Possible/Practice Questions for Media Law exam

Possible Questions:

1. What is the highest court in the UK? 
1. Where does it sit?
2. How many justices?
2. Three functions of Crown Courts? 
3. Three functions of Magistrates courts? 
4. What is the difference between a civil and criminal offence?
5. Is the legal test of proof the same or different?
6. Give 3 sources of law in the UK.
7. What do journalists mean by the public interest?
8. Briefly explain what is meant by ‘prejudice’ and ‘contempt’ in the context of media law.
9. When does a case become legally active?
10. After an arrest is made what sort of facts – in general terms – can be reported? 
11. The accused appears before magistrates – in general terms – what can you report? List them…
12. What is meant by an ‘either-way offence?
13. What is maximum sentence magistrates can impose?
14. What is meant by a conditional discharge?
15. What is the purpose of a ‘Section 49 order’?
16. What is purpose of a Section 39 order?
17. What do we mean by ‘jigsaw identification’?
18. One morning you arrive at court and barristers are making legal arguments about crucial evidence. You notice the jury isn’t there.  Can you report the proceedings?
19. What is required of your court report for it to attract absolute privilege?
20. In this context explain what is meant by ‘fair’.
21. During a murder trial a family member shouts at the defendant from the public gallery. “You lying bastard – you killed our boy!”  Is that safe to report?
22. How would you define libel?
23. How do we know when a statement is defamatory?
24. What particular danger is there of libel for TV journalists?
25. What are the 3 major libel defences?
26. Something re the McAlpine affair…
27. Why is the legal principle of privilege so important to journalists?
28. Give examples of occasions when reports may attract Qualified Privilege with, and without, explanation and contradiction.
29. Why was a public meeting in 2000 about the jailed paratrooper Lee Clegg so significant?
30. What’s the purpose of copyright law?
31. You use a photo off the internet.  Is it free of copyright? 
32. Why is the principle of fair dealing important and what are its limitations?
33. What is the purpose of the law of confidence?
34. What are the danger areas for journalists?
35. What dilemma does a journalist face when newsworthy information comes into his or her possession?
36. What bodies are responsible for regulating the professional conduct of journalists?
37. Which body has most power and why?
38. Define impartiality.
1. Would there be any difference in your approach to this if you were working in newspapers or broadcasting?
39. Why is accuracy and impartiality especially important at election times?
40. What are the danger areas for journalists during campaign reporting?
41. Must all candidates standing in a constituency be covered equally?
42. On polling day when can we start reporting exit polls?
43. On polling day a candidate makes a final plea to voters – can we report this?

Answers available here

Freedom of Information and Data Protection

Data protection and confidentiality laws are designed to safeguard confidential information.
For journalists, there are 3 areas of concern:

• Revealing state secrets or 'official' secrets
• Revealing commercial secrets
• Revealing facts about a person they would have expected to remain private

Official Secrets Act protects state secrets (e.g. military or intelligence matters) and breaches are a criminal offence. However, the act is rarely used as juries can be reluctant to convict 'whistleblowers' or people who can be seen as 'victims' of the state.
Commercial confidentiality is normally protected by the contract of employment; staff won't do things detrimental to their employer's interests e.g. reveal financial information beneficial to competitors. However, this interest must always be balanced against the public interest which may dictate that it should be published.
Personal confidences or privacy are protected under Article 8 of the European Convention on Human Rights.
With newsworthy confidential information, journalists (and lawyers) must decide to either:

• Risk an injunction by seeking a response to the allegation

or

• Publish material and risk legal action for breach of confidence and possibly defamation if there is inaccuracy.

