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A few people have expressed some confusion about qualified privilege and the Reynolds Defence, so here I’m re-posting my 2009 guide to this subject.

Qualified Privilege, a defence against libel, gives the journalists the right to make defamatory statements under special circumstances. There are two main types of QP:

Statutory Qualified Privilege
There are many places in which a defamatory statement can be said and then reported by a journalist without fear of libel action. The main two are court and in Parliament. But the report must be fast, accurate and fair in order to avoid accusations of malice. You must give the accused an an opportunity to refute the accusation, and this must be included in the same report. If you don’t do this, you can lose you QP defence. Statutory privilege also applies to any public meeting/proceeding in the world, such as UN meetings and other recognised courts. It is worth checking which courts are and are not recognised. French courts, for example, are not recognised.

Common Law Qualified Privilege
To make a defamatory statement is acceptable even if you can’t prove it, provided it is in the public interest. The problem here is that this is a developing law and is looked at on a case by case basis. This means you can’t really be sure whether this applies to your report until a verdict is delivered in court. Again, the allegation must be honestly made and without malice.

The Reynolds Defence
In 1994 The Sunday Times ran an article, without evidence, stating the Albert Reynolds, Taoiseach of Ireland, was aware of systematic child abuse within the Catholic Church, seriously defaming him. He sued and won, but the decisionwas later overturned as it was found that The Sunday Times had QP as it was in the public interest to make the report. Lord Nicholls said: “Any lingering doubts should be resolved in favour of publication.

This is The Reynolds Defence, but you can only use this provided that you pass…

THE TEN POINT TEST
1. It must be a serious matter. The more serious, the more protection you have.

2. The nature of the information, and the extent to which it is a public concern. Is it the kind of thing which would be likely to be said in a public forum?

3. The source of the information. Your source must be reliable, creditable and authoritative. The more authority, the more protection.

4. The steps taken to verify the information. The must show that you tried to prove the information wrong.

5. The status of the information. It must be new information.

6. The urgency of the matter. Papers must compete to break news first. No trawling.

7. Whether comment was sought. The person to whom you are bringing the allegations must be given chance to comment. This is known as the final phone call. The Telegraph lost a case against George Galloway because they did not thoroughly bring the accused person into the story and did not give him a chance to deny the accusations.

8. Did the article contain the right ‘gist’? It is not enough to satisfy the other points if the article was unfairly angled or slanted.

9. The article must have the right tone. It must not be overly sensationalist. Understated is better, and it is safer to say things like “concerns have been raised” rather that issuing statements of fact.

10. The circumstances of the publication. If the article is not published quickly, for example, but saved for commercial gain or timed to make it more sensational, it would be difficult to argue that you had the best interest of the public in mind.

Refer to the lecture notes for more detailed information. Also, i found a page on the website of Schillings, a respected media law firm, advising people how to challenge journalists with the ten point list.  It’s well worth a look to see things from the other side of the desk. This list on this blog is okay for a reminder or prompts, but probably not enough for thorough revision.

Other information…

The Press is The Fourth Estate:

1st: Executive- Government, Whitehall
2nd: Legislature- Parliament
3rd: Judiciary- The Courts. Mediates between Executive and Legislature.
4th: The Press is the watchdog of the people. The Press will blow the whistle if the other estates are wrong or corrupt, and will strive to identify miscarriages of justice.

Affidavit: This word is not officially in use anymore, the document now being called a Witness Statement, but it is the same thing. It is a statement which is sworn in front of a notary solicitor (which costs money) or a Magstrate (which doesn’t). It is essentially proof that someone said something. This is useful for a journalist as a witness statement from a credible source can help enormously with the first libel defence, justification.

If you’re keen to slapped with a crippling fine, gain unemployment of go to prison, bungling a court report is a great way to achieve one or all of the above. English courts have a multitude of rules which can be broken with ease. Outlined below are some of the best methods used by journalists seeking to end their careers.

