Media Law Exam Review Session 2

Note: I wasn’t able to attend the second revision section, but listened through the audio recording on Moodle.

Media law Examination 2011

N.B. Answers are in bold for multiple choice.

1. Answer a, b, c or d. 1 mark per question.

i. A trial of an indictable offence is heard in which court? a. The High Court b. The Divisional Court c. The Crown Court d. The Magistrates Court

ii. Who is the least senior of these judges? a. District judge (In a Magistrate’s Court) b. High Court Judge c. Circuit Judge d. Crown Court judge

iii. Where in a criminal trial following a guilty plea, there is a dispute on the facts between prosecution and defence and it affects sentence, this is called: a. An indictable hearing (A hearing in which an individual is indicted.) b. A Newton hearing (Where facts are determined.) c. A plea in mitigation (Essentially sentence bargaining.) d. A summary trial (Trial within the Magistrate’s Court.)

iv. The standard of proof in a civil law case is: a. Beyond all reasonable doubt (Criminal standard.) b. A standard of certainty (Also a criminal standard.) c. The balance of probabilities (Otherwise known as “more likely than not”.) d. Beyond all probability

v. The word “counsel” refers to: a. The lawyer b. The Court Clerk (Advises the magistrates on the law; is a lawyer.) c. The judge d. The defendant

vi. Which of the following is not a Source of law:
a. A statutory instrument b. A Directive (I.e., something from the EU.) c. Judicial precedent d. A Bill of Parliament (A bill is before the legislation’s passed; after passed, becomes a statute. A bill is a draft that has no legal effect.)

vii. The European Court of Justice is situated in a. Luxembourg b. Strasbourg (European Court of Human Rights.) c. The Hague (International Criminal Court.) d. Brussels (EU Parliament.)

viii. Whose interest does CAFCASS look after in court cases? a. Victims of crime b. Children c. Vulnerable adults d. Witnesses

ix. Who is the deputy to the Attorney General? : a. The Deputy Attorney General b. The Lord Chancellor (Head of the Ministry of Justice.) c. The Solicitor General d. The Director of Public Prosecutions (Head of Crown Prosecution Service.)

x. What is the purpose of a “without prejudice” letter? a. To set out your case b. To ask the other side for more details of their case c. To confirm that the case will be contested d. To try to negotiate a settlement (You’re setting out why the case should be resolved now instead of in court.)

2. Whilst working as a reporter on a car magazine you are informed there are safety concerns about a new car the Laser, made by a leading car manufacturer. You speak to a man who claims a serious accident he was involved in was caused by a fault with the steering wheel on the car and he is aware of others who have also been involved in similar accidents. He shows you a letter of complaint sent by his solicitor to the car manufacturer and he says he has also informed his MP.

The MP also raises these safety concerns in a telephone interview he gives you.

You contact the car manufacturer who make no comment.

a. What steps would you take before publication, could the car manufacturer stop publication, who could sue and what would be the position on damages? 5 marks

Steps before publication? What real evidence do you have? There’s not much at the moment. More sources needed — couldn’t go to publication based on one person. Also find an expert opinion. Speak to source’s solicitor to get more backing; ask whether there’s any documented evidence to back it up. In terms of report itself: written in a balanced tone, facts have been presented, it’s not inflammatory or over the top. Are you saying these allegations are true, or simply saying they’re allegations that need to be investigated further.

Could the manufacturer stop publication? Not likely, it’s a libel case and not a confidentiality case. Under libel law, this not likely — rule against prior restraint (Bonnard v. Perryman 1891) Challenged by Green v. Associated Newspapers 2004, judges ruled that Bonnard v. Perryman was good law, not altered by Human Rights Act).)

Who could sue? Car company be entitled to general damages for loss of reputation. If they can prove actual loss of sales or revenue, might be able to claim under special damages. Directors and chief executives could sue if reasonably identifiable, though less likely.

b. Following publication of a report on the issues, the magazine receives a letter of complaint from the solicitors for the car manufacturer. What are the two main defences you might rely on, explain your answer and what issues arise. 5 marks

Defences? Justification and common law qualified privilege. Justification = allegations are true, would have to prove on balance of probabilities and have evidence to support report. Common law qualified privilege = Reynolds; reporting on matters of real public interest, if proper journalistic procedures followed (Factors set out by Lord Nicols in Reynolds v. Times Newspaper 1998). Would need to be balanced, have right to reply. Grobolaw v. Times Newspapers; Galloway v. Telegraph, Jameel v. Wall Street Journal.)

a. Explain how the law of libel and contempt applies to publications on the internet. 5 marks

