David Banks Media Law

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

Tag: IPSO

Identifying children involved in crime

Posted by on in Journalism Ethics, Media Law, social media, Uncategorized, Young offenders1 Comment

THIS post is based on a series of tweets I sent out from my @DBanksy account after a video was posted of an alleged bullying incident involving two schoolboys in Huddersfield.

The alleged victim is a Syrian refugee and the video quickly went viral. There appeared to be a lot of confusion about the legal and ethical issues surrounding the identification of the two boys, which I tried to clarify in the twitter thread.

I thought it would be useful to draw them together here.

Firstly, the law, because it’s pretty straightforward. There is no law stopping you from identifying a child caught in the commission of a crime, which comes a surprise to some, but that the way the law stands at the moment.

A child is not anonymous when they commit the crime; not when they are interviewed by police or arrested; not even when they are charged. They only get anonymity when they step through the doors of a youth court and S49 of the Children and Young Persons Act 1933 applies.

Here it is:

There is a law on the statute books that would close up this loophole and give a child anonymity as soon as an investigation has begun, that is Section 44 of the Youth Justice and Criminal Evidence Act 1999, and here that is…

That would give automatic anonymity to both the alleged offender and victim as soon as there was any police involvement. However, that section of that Act has never been activated, so the relevant law is the 1933 Act which only grants anonymity on appearance in youth court.

This could engage issues of privacy. A school field is, I would argue, a place where there is a reasonable expectation of privacy. However, it is also arguable in relation to the alleged bully, that this is a matter of public interest.

I’m not convinced how strong the public interest is in actually identifying the alleged bully is here. And it certainly does not defend identification of the alleged victim.

So, on to ethics. The Editors’ Code of Practice, as administered by has a few things to say about children. Firstly Clause 6, here…

Then Clause 9 (iii) here…

It is possible to publish material which might otherwise breach these clauses, if it can be show it is in the public interest to do so, and detecting or exposing crime *is* a matter of public interest as defined by the Code.

However, editors are expected to demonstrate an exceptional public interest if they want to override the normally paramount interests of children under 16.

With regard to Clause 9 (iii) anonymity only applies after arrest, and as that has not happened here, as far as we know, does not yet apply. It can also be argued that the identity of the alleged offender is already in the public domain.

So, to sum up, legally you can identify the two boys. Ethically I think it is arguable that you can identify the alleged offender because his identity is already in the public domain. I do not think you should identify the alleged victim.

This is, of course, all a little academic as they have both been identified widely on social media, where no ethical codes exist and where the law often struggles to gain any traction either. Here endeth the lesson.

If all this is useful, please feel free to share widely, but please credit my site and link back. Remember I am available to run training, in person or online, in this and a wide range of media law matters – see details on my training page. I also welcome writing commissions on this or any other media law topic, drop me a line at davidbanksmedialaw@gmail.com.

Distressing images from the Westminster terror attack

Posted by on in broadcasting, IPSO, Journalism Ethics, Media Law, Newspapers, social media, Uncategorized2 Comments

THE attack in Westminster has, like many such incidents before it, produced a number of distressing images and has been the subject of some complaint, especially on social media.

 

The newspaper front pages included pictures of the police officer who suffered fatal injuries in the attack receiving treatment from medical personnel and, notably, by the MP Tobias Ellwood who was one of the first on the scene and who tried, in vain, to save the officer’s life.

There were images of the attacker receiving treatment, and also pictures from Westminster Bridge of a number of people who had been hit by a vehicle driven at speed across the bridge, striking dozens of pedestrians, killing and injuring many.

One piece of video footage shown by a number of outlets, including the BBC, and posted to social media showed, from some distance, the attacker’s vehicle driving across Westminster Bridge, and then a woman could be seen jumping, or being knocked off the bridge and landing in the Thames. She was rescued and was later being treated for serious injuries she received.

Many of the pictures emerged first on social media where they were widely shared. Social media has few ethical constrains and we can only rely on the conscience of those posting.

Subsequently though, this social media imagery as well as pictures produced by their own staff and freelances was used by newspapers and broadcasters on their various channels, social media feeds, online and in print. Here it is subject to the ethical codes to which they must adhere.

The most relevant codes are the BBC Editorial Guidelines, the Ofcom Code and the Editors’ Code of Practice.

The BBC Editorial Guidelines say this: We will respect human dignity without sanitising the realities of war, terror, emergencies and similar events.  There must be clear editorial justification for the use of very graphic pictures.

