Regulating the Press

The ethical nature behind today's media has been subject to copious amounts of distrust, scrutiny and negativity recently. With so many organisations in place to ensure that the standards of the press are up to scratch, what rules do each of them encompass?

Ofcom

Image courtesy of Ofcom Wikipedia

Ofcom is most probably one of the more well-known organisations that lay people have heard of, but it is clear that not everyone is aware of what it stands for and what it aims to accomplish. Ofcom is the communications regulator in the UK. Their focus is to regulate TV and radio sectors, fixed line telecoms (broadband services), mobiles, postal services and airwaves which wireless services operate over.

Ofcom operates and must act within Acts of Parliament, such as the Communications Act 2003 as these are the set powers and duties given by Parliament through legislation. The Communications Act states that Ofcom's principal duty is to further the interests of citizens and consumers, but their aim is also to do so whilst ensuring that competition strives. It appears that Ofcom have the burden of balancing the protection of consumers from scams, whilst promoting economic growth through company competition.

Press Complaints Commission/Independent Press Standards Organisation

Image courtesy of Press Complaints Commission Wikipedia

The PCC was (and still is, despite being replaced by IPSO) an independent body which administers the system of self-regulation for the press. It was comprised of 17 members, the majority of which are lay members, with no connection to the newspaper and magazine industry (their attempt at being 'independent'?) and the remaining 7 are Commissioners serving as editors.

The PCC enforced the Editors' Code of Practice and dealt with issues of accuracy and privacy in reporting. They acted to maintain standards of the press through dealing with complaints in an apparently efficient and free of charge manner to promote how journalists should behave in gathering news.

Here are some of the areas in which the PCC and IPSO act within:

- Negotiating remedial action and amicable settlement for complainants;

- Issuing rulings on complaints;

- Instigating its own investigators under the Code in the public interest where appropriate;

- Conduct training seminars for working journalists and editors.

Standards that fall outside of the remit of the Commission (which appear to be merely subjective and relative):

- Question of taste and offence;

- Tone of coverage;

- Newsworthiness of stories;

- Quality of writing.

They claim to encourage complainants, because the more people who use the system, the more editors will be held accountable for their decisions. However, it is interesting that the PCC said this prior to the phone hacking scandals that occurred not too long ago, leading to the upheaval of the Leveson Inquiry. Where the perpetrators and journalists held accountable here?

National Union of Journalists

Image courtesy of National Union of Journalists Wikipedia

The NUJ acts as a voice for journalism/journalists across the UK and represents a broad range of media professionals - from freelances and magazine journalists to online book publishing and photographers. It was formed in 1907 and now has more than 30,000 members.

Despite encompassing and promoting their Code of Conduct, I disagree that at least most of these principles have not been upheld in reality.

1. The Union is to defend press freedom when it comes under threat (this is done so clearly, publicly and so very often);

2. The Union must strive to ensure that information is disseminated and honestly conveyed in an accurate and fair manner (questionable...);

3. Journalists must do their utmost to correct harmful inaccuracies and differentiate between fact and opinion;

4. Journalists should obtain material by honest, straightforward and open means, with the exception of investigations that are both overwhelmingly in the public interest and which involve evidence that cannot be obtained by straightforward means;

5. Journalists should do nothing to intrude into anybody's private life, grief or distress unless justified by overriding consideration of the public interest (I doubt invading Milly Dowler's, or her family's privacy was in the public interest - there is also so much debate over what public interest actually is);

6. Journalists must protect the identity of sources who supply information in confidence;

7. Journalists must resist threats or any other inducements to influence, distort or suppress information and takes no unfair personal advantage of information gained in the course of his or her duties before the information is public knowledge (breach of this is why there is no longer trust in the media);

8. They must produce no material likely to lead to hatred or discrimination on the grounds of age, gender, race, colour, creed, legal status, disability, marital status, or sexual orientation. 

9. They must not by way of statement, voice or appearance endorse by advertisement any commercial product or service save or the promotion of his or her own work;

10. A journalist shall normally seek the consent of an appropriate adult when interviewing or photographing a child for a story about his or her welfare (interesting use of the word 'normally');

11. Avoid plagiarism.

Of course, there are journalists and members of the media sector who stay true to the code of conduct that they believe in, however, there the typical and unfortunate fact is that those who disobeyed the rules got caught and ruined the reputation for everybody else. Will the media ever pick up its reputation and uphold it in a positive light? Who knows, because we do not know what happens behind closed doors. Why didn't these organisations do more to fulfil their aims? Some people ask, what more could they do really, providing that the complaints procedures and code of conduct were in place to be complied with? With the freedom of expression so evident in today's society, how can we really find a balance or space for the right to privacy and vice versa? It seems as though we live in a hindsight driven society, whereby organisations are continuously made to work in theory to prevent things from happening the 'next time' or 'again', yet they do not actually work practically.

"NUJ believes a journalist has the right to refuse an assignment or be identified as the author of editorial that would break the letter or spirit of the NUJ code of conduct." - National Union of Journalists

Reporting Restrictions - The Loathe Local Governments Have For Filming

That's right, another Obiter Media Law podcast from myself and my friends at Blah Blah Media Law and Overseas In My Briefs!



