Mark Scheme

Unit title Media Law & Ethics

Textbook Law and the Media – Philip Alberstat, Tom Cassels & Estelle Overs

Series June 2019

 Question 1 Answer Annotate Guidance

a) Define defamation. a) Award one mark for each of the following Tick for each mark Syllabus reference:
bullet points: awarded Set text chapter:
[3]
 It is a statement. Defamation (pages
 Which tends to lower the claimant. Total mark for the 3-4).
 In the estimation of right-thinking members of question circled in red
society generally.

b) Award one mark for each of the following

b) Explain what a claimant must show to
prove an allegation of defamation.
[3]
points:
 The claimant must show defamatory language
by the defendant.
 Which identifies or refers to the claimant and
 Is published to a third party.

c) Award one mark for each of the following

c) Identify the factors that a newspaper
should consider when assessing whether
or not to publish a potentially defamatory
statement.
[4]
points:
 Is the piece true?
 Can it be proved to be true?
 If not, is it covered by one of the other
defences to defamation?
 Is the subject of the piece likely to sue?

d) Award one mark each for the following bullet

points:

Libel.
d) Distinguish between libel and slander.
 Libel is the more common and more serious.
[10]  Libel is defamation in writing.
 Or some other permanent form.
 Such as a recording.
 Radio and TV broadcasts and computer-
generated transmissions are defined by statute
as libel.
Question 1 Answer Annotate Guidance

Slander.
 Slander is spoken defamation or defamatory
language in some other temporary form.
 Distinction between the two is only relevant to
the issue of damages.
 Damage is presumed in cases of libel.
 With slander claimant must prove actual loss.
 Only exception to having to prove loss is if the
allegation falls into one of four exceptions.

Marks may be awarded for other relevant points.

 Question 2 Answer Annotate Guidance

a) Explain the defence of fair comment. a) Award one mark each for FIVE of the following: Tick for each mark Syllabus reference:
awarded Set text chapter:
[5]
 Allows a person to publish. Defamation (pages
 A statement of opinion. Total mark for the 15-18).
 Or comment. question circled in red
 On a matter of public interest.
 Provided it is done without malice.
 It protects the freedom to voice an honest
opinion.

b) Award one mark for each of the headings

below and up to two marks for the explanation
b) Identify and explain the FIVE components of each:
of a defence of fair comment.
[15] Comment must be on a matter of public
interest.
 Defendant must prove this.
 Judge rules on this.
 Difference between public interest and
 What the public might find interesting.
 E.g. all national and local government are
matters of public interest.

The comment must be a comment.

 A factual statement can’t be protected by fair
comment.
 Must be expression of opinion.
 Can be difficult to distinguish comment.
 From fact disguised as comment.

Comment must be based on facts that are true

or privileged.
 Comment must have an adequate factual basis.
 Facts must be stated sufficiently clearly.
 Question 2 Answer Annotate Guidance

 To enable recipient to consider those facts.

 Otherwise recipient can’t know if comment is
well founded.

Comment must be fair as judged objectively.

 Jury must consider whether any fair-minded
person could have made the comment.
 Having knowledge of the proved facts.
 Emphasis is on honesty rather than fairness.

Person making the comment must not be

motivated by malice.
 Otherwise defence will be defeated.
 Malice in a legal sense is wide ranging.
 Spite, ill will, dishonest, improper.

Marks may be awarded for other relevant points.

Question 3 Answer Annotate Guidance

Identify and explain the FOUR circumstances in Award up to five marks each (one mark for the Tick for each mark Syllabus reference:
 Question 3 Answer Annotate Guidance

which a court is likely to require a journalist to identifier and up to four for the explanation) for the awarded Set text chapter:
reveal a source. Use case studies to support your following: Protection of
answer. Total mark for the Journalistic Sources
[20]  In the interests of justice. question circled in red (pages 184-189).
Covers all cases where a claimant can show
some prejudice.
Public interest test and whether this outweighs
disclosure.
Impact of human rights legislation.
Key case: Camelot Group plc v Centaur
Communications Ltd 1999.
Key case: John Reid Enterprises v Bell 1999.
Key case: Goodwin v United Kingdom 1996.
 In the interests of national security.
Disclosure almost automatic.
Journalists are expected to hand over
documents.
Key case Secretary of State for Defence v
Guardian 1985.
Key case X Ltd v Morgan Grampian Publishers
1991.
 For the prevention of crime and disorder.
Disclosure almost automatic.
Public interest in preventing disorder is of
Overriding importance.
Key case X Ltd v Morgan Grampian Publishers
1991.
Key case x v y 1988.
 Official Secrets Act.
Acts generally have exception to source
protection.
In cases of espionage.
Where journalists have details of breach.
Award marks for other relevant points and cases
 Question 3 Answer Annotate Guidance

quoted.

