Media, Law and Ethics
My second year “A” grade essay for the media law and ethics unit
What are the main things to consider as a magazine editor when publishing an exposé in the current digital age?
As a magazine editor publishing an expose in the current digital age, one must consider ethics and morals that contribute to responsible journalism. This ranges from the conflict between Article 8 and 10, privacy, defamation and copyright. However, the main thing to consider will be their moral compass when deciding what is permissible and whether the result of the exposé will justify the risks. The self regulatory system which will be referred to is the Independent Press Standards Organisation’s Code of Conduct which appreciates the rights of individuals as well as protects public interest. It is non compulsory and enforces the highest journalism standards. Although it is not a legal requirement, it is in the interest of the editor to apply the code in both printed and online publications before releasing an expose in the current digital age.
The first factor to consider is the conflict between the protection of privacy, and the promotion of freedom of expression. The European Convention for Human Rights Code of Conduct defined these two rights; Despite no longer being part of the European Union, this legislation still applies to the UK. Article 8 states “everyone has the right to respect for his private and family life, his home and his correspondence” (European Union Agency for Fundamental Rights, no date). This means that public authorities are not permitted to override this rule unless on substantial grounds such as prevention of disorder of crime and protection of health.
For example the Geoffrey Peck vs BBC Case was on the grounds of public interest to raise awareness on suicide, however the court ruled against BBC on the grounds of protection of individuals health. Article 10 states “everyone has the right to freedom of expression” (European Union Agency for Fundamental Rights, no date). Moreover, the 2020 Downing Street Party during lockdown was in the public’s interest to know that leaders had risked the protection of public health during the Covid 19 pandemic. As an editor, it is important to understand that neither article outweighs the other in the eyes of the court; Public interest is not always a determining factor.
For example, the publication of ‘Cries Unheard’ by a child serial killer was debated as it was questioned whether a criminal should profit from their crimes. It was however published given that the nature of the book was in public interest to promote awareness on signs of child abuse. On the other hand, the 1993 Jamie Bulger case was recently addressed due to the convicts reoffending under hidden identities. As an editor, it could be argued that it is in the public interest to call on Article 10 to reveal who the repeat offenders are, yet the court ruled against the disclosure as the consequences included risks to the safety of the convicts and may give occasion to vigilantism. Therefore when editors are publishing exposés in the current digital age, they must consider what is proportionate in each instance.
Coupled with the previous point, an editor must carefully consider risking privacy before proceeding with an exposé. According to Lord Nicholls, “a proper degree of privacy is essential for the well being and development of an individual” (2022, p. 416). Privacy is protected by the Data Protection Act, Regulation of Investigatory Powers 2000 and others which limits access to involvement or research into one's personal life. Albeit, privacy does not provide invisibility and is subjective to the individual’s conduct and consent; there have been times where the former self regulatory body, Press Complaints Commission, have ruled that individuals have invaded their own privacy by selling their story or talking publicly about private matters.
This means that an editor has the power, to an extent, to utilise photos taken in public spheres and information shared in public domains for exposés, so long as it does not challenge the protected clauses in the code of conduct such as health and children. The shared information must have been confidential and private, the participant must have had an obligation of confidentiality such as an NDA, and the unauthorised use of the information must have had detrimental impact.
One example of a successful case was Douglas vs Hello, a couple who had their wedding photos leaked to Hello Magazine after having denied permission. The case won because the wedding was a private affair, Hello Magazine were aware it was confidential as they had lost a bid to gain private access and the detrimental impact was unauthorised photos had circulated the media once OK Magazine had paid for exclusive access. Editors should be aware that subsequent risks include damages when information obtained in private is used for an unfair advantage. According to Collins and Spear, “Individuals can apply to courts to prevent the publication of information that would infringe their privacy” (2024, p.34) which can be prohibitory or mandatory injunctions. These can be dropped but can also be upheld for a long time which can prevent editors from including them in the expose. In rare but extreme cases, super injunctions can be enforced to prevent the publication of anything about an individual as well as the injunction. This is a high risk example because if broken, the editor can be prosecuted for contempt of court.