This week our podcast overlapped with the previous one on children and sexual offences reporting restrictions - this time we focused on contempt of court and reporting on local governments, eg. local councils.

Do you think that your local council should be held accountable for the decisions that they make? Do you want to attend a meeting and have documentary evidence of what they have said? Well, as the law currently stands, you should be well within your rights to attend and film them in the process of making decisions for your borough. What is contempt of court and what are the restrictions placed under this area of law? Listen to find out!

Here is the video regarding Huntingdonshire District Council, which we refer to in the podcast. They do not seem happy about the filming at all, do they? How would your local government react?



"We have got to make sure that there is proper independent scrutiny and accountability..." - Nick Clegg

Children & Sexual Offences: The Restrictions Placed On The Press

This week, my friends at Blah Blah Media Law and Overseas In My Briefs and I recorded another legal podcast. This time the topic concerns reporting restrictions on the press in relation to children and victims of sexual offences.



Do you want to know about the restrictions placed on journalists when they report on cases involving children, or sexual offences, such as rape? Do young witnesses of crimes receive any protection? What kind of protection do people receive, is it just anonymity? How much do you know about the offence of contempt of court? Listen to our Obiter Media Law podcast to find out more on these questions!

"A person's a person, no matter how small." - Dr. Seuss

Two Hackers & A Side Of Corruption Please!

The Rebekah Brooks Trial

Image courtesy of Gwydion M. Williams at Flickr

It is now a well-recognised fact that Rebekah Brooks, the former editor of the News of the World and four other defendants (including her husband and former members of staff) were recently cleared of several charges at the Old Bailey. It is not a surprise that the trial lasted around 138 days and that it was classed as one of the most expensive and lengthy police inquiries in criminal history (costing around £100 million!). Almost 150 detectives were drafted to work full time on the following three inquiries, which opened in the wake of phone hacking allegations:

1. Operation Weeting - this investigation looked specifically at voicemail interception at the News of the World.

2. Operation Elveden - this examined allegations of corruption between journalists and public officials.

3. Operation Tuleta - this observed allegations of computer hacking.

So what were the horrific charges that had the world talking?
Brooks was charged with offences such as; conspiracy to hack phones, conspiracy to corrupt public officials and conspiracy to pervert the course of justice - all of which she pleaded not guilty to and was found not guilty of, alongside her husband and colleagues.

Prior to Brooks's trial, five associates of the News of the World interestingly pleaded guilty to hacking charges:
Glen Mulcaire (Private Detective)
Neville Thurlbeck (Former Chief Reporter)
Greg Miskiw (Former News Editor)
James Weatherup (Senior Journalist)
Dan Evans (Reporter)
If her colleagues and associates were pleading guilty left, right and centre, how innocent is Brooks really?

The police force hunted for admissible, appropriate and sufficient evidence that may implicate Brooks and other newspaper figures. They gathered documents, such as emails from News International's Management and Standards Committee and contacted victims of the alleged phone hackings. Though, despite Brooks's acquittal, the police seemed to show no signs of abating their investigations, as they were reportedly planning to interview Rupert Murdoch (the News Corporation Chairman, or the devil himself - you decide) as a suspect.

The court heard witness speak of instances where Brooks authorised payments through emails to a Ministry of Defence official to obtain details of soldiers killed in action before they were officially released, whilst working for The Sun newspaper. Andrew Edis QC said "It really matters when [such detail] is released and how it was released to other people affected by it." My personal interest and concern, lies with the family and close friends of those soldiers who died and how they would feel about a price being placed upon the news of their beloved's death, merely to create a story for the public. The prosecution suggested that by behaving in such a way, Brooks was involved in a conspiracy to commit misconduct in a public office and that she knew this.

Where is Brooks now and what next for her future?
She could have faced a very lengthy prison sentence, a ruined reputation and financial difficulty, but with a good friend like PM David Cameron, was this really going to happen? Brooks has now stated that she will spend more time parenting her daughter, Scarlett. Since resigning from the News of the World, Brooks received a staggering £16.1m pay-off. According to a colleague who knows her well "Rupert [Murdoch] will not allow her to slip into poverty" - the pair remained very close during their legal troubles.

The Andy Coulson Trial

Image courtesy of Ninian Reid at Flickr

Andy Coulson, former deputy to Brooks and editor of the News of the World (between 2003 - 2007) was conversely found guilty of one charge of conspiracy to hack voicemails. The pair found themselves in an affair for 6 years, which was revealed in court.

Coulson was found guilty of being involved in the conspiracy to intercept the voicemails of many celebrities, royals, politicians and ordinary members of society when he was editor. The prosecution said that due to the scale of the hacking events whilst he was editor of the News of the World, he must have known about the scandal and the jury seemed to agree with this.

Subsequently after Coulson's conviction, PM David Cameron apologised for hiring him as his director of communications. He said that bringing Coulson to Downing Street was the "wrong decision". Ed Miliband had said that Cameron had "brought a criminal into the heart of Downing Street" and his government was "tainted" as a result. Undoubtedly, this brings Cameron's judgement and logical reasoning into question by the public. It is clear and expected that Miliband, of the opposing party, would comment in such a way regarding the situation, but I cannot stop myself from wondering whether Cameron knew about the scandals and if so, how much he knew about it all. Did he know that members of the public were being violated and let it happen?