Publication on the Internet the same as any other platform. Libel, contempt equally apply. Libel: If referring to ISP, may have special defence of innocent dissemination from Defamation Act 1996) Limitation period: 1 year from time of being taken down (offline: 1 year from publication). Circulation: if a small number of people, courts may dismiss the case. Geography: could be sued anywhere in the world.) Contempt: Normal principles apply. Anything reported once proceedings have started that could prejudice can be contempt. Giving the jury more information, showing the subject’s face where ident is an issue, etc. etc. — the same as offline. That said, courts also allow tweeting from the court room, don’t need OK from judge if reporter. Normal rules of contempt apply.

b. Answer a, b, c, or d. 1 mark per question, 5 marks total.

i. Who out of the following can sue for libel? a. The relatives of a dead person whose obituary is inaccurate (Dead and estates cannot sue for libel. Can bring to regulators, but not sue for libel.)) b. A political party accused of wrongdoing on an internet site (Political parties cannot sue Derbyshire County Council v Times Newspapers 1993; Goldsmith v.) Bhoyrul 1998) c. A councillor accused in a newspaper of misleading the Council on a matter of public interest (Although an politician, he’s an individual and can bring case.)) d. A government agency accused in a live television programme of corruption (Highly unlikely.))

ii. Which of these is not a relevant issue in the defence of innocent dissemination in libel law? a. Who was in control of publication b. Whether care was taken c. Who made the statement d. Whether the statement is true

iii. Where an honest mistake leads to a libellous statement being published by a newspaper, the appropriate defence is likely to be? a. An offer of amends (Can’t have offer of amends and use justification defence at the same time. Will lower damages to reflect offer made.)) b. An offer of mitigation c. An offer of damages d. An offer of removal

iv. Which of these factors is not relevant to a defence of fair comment? a. What was believed at the time of publication by the publisher b. Whether the jury agree with the opinion c. Whether the facts in the report are true d. Whether the report was on a matter of public interest

v. In libel law, a defendant has to prove: a. The publication is not defamatory b. The publication does not reasonably refer to the claimant c. The truth of the publication (Burden of proof lies with defendent.)) d. All of the above

4. You are reporting on a local newspaper and receive a telephone call that a local woman has gone missing and there are fears she has been murdered. You approach the police who say that a man has been arrested but as yet there is no charge:

What issues arise in reporting the following in an article in the newspaper?

a. Naming the man arrested, publishing a photograph showing the man and the woman on holiday together with their children and publishing a picture of the street where they live. 5 marks.

Man has been arrested, so proceedings have started and Contempt of Court Act applies. If naming man, would have to ensure guilt not implied or publishing information that would cause serious prejudice to trial. Strict liability offence, would have to be carried by Attorney General. Could also fall into libel territory — if the wrong man or implied he’s guilty, he could sue for libel. Lewis v Daily Telegraph (1964) — can’t suggest guilty, but can report has been arrested. Needs to be carefully worded.)

b. Publishing allegations from a family friend that the husband has had an affair in the past and is said to have a jealous nature, paying a neighbour who was the last person to see the missing woman and getting the brother of the arrested man to provide photographs. 5 marks.

At the moment is a suspect; under Contempt of Court law, publishing an image of someone still a suspect is an offence because he/she might still be subject to an identification parade. With vacation photo — privacy issues, inappropriate to show photo of children of someone who has been arrested (children pixelated or blurred to protect privacy). Copyright clearance of photograph.) Picture of street? Potential class actions — if very general without identifying particular houses or individuals, less of an issue. If focusing on 2-3 houses, possibility that those living in those houses can bring a libel action due to being accused of being a suspect. Allegations from family friend? Provides motive for crime; might not be in contempt, yet after the Jeffries case (And AG going after contempt cases more actively), would be better to avoid. Fade factor may apply — long way off from trial.) Paying neighbour? Serious breach of PCC and Ofcom codes; would have to tell prosecution. Danger of criminal charge of perverting the course of justice. Even without pay, could be interpretted as another version of events — danger of being dragged into the case yourself. Very unwise to speak to witnesses as to fact before the case is over. Expert witnesses another story. Brother providing photos? Would need to ask whether he’ll be a witness, and to avoid if so. If not a witness, might be able to speak to. Would have to ask who owns copyright and whether he has right to sell them. Is identity an issue relating to the suspect? What about privacy issues relating to others in the photos?

5. A 17 year old schoolgirl is charged with the murder of an elderly man aged 68) It is said the man was trying to stop a fight outside a school and was pushed and he fell and hit his hit and subsequently died.

a. What court will the case commence in and in what court will the trial be heard in? Will reporters be allowed into report the proceedings?

