David Banks Media Law

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

Category: media law training

Image copyright – beware of the bots

Posted by on in copyright, Media Law, media law training, social media, Websites1 Comment

THE internet is a treasure trove of information and imagery, but journalists are finding out to their cost that assuming it is free can be expensive.

Copyright of an image is normally owned by the photographer who took it – unless they did it in the course of their employment, in which case their employer owns it.

Their rights last a long time too. A photographer owns copyright throughout their life and then it passes to their heirs for another 70 years. Material only becomes ‘public domain’ and free to use at the end of that 70-year period.

For freelance photographers, protecting their rights in an image is very important to their livelihood. If a photo is copied online without permission or payment it can drastically affect their income.

Many photographers and large archives are now using technical means to protect their copyright. Some picture archives utilise bots, such as Picscout, to crawl the web looking for unauthorised use of imagery and when they find such use, they generate an invoice.

Use of these technical means to detect copyright beach is on the increase. Pixsy recently signed a deal with Flickr to protect members’ imagery.

The detection can be quite nuanced as well. I have been contacted recently by people who have used a Creative Commons photo, but they neglected to comply with one of the conditions of the commons site where they obtained the photo – they failed to give the photographer a byline.

This omission resulted in invoices for £300 and £400, which the recipients had little choice but to pay – though with my guidance they negotiated the fee downward.

The lesson is, be careful of online imagery, owners can sometimes be determined in pursuing payment using technical means to do so.

If you want an image, contact the owner to get permission. If it is a Creative Commons site, make sure you read the T&Cs carefully and comply with them, so that what should have been a free picture does not cost you money.

If you or your organisation are concerned about this, I provide training in copyright and how to avoid these issues. It can be included in the general media law training sessions that I run, or as a standalone session focussed on copyright alone. For details see my Media Law Training page.

‘Upskirting’ – anonymity for complainants

Posted by on in Media Law, media law training, Sexual offences, Uncategorized1 Comment

AFTER a long campaign, the offence of ‘upskirting’ finally received the Royal Assent and became law on February 12.

It will come into effect two months from that date, so from April 12 it will be possible for people to be charged and prosecuted for the offence under The Voyeurism Offences Act 2019. Someone committing this offence can face up to two years in prison.

This change in the law came as a result of  a campaign by Gina Martin, who was a victim of this when she was at a festival in 2017.

The offence includes taking or recording an image for sexual gratification or to cause humiliation, alarm or distress – so this covers those who capture such imagery ‘for a laugh.’ The law does not specify a male or female victim, and can be committed against any ‘person.’

This is a sexual offence and it is an extension to the offence of voyeurism as set out in Section 67 of The Sexual Offences Act 2003.

This means that complainants in this offence have anonymity under Section 1 of the Sexual Offences Amendment Act 1992.

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Note that the anonymity applies as soon as ‘an allegation has been made’. Very often that will be to the police, but the law does jot actually specify that it has to be to a police officer. So a complainant can be anonymous as soon as they report the matter to a friend, doctor, teacher – in effect any third party.

The law says that ‘no matter’ should be included in any publication that would identify them as a victim of this offence. Any publication would include social media.

Anyone reporting this offence needs to take care. Complainants have automatic anonymity as soon as they report the offence to anyone.

Anonymity is not simply about keeping a person’s name, address, or picture out of a report. It requires you to remove any detail that might allow someone who knows them to identify them from what you publish.

Complainants can waive their anonymity, such a waiver should be obtained in writing and without any duress.

Little addendum to the above. It would now seem that the upskirt photo, as practised by a certain section of celebrity photographer, often when the subject is exiting or entering a limo, and sometimes referred to as a ‘wardrobe malfunction’, will be illegal from April 12.

Contempt of Court and the challenge of social media

Posted by on in Contempt of court, Media Law, media law training, Newspapers, social media, Uncategorized1 Comment

WHEN the Contempt of Court Act made it onto the statute books in 1981 Twitter founder Jack Dorsey was five, Facebook’s Mark Zuckerberg was yet to be born.