After the jury found Coulson guilty, he was sentenced to 18 months imprisonment (out of a possible maximum of 2 years). However, as reported so largely by the media, it is known that he served less than 5 months of this and was released. Coulson was subject to an open prison in Suffolk called Hollesley Bay after being moved from HMP Belmarsh in South East London. It is understood that he is now to wear an electronic tag until he has served half of his full 18 month sentence as a condition of his early release.

The Ministry of Justice has denied any comment on this case, but has said that prisoners could be released under home detention curfew arrangements. A spokesman for the Ministry of Justice said "Public protection is our first priority. Only prisoners who pass a strict risk assessment can be released on HDC [home detention curfew]." Many people have experienced outrage at the outcome of these trials - the fact that Brooks was found not guilty and that Coulson was released after having served less than half of his sentence. Though some victims and victims' families had fairly positive words to say. Milly Dowler's parents said they were pleased that the case had led to a debate about press ethics. The investigation seems to have enlightened the public on the relationships between particular sectors within our society - politics and media.

Image courtesy of Gwydion M. Williams at Flickr

"Four hostile newspapers are more to be feared than a thousand bayonets." - Napoléon I

Secrets & Lies!

The Obiter Media Law Podcast

Image courtesy of Michelangelo Carrieri at Flickr

This week, the Official Secrets Act 1989 and it's predecessor the Official Secrets Act 1911 were observed and construed. Myself and colleagues over at Blah Blah Media Law and Overseas In My Briefs recorded a podcast for you all to listen to. Apologies in advance for my bloopers and the horrific quality of my microphone!

"The Official Secrets Act is not there to protect Secrets, it is there to protect Officials." - Sir Humphrey, Yes Minister

Image courtesy of Michael Nielsen at Flickr

Shaken, not stirred.

Sharing Is Caring (As Long As You Attribute Me)

What is a creative commons licence?
A creative commons licence acts to allow other people to share and even modify your works that have been copyrighted without infringing the copyright and without the need for others to ask your permission. As we have seen from my copyright post, works created by individuals are automatically copyrighted in the UK. Creative commons provides licences to use the work free of charge!

Image courtesy of creative commons wikipedia

An example of how creative commons works:
Let's say that I wanted to use a photo on my blog, I would be able to use this image without having to ask the permission of the photographer who created that photo first, because they have already given permission through their creative commons licence.

Creative commons is split up into many elements/rules/licences that your use of the work will depend upon:

Image courtesy of creative commons wikipedia

This is 'attribution' (BY) and it means that I can use the work as long as I attribute/accredit the creator when I do.

Image courtesy of creative commons wikipedia

This is for 'non-commercial use' (NC) and it means that no one apart from the creator is permitted to make money from the work, so I would not be able to sell anything with an image belonging to someone else on it, for example.

Image courtesy of creative commons wikipedia

This is 'no derivatives' (ND), which means that the creator has not given permission to make modifications. I would be able to use the work, on my blog for example, but if I wanted to alter the work I would need to ask permission.

Image courtesy of creative commons wikipedia

This is 'share alike' (SA), which means that new creations which use and encompass the work need to be under the same licence or terms as the original one.


All works that are under a creative commons licence automatically have the rule of attribution, the other three may be added or left out depending on the creator's wishes.


Please visit and watch the following videos which are very useful for those who want to know more about creative commons and how to protect their works:

http://creativecommons.org/videos/creative-commons-kiwi
http://creativecommons.org/videos/get-creative

I shall now leave you with this entertaining and enlightening video on music and copyright to end my copyright related posts.




“If you have a candle, the light won't glow any dimmer if I light yours off of mine.” - Steven Tyler

Copyright or Copy Wrong?

Copyright allows creators (be they, authors, lyricists, artists, directors, etc) of intellectual property to make a living. The person who creates an original creative work should be the one to receive the economic rewards through accreditation and/or remuneration - through payment or royalties. This way, the creator will be recognised as the original rights or copyright owner; to whom rights will be reserved. These rights allow him/her to decide whether and how copying, distributing and other uses of their works take place.

The Copyright, Designs and Patents Act 1988

This Act introduced an automatic and immediate copyright in original literary, dramatic, musical or artistic works (S.1(1) CDPA 1988). However, this does not exist until and unless the work has been recorded - though not necessarily by the author. For example, if a person recorded a band playing their music at a pub, then the copyright for this could vest in the band. It is important, then, to note that copyright does not protect ideas or creations themselves, but safeguards the expression of it.

General concepts cannot be copyrighted, for example, the general idea of a battle in outer space; the idea needs to be sufficiently well developed (Fraser v Thames TV [1983]). Also, character names appear not to have the ability to be copyrighted, although they would be able to be registered as trademarks to be distinguishable as a separate brand - for example, 'James Bond'.