Contempt

This might be summed up as not doing what the judge tells you to do. But this is really an oversimplification; because it also includes doing things the judge tells you not to do. The judge obviously wants the trial to run smoothly and fairly for everyone, and so anything that could disrupt the process is likely to be contemptuous.  Anyone involved in the trial is subject to this; a spectator could be held in contempt for shouting, using a recording device or winking at someone. Jurors have been held in contempt for texting or speaking to the press about conversations which took place in the jury room, and a defendant who chooses to be somewhere that’s not in court will also probably be found to be in contempt. But while this is not a special rule for journalists; a journalist is ideally placed to mess things up for everyone and get themselves into an enormous amount of trouble.

There are often reporting restrictions on trials. A common one is Section 39 , which prohibits the identification of children. This isn’t always just a case of saying the child’s name though- if you identify an abuser of a child as one of the victim’s relatives, it would be easy for someone to work out who the victim was. Paedophiles may spared further shame because the press can’t say their victim was their son or niece etc. Families of victims are also not interviewed for this reason.

You will also find yourself in hot water if you publish something that could be seen to prejudice a jury, such as a defendant’s criminal history. If their lawyers spot anything like this they will immediately tell the judge that their client has no chance of a fair trial, the case could collapse, and the hapless journalist will be very quickly become poorer.

Here is a link for a list of common and automatic reporting restrictions:

http://www.societyofeditors.co.uk/userfiles/file/Reporting%20Restrictions%20Crown%20Court.pdf

By the way, all this applies long before anyone walks into a courtroom. Don’t forget the case is active as soon as anyone is arrested, or a warrant for arrest is issued.

If you want to get into trouble, a good thing to do is to not know the difference between crimes. These things are quite specific, and often mixed up in everyday conversation. For example, if a couple of people are found guilty of burglary, you might go all tabloid and say “The robbers made off with £10,000 of DOG FOOD and MITTENS”. You might say that. But someone would come along and tell you that they didn’t threaten anyone, so it wasn’t robbery. Then they would take your money away.

Some other  ways to get sacked and ruin lives: You can only film outside the court building, you can’t even film through the doors. Courts often have land outside that you cannot film on either, but you can film this area from outside the boundary.

When filming this area, you can also film people involved in the trial such as lawyers and defendants, but filming some people may break a reporting restriction. Finally, if you’re showing these pictures whilst talking about crimes and criminals anda passer-by just happens to wander into frame when you said “these fraudsters”.-that’s juxtaposition libel.

If you want to get into trouble, a good thing to do is to not know the difference between crimes. These things are quite specific, and often mixed up in everyday conversation. For example, if a couple of people are found guilty of burglary, you might go all tabloid and say “The robbers made off with £10,000 of DOG FOOD and MITTENS”. You might say that. But robbery and burglary are different; robbery involves some sort of threat or violence, so stating that the burglars are robbers is defamatory. Then they would take your money away.

Remember when the press assumed Chris Jeffries killed Jo Yeats a while ago? He was never charged, and yet he was horrifically demonised in the papers and life will never be the same again for him. People are arrested and released without charge all the time. It could easily happen to any of us. I think we can all agree we shouldn’t be attacking people before they even get to court.

But we do. The internet is a funny thing; it grew outside of authoritarian radar, somehow giving users the impression that cyberspace is different to the real world, with different rules. But we need to remember that our online actions still have real-life consequences, especially when we behave badly en masse, as we seem to when there is a high-profile criminal investigation like the current Sian O’Callaghan murder case.

According to reports, a 47-year-old minicab driver named Christopher Halliwell has confessed and even shown police to a body.

Even if someone has killed someone, and even if they confess, they are not legally a murderer until they are convicted in court. If you call someone a murderer on the internet when they’ve not been convicted, that is libel (defamation, identification, publication) and that person could sue you. So why do people feel so comfortable calling for the hanging of “murderers” who have not yet appeared in court? The accused could end up suing everyone on Facebook, Twitter and any other site who branded him a murderer. (Elton John won a libel case against a newspaper for calling him gay before he came out, even though it later turned out to be true). Read the rest of this entry »

A new case marks another step in this debate, as a blogger for the technology website ‘Gizmodo’ has his computers seized by police after acquiring a prototype for Apple’s next iPhone. Does he deserve the protection afforded to journalists?

Gizmodo is a pretty big outfit, owned by media company Gawker, not just a bedroom job.