The Freedom of Information Act gives you the legal right of access to any piece of information held by most public authorities, unless there is a valid reason. The act covers around 130,000 bodies and around 100,000 requests are made every year costing in the region of £34 million however, only around 12% of these requests are made by journalists.
"Any person making a request for information to a public body is entitled... to have that information communicated to him."
However, access to information can be refused if:

• Costs come to more than £600 (£450 for smaller authorities)
• It is covered by absolute exemption (e.g. court records, security services) - they have no duty to confirm or deny that any information exists
• It is covered by qualified exemption and the balance of public favour does not favour disclosure (i.e. the public interest in maintaining the exemption outweighs the public interest in disclosing the information)

There are 23 types of qualified exemption including:

• Likely to jeopardise national security
• Likely to prejudice defence or international relations
• Intended for future publication
• Prejudices the economic interests of the UK
• Might prejudice law enforcement
• Communication with the Royal family

FOI requests should be made in writing, including email. The public authority must respond within 20 days which can go up to 40 days if they need to consider public interest.
If they deny access to information:

• Internal review
• Information Commissioner
• Information Tribunal
• High Court

Useful resources:

• FOI masterclass - http://www.youtube.com/watch?v=OPp_HEFJoHE
• List of authorities covered - http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/foi/yourRights/publicauthorities.htm
• Previous requests - https://www.whatdotheyknow.com/

Something is in the public interest if it:

• promotes accountability and transparency
• furthers the understanding of/participation in public debate of issues of the day
• allows individuals and companies to understand decisions made by public authorities affecting their lives
• brings to light information affecting public health and public safety

Reporting Elections

During elections, the requirement for broadcasters to be accurate and impartial is at it's most important as our coverage aids the democratic process and helps to allow voters to make a choice. As broadcasters are obliged to maintain strict impartiality, daily coverage and coverage over time must be assessed and logged to ensure that time given to each party is proportional to each party's performance in the previous election and the polls - major party candidates and minor party or fringe candidates do not have to be treated equally.


Whilst journalists do have some privilege n statements from candidates, it is important to check facts and balance all coverage over the election period. The Representation of the People Act 1983 makes it illegal to spread false statements about candidates, so it is important to check accusations made by candidates before reporting them.


When using information from polls in reports, journalists need to be aware that not all polls are equally reliable. They should ensure that they are aware of and talk about the margins of error and the geographic & demographic balance of the sample taken for the poll. 'Straw polls' by the journalist are a good way of adding colour and getting a sense of opinions in a particular area but are not scientific and must not be construed as such. Ensure you include the context and reliability of polls in your reports.


Danger areas for journalists:

• False statements about candidates
• Maintaining impartiality
• Reporting opinion polls and exit polls

NB: It is an offence to refer to exit polls until close of polling. Also, remember that you should not cover political issues or argument on polling day itself.

UK Legal Framework, Reporting Crime and Privilege

Legal Framework

Magistrates Court
(Deal with both civil and criminal matters)

• Summary cases
• Bail applications
• Committal hearings
• Family Court
• Youth Court
• Licensing appeals
• Maximum sentence of 6 months can be given
• Fines up to £5000

Crown Court
(E.g. Old Bailey, Winchester Crown Court, etc.)

• Indictable offences
• Appeals from magistrates
• Sentencing

Supreme Court - Parliament Square   
 

Standards of Proof

• Criminal case - against the state - "Beyond reasonable doubt"
• Civil case - between individuals/companies - "On the balance of probability"
  

Sources of Law

• Statute law
• Judicial law
• Common law
• EU law
  

Types of Offence

• Summary - Least serious offences (e.g. parking offences, etc.) and are only heard at Magistrates.
• Either Way - e.g. theft, burglary, assault, etc. can be heard at either Magistrates or Crown court, depending on seriousness of allegations.
• Indictable-only - Most serious offences (e.g. rape, murder, robbery, etc.) and are only heard at Crown court. They carry a sentence of 5 or more years.
  

Important People and Organisations

• Crown Prosecution Service (CPS)
• Director of Public Prosecutions - Alison Saunders
• Minister of Justice - Chris Grayling
• Attorney General - Dominic Greeve
  

Reporting Crime
Beware of:
Prejudice - where the publication of certain information will make it difficult for an accused person to be treated fairly at trial i.e the jury already knows background facts about the defendant
Contempt - where information is published in breach of the rules on crime or court reporting.  High risk of prejudicing legal proceedings.