A copyrighted work under CDPA 1988 can be relatively easy to prove within the scope of the Act. This means that there are no strict standards of novelty to be met, as there are with patent laws and trademarks. Due to the fact that the copyright automatically arises, there is no official form of registration of copyrights in the UK, as there are in places such as the USA.

So, how can a person copyright their works for free?

Musicians and their musical works would be a good example. If a musical artists was willing to pay for their copyright, then they could sign up to the Musicians' Union. However, not all musicians have the financial luxury of splashing out on these sorts of membership whilst trying to make their 'big break'. Therefore, musicians could write and record their music, seal it inside an envelope containing their name, the date the music was written and published. They would also need to send this package to themselves in the post and leave it unopened (as I have used this method in the past when I played music, it is likely that examples involving music will be used a lot!) This way, if there was ever a legal dispute, the musician could demonstrate their free copyright through this method and leave it to the trial judge to open the package for him/herself.

How long will a copyright last?

In September 2011, the EU Parliament implemented the EU Copyright Term Directive 2011 (Directive 2011/77/EU) - this extends the copyrights for music performers and sound recordings to 70 years. Those who compose already had, by this point, owned copyright over their music until 70 years after their death! Sir Paul McCartney and Sir Cliff Richard were among the artists who had campaigned and lobbied at the European Commission for this to be implemented for sound recordings.

Copyright also applied to the internet in the same way that it does with other mediums of media. If a person wants to distribute works on the internet that belongs to another person, that they are granted the copyright owner's consent, unless any of the exceptions below apply:

- It is for non-commercial research and private study;

- Receives criticism or is a report of an event;

- Teaching in educational establishments;

- Helping visually impaired persons;

- Time-shifting (eg. a recording of a broadcast, made on domestic premises for domestic use for it to be viewed/listened to at a more convenient time.

It is not an infringement of copyright to create a work located in and which is available to the public domain. It may appear obvious, but copyright is also not infringed when the material is used within legal proceedings.

Economic Rights & Royalties

Intellectual property rights underpin the economic factor of creating a work, so that money can be made. Royalties are usage-based payments made by one party (usually the licensee) to another (the licensor) for ongoing use of their asset (their intellectual property right, eg. the copyright). These 'permissions'  usually come about through a written contract and the royalties tend to be a particular percentage of gross or net sales derived from the music CD, for example.

A royalty interest is the right of the creator of the work to collect a stream of future payments, as a percentage ownership of future productions/revenues from the license agreement that had been made.

The granting of an 'exclusive right' or 'licence' means that the copyright owner can grant a particular person limited rights to their creation. Let us take J.K. Rowling and her Harry Potter novels for example. This diagram shows how one book can bring in revenue in many different ways through the assignment of rights, becoming assets to the companies involved. Though rights can be assigned to these companies for a temporary amount of time (please see more about licensing and creative commons in my next blog post).

Copyright Infringement

Breaching primary infringements (breaches of reproduction, rental rights, communication rights, etc) are strict liability offences - this means that there is no elements of mens rea to be proved (here comes the Latin phrases...) The mens rea refers to the defendant's state of mind at the time of the act, so in an ordinary offence, intent or recklessness would need to be proven, but here this is different. This means that purely innocent breaches may be actionable - beware of what you 'use' or 'take' from the internet and anywhere else for that matter!

With regard to primary infringements, the court can offer relief in the form of criminal and civil remedies sufficient to deter such issues as film piracy and the copying of MP3 files. Possible defences include permitted acts, fair use/dealing, research and private study. The Chancery Division of the court will usually grant injunctions or use equitable remedies such as 'specific performance'. The High Court may be able to grant a warrant to check the copyright infringer's premises for other pirated goods, if they see it appropriate to do so.

Secondary infringements (such as selling, importing, using equipment to produce infringing items, etc) require the proof of actual or constructive knowledge from the defendant that they knew or ought to have known that they were committing an infringing act (an objective test).

Image courtesy of Giulia Forsythe at Flickr

"The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years." - David Bowie (2002)

I Know Something You Don't Know...

Many people often feel that all information (from private or public sources) should be published and be available for the world to see. Though, as it always is with the law, there is the prominent need to establish a healthy balance between the legitimate need for an organisation to gather information on people and the right of an individual's respect for privacy of their personal details. The problem that a court often sees, is that once sensitive information has been released to the public eye, it can be disseminated at the speed of light, ultimately leaving no way of retrieving it. It may be easy to state that all openness is good and that secrecy is bad, however, who is to claim that secrecy does no good for society? In fact, secrecy in diplomacy is a very effective tool for governments around the world. For instance, the UK uses the Official Secrets Act 1989 to prohibit the leaking of classified information.

Consider this point; if information held by the intelligence, such as, MI5 was to be disclosed publicly, this may be damaging because of the possibility of endangering British citizens (under s.3(2)(a) Official Secrets Act 1989) to terrorist and other international threat. Surely, in these situations, the public would regard secrecy as vital because it would be within the public interest.

Image courtesy of jeffschuler on Flickr

Data Protection Act 1998

The DPA 1998 has established a framework of rights and duties which are designed to safeguard personal data belonging to all of us (unfortunately, if information belongs to the deceased, it cannot be protected). Data protection specifically applies to the handling and processing of information (through a very wide spectrum - from manual through to electronic systems); so if a company processes this data publicly, then it must comply with the provisions of this Act.

