INQUESTS?
When an inquest is opened

IN A CIVIL CASE?
When the date for a trial is fixed

FROM THEN STRICT LIABILITY APPLIES

i.e. No intent necessary


But there must exist a SUBSTANTIAL RISK OF SERIOUS
PREJUDICE
EXAMPLES:
Reporting previous convictions before a guilty verdict reached
As in . - R v Knights - Harrow Crown Court 1995

106

But remember:
A.G. v MNG. Ltd [1997] 5 newspapers charged with contempt
Held there was only slight risk

R v Read & Others Central Criminal Court 1993


i.e. Police officers involved in Birmingham six trial
Where There had been considerable media reporting before the trial
Held substantial risk of serious prejudice

NOT MERELY A SLIGHT RISK OF SERIOUS PREJUDICE


EXAMPLES:
A.G. v MNG. Ltd [1997]

R v West [1996]

PROCEEDINGS CEASE TO BE ACTIVE?


WHEN:

107

A person is arrested for an offence, then is released from


custody, without any charges having been made and not on bail ?
N.B.

BUT PROCEEDINGS ARE STILL ACTIVE IF


RELEASED ON BAIL TO RETURN TO THE
POLICE STATION OR TO A COURT

A case is discontinued
After the issue of a warrant no arrest is made within 12 months
The defendant is acquitted or has been sentenced.
Thus if a person found guilty and case adjourned for sentence the
proceedings are still active but less likely to be substantial risk of
etc.

The defendant is found unfit to plead guilty or not guilty or the


court orders the charge to remain on the file

THE ACTUAL LODGING OF AN APPEAL By the


person convicted?
THEN PROCEEDINGS ARE AGAIN ACTIVE
Thus between any conviction and an appeal - A FREE FOR ALL? -

COMMON LAW CONTEMPT ? AG normally issues Fiat re prosecution when proceedings are pending/
imminent

108

NO LONGER STRICT LIABILITY

UNDER THE COMMON LAW INTENT MUST BE PROVED

BEYOND REASONABLE DOUBT

AND THAT A PERSON

INTENDED TO DO THE ACT WHICH IS ALLEGED TO BE


CONTEMPT
A.G. v News Group Newspapers [1988]

(The Sun)

WHAT IF CONTEMPT IS IN THE FACE OF COURTS?:


Magistrates Court:
e.g. Insulting behaviour or interrupting proceedings May
be imprisoned for 1 month or a fine up to 2500

Higher courts:
Up to two years imprisonment and or unlimited amount in a fine

109

ANY DISORDER IN A COURT BY THE PUBLIC E.G. SHOUTING


OUT FROM THE GALLERY COULD BE DEALT WITH AS
COMMON LAW CONTEMPT

EXAMPLES OF OTHER POSSIBLE CONTEMPT OFFENCES BY


THE MEDIA:
Breach of injunctions
Interviewing Jurors - Section 8 Contempt of Court Act 1981
a) Seeking to establish, from a juror, details of jury discussions
even after proceedings ended will be contempt
Examples:
i)
ii)
iii)
iv)

Statements made
Opinions held
Arguments put forward
Voting

b) Identifying by photograph
Witnesses
Offering to pay a witness for information given about the case
which will vary according to the result of the trial. i.e. more if
guilty
Photographs
i) Publishing a photograph of an accused person when
identity is an issue may be contempt
i.e. possible cause a Substantial risk of serious prejudice

110

ii) Jurors ?

Failing to disclose of the names of a journalists


confidential informants to the court in the
following ??
Names must be disclosed:
In the interest of justice
In the interest of national security
If to prevent crime or disorder
Section 10 Contempt of Court Act 1981

REFUSAL UNDER SUCH CIRCUMSTANCES CONTEMPT


Goodwin v United Kingdom [1996]
The Engineers case- 1980 - Bill Goodwin trainee journalist

DEFENCES TO CONTEMPT:

CONTEMPT OF COURT ACT 1981?


a) No knowledge nor reason for knowing proceedings active
having taken all reasonable action to establish
Section 3 Contempt of Court Act 1981
b) Fair accurate & contemporaneous report of court proceedings

111

Section 4(1) Contempt of Court Act 1981

c) The publication by way of a discussion in the media

iii)

Made in good faith

iv)

On a matter of public affairs (Public interest)

v)

where risk of prejudice is only incidental to the


discussion

Section 5 Contempt of Court Act of C Act 1981


Re This aspect:
A.G. v A.N Ltd [1981
The case (H of L) involved a journalist, the late Malcolm Muggeridge/
Daily Mail 1981, - Doctor charged with the murder of a Downs
syndrome baby The article covered problems with Downs syndrome
and was in support of a PRO Life by election candidate but no actual
mention of the case before the court was made and the wording of the
article was not closely related to the case before the court
]
Other defence aspects:
Re substantial risk of impediment or serious prejudice ?
Courts will consider inter alia:
Fade factor i.e. Time factor
Normally publication closer to a trial greater the danger

112

( but relate Knights re previous convictions Harrow Crown Court


1995 & A.G. v MGN [1997])
Geographical location of publication

Who will judge a case?


e.g. Jury/ magistrates/ judge/ appeal courts s an important factor

NEGLIGENCE BY MEDIA IS NO DEFENCE

NB:
APPEALS BY POLICE FOR MEDIA/PUBLIC ASSISTANCE ?
i.e. - The publication WHEN PROCEEDINGS ARE ACTIVE of a police statement regarding a wanted person with or without
a photograph e.g. T.V. programme Crime Watch

Is this Contempt ? ?

YES!
BUT
See the Attorney Generals statement in House of Commons during
the debates which led up to the passing of the Contempt of Court Act
1981 - Recorded in Hansard

113

The publication must stay within the actual police media statement
given
and
Be removed from any archives when a suspect is arrested or not
proceeded against

USE OF TAPE RECORDERS IN COURT:

Section 9 CONTEMPT OF COURT ACT 1981 - Creates an offence


of contempt to use a tape recorder without permission
TWEETING?
NOTE WELL:
COURT ORDERS Restricting reporting
And thus exceptions to the open court rule
A court is defined as any CIVIL, CRMINAL, CORONERS COURT OR ANY
TRIBUNAL ESTABLISHED BY AN ACT OF PARLIAMENT
SECTION 4 ORDER - CONTEMPT OF COURT ACT 1981
This process is known as a Voir dire

114

The defence claims that certain evidence is inadmissible and may


cause a substantial risk of prejudice to any court proceedings
(Thus not a slight risk)
(Process known as voire dire)
A court order can be made to prevent publication of such evidence or
part of it.
Proceedings must be current, imminent or pending
e.g. Baby P case 2008/2009
i.e. not merely that there may be additional proceedings such as
a possible appeal against conviction

Matters said in absence of jury and not put to them later for
consideration
May follow a successful request made by the defence for details of the
publication of proceedings to be postponed due to a mistrial having been
declared

Failure to conform to the order if made CONTEMPT

WHEN CAN THE MEDIA PUBLISH THIS


INFORMATION??
Normally at the conclusion of the trial before the court i.e. after
sentence but may subsist for longer
BUT EVEN THEN DANGER

115

Until conclusion of any other proceedings which are pending or


imminent where publication may cause substantial risk of serious
prejudice

N.B.
When an order is made court must state why it has been put in place and
when it ends The length of this period must be no longer than necessary
to avoid THE SUBSTANTIAL RISK

SECTION 11 CONTEMPT OF COURT ACT 1981


NOTE WELL:
The difference between a Section 4 order and one made under Section 11
is that the former is temporary whilst sect. 11 orders are permanent
An order under sect. 11 prohibits publication of details given in court
proceedings
Or the identification of a person
EXAMPLES:
Names etc. of blackmail victims
Details of persons involved in national security
Details of secret processes
Where administration of justice would be frustrated

116

THE ORDER MUST BE MADE:


During the trial and before the relevant information or any identity
has been disclosed

NOT
AFTER trial OR sentence when identity has already been mentioned
in open court
R v Arundel Justices ex parti Westminster Press [1985]
On the grounds that the defendant was a prison officer or Police officer
A police officer where a teenage girl knocked down and injured by the
police constable in an unmarked car speeding to deal with an armed
robbery

ORDERS ARE NOT APPROPRIATE TO PROTECT THE


SENSITIVITIES OF A DEFENDANT (I.E. FEARED
HARASSMENT FROM EX WIFE)
R V Evesham Justices ex parti McDonough [1988]
BUT
It was held
An order under section 11 was justified to protect the mental
health of a man appealing against a conviction for manslaughter on
the grounds the man may suffer further mental harm.
Re JCA 2003
And
It was lawful to put an order in place where a police officers life
was believed to be in danger

117

AG v South London Coroner [2004]

Challenging the making of such orders when alleged


wrongfully made.??
What may be done??
Journalists through their lawyers have successfully challenged and
overturned orders wrongfully made
ACTION?
Approach to the court clerk by lawyer/journalist
Letter to clerk of the court

Court may hear representation from Media when they are


considering the making of an order
Clerkenwell Magistrates [1993]
OR
As a last resort:
MAKE A CHALLENGE BY WAY OF JUDICIAL REVIEW
SECTION 159 CRIMINAL JUSTICE ACT 1988

IN RESPECT OF :
Orders made under s.4 or s.11 Contempt of Court Act 1981
A challenge, on the grounds of contrary to open justice,
against a courts restriction on the admission of journalists to
the court

118

Inappropriate orders under Sect 39 orders under the C & YP Act


1933

N.B. Costs when decision is overturned are not


available thus such action is very expensive.

TEST YOUR KNOWLEDGE AND UNDERSTANDING


Define the purpose of the law upon CONTEMPT OF
COURT?
In the English legal system contempt of court may arise under two
sources of law. Name these.
Under which of the two sources of law does strict liability arise?
What do you understand by strict liability contempt?
What is the standard of proof required of the prosecution in the other
form of contempt?
With regard to strict liability contempt dangers arise when court
proceedings are said to be active
When are proceedings said to be active in the following court
proceedings:
i)
ii)
iii)
iv)

Criminal court proceedings


Civil court proceedings
Inquests
Even when proceedings are active in the above courts what must
be proven by the prosecution in order for a charge of contempt to
succeed?

When in criminal proceedings does a case


i)

Cease to be active in a criminal trial?

119

ii)

Become re activated?

What do you understand by the term voir dire under section 4


Contempt of Court Act 1981?
What courses of action should a journalist consider when it is believed
court orders under sect 4 or Sect 11 of the Contempt of Court Act 1981
have wrongfully been made by the court and thus may be said to impede
open justice?
A police officer denies shoplifting but is found guilty by magistrates and
is fined 250.
His solicitor then tells magistrates that the conviction puts his clients
career in jeopardy. His client will, he states, lodge an appeal within days.
The solicitor asks for an order to be made under section 4 of the
Contempt of Court Act, postponing any reporting of the case until after
the appeal has been heard.
What representations should be made to counter this application?
What does s4 specify about what may be postponed by such an order, the
reason why such an order can be made and how long it can last?
After a series of armed robberies, all believed to have been
committed by one man, police issue reporters with the
description of the man they wish to interview, with photographs
of him and a warning the public that he may be dangerous.
What is the newspapers position in relation to contempt of court by the
publication of this statement and photographs?
What are the
legal dangers for the media with regard to the archiving of such material
as described in this scenario
What powers do the courts have, under the Contempt of Court
Act 1981 to stop a newspaper publishing immediately a report of court
proceedings or part of the proceedings?
Give an example of when these powers are likely to be exercised.
List the three circumstances, as specified by the Contempt of
Court Act, where a court may hold that disclosure of a persons
source of information is necessary.

120

Give one example from legal history where this section of the Act has
involved a journalist.
A man who says he has reported to the police that he has been raped
recently tells a local morning newspaper that he would like to be
named in a report of his ordeal.
His reason is that he suspects other men have been victims of the same
middle-aged attacker and he wishes to encourage them to come forward.
The newspaper plans to carry an interview with the man who
contacted them, naming him, the next day. As the interview is being
written, a check call with the police at 4pm establishes that no-one has
been arrested.
Can the newspaper safely publish the interview? Indicate how your
conclusions are reached and what further checks, if any, must be made
before publication to comply with legal requirements?
A man s being tried at Crown Court for the murder of his gravely-ill
wife. The prosecution call evidence that he strangled her to save her
further suffering. The trial gets national coverage. A newspaper is
about to run a feature on mercy killings. Can it go ahead and safely
publish the feature? Give reasons.

COPYRIGHT LAW

121

Part of the law of intellectual property


Exists to protect an original piece of work, in such a way that
others may be prevented from copying or pirating it.

The basic rights of copyright holder include:

i)
ii)

The right to copy the work


Right to issue copies of it to the public

iii)

Right to Licence (rent) or Assign (sell) the work

iv)

Right to make an adaptation of the work.

Thus protects the ORIGINAL creative work of a person


Quality not a consideration ORIGINALITY the key

The sweat of a mans brows, and the exudation of a mans brains,


are as much a mans property as the breeches upon his backside
Laurence Sterne - Tristram Shandy
Intended to prevent PLAGIARISM and the UNFAIR USE OF the
intellectual creations of others

122

COPYRIGHT DESIGNES AND PATENTS ACT 1988


Covers inter alia original:
i)
ii)
iii)
iv)
v)
vi)
vii)
viii)
ix)
x)

Written works
Dramatic works - plays
Films
Music
Sound recordings - which include the arrangement of a work
Broadcasts (includes cable programmes)
Photographs
Spoken words - e.g. Speeches? Interviews taped?
Data base contents e.g. Stock exchange prices/ football
league tables/ football pool coupons
Works of art - sculptures/ drawings/maps/architectural
works- buildings or models of them

Breach examples:
The Ordnance Survey Office received 20,000000
from Centrica (A.A.) for using their maps
without permission
The Queens Christmas Day speech 1992 Sun Newspaper?
Taking a photograph of a programme from a T.V. screen
(Screen Grab) may be a breach of copyright
Copyright Designs &Patents Act - section 17
Numerous differing copyrights will generally exist in a

film or play

123

NO COPYRIGHT IN NEWS OR FACTS - only the arrangement


of such.
Reproduction of news facts from another media source i.e.
lifting?
Walter v Steinkopf [1892]
IDEAS ?
Fraser v Thames Television Ltd [1984] - Original commercial
potential moral obligation
PROGRAM FORMAT RIGHTS?
e.g. Opportunity Knocks & the clapometer?
Green v Broadcasting Corp. of New Zealand[1990]
Reality i.e. The problem?
WHEN USING SOURCE MATERIAL ASK:
i)

Is there any copyright attached to it?

ii)

If yes who owns it?

iii)

Will use breach the law?

iv)

Will my use infringe other rights? e.g.

Moral rights such as attribution or derogatory treatment

124

Express Newspapers PLC v News (UK) Ltd 1990


v)

Do I have a defence?

OWNERSHIP:
The Media:
Employed Journalists
Contract of employment?
Freelance
Owns work unless otherwise agreed in writing i.e. assigned
(Sold)
Letters to the editor?
Photographs?
Freelance commercial photographer own unless
assigned - Subject to Moral rights?

Borrowing of photographs for inclusion in


Print articles or television programs?
i.e. wedding pictures Missing persons?

125

Film?
Complex Numerous copyrights

Artistic i.e. the set designs used in the film;

Dramatic - if the film is based on dance or mime


material;

Literary - within the source material and the original


screenplay;

Musical - the soundtrack of the film, including both


musical score and any lyrics

Film - the images in the first fixation of the film;

Sound recordings - the physical recording of the


soundtrack;

Broadcasts and cable usage

Performance - any live interpretation of the film;

Published editions - within the typographical layout of


the page for any published versions of the screenplay.

Overall copyright in the film with director(s)

REMEMBER OWNERSHIP BE BOUGHT, SOLD OR


LICENCED - It is property (intellectual property)
Licenced = a form of leasing

126

i.e. Garfield (Jim Davies)& The tales of Peter Rabbit/Jemima


Puddle Duck etc. (Beatrix Potter)
Assigned = sale
BUT:
MORAL RIGHTS MAY STILL EXIST
Cannot be assigned but pass on death to the estate of the
author or director of films and then as per testament of
owner
They may be waived. This needs to be in writing
MORAL RIGHTS - WHAT ARE THEY?
The right to be identified as author or director
The right not to have the work attributed to one
The right not to have a work subjected to derogatory
treatment
Photographs in some cases privacy right Douglas?
and Campbell
LENGTH OF COPYRIGHT OWNERSHIP?

127

Literary dramatic or artistic works


70 years from death of author or if author unknown 70 years from
its making or from when made available to public (From when
discovered)
Computer generated works 50 years
Sound recordings 70 years from making or from release if
during that time (Cliff Richards)
Films 70 years from last to die of the principal director,
the producer or the author of screen play or composer of music
written for the film
Broadcast and cable 50 years
Newspapers and other such publications - 50 years

REMEDIES FOR BREACH OF COPYRIGHT:


Breach is a civil law matter
Unless e.g. conjoined with pirate scam as in pirated films or
C.D. when it becomes criminal under the 1988 Act
Damages which may be higher if a deliberate or reckless
infringement
e.g. The Notts. Healthcare NHS Trust v News Group Newspapers
[2002]
(i.e. The Sun required to pay 10450 for the wrongful use

128

of photo obtained from medical records)


Account for profits & delivery up of copies
Injunction to stop interim / permanent
DEFENCES:
FAIR DEALING: (Usage)
Applies to use of a reasonable extract from works of others:
Ashdown v Telegraph Group ltd [2001]
The misuse of substantial amounts of a confidential note of a
meeting between Paddy Ashdown leader of the Liberal Party
and Margaret Thatcher the then Prime Minister together
with some extracts from Ashdowns autobiographical book.
The book was in the pre - publishing stages and the court
decided article did not attract a public interest defence and
was thus not protected by article 10 nor was it regarded as
fair dealing
For research or private study (Students) where a literary,
dramatic musical or artistic work is used
Criticism or review
Reporting of current events
Reports of Parliament Appeal Courts - Public inquiries but
not the actual full copying of reports

129

The dealing must be FAIR as to the following:


i) Only a reasonable amount of a work used
ii) The reasons for using must be fair
iii) The means of obtained must be fair
e.g.
BBC v British Satellite Broadcasting [1991] clips of football
match highlights with accreditation 14 37 seconds not a
breach of copyright
Use of security video clips by the media for non security
purposes??
Hyde Park Residence Ltd v Yelland [ 2000]
(Princess Diana & Dodi Fayed)

OTHERS NEWS ITEMS?


Use of facts from another news paper - television and re
writing will not in general be abuse of copyright but
persistent use may be
Walter & Steinkopf [1892]
i.e. Skill and effort by the other newspaper

130

PUBLIC INTEREST?:
Courts will not enforce copyright if a work is held to be
Immoral - scandalous or contrary to family life
Injurious to public life public health -- safety or the
administration of justice
Incite or encouraged others to act in a way injurious to such
matters
Issued by police in order to trace persons as witnesses or
wanted in connection with serious crime
Misleading information set record straight
Lion Laboratories Ltd v Evans [1985] (Intoximeter case
Daily Express)
Public interest was raised and approved as an existing defence in
the Hyde Park Residents case mentioned above
but not upheld as a defence in that instance
INNOCENT INFRINGEMENT:
No reason to know or believe a work was subject to copyright.
Negligence no defence
Those in breach must account for all profits but no damages are
payable

131

INCIDENTAL INCLUSION
OWNER ACQUIESCED IN THE PUBLICATION
The owner of the copyright had knowledge of an infringement
at the time it occurred but failed within a reasonable time to
take any action.

132

DIGITAL ECONOMY ACT 2010 ASPECTS:


To advance and modernize the UKs competitive digital
communications infrastructure;
To support the UKs creative industries by taking action to tackle
online copyright infringement (piracy) and to strengthen the
framework for the creation of successful business models;
To support local and regional news in the UK and update licensing
arrangements;
To improve public confidence in digital activities by providing
security of the communications network.
IN MORE DETAIL, THE 2010 ACT COVERS THE
FOLLOWING PROVISIONS:OFCOM to require the sectoral regulator to carry out an
assessment of the UKs communications infrastructure every three
years;
Online infringement of copyright to tackle online copyright
infringement (piracy) by placing obligations on Internet Service
Providers (ISPs) to work with rights holders and, if necessary, to
take technical measures against infringing subscribers. It also
provides a power for the Secretary of State to introduce
regulations for rights holders to seek a court injunction to prevent
access to specified online locations for the prevention of online
copyright infringement;
Changes to levels of penalties for copyright infringement

133

The disconnection of broadband customers who are deemed to be


infringing copyright laws. This may be without first being given
the opportunity to plead their innocence before a court;
Internet domain registries to provide reserve powers in respect
of efficient and effective management and distribution of Internet
domain names;
Channel 4 Television Corporation to adjust the corporations
functions from a focus on traditional broadcast activities to
include provision of public service media content on other
platforms, including the Internet;
Independent television services to enable future alterations of the
Channel 3 and Channel 5 licences;
Digital radio to provide arrangements for digital switchover by
making changes to the existing radio licensing regulatory
framework;
Access to electromagnetic spectrum to allow for the charging of
periodic payments on auctioned spectrum licences, and confer
more proportionate enforcement powers on Ofcom;
Video games to make changes to how video games should be
classified in the UK; e.g. age ratings of computer games must be
on the same statutory footing for ratings of 12 years and above;
Public lending rights (PLR) to extend PLRs to non-print books;
{TOO LITTLE TOO LATE?}

COPYRIGHT PENALTIES:

134

THE COPYRIGHT, ETC. AND TRADE MARKS (OFFENCES


AND ENFORCEMENT) ACT 2002
Provides for criminal offences in relation to the making for sale or
hire or dealing with types of illegal material:
Copyrighted material incl. music, films and computer software,
that have been made without the authorization of the copyright
owner (i.e. pirate copies)
Recording of live performances that have been made without the
authorization of the performer(s)
Copying devices and software that allow people to access
encrypted transmissions without paying the normal fee for their
reception;
Goods, packaging or labels bearing a trade mark that has been
applied without the consent of the trade mark owner;

TEST YOUR KNOWLEDGE AND UNDERSTANDIN


1.
i)
ii)
iii)

What do you understand by the term copyright?


