3 July، 2011
By Perry Keller
Foundations of British Media Law and Policy
The media, in its varied forms, is now an inescapable part of life in every corner of the world. But in
each country the media plays a distinctively different role. Its relationship with the state and with
society at large is a unique consequence of politics, economics and culture. In Britain, the history of
the media is deeply entwined with the development of liberal democratic government and the
emergence of private capital and market economics. It is, for example, a fundamental principle of
British politics that a competitive media, free from unnecessary government restrictions, is essential
to a properly working democracy.
These concerns have, however, not always lead British governments to support private ownership
of the media. The press sector has flourished in private hands for more than two centuries and the
use of newspapers to support partisan political causes has long been a feature of British politics. But
governments have been less willing to allow partisan politics to dominate radio and television. The
broadcasting sector began as a state sponsored monopoly under the British Broadcasting
Corporation, which was committed to the impartial delivery of a broad range of information and
opinions. State intervention to ensure impartiality and breadth of content remains a distinctive
element in the regulation of radio and television.
Britain has also developed a strongly liberal democratic concept of freedom of expression, which
emphasises the special role of the media and the particular importance of freedom of the press. The
media therefore has a powerful weapon to use in challenging legal restrictions on the investigation
and publication of matters of public interest. But the right to freedom of the press in Britain must
always be balanced against other rights and interests. The need to protect national security and
public order and the rights of individuals to privacy and reputation will often outweigh the public's
interest in knowing certain information. The balancing of rights and interests is common to all legal
systems. However, a liberal democratic concept of freedom of expression demands that the
government shows that its restrictions on the media are both necessary and as limited as possible.
Most governments in Britain have supported the idea that private, rather than state, investment and
ownership should be the engine of growth in the media. Even in the radio and television sector,
which has a history of state ownership and intervention, government policy has shifted to support
major private investment and control. Nonetheless, social democratic concerns still play an
important part in media policy in Britain. The law, for example, attempts to ensure that everyone in
Britain has easy access to the core terrestrial television channels at a reasonable cost. This
principle of access to information and media services is now being extended to guarantee affordable
access to the internet. The core public and private terrestrial broadcasters are also under major
legal obligations to provide high quality programmes that appeal to a broad range of viewers,
including children and minority groups. State intervention to provide these services is justified on the
grounds that commercial incentives alone will not guarantee the adequate delivery of these
Constitutional and Legal Background
It is well known that Britain does not have a written constitution. Nonetheless, the British legal and
political system is shaped by constitutional principles and these have proven to be comparatively
effective in practice. The most basic of these principles is that Parliament is sovereign and has the
power to make laws concerning any matter relating to Britain. In practice, however, Parliament is
unlikely to adopt laws that deliberately breach Britain's international legal obligations or violate
fundamental human rights.
Britain became a party to the European Convention on Human Rights in 1952. Until recently, British
governments treated the convention as an ordinary international agreement and simply amended
domestic laws when they were found to violate the human rights treaty. This normally occurred
when the European Court of Human Rights (the ECHR) decided a case against Britain. In 1979, for
example, the ECHR ruled against Britain in an important freedom of expression case that concerned
Britain's laws on contempt of court. Parliament subsequently adopted the Contempt of Court Act
1981 to render British law consistent with the requirements of the Convention.
The government has now radically changed the legal treatment of human rights issues in Britain
with the adoption of the Human Rights Act 1998. This Act makes it unlawful for public authorities in
Britain to act contrary to the European Convention on Human Rights. The Act also gives all courts in
Britain the power to declare that a provision of any primary or secondary legislation is inconsistent
with a Convention right. However, such a declaration does not render the law concerned invalid. It
merely alerts Parliament to the necessity of amending that law. The most important Convention right
for the media is clearly the right to freedom of expression guaranteed by Article 10. However, many
individuals will look to the right to privacy guaranteed by article 8 in their efforts to block media
investigations into their personal affairs.
European Convention of Human Rights
Article 10, Freedom of Expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authorities
and regardless of frontiers. This article shall not prevent states from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or the rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority or impartiality of the judiciary.
Why does Britain not have a Press Law?
