Crib sheets Flashcards
(200 cards)
1
Q
What is an innuendo?
A
a hint towards a hidden meaning which is defamatory to someone with specialist knowledge
2
Q
Criminal courts
A
deal with crimes against the state and hand out punishments
EG jail terms, fines etc
3
Q
What 2 principles does the law have to balance in civil and criminal law?
A
Open justice
The Right to a Fair Trial
4
Q
What are the 2 branches of law in England and Wales?
A
Criminal & Civil
5
Q
Civil courts
A
deal with and resolve disputes between companies, individuals, institutions etc
Judges decide the outcome.
6
Q
Scott vs Scott
A
Set a precedent for the principle of open justice - court proceedings should take place in public.
Mrs Scott wanted a divorce as she claimed that the marriage hadn’t been consummated as her husband was impotent. due to the sensitive subject this was dealt with in a private civil court proceeding. The divorce was granted. However, Mrs Scott was scared that Mr Scott was telling his family that the reason for the divorce was due to her lack of loyalty. Therefore she sent them recordings from the court proceedings. This was contempt of court and Mr Scott tried to sue her. The court were shocked that this case was dealt with privately.
7
Q
Court Structure of Criminal Courts
A
Magistrates’ courts, crown court, court of appeal, supreme court
8
Q
Court structure of civil courts
A
county court, high court, court of appeal, supreme court
9
Q
Article 6 of the European Convention on Human Rights
A
everyone has the right to a fair trial and should be presumed innocent until found guilty - therefore there are reporting restrictions.
10
Q
What are the sources of law?
A
custom - when the English legal system began in the middle ages, royal judges administered the ‘law and custom of the realm’. This developed into ‘custom law’ or custom.
Precedent - judges applied common law to the cases before them. This still happens, so decisions made in courts set precedents for other cases.
Statutes - Acts of parliament
Statutory Instruments - eg like emergency laws made during covid.
EU Law - England is still deciding which of these it will keep after Brexit.
European Convention on Human Rights (Human Rights Act)
11
Q
What are the 3 types of criminal offence
A
Summary offences = minor crimes dealt with in magistrates’ court eg shoplifting
Either-way offences = medium level offending that can be dealt with in either magistrates’ or crown court eg burglary
Indictable-only = most serious and dealt with in Crown Court eg murder
12
Q
What is the maximum jail sentence magistrates can impose?
A
1 year
13
Q
What is a jury?
A
12 people picked at random from the electoral roll.
14
Q
What is a judge?
A
Qualified lawyers with many years experience practising as barristers.
15
Q
What is a district judge?
A
A legally trained paid member of staff in a magistrates’ court
16
Q
What are magistrates?
A
lay volunteers who are unpaid
17
Q
Who prosecutes criminal cases?
A
Crown Prosecution Service (CPS)
18
Q
What is the standard of proof in all criminal cases?
A
the magistrates or jury must be ‘sure beyond all reasonable doubt’ that the defendant has committed the crime.
19
Q
Acquitted
A
found not guilty
20
Q
What happens if a jury cant come to a unanimous verdict?
A
After at least 2 hours and 10 mins of deliberation a judge can give them directions to a majority vote (10-2 or 9-1).
If they can’t agree there may be a retrial.
21
Q
Jail term
A
most criminals spend half sentence in jail and half on licence in the community if they behave.
22
Q
suspended sentence
A
The defendant walks free but must behave for a certain amount of time specified by the court. If they commit another crime in this time, the original sentence can be activated.
23
Q
Concurrent jail term
A
is served at the same time as the main sentence
24
Q
Consecutive sentnece
A
is served in addition to any original sentence.
25
Absolute discharge
convicted but no further punishment.
26
probation order
guilty party is monitored by probation service for period of time and may have to carry out community work or attend courses.
27
Conditional Discharge
No further punishment but some conditions imposed eg banned from a particular area.
28
Community Punishment Order
Carried out in the community, may include unpaid work or other conditions
29
Restraining order
Banned from going within a certain distance of someone (used in domestic abuse cases)
30
Binding Over
In effect a warning. Criminal is not convicted but must agree to keep the peace for a specified period of time (eg 12 months) and will lose an agreed sum of money if they don't.
31
Committal for sentence
Defendant must be sentenced in the crown court as magistrates feel their powers aren't enough
32
True or false, section 8C of the Magistrates' Court Act 1980 is automatic?
True
This automatic law protects what can be reported from preliminary hearings in the magistrates' court in relation to summary offences only.
33
What can you report under section 8C of the magistrates' Court Act 1980?
At a preliminary hearing of a summary offence you can report:
- Names of court and magistrate
- names, ages, addresses, occupations of defendants and witnesses
- charge
- Names of counsel
- if case is adjourned
- Date and place to which it is adjourned
- Bail arrangements (remanded or not)
- whether legal aid was granted
34
When is Section 8C of the Magistrate's Court Act 1980 used?
It is automatically put in place when there is a preliminary hearing in the magistrates' court in relation to summary offence when a Not Guilty Plea has been entered by the defendant.