After publishing his report on the new iPhone online, Jason Chen had his door broken down by police, who then searched his apartment. Chen or Gizmodo may have broken a California law which makes it illegal to obtain stolen goods for personal gain.

But if Chen was considered to be a journalist, rather than a blogger, his door might still be intact, as journalists are protected from such action. This is explained in an excerpt from the full BBC report:

Gawker Media said the issue now throws into question whether or not bloggers are considered journalists under the law.

Advocacy group the Electronic Frontier Foundation (EFF), which is following the case, said it found the latest events worrying…

“You have a reporter who is disseminating newsworthy information to the public that are supposed to be protected from search and seizures. These protections apply to people who collect information in order to report it to the public regardless of what name you slap on them; blogger, journalist or whatever,” Jennifer Ganick, the EFFs civil liberties director told BBC News.

This, combined with claims of apparently improper police procedure, means that action against Gizmodo will probably end at the inconvenience to Mr Chen. But while this case may be a step towards bloggers being recognised as journalists (whether that is a good thing or a bad thing will be the subject of a future post),  there might still bet he question of whether there is a difference between someone who write for an online-only magazine and someone who does simply publish their thoughts from their bedroom. It is an interesting question which will hopefully transcend Californian borders become an international issue.

Gizmodo has chronicled the story so far.

A satirical episode of 'The Simpsons' sees Homer open his own chiropractor clinic using a beaten-up trash can. BCA lawsuit pending (probably).

Simon Singh is a science writer who was sued by the British Chiropractic Association for daring to suggest that cracking backs is not the cure-all that some people would like you to believe.

The claim made against him was one of libel, as his words could cause damage to the business. Simon Singh said it was an opinion piece, or “comment”, as they say in the business, not a statement of fact.  BCA sued him anyway.

The great news is that BCA lost their case today, confirming their status as the biggest fools so far this April (this is comment, BCA) and raising hopes of a libel reform in Britain. Our libel laws are the sledgehammer under which the nuts of  British journalists are regularly cracked; what was designed as a mechanism to keep writers on the righteous path has now become a weapon used by wealthy people and groups to silence their critics.

Why do I say wealthy? I am not a taking a swipe at the rich and successful, I’m saying you usually need to be wealthy to successfully use these tactics. The BCA vs Singh case cost around £200,000, and this is one of the problems. Most journalists don’t have the kind of cash it takes to fight a case like this, let alone make the payment if they lose, so instead they keep their opinions to themselves, even in their opinion columns.

Libel is also used to avoid good old fashioned debate, which is what happened in this case. Practitioners of this pseudo-science (who actually call themselves ‘doctors’ in the US, by the way) are unlikely to be able to prove that it can successfully treat asthma; it would certainly cost them a lot more than £200,000 to cook up a false clinical trial to deliver the results they want (comment). So instead of BCA putting its ill-gotten (comment) money where its mouth is, it decided to put it where its balls aren’t (comment) and screw Simon Singh instead.

Mr Singh, instead of laying face-down on the chiropractors’ table and gritting his teeth, decided to fight back.

He eventually won, but the sad part is the fact that he had to fight at all. Over half of the regular readers of this blog are non-journalists. But both of those people still read newspapers, and so we all have something to gain from a libel reform that will ease the stifling restrictions on papers and news programmes. The USA is even forming its own laws to prevent its writers from being bullied by the British courts. It’s pathetic that an entire country has to work on counter-libel alongside counter-terrorism, but that’s a simply the icing on a poo-cake of a system which currently fills the mouth of free speech. Let’s hope that Mr Singh’s victory is a step towards providing us with a mouthwash.

Michael Parkinson has won a £25,000 libel payout (which will go to charity) following his legal action against the Daily Mail.

Long story short, the Daily Mail has had to admit that allegations it made against Parky were untrue. The paper claimed that, in his aut

obiography, Parkinson had lied about his family life and that he treated his elderly uncle badly.

In a statement, Mr Parkinson said: “As a journalist myself, I have been reluctant to take legal action against any newspaper. Where defamatory allegations have been published about me, I have always until now turned a blind eye. However, I decided that the Daily Mail had crossed a line by a long way, especially as they knew my views on my father and my family, having serialised my autobiography in September 2008, a serialisation which commenced with a detailed description of my love for my father and the inspiration he gave me. The Daily Mail has now accepted that none of the allegations complained of are true, as recorded in the statement in open court.”

