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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.

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.

Here is a good example of a copyright case, and as it’s very recent (at the time of writing) the precedent set is unlikely to have been superseded.

The web page outlines the case in which a photographer’s work was reproduced by the Mirror Group without permission.

It’s interesting as it involves use of the photographer’s work in back issues made available online, but the really good part is this: When the photographs were originally supplied to the Mirror Group, the internet wasn’t around. If use of the images online wasn’t mentioned in the agreement, but the internet wasn’t a consideration when the agreement was made, then who’s right and who’s wrong?

Click here to find out.

Journalism is the profession of turning information into money. Copyright law protects this by preventing work from being stolen.

A journalist has the right to their work. It is by selling this right that a journalist can earn money. But ‘information’ is not valuable, since there is no copyright in mere information. The journalist must turn this information into news before it is something which can be sold.

For a journalist, selling their work is selling the rights to that work. It is intellectual property, and the law sees no distinction between work done by hand or by brain. Anything you create, you own absolutely- it is a residual right which you can sign away.

There are three ways in which you can normally sell the right to your intellectual work:

1. If on the staff (fully employed with legal employment procection) of a broadcaster or newspaper or website, it is likely that you surrender the right to commercial exploitation of your work. However, since the 1988 Copyright Act you do retain moral rights: You must be identified as the author of the work, and you have a right to protect the work from being altered in any way which would denigrate you if identified as the author of the work.

2. You can negotiate a different contact of employment which gives you some rights to royalties if your work is resold (syndication*), but you’ll usually get paid a smaller wage. Or you can be a freelance journalist. This means you retain the rights to you work and licence its use to publishers or broadcasters. These can be exclusive or non-exclusive rights. After an agreed period of time the copyright returns to you.

3. You can get ripped-off. This would generally be a case of signing over all rights for not much money.

*Syndication is a right which a journalist has unless he chooses to sell it. You will get an additional fee for this, which will allow the buyer of the work the right to sell it on.

There is no copyright in ideas, facts  or information; only work done is protected. The only way a particular work can be protected is if it’s a brand-name.

There is something called passing-off. This is a Bad Thing. Passing-off is presenting someone else’s work as your own. This can be done with brand-names also.

Another area of concern is photography, stills and video, which are easily available from the internet. Thanks to the 1988 Copyright Act, photographers have moral rights over their own work, so using a photograph requires permission or payment.

Fair Dealing is a defence against breach of copyright. You can use this if the work you lifted was already public and if you’ve not tried to make money from it. You must not try to pass-off the work as your own and your defence is stronger if the use of the work is in the public interest.

Our fabulous lecturer, Chris Horrie, tries to copyright himself here

This is all about secrets. As far as the law is concerned, there are two types of secret: Official Secrets and Private Secrets.


OFFICIAL SECRETS/STATE SECRETS
The Official Secrets Act prevents government secrets from being made public. This area mainly affects certain types of investigative journalism and reporting communities with links to the armed forces. One main danger of breaching the OSA is in accidentally filming and MoD area or carelessly disclosing information such as the movements of a military unit.

DA-Notice
In today’s lecture, Chris spoke about the D-Notice (Defence Notice). It’s worth knowing that in 1993 this changed and it is now called a DA Notice. This clearly isn’t common knowledge as the DA-Notice website URL is http://dnotice.org.uk. I thought that the official website would describe it best, so here it is, copied and pasted:

The DA-Notice system is a voluntary code that provides guidance to the British media on the publication or broadcasting of national security information. The objective is to prevent inadvertent public disclosure of information that would compromise UK military and intelligence operations and methods, or put at risk the safety of those involved in such operations, or lead to attacks that would damage the critical national infrastructure and/or endanger lives. The system is overseen by the Defence Press and Broadcasting Advisory Committee, a joint government/media body that approves the standing DA notices and monitors their implementation.

There are five ‘Standing DA-Notices, in which “it is requested that disclosure or publication of highly classified information… of the kind listed below should not be made without first seeking advice”

These are:
DA-Notice 01: Military Operations, Plans and Capabilities
DA-Notice 02: Nuclear and Non-Nuclear Weapons and Equipment
DA-Notice 03: Ciphers & Secure Communications
DA-Notice 04: Sensitive installations & Home Addresses
DA-Notice 05: United Kingdom Security, Intelligence Services and Special Services

In addition to these, individual DA-Notices are issued when sensitive information finds its way to the press.

I had a browse through the website and it’s actually very informative and user-friendly. I definitely recommend looking at it.

