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

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

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.

Phonehacking Trial, Day 7

AFTER near unanimity on the best ‘lines’ from the first few days of the trial, today seemed to mark the first day when papers chose different angles.

Always interesting when the press do this on any story as it gives you a little insight into how they think editorially and what they think will push their readers’ buttons.

Many of them spend a large amount of money and time finding out exactly what their readers think, do and consume and if a paper is well-targeted you can tell a lot about its readership from the angles it takes on stories and the stories it chooses for page leads, and the others it drops completely.

Anyway, here’s the coverage from today, enjoy.

Daily Mail

The Independent

The Guardian

Daily Mirror

Hacked Off

The Drum

Evening Standard

Press Association (here on MSN)

Peter Jukes has been doing a great job livetweeting the trial and is now crowdsourcing funds to help him keep at it until Christmas – a very worthy cause.

That’s it for now. As ever, if you spot something superlative, give me a shout.

Phonehacking Trial, Day 6

Week Two of the trial and stories are still coming thick and fast.

It’s still the opening of the trial, which the judge has decided can be livetweeted and @PeterJukes is doing a particularly fine, comprehensive job. The line about codewords from the film ‘Where Eagles Dare’ proved irresistible in the early copy today.

Coverage today.

Guardian and the “Where Eagles Dare” line.

Daily Mail

The Independent

Daily Telegraph

The Drum

Hacked Off

Broadsword calling Danny Boy – signing off until I see some later takes this evening.

Phonehacking Trial, Day 5

EARLY take on the coverage up so far on the phonehacking trial. As usual if more emerges later I will update.

The coverage has been pretty comprehensive this week, both online, in print, livetweeting and blogging. I think some predictions that the trial might be downplayed proved to be ill-founded.

It has been interesting for me watching site stats to see which links have been most clicked, and at this time of night, The Guardian outstrips the rest quite easily, even after I started handicapping it a bit by dropping it down the list. However, later on, in the small hours of the morning, sites like The Daily Beast, The Drum and Hacked Off come back strongly with a lot of visitors heading their way from here.

Anyway, coverage is as follows:

Press Association (on MSN here, also available on BT and on homepages of Newsquest, Johnston Press and Trinity Mirror)

Evening Standard

The Independent

The Drum

Hacked Off

Daily Mail

Daily Telegraph

The Guardian

It will be interesting to see what, if anything, the Sundays do with this given that they don’t normally go for trial coverage as it will have been gone over thoroughly in the Saturday papers. I will round them up here if they do anything significant with it.

That’s it for now, an interesting week and more to come. Have a good weekend.

UPDATE

Eastern Daily Press with a local line

Phonehacking Trial, Day 4

WELL, the phonehacking trial continues to deliver, and this is just the opening.

Worth noting, that it is just that, the prosecution opening. It’s a trial, there’s more to follow. It’s scheduled to go on until Easter, there is a lot more to follow from prosecution and defence.

I am being asked a few questions on Twitter about what it is safe to tweet and blog. Not from reporters at court, many of whom are very experienced journalists and well able to produce reports compliant with reporting restrictions, but from bloggers and tweeters who are commenting on the case.

There have been a number of court orders made in this case, primarily to prevent prejudice to this and other cases. I gather that warnings have been issued over some tweets made in the past couple of days. Caution is advised, the current Attorney General, Dominic Grieve QC MP, is keen as mustard when it comes to contempt and has said in the past that he would issue contempt proceedings against an individual blogger or tweeter if the need arose. Fair warning.

When reporting proceedings it is always wise to stick to what has been said in court, in front of the jury, that way you are not revealing to them anything they do not already know.

As a general rule do not make reference to any other proceedings, past or pending, you may know about as that risks prejudicing this trial or any future trials.

Furthermore, do not do anything that vilifies a witness, that might put them off testifying, that could also be a contempt. In the archive of this site you will find a quick guide to avoiding contempt of court which you might find useful.

Anyway, onto the coverage of today.

Daily Telegraph

The Guardian

Daily Mail

The Drum

Daily Mirror

BBC News

Daily Express

The Independent

UPDATE

Here’s The Daily Beast coverage, by @PeterJukes, who has also done a fine job of livetweeting the opening.

And here is the coverage on the HackedOff website.