While this restores the reputation of Michael Parkinson, it is a blow for the reputation of journalism. This is one brush with which I’d rather not be tarred.

For a university exercise, I was asked to observe a local council meeting and write a short report. I attended a cabinet meeting of Test Valley council.

As I was warned, council meetings can be a test of willpower for a reporter who, for every minute of print-worthy information, will most likely have to endure twenty minutes of rather mind-numbing regurgitation of figures. I suspect that gleaning nuggets of information from that particular news mine is a skill which comes with practice. A reporter with more experience may well have found noteworthy items in addition to my efforts, which included the following:

Council tax to increase by 2.5%.
Test Valley Council to join the Hampshire Home Choice scheme.
Poor sewage treatment works are holding up further town development.
A car park will be resurfaced.

Riveting stuff, I’m sure readers will agree. But just as the discussion appeared to be heading in a direction of real (local) interest, the press were asked to leave. No explanation was given.

When I mentioned this to my tutor, he explained that the ability to exclude the public from council meetings is one which should only be used in exceptional circumstances, though this is commonly abused so that counsellors can discuss things that they don’t wish to be public knowledge, but should be. Counsellors wages was one example offered.

I’ll be sure to check on the rights of the public in situations like these so that I may confidently offer a challenge next time I am asked to vacate my chair.

Codes of Conduct are not law, but set agreements.

These agreements are as important as the law for journalists, as they are designed to preserve the reputation of journalism and journalists. Breaking the law could land you in court, but breaking the Codes of Conduct could bring the entire profession into disrepute.

There are several codes, but the two codes most often referred to are those of the National Union of Journalists and the Press Complaints Commission. The NUJ Code of Conduct is aimed mainly at journalists, and the PCC Code of Practice is predominantly of editors, but it’s important to know them both. Read the rest of this entry »

The Freedom of Information Act makes it mandatory for a public authority to disclose whether or not it has the information requested of it. The same is also required of privatised bodies (such as utilities companies), police and fire authorities and quangos.


Exciting piece of information: Quango is an acronym for “QUasi-Autonomous Non-Governmental Organisation.”


There are some exemptions, such as security and intelligence services, Special Air Service, Special Boat Service, and GCHQ (never ask for information from someone who loves in a doughnut). Chris also mentioned NCIS (National Crime intelligence Service). It’s worth mentioning that this organisation ceased to exist in 2006, when it was merged into SOCA (Serious Organised Crime Agency), amusingly on April Fools’ Day.


Information must be released unless it is judged that the public interest is not served, or if the public interest in NOT releasing the information is greater than in releasing it. See PCC Code of Conduct if you’re not sure what public interest means.


The body from which the request is made must respond within 20 days:
“Do you have this information?” – 20 days
“Can I have it?” – another 20 days


What is “information”?
The act specifies that only information that is recorded or written down can be requested. “Sofa conversations” don’t count. None of the information about the initiating of the war in Iraq was written down, so it remains largely secret.  Nice to know that the decision to go to war was made on a Chesterfield over a cup of tea and some French fancies.


Section 16 of the act says they must assist you and must not mislead you, but they can charge you a “reasonable” price and can also refuse information on the basis of “prohibitive expense”.

Investigative journalism is my biggest interest, and so I really enjoyed the lecture on Tuesday. I’ve always felt that investigative journalism, as well is being exciting, is an opportunity for a someone to change things or expose corruption.

The story of Veronica Guerin is frightening but inspiring. I can only imagine someone would put themselves in such danger if it was for something which they believed was more important than their own life. There aren’t many jobs which give you the opportunity to play a part in something with that much weight.

I can’t help wondering, what would I have done? I understand that death threats may be something a journalist has to get used to, but if the death threat came after being shot in the kneecaps, I’d probably think twice about going on to identify everyone involved. That took guts and I definitely think it’s right that we have Veronica Guerin’s picture up in the newsroom; it tells a heroic story and serves as both motivation to bring truth to the public and as a reminder that investigative journalism isn’t a game.

