David Banks Media Law

Training and advisory services in media law, social media and crisis management

Author: David Banks

Journalist since 1988, media law consultant, trainer and author.

IPSO, what’s the difference?

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IPSO – the Independent Press Standards Organisation – took over from the Press Complaints Commission today.

How we got here is a matter of record, featuring the phone-hacking scandal; the Leveson Inquiry; prosecutions past, and more to come.

You will find plenty of critics of both IPSO, and the alternative Royal Charter regulation elsewhere. What I will talk about here is the practical impact the new regulator will have on those who have signed up for it.

Firstly, for reporters, the important thing to know is that the Editors’ Code of Practice remains the code of ethical conduct that governs your work. You need to know the code and how it is applied. Importantly, you must adhere to the ‘spirit’ of the code, and to understand this you must make it your business to know how the code has been applied.

It is as important to know your way around the code as it is to understand libel, shorthand, or how to write a decent intro – it is a basic tool of your trade.

In this sense then, not a lot has changed, the code remains the same.

What has changed is the way in which complaints under it are going to be handled. This is a matter that editors, deputies, senior managers and newsdesk execs need to concern themselves with.

From now on, how you handle a complaint is going to be crucial because in some instance you do not have the backstop of the PCC mediating for you.

If IPSO receives a complaint about a story, in the first instance it will refer the complainant to the publication’s complaints handling procedures.

Publishers therefore must have effective procedures in place to handle such complaints.

Staff need to know what to do with a complaint. It must be logged properly, reported to line managers, and dependent on the nature of the complaints elevated to the managers who are able to resolve it properly.

Some complaints, requiring perhaps a simple correction, can be dealt with by a reporter and newsdesk. Other more serious complaints will need the intervention of the editor. You need procedures in place to determine which is which and to act accordingly. All this needs to be done in 28 days.

If the complaint is not resolved in that time, that is what IPSO gets involved.

If the matter has to go to IPSO because of failures in the complaints-handling processes of the publication, that is when they need to be worried.

If they are suspected of a systemic failing to uphold standards, then IPSO can come in to investigate. This could mean interviewing staff, looking at notes and other records and demanding access to newspaper systems. It could be a very uncomfortable process.

Following on from that, if such an investigation finds serious failings to uphold standards, there is the ultimate sanction of a financial penalty.

So, as I said, complaints handling is vital, as is note-keeping, recording of newsdesk advice and decisions; legal advice sought and given; and editorial involvement. There needs to be clear guidance given to all staff about the sort of issue that requires editorial clearance before any action is taken that might be a breach of the code.

No-one wants to be the first publication to fall foul of an IPSO adjudication. if you have not done so already, sort out your complaints procedures now.

And let’s be careful out there.

UK press coverage of the death of Robin Williams

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THIS is a very quick blog post about press coverage of the death of Robin Williams.

Apologies if I do not tease out every argument, but I am up to my eyes in another project, about ethical codes of reporting as it happens.

TRIGGER WARNING – I am going to write here about the apparent suicide of Robin Williams and in as vague terms as I can about the method he used. If you are experiencing suicidal thoughts, please consider whether you want to read any further. The Samaritans in the UK can be contacted on 08457 90 90 90.

Many people have objected on social media to the way the tabloid press in particular covered the death of Robin Williams. They complaints that I have seen focus on the amount of detail included about how he took his own life and the intrusive and insensitive nature of the coverage.

I will deal with those issues separately.

Firstly, the amount of detail in the reports.

There were four elements to this as I see it:

*He hanged himself

*He used a belt

*He was found seated

*He had also slashed his wrists using a pocketknife

The Editors’ Code of the Press Complaints Commission was amended to reflect concerns about the reporting of suicide, with the insertion of Clause 5(2)

*ii) When reporting suicide, care should be taken to avoid excessive detail about the method used.

The PCC Codebook, which elaborates on the code expands on this. Excessive detail, it is feared, can lead to copying by others who read about the method used.

Examples of excessive detail include the amount and type of a prescription drug used; the way in which a chainsaw was set up by one person to kill himself and the manner another set up equipment to electrocute himself. The publications that included these details were all censured by the PCC.

So were the details included by the papers excessive?

That he hanged himself using a belt, and that he slashed his wrists are, in my opinion, not excessive. These are very common methods people use to take, or make attempts on, their own life.

The one detail I am troubled by is that he was found in a seated position. This indicates how he hanged himself. I am not sure it amounts to excessive in the way the cases above do and doubt that it will amount to a breach of the code. However, if I had been editing that story, I would have taken out that detail in particular.

On then to the sensitivity of the way in which the star’s death was reported.

