Author Archives: Izmet zaman

About Izmet zaman

I like to be simple and low profile.

Guidlines for reporting local council meetings, reporting elections, and reporting cases that involve children

The Department for Communities and Local Government (DCLG) published a guide to reporting on council meetings, amid claims that many local authorities are still prohibiting filming.

The DCLG stated the guidance, Your council’s cabinet: going to its meetings, seeing how it works – a guide for local people, “corrects misconceptions” that the Data Protection Act prohibited the filming of councillors and council officers.

The new guide, which can be viewed here, covers:

  • The national rules;
  • Going to meetings of a council’s executive;
  • Available information about executive decisions;
  • Rights of access to meetings and information; and
  • Descriptions of exempt information.

The DCLG added that the guidance set out that “filming should be overt, people should be informed at the start of the meeting, and councils should have a clear policy on whether members of the public who may speak at a meeting should have the right to opt-out of filming.

In relation to reporting elections there is some mandatory issues and referrals provided by BBC guideline to their journalists. These are, During the Elections

  • Any programme which does not usually cover political subjects or normally invite politicians to participate must consult the Chief Adviser Politics before finalising any plans to do so.
  • All bids for interviews with party leaders must be referred to the Chief Adviser Politics before parties are approached. Offers of such interviews should also be referred before being accepted
  • Any proposal to use a contribution from a politician without an opportunity for comment or response from other parties must be referred to a senior editorial figure and the Chief Adviser Politics. (see 3.5)
  • Any proposal to achieve due impartiality over a series of different programmes across a station or channel must be referred to the Chief Adviser, Politics.
  • The BBC will not commission voting intention polls
  • Any proposal to commission an opinion poll on politics or any other matter of public policy for any BBC service must be referred to the Chief Adviser Politics for approval.
  • There will be no online votes or SMS/text votes attempting to quantify support for a party, a politician or a party political policy issue.
  • Any proposal to conduct text voting on any political issue that could have a bearing on any of the elections must be discussed with the Chief Adviser, Politics, as well as being referred to the relevant departmental senior editorial figure and ITACU.
  • The BBC will not broadcast or publish numbers of e-mails, texts or other communications received on either side of any issue connected to the campaign.

On Polling Day

  • No opinion poll on any issue relating to the election may be published.
  • There will be no coverage of any of the election campaigns on any BBC outlet.
  • It is a criminal offence to broadcast anything about the way in which people have voted in the election

All journalists and media professionals have a duty to maintain the highest ethical and professional standards. They should promote within the industry the widest possible dissemination of information about the International Convention on the Rights of the Child and its implications for the exercise of independent journalism. Children have an absolute right to privacy, the only exceptions being those explicitly set out in these guidelines.

Guidelines

Journalists and media organisations shall strive to maintain the highest standards of ethical conduct in reporting children’s affairs and, in particular, they shall

  • strive for standards of excellence in terms of accuracy and sensitivity when reporting on issues involving children;
  • avoid programming and publication of images which intrude upon the media space of children with information which is damaging to them;
  • avoid the use of stereotypes and sensational presentation to promote journalistic material involving children;
  • consider carefully the consequences of publication of any material concerning children and shall minimise harm to children;
  • guard against visually or otherwise identifying children unless it is demonstrably in the public interest;
  • give children, where possible, the right of access to media to express their own opinions without inducement of any kind;
  • ensure independent verification of information provided by children and take special care to ensure that verification takes place without putting child informants at risk;
  • avoid the use of sexualised images of children;
  • use fair, open and straight forward methods for obtaining pictures and, where possible, obtain them with the knowledge and consent of children or a responsible adult, guardian or carer;
  • verify the credentials of any organisation purporting to speak for or to represent the interests of children.
  • not make payment to children for material involving the welfare of children or to parents or guardians of children unless it is demonstrably in the interest of the child.

