Media law: home and abroad

Oct 17, 2018

Written By Emma Finamore

What is the future of media regulation in the UK, and how does it compare to other counties? We look at the differences and similarities.

In a world where our private lives can be bought and paid for by the data industry and the media is attacked as “fake news”, it can seem the public values journalism and journalists less and less. But they are a vital part of any democracy: the so-called Fourth Estate holds authorities to account and speaks truth to power. The laws around it are complex, and just as vital as the media itself.

The then-culture secretary Matt Hancock confirmed earlier this year that the government was dropping plans for the second phase of the Leveson inquiry into press standards, which was launched in the wake of the phone-hacking scandal. However, for the last few years the inquiry has been central to UK media and the law that governs it. The first part of Leveson—which examined press standards after the phone-hacking scandal and the closure of the News of the World—was opened by David Cameron in 2011 and closed in 2012.

The second phase would have had the potential to bring into force Section 40 of the Crime and Courts Act 2013, which would have made news publishers who weren’t subject to a government- approved regulator liable for the costs of defamation, privacy and harassment claims, regardless of whether they won or lost. Now that the second Leveson stage has been cancelled, the Act will now be repealed.

During the first stage, after hearing from numerous high- profile witnesses, Lord Leveson recommended newspapers should continue to be self-regulated—as they had been by the Press Complaints Commission—but that there should be a new press-standards body created by the industry, backed by legislation and with a new code of conduct.

However, David Cameron was uncomfortable with the idea of state interference in the press and rejected the idea of legislation to underpin the new system of regulation. The compromise was something called the Royal Charter, something that newspapers could sign up to voluntarily. The Charter was approved by the Queen in October 2013, but most publishers have chosen not to sign up to the voluntary system, sticking instead with their own regulator Ipso: the Independent Press Standards Organisation.

Victims of press intrusion have accused the government of breaking its promise over regulation, and it would seem they have a point. However, it could be argued that the printed press just needs to be held accountable to existing laws, rather than passing new ones. Defamation, for example, is governed by common law and statute law, the most recent statute being the Defamation Act 2013.

According to UK law, defamation occurs when there is publication to a third party of words or matters containing an “untrue imputation” against the reputation of individuals, companies or firms that serve to “undermine such reputation in the eyes of right-thinking members of society generally”, by exposing the victim to hatred, contempt or ridicule.

The tort of defamation acts to redress unjustified injury to the claimant's reputation and can be divided into two areas: slander and libel. Slander is the publication of defamatory words or actions in a temporary form, for example by spoken word (applying to broadcast media), while libel is the publication of defamatory materials in permanent form, such as the written word (applying to print media).

Libel must be made against an identifiable individual or individuals, and must be in relation to a statement that would cause someone to think less of the individual/individuals to whom it refers.

Defamation trials are heard without a jury unless the court orders otherwise. The judge will determine whether the words, given their ordinary and natural meaning, would damage the claimant's reputation.

The most recent Act (2013) creates the new requirement of “serious harm”: that a statement must have caused or would be likely to cause serious harm to the claimant's reputation. If serious harm to the reputation of the client cannot be established, then that statement isn’t deemed to be defamatory.

Not everyone is able to make a charge of defamation. Those who can are: an individual or class of individuals; any legal entity; trade unions; patients; and minors. Governing bodies, political bodies and unincorporated associations are ineligible.

Claimants have one year to bring an action for defamation against the alleged defendant from the date the defamatory material is published. The court has the discretion to hear a claim if this period has lapsed, but only in limited circumstances where it’s deemed equitable to do so. The individual who is the subject of the defamatory material should therefore seek to bring an action as soon as practicable.

A key point in UK libel law sets the media apart from its peers in the US: when someone sues, they don't have to prove the story is wrong. The publisher—for example, a newspaper or website—has to prove their story is right. This means, before publishing, the media outlet must have a water-tight case. To accuse someone of sexual misconduct, for example, they would normally need proof (such as a recording) or a witness prepared to testify in court. You don't even need to name someone to be sued in the UK. In 2012, for example, BBC’s Newsnight wrongly linked Lord McAlpine to child sex abuse without naming him explicitly. He sued and within 13 days had won £185,000 in damages.