So here is a little bit of information on how data is collected.

When an organisation collects or holds personal data, this is classed as processing data. For example, for those of who have signed up to the social media world of Facebook, the site itself would have requested numerous personal details when signing up (as you can see in the image below). 

If a person then proceeded to 'Get Facebook Mobile' (see arrows) then additional information would be processed by Facebook, such as, location and access to mobile phone contacts providing agreement has been made to its terms. It is likely that the DPA 1998 has required data handlers/controllers, such as, Facebook, to register with the Information Commissioner's Office. Many of us tend not to read through these seemingly pointless terms carefully enough, so do we really agree with what we are signing up for? If we do not agree with them, then is there a way to sign up without this information being handled or do we simply give up on this aspect of social media?

Everyone has the right to find out what information data controllers hold regarding themselves and can do so through making a subject access request via writing or email. It may not be commonly known, but students can actually conduct this process with their universities. Once a student requests information, the university would have 40 days to reply to this request and may have to provide documentation such as the following:

- A break down of all academic grades;

- Attendance records;

- Any CCTV footage of the student (and the list goes on...)

What is the nexus between DPA 1998 and FOIA 2000?
Since the FOIA came into force, it became clear that there were grey areas within both statutes. The Information Commissioner now handles both data protection and freedom of information requests. Whilst the DPA 1998 sets out the rules to ensure that personal information is handled appropriately by data controllers, the FOIA 2000 covers the right to know about public authorities and the information that they hold about individuals.

Freedom of Information Act 2000

Do not be deceived by the stated date - the FOIA actually came into force in 2005! The Act requires public bodies to provide information when they are asked for it. As the Preamble says, this is an act to make provisions for the disclosure of information by public authorities or by persons providing information to them.

Any person who makes a request for information from a public authority is entitled:
- To be informed in writing by the public authority whether it holds the information requested, and;
- If so, then the person should have that information communicated to them
- Where the public authority reasonably requires further information in order to identify and provide the person with what they originally requested, then the public authority does not need to do the above (providing it has notified the applicant of this).

Expenses, More Expenses & an 'Unsung Hero'

The steps required in FOIA were put to the test with the enrichment of Members of Parliament in the 'expenses scandal' of 2009.

Image courtesy of http://en.wikipedia.org/wiki/United_Kin

The unsung hero, Heather Brooke (Journalist), played a major role in exposing the scandal that occurred, although she may not have received full credit for her investigative work. She first contacted the House of Commons in 2004, with an interest in the opacity of the UK parliamentary expenses system. When she spent time in the USA, she found that they have a relatively transparent system whereby anyone can access local politicians' receipts very quickly. At the time, she was told by the Commons that the expenses would be published in October of that year and so they were, but in suspicious bulk figures under categories named, travel, staff and second homes. As any journalist would, Brooke wanted to know the details, but the Commons would not allow this.

She filled in her freedom of information requests, knowing that if the Commons did refuse the information then she could appeal internally and then to the so-called 'outside' regulator - namely, the Information Commissioner. I say 'so-called', because the Information Commissioner is appointed by and has his salary paid for by the government. As expected, her requests in 2006 for details were all rejected and the Information Commissioner, Richard Thomas, also refused the publication.

In the High Court, Andrew Walker (the Head of the House of Commons Fees Office) described the expenses system that he oversaw on a daily basis, stating 'Transparency will damage democracy' and 'Public confidence is not the overriding concern per se...'. Tribunal members said the system 'constituted a recipe for confusion, inconsistency and the risk of misuse'.

The Commons presented two key arguments:
- Privacy - it was an invasion of privacy for the public to know what MPs spent public money on during their course of public duties.
- Security - MPs were likely to be 'shot in their beds' if their second home addresses were to be made public (but no evidence was adduced to demonstrate that these threats were imminent and not just a conspiracy theory).

Eventually, the judges ruled in Brooke's favour and the Commons was ordered to produce the expenses in a publication in October 2008, October and December went by but the information still had not been published, more and more taxpayers' money being spent in legal proceedings by this point. By the end of this, the information was published through illegitimate means, despite Brooke's years of hard work.

The Commons committed unforgivable acts repeatedly during this process of gaining transparency and an accountable government. MPs felt morose, though they had many opportunities to do right by those who had elected them as representatives.

Brooke's argues that in order for there to be a clean slate, those who created the mess need to be eradicated.
"Only then can we have a parliament of which we are proud." - Heather Brookes

The Rise and Fall of an Ethical Press

My friend at Blah Blah Media Law and I created this stomach churning, dizzy-making presentation about the Leveson Inquiry - please feel free to read and browse the elements of it at your pleasure!