Moreover, Journalists should put to critical examination the reports submitted and the claims made by Governments on implementation of the UN Convention on the Rights of the Child in their respective countries. They should not consider and report the conditions of children only as events but should continuously report the process likely to lead or leading to the occurrence of these events.

Section 49 of the Children and Young Persons Act 1933 (CYPA 1933) gives a general rule that proceedings in the youth court are not open to the public. Although press representatives are permitted to report on proceedings, they are automatically restricted from reporting the identity or any details that would lead to the identity of any child or young person involved in the proceedings. This can be witness, defendant or victim.

This section also applies to;

  • appeals from the youth court, including an appeal by way of case stated;
  • proceedings in the magistrates’ court for breach, revocation or amendment of a Youth Rehabilitation Order and appeals
  • against such proceedings (section 49(2) CYPA 1933).

However this automatic restriction can be lifted of providing that if,

  1. It is appropriate to do so to avoid injustice to the child or young person under 18 (section 49(5) (a) CYPA 1933); or;
  2. It is necessary to dispense with the restriction to apprehend a defendant who is unlawfully at large and has been charged with or has been convicted of a violent or sexual offence or one that is punishable with imprisonment for 14 years or more if committed by a person aged 21 or over.
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Moot competition on Breach of Confidence

In our media law lecture we had a moot competition on problem which involves the breach of confidence. The facts of the problem was given and our tutor divided us in two group of people; respondent and the appellant. I was in the respondent side, and we did some meetings to take preparation for the moot. We selected Sam as a senior council and Qays as a junior council. We were divided into two groups to work with our senior and junior council. I did some research for our junior council. the moot problem and the video of our moot competition is posted below.

Simms Appellant

V

Channel Xstra Respondent

The plaintiff, Terry Simms, is an actor of some limited fame. After being ‘killed off’ in a recent episode of West Enders, a popular serial on BBC television, Mr Simms had an idea for a television serial. The storyline revolved around a group of young clothes designers, struggling to hit the big time in the tough world of fashion. Mr Simms spoke to Janet Nye, a well known scriptwriter, hoping to interest her in the idea of turning his storyline into scripts. Nye took the idea to Frank Blyton, a producer of many well known television serials. On return, she told Simms that Blyton rejected the idea, saying that it would not have the mass appeal that is needed for a successful serial. Accepting that Nye’s expertise and Blyton’s verdict was correct, Simms thought no more about the script. Some time later, Channel Xstra, a digital channel, started to broadcast a daily ‘soap’ serial, called ‘A lines’ , starring several well known actors of repute. The storyline was almost identical to that discussed by Simms and Nye. The producer was Blyton. Simms sued Channel Xstra, Nye and Blyton for breach of confidence, alleging that Blyton knew that the idea was his (Simms’s) when he was approached by Nye. The court found that Channel Xstra were approached with the idea without knowledge that it was Simm’s and that no breach of confidence had occurred by Channel Xstra. Stepney J also held that it was in the public interest that mere ideas for serials (which had not been written down or developed yet to the full) should be in the public domain and not protected by the laws of confidence.

Reporting restrictions in relation to section 39 and 49 of the Children and Young Persons Act 1933

General rule is that all court proceedings must be held in open court to which public and the media have access. Open justice is one of the vital character of the rule of law in Britain. This is an essential element of the criminal justice system, that it should disclosed to public and subject to public scrutiny. The media plays a vital role here by reporting the information in the courts trial, and reflect the public interest. However, there are some exceptions to these principles, where there can be reporting restrictions on the specific information of the trial.

Section 49 of the Children and Young Persons Act 1933 (CYPA 1933) gives a general rule that proceedings in the youth court are not open to the public. Although press representatives are permitted to report on proceedings, they are automatically restricted from reporting the identity or any details that would lead to the identity of any child or young person involved in the proceedings. This can be witness, defendant or victim.

