Legal restrictions on journalistic practice: Implications for freedom of the media

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Reporters Without Borders state on their website that:

“Freedom of information is the foundation of any democracy.”

Yet globally, journalists are contesting for their right to report freely and without persecution as the threat to freedom of the media continues. In 2015 alone, The International Federation of Journalists recorded 115 killings around the world, while the Committee to Protect Journalists (CPJ) documented the imprisonment of 199 journalists across almost 30 countries. Organisations such as CPJ and Reporters Without Borders endeavour to promote media freedom worldwide, while smaller citizen journalist groups, such as Raqqa Is Being Slaughtered Silently, are protesting against restrictions to their ability to report on events truthfully, within a particular area.

In the Western world, many societies pride themselves on their right to democracy and, to an extent, their freedom of speech. However, laws and guidelines are in place to regulate journalistic practice. Today, Poynter published this article on the media blackout on publishing details of the prisoner exchange of journalist, Jason Rezaian; Kelly McBride, vice president of Poynter, considers the fine line we must calibrate upon, between possible safety threats and the freedom to report facts. She believes that a blackout is not warranted if its weighting as a matter of public interest justifies it being published. While government enforced media blackouts in the UK are rare but not unheard of, there are other forms of regulation, imperative that journalists are attuned to. Though arguably much less extreme than the restrictions faced in other parts of the world, do the regulations enforced on journalism in England, challenge freedom of the media and freedom to information?

If found guilty of defamation in England, an individual or organisation could have to pay damages which can sometimes amount to thousands of pounds. These steep consequences act as a deterrent for journalists breaking the law. The other remedy for breaking the law on defamation is an injunction, meaning publication is prevented. This can be ordered before publication or proceeding publication to prevent it from being repeated. While the law seeks to protect claimants, it has the potential to harm a journalist’s right to publish freely. So what exactly is defamation? In the 2012 McNae’s Essential Guide for Journalists, Hanna and Dodd gave this definition:

“Defamatory statements are those published or spoken which affect the reputation of a person, company, or organisation.”

Affecting the reputation of a person, company or organisation can committed via two avenues: libel and slander. While libel covers both published and broadcasted forms of defamation, slander covers spoken forms. The result of which, impairs their ability to live their life comfortably or continue with performing a job adequately. Defamation lies within the realm of tort whereby the fault must be measured as a balance of probabilities. As outlined in Law For Journalists, by Frances Quinn, a defamatory statement must refer to the claimant or imply in the identity of the claimant in a way that a reasonable person would understand.

However, what happens when a journalist wants to report objectively and truthfully but could potentially risk publishing a defamatory statement in doing so? Well, there are a number of defences to defamation; while consent and reporting of truthful facts are considered defences, a recent change to the law means that responsible publication on a matter of public interest is now covered by the Defamation Act 2013. This means freedom to publish information is granted if it is considered to be information that should be public knowledge.

Recent examples of potentially defamatory reports include the claim’s made about Sports Direct and it’s exploitation of it’s employees (reported by The Guardian among many other outlets) and the exposing of MP, Simon Danczuk’s, explicit texts to a teenager (reported by The Telegraph among many other outlets). It was in the public interest that these stories be publicised as consumers have a right to know if a company is engaging in illegal practice and the public generally have a right to know about the character of members of parliament.

Another area of English law that potentially threatens one’s freedom to information is contempt of court. According to Quinn, the general route to committing this offence by journalists is by:

“publishing something which creates a substantial risk of serious prejudice to the outcome of a particular case.”

If found liable of contempt, journalists could face imprisonment in the most extreme cases, again demonstrating the severe consequences that journalists can be met with if they choose to exercise their belief in freedom of information. Again, public interest can be used as a defence; media freedom is therefore possible as long as it fits within this frame.

The inclusion of this defence to contempt of court and defamation is a signpost for the progression made in English law, as it indicates a step closer to freedom of information and true freedom of the media. As it stands, the English courts make an admirable attempt to ensure an equilibrium between freedom to information and maintaining journalistic practice rectitude that does not encroach on the privacy and reputation of others. We can only hope that a similar position will be held elsewhere around the world, as soon as possible.

Header image by Chloe D’Costa.

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