The Ofcom Code says:

Suffering and distress

Broadcasters should not take or broadcast footage or audio of people caught up in emergencies, victims of accidents or those suffering a personal tragedy, even in a public place, where that results in an infringement of privacy, unless it is warranted or the people concerned have given consent.

People in a state of distress should not be put under pressure to take part in a programme or provide interviews, unless it is warranted.

Broadcasters should take care not to reveal the identity of a person who has died or of victims of accidents or violent crimes, unless and until it is clear that the next of kin have been informed of the event or unless it is warranted.

The Editors’ Code of Practice, enforced and adjudicated by the Independent Press Standards Organisation, says:

Intrusion into grief or shock

In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.

I did see some people arguing that no pictures should be used of the scene, even where the dead and injured could not be reasonably recognised. This, I think, is not realistic, or desirable. Of course as a journalist or broadcaster, one can describe the scene in words alone, however, a picture or moving image conveys so much that words cannot. It informs us of the human impact of such an event. People skate over words, pictures halt them in their tracks and increase their understanding of an event.

The question then is did the imagery used contravene any of these codes?

With regard to the pictures of the police officer, PC Keith Palmer, in all the pictures I have seen, the officer’s face is not visible in any of them. No-one seeing them could realistically identify him from them. Of course those close to him might have feared it was him, but then so, I am sure, did the families of many other officers who serve in and around Parliament.

If an individual at the scene posted to social media an image from which he could be identified, that is a matter for their conscience.

The video footage of the woman who fell into the Thames was shot from a long distance. She could not be recognised in any way, nor could any of the victims on the bridge be identified from this footage. What it showed was the speed with which the car was driven across the bridge. I do understand that it would distress the family of the woman might feel, once they know it was her they were seeing fall. But surely the source of their distress is the fact she was one of the victims of the attack, not that she was included in the media coverage of it?

The images used of victims on the bridge, as far as I have seen, are not identifiable. Faces have been pixelated by the media using them, or else they have chosen images where the person’s face is not visible. Of course people whose friends and family were in the area will be distressed and anxious knowing they were there, but we cannot stop reporting because of this. If anything there is an even greater need to put out as much accurate information as we can. From what I saw of coverage, that is what newspapers and broadcasters tried to do, and in a confused, frightening and shocking situation, they did their job well.

Because of social media, it is perhaps easy to see this as a new moral dilemma for those covering incidents like this, but it is far from it. We have had to confront the ethics of using distressing imagery for many years now, probably since the camera was invented.

Many will remember the image of the ‘falling man’ tumbling from the burning World Trade Centre on 9/11. When terrorists attacked a school in Beslan, the siege and subsequent deaths of 385 people, including children was played out on live TV. When Kim Phuk ran screaming, burned by napalm, from her villlage in Vietnam, was photographer Nick Ut right to take her picture, given that many credit it with hastening the end of that war?

There are no easy answers, and journalists will always have to balance the public interest against a gratuitous use of imagery that is distressing. Now they have to make those decisions in the knowledge that someone else might have taken the same picture, but have no compunction about posting it on social media.

The Sun’s ‘Queen Backs Brexit’ splash – issues for IPSO

Posted by on in IPSO, Journalism Ethics, UncategorizedLeave a comment

A QUICK post on the dispute that has been thrown up by The Sun’s sensational splash claiming that the Queen support ‘Brexit’.

 

The Palace has complained over the story to IPSO on the grounds of accuracy.

A reminder of what Clause 1 of the Editors’ Code of Practice actually says:

1.   Accuracy

i)  The Press must take care not to publish inaccurate, misleading or distorted information or  images, including headlines not supported by the text.

ii)  A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii)   A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv)  The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

v)    A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

I suspect that when IPSO considers this – assuming of course that no agreed remedial action has taken place -it will not boil down to a straight dispute with the Queen’s representatives denying she ever said such a thing and The Sun saying they stand by their sources.

I think that the crux of the matter will be the accuracy, or otherwise, of the headline.

If you read The Sun’s story it might be suggested by the Palace that it does not support the ‘Queen Backs Brexit’ headline. While it may suggest she holds Eurosceptic views which she has voiced in the two meetings mentioned in the story, this does not,in the Palace’s view, amount to ‘backing Brexit’.

It is to my knowledge, the first such complaint by the Palace on behalf of the Queen herself – though complaints have been made in the past on behalf of more junior Royals.

