Answers from last week:

• What is the watershed?

  • 9 p.m. to 5 a.m., more adult content is allowed. Not allowed outside of that span in order to protect young persons.
  • Doesn’t change instantly; more adult the later in the evening.

• Issues on payments to criminals?

  • Journalists should not be making payments to criminals unless there is a clear public interest. (PCC and Ofcom.)

• Police Bail

  • The outcome of an individual being taken to the police station is threefold: release without charge, held on charge, or released on police bail.
  • I.e., the police are still making enquiries and may call you back.
• “Without prejudice communication” — Open conversation between lawyers, but does not effect the outcome of a case.
• Spycatcher principle — if an injunction or court order applies to one paper, it applies to all of them.

Next week:

• What are the rules of the PCC about journalists seeking interviews at hospitals?
• In Copyright Law, what is the difference between an assignment and a copyright license?
• Name three ways journalists can be subject to the criminal law in finding information.
• If appealing from the magistrate’s court on a point of law and a point of fact, where does the appeal go?
• What court does a Lord Justice sit in?
• How does the PCC define the public interest?
• Are there any rules concerning reporting celebrities becoming pregnant?

This week’s media law issues:

1. Search “secret courts” — ongoing issue in legislation re: new rules brought in by MoJ making some courts easier to be heard in closed session.
2. Case in ECHR — Tussalp v. Turkey — two defamation actions against PM against journalist. Court came down on side of journalist: “Turkish courts had not set the remarks within a proper context and the form in which they were conveyed.” Rules remarks were lawful. “Turkish courts had failed to establish any pressing need for establishing PM’s rights above freedom of expression.”

Privacy

Cases

• Personal relationships

  • Stephens v Avery

• Confidential information

  • Creation Records v News Group Newspapers (1997)

    • Court allowed injunction preventing publishing of Sun photo about Oasis photoshoot due to confidentiality attached to shoot.

• Employment relationships

  • An employee owes a duty of confidentiality to employer.
  • An employer is entitled to rely on an employee remaining confidential.
• Brisco v. Brisco
• Nightjack case — court ruled it was in the public interest in blogger’s identity (in this case, a night police officer) to be disclosed.

Defences

• Iniquity

  • “Something which is immoral, unrighteous, etc.”
  • If there is information that is confidential but exposes wrongdoing, may be used as a defence.

  • Lions Laboratories v. Evans

    • Story arguing breathalyzer ineffective via documents from former employee.
    • Lion Laboratories argued employee took information they wouldn’t have access to; should be considered confidential and not published.

  • Cook v. McVicker (1984)

    • Reporter surreptitiously recorded off-the-record conversation about police corruption; reporter decided to publish and with attribution.
    • Reporter successfully argued it would be in the public interest to reveal such information.

  • Viagogo v. Channel 4 (2012)

    • Investigative report re: online ticketing. Sought injunction to prevent airing of report. Confidentiality agreement signed at Viagogo, argued information obtained unlawfully.
    • Clear public interest in correcting the false image Viagogo put forward. “Balancing exercise favoured the defendant.”

• Person has courted publicity

  • Woodward v. Hutchins (1977)

    • Tom Jones (Woodward) tried to stop a former agent from disclosing information about Jones’ private life.
    • Hutchins’ case was that Jones had put his life so far into the public domain was that it wouldn’t be right for court to impose injunction.

  • Beckhams v. Nanny (2005)

    • Nanny wanted to publish about arguments between the Beckhams; court decided that she should be able to.
• Public interest

• Public domain

  • If the information is so widely circulated, it would be futile and ridiculous to impose an injunction to prevent it from being published.

    • Limitations:

      • Tony Blair v. Mail on Sunday — Nanny wanted to publish re: Blairs’ home life. Court ruled injunction for the second edition of the paper, even though published in first.

• Confidentiality / privacy

  • Limits of confidentiality: Kaye v. Robertson (1991)

    • If no duty of confidentiality, argument doesn’t work.
    • In 1991, an actor (Kaye) was driving when scaffolding collapsed, injuring him. Taken to hospital and suffering extensive surgery.
    • While there, reporters from Sunday Sport went into his room, photographed him and interviewed him. Went to Court of Appeal; confidential setting; court focused on relationship between Kaye and photographer.
    • No duty owed between Kaye and the photographer. No law of privacy and the law of confidentiality different.

  • Human Rights Act (1998) Art. 8 sets out privacy as a human right; creates a law of privacy.

    • Article 8 v. Article 10 (Freedom of Expression) — balancing act.
    • Law was introduced within statute then developed through the common law. Judges allowed to develop the law at will; politicians really should have created an Act outlining everything.
    • §12 and injunctions — if the person against whom an injunction is directed is not in court, court should not grant injunction.
    • No relief should be granted before publishing unless it can be established claimant is highly likely to establish facts are wrong afterwards.
  • Photographs — greater impact/protection

  • Privacy in a public place — media entitled to film in a public place.

    • Peck case — Man with knife about to commit suicide but apprehended was filmed; British court argued he was in a public place, ECHR said authorities had not upheld his privacy.

  • Reasonable expectation of privacy

    • Depends on circumstances, but parameters have been extended significantly over time.
    • In restaurant, in someone else’s house, etc. reasonable expectation of privacy.

  • Children

    • Not allowed to be filmed; JK Rowling got injunction against anyone filming her children.
  • Location

  • Cases often determined on the facts.

    • “Intense focus”