Britain has never had a comprehensive statute concerning the press. The legal principles and rules
that govern the activities of the press are spread across a wide range of statutes, regulations and
case law. For example, the law of contempt of court and the laws governing court reporting govern
the relationship between the media and the courts. There are several important reasons why legal
rules relating to the press have not been gathered in a single statute. The law in Britain tends to
change gradually in response to pressing problems in the application of the law. This tends to
favour piecemeal law making rather than the enactment of broad, comprehensive statutes. But
perhaps more importantly, the media in Britain has no special legal status. Editors and journalists
are merely private citizens engaged in non-governmental occupations. Consequently, it has always
been possible to deal with the rights of the press under laws that apply to ordinary citizens. There
is no reason to make the press the focus of a special law.
The Media and the Courts
It is a fundamental principle of English law that the courts should administer justice in public and
should exclude the public only when it is necessary to secure the proper administration of justice.
This is sometimes called the "open justice principle". This long-standing right of public access to the
courts is also supported by the European Convention of Human Rights, which states in Article 6(1)
that "everyone is entitled to a fair and public hearing". Open justice refers to the right of the public to
attend the courts and does not include a right to use cameras or make television films in court.
These are currently banned in England because of concerns about their influence on court
proceedings. However, some judges have called for the abolition of this ban on photography and
The right to attend court and to report on legal proceedings is an import element in the freedom of
the press. Clearly most members of the public do not have time to attend court and most courts are
unable to accommodate large numbers of spectators. The media therefore acts as the eyes and
ears of the public and this special role is recognised by the courts. Nonetheless, the media in Britain
have no official status and their special privileges in having access to the courts only reflect the fact
that they are representing the general public who cannot attend.
The courts have a range of powers to exclude the public and prevent matters disclosed in court from
being reported in the media. Restrictions may be imposed to protect witnesses who may be in
danger or to shield the victims of sexual assaults from embarrassing publicity. Reporting restrictions
are also sometimes imposed to protect national security. However, most restrictions on court
reporting concern the protection of children involved in criminal or civil proceedings.
Where children or juveniles are involved in criminal acts, there is a general principle that no
information should be reported in the media which is likely to lead to their identification. This
protection is intended to help in their rehabilitation. However, the courts may waive this protection in
the case of persistent and serious offenders who represent a potential threat to the public. The
courts also have a discretionary power to prohibit the identification of children or juveniles in any
other court proceedings. In these cases the judge must weigh the importance of protecting the
anonymity of the child against the media's duty to report on matters of public interest.
In 1984 a court had to consider the case of Mary Bell. Some years previously, as a girl of 11, Mary
Bell had committed the murder of two young boys. When released from prison years later she
adopted a new name and had a child. The court placed that child under its protective supervision
(wardship) and ordered that nothing could be reported that might lead to the identification of the
child. The court decided that while the public had a right to know of the whereabouts of Mary Bell,
her child's needs should take priority. But in other cases, the courts have refused to restrict
publication. For example, where a man was a convicted paedophile the court rejected a request to
ban publication of his name so as to avoid identification of his former wife and children.
The most serious restrictions on the ability of the media in Britain to report on court proceedings
arise out of the law of contempt of court. In this complex area of law, the media must be particularly
careful not to breach the Òstrict liabilityÓ rule of contempt. This rule provides that, regardless of
intention, a publication will be in contempt of court if creates a substantial risk that the course of
justice in a particular case will be seriously impeded or prejudiced. This can easily occur when jurors
or witnesses in a case read or see information about that case in the media. In 1994, for example,
the Sun newspaper and its editor were fined £100,000 for unintentionally publishing a photograph of
a defendant in a murder case two days before he was to appear in an identification parade. The
parade was supposed to determine whether witnesses could identify the defendant as the person
they saw commit the crime and the court reasonably concluded that this publication seriously
prejudiced that crucial exercise.
The Media and the Right to Reputation
One of the most important legal restrictions on the media in Britain is the requirement that the media
should not damage a person's reputation through inaccurate or unfair reporting. The courts have a
duty to protect the right of an individual not to have his or her reputation diminished by unjustified
attacks. But the courts also have a duty to protect freedom of expression and to permit the media to
investigate and expose illicit, unjust or scandalous conduct. This is often a difficult balance to
achieve in practice.