Identify the leading relevant Act of Parliament
What does the law of copyright protect?

2. List four types of work protected

135

3. What do you understand by the term Screen Grab?


4. Who owns the copyright
i)
ii)
iii)

In a Letter to the editor?


The work of a staff reporter (In general)
Film

5. You are consulted by a journalist client who having read a


story in a magazine is considering writing and publishing an
article on the same topic. The client wishes to know his legal
position under the law of copyright?
6. What are the remedies which the court may apply for a
proven breach of copyright?
7. What do you understand by the terms:
i)
ii)

Licence?
Assignment?

8. What do you understand by the term Moral Rights give?


List three of them. May they be assigned?
9. What is the length of copyright for i)journalistic and
ii)material?
10 When may the defence of innocent infringement
apply? What are the consequences if the defence
succeeds
11 What do you understand by the term Incidental
infringement?
12. A man who works in the design department of a major car

manufacturing company gives a newspaper reporter a computerprepared design of the new model of a car that the company
intends to launch at next years Paris motor show. He also gives the
reporter reports on wind-tunnel tests and simulated crashes.

136

The reporter telephones the companys press office, and indicates that her
newspaper intends to publish an article based on the material passed to her.
The press office protests and promptly informs the companys solicitors of
this intention.
What action may the solicitors take on behalf of the newspaper in
a)
b)

confidentiality
copyright.

13. A relative of a 93 year old woman who has been murdered lends a
reporter a print of a photograph of the victim that the victim ordered for
her 70th birthday from a commercial photographer. The photo is used to
accompany the murder report and after publication the photographer says
he owned the copyright in it
Discuss

INQUESTS
Inquests are held by a CORONER normally in a CORONERS COURT.
THE OFFICE OF CORONER?
A very ancient Office Now Lawyers of at least 5 years standing ( 127
appointed coroners + deputy coroners)
CORONERS & Justice ACT 2009 main legislation
Coroners Rules (Made under the provisions of the act)
These regulate the proceedings

137

PURPOSE
To enquire into:
Sudden or unnatural deaths
i.e. those due to an unknown cause
approx. 235000 per year
which result in approx 30000 actual inquests

Hold inquests into treasure trove


Inquests are INQUISITORIAL
With regard to death -- to enquire into and to determine:
Identity of deceased
When where how met death
What particulars are required to be recorded i.e. registered
Interested parties may be allowed to ask questions

A BODY IS THE PROPERTY OF THE CORONER UNTIL


RELEASED

138

IN CERTAIN CASES INQUESTS MUST BE HELD:


Examples:
Death in prison or police custody or as the result of police action
It is believed that a person died a violent or unnatural death abroad and
the body has been brought back to the coroners area (e.g. Soldiers killed
in Iraq / Afghanistan)
Circumstances the continuance of which is prejudicial to health and
safety of the public This must be with a jury
e.g. Radiation leak
May be with a jury of 7 to 11 persons often coroner decides if necessary.
Proceedings inquisitorial not adversarial
Appeals against findings of an inquest? - Judicial Review of decision is
possible (but no costs)

Not the purpose of the jury to determine who was liable for
death. This is a civil court or a criminal court issue
prejudice a future trial?
A jury may identify a failure if would prevent repetition i.e. in a
health and safety matter
e.g. A radiation leaks Afghanistan
NOTE WELL:

139

If inquest with a jury media should report as Jury returned a verdict


If no jury report coroner recorded a verdict of .

DEATHS DUE TO CRIME e.g. MURDER?


Proceedings opened and adjourned after evidence of
Identity
Cause of death
Media Position?
As in any court i.e. Fair accurate and contemporaneous reports
BUT
The coroner may issue an order restricting reporting of certain matters
under either section 4 or section 11 Contempt of Court Act 1981

CONTEMPT WITH REGARD TO INQUESTS?

Inquest proceedings active when inquest opened


Hells Angel case London Weekend Television in 1985.
Due to possible contempt being committed an Injunction was obtained
to prevent showing of a programme.

140

Were the Court of Appeal hasty??.


Peacock v London Weekend Television[1981]
Article 10 C on HR??

SERIOUS MISCONDUCT IN REPORTING BY


MEDIA ?
BUT NOT A SUBSTANTIAL RISK OF SERIOUS PREJUDICE SUCH AS
WOULD BE CONTEMPT?
i.e. A case has to be restarted or removed to another area because of
what was reported and which might impact upon a fair trial
Costs under the Courts Act 2003
may be awarded against the media concerned

Inquests should be held in public unless in the interests of national


security
Rule 17 Coroners Rules
Police officers security services personnel may be allowed to give
evidence behind a screen but still in open court

DOCUMENTARY EVIDENCE - RULE 37


This is permissible where evidence not disputed.
But must name person making the statement

141

The coroner must read out in court unless he states will not for valid
reasons which would thus prevent the media and public from knowing
contents
e.g. Suicide notes in the interest of sensitivity?

THE MEDIA SHOULD BE INFORMED OF INQUESTS?

THE POST OF CORONERS OFFICER

OFTEN A POLICE OFFICER


(He is the contact point from a practical point.

TREASURE TROVE?:
Definition
Found objects at least 300 years old, which contain substantial amounts
of silver or gold, (at least 10%) or finds of other valuables the owner/
descendants of which cannot be traced.
Finders must report finding to the coroner within 14 days. Normally
taken to a museum who inform British Museum or Welsh National
Museum
If either of these museums wishes to have the find an inquest is then held
to decide if it is treasure or the property of the finder/owner of the land
and if treasure and the museum wish to have it the full market value paid
to finder and possibly the land owner concerned
Otherwise finder/land owner receive it back

142

FOLLOWING MURDERS BY Dr HAROLD SHIPMAN


REFORMS WERE SUGGESTED AND IMPLEMENTED
BY THE recent ACT
Such, reforms, allow the coroner to clear the court while a witness
who is under the age of 17 yrs. gives evidence if such would improve
the witnesses evidence
That a High Court Judge may sit in place of a Coroner in certain
cases with power to exclude public and media. The Home Secretary to
decide such instances. E.g. National Security protect witnesses was
suggested but
The H of L rejected this last proposal and the Government dropped
it from the bill
Open justice?

TEST YOU KNOWLEDGE AND UNDERSTANDING


1. What is the purpose of an Inquest
2. Where are inquests normally held, who presides over them and what
qualifications is such a person required to hold?
3. What legislation regulates inquests?
4. Are inquest proceedings adversarial or inquisitorial?
5. When does the law of contempt apply to Inquest proceedings?
6. Under what circumstances must an inquest be held?
7. If proceedings are held with a Jury:
i)
ii)

What is the composition of the jury?


How would you report the jury findings of the inquest?

143

8. What is a journalist position with regard to defamation when


reporting inquest proceedings?
9. Where evidence in an inquest is not disputed, documentary
evidence may be introduced to the court, as opposed to the
author of the evidence giving the evidence orally:
i) What conditions apply to such?
ii) Give an example of when this may apply.
10. When may proceedings be held in closed court
11. What do you understand by the term Coroners Officer?
12. Define the term Treasure trove
13.
A minibus carrying pupils of a local school is involved in a crash. Ten
of the pupils die. Two others and the teacher who was driving the
vehicle are taken to hospital with serious injuries. When the inquest is
formally opened, a police inspector tells the coroner that there is a
possibility of criminal proceedings against the teacher.
a) With reference to the law of contempt, may the media safely publish
a full report of the inquest proceedings.
b) A section 39 order is made in relation to all of the children who were
passengers on the minibus. Discuss this aspect.
c) Before the crash happened a national newspaper had prepared, a
feature alleging an unsatisfactory standard of maintenance of many
school minibuses, inadequate safety arrangements for pupils travelling
in them, and poor driving skills of many of the teachers who drive
them.
May the newspaper safely publish this feature?
14.
A newspaper is covering an inquest into the death of a 15 year old
pupil at public school who was found hanging in his room after a

144

schoolboy experiment went wrong. Several boys aged 15 and 16 give


evidence during the inquest. The coroner says nothing about the
reporting of the inquest. May the boys who give evidence be named?
Explain the law on the naming of juveniles in reports of legal
proceedings.

BANKRUPTCY

BANKRUPTCY PROCEEDINGS:

A PETITION FOR AN ORDER IN BANKRUPTCY IS MADE BY


CREDITORS TO A DISTRICT JUDGE IN COUNTY COURT
Applies to individuals this includes those in a business partnership
other than LLP
750 + owed and unsecured

If debtors have 2000 minimum assets and debts of 20000 or less a


judge may make an interim bankruptcy order
And
The Judge will then refer the matter to an insolvency practitioner and
if creditors agree an order will be made to schedule repayments. This
is known as an Individual Voluntary Arrangement (IVA)
Note: This is not a bankruptcy order and the person has not been
made bankrupt.
If a bankruptcy order made official receiver takes control of the
debtors property

145

MEDIA - MUST BEWARE OF DEFAMATION:


A PETITION TO THE COURT BY CREDITORS DOES NOT
MEAN A PERSON IS BANKRUPT
i.e. Petitions are sometimes made in order to force someone to pay
outstanding amounts of money
REQUIRES AN ORDER TO BE MADE BY THER COURT OR A
DEBTOR TO FILE HIS OWN PETITION FOR AN ORDER TO BE
MADE
CREDITORS MEETINGS:
No legal right for media to attend permission may be given by the
receiver

BANKRUPTCY COURT: REPORTING PROCEEDINGS OF THIS


PUBLIC EXAMINATION:

COURT IS OPEN TO PUBLIC

PURPOSE IS TO ESTABLISH:
ASSETS AND LIABILITIES

146

CAUSE OF BANKRUPTCY
ANY CRIMINAL OFFENCES
IF ASSETS HAVE BEEN TRANSFERRED TO ANOTHER PERSON
TO AVOID PAYING CREDITORS THEY MAY BE RECOVERED
i.e. TRANSACTIONS WITHIN LAST 10 years MAY BE DECLARED
VOID IF MADE WITH INTENT TO DEPRIVE CREDITORS
EMPLOYEES ARE PREFERENTIAL CREDITORS

FAIR, ACCURATE and CONTEMPORANEOUS REPORTS, BY THE


MEDIA, OF THE PUBLIC EXAMINATION IS PROTECTED BY
ABSOLUTE PRIVILEGE
i.e. this is a court

PUBLIC INSPECTION OF A COURTS RECORDS OF


BANKRUPTCY PROCEEDINGS ARE ALLOWED UNLESS A JUDGE
OBJECTS

The BANKRUPT PERSON:


MAY NOT OBTAIN CREDIT OVER 250 WITHOUT DISCLOSURE
OR TRADE IN ANY NAME OTHER THAN THAT UNDER WHICH
MADE BANKRUPT
OPEN NO NEW BANK ACCOUNTS

147

NOT ACT AS A DIRECTOR NOR TAKE PART IN COMPANY


MANAGEMENT UNLESS THE COURT GIVES PERMISSION
DISCHARGE FROM BANKRUPTCY
DISCHARGE 1 YEAR Enterprise Act 2002

LIMITED LIABILITY COMPANIES - LIMITED LIABILITY


PARTNERSHIPS - LIQUIDATION:

MAY BE A VOLUNTARY LIQUIDATION DUE TO MERGER OR


RETIREMENT AND NOT DUE TO INSOLVENCY

COMPULSORY LIQUIDATION
When company insolvent
And a winding up order made. Then monies (if any)
distributed amongst creditors

TEST YOUR KNOWLEDGE AND UNDERSTANDING


1. With regard to the law of bankruptcy what do you understand by the
term Individual Voluntary Arrangement (IVA)?
2. With regard to an IVA would it be appropriate to report that a person
is bankrupt?

148

3. What s the media position with regard to media presence at


i)
ii)

At a Creditors Meeting?
A Bankruptcy hearing?

4. What s the purpose of a bankruptcy hearing?


5. What may be reported of such a hearing?
6. When, in normal circumstances, is a person discharged from
bankruptcy?
7. What do you understand by the term liquidation?
8. What are the dangers for the media n reporting upon liquidation
proceedings?

9 A newspaper is told that a major political figure in its area is


going bankrupt. What is the earliest stage at which the
newspaper can safely publish in the light f the law of
defamation?

149

OFFICIAL SECTRETS & D A NOTICE SYSTEM


It is an official secret if it is in an official file
Sir Martin Furnival Jones, Director of MI5 when giving evidence before
the Franks Committee on Official Secrets 1975
i)

OFFICIAL SECRETS ACT 1911

ii)

OFFICIAL SECRETS ACT 1989

Secrecy is the British disease


Richards Crossman The Crossman Diaries Cabinet Memoirs 1975

0FFICIAL SECRETS ACT 1911


Rushed through Parliament in one day.

Section 1. Criminal offence Maximum 14 yrs. imprisonment


Primarily concerned with spying
A criminal offence up to 14 years imprisonment where:

150

Any person for any purpose prejudicial to the safety or interests of the
statei)

Approaches inspects passes over or is in the neighbourhood


of or enters any prohibited place within the meaning of the act

ii)

Makes any sketch plan model or note which is calculated to


be or might be or is intended to be directly or indirectly useful to
an enemy or

iii)

Obtains collects - records or communicates to any other


person any secret official code word or password or in any
sketch - plan - model - article or note or other document or
information which is calculated to be or might be or is intended
to be directly or indirectly useful to an enemy

Sub paragraph (Iii) most likely to be most relevant with regard to the
media.
Section 2.
i) Had been drafted in Whitehall and held in waiting for some time
prior to the Act being introduced .
General purpose when written?
To stop leakage to the press of any information
I.e. Not specifically secret material but anything of an embarrassing
nature to the serving government.
Created more than 2000 different offences in its few paragraphs.

iii)

those most likely to be committed by sources inside i.e those


who having official material communicated it to unauthorised
sources such as media

151

and

iv)

those who received such material e.g. the media. Known as


Outsiders

The material was not necessarily of a secret nature.


e.g. how many cups of tea they drink in Whitehall or yards of carpet
used
The police were given powers of arrest and to seize documents and
question suspects.
The Attorney General, a political appointment, was and still is (with
exception under the 1989 Act ) required to authorise prosecution. - He
issues his FIAT
Pressure from military and security services brought about two
prosecutions of journalists under sections 1 and 2

a) R v Aitken and Others 1970


Aitken received information from a General that the then P.M. had misled
Parliament over the Biafran war (Today??)
A general was given a relevant document by a Colonel based in Nigeria.
Aitken arranged for it to be published in the Daily Telegraph.

THE A.G. GAVE PERMISSION TO PROSECUTE UNDER


SECTION 2 .
Aitken, the Telegraph editor and the colonel were all charged

152

Defence:
i)

Moral duty in public interest to rectify false statements made in


Parliament

ii)
iii)

Political prosecution by a petulant government


And most importantly That the disclosure by the colonel to the
general was unauthorised

The Judge summed up telling the jury that section 2 should be


pensioned of
All were aquitted
This led to the subsequent establishment of a committee of enquiry
under Lord Franks as to the viability and effect of section 2.
The Franks Committee:
i)

Strongly criticized the uncertainty of section 2

ii)

Recommended its replacement with a more specific definition of


categories which should receive protection under Official Secrets
legislation

Accepted by the GOVERNMENT that the mere receipt by the media of


secret information should not be regarded as an offence
Hansard November 22 1976 but NOTHING FURTHER DONE

ABC case. 1978


Duncan Campbell John Berry - Crispen Aubrey (Time Out)

153

Berry an ex soldier gave Campbell & Aubrey information concerning the


UK signals intercept station in Cyprus.
Most of this information already in the hands of Campbell from published
sources i.e. photographs leaflets and in some cases from Ministry of
Defence press statements etc.
All arrested by special branch and security services and a large removal
van took away Campbells collection of material

All three charged under section 1.

Additionally Campbell was alone charged under section 1 with collecting


information of use to an enemy.

The security services ere subsequently shown as being very incompetent


Having advised the AG that the information seized from Campbell
was TOP SECRET
The charge was thus withdrawn.
Although technically proven the judge described them as oppressive and
gave each defendant a conditional discharge.

All three were additionally charged under section 2 with receiving the
information and Berry with passing it.
Cambell & Berry received Conditional discharges and Berry a six
month suspended sentence

154

The AG stated he had been misled by the security services and our
Defence Ministry

OFFICIAL SECRETS ACT 1989


COVERS INSIDERS & OUTSIDERS
INSIDERS:
SECURITY AND INTELLIGENCE SERVICE MEMBERS:
OFFENCE i)

Disclose any information relating to security or intelligence


comes to their notice during their work Section 1(1)

ii)

Not necessarily secret

iii)

No need to prove damage nor harm

iv)

The obligation may be passed to others who work closely with


the security and intelligence services by a written notice section
1(1)(b) n& 1(6)

Others embraced although not falling within (iv):


Civil servants Police and their civilian employees
and
by ministerial prescription i.e. without debate by Parliament (permitted
by the 1989 act) thus

155

1990 employees of the Atomic Energy Authority British Nuclear Fuels


all those employed by the ombudsman Auditor General and the Health
Service Commissioner
Prescription order 1990 (SI 1990 No 200)

DEFENCE

S 2(4) OS ACT 1989

Must prove
Damage to capability to armed forces loss of life or injury to its
members equipment or installations obstruction of British interests
abroad or to the safety of its citizens abroad.
BUT
No need to show damage with regard to crime aspect
Only likely to do so regarding prevention detecting of or the apprehension
or prosecution of suspects.
NO PUBLIC INTEREST DEFENCE
HUMAN RIGHTS
Article 10(1) applies but subject 10(2) restriction as being
necessary in a democratic society
Difficult for court to determine but when information in the public
domain already difficult for the courts to ban publication
But House of Lords felt it was in accordance with article 10(2) to
restrict free speech on the part of former security service officers.
R v Shyler [2002]

156

DEFENCE ADVISORY NOTICES

As the title indicates the notices are advisory and have no legal
sanction.
Issued by
THE PRESS AND BROADCASTING ADVISORY COMMITTEE
Comprises representatives of the armed services Senior civil
servants the press and broadcasting organizations.
The committee has a secretary who is an ex senior member of the
armed services e.g. Major General/Admiral
and
who is available to give advice at short notice to the media
Editors/producers are fully aware of the notices and have access to
the D A Notice secretary
Currently 5 standing notices covering:
i)
ii)
iii)

Military operations
Nuclear and non nuclear weapons
Ciphers and secure communications

157

iv)

Sensitive information

Others may be issued as thought appropriate

BEWARE:
Trust in the system?
Requests for advice may result in injunctions against a publication
- ( e.g. Journalist Jock Kane 1985)

158

INJUNCTIONS & BLACKSTONE - THE


DOCTRINE OF PRIOR RESTRAINT
Commentaries on the laws of England 1765
The liberty of the press is indeed essential to the nature of a free state; but
this consists in laying no previous restraints on publication, and not in
freedom from censure for criminal matter when published. Every free man
has an undoubted right to lay what sentimentshe pleases before the public: to
forbid this is to destroy the freedom of the press; but if he publishes what is
improper, mischievous or illegal, he must take the consequences of his own
temerity
This is enshrined in the first amendment to the American Constitution and
was endorsed by the Federal Supreme Court in the Pentagon Papers
decision.
The United States Government tried to injunct the New York Times who
planed to publish confidential army papers upon American involvement in
Vietnam sting disclosure would seriously damage nation interest.
THE INJUNCTION WAS REFUSED Even though the Newspaper might
commit a criminal offence
Thames Television produced a documentary on the anti pregnancy drug
Primodos. The documentary was injuncted because the program director
had picked up an idea for the program whilst training in a private capacity
members of the claimant company.
Lord Denning thought the Public Interest outweighed commercial interests
but he was outvoted by his legal brethren

159

Schering Chemicals Ltd v Falkman Ltd [1981]


Spycatcher saga ?
The observer and Guardian v United Kingdom [1991]
NOTE WELL:

Injunction against one is an injunction against all


A.G. v Times Newspaper Ltd [1992}
Section 12 Human Rights Act 1998 requires courts to give full
consideration to free speech claims when deciding to grant
injunctions.
Thus the Beckhams were refused an injunction which would have prevented
Andrew Morton from publishing a biography which included confidential
information from their bodyguard
Also no Ambush i.e. both parties to have the opportunity to place their case.