Zuckerberg founded Facebook in 2004; Dorsey co-created Twitter in 2006.

Understandably then, the legislators of 1981 could have had no concept of what publication would mean in the age of the Internet. Yet here we are almost 40 years later applying that same legislation to a 21st century digital media.

And it doesn’t fit.

The Contempt of Court Act 1981 was a piece of legislation that attempted to strike a balance between the right of an individual to have a trial free from prejudicial publicity; and the rights of people generally to freedom of expression.

But then prejudicial publication could only be carried out by a handful of national newspapers and there were only two broadcasters in the UK – BBC and ITV (albeit ITV was made up of a number independent regional broadcasters).

Even if you added in regional newspapers you are still dealing with publishers that might number in the tens that might publish something prejudicial about a particular case. Keeping a lid on things was relatively straightforward and the occasional prosecution had the effect of sharpening awareness among those titles that might be pushing at the boundaries.

Now publishers number in their millions. Ordinary users of Facebook or Twitter may not have follower numbers that rival a newspaper’s circulation, but that is to dismiss the viral effect of social media. One tweet is retweeted by ten followers, and ten each of theirs retweet it, and so on. Soon you get up into newspaper circulation numbers.

But for contempt, and other laws, it is not just the viral way in which posts are spread. More pernicious is the way in which users reinforce each other’s behaviour, which can have the effect of encouraging, or condoning, breaking the law.

You see this happening quite often in online communities and it is one of the factors that contribute to so-called ‘trolling’ behaviour.

It works something like this:

  • One user will post something that is close to what is acceptable behaviour, and nothing happens to them.
  • A second user decides they will push it a bit further, still nothing untoward happens.
  • Other users might make encouraging remarks, they might ‘like’ or repost the offending comment.
  • The effect of the platforms algorithms mean all those users interacting in this way get more content like this pushed at them, they all see more of each other’s posts and comments on this subject and others like it.
  • The effect of this is to create a micro-community that validates and normalises this behaviour. They don’t see anything wrong with it because they are all doing it. The normal checks and balances that operate in society to prevent us behaving in a bad way cease to operate in an online community that takes this turn.

You see this with trolling behaviour and harassment online and you see it in commentary on court cases and crime. This is a real problem for contempt law.

Of course, one might take the view that if people behave so badly they can take their knocks with a prosecution for contempt and a hefty fine or even a prison sentence.

The threat of prosecution kept newspapers and broadcasters in line for the most part, why shouldn’t it work for social media?

Newspaper editors and broadcasters sat up and took notice when someone was prosecuted for contempt. It was, and is, reported by the trade press. In-house lawyers would send round memos reminding staff of contempt law. Trainers like me would incorporate examples into our sessions to highlight the dangers.

None of that happens on social media. Facebook doesn’t put out a memo; Twitter doesn’t offer its users any training. To do so would be to accept a responsibility for what their users do and that is a precedent the platforms do no want to set.

So users, unless they keep a very close eye on such matters, do not get to hear about contempt prosecutions. Worse still they do not know about court orders that are meant to have the effect of keeping publishers in line.

When Jon Venables and Robert Thompson were released after a life sentence for the kidnap, torture and murder in 1993 of James Bulger they were made the subject of lifelong anonymity orders forbidding anyone from publishing a picture of them as adults, or revealing anything about their whereabouts or their new identities.

Last month, the actor Tina Malone was issued with a summons to the High Court after allegedly posting a picture said to be one of the killers. Malone has said she did not know sharing such an image was illegal.

In another case Cleveland Police appealed to social media users to show restraint in the wake of the death of a young man in Teesside. Elsewhere trials have been relocated as a result of widespread prejudicial commentary on social media.

Ignorance of the law is no excuse, but generally we all have an idea about the laws we should not be ignorant of, be it anything from speeding to murder.

The orders placed on Venables and Thompson were made 18 years ago. Journalists know about them, it is our job to do so. Is it reasonable to expect people who do not work in media, who might not even have been born when James Bulger died or his killers were released, to know about them as well?

News organisations train their staff to know all this. I know, because I deliver the training to many of them.