Criminal prosecutions for libel are now very rare and most cases are dealt with under the civil law of
defamation. Defamation is a civil wrong that entitles the defamed person to monetary compensation
(damages) for a loss of reputation. The law of defamation is an extremely complex branch of 'tort'
law. It is often difficult to determine whether a statement has seriously injured a person's reputation
and to decide whether that statement may nonetheless be defensible.
An oral or written statement is defamatory if, taken in context, it lowers a person's reputation in the
estimation of other members of society. The courts will look to see whether the statement has
caused the person to be shunned or avoided, or has exposed him or her to hatred, ridicule or
contempt, or has disparaged the person in their business or professional life. In one well known
case, Lord Aldington, a former army general won £1.5 million in damages in 1989 for an allegation
by a historian that he had returned thousands of Russian prisoners to the Soviet Union at the end of
the Second World War knowing that they would be executed. In less dramatic cases, a jury may
award damages of less than £20,000. In recent years, the court of appeal has intervened to reduce
the size of some excessive defamation awards, which can be large enough to drive smaller media
publications into bankruptcy.
In attempting to balance the right to reputation with the right to freedom of expression, the courts
have developed a number of powerful defences to claims of defamation. It is, firstly, a complete
defence to show that a defamatory statement is factually true. It is also a complete defence to show
that the statement was merely a fair comment. This means that the statement was a fair and honest
opinion on a matter of public interest based on facts that are true. However, in claiming truth or fair
comment, the defendant newspaper or radio or television broadcaster bears the onus of proving the
accuracy of the facts relied on.
In some circumstances, the legal principle of privilege will protect the publication of defamatory
statement even when it is factually inaccurate. Under the principle of ‘absolute privilege’ the media
can, for example, publish fair, accurate and contemporaneously published reports of statements
made in court. The principle of ‘qualified privilege' protects the publication of many other potentially
defamatory statements contained in specified reports and public documents if they are published
Since the Human Rights Act 1998 became law, the courts have begun to use the legal right to
freedom of expression to extend the principle of "qualified privilege". For example, the courts have
given a broad interpretation to the rule that the media are protected from claims of defamation when
publishing reports of lawful public meetings held to discuss matters of public concern. In one case, a
media report of a defamatory statement made at a meeting held in a private house, to which the
media were invited, was held to be protected by "qualified privilege".
British law has never offered the media the broad protection that American law gives the media in
that country when publishing potentially defamatory statements about public figures. However,
under the influence of the Human Rights Act, the English courts have recently developed the
principle of qualified privilege to provide a similar, but not as extensive protection.
It is long established that qualified privilege protects a person who makes an inaccurate, defamatory
statement when he or she has a legal, moral or social duty to inform another person who has an
duty or interest in receiving that information. This general rule clearly protects someone who
accidentally makes a mistake when reporting his or her beliefs about a crime to the police.
The courts have extended this principle to develop a new form of qualified privilege. In a case
involving allegations published in a British newspaper about Mr Reynolds, a former Prime Minister of
Ireland, Britain's highest court decided in 1999 that qualified privilege also extends to media reports
of important matters of public interest, provided good journalistic practices were used in
investigating and reporting the information. Since this groundbreaking case, the courts have
attempted to clarify the nature of this new form of qualified privilege.
For the media, the important question is how much margin for error do newspapers and
broadcasters now possess before they risk a claim for defamation. Certainly English law does not
go as far as American law in protecting the media. Moreover, many judges clearly feel that people in
the public eye should continue to enjoy an effective right to reputation. Yet critics suggest that the
rule established in the Reynolds case is too uncertain and does not give the media sufficient
protection to carry out its duty as a watchdog for the public.
Most individuals are not willing to bring a defamation case unless they feel very confident of winning
in court. The legal issues are often complex and the legal costs, which the losing side usually pays,
can far exceed the amount of the damages claim. In 1998, the television company Granada was
forced to pay £50,000 damages for a defamatory statement and to pay £600,000 for the legal costs
of the case.