For years, Rupert Murdoch's empire of tabloid newspapers hacked into private phone messages and voicemails for content to gossip about. Scandals such as the Milly Dowler case raised huge outcry by the public. Murdoch's tabloids erased messages from the kidnapping victim's phone, leading her parents to believe the misconception that she was still alive. The closure of the News of the World should have signalled the end of such invasions of privacy, but the act itself did not deal with the real issues and it is arguable whether the correct perpetrators have now been brought to justice.

http://en.wikipedia.org/wiki/Rupert_Murdoch

Lord Justice Leveson's report has faced masses of criticism claiming that the Inquiry and the Report produced have left members of the press and victims dissatisfied. During the post-Leveson period, many now question how the Leveson Inquiry actually affected the culture, practice and ethics of the press.

The relevance of the Leveson Inquiry in protecting privacy and curtailing arguably excessive behaviour of the press should be questioned; its territory appears to be narrow and outdated. Are the Twitter ramblings of (sometimes) freelance journalists who have affiliation with 'the national press' included in its scope, or was the Inquiry simply analysing the practice of conventional journalists working for well-known newspapers? The press of the 21st century, however, seems to take in the form of social platforms; through realms such as, blogging software and the 'hidden corners' of the internet. It is important to note that the world of media appears to be entering a new age where ethics regarding the public interest are going to change and continue to do so further into the future.

This is not to say that those victims who were affected by the invasions of privacy that occurred, should not receive suitable redress. It appears that many of those who were affected, now feel at a loss to why so much money (£5,442,400) was spent on a way to find a solution, yet they are continuously expected to live contently with the damaging experiences forever. In addition to this, the inquiry did not effectively provide victims, or the rest of the public for that matter, with any information regarding the ways in which phone-hacking may occur and how to take preventative measures against it. I, personally, was not aware of how easy it is to hack a person's voicemail service until very recently. So how can the government and the press expect an average person to assist in preventing such atrocities from happening again?

Prime Minister David Cameron said only a new media regulatory system and a full inquiry into what went wrong with News of the World and beyond would meet public demand. However, we are now 2 years on from the Leveson report and neither has the public increased its trust in the media, nor is the press happy with its self-regulatory system.

Freedom of speech and the right to respect private life still maintain a battle.

"The media is the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that's power." - Malcolm X

Mootings'a Hooting

In this week's media law class, a moot took place concerning the law of breach of confidence (as mentioned in my previous post). What is a moot, you ask? Good question.

Mooting is the exercise of arguing imaginary cases/scenarios (almost like a legal debate) in the form of a mock trial. Just like in a real appeals trial, there it would consist of two sides; the plaintiff and the respondent. Both sides will have a senior and junior counsel, who address particular grounds of arguments.

Image courtesy of http://en.wikipedia.org/wiki/Moot_court

The facts of this scenario were as follows:

The plaintiff (my client), Terry Simms, is an actor of some limited fame. After being ‘killed off’ in a recent episode of West Enders, a popular serial on BBC television, Mr Simms had an idea for a television serial. The storyline revolved around a group of young clothes designers, struggling to hit the big time in the tough world of fashion. Mr Simms spoke to Janet Nye, a well known scriptwriter, hoping to interest her in the idea of turning his storyline into scripts. Nye took the idea to Frank Blyton, a producer of many well known television serials. On return, she told Simms that Blyton rejected the idea, saying that it would not have the mass appeal that is needed for a successful serial. Accepting that Nye’s expertise and Blyton’s verdict  was correct,  Simms thought no more about the script. Some time later, Channel Xstra, a digital channel, started to broadcast a daily ‘soap’ serial, called ‘A lines’ , starring several well known actors of repute. The storyline was almost identical to that discussed by Simms and Nye. The producer was Blyton. Simms sued Channel Xstra, Nye and Blyton for breach of confidence, alleging that Blyton knew that the idea was his (Simms’s) when he was approached by Nye. The court found that Channel Xstra were approached with the idea without knowledge that it was Simm’s and that no breach of confidence had occurred by Channel Xstra. Stepney J also held that it was in the public interest that mere ideas for serials (which had not been written down or developed yet to the full) should be in the public domain and not protected by the laws of confidence.

As senior counsel for the plaintiff, I was able to argue the first ground of our appeal - that Channel Xstra were bound by the laws of confidence regardless of the fact that they were a third party to the knowledge and did not know it had been imparted to Blyton in confidence.

The second ground, which my junior counsel (also known as my 'learned friend') argued was that there would be no public interest defence available to Channel Xstra in this situation.

Considering Channel Xstra were a third party to the information, it proved quite difficult in attempting to argue that they knew about this obligation of confidence prior to creating the show 'A Lines'. Instead, I argued that Channel Xstra ought to have known that in this type of scenario, confidence should have been attained, therefore a reasonable man would have been able to come to the same conclusion.

A further problem presented itself when it was established that none of my client's ideas had been written down, creating a lack of evidence to support our argument. There was nothing, therefore, to show that my client had even created these ideas in the first place. However, it was soon established that ideas do not always need to be written down and can be contained verbally.

Please excuse my bloopers!

The Dream Team

PRIVATE & CONFIDENTIAL... or not.

This area of law is concerned with secrets and an obligation of confidence; they may be commercial, industrial or concern everyday contracts and business negotiations. We often come into contact with people everyday in life whom owe you or owe others a duty of confidence, for example, in employer and employee relationships, doctors and patients, and solicitors with their clients.