This section also applies to;

  • appeals from the youth court, including an appeal by way of case stated;
  • proceedings in the magistrates’ court for breach, revocation or amendment of a Youth Rehabilitation Order and appeals
  • against such proceedings (section 49(2) CYPA 1933).

In relation to appeal the Crown Court must hear an appeal from the magistrates’ court (including the youth court) in public even though reporting restrictions apply automatically. However, court can order a hearing to be in private, providing that prosecutor made an application for a private hearing. In that case, the court may look at whether the appeal concerns a matter of law of general importance.

The identity of a victim, witness or defendant under the age of 18 who is concerned in proceedings in the magistrates’ court or Crown Court may be published. However, court can make an order under section 39 CYPA restricting reporting in a newspaper; or in a sound or television broadcast. When the victim or witness request this restriction, prosecutors should make an application to restrict reporting the identity or details that would lead to the identity of a victim and witness under the age of 18 under section 39 CYPA 1933. If the views of the victim or witness have not been ascertained, prosecutors should still seek such restrictions if these would appear to be in the best interests of the young victim or witness, having regard to the principles set out in this guidance.

Young victims of rape and other serious sexual offences will have automatic anonymity subject to the provisions of the Sexual Offences Act 1992. Young witnesses to such offences do not receive this protection and so therefore it is at the discretion of the court to make an order under section 39 CYPA 1933.

In R on the application of Y v Aylesbury Crown Court, Crown Prosecution Service, Newsquest Media Group Limited [2012] EWHC 1140 (Admin), the Administrative Court gave the following guidance to courts to decide whether a section 39 restriction should be made/lifted:

  • The defendant will have to satisfy the court that there is a good reason to impose the restriction. In most cases the good reason upon which the defendant child or young person will rely is his or her welfare (Section 44 Children and Young Persons Act 1933);
  • The court should identify the factors which would favour restriction on publication and the factors which would favour no restriction;
  • The court should balance the interests of the public in the full reporting of criminal proceedings against the desirability of not causing harm to a child concerned in the proceedings. The court is required to have regard to the welfare of the child, and should give considerable weight to the age of the offender and to the potential damage to any young person of public identification as a criminal before having the burden or benefit of adulthood;
  • If having conducted the balancing exercise, the factors favouring a restriction on publication and the factors favouring publication are very evenly balanced, then a court should make an order restricting publication;
  • Any order made must comply with Article 10 ECHR – it must be necessary, proportionate and there must be a pressing social need for it. Age alone is not sufficient to justify imposing an order;
  • The court may also decide to permit the publication of some details but not all;
  • The court may review an order at any time and frequently are invited to do so where a defendant named in an order has been convicted at trial. The welfare of the child must be taken into account, but the weight to be given to it changes where there has been a conviction, particularly in a serious case. There is a legitimate public interest in knowing the outcome of proceedings in court and the potential deterrent effect in respect of the conduct of others in the disgrace accompanying the identification of those guilty of serious crimes;
  • The court should give reasons for its decision.

Breach of reporting restrictions imposed automatically under section 49 or made by a section 39 CYPA 1933 order, are summary offences under section 39(2) CYPA 1933 and section 49(9) CYPA 1933. These are effectively offences of strict liability. Section 1 and 2 of the Contempt of Court Act 1981 creates the strict liability rule. It provides that it is a contempt of court to publish anything to the public which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded, even if there was no intent to cause such prejudice.

There are reasons for restricting publication of material that identifies children and young people who are concerned in court proceedings. Public identification of children and young people in breach of CYPA is irreversible. This can cause both immediate and long term distress and harm; therefore it will almost always be in the public interest to prosecute those who have responsibility for publication of material that breaches CYPA 1933.

Copyright and the defence of fair dealing under the Copyright, Designs and Patents Act 1988

The Copyright, Designs and Patents Act 1988 gives exclusive rights to the copyright owner for a period of time, enabling him to exploit the expression, or embodiment of his ideas.