PRIVATE SECRETS
Private secrets can be broken down into two sub-categories. They are both covered by the same law, but personal secrets are backed up by the Human Rights Act:

Commercial Secrets/Trade Secrets
This covers disclosure of information such as planned price changes and other business and marketing strategies. If a person is employed by another for wages (or even as a volunteer) they owe the employer a common law (duty of confidence) even if this is not specified in the contract of employment, or if there is no contract at all. Breaching this can cause a person to be sacked with no compensation or reference.

If someone suspects something corrupt happening at work, they can try for protection under the Public Interest Disclosure Act 1998. Lots of information can be had on the Public Concern at Work website as recommended by Chris Horrie, and the document itself can be found here at the Office of Public Sector Information.

Personal Secrets/Family Secrets
Invasion of family life is a danger for journalists, especially now that Section 8 of the Human Rights Act, which gives everyone the right to enjoy a normal private life, bolsters it.

In libel the accusing party does not have to prove they’ve been harmed. But in privacy law, they do have to prove they have suffered.

What is ‘Breach of Confidence’?
A person is in breach of confidence if they pass on information which:

a) has the necessary quality of confidence. Important and not already known.

AND

b) was provided in circumstances imposing an obligation. When a reasonable person would expect it to be kept secret, such as a one-on-one consultation with a boss or with a professional, such as a doctor.

AND

c) there was no permission to pass on the information

AND

d) Detriment is caused to the person who gave the information

All of the above must be present to constitute a breach of confidence.

Protecting Yourself
Always announce that you are a journalist and announce where the information will be published. Keep checking with your source that they are happy for the information to be published or broadcast and be sure that they are aware that confidence is being breached. Be sure to have shorthand notes or a recording of this permission.

In Privacy, public interest is a defence. For example, if the police failed to investigate a fraud or make it public, a journalist could breach confidence as it is in the public interest.

THE PUBLIC INTEREST
The public interest is the opposite of malice. It is a big defence, but as it is not in statute there is no legal definition. The best definition we have is that of the Press Complaints Commision (PCC) which defines it under three points:
1) Material that exposes crime when the police fail
2) Exposing harm to the community generally
3) The Public being misled.

Case Studies
Graham Pink tells his story

Bill Goodwin Information

Princess Caroline of Monaco

“IN THE PUBLIC INTEREST” does not mean “INTERESTING”

Qualified Privilege, the third 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.

The key to libel, and to avoiding legal action, is the ability to differentiate between FACT and COMMENT.  Learning this skill is absolutely vital.

C.P Scott said “Comment is cheap, fact is priceless.” This may apply value to each word, but not meaning, so here is an attempt at simple definition:

COMMENT: Comment is cheap because it can come from anywhere and is not verifiable.  The only information it offers is some insight into what was going on in the mind of the author; it tells us nothing of the world. It is nothing more than opinion.

FACT: Fact, on the other hand, is a statement which is independently verifiable. It is something that can be confirmed by a trusted means and as such can be considered to be a truth.

The ease with which journalist can obtain comment rather than fact is proportional to the ease with which a prospector can obtain pebbles rather than gold. Comment can be entertaining, but is virtually worthless. Facts, like gold in a stream, are difficult to obtain; carrying this out effectively is the role of a journalist.

The difficulty arises when the journalist delivers information as a statement of fact when it is not verifiable, particularly when a statement is defamatory, which is another word which requires explaining:

In common law, everybody has a default right, or tort, to his or her reputation. Note that this refers to the reputation you have, not the one you’d like to have. Defamation is the act damaging of this reputation. It can be defined as something which:

Exposes someone to ridicule or contempt
OR
Causes them to be shunned or avoided
OR
Discredits them in their trade
OR
Generally lowers them in they eyes of right thinking members of society.

So, if someone is defamed they have the right to claim under libel law for the damage done by the people responsible. But who decides whether or not a statement has resulted in any the above criteria? A jury of your peers. And who can put a monetary figure on that damage? A judge. Generally, any settlement should reflect the extent of the damage and any loss of earnings resulting from that damage. Some people will try, often successfully, to convince a court that their reputation is worth a great deal of money. For example, Dr. Joe Rahmin won £1million in damages after allegations on Channel 4 News/ITN that he was no good at his job.

I mentioned libel, something else which needs clear definition. It consists of three things:

Defamation- a reputation has been damaged
Publication- made available to a third party.
Identification – An individual has been identified. Note broad-brush identification, which is defining a small group from which individuals could be singled out and therefore defamed, and jigsaw identification, ie. contributing a piece of information which, while not enough to indentify someone by itself, could be pieced together with information from other sources in order to do so.