You don’t get a beginners’ media law course when you open a Facebook or Twitter account. Perhaps you should, but then, again, to provide this would be accepting a degree of responsibility for what users do, which thus far platforms have scrupulously avoided.

The platforms are uniquely placed to deliver easy-to-understand guidance to their users to try to avoid some of the most outrageous examples of contempt. If contempt law is to survive, maybe it is time they reconsidered their refusal to do so.

  • If you are worried about contempt of court, this post – Contempt of Court and How to Avoid It, is far and away the most popular one on this site, so you are not alone and hopefully will find it as useful as others have.

Seven deadly sins of court reporting

Posted by on in Contempt of court, Media Law, media law training, Newspapers, Uncategorized3 Comments

COURT reporters, what are they then?

Well you may ask, because if you believe reports of the industry, they are a dying breed.

But then, they were dying back in the days I was numbing my backside on the press bench of Wrexham Magistrates Court as a wet-behind-the-ears junior reporter on the Evening Leader.

It is true that as the regional press has de-staffed, sorry, management-speak, cut jobs, increasingly the dedicated court reporter posts have decreased.

But the courts do still get reported, and my first editor, Reg Herbert, who would demand ‘every cough and spit’ from Wrexham Mags, I still believe that they are the best free show in town. All human life is there and it is no coincidence that Dickens was a court reporter, his novels populated by the characters he came across in the courts.

If you are a junior reporter heading to court for the first time, or a blogger who has spotted a gap in the market, here are seven deadly sins all court reporters should avoid…

  1. Don’t use your mobile phone. You can, usually, use your phone to file copy by email, or to text your newsdesk. The courts have been told that this should generally be allowed, and only in special circumstances should it be forbidden. If you have your phone turned on, make sure it is switched to silent. One reporter was more than a little embarrassed when, during the sentencing of a murderer, his phone went off playing a rendition of The Gay Gordons
  2. Don’t use your mobile phone as a camera. That souvenir selfie of your first day as a court reporter could see you spending your first day in the cells below. Photography during court proceedings is against the law, as various notices around the court will tell you. Taking a photograph with the court administration’s permission – such as of a retiring magistrate in an empty courtroom for a feature – would be fine. Thanks to Twitter follower Tom Webb for reminding me, you’re not allowed to use a phone, or any other device to record the proceedings either. Get a notebook, pen, and learn shorthand.
  3. Don’t bow. You will see officers of the court – the lawyers and ushers, bowing to the judge or magistrates as they leave or enter the court. I have seen some court reporters do this, but there really is no need. You are not involved in the proceedings, you are just reporting them.
  4. Don’t be intimidated. Court staff are overworked and can, sometimes, be less than helpful. Remain studiously polite, but insist on the information that you need in order to produce an accurate report of proceedings. Courts are under instruction from the Ministry of Justice to make court lists available, so make sure they give them to you when you need them.
  5. Don’t forget your law. You’re not expected to know the criminal law inside out, but you needs to know the basics for court reporting. Libel, specifically privilege defences for court reporting; contempt of court; reporting restriction on preliminary hearings; anonymity rules for children and sexual offences to name but a few. This is where I come in, I run training sessions on all this and I’m cheaper than getting a massive fine or paying libel damages. See my training page for details of the courses I run.
  6. Don’t forget court reports are about people, not the process. Don’t get caught up in the terminology or the complexities of the law. Tell the human story about the offence, the perpetrator, the witnesses and the victims.
  7. Don’t use a picture of a gavel to illustrate a court report. This is a courtroom, not an auction and they don’t use them in UK courts, ever. I’ll laugh at you if you do, as will the Twitter account @igavels, which was set up to highlight such abuse.

Why the media should not back Brexit

Posted by on in Contempt of court, Media Law, media law training, social media, Uncategorized2 Comments

THIS is a hard sell, I know, but Paul Dacre, editor of the Daily Mail, should love the European Union.

Every day, he, along with every other UK newspaper editor, should pen a love letter to the bureaucrats of Brussels.

They should be praying fervently that on June 23 we vote Remain and stay in the EU.

