Re-Introduction to Media Law

Basic outline of the legal system:

Law is divided into two areas: Civil Law and Criminal Law. These two areas handle different types of cases to the other, and the process of trying cases also differs.

Criminal Law deals with offences committed by a person/s which are harmful or threatening to another person/s, property, or the state. Although the UK is, for all intents and purposes a republic, it is still in name a constitutional monarchy, meaning the Crown sits atop the legal pyramid; so criminal cases are brought to court by the Crown and are tried by a jury.

The purpose of Criminal Law is to punish a guilty party for committing a criminal act.

Civil Law differs, in that it typically deals with cases between a person/s and another person/s or business; usually where the two parties have a contractual dispute. Rather than being brought before the court by the Crown, cases are brought to court by the claimant. Civil Law cases are not tried by jury, but rather by Magistrate judges, or in some cases may be settled outside of court through mediation. Also, civil cases which concern employment disputes are often heard in seperate tribunals rather than in Magistrates Court.

The purpose of Civil Law is to find a resolution to the dispute, and where necessary, decided adequate compensation for the victim.

The standard of proof (or the level of evidence) also differs in Civil and Criminal Law.

In Civil Law, the claimant must prove ‘on the balance of probabilities‘ that they have suffered damage due to the act or omission of the defendant.

In Criminal Law the standard is much higher, with the prosecution having to prove ‘beyond reasonable doubt‘ that the defendant is guilty: hence the term, innocent until proven guilty.

There are different types of court, which will hear different types of cases. The court structure is a hierarchy set out almost as a pyramid: with the courts at the bottom dealing with civil cases, tribunals, and minor criminal offences, and the courts at the top dealing with more severe criminal offences, and appeals etc.

Source: Oxford Law

There may be instances where a case is moved up the pyramid, and heard in more than one court, i.e. in appeal cases or where a case is referred on to Crown Court by the Magistrates.

‘Law’ is really a catch-all term for a collection of rules coming from different areas. Britain does not have a singular document decreeing the law, unlike the United States’ Constitution, for example. While Britain does have a ‘constitution’ of sorts, it is more a collection of complex, often contradictory, and outdated documents, spanning hundreds of years.

As such, there are multiple sources of law in this country, which are:

Common Law – The oldest form of law, derived by judges and lawmakers appointed by the Crown during the Middle Ages. ‘Common’ meaning common to the entire realm.
Statue Law – This is the law as laid out by the government. Statue laws are proposed by the government then undergo a lengthy process of review and amendment, passing through both Houses of Parliament, before receiving Royal Ascent (being signed off by the monarch) to finally be passed into law.
Judicial Precedent – This is sometimes known as case law as it typically occurs in cases where the law is outdated and requires updating. Judges have the right to override previous precedent or statue where it is beneficial that the law be amended.
International Law – Laws imposed on the UK by the European Court of Justice or the European Court of Human Rights. The most obvious example being the Human Rights Act (1998).

Media Law and journalism

The UK has a free press, meaning the media can publish more or less whatever they want; however there are still some restrictions. However, these restrictions are predominantly put in place to protect the rights of individuals or to protect the security of the state.

These restrictions include: what can be said when reporting crime (so as to ensure a defendant has a fair trial without risk of the jury being influenced by what has been said in the media), publishing material which violates a person/s right to a private or family life (HCHR, Section 8) or publishing of government information i.e. official secrets, or generally the leaking of information which could be used to harm the state.

I will discuss crime reporting in greater detail in a future post.

While there are no laws or rights which apply solely to aid journalists, there are certain legal principles which can be of great benefit.

Freedom of expression – a fundamental principle of journalism, legally reinforced by section 10 of the European Convention of Human Rights (ECHR), as well as UK case law.

modern democracy requires the media to be free, active, professional and enquiring – Lord Bingham

But, while the ECHR can be of benefit to journalists in this way, it can also be a hinderance. Section 8 of the ECHR introduced the idea of privacy into British law, designed to protect the individual’s right to enjoy their personal/family life; however it is commonly used by celebrities to prevent the publication of stories or pictures they don’t want to be public.

For example in Mosley v News Group Newspapers (2008), a high-court judge ruled that there was no justification for the News of the World publishing a video and story exposing Max Mosley’s involvement in a Nazi-themed sadomasochistic orgy with several female prostitutes.

The newspaper argued that their right to freedom of expression (ECHR, section 8) should win out, because it was in the public interest to know that the individual was involved in Nazi roleplay, especially as the individual was President of an international corporation.

The judge ruled that even cases of adultery and sadomasochistic behaviour generally would not amount to a matter of public interest, and that the story could perhaps be justified only if the behaviour had involved the mocking of Jews or the the Holocaust; which the court ruled there was no evidence of. The case resulted in Mosley being awarded £60,000 in damages.

Section 8 of the ECHR has also seen a rise in celebrity super-injunctions, putting increasing limitations on what information journalists can report.

Rule against prior restraint – a long-standing principle of English law that, rather than censoring the press and restraining what can be published, there should be only be a remedy (if one is necessary) after publication. However the idea of privacy brought in UK law by Section 8 of the European Convention of Human Rights has led to this principle being undermined i.e. super-injunctions: the power of celebrities to block the publication of any information they don’t want to be published.

Public interest – material may be published if it is valuable to society as a whole. In cases of public interest, often the methods by which the information was gathered are secondary; even if they may have been dishonest/illegal. Such information would include matters of national security, health, and crime.

Right to a trial by a jury of your peers – juries may be kinder towards a journalist who argues they were acting in the public interest.


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