Publishing an exposé in the current digital age risks inciting a defamation case against an editor. Defamation Law according to McNae “protects an individual’s reputation from unjustified attack” (2022, p.335). This can include libel (written) or slander (verbal) as well as innuendoes which can have indirect defamatory suggestions. McNaes defines defamatory statements as something that affects reputation and tarnishes their credibility in society as well as in their professional landscape (2022, p.336). Editors need to be aware that they can be sued by multiple parties from individuals to trade unions. A credible defamatory case can be founded on the basis that reputation has been harmed, the information has been published and the prosecution is from the defamed individual. Such cases are risky to be brought to court given the uncertainty of how a judge might interpret the case, the need for the defence to have to prove the truth and the chance of high damages. For example, in 2021, The Times had to pay £50,000 in damages plus legal costs for falsely connecting the Al-Khair Foundation charity with human traffickers.
There are however defences that editors can use to protect themselves after publishing an expose that is being sued for defamation. According to Section 2 of the 2013 Defamation Act, the truth is a complete defence. If the exposé is substantially true the defence won’t fall. As an editor, it is important to balance the probabilities by keeping supporting evidence for at least a year and finding credible and convincing witnesses as “the burden of proof is usually on the defendant” according to Collins and Spear (2024, p.34). For example, in 2020 News Group Newspapers won a case against Johnny Depp on the grounds that their defamatory article was substantially true. Depp’s legal fees amounted to $5 million and would have had to be covered by the defence if the case was lost. Regarding public interest as a defence, editors should also consider the two types of privileges: Absolute and Qualified. According to McNaes “Law recognises that there are instances where the public interest demands that there should be complete freedom of speech without any risk of proceedings for defamation, even if statements are defamatory” (2022, p.364).
Absolute privilege allows complete answer and bar to any action of defamation from the report of proceedings so long as the information is fair, accurate and contemporaneous. Qualified proceedings however are more closely regulated and apply only to reports of actual proceedings with similar requirements as well as having to be without malice. For example the Reynolds v Times Newspapers Ltd is a key case study as the latter avoided a charge for defamation because the statements against Reynolds were made without malice.
Other defences include: honest opinion, waiver, payment into court, offer of amends as well as accord and satisfaction. It will be the responsibility of the editor to consider the public interest test which assesses the seriousness, source, status and nature of the information, the urgency and circumstances of the matter, the tone and inclusion of both parties for comment before publication. Considering these steps is crucial to ensure responsible journalism and minimise risks of damages.
The final aspect that an editor should consider is the regulation surrounding copyright. Intellectual Property Law “relates to the establishment and protection of intellectual creations” (The University of Law, 2024). Creative works are also protected by the Copyright Design Patents Act 1988 for up to 70 years after the author's death. An editor should recognise that the imagery used in exposés must be authorised by the actual author to not risk breaches. Authors have the moral right to identify as the author, have privacy of certain photographs and the right to object to derogatory treatment. Risks can include injunctions, damages both financial and punitive as well as criminal offences for large scale piracy which can amount to £700k.
If found in a position of being accused of infringement, the two main defences to rely on will be fair dealing for the nature of your work and public interest. Besides this, editors can claim incidental inclusion,innocent infringement and acquiescence. For example, the DaVince Legacy Case was accused of infringing the original DaVinci Code, however since the work was expressed as an art form and all facts in the were true, the Court ruled in its favour.
Therefore, before an editor publishes an expose in this current digital age, they will have to consider moral conflicts between Article 8 and 10, protection of privacy, risks of defamation and copyright infringes. These considerations will ensure responsible journalism.
1637 WORDS
BIBLIOGRAPHY:
Collins, J. and Spear, S. (2024) Fashion Writing. Great Britain: Laurence King.
European Union Agency for Fundamental Rights (2024) European Convention on Human Rights - Article 8. Available at: https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-8-0#:~:text=1%20Everyone%20has%20the%20right,his%20home%20and%20his%20correspondence.
European Union Agency for Fundamental Rights (2024) European Convention on Human Rights - Article 10. Available at: https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-10#:~:text=Article%2010%201.,authority%20and%20regardless%20of%20frontiers.
Harrison, S. and Hanna, Mark. (2022) McNae’s Essential Law For Journalists. United Kingdom: Oxford University Press.
The University of Law (2024) Intellectual Property Law. Available: https://www.law.ac.uk/employability/legal-practice-areas/intellectual-property-law/#:~:text=Intellectual%20Property%20(IP)%20law%20relates,%2C%20brands%2C%20artwork%20and%20music.