Why? Because it is the only thing keeping him, and every other editor, website owner and blogger out of jail.

Anyone who allows third party content on a site under their control ought to give thanks we are in the EU where they are under the protection of the catchily-titled Electronic Commerce Directive 2000/31/EC.

This is a very useful bit of Brussels bureaucracy that was enacted to protect those providing platforms for others to access internet publication. So it protects ISPs and it has always protected newspaper forums – where readers get to express an opinion online about content.

Now, I don’t know whether you’ve ever been ‘below the line’ on a Daily Mail story, but it can be a very, very strange place to be. On stories involving race, gender, immigration and refugees, it is like lifting a rock on society and seeing the ugly stuff scuttling about underneath.

And this is not behaviour confined to the Daily Mail either. Recently The Guardian analysed comments made on stories on its site and while much was positive, there was nevertheless a range of comment that was ‘crude, bigoted and vile’.

The directive also protects any website with a comment function and it protects bloggers like me when people comment on my posts. As I said, enormously useful and given to us by the EU.

Often the main concern about online forums is the threat of libel and we do have our own homegrown bit of law that protects us in the Defamation Act 1996. The defence of innocent publication says that as long as you did not know the material was there and removed it promptly when notified, you do not have a liability.

But this very good bit of law only protects us against libel, nothing else.

Now, let’s delve ‘below the line’ again in a newspaper forum. You will soon see all manner of legal liability is to be found there, not just libel.

You can find contempt of court, harassment, inciting hatred, breaches of privacy and copyright violation to name but a few. Now, to be prosecuted for some of these offences it would need to be shown that we had some form of intent to commit an offence. But with some offences, such as contempt of court, there is no such requirement – if you’ve got the content on your site, you’re guilty.

The beauty of the EU directive is that it protects you from all legal liability for user-generated-content, not just libel.

At the moment if you are hosting a site which attracts content like that, you are protected by the EU Directive, so long as you are acting as a ‘conduit for publication’. If you are not actively editing or pre-moderating the content then you do not have any legal liability for it unless you leave it up on your site once you have been notified of it.

This defence also protects platforms like Twitter and Facebook against liability for anything posted by their users.

So anyone running a ‘lively’ forum better hope we stay in the EU.

If we don’t, then start hiring moderators, lots of them.

Reporting restrictions in Ambridge

Posted by on in Contempt of court, Media Law, media law training, Newspapers, The Archers, Uncategorized1 Comment

PITY the poor court reporter on the Borsetshire Echo.

After years numbing their backside on the narrow press benches of that farming county’s courts, faithfully recording drink driving, poaching and a bit of argy-bargy of a weekend outside The Bull, they suddenly have a much bigger story on their hands.

You don’t have to be an Archers fan to know this tale of country folk has taken a sinister turn recently, culminating in Helen Titchener, nee Archer, plunging a knife, twice, into her abusive husband, Rob, almost causing a demise that many fans would have deemed rather timely.

The storyline, which has been building for a couple of years, has done a great deal to raise awareness of domestic abuse and the sort of ‘coercive control’ exerted by Rob on Helen. The reaction from the public has been extraordinary, summed up by the amazing response to an appeal launched by Paul Trueman, @paultrueman74 on Twitter.

He set about raising £1,000 for the charity Refuge, which helps victims of domestic violence. He set up a Justgiving page and the sum raised now stands at more than £127,000 .

Rob survived, Helen is behind bars awaiting trial, and her brother Tom has had a characteristically good whinge about the press coverage of his sister’s situation.

But what can the media report, if anything? Tom, while perusing the newsstands on the Sunday after Rob’s near-death, was horrified at the coverage – “They’re not meant to print anything,” he said, setting the teeth of this old court reporter on edge, and not just because of his shrill tone.

I doubt very much that Helen’s alleged offence would have attracted the attention of any national newspapers at this stage. She didn’t kill him, and there is nothing about her, or Rob, which would normally attract the attention of a national newspaper news desk, in my opinion. But let’s give the scriptwriters that bit of licence, as it allowed Tom to give the redtops a bit of a kick, which always plays well to middle England of a Sunday as they listen to the omnibus edition of The Archers, while reading their….er….redtops.