Question 4 Answer Annotate Guidance

Journalist’s need to be aware of the law in respect Award up to three marks each (one mark for the Tick for each mark Syllabus reference:
 Question 4 Answer Annotate Guidance

of personal privacy when pursuing a story. Identify identifier and up to two for the explanation) for the awarded Set text chapter:
and explain SIX areas of personal privacy typically following: The New Right to
covered by legislation. Support your answer with Total mark for the Privacy (pages 120-
examples.  Untruths; libel laws and those relating to question circled in red 122).
[20] malicious falsehood are available against many
forms of published untruths, especially those of
a personal or damaging nature.
 Confidential information; the law of confidence
offers some protection against abuse or
unauthorised use of confidential information
(personal or business). This is particularly
effective in restraining a publication.
 Private property; the laws of trespass is there
to enforce the individual’s right to decide who
remains on his property.
 Private correspondence; interference with
letters has wide protections in many countries
(criminal law and the law of copyright).
 Family matters; judges can protect families and
children under their powers. Blanket
injunctions can be imposed very quickly.
Reporting restrictions.
 Interception and bugging; various acts protect
privacy of communication

Award up to two marks for the use of examples.

Candidates should be awarded marks for other country
specific points that they may put forward.

Question 5 Answer Annotate Guidance

Identify and discuss the TWO approaches to rights Award one mark each for the two headings below and Tick for each mark Syllabus reference:
 Question 5
clearance in respect of copyright.
[20] [Note: the maximum mark that can be scored for
Answer Annotate Guidance
one mark each for up to 18 of the bullet points: awarded Set text chapter:
Rights Clearance
discussing only one of the approaches is 10]. Total mark for the (pages 83-84).
question circled in red
Assignments of copyright.
 The most complete form of rights clearance.
 Taking an assignment of copyright will give the
producer or editor the right to use the work in
a production; and
 The right to control all further exploitation of
the finished product.
 The further exploitation will be restricted by
the terms on which the copyright was assigned.
 The copyright is normally assigned for the full
period of the copyright.
 A shorter period can be agreed.
 May make provision for the rights to be
reassigned if a particular event happens e.g.
non-payment of fees.
 The assignment must provide complete clarity
so there is no confusion that it might be a
licence.
 The wording of an assignment must cover all
rights in the work.
 Not just those that presently exist.
 I.e. must make provision for other rights that
might be conferred in the future.
Licences of copyright.
 In most cases a producer will obtain a licence.
 Is a form of permission to use certain rights
rather than outright assignment.
 Where pre-existing material is involved, a
licence rather than an assignment will be
 Question 5 Answer Annotate Guidance

granted.
 A licence can include the following rights-
 To copy the work.
 To make further copies e.g. of a finished film.
 To present or show the work in public.
 To broadcast the work.
 To adapt the work.
 Producer needs to bear in mind that the licence
is a form of permission can be withdrawn or
terminated.
 Licence does not need to be in writing (unlike
assignments).

Marks may be awarded for other relevant points.

Question 6 Answer Annotate Guidance

Identify and discuss the THREE factors that a Award one mark for each of the THREE headings below Tick for each mark Syllabus reference:
 Question 6 Answer Annotate Guidance

claimant must show to establish that a breach of and one mark for up to 17 of the bullet points. awarded Breach of
confidence has taken place. Confidence (pages
[20] The information has the necessary quality of Total mark for the 90-97).
confidence. question circled in red
 Assessing confidentiality can be challenging.
 The information must be secret.
 The information can be written or oral.
 Confidentiality won’t attach to information
that already public.
 May have already been published abroad.
 Confidentiality can be lost with the passage of
time.