The Sun has robustly defended its story in the past couple of days, saying they had ‘other information’ that meant they were confident the story was accurate. If that information was from a confidential source that could not be mentioned in the story itself it might be enough to defend the story itself, but I am still not sure it shores up that headline.

Of course The Sun will got for the strongest headline possible – Queen expresses Eurosceptic views in meeting with MPs’ is not going to see it flying off the newsstands is it?

It will be a very interesting case to watch when it comes to IPSO for adjudication.

Finally, briefly, can we put to bed any suggestion that The Sun should not have run this story?

Some may think it was wrong for such information to be leaked, but any misdeed is on the part of those leaking the information, not The Sun in publishing it.

The Sun is a newspaper, and a very good one at that, and this is a very big story. If it is confident the story is right then of course it should publish it.

The big question is whether it will get away with that headline.

 

 

 

IPSO, Sunday Mirror and Brooks Newmark

Posted by on in Journalism Ethics, Media Law, Newspapers8 Comments

THE Independent Press Standards Organisation is being tested pretty early on in its existence after the revelations in the Sunday Mirror which led to the resignation of Brooks Newmark MP.

The story by now is widely known – he sent a picture of himself, or rather part of himself, to what he thought was a young woman, but which in actual fact was a reporter who had set up a fictitious social media account.

This raises a number of ethical issues, some of which I will try to discuss here, including subterfuge and privacy.

There are potential legal issues over data and the photographs of two young women used without their permission on the fake accounts, but they have been well covered elsewhere by Jon Baines among others, so I will only look at the ethical issues of their use here.

The core issue in this is whether the use of a fake account to contact Mr Newmark was justifiable. This kind of activity is covered in the Editors’ Code of Practice under clause 10 on subterfuge and the use of clandestine devices.

As a rule such tactics should only be used where it can be shown to be in the public interest to do so and it is the only way of obtaining the information.

Is it in the public interest to reveal Mr Newmark’s activity in this way? The Code of Practice defines public interest as covering, among other things detecting or exposing ‘serious impropriety.’

Mr Newmark was a minister of state and charged with bringing women into politics. If a man in his position is sending naked pictures of himself to a young woman he does not know, I think it is a matter of serious impropriety and therefore of public interest.

But that is not the end of the public interest test here. Importantly, there has to be a public interest reason established before any use of subterfuge. This is to prevent so-called fishing expeditions which are retrospectively justified by the wrongdoing they unearth.

On the face of it then, and as many commentators said, the Sunday Mirror story looked problematic. The fake Twitter account, under the name of Sophie Wittams, had followed a number of Tory MPs and had tweeted to them. It appeared that Newmark was the only one to swallow the bait. Critics said it was a classic fishing expedition, and therefore it was unjustifiable under the Code.

However, the reporter who had got the story was Alex Wickham, who works for the Guido Fawkes blog. Yesterday Guido posted an explanation of the story, which can be seen here.

In this explanation it is denied that this was a fishing expedition, but rather, acting upon information received, it was targeted on Newmark. The follows of other MPs were just to make the fake account look genuine.

IPSO a now has to pick its way through these two conflicting versions of events, but that is not as difficult as it may seem.

If Newmark was the target, not all the MPs, then there ought to be documentation – emails, notes or memos – which confirm that he was the target when the investigation was set up.

Furthermore, it ought to be possible to show that the way the fake account behaved toward innocent MPs followed for ‘cover’ was different to the way it interacted with Newmark.

Showing this preparation and behaviour would verify the account of events given by Guido, and it can be done without revelation of confidential sources who might have put them onto the story in the first place.

So, it will require a little forensic investigation by IPSO of the birth of this story and how it was pursued.

This still leaves the issue of the use of photographs of two women by the fake account. I think, on the face of it, this is difficult to justify ethically and Guido does not mention it in the defence published yesterday. Though the pictures were publicly accessible, their use in this way could, I think, be a breach of the clause of the Code which covers privacy. The editor-in-chief of the Sunday Mirror, Lloyd Embley, has already apologised for their use.

Critics of IPSO have already decided that this was a fishing expedition in breach of the Code. That might be true. It might also be true that there is an arguable public interest defence here.

I think we should wait to see what IPSO unearths.

* Declaration of interest. One of the many companies I work with is Mirror Group Newspapers, where I provide law and ethics training, and I occasionally write for The Daily Mirror and its websites.

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.

PCC adjudicates on journalist’s Facebook posts

Posted by on in Journalism Ethics, Newspapers1 Comment

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?

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

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