Here are my lecture notes:
Investigative journalists:
Expose danger to the community
Expose miscarriages of justice
Expose corruption
Expose political manipulation

One of the things that makes investigative journalism special is the fact that it

This news could include subject matter on a lightweight agenda, such as TV or entertainment. A lot of the more serious investigative journalism these days is financial. Examples include the exposure of ENRON (a ‘good’ company exposed as being corrupt by the Wall Street Journal), fraud and money laundering in Italy and Saudi links to terrorism. As Saudi Arabia is an influential ally of the West, it is difficult to persuade anyone to run a story on them.

One of the biggest coups of investigative journalism was Watergate. The Washington Post was able to show that President Nixon hired criminals to bug offices and steal information which could be used to discredit or blackmail political rivals. Here is The Washington Post’s very own account of the scandal.

Another notable moment came when The Mail accused five men of killing Stephen Lawrence after they had been acquitted in court. This was libel (defamation, identification, publication). But in order to sue The Mail for libel, the men would have had to go back to court. The key thing is this: in a criminal case you have to be proven guilty beyond all reasonable doubt. But in libel (a civil case) you can lose on the balance of probability. This would have been too big a risk and so The Mail was safe.

Here, Chris mentioned the law of Double Jeopardy. It simply means that a person can’t be charhed or tried more than once for the same crime.

We went on to look at the exciting world of subterfuge. This is going undercover and departing from the rule that you should introduce yourself as a journalist. Usually you can’t print material gained by means of subterfuge, but if it is the only way to gain that information, and if that information is in the public interest, this rule is relaxed. Good examples of subterfuge are The Fake Sheikh and Searchlight Magazine.

Note that getting information in this way without the aim of gaining specific information (in other words, just trying your luck) is called trawling. For broadcasting, permission is required from Ofcom and so trawling is not allowed. But in print journalism, permission is only required from your editor and so trawling is acceptable.

On the subject of recording, here are a few points of interest:

A recording which was made when the subject was aware that they were being recorded is as good as a witness statement/affidavit.

It is illegal to use a recording device which is attached to a phone without the other party’s knowledge,  but a separate device, such as an ear mic is legal as it doesn’t count as bugging.

Where possible, use analogue recording devices. Digital recordings are easily manipulable and so are less reliable and unlikely to be accepted as evidence in court.

According to Les Hacks (http://www.hackles.co.uk/archives/000163.html):

As that develops, freelance hacks’ thoughts turn to the old question – can we record telephone conversations with interviewees, without letting them know we are doing it?
The short answer is – yes, it’s okay. Though a lot of people don’t know that.

Many journalists assert confidently that you must always get the interviewee’s permission first. Wrong. They are generally quoting from an earlier law, no longer operative. Or thinking about the US, where in some states secret taping is a felony.
The key bit of law now is the Regulation of Investigatory Powers Act (RIPA). It says that it could be an offence to attach a recorder to the line to intercept a phone conversation. But only if you make some of the contents available to a third party. If it is for your own use, as a back-up to your notes, you don’t have to inform the other person.
In any case, the offence is not criminal but a civil one. The aggrieved party would have to take a civil action against you.
And it is worth noting that the RIPA law covers only recordings made by a physical attachment to the telecommunication system. If you use a speakerphone and a ordinary mike, or an in-ear mike to make the recording, there is no offence.
Two further points:
* This is about recording calls that you are involved in. Recording calls between two other parties is definitely dodgy. That’s spying or surveillance or something, not everyday journalism.
* Interception of a phone line for a recording is not prohibited if you have reasonable grounds for assuming the other party is outside the UK

More information:


Three targets of investigative journalism are:
Petro-Chemical Industry
Arms Industry
Pharmaceutical Industry


Mr Horrie advised to be suspicious of anyone who has their head office in Switzerland as they’re most likely there for the banking secrecy. It’s also worth noting that the more press officers a company employs, the more they have to hide.

More information on the legal side of covert recording (RIPA) can be found here.

A very good organisation and possible starting point for investigatory work is Transparency International


Finally, all the James Bond style gadgets you could ever want for this kind of thing can be found here. The legality of using of most of it is questionable (it’s what you do with it that counts) and the products are beyond the means of most students, but it’s worth looking at if only to see what kind of dirty tricks are available to anyone with a credit card.