35
What does section 8 of the Magistrates' Court Act 1980 prevent you from reporting:
In a preliminary hearing of a summary offence in a magistrates' court you cannot report:
- legal arguments
- Discussions about admissibility of evidence.
36
when do reporting restrictions under section 8C of the Magistrates' Court Act 1980 lapse (end)?
After the case is dealt with - defendant is either convicted, acquitted or case is dropped
37
What type of hearing do Section 52a of the Crime and Disorder Act 1998 reporting restrictions relate to?
Preliminary hearings at magistrates' court
38
Is section 52a of the Crime and Disorder Act 1998 automatic or need to be imposed?
Automatic
39
What can you not publish under section 52a of the Crime and Disorder Act 1998?
- Any evidence other than the charge - this could be ruled as inadmissible at an eventual trial
- Any previous convictions - this could blacken the defendant's character (be prejudicial)
- Anything that could be 'a risk of prejudice to the proceedings'
- Descriptions of a defendant - could confuse a witness about what they actually saw.
- Reasons for bail being refused - ok to bail was refused tho.
40
What is the punishment for breaching section 52a of the Crime and Disorder Act of 1998?
Unlimited fine!
41
What can you report under section 52a of the Crime and Disorder Act 1998?
- The same as section 8c of the Magistrates' court act 1980:
name, age, address of defendant and basic details of the charge (eg time and date)
- names of counsel
- court
- whether bail was granted
- whether proceedings were adjourned - and to which court
- basic protestations of innocence
- general colour to make article more interesting eg what defendant was wearing.
- if a defendant in an either way trial has elected for trial by jury
42
What kind of images of the defendant can you publish (section 52a of the Crime and Disorder Act 1988)
pictures/photos of them arriving at court or a sketch of them in court by a court artist.
43
What must you always include (under section 52a of the Crime and Disorder Act 1998) to ensure the defendant is innocent until proven guilty?
Everything is alleged.
44
What happens to reporting restrictions under section 52a of the Crime and Disorder Act of 1998 if the defendant pleads guilty?
The restrictions are no longer in place as there will not be a trial - no prejudice
45
are restrictions under section 49 of the Children and Young Person's Act 1993 automatic?
Yes
46
True or false, Reporting restrictions under section 49 of the Children and Young Person's Act 1933 relate to cases in both crown court and magistrates' court?
FALSE - they relate to youth court proceedings only.
47
What does section 49 of the Children and Young Person's Act 1933 prevent from being published?
You cannot ID anyone under 18 who is 'concerned in the proceedings'
You should not publish any matter which might ID them.
Specifically you CANNOT PUBLISH:
- name
- address
- educational establishment
- workplace
- still or moving image
- any other identifying detail.
48
True or False, under section 49 of the Children and Young Person's Act 1933 a dead victim (child) can be identified.
TRUE - they can be ID as they cannot be 'concerned in the proceedings' (judicial college guidance)
49
Reasons why section 49 of the Children's and Young Person's Act 1933 could be lifted by court
- To avoid injustice = ie at a defendant's request so publicity enables them with witnesses to come forward
- To help trace a young person at large (on the run)
- If it is in the Public Interest if defendant is convicted = ie if it would benefit the community to know the defendant or to ID a persistent offender.
50
When do restrictions under section 49 of the Children and Young Person's Act 1933 expire/lapse?
When the defendant reaches the age of 18.
51
When is section 45 of the Youth Justice and Criminal Evidence Act 1999 in action?
It is a discretionary power that makes reporting restrictions when a youth (witness, victim or defendant under 18) is 'concerned in proceedings' and appears in adult court (mags, crown or higher)
52
When do restrictions under Section 45 of the Youth Justice and Criminal Evidence Act 1999 lapse?
when the youth concerned in proceedings turns 18
53
What can't you report under section 45 of the Youth Justice and Criminal Evidence Act 1999?
- Name
- Address
- Educational Establishment
- Workplace
- Still or moving image
54
True or False, reporting restrictions under section 45 of the Youth Justice and and Criminal Evidence Act 1999 can apply to a dead child?
FALSE - Judicial College Guidance
55
Is section 45 of the Youth Justice and criminal evidence act 1999 an automatic reporting restriction?
No
Court must decide if it is necessary and a valid reason must be given
56
Which law did section 45 of the Youth Justice and Criminal Evidence Act replace in 2015?
Section 39 of the Children and Young Person's Act
57
What is the penalty for breaching section 45 of the Youth Justice and Criminal Evidence Act 1999?
Unlimited Fine
58
What does Section 45a of the Youth Justice and Criminal Evidence Act provide?
Lifetime anonymity for child witnesses or victims (NOT DEFENDANTS) in criminal cases 'in fear and distress' about giving evidence in court
59
Is Section 45a of the Youth Justice and criminal Evidence Act 1999 automatic?
No it is discretionary.
Can be imposed when the court think that the quality of evidence or cooperation will be negatively impacted if they are identified.
59
Under section 45a of the Youth Justice and Criminal Evidence Act 1999 what can you NOT publish?