Person is 17, so will commence in youth court. Will be transferred to Crown Court. Reporters will be allowed to report, both in Youth and Crown courts. No public in Youth Court. In Youth Court — §49 of Children and Young Persons Act applies (not identifiable). In Crown Court — §39 order, which is discretionary and granted in most cases. Might be lifted if defendant is found guilty of murder.)

b. What restrictions or court orders are likely to apply?

Youth Court: §49) Crown Court: §39) If turns 18, veil of anonymity lifted.

c. Explain the issue of “jigsaw identification” and how this could be relevant in this case.

Jigsaw ident: giving enough information to identify person even though not named. Details where the individual lived, which school, number of siblings, back of head shot, etc. could breach this. Shouldn’t identify individual due to §49/§39 orders. Less relevant here; more relevant to sexual offence cases.

d. The victim’s son want to speak to you about his father to talk about the father’s life as a soldier and to highlight how easily a push and a blow to the head can lead to death. What contempt issues arise?

Duty not to cause serious prejudice; if reporting life and times of victim, would have to give account of life and not exaggerating the facts or providing detail of the crime. Would not refer to proceedings against defendent, by referring to what she did. More scope if early in proceedings due to fade factor. Blow to head — §5 of Contempt of Court Act, allows reporting of public affairs where the risk of prejudice is incidental. If talking the danger of head injuries, more general public affairs and less risk. Would need to factor how late into proceedings it is. AG v English; AG v Mirror Group Newspapers (Leeds Footballers case). (First a §2 defence, would have to show that it wouldn’t seriously impede or cause contempt. However, could then use §5 saying that report is in public interest and the risk of prejudice is incidental.))

2)5 marks each

6. Answer a, b, c or d . 1 mark each

i. What court order would be most appropriate to protect the identity of the victim of blackmail? a. s46 order (Primarily to do with vulnerable witnesses) b. s39 order (Children or young persons) c. s11 order (Prevents publication of matters from disclosure in the court where necessary — doesn’t lapse at end of trial.)) d. s4(2) order (Series of staggered trials, where during course of trial important that certain information doesn’t go into public domain)

ii. A s4(2) order lasts for what period of time: a. Until the judge lifts the order b. Whilst a witness is giving evidence c. Until the end of the trial d. Until the verdict

iii. Which of the following proceedings are not subject to the laws of contempt? a. The employment tribunal b. Courts Martial c. Coroner’s Inquest d. General Medical Council proceedings

iv. Which of the following is a reporter allowed to do? a. Sketch in court b. Use a tape-recorder in court c. Film the proceedings using a mobile phone d. Tweet in court subject to the judge’s consent

v. A conviction that ended in a prison sentence of five years becomes spent: a. never (Sentences of over 2)5 years years can never be spent — Rehabilitation of Offenders Act) b. after 10 years c. after 3 years d. after 5 years

b. Explain the reporting restrictions that apply when reporting preliminary hearings such as a bail hearing in the magistrate’s courts and the reason for the restrictions. 5 marks.

§8 of Magistrate Courts Act 1980 (“Barebones” rule) — can only report bare bones of trial, it’s not a full trial, it’s a bail application. Name of defendent, magistrates and lawyers, which court the hearing was in, occupation of defendent and age, actual charge and summary of charge, when and where next hearing is taking place, arrangements about bail, whether the case is being transfered to Crown Court, whether restrictions have been lifted. Can’t report why bail is not being granted, previous convictions, legal argument. Similar rules apply in Crown Court.)

7. You are working on a television current affairs programme. You are given confidential internal document from the accounts department of a major international company that highlight legal methods that can be used to avoid the company paying tax. The documents DO NOT highlight any illegal behaviour. The documents are e-mailed to you by an employee of the bank who you have promised anonymity.

You want to show and refer to the documents in a documentary about how companies avoid paying tax.

a. Explain what confidentiality law issues arise and discuss whether the company could stop the broadcast of the programme by an injunction. Explain the issues and arguments the court would consider. 5 marks.

Test set down in Coco v AN Clark 1969 is: is info confidential, is there a duty of confidentiality owed, has there been an unauthorized disclosure? Prince Albert v Strange; Prince Charles v Associated Newspapers. Could company get injunction? Could apply for it, court would have to look at test of confidentiality, art. 10 of European Convention on Human Rights (Is there a public interest in this being disclosed?), §12(3) Human Rights Act about injunction being granted for confidentiality (No injunction is to be granted to restrain publication unless applicant is able to establish publication would not be allowed — i.e., only if applicant is likely to win case). Not highlighting illegal behaviour, so no public interest defence. Confidential document that would only be obtainable by a 3rd party working for the company. If not showing illegal behaviour, reasonable case for keeping documents confidential. If illegal behaviour, different matter.)

b. Could the company obtain disclosure of the source of the documents and the return of the documents? Explain the issues and arguments the court would need to consider. 5 marks.