What then, are the rules on reporting this offence?

Firstly, when Helen was arrested, that means that proceedings in the case had ‘become active’ – the judicial ball is rolling and at some point in the future, Helen might face judge and jury. That means that any reporter working on the story ought to keep a weather-eye on the Contempt of Court Act 1981. This says that once proceedings are active you must not publish or broadcast anything which creates a ‘substantial risk of serious prejudice, or serious impediment’ to the proceedings.

So, what does that phrase mean? Is it a blackout on all coverage of the case?

Well no. The Contempt of Court Act was brought in to substantially replace the old common law of contempt, which was too draconian, and the new statute was intended to strike a balance between rights to a fair trial, and rights to freedom of expression.

So, as long as any detail you publish is not seriously prejudicial, then it should not cause you any difficulty. Note that prosecutions for contempt have to be authorised by the Attorney General, and cannot be taken against you by Borsetshire’s barmy magistrates, or even crown court judges – they have to refer it to the AG.

The sort of details that would be prejudicial are:

  • PIctures, E-fits, descriptions or video of a defendant ‘where identity is at issue at trial’ ie the accused is saying ‘it wasn’t me guv’nor’. There may be an ID parade and if you have published a photo, that reminds the eyewitness who to pick out, and it destroys the admissibility of their evidence. The Sun was fined £80k for this, and its then editor Kelvin MacKenzie was fined £20k. This is clearly not the case with Helen, but we often don’t know that for certain in the early stages of an inquiry, so you have to err on the side of caution.
  • Assumptions of guilt. Helen is not yet ‘the attempted murderer’ it is an allegation and can only be reported as such.
  • Evidence that will be disputed at trial. Be it Helen’s threat to kill her husband on Maundy Thursday, or Kirsty’s tales of Rob’s abuse that you have unearthed, you cannot report them yet. They cast the defendant and the victim in alight that might sway a juror, so should be avoided until the trial concludes.

Proceedings remain active until sentence according to the Act, but in practice you can run your background articles as soon as Helen is acquitted and carried shoulder-high from court…..sorry, or found guilty. Once either of these things happen, the jury is out of the equation and can no longer be influence by what you publish.

When Helen appears in court a different set of restrictions apply to what can be written. In the preliminary hearings before trial a report is mean to be restricted to:

  • Name of the court and magistrates
  • Name, age, address, occupation of the defendant
  • Names of the lawyers involved
  • Charges or a summary of them
  • What the court decides about the case – adjournment, allocation for trial etc
  • Arrangements for bail – residence, curfew etc
  • Whether legal as was granted

Pretty thin stuff, very procedural, as you can see. But if the Borsetshire Echo’s court reporter has anything about her, or him, they won’t let those restrictions get in the way of giving their reader a taste of court.

Descriptive passages detailing the oak-panelled grandeur of Felpersham Magistrates Court will be fine. Describing the organic, tie-dyed t-shirt that Helen wore for her first appearance will be ok too. Her mother, Pat, weeping in the public gallery, sitting beside Tony wringing his hands, again, will not be a breach of this law. What would be a problem here would be reporting any detail of prosecution evidence against Helen. A potential juror might read it and be more likely to find her guilty as a result.

However, if Helen’s counsel Anna Tregorran QC, wants to state during proceedings, or after, on the steps of the court, that her client would be vehemently denying the charges and expected to be acquitted on due course, that would be OK to report. Jurors are told to presume the defendant is not guilty and Ms Tregorran’s statement is merely affirming that. However, if Rob’s venomous mother Ursula, were to make a statement proclaiming that Helen was bang to rights, it’s a fair cop, she’s going down – that would not be allowed.

I also foresee a potential problem when this case comes to trial, in the shape of Helen’s young son, Henry. He witnessed the entire incident and will be called as a witness at trial. In such a case it would be very likely that the court would choose to anonymise him using a Section 45A order of the Youth Justice and Criminal Evidence act 1999. This would make reporting his evidence a little difficult.