The Media and the Right to Privacy
The concept of privacy means many different things to different people. In general, it refers to a
person's right to retain control over his or her personal life and is rooted in the idea of personal
autonomy. But, in practice, privacy has many different facets. People who wish to lead their lives in
a way that is different from the majority around them may feel that these personal choices are a
matter of privacy. Individuals may wish to invoke rights of privacy to prevent others from intruding
into their personal space. Whilst many people believe it is a basic right of privacy to prevent
personal information about them from being communicated to others without their consent.
The question of who is allowed to gather, process and communicate information about a person's
private life is a major social and legal issue in Britain today. For the media, the right to disclose
personal information is a vital aspect of news reporting. Claims of privacy are, moreover, often used
as a means of concealing illegal or immoral conduct. Nonetheless, the media plainly should not
publish intimate details about an individual's private life without good reason. The mere fact that
readers or viewers wish to know about the private life of a film star or a politician is not, in itself, a
sufficient reason to publish that information.
The law must therefore provide a means of balancing the individual's right to guard his or her
privacy against the public's right to know about matters of general importance. Yet over the past two
decades, British governments have been reluctant to create a specific civil obligation to protect
personal privacy. It was argued that privacy is too vague a concept for legal protection. But the
enactment of the 1998 Human Rights Act has radically changed this situation. The Act requires that
the government respect both the right to privacy and the right to freedom of expression, although it
leaves it to the courts to decide how the balance should be struck.
Under the influence of the Human Rights Act, the courts have extended the existing law of "breach
of confidence" to protect the right of individuals to keep personal information out of the media. The
law of breach of confidence protects sensitive information communicated in confidential
circumstances. Traditionally this applied in quite restricted circumstances. A newspaper cannot, for
example, publish information a patient has told a doctor in confidence without the permission of the
patient. Obligations of secrecy are frequently contained in employment contracts and employers are
able to use an action for breach of confidence to prevent disgruntled employees from disclosing
damaging commercial information. In the famous "Spycatcher" case, the British government
attempted to prevent newspapers in the UK. from publishing extracts from a book written by Peter
Wright, a former British intelligence officer living in Australia. Wright was clearly in breach of his
contractual obligation of secrecy. But the courts refused to prohibit the publication in Britain on the
ground that the information in the book was already widely available in America and other countries.
More recently, the courts have widened the circumstances in which a duty of confidence arises. It is
now sufficient for the media to know that the information is highly personal and was communicated
in a private situation. Nonetheless, the courts have decided that public figures, such as celebrities,
politicians and business leaders, cannot expect the same degree of privacy enjoyed by ordinary
people. This is especially so when a person is known to have previously courted publicity and
exposed their private life to the media.
The laws in Britain that govern questions of privacy in relation to the press are still changing and
these issues will develop further in coming years. As well as the law of breach of confidence, the
media must now also comply with the European Union Data Protection Directive. This law protects
privacy by limiting the unauthorised electronic processing and communication of personal
Fair Practice and the Ethics of Journalism
Governments in Britain have generally been reluctant to impose regulatory controls over the press.
Direct government controls over newspaper content would give an appearance of state censorship
that is unwelcome in a liberal democracy and would antagonise the press industry. Consequently,
under government pressure, the industry has set up its own system of voluntary regulation. The
current industry regulator is the Press Complaints Commission (PCC), which was established in
1991 after the previous self regulatory body was criticised for being slow and ineffective.
The PCC applies a Code of Practice written by a committee of senior newspaper editors. The Code
contains a set of basic principles giving guidance to editors and journalists. These principles include
the obligations to take care to be accurate and not to mislead readers, to respect privacy and not to
harass or intimidate anyone in the pursuit of information or pictures, and not to intrude into the
private lives of children. Some Code principles are subject to a public interest exception.
Newspapers may give these principles less weight if they can show that doing so was necessary for
the purpose of exposing criminal acts, protecting public health or safety, or to preventing the public
from being misled. Nonetheless, newspapers cannot use the public interest exception to justify the
identification of children involved in sexual offence cases, the identification of adult victims of sexual
assaults or the insensitive treatment of people suffering grief or shock.