That’s it early doors, as usual if anything later catches my eye, or is pointed out to me, I’ll add it. Once again, if you’re toiling away behind the paywall of The Sun or The Times and want to send me links for inclusion, please do so.

And if you’re tempted to tweet, in the words of the great Sgt Phil Esterhaus: Let’s be careful out there.

Five laws editors need to know better than their staff

BEING an editor places great demands on your time.

You might well have arranged training for your staff, but have you thought about your own? When was the last law refresher you attended?

You might reasonably leave day-to-day spotting of legals to your newsdesk and subs, but in some cases it is you that will be held responsible when things go wrong.

Here, briefly, are five areas of law an editor really needs to know.

1 – Sexual offences anonymity
There is now a large number of offences which give anonymity to a victim as soon as a an offence is reported and that report can be to anyone, not just police. Relatively new offences like trafficking and voyeurism are catching journalists out because they do not realise they are sexual offences.

The consequences of breach are very serious, a prosecution under the Sexual Offences Amendment Act 1992 – and the CPS will sometimes prosecute both the paper and the editor. Conviction will result in a criminal record for a sexual offence.

2 – Contempt of Court

The law isn’t new, it’s been around since 1981, but what is new is Attorney General Dominic Grieve’s willingness to prosecute.

He said when he took office that prejudicial publication was a concern and he has been true to his word in allowing prosecutions for contempt.

They can still, theoretically, jail editors for contempt (last time that happened was the editor of The Mirror in 1949 over converage of the Haigh Acid Baths Murders) Nowadays they give the editor a personal fine, as well as the paper. Fines are unlimited, but tend to be in the tens of thousands of pounds.

Publication of material which would not have resulted in prosecution five years ago, is now being being taken to court.

3 – Defamation Act 2013

Libel remains your most potentially expensive problem. The new Act will probably be implemented from summer 2014. It contains new defences and new limits on how claimants can take action against you. You and your staff need to understand the changes it introduces.

4 – Bribery Act, RIPA, Misuse of Computers

The laws we saw Leveson explore at some length. You may well be taking on young, technically adept journalists. They, and you, need to know the legal limits on use of their technical expertise in obtaining stories. Likewise, what is a bribe, who can be bribed and how to avoid a bribery charge?

5 – Copyright

The next big issue coming down the track I think. Journalists are magpies and tend to regard the Internet as a limitless source of free material, especially imagery. People posting pictures online seem to be becoming more aware of their legal rights over such material and we will, I think, start seeing actions for copyright breach in the near future for the sort of online pilfering reporters have regarded as safe up until now.

If the above has given you pause for though, I run in-house law refreshers for editors and their staff. All sessions are tailored to the individual publication concerned. If you would like to talk about training, drop me a line at davidbanksmedialaw@gmail.com

What must be done about the trolls on Twitter?

Strange times on Twitter.

What seemed like a well-supported, perfectly reasonable and ultimately successful campaign to make sure at least one of our banknotes has a woman on it (apart from the Queen) has been slightly overshadowed by rape threats made to one of the women who launched it.

Caroline Criado-Perez became the subject of a hateful campaign of abuse from some Twitter users who made increasingly violent and specific sexual threats against her. The MP Stella Creasy was also threatened and other women, such as Caitlin Moran spoke of their own experience of rape threats on Twitter.

So depressing it’s hard to know where to start. But first let’s agree a few terms.

The abusive tweeters have been described as trolls, but I am not sure that is helpful. Trolling can cover a range of behaviours, many annoying, many legal, and only some going over the top and becoming harassing, distressing and illegal.

Those who enjoy trolling, suggested the reaction to the rape threat tweets was a threat to wider freedom of speech, and in effect their freedom to troll.

I think their argument is spurious. There is a world of difference between typical trolling and making a specific threat if sexual violence against an individual – Ms Criado-Perezwas told what time she would be attacked and specifically what violence would be done to her.

Freedom of speech does not encompass a freedom to threaten someone with rape – anyone who thinks it does clearly does not understand what freedom is.

The threats made were criminal offences, the police are involved now, there has been one arrest and there are likely to be more. Trials will follow in due course.

What I think is interesting is the way that once women had started talking about these threats, it actually resulted in more threats being made from multiple users creating multiple accounts for the purpose @killcreasynow was one example (suspended now, or else I would not name it and give it the publicity.