ANY matter which might ID a child witness or victim
Specifically:
- name
- address
- educational establishment
- workplace
- still or moving image
60
Can someone waive their section 45a of the Youth Justice and Criminal Evidence Act anonymity?
yes - they can waiver their anonymity in writing if they are 18 or older.
However, this will be denied if their 'peace and comfort' were interfered with in order to get them to consent to waiver their anonymity.
61
What is outlined in Section 39 of the Children and Young Persons Act?
This is a discretionary reporting restriction banning the ID of under 18s concerned in civil court proceedings and inquests (NOT CRIMINAL COURT CASES)
62
When does anonymity under section 39 of the Children and Young Persons Act expire?
When the child turns 18
63
True or false, Section 39 of children and young persons Act can apply to a dead child?
False
64
What is the penalty for breaching section 39 of the Children and Young Persons Act?
Unlimited fine
65
True or False, victims or alleged victims of sexual offences are covered by an automatic reporting restriction?
TRUE
It is an offence to ID victims/alleged victims of sexual offences once an allegation has been made (doesn't have to be reported to police)
The Sexual Offences (Amendment) Act 1992
66
What are victims entitled to under the Sexual Offences (Amendment) Act 1992?
Automatic, lifelong anonymity
(they can waiver this in writing if they are over 16)
67
True or False, if a sexual offence is not proven in court then the victim can be identified
FALSE
They are entitled to automatic lifelong anonymity whether the offence is proven in court or not.
68
What is Jigsaw Identification?
A term used for when someone's ID is revealed to the public through media coverage despite them being protected by reporting restrictions.
This is because reports published by different media orgs contain different details so the info can be pieced together by consumers.
Term is also used when a singular news report contains too much detail and leads to the ID of someone that should have anonymity.
69
Clause 11 of IPSO Editor's Code
(Sexual Offences)
"The press must not identify victims of sexual assault or publish material likely to contribute to such identification unless there is adequate justification and they are legally free to do so."
70
Clause 7 of IPSO Editor's Code
(Children involved in sex cases)
press must not ID children (victims or witnesses) under 16, even if legally free to do so.
An adult defendant may be ID if it does not lead to the ID of a child victim or witness.
The word 'incest' must not be used where a child victim may be ID.
Care must be taken that nothing reported implies the relationship between the accused and the child.
71
Rule 1.8 Ofcom Broadcasting Code
(children in Sex cases)
Broadcasters should "be particularly careful not to provide clues" which may lead to the ID of children who should have anonymity by law "as a victim, witness, defendant or other perpetrator in the case of sexual offences featured in criminal, civil or family court proceedings."
Warns against jigsaw ID and that inadvertent use of 'incest' may ID a child.
72
When can reporting restrictions surrounding sexual offences be lifted?
- Victim over 16 can waive their right to anonymity by signing a written waiver (obtained without their peace and comfort being interfered with)
- Court lifts restriction because of 'substantial and unreasonable' burden in reporting proceedings fully and it's in the public interest to do so.
- Defendant asks court to lift restrictions to appeal for witnesses to come forward
- 'victim' is prosecuted for making a false allegation - lifted once charged with the offence.
73
How was Section 1 of the Sexual Offences (Amendment) Act 1992 amended by the 2015 Modern Slavery Act?
Originally lifelong anonymity applied to victims/alleged victims of 'human trafficking for exploitation' but this was amended so that the exploitation did not have to be sexual.
74
Section 1 of the FGM Act 2003
Makes it an offence to ID victim of FGM (female genital mutilation)
Restrictions and circumstances for lifting are the same for sexual offences.
75
Schedule 6A of the Anti-Social Behaviour, Crime and Policing Act 2014
Automatically bans publications from identifying a person in their lifetime as being a victim/alleged victim of the offence of forced marriage.
76
True or False, The Editor's Code of Practice, Ofcom Broadcasting Code and Impress Standards Code do not have a specific provision granting anonymity to victims/alleged victims of human trafficking, forced marriages or FGM
TRUE - there is no specific rule
BUT
If a media org breached legally-bestowed anonymity the relevant regulator would likely rule their privacy had been breached.
It is illegal to ID victims of these offences.
77
What is the relevant law when discussing Contempt of Court?
Contempt of Court Act 1981
78
What is strict liability contempt?
Where publishers can be prosecuted for creating a 'substantial risk of serious prejudice or impediment' regardless of intent.
Outlined in the Contempt of Court Act 1981.
Punishment = unlimited fine and up to 2 years in prison.
79
What is Common Law Contempt?
A criminal Offence used to prosecute those who interfere with the administration of justice - EG by ignoring court orders, bad behaviour in court, interfering with a witness etc.
80
When are proceedings 'active'?
- When someone is arrested
- Charged with a crime
- Warrant issued for arrest
- Summons from court issued.
- Written charge is served on defendant.
81
You must not publish anything which creates a _____________ _____ or _________ _________ or impediment to _______ __________.
