What is a free press? Crime and the courts. Contempt of court. Reporting the courts. Juveniles and the courts. Crown court trials. Sex offences. Libel risks.
Criminal libel, slander, malicious falsehood. Official Secrets Acts. Defending your rights. Breach of confidence. Copyright. Trademarks. Codes of conduct. Privacy. How to stay out of trouble.
How much do you know about the law? Most people will probably be able to name some of the most common or serious crimes, like theft, burglary, arson or murder. Yet much of what we know about the law will have been picked up not through formal study but by watching detective stories, police dramas or courtroom thrillers on television, where fact and fiction are interwoven.
All published writers need to have a much more detailed and accurate knowledge of the law than ordinary members of the public, because we run the risk of breaking less familiar laws than those which provide the storylines for fictional drama. Slander, libel, contempt of court, breach of copyright do these terms mean anything to you? If not, your work cannot be published safely without an experienced editor studying what you have written to ensure you have not broken the law.
There are two reasons why all journalists need to have a detailed working knowledge of the law. One is so that they know their rights how far they can safely go when writing a story without breaking the law. This means knowing when they are permitted to attend courts and council meetings, understanding what is meant by terms like freedom of expression, recognising when a story is in the public interest and knowing what defences exist in defamation and contempt cases.
The other is so that they can recognise potential legal pitfalls and abide by the legal restrictions imposed on them. Why do you need to have such a detailed knowledge? Because there are numerous examples of cases where both magistrates and judges have made mistakes when reaching decisions about what reporting restrictions to impose. In such circumstances, there is no one else present who can plead the journalist’s case but the individual court reporter on the spot provided that their knowledge of the law is sound.
What are the main restrictions? These are among the most important:
Defamation are you damaging a person’s or a company’s reputation?
Contempt are you posing a substantial risk of serious prejudice to legal proceedings?
Reporting restrictions are you breaking the law by identifying a children and young person, or the victim of a sexual offence?
Copyright are you “stealing” somebody else’s original work?
Press freedom is regarded as being a fundamental feature of a parliamentary democracy and Britain has a long tradition of a ‘free press’ where journalists are encouraged and enabled to keep the public informed, to comment freely and to expose wrongdoing.
Judges and government ministers have repeatedly reiterated their support for this principle, although they have also sought to balance such freedom against the rights of individual citizens the right to a fair trial, the right to privacy and the right to protection against malicious or unfounded attacks on one’s reputation.
Britain has no written constitution and the rights of its citizens are said to be ‘residual’ – people can do anything not specifically forbidden by law. Journalists are largely in the same position as other citizens, although they enjoy certain privileges and facilities extended to them by people or organisations to make it easier for them to do their jobs.
Sir John Donaldson’s judgement in the Spycatcher case in the Court of Appeal in 1988 sums up the situation succinctly, describing the media as ‘the eyes and ears of the general public’. Lord Bingham re-emphasized this in 2000 when he said: “The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring.”
As in other areas of the law, journalistic rights and restrictions have been defined and clarified by custom, precedent, equity and statutes. More recently, these traditional sources of law have been extended to include European Community treaties and legislation incorporated into UK law by the European Communities Act 1972. From October 2000 the Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law and gave British citizens specific legal rights for the first time.
Designed to guarantee basic human rights such as life and liberty, the European Convention on Human Rights includes three articles which are of particular interest to journalists:
Article 6 – the right to a fair trial
Article 8 – the right to respect for private and family life
Article 10 – the right to freedom of expression
It should be immediately obvious that balancing these rights is no easy task. When does one person’s right to freedom of expression infringe another’s right to privacy, for example? In many instances, the conflicting arguments will be complex and such issues will have to be settled in court which is another reason why all journalists are required to have a working knowledge of the law.
In addition to legal restrictions, there are also a number of codes of conduct which encourage or enforce ethical standards in the media. The Press Complaints Commission Code of Practice is a form of voluntary self-regulation endorsed by the print media and gives guidance on a range of issues. Other codes apply to radio and television journalists. The PCC Code tells journalists how they should handle a range of issues but permits exceptions to certain clauses when it is demonstrably in the public interest for journalists to detect or expose crime, protect public health and safety or prevent the public from being misled.
When it comes to covering crime and court cases, journalists need to have a very clear understanding of what they can and cannot report. At first glance, this may not seem an area of knowledge which is as relevant to freelance and features writers who are not covering court stories on a regular basis. But the far-reaching nature of law and order issues in our society means they will form the basis for countless other stories and features, making it important for all writers to understand the legal basics.
When a crime has been committed, newspapers try to tell the fullest possible story of what has happened and in most cases they will be free to report the incident in considerable detail, taking pictures of the scene and speaking to both victims and eyewitnesses.
This is the case as long as the crime is not a rape or indecent assault, because there are restrictions on identifying the victims of sexual offences. It also applies as long as no one has been arrested for the crime and as long as we do not suggest that a particular individual was responsible for it. (As well as any danger of contempt, there would be a serious defamation risk in publishing such a suggestion).
This freedom to report on crime stories applies as long as no arrest has been made. The situation will change as soon as someone is arrested, so the reporter will make regular checks with the police prior to publication to make sure no one has been caught.
The right to a fair trial has always been a guiding principle of the British legal system and since the incorporation of the European Convention on Human Rights into UK law it, too, became a specific legal right, contained in Article 6 a right which is defended by the Contempt of Court Act 1981. A journalist held to be in contempt can be jailed or fined. There is also the possibility of a journalist being prosecuted for common law contempt – i.e. outside the provisions of the Contempt of Court Act.
So how might a journalist be in contempt of court?
by publishing material which might prejudice a fair trial
by publishing anything which interferes with the course of justice
by breaching an order of the court
by bribing witnesses or vilifying jurors
by inappropriate behavior in court
Most problems for journalists arise in relation to the Contempt of Court Act 1981, which defines circumstances in which contempt by publication is an offence of strict liability in other words, regardless of intent.
For contempt to be committed at common law, the prosecution has to prove that the journalist intended to create prejudice although in legal terms “intent” is not the same as motive or desire, and it may be sufficient to show that the journalist could have foreseen that his or her actions would result in prejudice.
By Austin Thomas