This is a very complex issue. People sometimes criticise the tabloid press for reporting an issue, while still reading every word of the content. Conversely, sometimes criticism is levelled at the papers for a ‘sensational’ (ie attention-grabbing) front page – and the nuances of coverage inside might be overlooked.

Some people feel that any examination of the lives of the dead while their families are still grieving is an unjustifiable intrusion . At the opposite end of the spectrum, some believe that after a life lived in the limelight, the death of a celebrity is public property too. A reasonable path lies somewhere between those two extremes.

Robin Williams had a long, interesting career as a comedian and actor. He has millions of fans worldwide and his untimely death will be the subject of much conversation and, yes, speculation among those fans. It is, I think, unrealistic to expect the media not to reflect that shock, and to examine the circumstances surrounding his death.

Furthermore, any coverage in the UK ought to be seen in the context of US coverage, where, as the family were appealing for time to grieve, US TV was running live helicopter shots of Williams’ home. The fact that one country’s media is more excessive than our own does not excuse bad behaviour, of course, but the coverage here and its potential impact on those grieving should be viewed in that context.

It is interesting to note that the one media that seems to have caused greatest distress in the immediate aftermath of Robin Williams’ death is social media, in particular Twitter, where trolls attacked his daughter, Zelda, causing her to close her account.

Still, that social media sometimes behaves more distressingly than mainstream, is nothing new.

I think what does, to some extent, excuse the coverage is that much of it was already in the public domain from previous coverage, or else was being widely published and discussed in US media.

I think that many of the complaints were about matters of taste and there the Editors’ Code does not go. No ethical code can take account of matters of taste, which are an editor’s discretion.

I know many will not agree with my views, and many were upset by the UK coverage.

If that is the case make your feelings know to the editors concerned; don’t buy their papers; don’t click their websites. If enough of you out there make your point that way, behaviours might change.

As I tweeted during the furore after his death, newspapers are a daily democracy, fighting for your money at the newsagent and your clicks on their websites. Use your vote wisely.

On departing as an External Examiner

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For the past four years I have served as an external examiner at Cardiff University’s Journalism School. I have looked after the law and public admin parts of the MA and postgrad diploma there.

The postgrad diploma is the course I started at Cardiff 27 years ago, which launched me into a career in journalism, after a law degree failed to convince me that the law was for me (though what goes around comes around and the law dragged me back in the end)

It was a magical year for me, I met some fellow students who would go on to be brilliant journalists, and discovered that I might just scratch a living by writing myself. Cardiff remains a beacon of great journalism training.

For the last exam board I added a few departing comments, and for what they are worth, here they are.

“This is my last year as external examiner for my old journalism school and it has been a huge pleasure coming back and seeing that the place, though in a different building, remains the excellent school it was when I attended back in 1987-88.

As ever, journalism looks like it is facing a crisis, assailed by plunging print circulations, combined with the mystery of how anyone can profit from digital.

Add to that that the phone-hacking scandal, the Leveson Inquiry and the trials which we have seen concluded only last week and an outsider would be forgiven for wondering why anyone would want to enter an industry so clearly doomed.

And yet, I am sure, as in my day, places on the Cardiff course remain at a premium. I still meet alumni from years before mine and after, and I am invariably impressed with their achievements after they left Cardiff.

Despite its current troubles, great journalism will continue to thrive, on many platforms, wherever people are interested in stories – so that means everywhere. I have no doubt that at the forefront of that will be the journalism produced by Cardiff graduates.

Thank you for having me as an external. My best wishes to the staff there and all your students for the future.”

PCC adjudicates on journalist’s Facebook posts

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IN what are its dying days the Press Complaints Commission made an extraordinary decision this week when it said it could adjudicate on journalists’ personal social media accounts.

It upheld a complaint from a councillor on harassment, Clause 4 of the Editors’ Code, over Facebook postings by Lorraine King of the Brent&Kilburn Times.

She had received an email from Councillor Jim Moher complaining that letters he had sent to the paper had not been published that week. She was on compassionate leave at the time following the death of her mother.

On her Facebook account she posted messages which said: “I plan to make his life a misery as much as possible” and “Lord God forgive me if I bump into him before I get back to work, you will be visiting me in Holloway”. The post were visible to 250 of her 1,000 friends and had attracted a number of comments and ‘likes’.

The councillor was made aware of the postings and he made a complaint to the PCC, which was upheld.

In its adjudication the PCC said: “The complainant’s concerns about the postings on Facebook related directly to the news editor’s contact with the complainant in her professional role, and had been viewed by individuals she had come into contact with as part of that role, a number of whom were personally acquainted with the complainant. The complaint could therefore be framed as a complaint under Clause 4 of the Code, which states that “journalists must not engage in intimidation, harassment or persistent pursuit”.