It follows that many things said or written by journalists are defamatory, so it is imperative that we understand not only how we can get ourselves into trouble, but also how we can get ourselves out of it. Or better yet avoid it altogether.

There are three big defences against libel. A journalist can say something defamatory provided one of these three things can be applied to it:

JUSTIFICATION- “It’s true and we can prove it.” Be aware that “it’s true,” isn’t enough, you must be able to prove it in court. This brings us back to fact. It must be independently verifiable. If it’s true and you can prove it, you have libel defence. Be careful of disappearing witnesses; your case will fall apart if your “proof” decides not to speak in court. Note also that prostitutes are rarely believed in court, so they should not be considered to be a reliable or trusted source.

COMMENT- Comment is opinion which, as they are worthless as sources of information, cannot be considered defamatory as long as it’s clear that it is comment and not statement of fact. Note also that it must be based on fact and must be in the public interest or it is malice. A way to ensure this is to keep the comment fair and balanced.

QUALIFIED PRIVILEGE- McNae’s 20th Edition says, on p.340, “Qualified privilege is available as a defence where it is considered important that the facts should be freely known in the public interest.” This is rather subjective and so should be backed up with justification if possible. McNae’s notes a case brought against the BBC over a report in which the wife of a health service manager was defamed. The information was found as not being in the public interest and so was not privileged. This would have been libel if the BBC were not able to prove that the defamatory statements were true. The BBC won.

In addition, we have consent and comedy. If you can prove that you have someone’s consent to write something about them, you’re quite safe from a libel charge as a result of making that statement. As for comedy, if something is clearly intended to be a joke it is legally protected from libel. Cartoons, for example, are always comment.

Something for which there is no defence is MALICE. Malice is publishing something which you know to be untrue. This is an unforgiveable offence in journalism. If someone can prove that you published or broadcast something in the knowledge that it is false, you cannot even enter a plea. Note that innuendo is also malice. Note that malice has a slightly different meaning in the realm of qualified privilege (McNae’s p.341); here, the word describes to writings of a journalist who does not have the public interest in mind and/or bears ill will or spite towards the claimant.

So to libel someone accidentally (eg. By not checking facts) would be like accidentally running them over in your car as they crossed the road. Very bad and likely to land you in trouble. But to libel someone deliberately (eg. Lies, malice) would be like driving up on the pavement and putting your foot down.

Thoughts
So journalism is like panning for gold; you have a big dish (the world) full of pebbles (comment) and mud (lies), and the journalist has the task of finding little flakes of gold (facts) and delivering them to a buyer (the public). The buyer likes gold most of all, but will accept the occasional pebble, provided you point at them, one by one, and say, “These here are pebbles”. But if you hand the buyer a bag of mud and pebbles and try to convince him you’re giving him gold, then you’re likely to get a bash on the head. Simple really.

Britain is famed for having the most aggressive libel laws in the universe, and this tends to be seen as the scourge of the journalism sea. But let’s turn this on its head for a moment: We should all treasure our right to the reputation we build for ourselves and the right to claim compensation from anyone who, through malice or negligence, damages that reputation. Perhaps, as journalists, we should view our libel laws as a device which helps us to maintain our integrity and prevents our craft from spoiling its own reputation. Sort of like a gruff but well-meaning old shepherd.

With a giant stick.

With a nail in it.

During Media Law today, we spent some time discussing when a case becomes active. Pinpointing this moment is very important as it affects what can be published (as we know, publishing anything which could be seen to influence the outcome of the trial will get you told off). So I have found a website explaining this very clearly, in my opinion more clearly than McNae’s. There’s quite a lot of good stuff about media law on there actually, so I’d recommend a browse, but the linked page is particularly relevant to today’s lecture.

In the afternoon we enjoyed a seminar led by Cara, who wrote a cracking essay which did a great job of getting a conversation moving about the Renaissance, Reformation and the tipping point between pre-modern and modern philosophy with Descartes’ decision to wipe the slate of philosophy clean by rejecting Aristotle, along with everything else he couldn’t be 100% sure of, before starting again with the one thing he could guarantee: Cogito ergo sum.

It was the first seminar of that kind that we’ve had, and I have to say I found it enormously helpful and would like to thank everyone in Group B for such a great discussion. I think when you’re constantly trying to absorb facts and information during lectures and private study it can become difficult to really digest everything. Group discussion seems to help the mind make sense of everything as you put it into your own words as well as and processing several other people’s ideas and points of view. The only sad thing is, I don’t think that an hour every other week is enough to properly get one’s teeth into the discussion.

Today’s lectures were Media Law and History and Context of Journalism