In order for a creation to be protected under the Act, the work must fall within one of the following categories of work; literary work, dramatic to be musical work, artistic work, films, sounds recordings, broadcasts, and typographical arrangement of published additions. However, Chapter III of Part I of the Act provides for a number of situations where copying or use of a work will not be deemed to infringe the copyright, in effect limitations on the rights of copyright holders. One of the defence to infringement is fair dealing.

The defence arise in cases where the copyright infringement is for the purposes of non-commercial research or study, criticism or review, or for the reporting of current events. Fair dealing originates in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988. It requires the infringer to show not only that their copying falls into one of the three fair dealing categories above, but also that it is “fair” and, in some cases, that it contains sufficient acknowledgement for the original author. Factors when deciding the “fairness” of the copying can include the quantity of the work taken, whether or not it was previously published, the motives of the infringer and what the consequences of the infringement on the original author’s returns for the copyrighted work will be.

If sued for copyright infringement, one can rely on fair dealing as a defence in court. The burden of proof then falls on the defendant to prove that one of the exceptions applies. This is done first by proving that the infringement falls within one of the three categories. The courts will not, however, give any consideration to what the infringer thought his work was for, or rely on a subjective test in any way (see, Hyde Park Residence v Yelland). If the copyright infringer can show that their use falls within one of the three categories, they must then show that the dealing was “fair”. This takes into account a number of things, and due to the freedom of speech provisions under the Human Rights Act 1998 is deliberately intended not to be based on rigid and inflexible tests. In alternative, the courts bear in mind that considerations of public interest are paramount.

How the work was obtained and for what purpose is also a factor. If the work was obtained illegally or unethically, the dealing is less likely to be “fair” than if it was legitimately acquired. Similarly, if the motives of the dealing are negative, the fairness will be impugned. As in Hyde Park, the court must “judge the fairness by the objective standard of whether a fair minded and honest person would have dealt with the copyright work in the manner” in question. Consequences are also a factor; if, as in Hubbard v Vosper, the parties to the case are competitors and infringing on the work acts as an alternative to purchasing the original, this will limit the fairness of the dealing. Occasionally the courts will also consider whether the purpose of the infringement could have been achieved in a less intrusive way, as in Hyde Park. The quantity of the work taken is also taken into account. If the infringer uses the majority of a copyrighted work, or all of it, they reduce the expected returns of the copyright owner and compromise “the role that copyright plays in encouraging creativity”. As such, the fair dealing defence usually only applies when part of a work has been taken, although some judicial comments.

For this defence to apply, the infringer must show that the dealing is for non-commercial research or private study. Private study is defined by Section 178 of the Act as excluding any study directly or indirectly for commercial purpose. It therefore covers most academic purposes, but not things such as the use of a database in market-testing of new drugs. Research, when not academic, is covered by the Controller of Her Majesty’s Stationery Office. Ordnance Survey v Green Amps Ltd sets the test as whether or not it is thought that the research would be used for a commercial purpose in the future.

Section 30(1) of the 1988 Act provides that the fair dealing exception is valid if the material is being copied for criticism or review. For it to apply, the infringer must be able to show that the dealing was for criticism or review, that the infringed work was previously made available to the public, that the dealing was fair, and that the dealing was accompanied by an acknowledgement. Under Section 30(2) of the Act, fair dealing using any work for the purpose of reporting current events, with sufficient acknowledgement, is a valid exception to copyright. Photographs are excluded. An important element of the “current events” exception is whether or not the reporting covers “current” events. “The older the issue, the less likely it is that it will be treated as having any currency” (Hyde Park)

As of 1 October 2014, Section 30A provides for fair dealing as a defence in cases where the infringement was for the purpose of caricature, parody or pastiche. The Intellectual Property Office suggests that a “parody” is something that imitates a work for humorous or satirical effect. A “pastiche” is a composition that is made up of selections from various sources or one that imitates the style of another artist or period. A “caricature” is something that portrays its subject in a simplified or exaggerated way, whether insulting or complimentary and whether for a political purpose or solely for entertainment.