Regulators Media in general


REGULATORS

The PCC (the Press Complaints Commission) is an


independent self-regulatory body which deals with
complaints about the editorial content of newspapers and
magazines (and their websites);

160

The PPCs Code of Practice is intended to set the benchmark


for professional and ethical standards for all members of the
print press (and their online editions);

OFCOM (the Office of Communications) is the


communications regulator for the television and radio
sectors, fixed line telecoms and mobiles, plus the airwaves
over which wireless devices operate;

Phonepay Plus (formerly ICSTIS the Independent


Committee for the Supervision of Standards of Telephone
Information Service) regulates the premium rate phone
companies and services under a Code of Practice;

The Internet Watch Foundation (IWF) is the independent


regulator which monitors child sexual abuse, obscene and
violent content hosted on websites worldwide;

The British Board of Film Classification (BBFC) regulates


and censors a combination of film, video, DVD and video
games;

The Freedom of Information Act 2000 gives citizens the right


of access to information held by public authorities;

The Data Protection Act 1998 gives an individual the right to


see personal data held on them by public authorities;

EU Directive 89/552 Television without Frontiers Directive


(TVWF sans frontires) created the conditions for the free
movement of television broadcasts within the EU;

161

EU Directive 97/36/EC amended the Television without


Frontiers (above) concerning the pursuit of television
broadcasting activities;

Directive 2007/65, the Audiovisual Media Services Directive


(AVMSD), covers video on-demand services and modernized
TV advertising rules.

Jameel and others v Wall Street Journal Europe SPRL


HOUSE OF LORDS
LORDS, BINGHAM, HOFFMANN, HOPE, SCOTT, BARONESS HALE
26, 27, 28 JUNE, 11 OCTOBER 2006
11 OCTOBER 2006
G Robertson QC, R Elliott, G Vassall-Adams for the Appellants
J Price QC, J Dean for the Respondents
Finers Stephens Innocent LLP; Carter-Ruck and Partners
LORD BINGHAM:
MY LORDS,
[1] This appeal raises two questions on the law of libel. The first concerns
the entitlement of a trading corporation such as the Second Respondent
to sue and recover damages without pleading or proving special damage.
The second concerns the scope and application of what has come to be
called Reynolds privilege, an important form of qualified privilege.
[4] On 6 February 2002 the newspaper published the article which gave
rise to these proceedings. It was headed Saudi Officials Monitor Certain
Bank Accounts with a smaller sub-heading Focus Is on Those With
Potential Terrorist Ties. It bore the by-line of James M Dorsey, an Arabicspeaking reporter with specialist knowledge of Saudi Arabia, and
acknowledged the contribution of Glenn Simpson, a staff writer in
Washington. The gist of the article, succinctly stated in the first

162

paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom's
central bank, was, at the request of US law enforcement agencies,
monitoring bank accounts associated with some of the country's most
prominent businessmen in a bid to prevent them from being used,
wittingly or unwittingly, for the funnelling of funds to terrorist
organisations. This information was attributed to US officials and Saudis
familiar with the issue. In the second paragraph a number of companies
and individuals were named, among them the Abdullatif Jamil Group of
companies who, it was stated later in the article, couldn't be reached for
comment.
[5] The jury in due course found that the article referred to was
defamatory of both Respondents. But it was a difficult matter to
investigate and report since information was not freely available in the
Kingdom and the Saudi authorities, even if co-operating closely with
those of the United States, might be embarrassed if that fact were to
become generally known.
[7] The judge also rejected the newspaper's claim to Reynolds privilege
([2004] EWHC 37 (QB)). On this question also the Court of Appeal
upheld his decision, but on a more limited ground. This calls for more
detailed consideration.
[9] Mr Dorsey described attempts to obtain a response from the Group
about his proposed article. He said he had telephoned the Group office at
about 9.0am and left a recorded message. The jury found that the
newspaper had not proved on the balance of probabilities that that was
so. There was, it was agreed, a telephone conversation between Mr
Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5
February, the day before publication. During that conversation, according
to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for
a comment by the Group. He had, he said, no authority to make a
statement and the First Respondent was in Japan, where the time was
3.0am Mr Dorsey denied that Mr Munajjed had asked him to wait. But the
jury found that Mr Munajjed had made that request. It was on this ground,
as I understand, that the Court of Appeal upheld the judge's denial of
Reynolds privilege:
The judge found that there was no compelling reason why Mr
Jameel could not have been afforded 24 hours on the article.
II REYNOLDS PRIVILEGE
[28] The decision of the House in Reynolds v Times Newspapers Ltd
built on the traditional foundations of qualified privilege but carried the law

163

forward in a way which gave much greater weight than the earlier law
had done to the value of informed public debate of significant public
issues. Both these aspects are, I think, important in understanding the
decision.
[29] Underlying the development of qualified privilege was the
requirement of a reciprocal duty and interest between the publisher and
the recipient of the statement in question.
Thus where a publication related to a matter of public interest, it was
accepted that the reciprocal duty and interest could be found even where
publication was by a newspaper to a section of the public or the public at
large. In Reynolds the Court of Appeal restated these tests ([2001] 2 AC
127, 167, 177), although it suggested a third supplemental test which the
House held to be mistaken.
[30] I do not understand the House to have rejected the duty/interest
approach: see Lord Nicholls of Birkenhead, pp 194-195, 197, 204; Lord
Steyn, p 213; Lord Cooke of Thorndon, pp 217, 224, 227; Lord Hope of
Craighead, pp 229, 235; Lord Hobhouse of Woodborough, pp 237, 239.
But Lord Nicholls (p 197) considered that matters relating to the nature
and source of the information were matters to be taken into account in
determining whether the duty-interest test was satisfied or, as he
preferred to say in a simpler and more direct way, whether the public
was entitled to know the particular information.
[31] The necessary pre-condition of reliance on qualified privilege in this
context is that the matter published should be one of public interest. In
the present case the subject matter of the article complained of was of
undoubted public interest. But that is not always, perhaps not usually, so.
It has been repeatedly and rightly said that what engages the interest of
the public may not be material which engages the public interest.
[32] Qualified privilege as a live issue only arises where a statement
is defamatory and untrue. It was in this context, and assuming the
matter to be one of public interest, that Lord Nicholls proposed (at p
202) a test of responsible journalism, a test repeated in Bonnick v
Morris [2002] The rationale of this test is, as I understand, that there is
no duty to publish and the public have no interest to read material which
the publisher has not taken reasonable steps to verify. As Lord Hobhouse
observed with characteristic pungency (p 238), No public interest is
served by publishing or communicating misinformation. But the
publisher is protected if he has taken such steps as a responsible
journalist would take to try and ensure that what is published is
accurate and fit for publication.

164

[33] Lord Nicholls (at p 205) listed certain matters which might be
taken into account in deciding whether the test of responsible
journalism was satisfied. He intended these as pointers which might
be more or less indicative, depending on the circumstances of a
particular case, and not, I feel sure, as a series of hurdles to be
negotiated by a publisher before he could successfully rely on
qualified privilege. Lord Nicholls recognised (at pp 202-203), inevitably
as I think, that it had to be a body other than the publisher, namely the
court, which decided whether a publication was protected by qualified
privilege. But this does not mean that the editorial decisions and
judgments made at the time, without the knowledge of falsity which is a
benefit of hindsight, are irrelevant. Weight should ordinarily be given
to the professional judgment of an editor or journalist in the
absence of some indication that it was made in a casual, cavalier,
slipshod or careless manner.
[34] Some misunderstanding may perhaps have been engendered by
Lord Nicholls' references (at pp 195, 197) to the particular information. It
is of course true that the defence of qualified privilege must be
considered with reference to the particular publication complained of as
defamatory, and where a whole article or story is complained of no
difficulty arises. But difficulty can arise where the complaint relates to one
particular ingredient of a composite story, since it is then open to a
Plaintiff to contend, as in the present case, that the article could have
been published without inclusion of the particular ingredient complained
of. This may, in some instances, be a valid point. But consideration
should be given to the thrust of the article which the publisher has
published. If the thrust of the article is true, and the public interest
condition is satisfied, the inclusion of an inaccurate fact may not
have the same appearance of irresponsibility as it might if the whole
thrust of the article is untrue.
[35] These principles must be applied to the present case. As recorded in
para 8 above, the Court of Appeal upheld the judge's denial of Reynolds
privilege on a single ground, discounting the jury's negative findings
concerning Mr Dorsey's sources: that the newspaper had failed to delay
publication of the Respondents' names without waiting long enough for
the Respondents to comment. This seems to me, with respect, to be a
very narrow ground on which to deny the privilege, and the ruling
subverts the liberalising intention of the Reynolds decision. The subject
matter was of great public interest, in the strictest sense. The article
was written by an experienced specialist reporter and approved by
senior staff on the newspaper and The Wall Street Journal who
themselves sought to verify its contents. The article was

165

unsensational in tone and (apparently) factual in content. The


Respondents' response was sought, although at a late stage, and
the newspaper's inability to obtain a comment recorded. It is very
unlikely that a comment, if obtained, would have been revealing,
since even if the Respondents' accounts were being monitored it
was unlikely that they would know. It might be thought that this was
the sort of neutral, investigative journalism which Reynolds
privilege exists to protect. I would accordingly allow the appeal and
set aside the Court of Appeal judgment.
LORD HOFFMANN:
[38] Until very recently, the law of defamation was weighted in favour of
Claimants and the law of privacy weighted against them. True but trivial
intrusions into private life were safe. Reports of investigations by the
newspaper into matters of public concern which could be construed as
reflecting badly on public figures domestic or foreign were risky. The
House attempted to redress the balance in favour of privacy in Campbell
v MGN Ltd [2004] UKHL 22,
stories of genuine public interest in Reynolds v Times Newspapers Ltd
[2001] 2 AC 127. But this case suggests that Reynolds has had little
impact upon the way the law is applied at first instance. It is
therefore necessary to restate the principles.
[42] The jury found that the article was defamatory of both Claimants.
THE REYNOLDS DEFENCE
[43] The newspaper's principal defence was based on Reynolds v Times
Newspapers Ltd [2001] 2 AC 127. It is called in the trade Reynolds
privilege but the use of the term privilege, although historically accurate,
may be misleading. A defence of privilege in the usual sense is available
when the defamatory statement was published on a privileged occasion
and can be defeated only by showing that the privilege was abused.
[44] Misuse of the privileged occasion is technically known as malice
and the burden is upon the Claimant to prove it. In Reynolds, counsel for
the newspaper invited the House to declare a similar privilege for the
publication of political information. But the House refused to do so.
I therefore agree with the opinion of the Court of Appeal in
Loutchansky v Times Newspapers Ltd (Nos 2-5) [2001] that
Reynolds privilege is a different jurisprudential creature from the
traditional form of privilege from which it sprang. It might more

166

appropriately be called the Reynolds public interest defence rather


than privilege.
APPLYING REYNOLDS
(a) The Public Interest Of The Material
[48] The first question is whether the subject matter of the article
was a matter of public interest. In answering this question, I think that
one should consider the article as a whole and not isolate the defamatory
statement.
If the publication is in the public interest, the duty and interest are
taken to exist.
(b) Inclusion Of The Defamatory Statement
[51] If the article as a whole concerned a matter of public interest, the
next question is whether the inclusion of the defamatory statement
was justifiable.
(c) Responsible Journalism
[53] If the publication, including the defamatory statement, passes
the public interest test, the inquiry then shifts to whether the steps
taken to gather and publish the information were responsible and
fair.
[55] But the standard of responsible journalism is as objective and
no more vague than standards such as reasonable care which are
regularly used in other branches of law. Greater certainty in its
application is attained in two ways. First, as Lord Nicholls said, a body of
illustrative case law builds up. Secondly, just as the standard of
reasonable care in particular areas, such as driving a vehicle, is made
more concrete by extra-statutory codes of behaviour like the Highway
Code, so the standard of responsible journalism is made more specific by
the Code of Practice which has been adopted by the newspapers and
ratified by the Press Complaints Commission. This too, while not binding
upon the courts, can provide valuable guidance.
[56] In Reynolds, Lord Nicholls gave his well-known non-exhaustive
list of ten matters which should in suitable cases be taken into
account. They are not tests which the publication has to pass. In the
hands of a judge hostile to the spirit of Reynolds, they can become ten
hurdles at any of which the defense may fail. That is how Eady J treated
them. The defence, he said, can be sustained only after the closest and

167

most rigorous scrutiny by the application of what he called Lord Nicholls'


ten tests. But that, in my opinion, is not what Lord Nicholls meant. As he
said in Bonnick (at p 309) the standard of conduct required of the
newspaper must be applied in a practical and flexible manner. It must
have regard to practical realities.
[58] I therefore pass to the question of whether the newspaper
satisfied the conditions of responsible journalism. This may be
divided into three topics: the steps taken to verify the story, the
opportunity given to the Jameel group to comment and the
propriety of publication in the light of US diplomatic policy at the
time.
DISPOSAL
[88] In my opinion there was no basis for rejecting the newspaper's
Reynolds defence.
LORD HOPE:
MY LORDS,
[92] I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Bingham of Cornhill. I agree with it,
REYNOLDS PRIVILEGE
[105] I should like to emphasise at the outset that the only question on
which there was a difference of view in the House in Reynolds v Times
Newspapers Ltd [2001] 2 AC 127 on any matter of substance was
whether the issues of justification and qualified privilege should be
reconsidered at a new trial: see Lord Steyn at pp 216D-217A and my own
speech at p 237F-G. It has sometimes been suggested that Reynolds
was a majority decision. But the primary question raised by the
case was whether there should be a new category of privileged
subject matter a generic qualified privilege of political speech, as
Lord Steyn called it at p 209C-D. On that question the House was
unanimous. Everyone accepted that the duty-interest test was an
essential element in the structure of the law of qualified privilege.
There was no dissent from the analysis by Lord Nicholls of Birkenhead of
the way in which the common law test should be adapted so as to strike
a balance between the role of the media and the restrictions that are
necessary in a democratic society for the protection of the reputation of
the individual. Nor was there any dissent from his observation at p 202EF that the common law does not seek to set a higher standard than that
of responsible journalism.
Responsible journalism is a standard which everyone in the media and
elsewhere can recognise. The duty-interest test based on the public's

168

right to know, which lies at the heart of the matter, maintains the essential
element of objectivity. Was there an interest or duty to publish the
information and a corresponding interest or duty to receive it, having
regard its particular subject matter? This provides the context within
which, in any given case, the issue will be assessed. Context is important
too when the standard is applied to each piece of information that the
journalist wishes to publish. The question whether it has been satisfied
will be assessed by looking to the story as a whole, not to each piece of
information separated from its context.
LORD SCOTT:
QUALIFIED PRIVILEGE
[130] Lord Nicholls did not turn his back on the reciprocal
duty/interest test for qualified privilege. Instead he moulded the test
so as to cater for the publication of information that the public as a
whole, as opposed to a specific individual or individuals, was
entitled to know.
It seems to me that the Reynolds case was less a breakthrough
than a reminder of the width of the basic common law principles as
to privilege.

[134] A somewhat different, though no less welcoming, view of Reynolds,


was expressed by the Court of Appeal in Loutchansky v Times
Newspapers Ltd (Nos 2-5) [2002] QB 783.
BARONESS HALE:
MY LORDS,
[145] There are two issues before us and on both of them I agree with
the opinions expressed by my noble and learned friend, Lord Hoffmann.
There is only a little I wish to add on the issue of Reynolds privilege but
rather more on the issue of damage.
THE REYNOLDS DEFENCE
[146] It should by now be entirely clear that the Reynolds defence is
a different jurisprudential creature from the law of privilege,
although it is a natural development of that law. It springs from the
general obligation of the press, media and other publishers to
communicate important information upon matters of general public

169

interest and the general right of the public to receive such


information. It is not helpful to analyse the particular case in terms
of a specific duty and a specific right to know. That can, as
experience since Reynolds has shown, very easily lead to a narrow
and rigid approach which defeats its object. In truth, it is a defence
of publication in the public interest.
[147] This does not mean a free-for-all to publish without being damned.
The public only have a right to be told if two conditions are fulfilled. First,
there must a real public interest in communicating and receiving the
information. This is, as we all know, very different from saying that it is
information which interests the public the most vapid tittle-tattle about
the activities of footballers' wives and girlfriends interests large sections
of the public but no-one could claim any real public interest in our being
told all about it. It is also different from the test suggested by Mr
Robertson QC, on behalf of the Wall Street Journal Europe, of whether
the information is newsworthy. That is too subjective a test, based on
the target audience, inclinations and interests of the particular
publication. There must be some real public interest in having this
information in the public domain. But this is less than a test that the public
need to know, which would be far too limited.
[149] Secondly, the publisher must have taken the care that a
responsible publisher would take to verify the information
published. The actual steps taken will vary with the nature and sources
of the information. But one would normally expect that the source or
sources were ones which the publisher had good reason to think reliable,
that the publisher himself believed the information to be true, and that he
had done what he could to check it. We need more such serious
journalism in this country and our defamation law should encourage
rather than discourage it.
[151] In short, My Lords, if the public interest defence does not
succeed on the known facts of this case, it is hard to see it ever
succeeding.

NOTE:
Highlighting mine Ken Brown

170

Reynolds v The Times


LORD NICHOLLS OF BIRKENHEAD. My Lords, this appeal concerns
the interaction between two fundamental rights: freedom of
expression and protection of reputation. The context is newspaper
discussion of a matter of political importance. Stated in its simplest
form, the newspaper's contention is that a libellous statement of
fact made in the course of political discussion is free from liability if
published in good faith. Liability arises only if the writer knew the
statement was not true or if he made the statement recklessly, not
caring whether it was true or false, or if he was actuated by personal
spite or some other improper motive.
Mr Reynolds' contention, on the other hand, is that liability may also
arise if, having regard to the source of the information and all the
circumstances, it was not in the public interest for the newspaper to
have published the information as it did. Under the newspaper's
contention the safeguard for those who are defamed is exclusively
subjective: the state of mind of the journalist. Under Mr Reynolds'
formulation, there is also an objective element of protection.
The Court of Appeal also considered whether the defendants would be
able to rely on qualified privilege at the retrial. The court held they would
not.
Defamation and truth Lordships' House gave leave to the defendants to
appeal
Truth is a complete defence. If the defendant proves the substantial truth
of the words complained of, he thereby establishes the defence of
justification. It avails a defendant even if he was acting spitefully.
The common law has long recognised the 'chilling' effect of this rigorous,
reputation-protective principle. There must be exceptions. At times
people must be able to speak and write freely, uninhibited by the
prospect of being sued for damages should they be mistaken or
misinformed. In the wider public interest, protection of reputation must
then give way to a higher priority.
Honest comment on a matter of public interest

171

Public interest has never been defined, but in London Artists Ltd v Littler
[1969] 2 QB 375 at 391 Lord Denning MR rightly said that it is not to be
confined within narrow limits. He continued:
'Whenever a matter is such as to affect people at large, so that they may
be legitimately interested in, or concerned at, what is going on; or what
may happen to them or others; then it is a matter of public interest on
which everyone is entitled to make fair comment.'
the basis of our public life is that the crank, the enthusiast, may say what
he honestly thinks as much as the reasonable person who sits on a jury.
The true test is whether the opinion, however exaggerated, obstinate or
prejudiced, was honestly held by the person expressing it (see Silkin v
Beaverbrook Newspapers Ltd [1958] 1 WLR 743 at 746 per Diplock J).
Privilege: factual inaccuracies
There are occasions when the person to whom a statement is made has
a special interest in learning the honestly held views of another person,
even if those views are defamatory of someone else and cannot be
proved to be true. When the interest is of sufficient importance to
outweigh the need to protect reputation, the occasion is regarded as
privileged.
Sometimes the need for uninhibited expression is of such a high order
that the occasion attracts absolute privilege, as with statements made
by judges or advocates or witnesses in the course of judicial
proceedings. More usually, the privilege is qualified in that it can be
defeated if the plaintiff proves the defendant was actuated by
malice.
Over the years the courts have held that many common form situations
are privileged. Classic instances are employment references, and
complaints made or information given to the police or appropriate
authorities regarding suspected crimes. The courts have always
emphasised that the categories established by the authorities are not
exhaustive. The list is not closed.
The established categories are no more than applications, in particular
circumstances, of the underlying principle of public policy. The
underlying principle is conventionally stated in words to the effect
that there must exist between the maker of the statement and the
recipient some duty or interest in the making of the communication.