It seems that the very act of reporting abuse can trigger more abuse.

I am not for one moment suggesting that people receiving such abuse – be it sexual threats, racist, anti-gay or LGBT abuse, should not act upon it for fear of attracting more. But it appears to be a phenomenon peculiar to Twitter that talking about abuse, as well as garnering support and highlighting the issue, can also lead to one becoming more of a target, clearly adding to the distress.

Which made me ponder why and I think there might be a couple of contributing factors.

Firstly there is Twitter’s amplification effect. Word spreads fast there. abusive attacks in the real world can lead to repeat offences and copycat attacks – an offender hears of an attack and decides he will do something similar, it is a trigger. Just as the Internet unites like-minded communities of those interested in, say, knitting, football, opera, so it connects those who are interested in being abusive.

They see each other’s abusive messages and in their minds it legitimises their behaviour, or at least reduces the risk of detection and prosecution. They think there is safety in numbers.We saw it with those who took to Facebook to incite riots, those who targeted and named sexual offence victims and those who published pictures purporting to be the killers of James Bulger. It is only when the police come knocking at their door that they realise their mistake.

The question is the best, the most effective, way to respond to abuse. I’m not sure that responding and retweeting it is the most effective way to deal with it.

These abusers are very often seeking attention and so they target someone with a relatively large number of followers, or a high profile, because they crave the attention, albeit negative, that might attract.

I am not criticising the actions of those who have received abuse. I have never been the victim of such attention myself and far be it from me to tell someone what they should do late at night when they are subject to such vile messages.

The idea of an abuse button may seem attractive, and certainly reporting threatening messages should be a simple matter. But you only have to consider the vast numbers of tweets every hour of the day to realise this would be very difficult to implement effectively.

There are some communities engaged in debates so furious the abuse button would be pressed all the time. Who would begin to sift these messages for the genuinely threatening?

I think first we should see how the law deals with the present situation. Twitter accounts have been reported to the police, one arrest has been made already, other may follow. Before we ask for legislation, let’s see what existing laws can do to tackle this.

What do you need for the pain? Cold, hard compo

THE Culture, Media and Sport Select Committee has been warned this week that the Government’s Royal Charter regulation plan could result in thousands of expensive compensation cases against local newspapers.

The Newspaper Society warned that up to 1,000 cases a year might have to go to arbitration, with each one costing newspapers thousands of pounds they can ill afford in the current economic climate.

The NS submission included a letter from Tony Jaffa, a solicitor with huge experience in advising regional newspapers, which said: “It seems to me that campaigners for reform of ‘the press’ have little knowledge of the way in which regional and local newspapers operate… I am concerned specifically about the real risk that the reforms being proposed will result in a flood of legal claims against the regional press…

“If the last 23 years of advising the regional press has taught me anything, it is that if those with complaints… think they have an entitlement to money, they will pursue such claims, irrespective of the actual merits… The current proposal for arbitration envisages a system in which the complainant has absolutely nothing to lose and everything to gain by bringing a legal claim.”

He is right, and any editor who has had to deal with complaints will tell you so too.

I remember one tale told me by a regional editor, who shall remain nameless, whose paper had committed some very slight error in reporting an elderly man’s death.

The son had come in to see him to explain, at great length, how this error had devastated the family, his grieving mother in particular.

The editor was sympathetic, and apologetic and said that, of course, the paper would correct the error it had made and apologise.

“Is that all?” came the reply.

Well, said the editor, perhaps a bouquet of flowers for his mother as some small recompense for what was, after all, a genuine mistake, with no malicious intent.

“Is that all?” replied the son, once more.

A little bemused by now, the editor inquired what he felt the newspaper could do further to undo its error.

“Can you not give us something…something…for the pain?” came the reply.

Something meaning cash.

Most complaints people have against regional newspapers are not on grounds of privacy, but accuracy, and do not warrant cash compensation, but prominent correction. The Royal Charter put forward by government would have given that complainant somewhere to seek financial redress for the pain he and his family were feeling, no matter how little merit his case had. And regardless of outcome, it would have cost that newspaper money to go through that process.

If the government Royal Charter goes ahead it will be hard-pushed regional newspapers that will be feeling the pain.