The purpose of the Data Protection Act 1998 and the Freedom of Expression Act 2000

The purpose of the Data Protection Act 1998 is to give individuals rights over their personal data and to protect individuals from the erroneous use their personal data. The Act also requires anyone who handles an individual’s personal data to comply with a number of important principles and legal obligations.

The Act gives rights to living individuals about whom information is recorded. They are entitled, upon making an access request, to be supplied with a copy of any information held about them. They also have the right to challenge the processing of their personal data and to claim compensation if they suffer loss or damage because of inaccurate information or inappropriate disclosures.

The Data Protection Act 1998 gives individuals the right to know what information is held about them. The Act works in two ways:

It states that anyone who processes personal information must comply with the eight principles; and

It provides individuals with important rights, including the right to find out what personal information is held on computer and most paper records.

The eight principles are, the personal data shall be collected and processed fairly and lawfully, be obtained only for the specific and lawful purposes described in the register entry, and shall not be further processed in any manner incompatible with that purpose or those purposes, be adequate, relevant, and not excessive in relation to the purpose or purposes for which they are held, be accurate and, where necessary, be kept up to date, be held no longer than is necessary for the registered purpose, be processed in accordance with the rights of the data subjects under the Act, be held under secure conditions, together appropriate technical and organisational measures to prevent unauthorised or unlawful processing of personal data and against accidental loss or destruction of; or damage to personal data, not be transferred to a country or territory outside the European Economic Area, unless that country ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.

Processing of personal data for the following purposes are exempt from the Data Protection Act 1998.

  • Personal data required or held on the grounds of National Security
  • Personal data publicly available by law
  • Personal data held for personal, domestic and recreational purposes
  • Personal data held by an unincorporated members club
  • Exemptions from the Restrictions on Disclosure
  • Exemptions from the Data Protection principles under the Act

The University students and staff are required to comply with the Data Protection Act 1998. The Act creates a number of criminal offences. These include offences related to notification; enforced subject access; obtaining and disclosing offences; procuring and selling offences; other offences. The Act will impose personal liability on individuals if the University commits an offence attributable to their consent or neglect.

The purpose of Freedom of Expression Act 2000 is to give individual rights of access to information held by or on behalf of public authority.

The Freedom of Information Act creates a statutory right for access to information in relation to bodies that exercise functions of a public nature. Three different kinds of bodies are covered under the act. Public Authorities, publicly owned companies and designated bodies performing public functions. a full list of “public authorities” for the purposes of the act is included in Schedule 1. The list includes government departments, the Houses of Parliament, the Northern Ireland Assembly, the Welsh Assembly, the armed forces, local government bodies, National Health Service bodies, schools, colleges and universities, police authorities and Chief Officers of Police are included within this list, which ranges from the Farm Animal Welfare Council to the Youth Council for Northern Ireland. A few of them are excluded such as intelligence service. In relation to publicly owned company, S6 provides that a company is publicly owned if:

(a) it is wholly owned by the Crown, or

(b) it is wholly owned by any public authority listed in Schedule 1 other than

(i) a government department, or

(ii) any authority which is listed only in relation to particular information.

Recorded information includes printed documents, computer files, letters, emails, photographs, and sound or video recordings.

The act creates a general right of access, on request, to information held by public authorities. On receipt of a freedom of information claim a public authority has two corresponding duties. First, a duty to inform a member of the public whether or not it holds the information requested (s1(1)(a)), and second if it does hold that information, to communicate it to the person making that request (s1(1)(b)).

Although the Act covers a wide range of government information, the act contains a variety of exemption. Two forms of exemption are present, “Absolute” exemptions that are not subject to any public interest assessment, they act as absolute bars to the disclosure of information and “qualified” exemptions where a public interest test must be made, balancing the public interest in maintaining the exemption against the public interest in disclosing the information.