172

Lord Atkinson's dictum, in Adam v Ward [1917] AC 309 at 334 is much


quoted:
' a privileged occasion is an occasion where the person who makes
a communication has an interest or a duty, legal, social, or moral, to
make it to the person to whom it is made, and the person to whom it is so
made has a corresponding interest or duty to receive it. This reciprocity is
essential.'
the rationale of the underlying public interest on which privilege is
founded. The essence of this defence lies in the law's recognition of the
need, in the public interest, for a particular recipient to receive frank and
uninhibited communication of particular information from a particular
source. That is the end the law is concerned to attain. The protection
afforded to the maker of the statement is the means by which the law
seeks to achieve that end. Thus the court has to assess whether, in the
public interest, the publication should be protected in the absence of
malice.

Privilege and publication to the world at large


Frequently a privileged occasion encompasses publication to one person
only or to a limited group of people. Publication more widely, to persons
who lack the requisite interest in receiving the information, is not
privileged. But the common law has recognised there are occasions
when the public interest requires that publication to the world at
large should be privileged.
Through the cases runs the strain that, when determining whether the
public at large had a right to know the particular information, the court
has regard to all the circumstances. Assess whether the information was
of sufficient value to the public that, in the public interest, it should be
protected by privilege in the absence of malice.
The courts have recognised that the status and activities of certain
bodies are such that members of the public are entitled to know of their
proceedings. Then privilege derives from the subject matter alone.
Fair and accurate reports of the proceedings of these organisations are
privileged. A leading instance is Wason v Walter (1868) LR 4 QB 73
concerning newspaper reports of debates in Parliament. The Court of
Queen's Bench held, by analogy with reports of judicial proceedings,

173

that fair and accurate reports of parliamentary proceedings were


privileged.
In Derbyshire CC v Times Newspapers Ltd [1993] AC 534 this House
held that it was contrary to the public interest for organs of central or local
government to have any right at common law to maintain an action for
defamation. This is an instance, in the field of political discussion, of the
court's concern to remove all unnecessary fetters on freedom of speech.
Beyond that, this decision does not assist in the present appeal.
In its valuable and forward-looking analysis of the common law, the
Court of Appeal in the present case highlighted that in deciding
whether an occasion is privileged the court considers, among other
matters, the nature, status and source of the material published and
the circumstances of the publication.
In stressing the importance of these particular factors, the court
treated them as matters going to a question (the circumstantial test)
separate from, and additional to, the conventional duty-interest
questions
With all respect to the Court of Appeal, this formulation of three
questions gives rise to conceptual and practical difficulties and is
better avoided. There is no separate or additional question. These
factors are to be taken into account in determining whether the dutyinterest test is satisfied or, as I would prefer to say in a simpler and more
direct way, whether the public was entitled to know the particular
information. The duty-interest test, or the right to know test, cannot
be carried out in isolation from these factors and without regard to
them. A claim to privilege stands or falls according to whether the
claim passes or fails this test. There is no further requirement.
Statutory privilege
Many, if not all, of the common law categories of case where reports of
proceedings attract privilege are now the subject of statutory privilege.
A new category of privileged subject matter?
I turn to the appellants' submissions. The newspaper seeks the
incremental development of the common law by the creation of a new
category of occasion when privilege derives from the subject matter
alone: political information.

174

My starting point is freedom of expression. The high importance of


freedom to impart and receive information and ideas, freedom to
disseminate and receive information on political matters is essential to
the proper functioning of the system of parliamentary democracy
cherished in this country. This freedom enables those who elect
representatives to Parliament to make an informed choice, regarding
individuals as well as policies, and those elected to make informed
decisions. Freedom of expression will shortly be buttressed by
statutory requirements. Under s 12 of the 1998 Act,
To be justified, any curtailment of freedom of expression must be
convincingly established by a compelling countervailing consideration,
and the means employed must be proportionate to the end sought to be
achieved.
The interest of a democratic society in ensuring a free press weighs
heavily in the balance in deciding whether any curtailment of this freedom
bears a reasonable relationship to the purpose of the curtailment. In this
regard it should be kept in mind that one of the contemporary
functions of the media is investigative journalism.
(1999) 7 BHRC 289 at 302
Reputation is an integral and important part of the dignity of the
individual. Once besmirched by an unfounded allegation in a national
newspaper, a reputation can be damaged for ever, especially if there is
no opportunity to vindicate one's reputation. When this happens, society
as well as the individual is the loser.
The crux of this appeal, therefore, lies in identifying the restrictions which
are fairly and reasonably necessary for the protection of reputation.
Freedom of speech does not embrace freedom to make defamatory
statements out of personal spite or without having a positive belief
in their truth.
In the case of statements of opinion on matters of public interest, that is
the limit of what is necessary for protection of reputation. Readers and
viewers and listeners can make up their own minds on whether they
agree or disagree with defamatory statements which are recognisable as
comment and which, expressly or implicitly, indicate in general terms the
facts on which they are based.
With defamatory imputations of fact the position is different and more
difficult. The appellant newspaper commends reliance upon the ethics of
professional journalism. The decision should be left to the editor of
the newspaper. Unfortunately, in the United Kingdom this would not

175

generally be thought to provide a sufficient safeguard.


The outcome of a court decision, it was suggested, cannot always be
predicted with certainty when the newspaper is deciding whether to
publish a story. To an extent this is a valid criticism. A degree of
uncertainty in borderline cases is inevitable. This uncertainty, coupled
with the expense of court proceedings, may 'chill' the publication of true
statements of fact as well as those which are untrue.
The common law does not seek to set a higher standard than that of
responsible journalism, a standard the media themselves espouse.
An incursion into press freedom which goes no further than this would not
seem to be excessive or disproportionate. The investigative journalist has
adequate protection.
Failure to report the plaintiff's explanation is a factor to be taken
into account. Depending upon the circumstances, it may be a
weighty factor. But it should not be elevated into a rigid rule of law. \
Human rights jurisprudence
The common law approach accords with the present state of the human
rights jurisprudence. The immensely influential judgment in Lingens v
Austria (1986) 8 EHRR 407 concerned expressions of opinion, not
statements of fact.
the European Court of Human Rights stated that a careful distinction
needs to be made between facts and value judgments
But a journalist is not required to guarantee the accuracy of his
facts. Bladet Troms v Norway (1999) 6 BHRC 599 involved newspaper
allegations of fact: cruelty by seal hunters. The European Court of
Human Rights considered whether the newspaper had a reasonable
basis for its factual allegations. Similarly, in Thorgeirson v Iceland
(1992) 14 EHRR 843 two newspaper articles reported widespread
rumours of brutality by the Reykjavik police. These rumours had some
substantiation in fact: a policeman had been convicted recently. The
purpose of the articles was to promote an investigation by an
independent body. The court held that although the articles were
framed in particularly strong terms, they bore on a matter of serious
public concern. It was unreasonable to require the writer to prove
that unspecified members of the Reykjavik police force had
committed acts of serious assault resulting in disablement.

176

None of these three latter cases involved political discussion, but for this
purpose no distinction is to be drawn between political discussion and
discussion of other matters of public concern (see Thorgeirson v Iceland
(1992) 14 EHRR 843 at 863864 and 865 (paras 61 and 64)).
Conclusion
My conclusion is that the established common law approach to
misstatements of fact remains essentially sound. The common law
should not develop 'political information' as a new 'subject matter'
category of qualified privilege, whereby the publication of all such
information would attract qualified privilege, whatever the circumstances.
That would not provide adequate protection for reputation. Moreover, it
would be unsound in principle to distinguish political discussion
from discussion of other matters of serious public concern. The
elasticity of the common law principle enables interference with
freedom of speech to be confined to what is necessary in the
circumstances of the case. This elasticity enables the court to give
appropriate weight, in today's conditions, to the importance of freedom of
expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into
account include the following. The comments are illustrative only.
(1) The seriousness of the allegation. The more serious the charge,
the more the public is misinformed and the individual harmed, if the
allegation is not true. (2) The nature of the information, and the
extent to which the subject matter is a matter of public concern. (3)
The source of the information. Some informants have no direct
knowledge of the events. Some have their own axes to grind, or are
being paid for their stories. (4) The steps taken to verify the
information. (5) The status of the information. The allegation may
have already been the subject of an investigation which commands
respect. (6) The urgency of the matter. News is often a perishable
commodity. (7) Whether comment was sought from the plaintiff. He
may have information others do not possess or have not disclosed.
An approach to the plaintiff will not always be necessary. (8)
Whether the article contained the gist of the plaintiff's side of the
story. (9) The tone of the article. A newspaper can raise queries or
call for an investigation. It need not adopt allegations as statements
of fact. (10) The circumstances of the publication, including the
timing.

177

This list is not exhaustive. The weight to be given to these and any
other relevant factors will vary from case to case. Any disputes of
primary fact will be a matter for the jury, if there is one. The decision on
whether, having regard to the admitted or proved facts, the publication
was subject to qualified privilege is a matter for the judge. This is the
established practice and seems sound.
In general, a newspaper's unwillingness to disclose the identity of its
sources should not weigh against it.
Above all, the court should have particular regard to the importance of
freedom of expression. The press discharges vital functions as a
bloodhound as well as a watchdog.
Privilege and the facts of this case
A most telling criticism of the article is the failure to mention Mr Reynolds'
own explanation to the Dil. An article omitting all reference to this
statement could not be a fair and accurate report of proceedings in the
Dil.
LORD STEYN. My Lords, I gratefully adopt the account of the
background given by Lord Bingham of Cornhill CJ, in sections I, II,
and III of the judgment of the Court of Appeal ([1998] 3 All ER 961 at
965972), as well as the summary given by my noble and learned
friend Lord Nicholls of Birkenhead. I therefore turn directly to the
central issues.
THE NEW LANDSCAPE
The present case involves a defamatory and factually false statement
which the newspaper honestly believed to be true.
(1999) 7 BHRC 289 at 308
It is worth considering why Lord Goff and Lord Keith could so confidently
assert that the law of England and art 10 of the convention is the same.
In my judgment the reasons are twofold. First, there is the principle of
liberty. Whatever is not specifically forbidden by law, individuals
and their enterprises are free to do (see [1990] 1 AC 109 at 283 where
Lord Goff stated that in England 177177177erybody is free to do
anything, subject only to the provisions of the law'). By contrast the
executive and judicial branches of government may only do what the law
specifically permits.

178

Secondly, there is a constitutional right to freedom of expression in


England (see Cassell & Co Ltd v Broome [1972] AC 1027 at 1133 per
Lord Kilbrandon).
THE ISSUES
Issue (1): generic qualified privilege and political speech
On balance two particular factors have persuaded me to reject the
generic test. First, the rule and practice in England is not to compel a
newspaper to reveal its sources (see s 10 of the Contempt of Court Act
1981, RSC Ord 82, r 6 and Goodwin v UK (1996) 1 BHRC 81 at 95
(para 39 I would answer question (1) by saying that there is no generic
qualified privilege of political speech in England.
Issue (2): soundness of the circumstantial test
My Lords, it is important to appreciate that the judgment of the Court of
Appeal marked a development of English law in favour of freedom of
expression. In the context of political speech the judgment recognised a
qualified privilege, dependent on the particular circumstance of the case,
provided that three requirements are fulfilled. The first and second are
the familiar requirements of duty and interest. The Court of Appeal then
stated a third and separate requirement.
the Court of Appeal observed:
it is one thing to publish a statement which the person defamed has been
given the opportunity to rebut, and quite another to publish a statement
without any recourse to the person defamed where such recourse was
possible; it is one thing to publish a statement which has been so far as
possible checked, and quite another to publish it without such verification
as was possible and as the significance of the statement called for. While
those who engage in public life must expect and accept that their public
conduct will be the subject of close scrutiny and robust criticism, they
should not in our view be taken to expect or accept that their conduct
should be the subject of false and defamatory statements of fact unless
the circumstances of the publication are such as to make it proper, in the
public interest, to afford the publisher immunity from liability in the
absence of malice.
For the newspaper counsel argued that the particular requirements of the
circumstantial test stated by the Court of Appeal are unduly restrictive.
There is force in this argument. I will return to it. Counsel for Mr Reynolds
pointed out that there is a structural flaw in the circumstantial test. He
invited your Lordships not to adopt it. I would not accept the

179

circumstantial test is soundly based. Having reached this point I would


not wish to be taken to reject entirely the reasoning of the Court of
Appeal.
I would however rule that the circumstantial test should not be
adopted.
Issue (3): the alternative tests of duty and interest
If both the generic test and the circumstantial test are rejected, as I
have done, the only sensible course is to go back to the traditional
twofold test of duty and interest. These tests are flexible enough to
embrace, depending on the occasion and the particular circumstances, a
qualified privilege in respect of political speech published at large.
The context in which the qualified privilege of free speech should be
applied is all-important. It was said by counsel for the newspaper that the
English courts have not yet recognised that the press has a general duty
to inform the public of political matters and that the public has a right to
be so informed. If there is any doubt on the point, this is the occasion for
the House to settle the matter. It is an open space in the law which can
be filled by the courts. It is true that in our system the media have no
specially privileged position not shared by individual citizens. On the
other hand, it is necessary to recognise the 'vital public watchdog role of
the press' as a practical matter (see Goodwin v UK (1996) 1 BHRC 81 at
95 (para 39)). The role of the press, and its duty, was well described by
the European Court of Human Rights in Castells v Spain (1992) 14
EHRR 445 at 476 (para 43) in the following terms:
' the pre-eminent rle of the press in a State governed by the rule of
law must not be forgotten. Although it must not overstep various bounds
set, inter alia, for the prevention of disorder and the protection of the
reputation of others, it is nevertheless incumbent on it to impart
information and ideas on political questions and on other matters of
public interest. Freedom of the press affords the public one of the best
means of discovering and forming an opinion of the ideas and attitudes of
their political leaders. In particular, it gives politicians the opportunity to
reflect and comment on the preoccupations of public opinion; it thus
enables everyone to participate in the free political debate which is at the
very core of the concept of a democratic society.'
In De Haes v Belgium (1997) 25 EHRR 1 the European Court of
Human Rights again emphasised that the press plays an essential

180

role in a democratic society. The court trenchantly observed ((1997)


25 EHRR 1 at 53 (para 39)):
'It is incumbent on the press to impart information and ideas of
public interest. Not only does the press have the task of imparting
such information and ideas: the public also has a right to receive
them.'
This principle must be the foundation of our law on qualified
privilege of political speech.
The correct approach to the line between permissible and impermissible
political speech was indicated by the European Court of Human Rights in
Lingens v Austria (1986) 8 EHRR 407 at 419 (para 42) as follows:Implicit
in that dictum is the distinction that speech about political matters has a
higher value than speech about private lives of politicians.
Moreover, it will always be necessary to take into account the
dynamics of the role of the press and that 'news is a perishable
commodity and to delay its publication, even for a short period, may
well deprive it of all its value and interest' (see Sunday Times v UK
(No 2) (1991) 14 EHRR 229 at 242 (para 51)).
Issue (5): the decision of the Court of Appeal
The only escape from this outcome is to say that a failure to publish the
explanation given by Mr Reynolds in the Dil precludes the newspaper
as a matter of law from relying on the qualified privilege of political
speech. My Lords, I have already explained why I would not put the law
in such a rigid straight jacket. And my understanding is that there is no
support for such a rule in the speeches delivered today.
For these reasons I would hold that the Court of Appeal's ruling that 'this
was not a publication which should in the public interest be protected
by privilege in the absence of malice' should not be upheld
Issue (6): the disposal of the appeal
I would allow the appeal and remit the issue of qualified privilege to be
considered at the retrial.
LORD COOKE OF THORNDON. My Lords, I am in full agreement
with the speech of my noble and learned friend Lord Nicholls of
Birkenhead.

181

The article sued on is a mixture of allegations of fact, comment and


reporting. The chief defence at the trial was justification: that is to say,
truth. The sting of the article was that Mr Reynolds had lied to and
deceived by non-disclosure the Dil and his colleague in government,
Other defences pleaded had been fair comment on a matter of public
interest, and a fair and accurate report of proceedings in public of the
Irish legislature (see Defamation Act 1952, s 7 and Sch, paras 1 and 14;
cf Defamation Act 1996, s 15 and Sch 1, para 1). But both these
defences were abandoned at the outset of the trial. Fair (that is to say,
honest) comment would have failed because, as the jury in effect found,
the basic facts were not truly stated. To the extent that the article was a
fair and accurate report of proceedings in the Dil, it would have been
protected by statutory qualified privilege; but it was not a fair and
accurate report, as it omitted the explanation given to the Dil by Mr
Reynolds. In any event the reporting of the proceedings in the Dil
was mixed up with other allegations, including lying, which the
newspaper appeared to adopt as its own or to accept; and these
would have been outside the statutory reporting privilege.
In that situation the defence could not succeed unless the case could be
brought within the protection of the subsisting principles of the common
law regarding qualified privilege (which are not limited or abridged by the
statutory privileges: see s 7(4) of the 1952 Act and cf s 15(4) of the 1996
Act); or unless the court could be persuaded to introduce into English law
a new generic head of qualified privilege for political discussion.
As I understand it, none of your Lordships who sat in this case and in the
New Zealand Lange v Atkinson case favours any new form of generic
privilege for political discussion; and I am of the same mind for the
following main reasons.
(i) Although investigative reporting can be of public benefit, the
commercial motivation of the press and other sections of the media
can create a temptation, not always resisted, to exaggerate, distort
or otherwise unfairly represent alleged facts in order to excite the
interest of readers, viewers or listeners.
. In the United Kingdom the common law and practice regard protection
of media sources has been strengthened by s 10 of the Contempt of
Court Act 1981, ing prohibiting any court from requiring disclosure of a
journalistic source unless satisfied that disclosure is necessary in (inter
alia) the interests of justice.
(iii) There are further reasons why the exception of malice is a dubious
safeguard. (iv) It is doubtful whether the suggested new defence could
sensibly be confined to political discussion. There are other public figures

182

who exercise great practical power over the lives of people or great
influence in the formation of public opinion or as role models. Such power
or influence may indeed exceed that of most politicians. The rights and
interests of citizens in democracies are not restricted to the casting of
votes. Matters other than those pertaining to government and politics
may be just as important in the community; and they may have as strong
a claim to be free of restraints on freedom of speech.
(v) The existing balance between the right to personal reputation and
freedom of speech has been carefully and gradually developed over the
years by common law and statutes. It is true that the restrictions on
freedom of speech that have been thought necessary to give reasonable
protection to personal reputation may have a tendency to chill the
publication, not only of untruths, but also of that which may be true but
cannot be proved to be true. But there is nothing new in this. Nor, as far
as I am aware, is there any way of assessing which tendency is the
greateralthough experience of libel litigation is apt to generate a
suspicion that it is the former.

Lord Nicholls has listed, non-exhaustively, matters to be taken into


account. As the Court of Appeal suggested, this brings English law into a
position probably not very different from that produced by the Australian
reasonableness test, but perhaps rather more consonant with common
law tradition. I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD. My Lords, among the issues which
are raised by this case are two important questions which relate to
the structure of the law of defamation in its application to qualified
privilege.
in order to decide whether, in the particular circumstances, the occasion
on which the statement was made was one which entitled the maker of it
to the protection of the qualified privilege. Giving the judgment of the
Court of Appeal, Lord Bingham of Cornhill CJ said that three tests
required to be satisfied: the duty test, the interest test and the
circumstantial test. At the end of the judgment he said that the duty
and interest tests were, in general, satisfied in this case but that the
court could not regard the circumstantial test as satisfied.
I think that three factors are relevant to the issue as to whether a
generic qualified privilege can be recognised. The first relates to the

183

precision with which the category can be described. The second


relates to the persons to whom the material is to be communicated.
The third relates to the issue of malice.
If the category cannot be described precisely, it will be at risk of
enlargement or erosion case by case and thus of losing touch with the
underlying justification for the creation of the category. Where imprecision
is unavoidable, the better course would seem to be to take each case on
its own facts and circumstances. If the category is of a kind where the
communication is made to a particular person or group of persons, and
not to the public generally, it may be thought that the advantages of
precision outweigh those which come with flexibility. The consequences
to the person who is the subject of the communication are likely to be
less serious than they would be if the defamatory statement of fact is
published generally. But where the category involves communication to
the public, the question must be whether the public interest in the receipt
of the information will always outweigh the general public interest in
protecting the reputation of the individual. This is a question which is
particularly sensitive to changing circumstances, whether they be social
or political, and to changes in the way in which information is presented
or disseminated. As for the issue of malice, the less open the
communicator is to scrutiny, the more important it is likely to be to retain
the benefits of flexibility. Qualified privilege, in other words, should not be
given to a category where the occasion of the communication is such that
the privilege is at risk of becoming, in practice, absolute.
But the question remains: should we now recognise a common law
generic qualified privilege for political discussion? On balance I am of the
opinion that this would not be satisfactory, bearing in mind the nature of
the occasion and the use which would be likely to be made of it.
The circumstantial test
There is no doubt that the Court of Appeal broke new ground when
it identified this as an additional test which had to be satisfied in
relation to any individual occasion when applying the law of
qualified privilege
In my opinion the circumstantial test is confusing and it should not be
adopted.
Conclusion
I consider that the Court of Appeal were wrong

184

I would allow the appeal. In my opinion the question of law as to whether


the occasion was privileged should be reconsidered by the judge at the
new trial.
LORD HOBHOUSE OF WOODBOROUGH. My Lords, I agree that this
appeal should be dismissed for the reasons given by my noble and
learned friend Lord Nicholls of Birkenhead. Like my noble and
learned friend Lord Cooke of Thorndon, I am in full agreement with
the speech of Lord Nicholls. The few words which I will add should
not be read as in any way detracting from the clarity of that
agreement.

