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Description
Flashcards by jdeelabelle, updated more than 1 year ago
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Created by jdeelabelle
almost 10 years ago
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| Question | Answer |
| Essential Law | Sources of law; Statue, Common Law (Custom), Precedent, EU Regulations, European Court of Human Rights. Branches of legal profession; Barristers and Solicitors Head of Judiciary; Lord Chief Justice A senior barrister can apply to become a Queen’s Counsellor, has to wear silk gown in court (Taking Silk) |
| Defamation | Law; Defamation Act 2013 "caused or likely to cause serious harm to an individual/company's reputation" Written or in any other permanent form; libel. Spoken; slander except in Broadcast. (Broadcasting Act 1990) Reporters must avoid juxtaposition, jigsaw i.d., inferences (second meaning understood by anyone) and innuendoes (understood by those with special knowledge) Apologies may repeat libel and cause more damage. |
| Defamation: Claimant | Must prove; - Defamation - Identification - Publication (Published to 3rd person) Doesn't have to prove; - Publisher's intention - Truth Local/Central Government cannot sue (unless there is malice). Parliament can waive parliamentary privilege and sue. Every repetition is a new publication, applies to online material in Archive. |
| Defamation: Defences | - Honest Opinion (2013); an opinion based on provably true facts/privileged material. - Truth (2013); statement is substantially true. - Public Interest (2013); a matter of public interest. - Privilege; court proceedings and other reports in public interest. - Accord and satisfaction; issue has already been resolved e.g. apology accepted by claimant. - Leave and license; signed agreement from claimant to publish. |
| Defamation: Absolute Privilege | Absolute Privilege (Defamation Act 1996); complete defence for reports of court cases/proceedings. Must be (Section 14); - Fair and accurate - Held in Public - Contemporaneously reported Doesn't protect; - Background information - Comments - Outbursts from public gallery |
| Defamation: Qualified Privilege | Qualified Privilege (1996) applies to list in Part 1/2 of Schedule 1. Must be; - Fair and accurate - Without malice - In the Public Interest Part 1; e.g. non-contemporaneous reports of court proceedings and legislature. Part 2; e.g. public meetings, statements from government agencies or police, press conferences. Part 2, Schedule 1; explanation and contradiction must be published if required by anyone defamed in report. |
| Defamation: Section 1 Defence | Section 1 of Defamation Act 1996; Defence of innocent dissemination for anyone who isn't author, editor or publishers, newsagents. Not responsible for defamatory statement published. Includes newsagents, booksellers, broadcasters of live programmes and online comments (unless staff moderated) Regulation 19 of Electronic Commerce Regulations 2002 also applies to online comments. |
| Defamation: Section 5 Defence | Section 5 of Defamation Act 2013; Defence for Website Operators. Covers defamatory comments posted on their site, even if staff moderated. Must; - Give identity of person who posted comment if asked - Remove comment if asked Claimant must say; - Where it's posted - What it says and why it is defamation - State parts that are inaccurate or opinions not supported by fact |
| Defamation: Remedies | Damages; payment to claimant (likely to be higher if "truth" defence was used and lost) Injunctions; stops further publication of defamatory statement |
| Contempt | Contempt of Court Law; protects administration of justice. In relation to Article 6 of ECHR; "right to fair trial" Contempt is caused by publishing prejudicial material; previous convictions, asking questions about jury deliberation, photographs/filming in court. Two areas of Contempt are Strict Liability and Common Law Contempt. |
| Contempt: Common Law | Creates a substantial risk of serious impediment or prejudice to pending proceedings; - published material with intent - behaviour or conduct Molestation; pestering a witness before they testify which deters them from testifying. Witness interviews; interviewing witness before a trial can affect their testimony. Vilifying; criticism of a witness after the end of trial is likely to deter future witnesses. |
| Contempt: Strict Liability | Creates a substantial risk of serious impediment or prejudice to active cases (Contempt of Court Act 1981) S1 Active (Criminal) when; - Warrant for arrest - When summoned to court - Arrested S1/S2; "Strict Liability" You are already liable, regardless of intent. Only Attorney General can initiate contempt proceedings. |