In the US, it's far harder to sue for libel. The first amendment to the US Constitution, adopted in 1791, protects freedom of speech and freedom of the press. It means American media law is “radically different” to the UK, Stuart Karle, a professor at Columbia Journalism School in New York and former general counsel for the Wall Street Journal, told the BBC last year.

“In the US, the burden is on the plaintiff—the person alleging that he or she has been defamed—to prove the statement is false,” he said. So, compared to the UK, the burden of proof here is flipped. American individuals are less likely to sue (as they have to prove they have been defamed) so the US media is more likely to break controversial stories than their UK counterparts.

Laws around contempt of court are different in the UK and the US too, resulting in more differences in the behaviour of the nations’ media outlets. In the UK, once criminal proceedings are ‘active’, any reporting that creates a substantial risk that the course of justice will be seriously prejudiced or impeded will be in contempt of court. For example, if a reporter writes a story implying someone’s guilt, and a person reading it then goes on to sit on the jury, their view may be prejudiced by the news story they read.

In most criminal cases, proceedings become ‘active’ on the arrest of a suspect or when an arrest warrant is issued. They could also be seen as active on the issue of a summons (in Scotland, a complaint) or indictment, and can be well before a person is actually charged with a crime.

In the US, it’s a very different picture: reporting is permitted even after a defendant has been charged. Coverage of the sexual-assault charge against the French politician Dominique Strauss-Kahn—when a woman accused him of sexual assault and attempted rape at a New York Hotel in 2011—was allowed to appear in the US media in graphic detail in advance of the trial. That freedom of speech, which even allows lawyers to speak freely outside the courtroom about evidence before it’s presented in court, has been criticised for stimulating trial by media.

The French print media is another interesting comparison when discussing UK media law. In France, news outlets and their journalists are regulated by an 1881 law. Amended over the years, it prohibits any one media group from controlling more than 30% of the daily press. It also prohibits—during the preliminary stage of a judicial investigation—the publication of images relating to a crime or offence and information about the identity of the victim of a sexual offence.

The law also prohibits photographing, filming and recording court proceedings. Privacy laws in France are strong compared to those in the UK—significantly so when compared to the US—but they do limit journalists’ ability to report on investigations into public figures’ lives and actions, which for many is a key part of the fourth estate’s role in a democracy.

In a changing media landscape, where platforms such as Facebook and Twitter are just as central as traditional newspapers, we need laws to protect citizens’ privacy. But care must also be taken to protect journalists’ ability to investigate. When the ability to speak truth to power is stifled, so is democracy.

Defamation in the UK: defences

Truth

Truth provides a full defence to an action of defamation. It requires the defendant to show that that the imputation conveyed by the statement complained of is substantially true. Therefore, the onus is on the defendant.

Honest opinion

This new defence will replace the common-law defence of fair comment. A defendant will have to meet the following three conditions to establish the defence of honest opinion:

1. The statement complained of must be an expression of opinion.

2.The statement complained of must indicate the basis of the opinion.

3.The opinion must be one that an honest person could have held on the basis of a fact that existed at the time the statement was published or a privileged statement published before the statement complained of.

Privilege

Privilege acts to balance the human rights of those who are the subject of the defamatory material and freedom of information, and in certain circumstances can be raised as a defence to defamation. There are two standards of privilege: absolute and qualified.

Publication of matter for public interest

This defence applies to those who are publishing material that they reasonably believe is in the public interest.

Innocent dissemination

An individual can plead innocent dissemination if they can demonstrate that they are not the author, editor or publisher of the statement in question; they took reasonable care in relation to its publication; and they did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement.

Consent

Consent excludes the individual subject to the alleged defamatory statement from bringing an action. Likewise, if the individual accepts an apology, he cannot then bring an action for defamation.

Operator of a website

It is a defence to a claim of defamation if the operator of a website can prove that they did not post the content themselves. However, this is subject to exceptions and may be defeated if it isn’t possible for the claimant to identify the person who posted the statement; the claimant gave the operator a notice of complaint; or they failed to respond to the notice of complaint in accordance with any provision contained in regulations.

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