Roberts and another v Gable and others


COURT OF APPEAL (CIVIL DIVISION)
WARD, SEDLEY, MOORE-BICK LJJ
22 FEBRUARY, 12 JULY 2007
12 JULY 2007
H Tomlinson QC and A Davies for the Appellant
G Millar QC and G Vassall-Adams for the Respondent
Osmond & Osmond; Kosky Seal
WARD LJ:
A SHORT INTRODUCTION
[1] The Claimants, Christopher and Barry Roberts, claim that the
Defendants, Gerry Gable, Steve Silver and the Searchlight Magazine Ltd
libelled them in an article in the October 2003 edition of a monthly
magazine called Searchlight, the natural and ordinary meaning of which
is said to be that:
(i) the First Claimant stole money collected at a British National Party
('BNP') rally,
(ii) he did not return it until threatened with being reported to the police,
(iii) both Claimants threatened to kneecap, torture and kill Dave Hill and
Robert Jeffries alias Bob James, and the families of Dave Hill and Robert
Jeffries alias Bob James and

185

(iv) both Claimants might be subject to police investigation.


[2] The Defendants advanced two defences to this claim,
justification and qualified privilege. The appeal gives rise to important
issues about the operation of the so-called Reynolds' and reportage
defences.

The purpose of the article complained of was not to suggest that the
allegations of either side were true, but to expose the very fact of the
divisions within a political party trying to present a united and respectable
front in advance of coming elections.
It was in those circumstances that he wrote the piece which is now the
subject of this libel claim.
THE LIBELLOUS ARTICLE
The Defendants' case is that the activities of prominent members of
a political party are always a matter of public interest and that they
were merely reporting the allegations without adopting or endorsing
them thus giving them a good defence under the recently emerging
reportage doctrine referred to in Al-Fagih v HH Saudi Research and
Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] EMLR 215.
THE JUDGMENT UNDER APPEAL
[26] The case is now reported at [2006] EMLR 23. Eady J made these
findings:
16 It will thus be apparent that reporting both sides, in a
disinterested way, is an important element in the doctrine of
reportage.
[27] He then dealt with the Claimants' submission that the Defendants
would fail each and every one of Lord Nicholls ten non-exhaustive tests
set out in Reynolds observing:
25 . . . I note in passing that they do not necessarily fit the reportage
template (which was only articulated subsequently) as well as those
situations where defamatory allegations appear to readers to have been
adopted. Nevertheless, it is still no doubt right to have them in mind.
28 No steps were taken to verify the information (as was also true in AlFagih). That would not be fatal, however, in a reportage case, where the

186

fact of the allegations being made is what is important. Indeed, as Simon


Brown LJ had commented, verification could be regarded as inconsistent
with objective reporting.
29 So too, the 'source' is of less significance in a reportage case, since it
is not the reliability of either side which matters so much as the nature of
the quarrel.
35 It will by now be apparent why I commented that Lord Nicholls'
tests did not comfortably fit into a reportage case . . .
Notwithstanding their cogency, it seems to me that in a reportage
context this is a stronger case than Al-Fagih because of the
significance to the British public and to the London electorate in
particular . . .
36 There is a duty ('social or moral') upon political commentators
generally, including Mr Gable, to cover the goings-on in political
parties, including disputes, fully and impartially. There is a
corresponding legitimate interest in the public, and especially those
who have a vote, to have such information available. 37 In all the
circumstances, I have no hesitation in upholding the privilege defence.
A SUMMARY OF THE SUBMISSIONS
34 It is submitted that the 'reportage' defence only applies when
four conditions are satisfied:
(1) there is a continuing and active public dispute on a matter of
public interest;
(2) where the urgency of the matter makes verification in the
ordinary way difficult or undesirable;
(3) the reported allegations are attributed and not adopted;
(4) the reported allegations do not involve misconduct which has
wider ramifications that is misconduct which potentially exposed
those responsible to third party sanctions.
THE REYNOLDS' DEFENCE
[32] The libel law landscape has been liberalised by Reynolds. Although
it is tempting for the purpose of this judgment to follow Simon Brown LJ's
approach in Al-Fagih and say that one can take as read the bulk of what
was said in each of the five speeches in Reynolds, I do need to set the
scene in a little more detail in order to do justice to the powerful
arguments addressed to us in a field in which a corpus of case law is

187

still being built up, in the development of which we are invited to


participate. Jameel (Mohammed) v Wall Street Journal Europe Sprl
[2006] UKHL 44, [2007] AC 359, [2006] 3 WLR 642, is the most recent
valuable elucidation of the proper approach. Without citing great swathes
of the opinions expressed in those cases and at the risk of
oversimplification, the relevant principles which inform the case before us
can perhaps be stated as follows:

(1) The chilling effect which the common law's rigorous protection
of reputation has had on the media must now to be acknowledged
and, according proper weight to ECHR jurisprudence, reputation
must now give some way to what may be regarded as the
higher priority of what Lord Steyn at p 207 G describes as the
fundamental constitutional right, that of freedom of
expression.

(2) Though the categories of privilege are not exhaustive and the
list is not closed, a generic qualified privilege of political speech
was to be rejected. The duty/interest test remains the essential
element in the structure of qualified privilege even though
Lord Hoffmann prefers in Jameel para 46 to call it the
Reynolds public interest defence and Baroness Hale in para
146 prefers a defence of publication in the public interest.

(3) That duty/interest test can be satisfied if the public is


entitled to know the particular information being published subject
to two essential pre-requisites.

(4) The first is that the article as a whole must be in the public
interest. What engages the interest of the public, as in the example
given by Baroness Hale, the most vapid tittle tattle about the
activities of footballers' wives and girlfriends, may not be material
which truly engages the public interest.

(5) Responsible journalism is the second pre-requisite.

188

(6 due weight must be given to editorial judgement.

(7) Interference with freedom of speech is to be confined to


what is necessary in the circumstances the matters usually to
be taken into account will include the following ten factors put
forward by Lord Nicholls at p 205:
(8) This list is not exhaustive. The weight to be given these and
any other relevant factors will vary from case to case. The list
certainly does not set up a series of hurdles to be negotiated by a
publisher before he can successfully rely on qualified privilege.

(9) Any lingering doubt should be resolved in favour of publication.

REPORTAGE
[34] Reportage is a fancy word. The Concise Oxford Dictionary
defines it as the describing of events, esp the reporting of news etc
for the press and for broadcasting. It seems we have Mr Andrew
Caldecott QC to thank or to blame for its introduction into our
jurisdiction. The doctrine first saw the light of day in Al Fagih.
Simon Brown LJ said in para 6 that it was a convenient word to
describe the neutral reporting of attributed allegations rather than
their adoption by the newspaper. That may indeed conveniently
describe what it is but there is more to it than that and it is necessary to
see how this new doctrine fits into the firmament.
AL FAGIH
[35] Since Mr Tomlinson seeks to distinguish his case from Al Fagih, it is
necessary to examine it closely. The Claimant (AF) and a Dr Al Mas'aari
(AM) were prominent members of a dissident political organisation (the
Committee) opposed to the existing Saudi Arabian government. The
Defendant newspaper supported the government and was sponsored by
the Saudi royal family. The Committee was riven by a dispute between
AF, the manager of its London office, and AM its spokesman. This dispute
escalated to the point that both men were issuing press releases
reporting their side of the problem and these were avidly reported by the
Defendant on a day to day basis as the saga unfolded. On 5 March 1996

189

AM issued his press release announcing the expulsion of AF and setting


out a number of allegations against him one of which was of his
spreading malicious rumours to defame the honour of his fellow members
of the Committee and the women of certain provinces in Saudi Arabia.
This was reported the following day, 6 March, by the Defendant though
the scandal-mongering allegation was slightly toned down. AF's riposte
the same day was to issue his press release announcing AM's removal
as the Committee's official spokesman. The Defendant's journalist spoke
to AM for his reaction. In the course of this conversation AM gave as an
example of the rumours that were being spread by AF that AF had
accused his mother of bringing women to him at home. AM said he would
be able to produce tape recordings to confirm what was being said. That
was reported in the Defendant newspaper on 7 March. AF read it with
shock and disbelief because in Muslim society an allegation that a person
had made imputations of a sexual nature such as he was alleged to have
made was regarded with greater censure than the person of whom the
imputations were made. Later that day the journalist telephoned AF to
seek his comments on the article, the truth of which AM denied. On 8
March the newspaper published another long article about the split within
the Committee and included AF's response to the article.
[36] It is important to note that Mr Caldecott accepted that he had to bring
the defence of qualified privilege within the ambit of Reynolds as those
principles had to apply in every case, irrespective of whether or not it was
within the field of political discussion, whether the defamatory allegation
was adopted or un-adopted, attributed or un-attributed. His submission
was that qualified privilege was established because these reports
were made within the context of a political dispute, were attributed
to a political rival and were not adopted by the newspaper.
[37] Simon Brown LJ reached these conclusions:
45 At the end of the day it is necessary to stand back from much of
the detail and ask oneself the root question whether in all the
circumstances of the case the duty-interest test (or the right to
know test) was satisfied . . .
50 In short, the case for finding qualified privilege here seems to be not
merely to have been very much stronger than in Reynolds . . . but strong
enough not to have been held forfeit by the Appellant's failure to turn an
objective report into a verified and adopted allegation. To my mind AK
was entitled in this case to publish without attempting verification.
Indeed in the present context verification could even be thought
inconsistent with the objective reporting of the dispute . . . .

190

51 I am not, of course, saying that verification (or at least an attempt at


verification) of a third party's allegations will not ordinarily be appropriate
and perhaps even essential. In rejecting the general claim for qualified
privilege for political discussion Lord Nicholls said in Reynolds at 203B:
'One difficulty with this suggestion is that it would seem to leave a
newspaper open to publish a serious allegation which it had been wholly
unable to verify. Depending on the circumstances, that might be most
unsatisfactory.'
52 I am saying, however, that there will be circumstances where, as here,
that may not be 'most unsatisfactory' where, in short, both sides to a
political dispute are being fully, fairly and disinterestedly reported in their
respective allegations and responses. In this situation it seems to me that
the public is entitled to be informed of such a dispute without having to
wait for the publisher, following an attempt at verification, to commit
himself to one side or the other.
[39] Latham LJ concluded that:
It is the fact that the allegation of a particular nature has been made
which is in this context important, and not necessarily its truth or
falsity (emphasis added).
...
67 . . . It seems to me that in the context of allegation and counterallegation as was undoubtedly the case here, the interested reader
was entitled to know what type of allegations were being made from
time to time by one side against the other,
OTHER CASES OF REPORTAGE
[41] Reportage is next mentioned in Mark v Associated Newspapers
Ltd [2002] EMLR 38. There the Daily Mail repeated assertions in the
Mail on Sunday that Miss Mark, the Prime Minister's former nanny, had
authorised publication of material from her book which she ought not to
have done without the Blairs' consent and, moreover, that she had
misrepresented her position when claiming to have been devastated by
the publication of extracts from her book in the Mail on Sunday. These
were defamatory remarks. The Daily Mail, however, also published her
denial that she had authorised publication. The two central questions
which arose on the appeal were (1) whether the repetition rule was
reconcilable with Strasbourg jurisprudence, and (2) even if it is, does the
reporting within the same publication of two conflicting statements, the
one defamatory, the other its denial, without the publishers disclosing a

191

particular preference for either, have the consequence that the denial is
to be regarded as the antidote to remove the bane of the publication in a
way which results in its losing its otherwise defamatory meaning. This
court found there was no inconsistency between the repetition rule and
decisions of the European Court of Human Rights and that it was only in
cases where the antidote so obviously extinguished the bane that no
issue could properly be left to the jury that the judge should rule at an
interim stage that the article was not capable of being defamatory. In the
course of his judgment Simon Brown LJ said of Al-Fagih:
35 In short, whilst I am certainly prepared to recognise that the
approach adopted in Al-Fagih may need to be taken further still
rather than perhaps confined merely to the reporting of statements
(attributed and un-adopted) by both sides to a political dispute I
reject entirely the argument that the repetition rule as such needs
changing. To regard reportage as being incapable of harming a
person's reputation would be to introduce into the law a fiction
which the repetition rule is designed to avoid.
[42] The doctrine is next mentioned in Galloway v Telegraph Group
Ltd [2006] EMLR 221. The articles concerned asserted that Mr Galloway,
a well-known Member of Parliament, was in the pay of Saddam Hussein,
secretly receiving sums to the order of 375,000 a year, that he had
diverted monies from the Oil for Food Programme thus depriving the Iraqi
people whose interests he claimed to represent of food and medicine and
that he had probably used the Mariam appeal as a front for personal
enrichment. The Daily Telegraph did not seek to justify these defamatory
statements as true but, relying upon the fact that they were based on
documents found by their reporter in Baghdad claimed that the
publication was protected by privilege, inter alia, as reportage. The Court
of Appeal held:
48 It is not in dispute that the Baghdad documents were of great interest
to the public and The Daily Telegraph was naturally very keen to publish
them. If the documents had been published without comment or further
allegations of fact Mr Galloway could have no complaint since, in so far
as they contained statements or allegations of fact it was in the public
interest for The Daily Telegraph to publish them, at any rate after giving
Mr Galloway a fair opportunity to respond to them. Such publication
would be reportage. The balance would come down in favour of freedom
of expression, which, subject to art 10.2, is protected by art 10.1 of the
Convention, and the statements would be protected by privilege . . .

192

59 It appears to us that the newspaper was not merely reporting


what the Baghdad documents said but that . . . it both adopted and
embellished them. It was alleging that Mr Galloway took money from
the Iraqi oil-for-food programme for personal gain. That was not a
mere repeat of the documents, which in our view did not, or did not
clearly, make such an allegation . . . the thrust of the coverage was
that The Daily Telegraph was saying that Mr Galloway took money
to line his own pockets. In all the circumstances we answer the
question whether the newspaper adopted and embellished the
statements in the Baghdad documents in the affirmative . . . .
[43] Finally, we find some endorsement of the doctrine in Jameel. Lord
Hoffmann said in para 62:
In most cases the Reynolds defence will not get off the ground unless
the journalist honestly and reasonably believed that the statement was
true but there are cases ('reportage') in which the public interest lies
simply in the fact that the statement was made, when it may be clear that
the publisher does not subscribe to any belief in its truth (emphasis
added).
HUMAN RIGHTS JURISPRUDENCE

MEDIA ETHICS A brief note

Why do journalists need professional ethics?


Dont let the facts get in the way of a good story.
Ethics, codes and moral guidance.

NEWSGATHERING, MISREPRESENTATION, CLANDESTINE


METHODS
NEWSGATHERING:

193

International Federation of Journalists


The journalist shall use only fair methods to obtain news, photographs
and documents.
National Union of Journalists Handbook 2005
A journalist shall obtain information, photographs and illustrations only
by straightforward means. The use of other means can be justified only
by overriding considerations of the public interest.
BBC Code of Ethics
See www.bbc.co.uk/guidelines/editorialguidelines/
No discussion of misrepresentation, only subterfuge
Press Complaints Commission PCC Code
Cl. 8 Hospitals and similar institutions- identify and obtain permission
from a responsible executive before entering non-public areas. Subject
to public interest as below.
Cl. 10 Clandestine devices and subterfuge Press must not seek to
obtain or publish material acquired by using hidden cameras or listening
devices, or by intercepting phone calls, messages or e-mails or by
removal documents or photographs.
ENGAGING IN MISREPRESENTATION OR SUBTERFUGE CAN
GENERALLY BE JUSTIFIED ONLY IN THE PUBLIC INTEREST AND
ONLY WHEN THE MATERIAL CANNOT BE OBTAINED BY OTHER
MEANS.
Ofcom Code for broadcast journalists
Factual programme makers should not normally obtain or seek
information or pictures through misrepresentation or deception, EXCEPT
WHERE THE DISCLOSURE IS REASONABLY BELIEVED TO SERVE
AN OVERRIDING PUBLIC INTEREST.

194

POSING AS SOMEONE DIFFERENT IN ORDER TO GAIN ACCESS:


Invasion of privacy and unnecessary subterfuge or justified in public
interest? Public interest or smokescreen to promote circulation eg Diana
in gym, Sunday Mirror 1994.
Mail on Sunday reporter Martin Hennessey and the down and out who
visited Germaine Greer.

PCC Report No 33 (1996) and freelance reporter at school claiming to be


cousin of pupil involved in a relationship with a teacher. PCC held:
misrep and upheld complaint.
PCC 2005 and Sunday Telegraph reporter posed as client to find out if a
Saudi Arabian printers was printing the British National Partys
newspaper. PCC did not uphold complaint reasonable grounds for
concluding that pursuing other means would compromise the ability of
reporters to investigate matters subsequently.
Also, subterfuge acceptable where not serious and caused little harm.
News of the World Mahmoud Mazur, investigative editor eg Countess
of Wessex.
PROTECTION OF SOURCES:
No duty of confidentiality but where risk to informant, reporter may
guarantee confidentiality to a source, matter of ethical honour.
International Federation of Journalists
The journalist shall observe professional secrecy regarding the source of
information obtained in confidence.
NUJ Code a journalist shall protect confidential sources of information

195

PCC Code: a moral obligation to protect no legal protection

4 Main legal provisions re. the identification of source/material:


a) S10 Contempt of Court Act 1981 No court may require a person to
disclose, nor is any person guilty of contempt of court for refusing to
disclose the source of information contained in a publication for which he
is responsible, unless it is established to the satisfaction of the court that
it is necessary in the interests of justice or national security or for the
prevention of disorder and crime.
b) Police and Criminal Evidence Act 1984
c) Official Secrets Acts
d) Terrorism Act 2000
Bill Goodwin.
Trainee reporter at The Engineer, received financial information about a
major company, Tetra. Contacted company for comment court
injunction followed and demand for name of source.
European Court of Human Rights 1996 ruled that Goodwins human
rights had been violated.
Protection of sources is one of the basic conditions for press freedom
without such protectionthe vital public watchdog role of the press may
be undermined and the ability of the press to provide accurate and
reliable information may be adversely affected. Having regard to the
importance of the protection of journalist sources for press freedom in a
democratic society and the potentially chilling effect on order of source
disclosure has on the exercise of that freedom, such a measure cannot
be compatible with Art 10 of the Convention unless it is justified by an
overriding requirement in the public interest.
The English decision is X v Morgan Grampian 1990. House of Lords
ordered disclosure of documents as the information had been obtained
unlawfully and in breach of confidence. The publishers were mixed up
with the tortuous acts of the source and were thus under a duty to assist

196

the company to redress the wrong. No public interest found in


publication, failure to obtain the working capital required by the company
may have devastating results on both the company and its employees.
Both HoL and ECHR recognised the importance of protecting press
sources simply reached different conclusions.

Ashworth Security Hospital Authority v MGN Ltd [2002]


Ian Brady, Moors Murderer mid 1960s, now in secure mental hospital.
Medical details published by Daily Mirror, hospital claim breach of patient
confidentiality and want source of information disclosed.
LJ Laws in Court of Appeal, in any given case the debate which
follows will be conducted upon the question whether there is an
overriding public interest, amounting to a pressing social need, to which
the need to keep press sources confidential should give way..
House of Lords ruled that source should be divulged at which point
Ackroyd came forward but refused to identify his source.
L. Woolf in House of Lords in case against the local reporter Robin
Ackroyd considered the approach of L. Steyn in Re S [2004] and 4 points
of principle where balancing Art 8 and Art 10 rights:
1.
2.
3.
4.

Neither article has precedence over the other


Examine in detail the comparative importance of the rights claimed
Identify reasons for interfering with each right
Determine ultimate balancing test by reference to proportionality.

6 years after leak, no pressing social need to order disclosure, hospital


now had little to gain form discovering the source of the leak.
Note that this was not about patient confidentiality Brady wanted
release of records to substantiate his claims of poor treatment, thus it
was an issue of hospital confidentiality.

197

PAYMENTS TO SOURCES:
PCC Code:
i) No payments to witnesses or potential witnesses in current criminal
proceedings except where material OUGHT TO BE PUBLISHED IN THE
PUBLIC INTEREST AND THERE IS AN OVERRIDING NEED TO MAKE
OR PROMISE TO MAKE A PAYMENT FOR THIS TO BE DONE.
Must take every possible step to ensure no influence on the evidence
those witnesses may give and disclose offer to both prosecution and
defence.
ii) No payments for information or pictures to convicted or confessed
criminal or their associates where stories, pictures or information seek to
exploit a particular crime or glorify crime in general, except where
OUGHT TO BE PUBLISHED IN THE PUBLIC INTEREST AND
PAYMENT IS NECESSARY FOR THIS TO BE DONE.
BBC Producers Guidelines take the same approach.