“The comments had contained abusive language, personal insults and an implied threat of violence – albeit not one which the Commission considered was intended to be taken seriously. Further, they appeared to suggest that the news editor intended to use her professional role to make his “life a misery”. The newspaper had not denied that the complainant was readily identifiable as the subject of the remarks, which had been published to a wide audience. While the Commission acknowledged that the comments had been published at a difficult time for the news editor personally, it had no hesitation in finding that this constituted intimidation within the meaning of Clause 4, and a serious failure to uphold the highest professional standards required by the preamble to the Code.”

The PCC does not adjudicate on social media postings by newspapers, but it does cover their use by journalists in terms of professional conduct.

Accepting the adjudication, Archant, publishers of the Brent&Kilburn Times, said: “Following the ruling, Archant is reviewing and re-issuing its existing social media guidelines, to ensure all editorial staff are reminded of their obligations, both under the Editors’ Code and the company’s policies. All Archant editorial staff have clauses written into their contracts of employment making it clear they must adhere to the Editors’ Code at all times.”

It think the PCC has made a mistake here, setting a worrying precedent that its successor, the Independent Press Standards Organisation, has to decide whether to follow when it begins regulating the press in September.

Let’s consider the issues.

Firstly, we can dismiss the idea that this Facebook account was private. Personal yes, private, no.

It had 1,000 friends and the posts in question could be seen by 250 and were ‘liked’ by 54. That is not private, that is publishing to an audience.

Given the rich vein that social media faux pas have provided for journalists in recent years, it is the height of hypocrisy for us to claim that such mistake by one of our own were somehow private.

If this had been an exchange between two councillors, discovered by a reporter on that paper, would they have used it? Of course they would, a page lead at very least and on a quiet week, a splash.

Secondly, we should look at the exchange involved. The councillor knew the journalist had suffered a recent bereavement, having, as he pointed out, sorted out parking arrangements for grieving relatives. Yet still he emailed about missing letters. He deserved a robust response via email, saying the matter would be dealt with on the journalist’s return to work, or a suggestion that he take the matter up with staff who were in work, not a news editor who was on leave after a bereavement.

The news editor’s response on Facebook was not wise, to say the least, but in the array of misjudged social media posts we have seen it was pretty mild. However, it was a journalist expressing ill will towards someone her newspaper covers. Bias is something we are constantly accused of in the press, often by every shade of the political spectrum, and this post confirmed those usually unfounded suspicions.

The question is who should deal with this? Is it really the PCC?

I would argue not. That does not mean it should not be dealt with, but it should be a matter between the editor and the journalist, not the PCC.

This was not a Facebook feed for the paper, it was not posted in work, or during working hours, the journalist was on leave.

Is the PCC really saying that it can police every utterance by a journalist on any forum they make it? It has made a rod for IPSO’s back if that is the case.

I have been of the opinion for some time that journalists should be careful about what they put on social media. The line in so many biographies ‘my views not those of my employer’ gives you and your employer no protection at all. You may hold a councillor in low regard, but you cannot commit that to Facebook and not expect it to be used to question your impartiality.

However, even journalists are entitled to some personal time, even though they are always on duty. Out of hours, outside work and on compassionate leave ought to be considered personal, and not part of their professional conduct, unless specifically addressed to the complainant,which these postings were not.

This was a situation where neither complainant nor journalist covered themselves in glory, but it should have been a matter for the editor, not the PCC.

Are you ready for IPSO?

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FROM September a new press regulator will begin operating in the UK, in the shape of IPSO.

IPSO will regulate much of the national and regional newspaper industry, with some notable exceptions, as well as the magazine sector. It will also regulate their associated websites.

Its birth is not without controversy, as it marks the industry’s rejection of the Government’s response to the Leveson Inquiry – a Royal Charter regulator. Hacked Off, the organisation representing victims of press abuses have dismissed IPSO as not Royal Charter compliant and the ‘PCC Mark 2.’

Nevertheless IPSO has appointed its new chairman, appeal court judge Sir Alan Moses, and is searching for a chief executive and members of its board.

For titles that have signed up to IPSO, despite criticisms levelled at it, there will be a very different and more exacting regime with which to comply.

Much will be familiar to titles that have signed up to IPSO. It will still use the Editors’ Code – although, as always, it can be revised as circumstance require.

It will also use the existing secretariat of the PCC, a wise move in my view as it is very efficient at responding to complainants, gathering information and putting together a file for adjudication. It takes 35 working days from complaint to adjudication at the moment, which is faster than any legal action you will ever be involved in.