The information was imparted in circumstances

which imposed an obligation of confidence.
 Obligation of confidence can arise by
agreement.
 Private employees-by nature of contract.
 Government employees-obligation of
confidence.
 Obligation can also arise through relationship
of confider and confident.
 Husband and wife-the law will not permit the
revelation of anything confided by one spouse
to the other during a marriage.
 Other sexual relationships-protection afforded
to matrimonial confidences has been extended
to other sexual relationships.
 Doctor and patient-medical confidentiality
prevents doctors from revealing a patients’
illnesses even to other members of the family.
 Other confidential relationships-information
given by clients to their lawyers is confidential,
information provided by a parishioner to a
 Question 6 Answer Annotate Guidance

priest is confidential.
 Third parties-a third party who is in receipt of
confidential information that he knew or ought
to have known was subject to confidence may
be prevented from publishing the information.
 Media and sources-confidentiality of
relationship.

There has been or will be unauthorised use of

the information.
 Defendant used information in public domain.
 Or disclosed it into public domain.
 Absence of consent.

Marks may be awarded for other relevant points.

Question 7 Answer Annotate Guidance

The strict liability rule comprises FOUR elements. Award one mark each for the following headings and Tick for each mark Syllabus reference:
 Question 7 Answer Annotate Guidance

Identify and explain EACH of these. one mark each for up to 16 of the bullet points. awarded Set text chapter:
[20] [Note: the maximum mark that can be scored for Contempt of Court
discussing only one of the rules is 5, for two 10 and for Total mark for the (pages 168-177).
three 15]. question circled in red

Strict Liability.
 A publisher may be found to be in contempt
irrespective of whether it was intended to
cause a substantial risk of serious prejudice.
 No need to prove a guilty mind, intent,
recklessness, negligence.
 Will not escape conviction even if did extensive
research, took legal advice, gave great though
to publication-this would only be mitigation.
 Motivation is irrelevant in contempt
proceedings.

A Publication.
 Strict liability rule only applies to publications.
 Publication is a speech, writing, broadcast or
other communication in whatever form which
is addressed to the public at large.
 Applies to all the output of the media.

Active Proceedings.
 Proceedings must be active.
 Various factors indicate whether criminal and
civil proceedings are active or not.
 E.g. criminal proceedings become active on
arrest without a warrant, the issue of a warrant
for arrest.
 Civil proceedings are active from the time when
arrangements are made for the hearing of the
case or from when the hearing begins.
Question 7 Answer Annotate Guidance

A Substantial Risk of Serious Prejudice.

 Strict liability rule only applies to publications
that create a substantial risk of serious
prejudice to the course of justice.
 Two-fold test.
 Threshold is not a high one-substantial means
more than minimal.
 Prejudice can include stopping the hearing,
discharging the jury.
 Court will consider a number of factors e.g.
content, place of trial.

Marks may be awarded for other relevant points.

 Question 8 Answer Annotate Guidance

a) Define the offence of racial hatred. a) Award one mark each for FIVE of the following: Tick for each mark Syllabus reference:
[5]  Hatred against a group of citizens. awarded Set text chapter:
 Defined by reference to. Obscenity,
 Colour. Total mark for the Indecency and
 Race. question circled in red Incitement to Racial
 Nationality. Hatred (pages 210-
 ethnic or national origins. 211)

b) Award up to THREE marks each for the

following:
b) Explain the THREE main offences of racial  Using threatening, abusive or insulting
hatred. language, or displaying abusive or insulting
[9] written material.
 Publishing or distributing abusive or insulting
written material, or performing plays,
distributing or presenting visual images or
sounds or producing a programme containing
abusive or insulting written material.
 Possessing written material or recordings of
images or sounds that is threatening, abusive
or insulting with a view to displaying or
publishing it.

c) Award one mark each for SIX of the following

points:
 Accused can show that they did not intend to
stir up racial hatred.
 Not aware of content of the material.
c) Explain the defences to an allegation of
racial hatred.  Did not suspect that it was threatening, abusive
insulting.
[6]
 Had no reason to suspect was threatening,
abusive insulting.
 Burden on establishing the defence is on the
defendant.
Question 8 Answer Annotate Guidance

 Inadvertent incitement of racial hatred may be

an offence.
 Will be the case if racial hatred likely as a
consequence of material.

Marks may be awarded for other relevant points.