SUBTERFUGE AND MESSAGE TAPPING:


PCC Investigation following the conviction in January 2007 of Clive
Goodman of News of the World and Glenn Mulaire, inquiry agent.
Personal phone messages of members of the Royal family.
Speculative tapping into private mobile phone messages contrary to
Regulation of Investigatory Powers Act 2000 and Criminal Law Act 1977
resulting in imprisonment. Editor took overall responsibility and resigned.

Public interest exceptions and the PCC Code:


Privacy
Harassment
Children
Hospitals
Friends and acquaintances of criminals

198

Criminals
Public interest includes:
i)
Detecting or exposing crime or serious impropriety
ii)
Protecting public health and safety
iii)
Preventing the public being misled by an action or statement of a
person/organisation
There is public interest in freedom of expression itself, consideration to
the extent that information already in public domain or will become so.
Cases re under 16s must show an exceptional public interest.

RE DEFAMATION:
Jameel and others v Wall Street Journal Europe SPRL
HOUSE OF LORDS
LORDS, BINGHAM, HOFFMANN, HOPE, SCOTT, BARONESS HALE
26, 27, 28 JUNE, 11 OCTOBER 2006
11 OCTOBER 2006
G Robertson QC, R Elliott, G Vassall-Adams for the Appellants
J Price QC, J Dean for the Respondents
Finers Stephens Innocent LLP; Carter-Ruck and Partners
LORD BINGHAM:
MY LORDS,
[1] This appeal raises two questions on the law of libel. The first concerns
the entitlement of a trading corporation such as the Second Respondent
to sue and recover damages without pleading or proving special damage.
The second concerns the scope and application of what has come to be
called Reynolds privilege, an important form of qualified privilege.
[4] On 6 February 2002 the newspaper published the article which gave
rise to these proceedings. It was headed Saudi Officials Monitor Certain

199

Bank Accounts with a smaller sub-heading Focus Is on Those With


Potential Terrorist Ties. It bore the by-line of James M Dorsey, an Arabicspeaking reporter with specialist knowledge of Saudi Arabia, and
acknowledged the contribution of Glenn Simpson, a staff writer in
Washington. The gist of the article, succinctly stated in the first
paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom's
central bank, was, at the request of US law enforcement agencies,
monitoring bank accounts associated with some of the country's most
prominent businessmen in a bid to prevent them from being used,
wittingly or unwittingly, for the funnelling of funds to terrorist
organisations. This information was attributed to US officials and Saudis
familiar with the issue. In the second paragraph a number of companies
and individuals were named, among them the Abdullatif Jamil Group of
companies who, it was stated later in the article, couldn't be reached for
comment.
[5] The jury in due course found that the article referred to was
defamatory of both Respondents. But it was a difficult matter to
investigate and report since information was not freely available in the
Kingdom and the Saudi authorities, even if co-operating closely with
those of the United States, might be embarrassed if that fact were to
become generally known.
[7] The judge also rejected the newspaper's claim to Reynolds privilege
([2004] EWHC 37 (QB)). On this question also the Court of Appeal
upheld his decision, but on a more limited ground. This calls for more
detailed consideration.
[9] Mr Dorsey described attempts to obtain a response from the Group
about his proposed article. He said he had telephoned the Group office at
about 9.0am and left a recorded message. The jury found that the
newspaper had not proved on the balance of probabilities that that was
so. There was, it was agreed, a telephone conversation between Mr
Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5
February, the day before publication. During that conversation, according
to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for
a comment by the Group. He had, he said, no authority to make a
statement and the First Respondent was in Japan, where the time was
3.0am Mr Dorsey denied that Mr Munajjed had asked him to wait. But the
jury found that Mr Munajjed had made that request. It was on this ground,
as I understand, that the Court of Appeal upheld the judge's denial of
Reynolds privilege:

200

The judge found that there was no compelling reason why Mr


Jameel could not have been afforded 24 hours on the article.
II REYNOLDS PRIVILEGE
[28] The decision of the House in Reynolds v Times Newspapers Ltd
built on the traditional foundations of qualified privilege but carried the law
forward in a way which gave much greater weight than the earlier law
had done to the value of informed public debate of significant public
issues. Both these aspects are, I think, important in understanding the
decision.
[29] Underlying the development of qualified privilege was the
requirement of a reciprocal duty and interest between the publisher and
the recipient of the statement in question.
Thus where a publication related to a matter of public interest, it was
accepted that the reciprocal duty and interest could be found even where
publication was by a newspaper to a section of the public or the public at
large. In Reynolds the Court of Appeal restated these tests ([2001] 2 AC
127, 167, 177), although it suggested a third supplemental test which the
House held to be mistaken.
[30] I do not understand the House to have rejected the duty/interest
approach: see Lord Nicholls of Birkenhead, pp 194-195, 197, 204; Lord
Steyn, p 213; Lord Cooke of Thorndon, pp 217, 224, 227; Lord Hope of
Craighead, pp 229, 235; Lord Hobhouse of Woodborough, pp 237, 239.
But Lord Nicholls (p 197) considered that matters relating to the nature
and source of the information were matters to be taken into account in
determining whether the duty-interest test was satisfied or, as he
preferred to say in a simpler and more direct way, whether the public
was entitled to know the particular information.
[31] The necessary pre-condition of reliance on qualified privilege in this
context is that the matter published should be one of public interest. In
the present case the subject matter of the article complained of was of
undoubted public interest. But that is not always, perhaps not usually, so.
It has been repeatedly and rightly said that what engages the interest of
the public may not be material which engages the public interest.
[32] Qualified privilege as a live issue only arises where a statement
is defamatory and untrue. It was in this context, and assuming the
matter to be one of public interest, that Lord Nicholls proposed (at p
202) a test of responsible journalism, a test repeated in Bonnick v
Morris [2002] The rationale of this test is, as I understand, that there is

201

no duty to publish and the public have no interest to read material which
the publisher has not taken reasonable steps to verify. As Lord Hobhouse
observed with characteristic pungency (p 238), No public interest is
served by publishing or communicating misinformation. But the
publisher is protected if he has taken such steps as a responsible
journalist would take to try and ensure that what is published is
accurate and fit for publication.
[33] Lord Nicholls (at p 205) listed certain matters which might be
taken into account in deciding whether the test of responsible
journalism was satisfied. He intended these as pointers which might
be more or less indicative, depending on the circumstances of a
particular case, and not, I feel sure, as a series of hurdles to be
negotiated by a publisher before he could successfully rely on
qualified privilege. Lord Nicholls recognised (at pp 202-203), inevitably
as I think, that it had to be a body other than the publisher, namely the
court, which decided whether a publication was protected by qualified
privilege. But this does not mean that the editorial decisions and
judgments made at the time, without the knowledge of falsity which is a
benefit of hindsight, are irrelevant. Weight should ordinarily be given
to the professional judgment of an editor or journalist in the
absence of some indication that it was made in a casual, cavalier,
slipshod or careless manner.
[34] Some misunderstanding may perhaps have been engendered by
Lord Nicholls' references (at pp 195, 197) to the particular information. It
is of course true that the defence of qualified privilege must be
considered with reference to the particular publication complained of as
defamatory, and where a whole article or story is complained of no
difficulty arises. But difficulty can arise where the complaint relates to one
particular ingredient of a composite story, since it is then open to a
Plaintiff to contend, as in the present case, that the article could have
been published without inclusion of the particular ingredient complained
of. This may, in some instances, be a valid point. But consideration
should be given to the thrust of the article which the publisher has
published. If the thrust of the article is true, and the public interest
condition is satisfied, the inclusion of an inaccurate fact may not
have the same appearance of irresponsibility as it might if the whole
thrust of the article is untrue.
[35] These principles must be applied to the present case. As recorded in
para 8 above, the Court of Appeal upheld the judge's denial of Reynolds
privilege on a single ground, discounting the jury's negative findings
concerning Mr Dorsey's sources: that the newspaper had failed to delay

202

publication of the Respondents' names without waiting long enough for


the Respondents to comment. This seems to me, with respect, to be a
very narrow ground on which to deny the privilege, and the ruling
subverts the liberalising intention of the Reynolds decision. The subject
matter was of great public interest, in the strictest sense. The article
was written by an experienced specialist reporter and approved by
senior staff on the newspaper and The Wall Street Journal who
themselves sought to verify its contents. The article was
unsensational in tone and (apparently) factual in content. The
Respondents' response was sought, although at a late stage, and
the newspaper's inability to obtain a comment recorded. It is very
unlikely that a comment, if obtained, would have been revealing,
since even if the Respondents' accounts were being monitored it
was unlikely that they would know. It might be thought that this was
the sort of neutral, investigative journalism which Reynolds
privilege exists to protect. I would accordingly allow the appeal and
set aside the Court of Appeal judgment.
LORD HOFFMANN:
[38] Until very recently, the law of defamation was weighted in favour of
Claimants and the law of privacy weighted against them. True but trivial
intrusions into private life were safe. Reports of investigations by the
newspaper into matters of public concern which could be construed as
reflecting badly on public figures domestic or foreign were risky. The
House attempted to redress the balance in favour of privacy in Campbell
v MGN Ltd [2004] UKHL 22,
stories of genuine public interest in Reynolds v Times Newspapers Ltd
[2001] 2 AC 127. But this case suggests that Reynolds has had little
impact upon the way the law is applied at first instance. It is
therefore necessary to restate the principles.
[42] The jury found that the article was defamatory of both Claimants.
THE REYNOLDS DEFENCE
[43] The newspaper's principal defence was based on Reynolds v Times
Newspapers Ltd [2001] 2 AC 127. It is called in the trade Reynolds
privilege but the use of the term privilege, although historically accurate,
may be misleading. A defence of privilege in the usual sense is available
when the defamatory statement was published on a privileged occasion
and can be defeated only by showing that the privilege was abused.
[44] Misuse of the privileged occasion is technically known as malice
and the burden is upon the Claimant to prove it. In Reynolds, counsel for

203

the newspaper invited the House to declare a similar privilege for the
publication of political information. But the House refused to do so.
I therefore agree with the opinion of the Court of Appeal in
Loutchansky v Times Newspapers Ltd (Nos 2-5) [2001] that
Reynolds privilege is a different jurisprudential creature from the
traditional form of privilege from which it sprang. It might more
appropriately be called the Reynolds public interest defence rather
than privilege.
APPLYING REYNOLDS
(a) The Public Interest Of The Material
[48] The first question is whether the subject matter of the article
was a matter of public interest. In answering this question, I think that
one should consider the article as a whole and not isolate the defamatory
statement.
If the publication is in the public interest, the duty and interest are
taken to exist.
(b) Inclusion Of The Defamatory Statement
[51] If the article as a whole concerned a matter of public interest, the
next question is whether the inclusion of the defamatory statement
was justifiable.
(c) Responsible Journalism
[53] If the publication, including the defamatory statement, passes
the public interest test, the inquiry then shifts to whether the steps
taken to gather and publish the information were responsible and
fair.
[55] But the standard of responsible journalism is as objective and
no more vague than standards such as reasonable care which are
regularly used in other branches of law. Greater certainty in its
application is attained in two ways. First, as Lord Nicholls said, a body of
illustrative case law builds up. Secondly, just as the standard of
reasonable care in particular areas, such as driving a vehicle, is made
more concrete by extra-statutory codes of behaviour like the Highway
Code, so the standard of responsible journalism is made more specific by
the Code of Practice which has been adopted by the newspapers and

204

ratified by the Press Complaints Commission. This too, while not binding
upon the courts, can provide valuable guidance.
[56] In Reynolds, Lord Nicholls gave his well-known non-exhaustive
list of ten matters which should in suitable cases be taken into
account. They are not tests which the publication has to pass. In the
hands of a judge hostile to the spirit of Reynolds, they can become ten
hurdles at any of which the defense may fail. That is how Eady J treated
them. The defence, he said, can be sustained only after the closest and
most rigorous scrutiny by the application of what he called Lord Nicholls'
ten tests. But that, in my opinion, is not what Lord Nicholls meant. As he
said in Bonnick (at p 309) the standard of conduct required of the
newspaper must be applied in a practical and flexible manner. It must
have regard to practical realities.
[58] I therefore pass to the question of whether the newspaper
satisfied the conditions of responsible journalism. This may be
divided into three topics: the steps taken to verify the story, the
opportunity given to the Jameel group to comment and the
propriety of publication in the light of US diplomatic policy at the
time.
DISPOSAL
[88] In my opinion there was no basis for rejecting the newspaper's
Reynolds defence.
LORD HOPE:
MY LORDS,
[92] I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Bingham of Cornhill. I agree with it,
REYNOLDS PRIVILEGE
[105] I should like to emphasise at the outset that the only question on
which there was a difference of view in the House in Reynolds v Times
Newspapers Ltd [2001] 2 AC 127 on any matter of substance was
whether the issues of justification and qualified privilege should be
reconsidered at a new trial: see Lord Steyn at pp 216D-217A and my own
speech at p 237F-G. It has sometimes been suggested that Reynolds
was a majority decision. But the primary question raised by the
case was whether there should be a new category of privileged
subject matter a generic qualified privilege of political speech, as
Lord Steyn called it at p 209C-D. On that question the House was
unanimous. Everyone accepted that the duty-interest test was an
essential element in the structure of the law of qualified privilege.
There was no dissent from the analysis by Lord Nicholls of Birkenhead of

205

the way in which the common law test should be adapted so as to strike
a balance between the role of the media and the restrictions that are
necessary in a democratic society for the protection of the reputation of
the individual. Nor was there any dissent from his observation at p 202EF that the common law does not seek to set a higher standard than that
of responsible journalism.
Responsible journalism is a standard which everyone in the media and
elsewhere can recognise. The duty-interest test based on the public's
right to know, which lies at the heart of the matter, maintains the essential
element of objectivity. Was there an interest or duty to publish the
information and a corresponding interest or duty to receive it, having
regard its particular subject matter? This provides the context within
which, in any given case, the issue will be assessed. Context is important
too when the standard is applied to each piece of information that the
journalist wishes to publish. The question whether it has been satisfied
will be assessed by looking to the story as a whole, not to each piece of
information separated from its context.
LORD SCOTT:
QUALIFIED PRIVILEGE
[130] Lord Nicholls did not turn his back on the reciprocal
duty/interest test for qualified privilege. Instead he moulded the test
so as to cater for the publication of information that the public as a
whole, as opposed to a specific individual or individuals, was
entitled to know.
It seems to me that the Reynolds case was less a breakthrough
than a reminder of the width of the basic common law principles as
to privilege.

[134] A somewhat different, though no less welcoming, view of Reynolds,


was expressed by the Court of Appeal in Loutchansky v Times
Newspapers Ltd (Nos 2-5) [2002] QB 783.
BARONESS HALE:
MY LORDS,
[145] There are two issues before us and on both of them I agree with
the opinions expressed by my noble and learned friend, Lord Hoffmann.

206

There is only a little I wish to add on the issue of Reynolds privilege but
rather more on the issue of damage.
THE REYNOLDS DEFENCE
[146] It should by now be entirely clear that the Reynolds defence is
a different jurisprudential creature from the law of privilege,
although it is a natural development of that law. It springs from the
general obligation of the press, media and other publishers to
communicate important information upon matters of general public
interest and the general right of the public to receive such
information. It is not helpful to analyse the particular case in terms
of a specific duty and a specific right to know. That can, as
experience since Reynolds has shown, very easily lead to a narrow
and rigid approach which defeats its object. In truth, it is a defence
of publication in the public interest.
[147] This does not mean a free-for-all to publish without being damned.
The public only have a right to be told if two conditions are fulfilled. First,
there must a real public interest in communicating and receiving the
information. This is, as we all know, very different from saying that it is
information which interests the public the most vapid tittle-tattle about
the activities of footballers' wives and girlfriends interests large sections
of the public but no-one could claim any real public interest in our being
told all about it. It is also different from the test suggested by Mr
Robertson QC, on behalf of the Wall Street Journal Europe, of whether
the information is newsworthy. That is too subjective a test, based on
the target audience, inclinations and interests of the particular
publication. There must be some real public interest in having this
information in the public domain. But this is less than a test that the public
need to know, which would be far too limited.
[149] Secondly, the publisher must have taken the care that a
responsible publisher would take to verify the information
published. The actual steps taken will vary with the nature and sources
of the information. But one would normally expect that the source or
sources were ones which the publisher had good reason to think reliable,
that the publisher himself believed the information to be true, and that he
had done what he could to check it. We need more such serious
journalism in this country and our defamation law should encourage
rather than discourage it.
[151] In short, My Lords, if the public interest defence does not
succeed on the known facts of this case, it is hard to see it ever
succeeding.

207

NOTE:

Highlighting is mine Ken Brown

Reynolds v The Times


LORD NICHOLLS OF BIRKENHEAD. My Lords, this appeal concerns
the interaction between two fundamental rights: freedom of
expression and protection of reputation. The context is newspaper
discussion of a matter of political importance. Stated in its simplest
form, the newspaper's contention is that a libellous statement of
fact made in the course of political discussion is free from liability if
published in good faith. Liability arises only if the writer knew the
statement was not true or if he made the statement recklessly, not
caring whether it was true or false, or if he was actuated by personal
spite or some other improper motive.
Mr Reynolds' contention, on the other hand, is that liability may also
arise if, having regard to the source of the information and all the
circumstances, it was not in the public interest for the newspaper to
have published the information as it did. Under the newspaper's
contention the safeguard for those who are defamed is exclusively
subjective: the state of mind of the journalist. Under Mr Reynolds'
formulation, there is also an objective element of protection.

208

The Court of Appeal also considered whether the defendants would be


able to rely on qualified privilege at the retrial. The court held they would
not.
Defamation and truth Lordships' House gave leave to the defendants to
appeal
Truth is a complete defence. If the defendant proves the substantial truth
of the words complained of, he thereby establishes the defence of
justification. It avails a defendant even if he was acting spitefully.
The common law has long recognised the 'chilling' effect of this rigorous,
reputation-protective principle. There must be exceptions. At times
people must be able to speak and write freely, uninhibited by the
prospect of being sued for damages should they be mistaken or
misinformed. In the wider public interest, protection of reputation must
then give way to a higher priority.
Honest comment on a matter of public interest
Public interest has never been defined, but in London Artists Ltd v Littler
[1969] 2 QB 375 at 391 Lord Denning MR rightly said that it is not to be
confined within narrow limits. He continued:
'Whenever a matter is such as to affect people at large, so that they may
be legitimately interested in, or concerned at, what is going on; or what
may happen to them or others; then it is a matter of public interest on
which everyone is entitled to make fair comment.'
the basis of our public life is that the crank, the enthusiast, may say what
he honestly thinks as much as the reasonable person who sits on a jury.
The true test is whether the opinion, however exaggerated, obstinate or
prejudiced, was honestly held by the person expressing it (see Silkin v
Beaverbrook Newspapers Ltd [1958] 1 WLR 743 at 746 per Diplock J).

Privilege: factual inaccuracies


There are occasions when the person to whom a statement is made has
a special interest in learning the honestly held views of another person,
even if those views are defamatory of someone else and cannot be

209

proved to be true. When the interest is of sufficient importance to


outweigh the need to protect reputation, the occasion is regarded as
privileged.
Sometimes the need for uninhibited expression is of such a high order
that the occasion attracts absolute privilege, as with statements made
by judges or advocates or witnesses in the course of judicial
proceedings. More usually, the privilege is qualified in that it can be
defeated if the plaintiff proves the defendant was actuated by
malice.
Over the years the courts have held that many common form situations
are privileged. Classic instances are employment references, and
complaints made or information given to the police or appropriate
authorities regarding suspected crimes. The courts have always
emphasised that the categories established by the authorities are not
exhaustive. The list is not closed.
The established categories are no more than applications, in particular
circumstances, of the underlying principle of public policy. The
underlying principle is conventionally stated in words to the effect
that there must exist between the maker of the statement and the
recipient some duty or interest in the making of the communication.
Lord Atkinson's dictum, in Adam v Ward [1917] AC 309 at 334 is much
quoted:
' a privileged occasion is an occasion where the person who makes
a communication has an interest or a duty, legal, social, or moral, to
make it to the person to whom it is made, and the person to whom it is so
made has a corresponding interest or duty to receive it. This reciprocity is
essential.'
the rationale of the underlying public interest on which privilege is
founded. The essence of this defence lies in the law's recognition of the
need, in the public interest, for a particular recipient to receive frank and
uninhibited communication of particular information from a particular
source. That is the end the law is concerned to attain. The protection
afforded to the maker of the statement is the means by which the law
seeks to achieve that end. Thus the court has to assess whether, in the
public interest, the publication should be protected in the absence of
malice.