Freedom of expression and privacy

The balance between the context of the claims in privacy versus press freedom is a popular issue to discuss in English law. The values behind each right and the developing nature of the rights in both the UK and European courts will be discussed in here. The role of the public interest in deciding the judgments between balancing privacy and freedom of expression will be explained as well.

In an era of deep celebrity intrusion, confessional journalism and the invasive ‘telephoto lens’, the balance between press freedom and privacy is very significant. Lord Nicholls in Campbell V MGN Ltd said “The essence of the tort is better encapsulated now as a misuse of private information”, thus the law will “appropriately protect a right of personal privacy’. The development as to what constitutes ‘Public interest’ may be very core point to distinguish this two rights.

In relation to privacy in HRH Prince of Wales V associated Newspapers it was argued that, “If people are able to release (private) information, with impunity, it might have the effect of illegitimately constraining person’s choices as to his or her private behaviour, interfering in a major way with his or her autonomy”. He also includes that privacy is ‘essential to Human flourishing’ however individual evaluations of privacy are difficult to define and the courts must balance each case accordingly.

In English democracy freedom of expression is very vital and also fundamental for the press. “Freedom to engage in free expression and reception of ideas and opinions in various media is essential to human development” is one of the principle theories of different kind of media and is fundamental to democracy. However, journalism in the current media age is proving to be consistently intrusive and the free speech or public interest defence ever less plausible.

In this present situation some kind of balance between Article 8 and Article 10 must occur and upon close examination of specific cases. In the case of Venables & Thompson v News group Newspapers it was clear that unequal weight was given in favour of Article 10 in which the judge stated “I am satisfied that I can only restrict the freedom of the media to publish of the need for those restrictions can be shown to fall within the exceptions set out in Article 10(2)”. This statement highlights that the case was not looked at in a parallel context of equal rights.

The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law, which includes both rights to privacy and rights to freedom of expression, open justice and to protection of private life. The exceptions in Article 10.2 of the ECHR come under the following headings:

  • licensing of broadcasting, television or cinema enterprises
  • national security
  • territorial integrity
  • public safety
  • prevention of disorder or crime
  • protection of health or morals
  • protection of the reputation or rights of others
  • preventing the disclosure of information received in confidence
  • maintaining the authority and impartiality of the judiciary

An injunction was sought against a detailed publication of a relationship in a brothel in (Theakston v MGN Ltd). However, court stated that, “The relationship between a prostitute in a brothel and the customer was not confidential in nature and the fact that sexual activity had taken place did not, of itself, create a relationship of confidentiality”. Therefore, there was no breach of Article 8. The judgment was based on the public interest that the claimant was a ‘role model’, “given that the defendant was a presenter of television programmes aimed at younger viewers, there was an element of public interest in some of the material being published”.

In A v B plc and Theakston it was stated that he more transient a relationship the less emphasis the court should give to its protection.

The interpretation of public interest was given an extremely broad meaning in the cases of A v B and Theakston. Lord Woolf C.J stated that public figures have the right to privacy yet “The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.” Lord Woolf’s notion of privacy is attracted by the press’ desire to publish stories which are of interest to the public; and with the public interest argument as a defense. the publication of her treatment was justified fairly in the public interest in accordance with Article 10.

The best example for balancing freedom of expression and privacy is the Campbell v MGN case which involved details of Naomi Campbell’s drug addiction accompanied with photographs of her coming out of a treatment centre. Campbell’s ruling extended greatly this privacy tort and provided a thorough balancing using a parallel analysis test, and a justified public interest argument. The judge highlighted in the case that reinforcing the notion that Theakston’s ruling may have been incorrcet. Judge stated that “We do not see why it should necessarily be in the public interest that an individual, who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.”

The correct balance is essential in order to retain human autonomy as well as press freedom. However, the balance might change, as the court might extend the criteria of public interest, and provide a new definition of ‘privacy’.