§10 of Contempt of Court Act 1981, basic provision a court should not order disclosure of sources unless: a. Matter of national security b. Prevention of crime c. Interests of justice. If tests satisfied, could defend with Art. 10 (Right to impact information), the right to protect whistleblowers in the public interest. Company would say it’s important to identify the disloyal employee. Major cases (X v Morgan Grampian 1990, Goodwin v UK; Mersey Care NHS Trust v Ackroyd). Camelot v Centaur Communications 1999; company ordered to disclose where they got some information re: directors pay. Could seek a warrant from the court, or ask the police to return it (stolen property. If police asked to investigate, police would have to seek disclosure of the documents before PACE activates — i.e., would have to seek court order under PACE; to get that, would have to seek evidence for an indictable offence, would have to show they’d sought disclosure; likely to be excluded material, i.e., that under confidential circumstances.))

8. What PCC/Ofcom and legal issues arise in the following situations?

a. Publishing a photograph of a footballer and his son sitting at a table outside a restaurant having a meal

Is there a reasonable expectation of privacy? Although seems a public place, footballer should have reasonable expectation of privacy. Somewhat similar to being in a church or a road accident. Has the celeb sought publicity about family? If so, perhaps more justification for showing that. Might also ask about the circumstances relating to the particular photo — has the photo been taken seriously, by a member of the public by chance, something going to cause deep personal offence, etc? Issues to do with protecting children — Murray v Big Pictures 2008, i.e., the J.K. Rowling case. Might be advisable to pixelate child.

b. Reporting on a suicide where a man jumped from a window, showing a photograph of the person just before they jumped and flowers being laid at the scene

PCC/Ofcom rules say to show a sensitivity; shouldn’t show moment of death; have to regard privacy issues and sensitivity towards the family; shouldn’t give explicit details as to what happened. First photo would need to regard sensitivity of the family. Second might not be possible if it shows people in deep grief; however, if a public display of grief (i.e., laying flowers), might be more acceptable to do so.)

c. Reporting at a school

Basic principle is that you have to seek permission from the school, e.g., head teacher. Should have permission in writing. Pupils shouldn’t be asked questions beyond their general capability to answer and should avoid asking questions about personal issues or controversial topics (parents might complain).)

d. Following a criminal trial where the defendant was found guilty, paying the defendant’s wife and a juror to tell their story about their thoughts on the case.

Paying a criminal or an associate is “highly unusual” unless with really high public interest (Tony Martin case; PCC case involving Jonathan Aitken’s daughter). §8 of Contempt of Court Act — should not ask juror how decision in jury room was made. General thoughts on case or thought on defendent, or running of courts, etc. should be okay. But must not go into jury deliberations.)

2)5 marks (Each, I’m guessing)

a. Answer a. b. c. or d. 1 mark each.

i. An exclusive copyright licence to a publisher grants: a. The complete transfer of copyright ownership b. A partial transfer of copyright ownership c. Permission to publish the copyright work to the publisher alone d. Permission to publish the copyright work but others may also publish the work

ii. Copyright in a magazine article written by a freelance writer who has recently died is owned by: a. The magazine b. The editor c. The person who commissioned the report d. The estate of the freelance writer

iii. A photograph is taken in 1925 and the photographer died in 1935) When does copyright in the photograph expire? a. 1975 b. 1985 c. 1995 d. 2005 (70 years from death of person creating the work)

iv. A trial seeking damages for breach of copyright would be heard in which court? a. The magistrates’ court b. The High court c. The Crown Court d. The Copyright court

v. The right to life in the European Convention of Human Rights is: a. Article 1 b. Article 2 c. Article 8 (Privacy) d. Article 10 (Freedom of Expression)

b. “The law of fair dealing provides a fair balance between the public’s right to know and the right of the copyright author to prevent copying of his work”. Discuss. 5 marks.

Fair dealing main cases: Hubbard v Vosper 1972, Fraser-Woodward Ltd v BBC 2005, BBC v BSkyB 1992, Pro Sieben Media AG v Carlton Television 1999)

10. “The law of privacy and the number of privacy injunctions has got completely out of control. Judges should protect freedom of expression and the freedom of the press - not celebrities trying to cover up their private lives. Parliament needs to legislate in this area”. Discuss. 10 marks

Privacy main cases: Naomi Campbell v MGN 2004, Douglas v Hello 2003 (I think; also 2005 and 2007 — not sure which is most relevant), Peck v UK, Mosely, etc.)