The Rehabilitation of Offenders Act 1974
This legislation allows people to live down previous convictions after a specified length of time, essentially creating a clean slate for them. The act limits a journalist’s defences that they may have against libel claims; a claimant can prove malice where a reference to a spent conviction has been published. However the Rehabilitation of Offenders Act provides journalists with the public interest defence, as with most media legislation.
Convictions become spent after a rehabilitation period. Violent or sexual offences never become spent and convictions which carry an automatic life sentence are exempt too. The act states that there is no legal obligation to declare a spent conviction to an employer, only in exceptional circumstances including when working with children.
Under this legislation the defences available to journalists are significantly limited. A defence of justification will fail if there is proof that the conviction was spent and there is a motive of malice. The defences of absolute or qualified privilege do not apply to reporting a spent conviction ruled inadmissible by the court. Honest comment defences are available for reporting spent convictions but can be undermined by a motive of malice as the comment must be based on a matter of public interest.
There is no criminal penalty for journalists who mention spent convictions.
Slander, malicious falsehood and obscenity
Malicious falsehood occurs when a published statement is not defamatory but is false and can be proved to have caused financial loss. The claimant is limited to one year to take action against a journalist.
Slander is the term to define a form of libel in a spoken or other transient form. The statement must be published to a third party and must refer to the claimant suing for damages suffered. However, there are four cases of exception where a claimant does not require proof of damages:
- An imputation that an individual has committed a crime punishable by death or imprisonment
- An imputation that an individual is suffering from certain contagious or objectionable diseases, for example would this cause the person to be shunned or avoided?
- An imputation of unchastity in a woman
- Any statement to disparage an individual in his office, profession, calling or trade
Journalists are less at risk to personally become involved in a slander action as they are generally focused in writing. However, journalists must be aware of the dangers as simply leaving an answer phone message could be a case for slander if anyone other than the claimant hears it.
The test of obscenity is whether the published material tends to deprave and corrupt those likely to view it.
Copyright: ‘anything worth copying is usually worth protecting’
Copyright is a property right in law controlling who can copy work created by artistic and other intellectual endeavour. Judges refer to this as ‘skill, labour and judgement’ and more than one type of copyright may exist in a single product.
The first owner of copyright is the author as creator. If there is joint authorship both authors are a first owner and permission to use work is needed from each of them. An employer owns the copyright of work created by an employee during the course of employment however self-employed journalists are the first owners of copyright. If the freelance is on commission, the 1956 Act states that in the absence of any other agreement the commissioner holds the copyright.
Copyright can change ownership. The term ‘assign’ means to transfer ownership of the copyright, while license means to permit a use of the copyright work. The limitation is automatically in force as soon as a work is created in any permanent form.
Copyright does not protect ideas but simply the manner in which these ideas are expressed. There is no copyright in facts, news or information. ‘Lifting stories’ is the action where news articles will often include their own coverage facts in stories broken by rivals. There is no copyright infringement in doing so but there may be issues concerning lifting verbatim phrases and quotes from the original article.
Spoken words can be subject to copyright as soon as the words are recorded; it even applies if the speech is not delivered from a script. The defence for journalists when reporting speeches for current events states that the record of the words must be a direct recording, the speaker must not forbid recording or infringe on any copyright by doing so and the record must be used with the authority of the person lawfully in possession of it.
The ‘fair dealing’ defence recognises the public interest in media coverage being free of some copyright restraints. There must be fair practice by the publisher, for example they should not take unfair commercial advantage of the copyright owner by excessive publication. Publishers must provide sufficient acknowledgment towards the first owner.
Copyright is another example of legislation subject to the public interest defence where the purpose is to expose immoral work or as potential to damage public life, health, safety or the administration of justice.
Reporting elections and referendums
The Representation of the People Act 1983 makes it a criminal offence to make or publish false statements about candidates. Broadcast journalists must maintain impartiality in their coverage of elections. Breaching this requirement and creating a falsity which has the potential to prejudice votes and the election’s outcome is an offence punishable by a fine of up to £5000.
It is a criminal offence to publish, before a poll is closed, any statement about how people have voted or any forecast of the election result.
Official Secrets
Official secrets legislation protects national security. It can punish civil servants for releasing sensitive information to journalists and allows for injunctions on potential leaks. Any journalists seen to breach these may be prosecuted and there is no public interest defence in official secrets legislation. However, there is reluctance for the prosecution of media as there are defences for journalists but not for the sources.
The 1911 Act, concerned with spying, makes it an arrestable offence to do any of the following ‘for any purpose prejudicial to the safety or interests of the state’:
- Approach, inspect or enter any prohibited place
- Make any sketch, plan or note that might be useful to an enemy
- Obtain, record or communicate to any person useful information for an enemy
It must be remembered that taking photos outside or near a prohibited place could be held to breach the 1911 Act.
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