| Strict Liability | Period between verdict and sentence at Crown Court; still active. Unlikely to influence judge. Case becomes active again when appeal is lodged. Ceases to be active when; - Discharged - No arrest made - Acquitted/Sentenced Journalists must press for clarification. |
| Strict Liability: Remedies | S3, CCA 1981; publisher took reasonable care or did not know proceedings were active. Injunction; Attorney General can stop future publication of SRSIP material or restrain media activity. The fade factor; public/jury will have forgotten SRSIP material (unless accessible online) |
| Strict Liability: Defences | Court reporting may create SRSIP during or before a pending case. S4, CoCA 1981 defence; - Held in Public - Fair and accurate - Published contemporaneously - In good faith S5, CoCA 1981; Discussion in good faith of public affairs. |
| Strict Liability: Section 4(2) | S4(2) CoCA 1981; order to temporarily postpone court reporting to avoid SRAIP in current or pending proceedings ("any" not serious) Can be made in any court. To protect administration of justice, not reputation or career. |
| Strict Liability: Civil Proceedings | Active when; - Time and date of trial/hearing is fixed Ceases to be active when; - Disposed of - Abandoned - Withdrawn |
| Court Reporting: Restrictions | S8, CoCA 1981; Contempt to obtain, seek or publish jury deliberations (votes, opinions, comments, arguments) S9, CoCA 1981; Contempt to use audio recording device and publish recording without permission. |
| Court Reporting: Other Restrictions | S41, Criminal Justice Act 1925; Illegal to photograph, film and sketch in any court or within court precincts. S11, CoCA 1981; Permanent ban on the publication of details in connection with proceedings (in interest of justice) e.g. for witness identity or commercial secrets. S46, Youth Justice & Criminal Evidence Act 1999; Lifetime anonymity for adult witnesses to improve co-operation (NASWP) Given to convicted defendants in exceptional cases. |
| Open Justice | Origins; Scott v Scott 1913 House of Lords affirmed the Common Law rule that courts must administer justice in public. Witnesses are less likely to lie. Any reporting restriction is a departure from Open Justice. Protected by Article 10 of ECHR "freedom of expression" |
| Key terms | Bail; when a person awaiting trial is freed until pending hearing. Indictable offence; a charge which may be trailed by a jury at Crown court. Acquittal; judgement by judge/jury that defendant is not guilty. Common Law; law based on the custom of the real and decisions of judges. Counsel; Barrister |
| Juveniles: Reporting Restrictions | S49, CYPA 1993; Automatic reporting restriction on the identity of juveniles involved in proceedings in Youth Court (NASP) S39; Nonautomatic reporting restriction on the identity of juveniles involved in proceedings in Adult Court (NASP) Can be lifted to; - Avoid injustice - Help trace a juvenile (violent or sexual offence) - Public interest - Serious offence |
| ASBOs | No automatic ban on publishing identity of juvenile in ASBO application report. S39 can be imposed. "Bolt-on"; an ASBO imposed on defendant convicted of an offence. Unless S39 is made, media can identify a juvenile on whom a 'bolt-on' ASBO is imposed. But S49 may apply to precedent hearing report if at youth court. Crime and Disorder Act 1998 |
| Sexual Offences | Victims of have lifetime anonymity as soon as the allegation is made. Defendants have no anonymity, even if acquitted. Applies to; - Criminal proceedings - Civil proceedings - Employment tribunals |
| Sexual Offences: Restrictions | S1, Sexual Offences Act 1992; Once an allegation is made, it is illegal to publish NAWSP (alleged or actual) The Editors' Code of Practice (Clause 7) and OFCOM (Rule 1.8) ban identification of children in sex cases. Clause 11, ECoP; ethical consideration when identifying alleged victims. Unless written consent is given, or it is in the public's interest. |
| Types of Sexual Offences | - Abduction with intent to marry or have sex - Trafficking for sexual exploitation - Voyeurism - Administering drugs to obtain intercourse with a woman - Rape - Intercourse with a girl under 16 |
| Privacy | There is no specific law on privacy so we draw on other bits of law and add them together to apply in court. Article 8, ECHR; Right to respect for privacy and family life S8 Ofcom, S3 and S10 PCC. More leeway in PCC code. PCC can fine, Ofcom can revoke license. |
| Privacy: Remedies | - Injunction; stop media from publishing information - Super injunction; also prohibits media from publishing the fact that there is an injunction - Interim injunction; a permanent ban - Damages |
| Breach of Confidence | Origins; Common Law and Prince Albert v Strange 1849 Includes; documents, photos and information that others have no right to pass on. Confidentiality Law; Information disclosed has "quality of confidence" (does not apply to information already available) Trade secrets, personal information (inc. photos) and professional information. Obligation of confidence; - Contractual relationship (contract) - Personal relationship (e.g. family) - Unethical behaviour (trespass/theft) |