Although the law on the breach of confidence is primarily based around case law, s.171 of Copyright, Designs and Patents Act 1988 does recognise this area of law - "Nothing in this part affects... the operation of any rule of equity relating to breaches of trust or confidence".

It is important to note the distinction between areas of law which people often get confused about. The law of confidence concerns the protection of ideas; this can be distinguished from copyright laws, as they protect the expression of the idea. Breach of confidence may also protect a limited right to privacy, however, in respect of photographs and films, if they had been given to another to whom a duty of confidence was attached.

This area of law developed in the middle of the 19th century and then lay dormant until the late 1940's when people realised that this was a useful area. In Morison v Moat (1851) there was a dispute between the son of the inventor of a form of medicine ("Morison's Vegetable Universal Medicine") and the partner's son who had been improperly told the recipe by the original partner. It was held that there was a breach of faith and confidence by the original business partner who had told his son. It was clear, here, that the breach was actionable per se, despite that there was no contractual relationship.

The Modern Law of Breach of Confidence

Three requisite elements for the doctrine of confidence (Megarry J in Coco v AN Clark [1969]):

1. Information must have the necessary quality of confidence - it must not be public property and public knowledge (Lord Greene MR in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963]);

Information must have been imparted in circumstances importing an obligation of confidence;

There must be an unauthorised use of the information to detriment of the party communicating it.

The basic requirement for a confidence is the existence of a duty which may be expressed from the circumstances. The obligation must be expressed within a contract, or imposed/implied outside of a contract.

The Law Commission proposed that this area of law should be codified and in 1981 a draft Bill was produced. The advantage with the law of breach of confidence is that it has a flexible nature and is freed from the straight-jacket of statutory interpretation. No moves have been made since in order to codify the law.

1. Nature of Confidential Quality

The owner of the information must believe that the information would be injurious to him or of advantage to his rivals. He must also believe that the information is confidential or a secret and these two elements need to be reasonable.  Also, the information must be considered and taken into account of the trade practice - would it be common place for that information to be of a secretive nature?

The important point here is that the owner of the information has not put it within the public domain. Although disclosure of this information removes the obligation of confidence, a person under an obligation may still be held to it for a period of time - the 'springboard doctrine'. A person who has obtained information in confidence is not allowed to use it as a springboard for activities that would be detrimental to the person who made the communication to them.

What is confidential?

An objective test should be applied when assessing whether information is confidential or not. It is not enough to simply write "PRIVATE AND CONFIDENTIAL" on it, especially if the contents are commonplace and public. On the other hand, failing to mark a document a 'confidential' does not, per se, deprive it of any confidential matter. It seems that a balance needs to be struck here.

2. Obligation of Confidence

Information can be imparted in circumstances where it is clear that an obligation or a duty would arise, for example, within contractual relationships. However, an obligation can also arise in non-contractual relationships as well. This obligation will extend to third parties, provided that it is obvious that the information is of a confidential nature.

3. Unauthorised Use of the Information

Often information will need to be disclosed to a third party, who is not part of the agreement. The authority to disclose will be implied into the agreement, even if not expressly contained. There is doubt, however, as to whether the disclosure needs to be detrimental to the plaintiff for the claim of breach of confidence to succeed. In most cases, detriment can be assumed or implied, even if not obviously proven. Where information is commercial, disclosure to the competition is bound to have a detrimental effect on the plaintiff's trade.

Defences

Public Interest Defence - the only real defence is that disclosure of the information was within the public interest. This succeeded in the case of Lion Laboratories Ltd v Evans & Ors [1984] where the plaintiff's company made and supplied the police with intoximeters to test the breath of drivers. The defendants were technicians developing the device and were aware of the product's unreliability. Concerned that the police were making use of inaccurate and unreliable appliances, the defendants passed on the information to a newspaper. The defendants argued that it was in the public interest to disclose the possible unreliability of a device used as evidence against an individual charged with a criminal offence. The Court of Appeal said it had to weigh up the public's interest in maintaining secrecy in the plaintiff's documents against the public's interest in accuracy and reliability of an approved device used to determine someone's criminal conviction.

Where the information is about the personal details of a public figure, the court will now consider the interplay between Article 8 (right to respect private and family life) and Article 10 (right to freedom of expression) of the European Convention of Human Rights 1950.

Remedies

Damages for breach of confidence will generally be calculated on the basis of compensating for the conversion of property. Where there is a contract, it has been suggested that damages should be assessed on the basis of contractual principles in the Law of Contract. With regard to non-contractual relationships, Lord Denning suggested that the value of the information should be considered. If there is nothing special about the information, then damages should be on the basis of the cost of hiring the consultant. If it is special, then the damages may reflect the price a willing buyer would pay for the information on an open market.

The court may consider an injunction as a solution, however if the information is already within the public domain, then the court will not seek an injunction because it would be impractical and illogical to anonymise something that is already known to the public. The 'springboard doctrine' has been an exception to this, however.

"In almost every profession - whether it's law or journalism, finance or medicine or academia or running a small business - people rely on confidential communications to do their jobs. We count on the space of trust that confidentiality provides. When someone breaches that trust, we are all worse off for it." - Hillary Clinton

To defame, or not to defame? That is the question.