1) substantial risk
2) serious impediment
3) active proceedings
82
In relation to contempt of court DON'T PUBLISH:
- Material or allegations about the suspect's or defendant's background or character
- Material or allegations which may be disputed at trial or not included in the evidence at trial.
- Any allegations that he/she has committed other crimes
- References to previous conviction(s)
- Any suggestion that he/she is a liar or has confessed to the alleged crime
- Any suggestion they might skip bail.
- Any info directly linking them to the crime - eg seen at the crime scene hours before
- Anything that makes them sound guilty - they were always fighting.
83
Relevant Contempt of Court publication case
Lee Bowyer and Jonathan Woodgate - interview with victim's father published before jury had delivered verdict.
84
Who are Contempt proceedings brought to?
Judges In Crown Court or above the Attorney General.
85
In relation to Contempt of Court, what should you avoid publishing?
- Quotes from witnesses giving a detailed account of events
- pre-trial publication of detail may make it less likely that a witness will honestly retract their evidence. (might be too worried to change their mind on details)
- Don't publish verbal descriptions or photos of any suspect/defendant, computer generated images or sketches.
This is because visual identification may become an issue at trial and publication of such info could be prejudicial.
- Be careful with headlines eg murder - check charges with police
-
86
What does impediment mean?
Anything which discourages witnesses from coming forward or giving evidence.
87
Under Contempt of Court What can you publish?
- Name of the persaon charged - not before charge (privacy eg Cliff Richard)
- Name of an alleged victim
- reference to a defendant's or alleged victim's address
- Non-controversial background about a defendant or alleged victim
- Where a body is found and the nature/extent of injuries and cause of death.
- 'Neutral' background info - eg residents were shocked etc
88
What is the fade factor?
The time between the arrest and when the trial starts (often 2+ years so jury may not remember details of the story)
Cannot be used as an excuse if there has been an 'impediment'
89
When does a case cease to be active?
- The arrested person is released without charge (if released under investigation the case is still active.)
- If no arrest is made within 12 months of an arrest warrant being issued.
- If the case is discontinued or defendant is acquitted or sentenced.
- defendant is found unfit to be tried, unfit to plead or court orders the charge to 'lie on file'.
90
True or False, Proceedings are still active until someone is sentenced?
TRUE,
Under the 1981 Contempt of Court Act proceedings are technically still active.
91
Can proceedings become active again after a conviction?
Yes, if an appeal is formally lodged within 6 weeks
If a retrial is ordered then the case is active again
92
When can a defendant appeal?
- Judge has misdirected jury on points of law
- New evidence comes to light.
- they want to appeal the length of the sentence.
93
What does IPSO say about linking a social media platform to a report on active criminal proceedings?
'the media org should warn readers against posting comments on the case that may prejudice the investigation or fair trial and should consider removing reader's ability to post comments about the report.'
94
Contempt of Court Defenses
Section 3
Section 4
Section 5
Section 11
95
Section 3
(Contempt of Court Defence)
Publishers can argue that if at the time of publication, having taken all reasonable care, they did not know and had no reason to suspect the case was still active.
Reporters must make sure to make regular checks with police to see if someone has been charged or arrested and be able to show this in court.
96
Section 4
(Contempt of Court Defence)
A person cannot be found guilty of breaching the strict liability rule in respect of a court hearing which is held in public and is:
- A fair and accurate report of legal proceedings (or an inquest)
- Published contemporaneously
- and in good faith - no malicious intent.
97
Section 5
(Contempt of Court Defence)
It is ok to publish a story about a matter of societal interest if there is an ongoing case, as long as you don't refer to that case or suggest the defendant is guilty.
98
Section 4 (2)
(Contempt of Court)
Judges/magistrates can put a temporary ban on reporting of court cases (or part of cases) to avoid 'substantial risk of prejudice to the administration of justice in those proceedings'
99
Section 11
(Contempt of Court)
A 2 step process in banning certain info:
1. court bans the use of name/matter within proceedings
2. if it is accidentally said the s11 order prevents it from being reported in the media.
very rare
Used in blackmail or extortion cases
100
What did Lord Woolf, Master of the Scrolls 1991, say about section 11 orders?
A S11 order should only be used where the administration of justice would otherwise be 'frustrated or rendered impracticable'.
In Attorney General V Leveller Magazine
101
Contempt in Civil Cases
- Less likely as most cases are tried by judges
- fewer juries used
- Cases become active when date for hearing is fixed
- Cease to be active when case is dealt with, abandoned or withdrawn
102
How is a jury chosen?
12 people aged between 18 and 75 are chosen at random from the local electoral roll.
103
Under the Juries Act 1974 what can jurors be prosecuted for?
- If they carry out research on a case that they're sitting on
- Reveal anything about jury room deliberations
- Visit the crime scene (unless directed by court)
- Attempt to contact the defendant (in-person or social media)
- Attempt to communicate with witnesses
- Penalty = unlimited fine and/or up to 2 years in jail.
104
Outline Section 20 (D) of the Juries Act 1974
Jury deliberations (civil and criminal) are secret.