210

Privilege and publication to the world at large


Frequently a privileged occasion encompasses publication to one person
only or to a limited group of people. Publication more widely, to persons
who lack the requisite interest in receiving the information, is not
privileged. But the common law has recognised there are occasions
when the public interest requires that publication to the world at
large should be privileged.
Through the cases runs the strain that, when determining whether the
public at large had a right to know the particular information, the court
has regard to all the circumstances. Assess whether the information was
of sufficient value to the public that, in the public interest, it should be
protected by privilege in the absence of malice.
The courts have recognised that the status and activities of certain
bodies are such that members of the public are entitled to know of their
proceedings. Then privilege derives from the subject matter alone.
Fair and accurate reports of the proceedings of these organisations are
privileged. A leading instance is Wason v Walter (1868) LR 4 QB 73
concerning newspaper reports of debates in Parliament. The Court of
Queen's Bench held, by analogy with reports of judicial proceedings,
that fair and accurate reports of parliamentary proceedings were
privileged.
In Derbyshire CC v Times Newspapers Ltd [1993] AC 534 this House
held that it was contrary to the public interest for organs of central or local
government to have any right at common law to maintain an action for
defamation. This is an instance, in the field of political discussion, of the
court's concern to remove all unnecessary fetters on freedom of speech.
Beyond that, this decision does not assist in the present appeal.
In its valuable and forward-looking analysis of the common law, the
Court of Appeal in the present case highlighted that in deciding
whether an occasion is privileged the court considers, among other
matters, the nature, status and source of the material published and
the circumstances of the publication.
In stressing the importance of these particular factors, the court
treated them as matters going to a question (the circumstantial test)
separate from, and additional to, the conventional duty-interest
questions
With all respect to the Court of Appeal, this formulation of three

211

questions gives rise to conceptual and practical difficulties and is


better avoided. There is no separate or additional question. These
factors are to be taken into account in determining whether the dutyinterest test is satisfied or, as I would prefer to say in a simpler and more
direct way, whether the public was entitled to know the particular
information. The duty-interest test, or the right to know test, cannot
be carried out in isolation from these factors and without regard to
them. A claim to privilege stands or falls according to whether the
claim passes or fails this test. There is no further requirement.
Statutory privilege
Many, if not all, of the common law categories of case where reports of
proceedings attract privilege are now the subject of statutory privilege.
A new category of privileged subject matter?
I turn to the appellants' submissions. The newspaper seeks the
incremental development of the common law by the creation of a new
category of occasion when privilege derives from the subject matter
alone: political information.
My starting point is freedom of expression. The high importance of
freedom to impart and receive information and ideas, freedom to
disseminate and receive information on political matters is essential to
the proper functioning of the system of parliamentary democracy
cherished in this country. This freedom enables those who elect
representatives to Parliament to make an informed choice, regarding
individuals as well as policies, and those elected to make informed
decisions. Freedom of expression will shortly be buttressed by
statutory requirements. Under s 12 of the 1998 Act,
To be justified, any curtailment of freedom of expression must be
convincingly established by a compelling countervailing consideration,
and the means employed must be proportionate to the end sought to be
achieved.
The interest of a democratic society in ensuring a free press weighs
heavily in the balance in deciding whether any curtailment of this freedom
bears a reasonable relationship to the purpose of the curtailment. In this
regard it should be kept in mind that one of the contemporary
functions of the media is investigative journalism.
(1999) 7 BHRC 289 at 302

212

Reputation is an integral and important part of the dignity of the


individual. Once besmirched by an unfounded allegation in a national
newspaper, a reputation can be damaged for ever, especially if there is
no opportunity to vindicate one's reputation. When this happens, society
as well as the individual is the loser.
The crux of this appeal, therefore, lies in identifying the restrictions which
are fairly and reasonably necessary for the protection of reputation.
Freedom of speech does not embrace freedom to make defamatory
statements out of personal spite or without having a positive belief
in their truth.
In the case of statements of opinion on matters of public interest, that is
the limit of what is necessary for protection of reputation. Readers and
viewers and listeners can make up their own minds on whether they
agree or disagree with defamatory statements which are recognisable as
comment and which, expressly or implicitly, indicate in general terms the
facts on which they are based.
With defamatory imputations of fact the position is different and more
difficult. The appellant newspaper commends reliance upon the ethics of
professional journalism. The decision should be left to the editor of
the newspaper. Unfortunately, in the United Kingdom this would not
generally be thought to provide a sufficient safeguard.
The outcome of a court decision, it was suggested, cannot always be
predicted with certainty when the newspaper is deciding whether to
publish a story. To an extent this is a valid criticism. A degree of
uncertainty in borderline cases is inevitable. This uncertainty, coupled
with the expense of court proceedings, may 'chill' the publication of true
statements of fact as well as those which are untrue.
The common law does not seek to set a higher standard than that of
responsible journalism, a standard the media themselves espouse.
An incursion into press freedom which goes no further than this would not
seem to be excessive or disproportionate. The investigative journalist has
adequate protection.
Failure to report the plaintiff's explanation is a factor to be taken
into account. Depending upon the circumstances, it may be a
weighty factor. But it should not be elevated into a rigid rule of law. \

213

Human rights jurisprudence


The common law approach accords with the present state of the human
rights jurisprudence. The immensely influential judgment in Lingens v
Austria (1986) 8 EHRR 407 concerned expressions of opinion, not
statements of fact.
the European Court of Human Rights stated that a careful distinction
needs to be made between facts and value judgments
But a journalist is not required to guarantee the accuracy of his
facts. Bladet Troms v Norway (1999) 6 BHRC 599 involved newspaper
allegations of fact: cruelty by seal hunters. The European Court of
Human Rights considered whether the newspaper had a reasonable
basis for its factual allegations. Similarly, in Thorgeirson v Iceland
(1992) 14 EHRR 843 two newspaper articles reported widespread
rumours of brutality by the Reykjavik police. These rumours had some
substantiation in fact: a policeman had been convicted recently. The
purpose of the articles was to promote an investigation by an
independent body. The court held that although the articles were
framed in particularly strong terms, they bore on a matter of serious
public concern. It was unreasonable to require the writer to prove
that unspecified members of the Reykjavik police force had
committed acts of serious assault resulting in disablement.
None of these three latter cases involved political discussion, but for this
purpose no distinction is to be drawn between political discussion and
discussion of other matters of public concern (see Thorgeirson v Iceland
(1992) 14 EHRR 843 at 863864 and 865 (paras 61 and 64)).
Conclusion
My conclusion is that the established common law approach to
misstatements of fact remains essentially sound. The common law
should not develop 'political information' as a new 'subject matter'
category of qualified privilege, whereby the publication of all such
information would attract qualified privilege, whatever the circumstances.
That would not provide adequate protection for reputation. Moreover, it
would be unsound in principle to distinguish political discussion
from discussion of other matters of serious public concern. The
elasticity of the common law principle enables interference with
freedom of speech to be confined to what is necessary in the
circumstances of the case. This elasticity enables the court to give

214

appropriate weight, in today's conditions, to the importance of freedom of


expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into
account include the following. The comments are illustrative only.
(1) The seriousness of the allegation. The more serious the charge,
the more the public is misinformed and the individual harmed, if the
allegation is not true. (2) The nature of the information, and the
extent to which the subject matter is a matter of public concern. (3)
The source of the information. Some informants have no direct
knowledge of the events. Some have their own axes to grind, or are
being paid for their stories. (4) The steps taken to verify the
information. (5) The status of the information. The allegation may
have already been the subject of an investigation which commands
respect. (6) The urgency of the matter. News is often a perishable
commodity. (7) Whether comment was sought from the plaintiff. He
may have information others do not possess or have not disclosed.
An approach to the plaintiff will not always be necessary. (8)
Whether the article contained the gist of the plaintiff's side of the
story. (9) The tone of the article. A newspaper can raise queries or
call for an investigation. It need not adopt allegations as statements
of fact. (10) The circumstances of the publication, including the
timing.
This list is not exhaustive. The weight to be given to these and any
other relevant factors will vary from case to case. Any disputes of
primary fact will be a matter for the jury, if there is one. The decision on
whether, having regard to the admitted or proved facts, the publication
was subject to qualified privilege is a matter for the judge. This is the
established practice and seems sound.
In general, a newspaper's unwillingness to disclose the identity of its
sources should not weigh against it.
Above all, the court should have particular regard to the importance of
freedom of expression. The press discharges vital functions as a
bloodhound as well as a watchdog.
Privilege and the facts of this case
A most telling criticism of the article is the failure to mention Mr Reynolds'
own explanation to the Dil. An article omitting all reference to this
statement could not be a fair and accurate report of proceedings in the
Dil.

215

LORD STEYN. My Lords, I gratefully adopt the account of the


background given by Lord Bingham of Cornhill CJ, in sections I, II,
and III of the judgment of the Court of Appeal ([1998] 3 All ER 961 at
965972), as well as the summary given by my noble and learned
friend Lord Nicholls of Birkenhead. I therefore turn directly to the
central issues.
THE NEW LANDSCAPE
The present case involves a defamatory and factually false statement
which the newspaper honestly believed to be true.
(1999) 7 BHRC 289 at 308
It is worth considering why Lord Goff and Lord Keith could so confidently
assert that the law of England and art 10 of the convention is the same.
In my judgment the reasons are twofold. First, there is the principle of
liberty. Whatever is not specifically forbidden by law, individuals
and their enterprises are free to do (see [1990] 1 AC 109 at 283 where
Lord Goff stated that in England 'everybody is free to do anything, subject
only to the provisions of the law'). By contrast the executive and judicial
branches of government may only do what the law specifically permits.
Secondly, there is a constitutional right to freedom of expression in
England (see Cassell & Co Ltd v Broome [1972] AC 1027 at 1133 per
Lord Kilbrandon).
THE ISSUES
Issue (1): generic qualified privilege and political speech
On balance two particular factors have persuaded me to reject the
generic test. First, the rule and practice in England is not to compel a
newspaper to reveal its sources (see s 10 of the Contempt of Court Act
1981, RSC Ord 82, r 6 and Goodwin v UK (1996) 1 BHRC 81 at 95
(para 39 I would answer question (1) by saying that there is no generic
qualified privilege of political speech in England.
Issue (2): soundness of the circumstantial test
My Lords, it is important to appreciate that the judgment of the Court of
Appeal marked a development of English law in favour of freedom of
expression. In the context of political speech the judgment recognised a
qualified privilege, dependent on the particular circumstance of the case,
provided that three requirements are fulfilled. The first and second are

216

the familiar requirements of duty and interest. The Court of Appeal then
stated a third and separate requirement.
the Court of Appeal observed:
it is one thing to publish a statement which the person defamed has been
given the opportunity to rebut, and quite another to publish a statement
without any recourse to the person defamed where such recourse was
possible; it is one thing to publish a statement which has been so far as
possible checked, and quite another to publish it without such verification
as was possible and as the significance of the statement called for. While
those who engage in public life must expect and accept that their public
conduct will be the subject of close scrutiny and robust criticism, they
should not in our view be taken to expect or accept that their conduct
should be the subject of false and defamatory statements of fact unless
the circumstances of the publication are such as to make it proper, in the
public interest, to afford the publisher immunity from liability in the
absence of malice.
For the newspaper counsel argued that the particular requirements of the
circumstantial test stated by the Court of Appeal are unduly restrictive.
There is force in this argument. I will return to it. Counsel for Mr Reynolds
pointed out that there is a structural flaw in the circumstantial test. He
invited your Lordships not to adopt it. I would not accept the
circumstantial test is soundly based. Having reached this point I would
not wish to be taken to reject entirely the reasoning of the Court of
Appeal.
I would however rule that the circumstantial test should not be
adopted.
Issue (3): the alternative tests of duty and interest
If both the generic test and the circumstantial test are rejected, as I
have done, the only sensible course is to go back to the traditional
twofold test of duty and interest. These tests are flexible enough to
embrace, depending on the occasion and the particular circumstances, a
qualified privilege in respect of political speech published at large.
The context in which the qualified privilege of free speech should be
applied is all-important. It was said by counsel for the newspaper that the
English courts have not yet recognised that the press has a general duty
to inform the public of political matters and that the public has a right to
be so informed. If there is any doubt on the point, this is the occasion for
the House to settle the matter. It is an open space in the law which can

217

be filled by the courts. It is true that in our system the media have no
specially privileged position not shared by individual citizens. On the
other hand, it is necessary to recognise the 'vital public watchdog role of
the press' as a practical matter (see Goodwin v UK (1996) 1 BHRC 81 at
95 (para 39)). The role of the press, and its duty, was well described by
the European Court of Human Rights in Castells v Spain (1992) 14
EHRR 445 at 476 (para 43) in the following terms:
' the pre-eminent rle of the press in a State governed by the rule of
law must not be forgotten. Although it must not overstep various bounds
set, inter alia, for the prevention of disorder and the protection of the
reputation of others, it is nevertheless incumbent on it to impart
information and ideas on political questions and on other matters of
public interest. Freedom of the press affords the public one of the best
means of discovering and forming an opinion of the ideas and attitudes of
their political leaders. In particular, it gives politicians the opportunity to
reflect and comment on the preoccupations of public opinion; it thus
enables everyone to participate in the free political debate which is at the
very core of the concept of a democratic society.'
In De Haes v Belgium (1997) 25 EHRR 1 the European Court of
Human Rights again emphasised that the press plays an essential
role in a democratic society. The court trenchantly observed ((1997)
25 EHRR 1 at 53 (para 39)):
'It is incumbent on the press to impart information and ideas of
public interest. Not only does the press have the task of imparting
such information and ideas: the public also has a right to receive
them.'
This principle must be the foundation of our law on qualified
privilege of political speech.
The correct approach to the line between permissible and impermissible
political speech was indicated by the European Court of Human Rights in
Lingens v Austria (1986) 8 EHRR 407 at 419 (para 42) as follows:Implicit
in that dictum is the distinction that speech about political matters has a
higher value than speech about private lives of politicians.
Moreover, it will always be necessary to take into account the
dynamics of the role of the press and that 'news is a perishable
commodity and to delay its publication, even for a short period, may
well deprive it of all its value and interest' (see Sunday Times v UK
(No 2) (1991) 14 EHRR 229 at 242 (para 51)).

218

Issue (5): the decision of the Court of Appeal


The only escape from this outcome is to say that a failure to publish the
explanation given by Mr Reynolds in the Dil precludes the newspaper
as a matter of law from relying on the qualified privilege of political
speech. My Lords, I have already explained why I would not put the law
in such a rigid straight jacket. And my understanding is that there is no
support for such a rule in the speeches delivered today.
For these reasons I would hold that the Court of Appeal's ruling that 'this
was not a publication which should in the public interest be protected
by privilege in the absence of malice' should not be upheld
Issue (6): the disposal of the appeal
I would allow the appeal and remit the issue of qualified privilege to be
considered at the retrial.
LORD COOKE OF THORNDON. My Lords, I am in full agreement
with the speech of my noble and learned friend Lord Nicholls of
Birkenhead.
The article sued on is a mixture of allegations of fact, comment and
reporting. The chief defence at the trial was justification: that is to say,
truth. The sting of the article was that Mr Reynolds had lied to and
deceived by non-disclosure the Dil and his colleague in government,
Other defences pleaded had been fair comment on a matter of public
interest, and a fair and accurate report of proceedings in public of the
Irish legislature (see Defamation Act 1952, s 7 and Sch, paras 1 and 14;
cf Defamation Act 1996, s 15 and Sch 1, para 1). But both these
defences were abandoned at the outset of the trial. Fair (that is to say,
honest) comment would have failed because, as the jury in effect found,
the basic facts were not truly stated. To the extent that the article was a
fair and accurate report of proceedings in the Dil, it would have been
protected by statutory qualified privilege; but it was not a fair and
accurate report, as it omitted the explanation given to the Dil by Mr
Reynolds. In any event the reporting of the proceedings in the Dil
was mixed up with other allegations, including lying, which the
newspaper appeared to adopt as its own or to accept; and these
would have been outside the statutory reporting privilege.
In that situation the defence could not succeed unless the case could be
brought within the protection of the subsisting principles of the common

219

law regarding qualified privilege (which are not limited or abridged by the
statutory privileges: see s 7(4) of the 1952 Act and cf s 15(4) of the 1996
Act); or unless the court could be persuaded to introduce into English law
a new generic head of qualified privilege for political discussion.
As I understand it, none of your Lordships who sat in this case and in the
New Zealand Lange v Atkinson case favours any new form of generic
privilege for political discussion; and I am of the same mind for the
following main reasons.
(i) Although investigative reporting can be of public benefit, the
commercial motivation of the press and other sections of the media
can create a temptation, not always resisted, to exaggerate, distort
or otherwise unfairly represent alleged facts in order to excite the
interest of readers, viewers or listeners.
. In the United Kingdom the common law and practice regard protection
of media sources has been strengthened by s 10 of the Contempt of
Court Act 1981, ing prohibiting any court from requiring disclosure of a
journalistic source unless satisfied that disclosure is necessary in (inter
alia) the interests of justice.
(iii) There are further reasons why the exception of malice is a dubious
safeguard. (iv) It is doubtful whether the suggested new defence could
sensibly be confined to political discussion. There are other public figures
who exercise great practical power over the lives of people or great
influence in the formation of public opinion or as role models. Such power
or influence may indeed exceed that of most politicians. The rights and
interests of citizens in democracies are not restricted to the casting of
votes. Matters other than those pertaining to government and politics
may be just as important in the community; and they may have as strong
a claim to be free of restraints on freedom of speech.
(v) The existing balance between the right to personal reputation and
freedom of speech has been carefully and gradually developed over the
years by common law and statutes. It is true that the restrictions on
freedom of speech that have been thought necessary to give reasonable
protection to personal reputation may have a tendency to chill the
publication, not only of untruths, but also of that which may be true but
cannot be proved to be true. But there is nothing new in this. Nor, as far
as I am aware, is there any way of assessing which tendency is the
greateralthough experience of libel litigation is apt to generate a
suspicion that it is the former.

220

Lord Nicholls has listed, non-exhaustively, matters to be taken into


account. As the Court of Appeal suggested, this brings English law into a
position probably not very different from that produced by the Australian
reasonableness test, but perhaps rather more consonant with common
law tradition. I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD. My Lords, among the issues which
are raised by this case are two important questions which relate to
the structure of the law of defamation in its application to qualified
privilege.
in order to decide whether, in the particular circumstances, the occasion
on which the statement was made was one which entitled the maker of it
to the protection of the qualified privilege. Giving the judgment of the
Court of Appeal, Lord Bingham of Cornhill CJ said that three tests
required to be satisfied: the duty test, the interest test and the
circumstantial test. At the end of the judgment he said that the duty
and interest tests were, in general, satisfied in this case but that the
court could not regard the circumstantial test as satisfied.
I think that three factors are relevant to the issue as to whether a
generic qualified privilege can be recognised. The first relates to the
precision with which the category can be described. The second
relates to the persons to whom the material is to be communicated.
The third relates to the issue of malice.
If the category cannot be described precisely, it will be at risk of
enlargement or erosion case by case and thus of losing touch with the
underlying justification for the creation of the category. Where imprecision
is unavoidable, the better course would seem to be to take each case on
its own facts and circumstances. If the category is of a kind where the
communication is made to a particular person or group of persons, and
not to the public generally, it may be thought that the advantages of
precision outweigh those which come with flexibility. The consequences
to the person who is the subject of the communication are likely to be
less serious than they would be if the defamatory statement of fact is
published generally. But where the category involves communication to
the public, the question must be whether the public interest in the receipt
of the information will always outweigh the general public interest in
protecting the reputation of the individual. This is a question which is
particularly sensitive to changing circumstances, whether they be social
or political, and to changes in the way in which information is presented

221

or disseminated. As for the issue of malice, the less open the


communicator is to scrutiny, the more important it is likely to be to retain
the benefits of flexibility. Qualified privilege, in other words, should not be
given to a category where the occasion of the communication is such that
the privilege is at risk of becoming, in practice, absolute.
But the question remains: should we now recognise a common law
generic qualified privilege for political discussion? On balance I am of the
opinion that this would not be satisfactory, bearing in mind the nature of
the occasion and the use which would be likely to be made of it.
The circumstantial test
There is no doubt that the Court of Appeal broke new ground when
it identified this as an additional test which had to be satisfied in
relation to any individual occasion when applying the law of
qualified privilege
In my opinion the circumstantial test is confusing and it should not be
adopted.
Conclusion
I consider that the Court of Appeal were wrong
I would allow the appeal. In my opinion the question of law as to whether
the occasion was privileged should be reconsidered by the judge at the
new trial.
LORD HOBHOUSE OF WOODBOROUGH. My Lords, I agree that this
appeal should be dismissed for the reasons given by my noble and
learned friend Lord Nicholls of Birkenhead. Like my noble and
learned friend Lord Cooke of Thorndon, I am in full agreement with
the speech of Lord Nicholls. The few words which I will add should
not be read as in any way detracting from the clarity of that
agreement.
Roberts and another v Gable and others
COURT OF APPEAL (CIVIL DIVISION)
WARD, SEDLEY, MOORE-BICK LJJ
22 FEBRUARY, 12 JULY 2007
12 JULY 2007

222

H Tomlinson QC and A Davies for the Appellant


G Millar QC and G Vassall-Adams for the Respondent
Osmond & Osmond; Kosky Seal
WARD LJ:
A SHORT INTRODUCTION
[1] The Claimants, Christopher and Barry Roberts, claim that the
Defendants, Gerry Gable, Steve Silver and the Searchlight Magazine Ltd
libelled them in an article in the October 2003 edition of a monthly
magazine called Searchlight, the natural and ordinary meaning of which
is said to be that:
(i) the First Claimant stole money collected at a British National Party
('BNP') rally,
(ii) he did not return it until threatened with being reported to the police,
(iii) both Claimants threatened to kneecap, torture and kill Dave Hill and
Robert Jeffries alias Bob James, and the families of Dave Hill and Robert
Jeffries alias Bob James and
(iv) both Claimants might be subject to police investigation.
[2] The Defendants advanced two defences to this claim,
justification and qualified privilege. The appeal gives rise to important
issues about the operation of the so-called Reynolds' and reportage
defences.