| Breach of Confidence: Remedies | - Injunctions; temporarily stops media publishing information - Seek court order for confidential material to be given back to claimant/destroyed - Damages - Accounts of Profits |
| Injunctions: Courts | Before applying for an injunction, courts must consider; - Importance of right to freedom of expression (Article 10, ECHR) - Whether material concerned is already in public domain - Public interest in publication Interim injunctions are viewed as restrictions on freedom of expression. |
| Breach of Confidence: Defences | - Information already in public domain - It was in the public's interest - Consent - Information wasn't confidential |
| Data Protection | Data Protection Act can work alongside Privacy and Breach of Confidence. Data Protection Act covers use of sensitive personal data. |
| Copyright | Copyright, Designs and Patents Act 1988 Protects intellectual property, gives creator power to protect work (product of time, labour, energy and skill) Applies to; - Original literary, dramatic, musical or artistic works - Sound recordings, films or broadcasts - Typographical arrangements |
| Copyright: Claimant | Can sue if whole or substantial part of work is copied without permission. The first "owner" has copyright unless they agree to assign another party. An employer owns the copyright of work created by an employee (S11, CPaDA 1988) |
| Copyright: Length | Copyright lasts author's lifetime plus 70 years. Companies' copyright lasts 70 years from the end of the first year of publication. Copyright in broadcast lasts 50 ears from the E.O.Y of first broadcast. |
| Copyright: News and Information | Copyright material has to be in tangible form. News events and information is not covered by Copyright In news stories, copyright exists in how information is expressed, selected and arranged. |
| Copyright: Key Terms | Assignment; selling the work and the copyright Licence; selling permission to use work in particular way (length of time, format, publication) but copyright remains with first owner S85-88 Moral rights; creator wants to be acknowledged for work, work should not undergo unjustified modification (integrity), rewritten articles that gives writer's personal opinion (false attribution of authorship), commissioner of photographs for private/domestic purposes has right to not have copies published (unauthorised use of pictures) |
| Copyright: Online | Publishing material such as; photographs or an extract of original text copied from the internet infringes copyright (unless there is written consent or a defence) Downloading is an infringement of copyright Copying photos from social networking sites may infringe the copyright in the sited and the person who took photo. PCC guidelines warn against use of photos from social media (privacy and public interest) |
| Copyright: Remedies | Injunction; can prevent copyright or prevent repetition Damages/Account of profits; claim all or some of profits made Court order; copied work handed to owner or destroyed |
| Copyright: Fair dealing | CPaDA 1988 says infringement of copyright is a criminal offence. S30, CPaDA 1988; Fair Dealing Allows publication of copyright material for "the purpose of reporting current events" or for "criticism or review" without consent Photographs are excluded from fair dealing of "reporting current events" Fair dealing does not apply to work that has been leaked, copyright holder must be acknowledged. |
| Copyright: Other Defences | S31, CDaPA 1988 Incidental Inclusion; inclusion of copyright material that was not intentional or deliberate e.g. background music Public interest; courts recognise important of story/programme (overrides copyright law) Acquiescence; owner of copyright knows their work is being used, doesn't make complaint. S58, CDaPA 1988; applies where media records copyrighted spoken word for current events/broadcasting. |
| Inquests | Coroners & Justice Act 2009; investigates to find out cause of death (violent, unnatural, deaths of those held in custody) and also decide on treasure trove. Inquests are classed as court hearings, court reporting restrictions apply. Coroners; barrister, doctor or solicitor for 5 years. |
| Inquests: Reporting | Rule 17, C&JA 2009; - public (open court)/open justice - public and press can be excluded due to national security - allows some to be private via Inquires Act 2005 Inquests may be held with jury (CoCA applies) Rule 37, Coroners Rules 1984; Coroners can take evidence in written form (when unlikely to be disputed e.g. from a doctor) but should not be read out loud. |