It is an offence of contempt of court if journalists seek or disclose info about:
- statements made
- Opinions expressed
- Arguments advanced
- Votes cast by members of the jury
It is ok to publish the general impressions of a jury.
A media org can be prosecuted even if they don't mention the case in the story, simply the act of publishing a juror's thoughts or trying to find them out is enough for a conviction.
105
Which law prevents juror's thoughts from being published in an inquest?
Coroners and Justice Act 2009
106
What does section 41 of the Criminal Justice Act 1925 make illegal?
Taking photos or films, portraits or sketches in court or publish them.
Taking photos, films, portraits or sketches of a person leaving or entering the court or its precincts.
HOWEVER, definition of 'precinct' is not clear in law, causing practical difficulties.
107
What is the consequences of breaking Section 41 of the Criminal Justice Act 1925?
Fine of up to £1000
If you deter a witness from attending court or make it harder for a defendant to take part in a hearing you could be prosecuted for common law contempt and face jail time of up to 2 years and/or an unlimited fine
108
True or false, it is illegal to bring a recording device into a court?
TRUE
Under section 9 of the Contempt of Court Act 1981 it is illegal to use a recording device in court or even bring one in to use.
Unless you have permission from the court. (written)
109
True or False, Reporters can tweet, email, text and post online from court without permission?
TRUE
However, they must not make or receive calls and devices must be silent and unobtrusive.
Only applies to Journalists not members of the public.
110
True or False, The court has the right to withdraw permission to use devices at any time?
TRUE
eg if there are fears over a witness being coached or of simultaneous reporting puts pressure on a witness.
111
When does a civil court case become active?
When a court date is fixed - 1981 Contempt of Court Act 1981
112
When does a civil court case cease to be active?
Contempt of Court Act 1981:
1) the case is disposed of by settlement or judgement
2) The case is abandoned
3) The case is discontinued
4) The case is withdrawn
113
Define the term claimant
The person or organisation who sues for damages or applies for an injunction in a civil case
114
True or False, Journalists can report all evidence disclosed prior to the trial in a civil case?
FALSE.
They can only report evidence that has been read out in open court.
115
A report about civil proceedings only breaks the Contempt of Court Act strict liability rule if....
it creates 'a substantial risk of serious prejudice or impediment'
So a neutral report explaining the case is unlikely to create that risk (doesn't provide detailed evidence and doesn't put pressure on witnesses or what the outcome should be)
116
What case proves that journalists have a right to be in court?
Scott V Scott
117
What does Section 47 of the Children and Young Person's Act 1993 say about access to court?
Public are not permitted to enter youth courts but 'bona fide' members of newsgathering or reporting orgs are.
118
What rule sets out what info you can get from court about ongoing criminal cases or any case not more than 6 months old?
Rule 5.8 of the Criminal Procedures Rule
119
According to Rule 5.8 of the Criminal Procedure Rules, what info can you get from court about ongoing cases or cases less than 6 months old?
Date of hearing
offence(s)
plea
decision
bail conditions
adjournment of case to another court
Whether the case is under appeal
Identities of prosecutor
defendant
lawyers
lawyer's addresses
ID of any judge or magistrate
reporting restrictions in place
Defendant's ID should include their DOB and address
requests for this info can be made over the phone or in person (in court)
120
According to Rule 5.8 of the when must you make a formal request for information about a case in writing?
If the case is older than 6 months or you want to see copies of case material.
You must explain why you want this info
The court will decide if the info is supplied to you
They can alert any 'potential objectors' (eg defendant or prosecutor) so they can argue against it being released.
121
What does single justice procedure mean?
It means that a case is heard in private and in the absence of the defendant in the magistrates' courts.
The district judge or magistrates conduct the case 'on the papers' (doesn't sit in public)
122
What are the requirements for a case to be dealt with using the single justice procedure?
- Summary offences only
- Defendant must be over 18
- Have pleaded guilty by letter or email
- Or hasn't responded to notice of prosecution
- Does not need to attend
- They must not have objected to the case being dealt with by SJP
123
Under Rule 5.8 of the Criminal Procedure what must the court officer publish?
- ID of defendant and prosecutor
- the offence(s) alleged
- any reporting restrictions in place
They must also supply Journalists with:
- A copy of the prosecution 'statement of facts' or
- A copy of each witness statement
- Any defence representations made in mitigation
Journos must ask for this info via phone or email to the regional court and Tribunal Centre rather than to the courts.
No reason needed but best to cite rule 5.8
Case must be current or within the last 6 months.
124
Rule 5.4C of the Civil Procedure Rules
Normally allows a journalist reporting a civil case to inspect and obtain a copy of the 'statement of case'
Statement of case = the claim form, particulars of a claim, defence and any counter-claim or reply to the defence.
125
Rule 32.13 of the Civil Procedures Rule
Normally allows a journo to inspect witness statements that are evidence-in-chief during the course of a civil trial.
126
How to challenge the courts
1) Pass note to usher/clerk telling the judge or magistrate you want to object
2) get a copy of the written order
3) Put your reasons in a letter and back them up with case law
4) Until your challenge is heard, the restriction stays in place (even if invalid)
5) if your challenge is rejected you have the right to appeal
127
Breach of confidence is a...?