The purpose of the article complained of was not to suggest that the
allegations of either side were true, but to expose the very fact of the
divisions within a political party trying to present a united and respectable
front in advance of coming elections.
It was in those circumstances that he wrote the piece which is now the
subject of this libel claim.
THE LIBELLOUS ARTICLE
The Defendants' case is that the activities of prominent members of
a political party are always a matter of public interest and that they
were merely reporting the allegations without adopting or endorsing
them thus giving them a good defence under the recently emerging

223

reportage doctrine referred to in Al-Fagih v HH Saudi Research and


Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] EMLR 215.
THE JUDGMENT UNDER APPEAL
[26] The case is now reported at [2006] EMLR 23. Eady J made these
findings:
16 It will thus be apparent that reporting both sides, in a
disinterested way, is an important element in the doctrine of
reportage.
[27] He then dealt with the Claimants' submission that the Defendants
would fail each and every one of Lord Nicholls ten non-exhaustive tests
set out in Reynolds observing:
25 . . . I note in passing that they do not necessarily fit the reportage
template (which was only articulated subsequently) as well as those
situations where defamatory allegations appear to readers to have been
adopted. Nevertheless, it is still no doubt right to have them in mind.
28 No steps were taken to verify the information (as was also true in AlFagih). That would not be fatal, however, in a reportage case, where the
fact of the allegations being made is what is important. Indeed, as Simon
Brown LJ had commented, verification could be regarded as inconsistent
with objective reporting.
29 So too, the 'source' is of less significance in a reportage case, since it
is not the reliability of either side which matters so much as the nature of
the quarrel.
35 It will by now be apparent why I commented that Lord Nicholls'
tests did not comfortably fit into a reportage case . . .
Notwithstanding their cogency, it seems to me that in a reportage
context this is a stronger case than Al-Fagih because of the
significance to the British public and to the London electorate in
particular . . .
36 There is a duty ('social or moral') upon political commentators
generally, including Mr Gable, to cover the goings-on in political
parties, including disputes, fully and impartially. There is a
corresponding legitimate interest in the public, and especially those
who have a vote, to have such information available. 37 In all the
circumstances, I have no hesitation in upholding the privilege defence.
A SUMMARY OF THE SUBMISSIONS

224

34 It is submitted that the 'reportage' defence only applies when


four conditions are satisfied:
(1) there is a continuing and active public dispute on a matter of
public interest;
(2) where the urgency of the matter makes verification in the
ordinary way difficult or undesirable;
(3) the reported allegations are attributed and not adopted;
(4) the reported allegations do not involve misconduct which has
wider ramifications that is misconduct which potentially exposed
those responsible to third party sanctions.
THE REYNOLDS' DEFENCE
[32] The libel law landscape has been liberalised by Reynolds. Although
it is tempting for the purpose of this judgment to follow Simon Brown LJ's
approach in Al-Fagih and say that one can take as read the bulk of what
was said in each of the five speeches in Reynolds, I do need to set the
scene in a little more detail in order to do justice to the powerful
arguments addressed to us in a field in which a corpus of case law is
still being built up, in the development of which we are invited to
participate. Jameel (Mohammed) v Wall Street Journal Europe Sprl
[2006] UKHL 44, [2007] AC 359, [2006] 3 WLR 642, is the most recent
valuable elucidation of the proper approach. Without citing great swathes
of the opinions expressed in those cases and at the risk of
oversimplification, the relevant principles which inform the case before us
can perhaps be stated as follows:

(1) The chilling effect which the common law's rigorous protection
of reputation has had on the media must now to be acknowledged
and, according proper weight to ECHR jurisprudence, reputation
must now give some way to what may be regarded as the
higher priority of what Lord Steyn at p 207 G describes as the
fundamental constitutional right, that of freedom of
expression.

(2) Though the categories of privilege are not exhaustive and the
list is not closed, a generic qualified privilege of political speech
was to be rejected. The duty/interest test remains the essential

225

element in the structure of qualified privilege even though


Lord Hoffmann prefers in Jameel para 46 to call it the
Reynolds public interest defence and Baroness Hale in para
146 prefers a defence of publication in the public interest.

(3) That duty/interest test can be satisfied if the public is


entitled to know the particular information being published subject
to two essential pre-requisites.

(4) The first is that the article as a whole must be in the public
interest. What engages the interest of the public, as in the example
given by Baroness Hale, the most vapid tittle tattle about the
activities of footballers' wives and girlfriends, may not be material
which truly engages the public interest.

(5) Responsible journalism is the second pre-requisite.


(6 due weight must be given to editorial judgement.

(7) Interference with freedom of speech is to be confined to


what is necessary in the circumstances the matters usually to
be taken into account will include the following ten factors put
forward by Lord Nicholls at p 205:
(8) This list is not exhaustive. The weight to be given these and
any other relevant factors will vary from case to case. The list
certainly does not set up a series of hurdles to be negotiated by a
publisher before he can successfully rely on qualified privilege.

(9) Any lingering doubt should be resolved in favour of publication.

REPORTAGE

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[34] Reportage is a fancy word. The Concise Oxford Dictionary


defines it as the describing of events, esp the reporting of news etc
for the press and for broadcasting. It seems we have Mr Andrew
Caldecott QC to thank or to blame for its introduction into our
jurisdiction. The doctrine first saw the light of day in Al Fagih.
Simon Brown LJ said in para 6 that it was a convenient word to
describe the neutral reporting of attributed allegations rather than
their adoption by the newspaper. That may indeed conveniently
describe what it is but there is more to it than that and it is necessary to
see how this new doctrine fits into the firmament.
AL FAGIH
[35] Since Mr Tomlinson seeks to distinguish his case from Al Fagih, it is
necessary to examine it closely. The Claimant (AF) and a Dr Al Mas'aari
(AM) were prominent members of a dissident political organisation (the
Committee) opposed to the existing Saudi Arabian government. The
Defendant newspaper supported the government and was sponsored by
the Saudi royal family. The Committee was riven by a dispute between
AF, the manager of its London office, and AM its spokesman. This dispute
escalated to the point that both men were issuing press releases
reporting their side of the problem and these were avidly reported by the
Defendant on a day to day basis as the saga unfolded. On 5 March 1996
AM issued his press release announcing the expulsion of AF and setting
out a number of allegations against him one of which was of his
spreading malicious rumours to defame the honour of his fellow members
of the Committee and the women of certain provinces in Saudi Arabia.
This was reported the following day, 6 March, by the Defendant though
the scandal-mongering allegation was slightly toned down. AF's riposte
the same day was to issue his press release announcing AM's removal
as the Committee's official spokesman. The Defendant's journalist spoke
to AM for his reaction. In the course of this conversation AM gave as an
example of the rumours that were being spread by AF that AF had
accused his mother of bringing women to him at home. AM said he would
be able to produce tape recordings to confirm what was being said. That
was reported in the Defendant newspaper on 7 March. AF read it with
shock and disbelief because in Muslim society an allegation that a person
had made imputations of a sexual nature such as he was alleged to have
made was regarded with greater censure than the person of whom the
imputations were made. Later that day the journalist telephoned AF to
seek his comments on the article, the truth of which AM denied. On 8
March the newspaper published another long article about the split within
the Committee and included AF's response to the article.

227

[36] It is important to note that Mr Caldecott accepted that he had to bring


the defence of qualified privilege within the ambit of Reynolds as those
principles had to apply in every case, irrespective of whether or not it was
within the field of political discussion, whether the defamatory allegation
was adopted or un-adopted, attributed or un-attributed. His submission
was that qualified privilege was established because these reports
were made within the context of a political dispute, were attributed
to a political rival and were not adopted by the newspaper.
[37] Simon Brown LJ reached these conclusions:
45 At the end of the day it is necessary to stand back from much of
the detail and ask oneself the root question whether in all the
circumstances of the case the duty-interest test (or the right to
know test) was satisfied . . .
50 In short, the case for finding qualified privilege here seems to be not
merely to have been very much stronger than in Reynolds . . . but strong
enough not to have been held forfeit by the Appellant's failure to turn an
objective report into a verified and adopted allegation. To my mind AK
was entitled in this case to publish without attempting verification.
Indeed in the present context verification could even be thought
inconsistent with the objective reporting of the dispute . . . .
51 I am not, of course, saying that verification (or at least an attempt at
verification) of a third party's allegations will not ordinarily be appropriate
and perhaps even essential. In rejecting the general claim for qualified
privilege for political discussion Lord Nicholls said in Reynolds at 203B:
'One difficulty with this suggestion is that it would seem to leave a
newspaper open to publish a serious allegation which it had been wholly
unable to verify. Depending on the circumstances, that might be most
unsatisfactory.'
52 I am saying, however, that there will be circumstances where, as here,
that may not be 'most unsatisfactory' where, in short, both sides to a
political dispute are being fully, fairly and disinterestedly reported in their
respective allegations and responses. In this situation it seems to me that
the public is entitled to be informed of such a dispute without having to
wait for the publisher, following an attempt at verification, to commit
himself to one side or the other.
[39] Latham LJ concluded that:

228

It is the fact that the allegation of a particular nature has been made
which is in this context important, and not necessarily its truth or
falsity (emphasis added).
...
67 . . . It seems to me that in the context of allegation and counterallegation as was undoubtedly the case here, the interested reader
was entitled to know what type of allegations were being made from
time to time by one side against the other,
OTHER CASES OF REPORTAGE
[41] Reportage is next mentioned in Mark v Associated Newspapers
Ltd [2002] EMLR 38. There the Daily Mail repeated assertions in the
Mail on Sunday that Miss Mark, the Prime Minister's former nanny, had
authorised publication of material from her book which she ought not to
have done without the Blairs' consent and, moreover, that she had
misrepresented her position when claiming to have been devastated by
the publication of extracts from her book in the Mail on Sunday. These
were defamatory remarks. The Daily Mail, however, also published her
denial that she had authorised publication. The two central questions
which arose on the appeal were (1) whether the repetition rule was
reconcilable with Strasbourg jurisprudence, and (2) even if it is, does the
reporting within the same publication of two conflicting statements, the
one defamatory, the other its denial, without the publishers disclosing a
particular preference for either, have the consequence that the denial is
to be regarded as the antidote to remove the bane of the publication in a
way which results in its losing its otherwise defamatory meaning. This
court found there was no inconsistency between the repetition rule and
decisions of the European Court of Human Rights and that it was only in
cases where the antidote so obviously extinguished the bane that no
issue could properly be left to the jury that the judge should rule at an
interim stage that the article was not capable of being defamatory. In the
course of his judgment Simon Brown LJ said of Al-Fagih:
35 In short, whilst I am certainly prepared to recognise that the
approach adopted in Al-Fagih may need to be taken further still
rather than perhaps confined merely to the reporting of statements
(attributed and un-adopted) by both sides to a political dispute I
reject entirely the argument that the repetition rule as such needs
changing. To regard reportage as being incapable of harming a
person's reputation would be to introduce into the law a fiction
which the repetition rule is designed to avoid.

229

[42] The doctrine is next mentioned in Galloway v Telegraph Group


Ltd [2006] EMLR 221. The articles concerned asserted that Mr Galloway,
a well-known Member of Parliament, was in the pay of Saddam Hussein,
secretly receiving sums to the order of 375,000 a year, that he had
diverted monies from the Oil for Food Programme thus depriving the Iraqi
people whose interests he claimed to represent of food and medicine and
that he had probably used the Mariam appeal as a front for personal
enrichment. The Daily Telegraph did not seek to justify these defamatory
statements as true but, relying upon the fact that they were based on
documents found by their reporter in Baghdad claimed that the
publication was protected by privilege, inter alia, as reportage. The Court
of Appeal held:
48 It is not in dispute that the Baghdad documents were of great interest
to the public and The Daily Telegraph was naturally very keen to publish
them. If the documents had been published without comment or further
allegations of fact Mr Galloway could have no complaint since, in so far
as they contained statements or allegations of fact it was in the public
interest for The Daily Telegraph to publish them, at any rate after giving
Mr Galloway a fair opportunity to respond to them. Such publication
would be reportage. The balance would come down in favour of freedom
of expression, which, subject to art 10.2, is protected by art 10.1 of the
Convention, and the statements would be protected by privilege . . .
59 It appears to us that the newspaper was not merely reporting
what the Baghdad documents said but that . . . it both adopted and
embellished them. It was alleging that Mr Galloway took money from
the Iraqi oil-for-food programme for personal gain. That was not a
mere repeat of the documents, which in our view did not, or did not
clearly, make such an allegation . . . the thrust of the coverage was
that The Daily Telegraph was saying that Mr Galloway took money
to line his own pockets. In all the circumstances we answer the
question whether the newspaper adopted and embellished the
statements in the Baghdad documents in the affirmative . . . .
[43] Finally, we find some endorsement of the doctrine in Jameel. Lord
Hoffmann said in para 62:
In most cases the Reynolds defence will not get off the ground unless
the journalist honestly and reasonably believed that the statement was
true but there are cases ('reportage') in which the public interest lies
simply in the fact that the statement was made, when it may be clear that
the publisher does not subscribe to any belief in its truth (emphasis
added).

230

HUMAN RIGHTS JURISPRUDENCE

PROFESSIONAL MEDIA ETHICS


i.e. Codes of Conduct

Dont let the facts get in the way of a good story.??

Ethics, codes and moral guidance.

NEWSGATHERING, MISREPRESENTATION, CLANDESTINE


METHODS
NEWSGATHERING:
International Federation of Journalists
The journalist shall use only fair methods to obtain news, photographs
and documents.
National Union of Journalists Handbook 2005
A journalist shall obtain information, photographs and illustrations only
by straightforward means. The use of other means can be justified only
by overriding considerations of the public interest.
BBC Code of Ethics

231

See www.bbc.co.uk/guidelines/editorialguidelines/
No discussion of misrepresentation, only subterfuge
Press Complaints Commission PCC Code
Cl. 8 Hospitals and similar institutions- identify and obtain permission
from a responsible executive before entering non-public areas. Subject
to public interest as below.
Cl. 10 Clandestine devices and subterfuge Press must not seek to
obtain or publish material acquired by using hidden cameras or listening
devices, or by intercepting phone calls, messages or e-mails or by
removal documents or photographs.
ENGAGING IN MISREPRESENTATION OR SUBTERFUGE CAN
GENERALLY BE JUSTIFIED ONLY IN THE PUBLIC INTEREST AND
ONLY WHEN THE MATERIAL CANNOT BE OBTAINED BY OTHER
MEANS.
Ofcom Code for broadcast journalists
Factual programme makers should not normally obtain or seek
information or pictures through misrepresentation or deception, EXCEPT
WHERE THE DISCLOSURE IS REASONABLY BELIEVED TO SERVE
AN OVERRIDING PUBLIC INTEREST.

POSING AS SOMEONE DIFFERENT IN ORDER TO GAIN ACCESS:


Invasion of privacy and unnecessary subterfuge or justified in public
interest?
E.g. Public interest or smokescreen to promote circulation e.g. Diana in a
gym, Sunday Mirror 1994.

PCC Report No 33 (1996) and freelance reporter at school claiming to be

232

cousin of pupil involved in a relationship with a teacher. PCC held this


was not acceptable i.e. misrepresentation and upheld the complaint.
PCC 2005 and Sunday Telegraph reporter posed as client to find out if a
Saudi Arabian printers was printing the British National Partys
newspaper. The PCC did not uphold complaint reasonable grounds for
concluding that pursuing other means would compromise the ability of
reporters to investigate matters subsequently.
Also, subterfuge acceptable where not serious and caused little harm.

PROTECTION OF SOURCES:
No duty of confidentiality but where risk to informant, reporter may
guarantee confidentiality to a source, matter of ethical honour.
International Federation of Journalists
The journalist shall observe professional secrecy regarding the source of
information obtained in confidence.
NUJ Code a journalist shall protect confidential sources of information
PCC Code: a moral obligation to protect no legal protection
4 Main legal provisions re. the identification of source/material:
a) S10 Contempt of Court Act 1981 No court may require a person to
disclose, nor is any person guilty of contempt of court for refusing to
disclose the source of information contained in a publication for which he
is responsible, unless it is established to the satisfaction of the court that
it is necessary in the
interests of justice
national security or
for the prevention of disorder and crime.
b) Police and Criminal Evidence Act 1984

233

c) Official Secrets Acts


d) Terrorism Act 2000
Bill Goodwin.
Trainee reporter at The Engineer, received financial information
about a major company, Tetra. Contacted company for
comment court injunction followed and demand for name of
source.
European Court of Human Rights 1996 ruled that Goodwins
human rights had been violated.
Protection of sources is one of the basic conditions for press
freedom without such protectionthe vital public watchdog
role of the press may be undermined and the ability of the press
to provide accurate and reliable information may be adversely
affected. Having regard to the importance of the protection of
journalist sources for press freedom in a democratic society and
the potentially chilling effect on order of source disclosure has
on the exercise of that freedom, such a measure cannot be
compatible with Art 10 of the Convention unless it is justified by
an overriding requirement in the public interest.
The English decision is X v Morgan Grampian 1990. House of
Lords ordered disclosure of documents as the information had
been obtained unlawfully and in breach of confidence. The
publishers were mixed up with the tortuous acts of the source
and were thus under a duty to assist the company to redress the
wrong. No public interest found in publication, failure to obtain
the working capital required by the company may have
devastating results on both the company and its employees.
Both HoL and ECHR recognised the importance of protecting
press sources simply reached different conclusions.

234

Ashworth Security Hospital Authority v MGN Ltd


[2002]
Ian Brady, Moors Murderer mid 1960s, now in secure mental
hospital. Medical details published by Daily Mirror, hospital
claim breach of patient confidentiality and want source of
information disclosed.
LJ Laws in Court of Appeal, in any given case the debate
which follows will be conducted upon the question whether there
is an overriding public interest, amounting to a pressing social
need, to which the need to keep press sources confidential
should give way..
House of Lords ruled that source should be divulged at which
point Ackroyd came forward but refused to identify his source.
L. Woolf in House of Lords in case against the local reporter
Robin Ackroyd considered the approach of L. Steyn in Re S
[2004] and 4 points of principle where balancing Art 8 and Art 10
rights:
1. Neither article has precedence over the other
2. Examine in detail the comparative importance of the rights
claimed
3. Identify reasons for interfering with each right
4. Determine ultimate balancing test by reference to
proportionality.
6 years after leak, no pressing social need to order disclosure,
hospital now had little to gain form discovering the source of the
leak.
Note that this was not about patient confidentiality Brady
wanted release of records to substantiate his claims of poor
treatment, thus it was an issue of hospital confidentiality.

PCC CODE:

235

PAYMENTS TO SOURCES:
i) No payments to witnesses or potential witnesses in current
criminal proceedings except where material OUGHT TO BE
PUBLISHED IN THE PUBLIC INTEREST AND THERE IS AN
OVERRIDING NEED TO MAKE OR PROMISE TO MAKE A
PAYMENT FOR THIS TO BE DONE.
Must take every possible step to ensure no influence on the
evidence those witnesses may give and disclose offer to both
prosecution and defence.
ii) No payments for information or pictures to convicted or
confessed criminal or their associates where stories, pictures or
information seek to exploit a particular crime or glorify crime in
general, except where OUGHT TO BE PUBLISHED IN THE
PUBLIC INTEREST AND PAYMENT IS NECESSARY FOR THIS
TO BE DONE.
BBC Producers Guidelines take the same approach.

SUBTERFUGE AND MESSAGE TAPPING:


PCC Investigation following the conviction in January 2007 of
Clive Goodman of News of the World and Glenn Mulaire, inquiry
agent. Personal phone messages of members of the Royal
family.
Speculative tapping into private mobile phone messages
contrary to Regulation of Investigatory Powers Act 2000 and
Criminal Law Act 1977 resulting in imprisonment. Editor took
overall responsibility and resigned.

Public interest exceptions and the PCC Code:

236

Privacy
Harassment
Children
Hospitals
Friends and acquaintances of criminals
Criminals
Public interest includes:
i) Detecting or exposing crime or serious impropriety
ii) Protecting public health and safety
iii) Preventing the public being misled by an action or statement
of a person/organisation
There is public interest in freedom of expression itself,
consideration to the extent that information already in public
domain or will become so. Cases re under 16s must show an
exceptional public interest