The law says that any detail which allows someone to identify him is an offence. In such a case, even his age might be seen as an identifying detail. Caution is needed, and if in doubt the Echo’s court scribe ought to get some guidance from the judge on what details about Henry are likely to attract his ire.

One thing to note. Reports of trial proceedings are protected against a libel action by a defence called absolute privilege, for a fair, accurate report published at the same time as  the proceedings. So when, as I fully expect, Anna Tregorran shreds Rob Titchener in the witness box, revealing him as an abuser and a rapist, the Echo is free to splash that across its front without fear of Rob going to law.

I hope the Echo’s staff find this useful. If the editor is reading, I could squeeze a law refresher for the staff in before trial commences.

All of the above assumes that the scriptwriters aren’t going to throw us a curve ball and have Eddie and Joe Grundy spring her from a prison van and hide her away in the wilderness of rural Borsetshire. We live in hope.

Sexual offence anonymity – newsrooms beware

Posted by on in Media Law, media law training, social media1 Comment

JOURNALISTS need to be very careful with any detail they report about an alleged victim of a sexual offence, as the conviction of former Sun Editor David Dinsmore demonstrates.

The Sun published a photograph of the 15-year-old victim of Adam Johnson- the Sunderland and England international who was convicted of sexual offences against her last week.

The Sun had done a number of things to try to ensure she could not be identified from the photo – they had changed her hair length and colour; they had removed the entire background of the original photo and they had Photoshopped her onto an entirely unrelated background.

However, this was not enough to avoid a decision to bring an action and for the former editor of The Sun to be convicted.

What journalists should note from this case is the impact a Facebook audience had on identification of the victim. The court said that some Facebook users familiar with the image would still recognise her despite The Sun’s efforts.

It is important to understand the test that is applied to determine whether a victim has been identified here. It is not ‘can any man or woman in the street identify the victim from details in the report’. The test is ‘can someone who already knows this person realise they are a victim as a result of any detail in this report.’

People who know the person will have lots of knowledge of context and background which might allow them to identify a victim where the ordinary man or woman in the street would not.

For example, one newspaper was prosecuted for including the fact that the victim in a case had cerebral palsy. This was given in open court and no order was made preventing publication – the courts expect publishers to make their own judgement here and to exercise proper caution.

That detail would not allow the whole world to identify the victim, but in the context of the case, knowing who the defendant was and the area in which the offence was committed, it was a detail leading to identification and the publication was convicted.

Some points to remember about this area of law:

  • A victim gets legal anonymity as soon as the report the offence
  • That report does not have to be to the police, it could be to anyone – a doctor, teacher, work colleague, passer-by – any third party
  • Anonymity lasts a lifetime and is unaffected by the outcome of any proceedings
  • Adult victims can waive their anonymity, in writing
  • Child victims cannot give such a waiver and their parents or guardians have no legal power to do so either
  • An alleged victim who is subsequently prosecuted for an offence in relation to the report, such as perjury; perverting the course of justice or wasting police time lose their anonymity
  • Prosecutions for identification are sometimes brought against the publication and the ‘responsible journalist’ which is often the editor, but chief subs, night editors and reporters have also faced such a prosecution
  • Prosecution is for a sexual offence

It is this final point that journalists should be particularly wary of – this is a criminal conviction for a sexual offence and can have a massive impact on a journalist’s life.

If convicted you have a criminal record which will come up when anyone does a DBS (formerly CRB) check on you. The result they will receive is that you have been convicted of an offence under the Sexual Offences Amendment Act.

One editor I know was facing such a prosecution and was planning a holiday to the US at the same time. He was told by the US authorities that he would not be granted a visa is he was convicted.

In many cases the CPS has dropped the case against the journalist where the publication itself enters a guilty plea. However, this did not happen in the case of David Dinsmore, a clerical error in this case meant The Sun escaped prosecution whereas he did not.

In my view this is an appalling piece of law. To equate what is often an accidental identification of a victim with an act of sexual violence is repellent. It is yet another piece of law used to criminalise journalism.