Civil law (tort/wrong)
128
For a leaked document to be considered a breach of confidence if used by journalist, what 3 things must the court decide?
1) whether the material has the necessary 'quality of confidence'
2) Whether the info was originally communicated in circumstances where there was an 'obligation of confidence' (made clear it was not to be shared)
3) If there has been unauthorised use (publication) of that info to the detriment of the party who originally communicated it.
129
What does 'detriment' include, in terms of Protection of sources/leaked documents/breach of confidence?
Financial loss, loss of business, loss of reputation etc
130
What are the remedies for breach of confidence?
- An injunction (court order banning publication), if media breaches the injunction and publishes they could be prosecuted for contempt of court (fine or jail)
- Court may order org to 'deliver up' (return) the confidential info
- Court may order journo to disclose the source of the info
- Damages (pay the owner of confidential info for loss.
- Media may be ordered to state accounts of profits (how much it profited from publication)
131
What stance are journalists expected to take when it comes to revealing sources and what laws link to this?
Journalists have a 'moral obligation' not to reveal their sources.
Article 10 ECHR = Journos should not be forced to reveal their sources unless in the interests of justice, national security or to prevent crime and disorder
The 'Shield Law' S10 Contempt of Court Act 1981 = No journo should be forced to reveal sources unless in the interests of justice, national security or prevention of crime and disorder.
BUT both ethical codes (Ofcom clause 7.7 and Editor's codes of practice clause 14) say journos should NEVER reveal their sources
132
True or False, There is a public interest exception for leaking sources?
FALSE
According to Ofcom and the Editor's Code, Journos should never reveal their sources - No public interest exception
133
How does Article 2 of the Europeaan Convention of Human Rights link to protection of sources?
A source does not need to be revealed if their life will be put in 'real and immediate danger' if they are ID.
EG 2009 journo Suzanne Breen used this as a defence to not reveal info about a real IRA spokesperson she had spoken with.
134
True or False, Privacy comes under civil?
TRUE
the tort of misuse of private info.
135
Where would someone sue for breach of privacy?
High court - civil
136
Where are privacy laws enshrined?
European Convention of Human Rights
Article 8 - everyone has a right to respect for their private and family life
137
When a court is considering a claim that privacy has been breached or will be breached what do they first consider?
If Article 8 ECHR rights are engaged (right to respect of private and family life) and if there is a 'reasonable expectation of privacy'
138
Which 2 ways can privacy be breached?
1) an intrusive act of gathering private info - eg intrusive photography/recording, which in itself or the subsequent discovery of distresses the subject, and was without their consent.
2) By publication - without their consent
139
What are the remedies for a breach in privacy?
- Damages
- Injunction - to prevent a breach or prevent its repetition (eg republication)
140
True or False, privacy can never be breached in a public area?
FALSE
Privacy can be breached in a public place if the person is upset, in grief, shock, distress, mentally ill etc.
141
True or False, adulterous relationships do not have a 'reasonable expectation of privacy'?
FALSE
all intimate personal relationships have a reasonable expectation of privacy including sexual and adulterous relationships.
142
How can a media org minimise the likelihood of a privacy lawsuit being launched or successful or reduce damages?
- Not publishing some detail - eg obscure or pixelate the face of a vulnerable person to hide their ID.
- Not show face of someone in distress or pain after an accident in a public place
- only use brief footage
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Children and breach of privacy
Children are more likely to be regarded by the courts as needing protection.
Therefore they have a 'reasonable expectation of privacy' regardless of location - so if they are filmed without parental consent their privacy can be breached, even if in a public place.
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How did the Cliff Richard v BBC case change privacy law?
The media can no longer report names of those being investigated by police.
They should not report that the person's home or office has been searched or if they have been arrested and/or questioned.
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True or false, if police release the name of a suspect or someone under investigation, journalists can safely report this info?
TRUE
If the name is released for a 'legitimate policing purpose' (eg to seek witnesses or if the person has been charged) that info can be safely published.
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True or False, Copyright is a criminal law dealt with in criminal court?
FALSE,
It is a civil law dealt with in civil court
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What law links to Copyright?
the Copyright, Designs and Patents Act 1988
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Who owns copyright?
Copyright is owned by the creator of any piece of work created using skill, labour or judgement.
Unless the work has been produced during the course of their employment, then their employer owns the copyright.
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How can a copyright owner make it possible for others to make copies of their work?
They can license their work
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True or False, a creator can 'assign' copyright?
TRUE
They can sell the copyright to a new permanent owner
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What are the penalties for breching the Copyright, Designs and Patents Act 1988?
- Injunction granted to prevent further copying
- Damages (£££)
- claim on profits earned by infringement
- order for possession of infringing copies
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When is copyright breached?
- If all or a 'substantial part' of the work is copied without permission from the copyright owner.
