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Media Law lecture -- Privacy continued

March 19, 2012

From last week:

  • Section 4(2) — postponement order. Allows postpone publication of proceedings. Not forever. For avoiding a substantial risk of prejudice in administrating justice.
  • Section 39 — Children and Young Persons Act 1933. Wide-ranging order allowing courts to grant order preventing identification of anyone 17 or under involved in court proceedings, either criminal or civil.
  • Section 11 order — Allows court to withhold name of individual from public. I.e., in a blackmail case.
  • Common law and statutory qualified privilege — two different types of defences:

    1. Defamation act (statutory) — public forums fairly and accurately reported are protected under qualified privilege.
    2. Common law privilege — derived from judge-made law. Reynolds Defence. A matter of public interest, which has been reported responsibly, can be defended as such. +Article 2 — Right to Life. If someone’s life is at stake due to reporting, injunction can be put up against identification
  • If an injunction is being sought against a matter that touches upon a matter relating to freedom of speech, newspaper must be contacted and judge shouldn’t granted unless it felt applicant is going to win.
  • Rules on reporting in the youth court: reporters allowed, public is not. S49 of Children and Young Persons Act 1933 states that anyone 17 and below shouldn’t be identified (automatic ban).


Other privacy legal issues

  • Data Protection Act 1998

    • Journalistic exemption

      • §32 — data that is held for the purposes of journalism

        • Individual doesn’t have the right of access to find what info is held on him/her
        • Court shouldn’t grant injunctions prior to publication over individual data held
    • Unlawful procuring of information: Criminal Justice and Public Order Act 1994

      • Accessing private data without public permission can be a criminal offence.
      • Campbell v. MGN

        • If you’re asking someone to unlawfully obtain information on your behalf, that can also be a criminal offence.
    • Individual journalists/media agencies should be listed with the Information Commissioner.
  • Protection from Harassment Act 1997

    • Criminal offence to pursue a course of conduct that can be considered harassment
  • Regulation of Investigatory Powers Act 2000

    • Criminal offence to intercept communications without appropriate authority.

Industry regulations surrounding privacy

  • PCC Code / Ofcom Broadcasting Code

  • Provision that individual’s privacy should not be breached a very important part of codes.

  • Privacy should not be breached unless it’s in the public interest

    • Not simply what’s interesting to the public.
    • Focused on public health/safety; prevent public from being misled; protect national security; something the public should know about
  • Specific issues:

    • Proportionality: is the breach that’s taking place proportionate to the wrongdoing being exposed?

      • Secret filming: can’t be a fishing expedition; needs to have prima facie evidence.
    • Public figures: politicians and others who have spent their life putting it into the public domain, less right than average person.
    • Public domain: Similar to the above?
    • Methodology: act respectfully and responsibly; put yourself in the position of who you’re filming.
  • Areas of privacy:

    • People in distress

      • Each individual case on its own merit; getting a sense of what’s going on is okay, but tight focus on person’s face is not.
    • Intimate details
    • Health matters

      • Going into individual’s condition (esp. pregnancy before 12 weeks) on wrong side.
    • Revisiting past events
    • Children — heightened regulation to protect children, shouldn’t be questioned about private matters except in loco parentis
    • Door-stepping — Justified in on-the-day stories of public interest. Not normally for investigative reporting unless individual contacted beforehand and asked for a response. If response not given, might be justified to door-step.
    • Suicide — number of regulations to respect families and prevent copycats. Not allowed to be very in-depth. Photo of individual about to jump from bridge or window not allowed.

      • Daily Sport “suicide hotspots” story — PCC ruled unacceptable, gave too much detail and encouraged copycats.
  • Locations

    • Key test: “A reasonable expectation of privacy”

      • Can be even in a public place
    • Churches

      • Paul McCartney praying after death of wife; Hallo in 1998. PCC ruled on McCartney’s side.
    • Beaches

      • Daily Mail article in 2000 about Anna Ford on public beach in swimwear.
      • PCC ruled on side of news media; Ford appealed, ruling upheld.
      • Anna Macpherson with children — unacceptable (esp. because on private beach)
    • An address of a celebrity

      • Not acceptable to identify location of individual’s house.

        • Daniel Craigg and Miz Dynamite made complaints; deemed to be on wrong side of the line.
    • Funerals

      • Carol Smiley at mother’s funeral — deemed unacceptable to film
    • Filming with police

      • No right to film in private house with police
      • Filming arrest or police operation, would have to pixelate individuals arrested.
  • Methodology for gaining private information

    • Filming in public places

      • If visible to naked eye in a public place, it’s probably acceptable.

        • Careful: shopping centres; royal parks; buses open to public but not public places.
    • Long range lenses: care must be used.

      • 2002 — Julie Goodyear complained about photographs of her sitting in back garden via long lens. Considered breach, wouldn’t have been visible without lens and not in public interest.
    • Secret filming

      • Forms normally have to be filled out justifying filming.
    • Harassment

      • Not allowed!

Next week: copyright. Last one before Easter Break! Go through everything in syllabus before class returns after break!

Ændrew Rininsland
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