Fair Dealing

Copyright protects intellectual property. Any literary, dramatic, artistic, musical, sound recording, film, broadcast or typographical arrangement can be protected by copyright. This gives the creator of the copyright the exclusive right to use it and the power to lease it to others. Ignorance is no defence, and everything not created by yourself should be considered copyright protected. Even Creative Commons material require you to give attribution.

However fair dealing allows journalists to use small portions of copyright work without asking permission on the condition that it is in the public interest (or in other words, relevant to your piece: a review of a movie can feature music from the film, but the music shouldn't be used at will in something not relevant. Up to 30 seconds of fair dealing can be used in a package.

Defamation and Libel

A defamatory statement is one that affects the reputation of a person, company or organisation. It is a major component of libel, and a defamatory statement can be made in several ways:

• Inference: A statement which implies a negative thing, though it does not outright say it.
• Innuendo: A statement with a hidden, negative meaning.
• A defamatory statement can also be more straightforward, such as if "McDonalds is poisonous" is printed in an article as though a fact.

The legal definition of defamation (and by extension libel) is a statement which:

• Exposes someone to hatred, ridicule or contempt;
• causes them to be shunned or avoided;
• lower them in the estimation of right-thinking members of society generally; or
• disparage them in their business, trade or profession.

There is a low standard of proof, as the statement only needs to have the potential to do so to be taken to court. When a defamatory status is both published and identifies a person, company or organisation then it is libellous and can be taken to court.

Three major defences are:

• Justification: it's true and can be proven
• Fair Comment: the libellous statement appeared in a comment piece and is an honestly held opinion based on available facts
• Privilege: the statement was said in parliament or by a judge in court, giving you qualified privilege in reporting it.

Reporting Crime

Reporting Crime

Prejudice and Contempt

Prejudice is the publication of information that would colour the minds of the jury on a particular case. For example, if a newspaper reported on the prior convictions of a high-profile defendant currently in court, it may pervert the course of justice - a juror reading this article might be more inclined to give a guilty sentence,  in this instance.

Contempt of court is when a publication reveals details that are in breach of the rules of crime reporting. For example, publishing the name and age of a legal child involved in a case would be contempt of court, as children (under 18s) are guaranteed anonymity under the Section 39 and 49 orders.

Contempt: where information is published in breach of the rules on crime orcourt reporting. High risk of prejudicing legal proceedings.

Process of a Justice and Crime Reporting

1. A Crime Occurs. Police are searching for suspects and want as much information and public help as possible. Here a journalist is at liberty to report anything.
2. An Arrest is Made. The case is now legally active, and one must stick to only the hardest facts, i.e. a crime occurred at x during y o'clock and a suspect has been arrested. There is now a risk of prejudice.
3. Police Lay Charges. Only hard facts can be reported, i.e, what the charges are, when the trial will occur.
4. Magistrates Court Hearing. From here on until the case is closed, the reporter is restricted to 7 points:
1. Name of the court
2. Details of the defendant
3. Details of the charges
4. Names of barristers
5. Whether legal aid has been applied for
6. Location of next proceeding
7. Date of next proceeding

Privilege

The Queen has absolute privilege and devolves this privilege to judges, which allows them to say whatever they like in court. This then devolves to journalists.

Journalists reporting criminal cases have qualified privilege. This allows them to report anything said by the judge and lawyers. However privilege does not carry over to everyone in court - a journalist cannot, for example, quote someone shouting abuse from the public gallery, as that person is not protected by privilege.

A journalist can only have the protection of privilege if they report fast, accurately and fairly.

• fast: meaning the report is published in the next available edition or broadcast;
• accurate: all the facts must be correct;
• and fair: the report must be unbiased.

If they do not keep to these rules, the journalist risks losing qualified privilege - opening them up to being in contempt of court or guilty of prejudice.

Crown and Magistrates Courts

Heirarchy of Courts

Supreme Court

(House of Lords)

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Court of Appeal

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High Court

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Crown Court                  County Court

|                                       |

Magistrates Court               Tribunals

Magistrates and County courts are at the bottom of the heirarchy (as well as tribuals). Trials from magistrates can be referred up to the Crown court, then High Court, then court of Appeal, then Supreme Court. Despite being based in the House of Lords, it has its own judges - 12 justices - who are a part of the House. That is to say, the House of Lords in its entirety doesn't act as part of the court.

Sources of Law

• Common Law: This is law effective over the entirety of
• the United Kingdom (which is what makes it 'common'. This extends to 
• Precedent: Judges set precedent in the way they apply common law. This works in a top-down fashion, so while a magistrates court judge can make a ruling, if the case is appealed in the crown court, that crown court judge can overturn the magistrates' judgement. This goes all the way up to the Supreme Court, whose decisions are binding and set precedent on all future cases of the same nature. However, the Supreme Court can overturn its own, previous precedent. The court ruling that the website The Pirate Bay is an example of this.
• Statutes: These are acts of parliament which have a binding effect on the law. 
• European Union laws: the major one is the European Convention on Human Rights, which guarantees a right to life, freedom from torture and freedom of expression. Article 10 of the convention is particularly important to journalists as it guarantees "the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority."
• This reinforces the 'public interest' defence (McNae's calls it a defence, though I understand Chris Horrie's stance that this is a prerequisite of journalism, not a defence). If a story has the merit of being beneficial to society, the journalist can get away with breaking the law to get it. E.G. corruption exposé or scandals like the expense scandal would be very difficult to publish if journalists could be convicted for trying to bring the stories to the public's attention.

Magistrates Courts

Magistrates courts are the lowest level in the court hierarchy as regards criminal cases. The court deals with lesser crimes such as drink driving or speeding. These are considered summary offences. There is no jury present for summary cases and the magistrates court is limited to giving 6-month sentences. They can give 12-month sentences as well, in the case of giving two consecutive sentences for multiple crimes.

If a crime is too large for a the court to deal with it can be referred up to the crown court, but all criminal cases go through this court first.

Crown Courts

A case too large for the magistrates goes up to the crown courts. The crown court deals with indictable offences - these are offences which can be punished the most severely, such as murder and rape. It is the crown court's function to sentence such offences, and only in the case that they are appealed does it go up to next branch of the court hierarchy. 

In all cases, for someone to be convicted they must be proven to be guilty 'beyond all reasonable doubt'. This is the different from civil law, where someone must only be guilty 'within the balance of probabilities' to be convicted. However civil law is also less damaging, as a civil case can only punish a person found guilty financially, whereas crown courts have the power to sentence a defendant to life imprisonment.