IPSO, unlike the Press Complaints Commission, will be able to conduct investigations and, again, unlike its predecessor, it will be able to levy fines of up to £1m.

Such actions will only be taken where there has been a ‘systemic’ failure in regulation at a title – but what will this amount to and how is it to be avoided?

I am now running IPSO compliance training for publications that want to get ready for the new regulator.

The sessions include:

• Training staff on the Editors’ Code and its implementation with practical workshops to illustrate the latest complaints and decisions
• Training senior editorial executives in the Code and its implementation so that they can make sound decisions and give clear guidance to junior staff when tackling ethically difficult assignments
• A compliance audit to ensure the publications practices and reporting structures are robust, to avoid findings of systemic failure in regulation
• An optional service as an external independent arbitrator in disputes where internal resolution has failed to reach agreement

Publications will need to show IPSO that compliance with the Code is taken seriously and runs through their organisation from editor to junior reporter. Regular training that is independent of the title, and of IPSO itself, which I provide, can go a long way to doing that.

There are more details on the training courses page.

If you want your publication to be ready for IPSO, contact me now to discuss training at davidbanksmedialaw@gmail.com

Tailor-made T&Cs for your website

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A NUMBER of clients have contacted me recently for advice on website terms and conditions.

There are a couple of reasons for this – firstly, the changes brought in by the Defamation Act 2013 mean that in some circumstances a web forum host might need to pass on a user’s details to a libel claimant; secondly, well-written, tailored T&Cs can make the job of hosting and moderating online debate a lot easier.

The Defamation Act reforms include a new defence for online publishers hosting discussion, debate, reader reaction etc. What this means is that if a reader who posts something onto your site wants to defend what they have posted, then the legal action is between them and the claimant, potentially excluding you as the host.

For this to happen effectively you need to be able to give the poster’s details to the claimant. So there are issues about how people register for your site, and how you make them aware of the legal risks they may incur.

However, in informing them about these risks, you do not want to scare users away, or impinge upon their legitimate free expression on your site.

It is a tricky path to follow.

I write custom-made T&Cs for websites, including plain-English guidance on how to avoid the major legal pitfalls while using such a site.

The guidelines are useful in helping users understand their rights and obligations. A clear set of T&Cs are also very helpful in resolving disputes that can arise between posters.

If you would like to discuss how I can help your website, please contact me at davidbanksmedialaw@gmail.com

Defamation Act 2013 – in force now, advice to website operators

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I have been receiving a number of requests for guidance and training about the effects of the Defamation Act 2013.

The Act introduces a number of changes, but website operators are particularly interested in the impact it could have on them and the people who provide user-generated content for their sites – their community.

The Act, and in particular, its Section 5 defence changes the way in which websites respond to defamatory posts placed there by users. Whereas before a notice and takedown procedure, based on a European Union e-commerce directive, would evade liability on the part of the website, now in some circumstances, there is a requirement to give the claimant the details of who it was who posted the libellous material. However, if the poster is easily identifiable and contactable from details on the site, it may well be the operator need do nothing as the action lies between the claimant and the poster.

This shifts responsibility for defamatory posts from the host site onto the poster, which ought to reduce liability for websites. However, if a website operator wants to use the Section 5 defence and the poster details are not readily available, they need to comply with some tight deadlines, often just 48 hours, in responding to the claimant and giving them the details of who it was who posted the defamatory content.

So you may need to hand over details of your users – members of your community – to a libel claimant. This could change the nature of your relationship with your online community, many of who may be relatively unaware of the laws of libel and other legal risks they can incur.

Some websites are beefing up their registration procedures and T&Cs to take account of these changes, as well as offering guidance to their users on the main legal problems they may encounter. Others may want to stick to their original practice of takedown on notice. Deciding which procedure you want to adopt depends on the nature of your website and the conversations that it carries.

This is where I come in.

I have been writing guidelines for a number of organisations as well as providing training for moderators and community managers in the Defamation Act 2013 and other laws relevant to their role.

If you want more information about the services I provide in this area, contact me at davidbanksmedialaw@gmail.com

2013 in review

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The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 19,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 7 sold-out performances for that many people to see it.

Click here to see the complete report.

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HERE’S your round-up of coverage I’ve spotted today.

After a quiet day, unanimity breaks out with everyone going for the line about David Blunkett and transcripts of intimate voicemails.

The Guardian

Daily Mail

Hacked Off

The Independent

The Drum

Press Association (here on MSN)

That’s it for now. As ever, drop me a line if your copy is missing from here and you would like a mention, or if you’ve spotted something you think worthy of inclusion.