Of course journalists should take great care with victims and by all means prosecute them where they do not – but not for a sexual offence. It could quite easily be redefined in a Courts Act, or as a contempt.

Until that happens though, this is yet another area where great care needs to be taken by journalists.

If you want your newsroom properly trained to avoid this, and other legal problems, details of the courses I offer can be found on the Training page.

Worrying orders of the court

Posted by on in Media Law, media law training, NewspapersLeave a comment

A CASE in the magistrates court on the Isle of Wight should cause concern for reporters covering the courts.

The case, detailed here in Hold the Front Page, concerned neglect of a child, and at an earlier hearing magistrates had imposed a S39 order under the Children and Young Persons Act 1933 anonymising the child.

This has the effect of anonymising the mother of the child as well, because you cannot practically report the case in such circumstances and name the mother, because it will lead to the identification of the child.

The Isle of Wight County Press wanted to challenge the order, as it is usually accepted that very young children, in they case they were one and two, are too young to be affected by negative publicity and do not need such an order to be made. This is set out quite clearly in the Judicial College’s publication – Reporting Restrictions in the Criminal Courts – every court reporter should have a copy of it.

However, as is detailed in HTFP, the reporter in court was ‘put off’ by the clerk who said there were no new facts to warrant reconsidering the order. Note to reporters – do not be ‘put off’ insist on the court at least considering your request.

In my view what is concerning about the case though is not the court’s failure to hear the paper’s objection, but it’s reasons for imposing the order in the first place.

The magistrates placing the order were concerned that online publication mean that a very young child might be subject to adverse effects of publicity at some time in the future.

This line of reasoning is not new. I have heard it expressed now a number of times by judges and at Law Commission seminars. There is clearly a concern that the cliche of today’s newspaper being tomorrow’s chip-wrapper no longer holds true and that online archives are changing attitudes.

I expect this issue to emerge again and again in years to come and the media need to come up with a good answer, or the courts will continue to shut down their reporting.

My thanks to Rob Preece @RobPreeceOnline for pointing this case out to me.

Getting a defendant’s address

Posted by on in Media Law, media law training, NewspapersLeave a comment

This is a quick post on what to do if a court is obstructive in providing details of a defendant, including their name and address.

In the various training sessions I carry out for media, this is a fairly constant complaint – that magistrates, judges and court staff are sometimes reluctant to give reporters access to very basic details about a defendant.

There are some very limited circumstances in which a court can restrict reporting of some details about a defendant, but these are exceedingly rare, and in any event should be enforced by the relevant court order, allowing for representation from the media.

This is not the situation I am talking about here. I am told by many reporters in different parts of the country that when they ask for a defendant’s address in particular, they are told that the court will not provide that information even where there is no legal reason whey they should not do so.

Any judge, magistrate or member of court staff behaving in such a manner is wrong and here is why.

Firstly, it is contrary to the principles of open justice. In normal proceedings everyone is properly identified – defendant, witnesses, judges, magistrates and yes, even the lawyers.

Secondly, a defendant’s address is part of his identity, it differentiates him from other people of the same name. This was stated very clearly by the Record of Liverpool David Clark, in R v Carroll in 2000, where a defendant fearing reprisals wanted his address to be withheld.

Thirdly, a court behaving this way is acting in defiance of its own rules on reporting restriction. Any reporter facing this situation should refer the court to this document – Reporting Restrictions in the Criminal Courts – which sets out their obligations.

See page 23, which explains the requirements on the courts to make lost available and that, “At a minimum the lists should contain each defendant’s name, age, address and, where known, his profession and the alleged offence. Courts will not breach the Data Protection Act 1998 by providing journalists with such information.”

It is perfectly clear what the courts should provide. Any judge or magistrate who objects to providing this information really ought to take the matter up with the Ministry of Justice and refrain from restricting information on a whim.

If you want me to train your staff in challenging obstructive courts, and other media law matters, contact me at davidbanksmedialaw@gmail.com

IPSO, what’s the difference?

Posted by on in Journalism Ethics, media law training, NewspapersLeave a comment

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.