Avoid legal trouble
MEDIA law “isn’t the tablets found by Moses, media law is politics all the time”. Tim Crook, senior lecturer in law at Goldsmiths College, said during his whistle-stop tour of areas of media law to watch out for if you want to stay out of trouble. He was speaking at London Freelance Branch’s April meeting.
Tim has a mission to demystify media law, to enable journalists to take control of it. He has resisted the temptation of becoming a qualified lawyer - he has worked as a print and broadcast journalist for many years, and was the first broadcaster to announce the death of Princess Diana.
|Tim Crook (left) explains
Under the terms of the ruling on one of the cases that Tim fought on reporting restrictions, he isn’t even allowed to tell us if he won. Judges now have the power to delay or censor reporting of aspects of court cases under contempt of court laws, if they’re lobbied by defence lawyers. In contempt law, the power is all with judges, lawyers and police. Court orders restricting court reporting have over the years become standard practice, developing a cult of anonymity in court proceedings, especially with regard to the identity of witnesses. Most police witnesses to the shooting of Jean Charles de Menezes, for example, “will never be identified”.
“I haven‘t got much good news for you” on defamation either, admits Tim. Journalists have lost all the power in this area as well. The burden of proof is with journalists, and libel lawyers’ conditional fee agreements (work on a a “no win, no fee” basis) ensure that those who are not rich and powerful cannot access the libel laws. The costs of libel actions can be 120 times more in the UK than in any other country.
While precedents in the last decade are establishing a public interest defence of “responsible journalism”, few insurance companies would approve taking cases to a jury when the legal costs of defending an action are at least ten times as large as any damages you may have to pay. Tim recommended the NUJ's libel insurance policy, but admitted that while it may “stop an aggressive, powerful claimant from taking your mortgage and car, I’d be very surprised if that policy will allow you to fight for truth” in the present legal climate.
Article 8 of the European Convention on Human Rights has been used by the powerful to guard their privacy since 2004, as we have seen most recently with the Max Mosley judgement - he won £60,000 from the News of the World, which also had to pay £900,000 to cover its legal costs and Mosley's. Tim traced the alarming rise of restrictions based on privacy back to “the demonising of photographers that was so intense” following the death of Princess Diana in 1997 and the ‘moral panic” that followed. A series of rulings at the European Court of Human Rights, including one passed by a slim majority in favour of Caroline of Hannover in 2005 on photographing her in public, then followed.
Tim was impressed by the collective expertise in the Branch on copyright law. A member asked whether you breach copyright by taking pictures of an art exhibition opening that includes the works on the wall. “A couple of Cecil Beaton pictures on a wall with people drinking cheap wine is OK if it (the work of art) appears ‘incidentally”; Tim advises, however, that if you are covering an exhibition you should get permission from the exhibitor in advance, stating what your’re using the pictures for - news or a review. An email from the organisers before you turn up, stating that photographs are OK, “avoids anxiety.” Could you get into trouble over copyright for photographing graffiti or “street art”? “Ah, there’s a MA in philosophy!”, says Tim. Street art belongs to someone, but they’re unlikely to sue, since the art itself is evidence of their law-breaking.
You do have a qualified right to protect sources. NUJ members such as William Goodwin have won cases on this at the European Court of Human Rights. You should make it clear with your source from outset “what you can protect, how far you can go”. When dealing with sensitive sources, “most investigative journalists have a mobile dedicated to that source, which they throw away” after the investigation, “no digital trail, no email to source, no credit card purchases of petrol on the way to meet sources, nothing on a computer.”
On dealings with the police, Tim is of the opinion that “the power is now with the police authorities. [They are] more violent, more dangerous, we are more vulnerable.” Under the Police and Criminal Evidence Act police have to go to court to get “journalistic material” out of us, but “99 per cent of time they get the order.” Tim recommends being reasonable and polite with the police, but our best tools in dealing with them are evidence, professionalism and “the solidarity of our union”
Tim also advised that journalists “avoid doodles” in their contemporaneous notes. The BBC lost a very expensive libel case because the reporter had scrawled “bollocks” in the notebook for an interview, which was ruled “evidence of malice.”