A case becomes legally active when:

• Someone is arrested
• An arrest warrant has been issued
• A person has been charged
• A summons is issued by magistrates

Things to be aware of in court reporting:

• Whilst court proceedings are covered by absolute privilege, things said by those in the public gallery are not
• If the jury is not present, proceedings should not be reported
• Section 49 - grants anonymity to under 18s in Youth Court
• Section 39 - grants anonymity to under 18s in Court

7 reportable points at magistrates hearings:

• Name, age, address and occupation of defendant (needed for positive identification)
• The charges
• If bail is granted
• If legal aid was granted
• Names of Court and Magistrates
• Names of solicitors and barristers present
• Date and place to which case is adjourned

Privilege
Absolute privilege - protection on all matters from court or parliament
Qualified privilege - day to day protection against malice & potentially untrue statements in things such as police statements, press conferences, public meetings, press releases, council meetings, etc.
However, reporting must be fast (in first available edition of publication), accurate and fair (not bias) to maintain privilege.

Libel and Defamation

Defamation + Identification + Publication = Libel


Something is defamatory if it tends to:

• Lower someone in estimation in the minds of right thinking people
• Damages someone's reputation/disparages them in their business/profession/trade/employment
• Causes them to be shunned or avoided
• Exposes them to hatred, contempt or ridicule

Defences:

• Truth/justification (with 'proof')
• Honest opinion/fair comment (based on facts true at the time of publishing)
• Public interest (knowledge of event is sufficiently major benefit to society as a whole)
• Privilege

However, something cannot be defended if it is written with malice.


As Libel is a civil matter, there is a lower standard of proof - "On the balance of probability"
However the new Defamation Act 2013 means that those claiming to have been libelled must prove that the publication has caused them "serious harm."


Picture Libel: where pictures published alongside a statement or allegation appear to suggest that identifiable people in the shot are involved or responsible (e.g. shots of city workers when discussing insider trading, etc.)


Jigsaw identification can also lead to libel e.g. Lord McAlpine vs. BBC - whilst not identified outright, the information given in various publications lead to him being identifiable as an alleged child abuser on Newsnight; this libellous rumour spread on twitter and caused serious harm.

Codes of Practice and Ethics

Journalists are governed by regulatory bodies, as well as by the law, in an effort to "guard the guardians." The codes and guides cover journalistic behaviour in getting a story and denote what is and isn't justified:

• How far can we go to get a story?
• What practices are legitimate?
• When do circumstances make a difference?

The codes help to guide journalists with what is in the public interest and what is legal and ethical. Ethical behaviour is important as it protects the trust between readers/viewers/listeners and not only the journalist but the organisation they work for and the media in general. This is important as without trust, the publication cannot succeed e.g. after the News of the World phone hacking scandal, so much trust was lost in the paper that it was not worth continuing running the paper, hence its closure.


Different Regulatory Bodies


Press Complaints Commission (PCC) - newspapers and magazines - whilst this is still in operation at the moment, the PCC is to be superseded by a new organisation following the phone hacking scandal and Leveson inquiry.
Independent Press Standards Organisation (IPSO) - newspapers and magazines - similar to the PCC, IPSO is a voluntary organisation that is independent of both government and the press and is set to take over from the PCC.
The Royal Charter - newspapers and magazines - statutory regulation of the press; condemned by some as having the potential to impact upon the freedom of the press.
BBC Editorial Guidelines - BBC - self-regulatory body governing the BBC.
Office of Communications (OFCOM) - Broadcasters - Independent licencing body with statutory powers. Does have powers over the BBC but usually complaints are handled internally (see above).
National Union of Journalists (NUJ) Code of Conduct - union


Examples of key areas covered:

• Requirements for Accuracy & Impartiality*
• Ethical Behaviour
• Fair Treatment
• Protection of vulnerable groups

OFCOM Powers


Include:

• Direction not to repeat programme
• Corrections or findings must be broadcast
• Impose fines - up to 5% revenue
• Revoke Broadcast Licence

Impartiality


Whilst impartiality is a requirement for broadcast, it is not a prerequisite within print. Broadcast news needs to be absent of bias and preconception and should consider the various "axes of debate".