- If quotes are taken without attribution or a whole interview is copied
- Using pictures/videos from the internet for profit gain (copyright is pwned by the person who took the picture/video so ask permission to use them)
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Outline the defence of 'fair dealing' when it comes to copyright
- Applies to reporting 'news and current events'
- The media org must publish sufficient acknowledgement of the work and its author
- Media must not publish more than is necessary to report the story
- Allows unauthorised use of a few seconds of footage or some quotes
- but only enough to tell the story
- photos are excluded - you cannot partially use a photo
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Who owns the copyright of any photo taken before July 31 1989?
The Commissioner
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Who owns the copyright of any photo taken after July 31 1989?
The photographer.
However, the commissioner (person who paid photographer to take photo) has a 'moral right' over any film or photo taken for a 'private or domestic' purpose. Therefore can sue for breach of copyright if that material is used without their permission.
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What is an inquest?
An inquiry into deaths in sudden or unexplained circumstances.
They take place in a coroner's court.
The aim is to find out who died, where and how so a death certificate can be completed - not to attribute blame.
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A coroner must investigate an inquest if...?
- The cause of the death is unknown
- The death is violent or unnatural (caused by crime, accidents, suicide, neglect or lack of care, excessive alcohol, drug misuse, poisoning)
- The person died while in custody or in state detention.
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Who decides if an inquest is needed?
Usually doctors or police but family can ask for an inquest.
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When is a jury needed in an inquest?
- The deceased was in custody/state detention AND the death was violent or unnatural or the cause is unknown
- The death resulted from an act of a police officer, member of a police force or armed forces during their duty
- The death was caused by an accident, poisoning or disease which, by law, must be notified to a gov department or inspector.
- The senior coroner thinks there is 'sufficient reason'.
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True or False, coroners have judicial powers?
TRUE
so they can jail a witness for contempt of court if they fail to attend an inquest and make reporting restrictions re under 18s or make S11 orders.
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How old do gold or silver items found in or on the ground have to be in order to be considered treasure?
over 300 years old
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Clause 5 Of IPSO Editor's Code (reporting suicide)
"When reporting suicide, to prevent simulative acts care should be taken to avoid excessive detail of the method used , while taking into account the media's right to report legal proceedings"
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Section 2 Of Ofcom Broadcasting Code (reporting suicide)
"Methods of suicide and self-harm must not be included in programmes except where they are editorially justified and are also justified by context"
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What does 'excessive detail' mean in terms of reporting suicide?
That the level of detail would encourage or enable others to try this method to kill themselves.
Ok to say someone has hung themselves but not how.
Ok to say someone has overdosed on painkillers but not which tablets or how many.
It may be unethical to report a particular location that is often used for suicide - unless there is a public interest reason, for example, locals are campaigning for more patrols there.
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What charity gives guidelines to help the ethical reporting of suicide?
Samaritans
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Samaritan's guidelines on ethical reporting of suicide
- should not portray any method as quick, easy, painless, or certain to result in death.
- Should not over-simplify what may have been the cause(s)
- Don't specify that suicide achieved a result (eg exposed a bully)
- Don't suggest that the community is honouring or romanticising the suicidal behaviour (eg saying the dead person is now an 'angel)
- Don't publish height of bridge/cliff
- Don't include content from suicide notes or similar messages
- What is published should ideally make the point that suicides are preventable and refer to a source of support like the Samaritans.
- should not use large, prominently placed or repeated images of the person who passed.
- Do not say 'committed' suicide - 'ended their own life.
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What law links to defamation?
the Defamation Act 2013
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To sue someone for defamation in the civil court (High Court) what must you need to prove?
1) Defamation, identification and publication - is the material defamatory?, can you be ID ?, was it published?
2) 'serious harm' has been caused - eg to your reputation
3) If you are a company you must prove 'serious financial loss' eg loss of earnings or customers
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Define Libel
Libel is the publication of a statement in written or any other permanent form, which affects the reputation of a person, company or org
#Permanent form includes a statement, text, tweet, broadcast
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Define slander
Slander is a defamatory statement in a transient (spoken) form - no permanent record of it.
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A statement is defamatory if...?
- It causes someone to be shunned or avoided
- It lowers them in the estimation of right-thinking members of society generally
- Exposes them to hatred, ridicule or contempt
- Disparages them in their business, office, trade or profession.
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What is the standard of proof for defamation?
On the balance of probabilities (the civil standard)
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What is the remedy for defamation?
Damages - and the loser must pay the other party's court costs as well as their own.
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Outcome of Depp V Newsgroup Newspapers defamation case
The Sun used the truth defence and won
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Outcome of Vardy V Rooney defamation case (Wagatha Christie)
Vardy sued Rooney and lost.
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Define the repetition rule when it comes to defamation
If you repeat a defamatory statement (eg retweet or republish) you could be sued for defamation too. (and the limitation period starts over again)
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Define the limitation period
You have 12 months from the date of first publication (print) or first download (online) to begin action for defamation.
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True or False, most defamation cases are heard by juries?
FALSE
Most defamation cases are heard by judges only and it is very rare, nowadays, for them to be heard by juries.
