So Sue Me!
A very basic introduction to UK libel and contempt of court laws. Not just for journalists - every presenter should take note!
It's always seemed fairly strange to me, the notion that only broadcast journalists need to be aware of the legalities of broadcasting content. It probably has origins in printed media, where journalists were trained in law but features writers tended not to be. The reason being that everything was passed through a sub-editor, who'd normally come through the ranks of being a journalist, and would be aware of any material that could fall foul of the law. But broadcasting is very different. There are no sub-editors to prevent what is said from being broadcast, and short of scripting every link there is little a radio station could do keep tabs on a presenter, even accidentally, making a defamatory remark.
So what exactly are we talking about? Broadcasting law, and everything it encompasses, is a huge topic and covers everything from technical specifications through to copyright, defamation and contempt of court. The UK has some pretty tight defamation laws and similarly strict rules when it comes talking about criminal court cases. These have led to the journalist's motto of "if in doubt, leave it out." Broadcast law can become a potential mind-field and it is easy to see why it is not just journalists who are affected.
Libel
The UK has some of the most comprehensive defamation laws in the world - but also the most misunderstood. A basic knowledge of libel not only could keep you out of court, but will also allow you to prevent people using libel laws to stop you broadcasting something. There are many people who think they know libel litigation, but a quick "And what section of the '96 Act is that in?" will normally prove they don't actually know what they're talking about.
The basic gist of the law is that it is there to protect people or organisations from being thought of badly by the 'right thinking members of society'. A defamatory statement being defined as "if it damages reputation by exposing a person to hatred, contempt, shame or ridicule or makes a person likely to be avoided or shunned".
The defence a broadcaster can use are justification, fair comment, privilege and when working in live situations unintentional defamation. However, it is common claim by journalists and those working in the media that defamation laws are weighted against them.
So how might a presenter on a student radio station land themselves with a libel writ? The most obvious way is when discussing products and services. It is house-hunting season at your University and two of your afternoon jocks are locked in discussion reminiscing when they were first years looking for a house. "I went to ACME housing first" says one, "the service was appalling, the house we viewed was in a disgusting state and then they tried charging us when we hadn't even signed anything." That statement in itself could be seen as defamatory, however it could be argued that it was fair comment - and providing the presenter could prove the allegation was true it would probably never get to court. How else would consumer programmes get away with it? However, four words could completely change the allegation. If the other presenter replies "They're always doing that" he's making a far more substantial allegation - suggesting that this company is maliciously mistreating their customers rather than just an account of a bad experience by one person.
And that is how tight the law of libel can get - and how close the difference between good broadcasting and a court case can be.
What perhaps is more worrying for radio stations is not the lack of knowledge that presenters have, but the misconstrued ideas that they have picked up. Among the most common is the idea that saying "allegedly" after making a defamatory comment will prevent you from receiving a libel writ. Unfortunately, and mainly due to programmes like Have I Got News For You, using the "allegedly" word is actually more likely to see you in court - as it is perceived as admittance that you're not sure whether what you are saying is true.
Not using someone's name is often believed to be a way of avoiding libel suits. The law in fact says that reference to a person, or the inference of that person, is grounds to sue. So if you said "a former Student Union President, who was successfully no-confidenced, was actually taking bribes from the university" and you'd only had one who had been ousted, they are within their rights to take action, even if you didn't say their name. Moreover, if you had two presidents who had successfully been no-confidended then they both could successfully sue providing they could prove that they had both been identified.
Important too is the context in which the allegations are made. If they are presented in a light-hearted way on a comedy sketch show, there is far less chance of being successfully sued than if they were lead story on your campus news bulletin. But the crunch here is that the listener must be aware of type of programme and the only reason that shows such as Have I Got News For You can get away with what they do is because of the reputation that they have built up, and they have a team of laywers who sit through the recording and editing process.
Bear in mind that everything broadcast on your station is your responsibility. A claiment (the person bringing the action to court) can take action against the station even if the substance of the claim is regarding comments made by a third party. There is a defence added to the 1996 Defamation Act which allows for a broadcaster when they had no effective control over the maker of the defamatory statement. However you have to prove that you took reasonable care, so watch out if you plan to broadcast your sabbatical election hustings.
Contempt of Court
The other major area that broadcasters can get into trouble with is the Contempt of Court Act 1981. Unlike libel, Contempt of Court is a criminal case and therefore the sentences can include periods in jail and not just fines.
The Contempt of Court act is designed to ensure that everyone gets a fair trial; and the main way of falling foul of the law is by doing something which could jeopardise this. It's a Thursday morning and your breakfast show is doing a round-up of campus events. The presenter says that there is a Union Disco on tomorrow night, and lets hope that nothing bad happens like last week. Last week a bouncer was seriously injured after an attack by a second year student from the Geography Department.
It is Contempt because at the subsequent trial, jurors could be prejudiced because they have already heard the description of the person accused of commiting the offence. It doesn't matter whether they have or not, nor does it matter whether you intended to cause prejudice, Contempt is proved only if it happens.
Contempt is also about ensuring that justice is seen to be done. Court reporting has to be fair to both sides, so that the public can see why a decision was reached and not simply think that a jury has gone against a body of evidence presented by only one side. It is also contempt to suggest someone is guilty (or not) before the jury has reached its decision.
There are a couple of examples of where this has happened in real situations. Mark Peters and Lisa Freame, the breakfast presenters on Shropshire-based Beacon FM were taken off-air, and subsequently left the station, after they made prejudicial comments about the Soham murder case whilst it was still taking place. The pair hosted a phone-in asking whether Ian Huntley's evidence could be believed; with Mark Peters saying that "It's almost like the most unbelievably made-up story in the world ever, really, isn't it?". In December 2004, a year after the broadcast was made, the Attorney General decided that no action would be taken against the presenters.
A similar thing happened in the trial of Dr. Harold Shipman. Preston's Rock FM jocks DJ Mark Kaye and travel girl Judith Vause suggested that Dr. Shipman was "guilty as sin" and that he should "admit to it" whilst the case was being held at the city's court. The presenters, and their bosses, were hauled up in front of the judge who told them it was only the prompt action of their management that prevented a prison sentence.
Covering court cases is a nightmare for journalists, and even more so for non-journalists. There are many complex rules which apply, you have to be fair to all sides and also only report what was said in front of the jury (and then to obey any instructions issued by the judge; for example a restriction on identifying a witness).
How can you protect yourself?
Because both libel and contempt of court cases can be against the individuals who made the broadcast (sometimes even if they weren't directly invovled) as well as the organisations responsible for broadcasting, it's important that everyone understand the law.
Without a doubt, every radio station, and come to that matter every individual, particularly the news-team, should have a copy of McNae's Essential Law for Journalists. It is usually described as the journalists' bible, and is used in pretty much everywhere journalist are trained. What makes it doubly good is that it is only £15 and very easy to read. If your station hasn't got a copy, then you can buy a copy from Amazon here.
You might also find the law sections on NewsDesk-UK useful. There is a also a good explanation of contempt on the BBC's website.
It is also definitely worth reading the Ofcom guidelines, both on Programming and the specific ones on News and Current Affairs. Your station should have a copy, and if they don't Ofcom can supply copies to licenced stations; but you can also get the information on the Ofcom's website at www.ofcom.org.uk. It's also worth reading the quaterly complaint bulletins which give you examples of where problems can lie.
Finally a disclaimer. The above article was written to give a taste of the laws of broadcasting and the cases and scenario's suggested should not be taken at face value. The only way to understand the law is by reading up on it, and then if you want additional information to seek legal advice.