Examples of Unethical Behaviour


Sachsgate - BBC Trust suspended Jonathan Ross for 12 weeks and set up a register for "high-risk" programmes.
Ant & Dec phone in - fined £5.6 m for abusing phone-in votes to make money.
McAlpine affair - The BBC apologised and paid McAlpine £185,000 in damages plus costs which he donated to charity.

Copyright and Fair Dealing

Why is Copyright important in Journalism?
Copyright laws protect people's intellectual property. This is important in two different ways in journalism. The first is that it means our work is protected from what essentially amounts to theft. Secondly, it means we have to be careful about how and when we use other people's work within our own.


Fair Dealing
The second point sounds problematic, however 'Fair Dealing' exemptions allow us to use other people's work under certain circumstances:

• To report current events - you can lift important parts/major themes, etc of stories & quotes from rivals but it must be attributed, in the public interest and follow fair dealing rules.
• For the purpose of review
• To parody* a piece of work

To use other people's work under one of the exemptions, you must give attribution (credit) to the copy right holder, use no more than a 30 seconds of clips (as an absolute maximum) from each work and, in certain circumstances, the piece is removed after a certain amount of time (e.g. once it is out of the news). Stills, however, cannot be used under 'Fair Dealing' so to use these you must get permission from the copyright holder or find a photo with a creative commons licence to use instead.

In the features section of WINOL, fair dealing is an important part of our work. In one of our recent articles "Top 5 Greatest Love Songs" by Joe Rutterford we used the 'review' exemption within fair dealing to use clips from songs. This meant we had to be careful with the length of the clips and the way they were used; as we are using it for the purpose of review, we must add relevant description and comment over the top of the clips and ensure that each is no longer than about 25 seconds. Some of the clips run a little longer than this and there are some gaps in the commentary in which the music swells which could be potentially risky. Another issue found was finding images to go in the video. The original images used were not all under a creative commons licence and none were credited properly which meant it was in breech of copyright law. By searching creative commons websites and attributing over the top of the pictures, we removed this issue.

Another example of copyright concerns is "My Valentine's Lipstick" by Maria Almeida. When Maria pitched her idea, she expressed concerns that by doing something similar to someone else's work we were breaking copyright law. However, copyright protects people's work, not their ideas meaning we could do something very similar but not just take their work. We then had to find a song that was either under the creative commons or that we could get written consent to use. Maria contacted a band and was told she could use the song so long as some credit was given, which was done in the opening credits of the video.


Parody Problems
Currently, parody is not an included exemption for copyright, although a Government Consultation
following the Hargreaves Review (2011) has proposed a parody exemption [1] which could take affect as soon as 6th April this year [2][3]. According to the intellectual Property Office, the aim of the new exception is to "give people in the UK's creative industries greater freedom to you others' works for parody purposes"[4] but how the definition of fair dealing will affect peoples ability to use copyrighted materials for parody is still unclear [5].

At the moment, if copyright on a parody is called into question, it is settled in court on a case by case basis.


***


Resources:
[1] http://www.ipo.gov.uk/ipresearch-parody-report2-150313.pdf
http://www.ipo.gov.uk/ipresearch-parody-report3-150313.pdf
[4] http://www.ipo.gov.uk/techreview-parody.pdf
http://www.ipo.gov.uk/ipresearch-parody-report1-150313.pdf
[5] http://www.lawcareers.net/Information/BurningQuestion/Taylor-Wessing-New-parody-exception-is-imitation-the-sincerest-form-of-flattery
[2] http://www.marketinglaw.co.uk/media-and-ip/new-parody-copyright-exception-by-easter-2014?cat_id=4
[3] http://www.out-law.com/en/articles/2013/december/uk-copyright-reforms-to-take-effect-in-april-2014/