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Define inference in terms of defamation
A statement with a 2nd meaning which can be understood by someone without specialist knowledge, reading between the lines
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What is the test in defamation law for identification?
Whether the published statement would 'reasonable lead those acquainted with the complainant to believe that they were the person referred to'
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Publication and defamation
The words complained of must be published to a third party
But just because the allegedly libellous words have been published online it doesn't mean libel action will succeed.
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Define Accord and satisfaction in terms of defamation
The complainant signs a waiver agreeing not to sue. in return the publisher of the defamatory statement publishes a correction and apology.
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List the defamation Defences
Honest Opinion
Absolute Privilege
Truth
Qualified Privilege
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What types of material can the Honest Opinion defence be used for?
Opinion Pieces and comment pieces
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What are the 5 requirements to run the Honest Opinion defamation defence?
1) The comment must be the honestly held opinion of the person making it
2) It must be recognisable to the consumer as opinion not fact
3) Must be based on provably true fact or privileged material
4)The author must explicitly or implicitly indicate the fact/info on which it based
5) Statement must be recognisable as an opinion eg 'in my opinion'
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What type of material does the Absolute Privilege defamation defence apply to?
Court proceedings held in public around the world. Criminal, civil, coroner's courts, tribunals, European Court of Human Rights.
Also to politicians speaking in parliament to allow free speech.
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What are the requirements for an Absolute Privilege defamation defence?
Article must be fair, accurate and published contemporaneously
Both sides of the trial are reported
Comments shouted from the public gallery should not be published unless that person is 'concerned in the proceedings'
Defamatory comments made on the steps outside court should not be reported as you do not have privilege outside of court.
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Outline the Truth defamation defence
- You must be able to prove in court what was published was 'true' on the balance of probabilities.
- Difficult to prove, media reluctant to fight actions using this defence because of the uncertainty of the outcome.
- publisher must ptrove meaning of words was true, or any inference or innuendo.
- very expensive (costs for both sides and damages)
- Passage of time, reluctance of witnesses to testify in court
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Outline the Qualified Privilege Defamation defence
Protects non-contemporaneous court cases and certain types of info or statements, EG from public meetings, press conferences, parliamentary debates and council meetings. Also protection for lobby journalists reporting from parliament.
Only protects reports of actual proceedings (EG what is said in a council meeting) you are not protected if you report what someone said outside the meeting and what they say is defamatory.
Copy must be fair, accurate, on a matter of public interest, published without malice.
Two parts - the Defamation Act 1996
1) statements published 'without explanation or contradiction'
2) statements subject to 'a reasonable letter or statement of explanation or contradiction' (right of reply)
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What does part 1 of a Qualified Privilege defamation defence include?
Gov statements
Public inquiries
High level conferences (eg COP 27)
Public documents (eg register of births, marriages and deaths)
Court notices or advertisements
Extracts from gov reports
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What does part 2 of a qualified privilege defamation defence include?
Material issued by govs and gov bodies in any EU member state, including the police
192
What is Leave and Licence in terms of defamation?
Used where an interviewee says something defamatory about themselves and agrees for this to be published eg I was a womaniser, I used to do a lot of drugs etc.
They must sign a written statement of agreement or say in an audio/visual recording that the defamatory matter can be published.
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Outline 'offer of amends' in terms of defamation
Defendant who has published a defamatory statement must make a written offer to publish a suitable correction and apology in a reasonable manner.
Must pay suitable damages and legal costs
If this offer is rejected and is not withdrawn it will be a complete defence for the publisher, unless the claimant can show the defendant knew the defamatory statement was false but published anyway,
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True or False, there is no protection in law for media orgs who publish readers' comments?
FALSE
There is protection in law under section 1 of the Defamation Act 1996, extended by section 10 of the 2013 Act
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Outline Section 1 of the Defamation Act 1996, extended by section 10 of the 2013 Act
Provides a defence for media orgs publishing reader's comments.
Media websites cannot be sued for a defamatory comment on their site as long as they are not the author editor, editor or publisher.
They must be able to prove they took 'reasonable care' in regards to publication of the complained material and had no reason to believe they had caused/contributed to defamation (Basically they had not moderated the comment before it was published)
If they read the comment before publishing, the website becomes the publisher and loses the defence.
If there is a complaint about a comment you should take 'reasonable care' - action immediately and take down if necessary
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True or False, Section 1 of the Defamation Act 1996 applies to live broadcasts too?
TRUE
So if someone says says something defamatory during an interview you are protected but the broadcaster must take 'reasonable care' as soon as they start to be defamatory and so you have to stop them (shut them up! turn off the mic if necessary)
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Who does the section 5 defamation defence provide a defence for?
Website operators who can prove they didn't post the defamatory material.
It may protect the website operator even if the material was 'moderated' if procedure was followed.
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When does the section 5 defamation defence fail?
- If the website operator received a notice of complaint and failed to respond within the time specified. (They must also pass on details of the poster to the claimant - so they can sue them)
- If a claimant can show the website operator acted with malice in relation to the posting of the material.
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