| Inquests: Treasure | Treasure Act 1996 Objects e.g. silver or gold coins at least 300 years old found in ground Must be reported to local coroner within 14 days Finder/owner may get reward, National museums can acquire treasure. |
| Tribunals | Tribunals & Inquiries Act 1992 Legal body that adjudicates on disputes on specialised areas of law e.g. employment, benefits and immigration Consists of a panel with some expertise Designed to decide disputes faster than a court case (CoCA applies) |
| Public Inquiries | Legal, investigatory process e.g. town development Media reports covered by qualified privilege Government-initiated e.g. Mid Staff hospital S37, Inquiries Act 2005; public inquiry has same protection as court proceedings (absolute privilege) S19, IA 2005; evidence can be heard in private (national security); not covered by privlege |
| Appeals | Appeals can be challenged via appeals procedure (High Court and Supreme Court) |
| Tribunals & Inquiries: Procedure | - Claimant; brings the case - Respondent; opposing party - Usually held in public - Maybe a pre-hearing to clarify issues Full reporting restrictions order; media cannot report until tribunal has made final decision and issued written judgement |
| Breach of Confidence: Obligations | Obligation of confidence; - Contractual relationship (contract) - Personal relationship (e.g. family) - Unethical behaviour (trespass/theft) |
| Freedom of Information | Freedom of Information Act 2005; allows us to as questions of public bodies e.g. NHS. Anyone can apply and there is no cost (time coast may apply) Response should be within 20 days or further the appeal via Information Tribunal Material is physical; written documents, emails e.t.c. |
| Freedom of Information: Rights | Rights: - To be told that the information exists - To be told if you can't have it - To be gives public interest come in to play |
| Freedom of Information: Exemptions | Absolute exemptions; - Already accessible - High level security - Court records - Parliamentary Privilege - Conduct of public affairs Qualified exemptions: - Authority intends to publish it - National security International relations - Economic interests - Law enforcements - Conduct of PA - Royalty - Heath and safety - Trade secrets |
| PCC and Ofcom: Inquests | S5, PCC; - Intrusion into grief or shock - Avoid reporting excessive detail on suicides Ofcom: - People in distress should not be pressured to be interviewed - Reduce distress of victims/relative when making programmes - Inform surviving relatives/victims that coverage is planned |
| PCC and OFCOM: Public Interest | Public interest, PCC definition; - Detecting/exposing crime or serious impropriety - Protecting public health and safety - Preventing the public from being misled by an action or statement of an individual/organisation - There is public interest in freedom of expression itself Ofcom; - Revealing/detecting crime - Protecting public health and safety - Exposing or misleading claims by individuals/organisations - Disclosing incompetence that affects the public |
| PCC and Ofcom: Intrusion in to grief and shock | S8.16, Ofcom; Broadcasters should not take or broadcast footage of people; - In emergencies - Victims of accidents - Those suffering personal tragedy (even if in public place unless warranted or consent given) S5, PCC; Inquiries must be made and publication handled with sympathy, sensitivity and discretion (avoid graphic detail) |
| PCC and Ofcom: Privacy | S8 Privacy, Ofcom; Permission must be obtained for filming unless warranted (e.g. secret filming to expose) Code 10, PCC; Clandestine devices and subterfuge relates to privacy and public interest |
| PCC and Ofcom: Harm & Offence | S2, Ofcom: (2.1); generally accepted standards must be applied to protect public form harmful or offensive material (2.3); material likely to cause offence must be |
| PCC Codes | PCC's powers; a self-regulating body that can censure press, make them publish correction/apology but no power to impose fines - PCC Public Interest - PCC Misinterpretation - PCC Code, S1 Accuracy - PCC Code, S3 Privacy - PCC Code, S4 Harassment - PCC Code, S5 Intrusion into grief or shock - PCC Code, S6 Children's Welfare & Privacy - PCC Code, S7 Children in Sex Case - PCC Code, S8 Hospital and Institutions - PCC Code, S9 Reporting Crime - PCC Code, S10 Clandestine Devices & Subterfuge - PCC Code S14 Protecting Sources |
| Ofcom Codes | Ofcom powers; issues a direction to forbid repeat broadcast of a programme, broadcast a correction/statement, impose a fine and revoke licence - Ofcom Code Public Interest - Ofcom Code, S2 Harm & Offence - Ofcom Code, S8.1/2/4 Privacy - Ofcom Code, S8.11 Door-stepping - Ofcom Code, S8.16/18 Intrusion of grief and shock - Ofcom Code, S8.20 Children's welfare and privacy - Ofcom Code, S8.8 Hospitals and Institutions - Ofcom Code, S8.13/14 Secret filming/recording |
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