Some would say that we are increasingly seeing people express themselves on social media websites, such as, Facebook and Twitter. Though how many of those 'opinions' could be classed as harmless and innocent rants under the new laws of defamation? 

The rise in defamation cases linked to the internet has been inevitable with the rise in technology. People are prone to relying on this idea of ‘freedom of speech’ no matter what the speech says and what circumstances surround it. The media itself has been seen and known to thrive on this very type of ‘gossip’ about celebrities, in order to expose the lives of many people if given the opportunity to. How is this rise happening, you ask? Well, with the increase of social media around the world, blogs, tweets and posts have failed to put in place the same kind of pre-publication controls that traditional types of media (for example, newspaper articles) use from time to time. As a result of this, there exists an ongoing battle between individuals trying to protect their privacy and the media trying to post allegedly private material.

So who is the winner in this type of war; the potentially sensationalised media who stand by freedom of speech, or the celebrities who struggle to maintain their privacy despite the public nature of their very lives?

Before discussing this debate too deeply, it would make sense to state what exactly the law condemns when an issue of defamation arises. The first necessary element, is that of publication. The claimant must show that there has been a statement published to someone other than himself. Secondly, the statement must refer to the claimant and this is where the court will decide whether the content defamatory or not. In order for the claim to succeed, the last element must be proven; the publication was made without lawful justification.

Making a Publication:

There are two types of defamation; libel and slander. The former must be of a written nature (which includes broadcasts under the Broadcasting Act 1990) and is 'actionable per se'. This means that the claimant does not need to prove that they have suffered any loss or damage as a result of the publication. Whereas, the latter must be published orally and the claimant must prove actual damage. Section 1 of the new Defamation Act 2013 has provided authority for this in that a statement is not defamatory unless it has caused 'serious harm to the reputation of the claimant'. However, there are exceptions to this rule. For example, if the spoken words accuse the claimant of committing a crime or suggest that they are unfit for their profession, then the damage can be presumed.

As the purpose of defamation is to protect reputation, the publication must be made to a third party. For example, if I were to publish a defamatory statement on this blog about a claimant, the third party would be you - the readers, or the 'right-thinking members of society' (Sim v Stetch). As mentioned above, the statement would also need to make reference to the claimant - even referring to the claimant's public nickname could get you into trouble!

The DA 2013 has provided far greater protection for publishers, using measures which underpin freedom of speech. The single publication rule has now been introduced under s.8 to prevent additional action being brought in relation to publication of the same material by the same publisher after one year (the limitation period). This means that when a statement is passed on, it no longer will be a fresh publication. The modern laws of defamation simultaneously and rather cleverly also safeguard the right to reputation  as the court has the discretion to extend the limitation period whenever it is just and reasonable to do so.

Defamatory Nature:

As mentioned above, there is now the requirement of 'serious harm' by which the claimant must prove a reputational and/or financial loss due to the defamatory statement. It is interesting to see how these types of restrictions will affect claimants seeking retribution, as he/she would not be able to simply bring action against any negative statement made about them. Will this assist in changing society's perception of what is acceptable to speak and publish freely?

What standard of freedom is currently at? How far can a person go to feel justified in expressing what they believe as their opinions in the public eye? In recent news, Brenda Leyland clearly felt very strongly opinionated about the McCanns and the loss of their daughter, Madeleine. Others have had the same view regarding their suspicions of the McCann family and possible criminal offences, however the media appeared to hugely condemn Leyland for it.

Image courtesy of Emily Gosden - The Telegraph

Image courtesy of Emily Gosden - The Telegraph

Defences:

The DA 2013 appears to have added new defences in addition to those which existed in the old legislation. Amongst the defence of 'truth' (s.2), operators of websites (s.5) and qualified/absolute privilege (s.6-7) are the defences of public interest (s.4) and the defence of honest opinion (s.3). From a personal perspective, the defence of public interest (which was established in Reynolds v Times Newspaper) sparks my curiosity the most. The defence applies where the defendant can prove that the statement complained of was a statement on a matter of public interest and that he reasonably believed so. However, the key question is how one would measure what should be within the public interest and what would not. Surely that is down to interpretation of public affairs. The importance here, lies within reaching a consensus of what is vital to the public in a general sense.

"If liberty means anything at all, it means the right to tell people what they do not want to hear" - George Orwell, Animal Farm

Welcome to 'Sex, Lies & Phone Tapping'!

If you are interested in scandal, celebrity gossip and a world where media rules the mind then you have reached the right little corner of the internet.

I suppose here is where I tell you a little bit about myself, right?

I am currently a final year law student from London and this blog will delve into the realms of Media Law. 

How does the law of media effect the way we think and how is it regulated? Do regulations mean that what we see is censored?

After two solid years of putting pen to paper and memorising countless Latin phrases that judges have used, I have finally reached the point of furiously typing away legal rants, opinions and information regarding the media... on a form of media.

So feel free to eat, sleep, law & repeat. Hope you enjoy!

“Journalism is printing what someone else does not want printed: everything else is public relations.” - George Orwell, 1984

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