An Individual has the right to complain to the PCC when they feel that a newspaper has acted
unfairly towards them in violation of the principles of the Code of Practice. The PCC attempts to
settle most complaints through conciliation between the complainant and the newspaper concerned.
But, where it is impossible to reach an informal resolution, it will adjudicate the complaint and issue
a formal decision. If the complaint is upheld, the newspaper concerned is obliged to publish the
PCC's decision. This voluntary regulatory system offers the public a flexible, low cost alternative to
the courts. However, the PCC does not have the power to impose fines or to order a newspaper not
to print a particular news story. Moreover, it has no power to sanction editors or journalist who
refuse to cooperate with its procedures.
The television and radio sectors are subject to government regulatory controls because these forms
of media are thought to have much greater influence over the public than the press. The law
requires that regulators ensure that broadcasters do not include anything in their programmes that
might be offensive to public feeling. Consequently, both the principal regulatory bodies, the
Independent Television Commission (ITC) and the Radio Authority, must ensure that television
channels and radio stations do not unjustifiably infringe anyone's privacy.
However, another government body, the Broadcasting Standards Commission (BSC), has primary
responsibility for handling individual complaints about unfair conduct by television and radio
broadcasters. The BSC has a legal duty to create a Code on Fairness and Privacy and to
investigate and adjudicate on complaints relating to Code breaches. Matters covered by this Code
include obligations to avoid the use of inaccurate or distorted information and to infringe personal
privacy only when there is an overriding public interest reason for doing so. Yet, the BSC has little
power to impose sanctions on television or radio licensees, although it may require that its findings
in a particular case be published. Its role is to provide a comparatively simple procedure in which
complaints are speedily resolved. Any additional powers to fine broadcasters or suspend their
licences would overlap with those of the ITC and the Radio Authority.
8. The Media and State Secrets
In recent years, the British government has attempted to allow greater access to government
information and curb bureaucratic traditions of excessive secrecy. In November 2000, Parliament
adopted the Freedom of Information Act, which creates a legal right for individuals and organisations
to have access to information held by government authorities. This law will come into force after
April 2002. There was considerable disagreement over the proper scope of this new law. Many
editors and journalists argued that the law should give broad access to government information,
whilst government officials were concerned that such access would create risks to security and also
undermine the efficiency of government.
The Freedom of Information Act is a compromise between these positions. The Act creates a public
right to information which is subject to a number of exceptions. Some of these exceptions apply only
where release of the information would harm particular interests, such as defence or international
relations. Other exceptions apply to entire classes of information even if disclosure does not cause
harm. There is, for example, a general exception for all information that Òrelates to the formulation
or development of government policyÓ. This means that the government could deny access to
background studies and reports that were used in deciding government policy. The Act provides
less access to government information than many in the media had hoped for, but it has created a
legal right of access to government information that did not previously exist in British law.
The unauthorised disclosure of state secrets in Britain is governed by the Official Secrets Acts.
These Acts create criminal offences for the disclosure of state secrets that damage the security and
intelligence services, the armed forces or other aspects of national security. Newspapers and
broadcasters can be prosecuted under the Official Secrets Acts if they disclose any information
knowing or suspecting that it is information protected by the Acts. Whilst the scope of these Acts is
still quite broad, the 1989 Official Secrets Act abolished the offence of publishing details of official
business. This offence was widely condemned for its unnecessary breadth, which in principle
included disclosure of the number of paperclips and staples used in a government office. It is no
defence under the Acts for an individual to prove that protected information was disclosed in the
public interest or to show that the information disclosed is already publicly available from other
sources. Nonetheless, it is certainly harder for the prosecution to prove that the disclosure was
damaging if the information was already available somewhere else. The internet has also made it
increasingly difficult for government authorities to use the threat of prosecution to stop the spread of
information once it has been leaked.
National security clearly requires protection. The difficult question is whether restrictions on the
disclosure of particular information are in fact necessary to protect national security or other vital
national interests. Given the fact that the information is necessarily secret, there is no public
scrutiny of government decisions not to disclose information. It is only when the government
chooses to prosecute an information leak that the necessity of withholding the information is tested
in a court of law.
For many decades, the government has operated a voluntary arrangement with the media in which
a joint committee issues guidance to the media to avoid violations of the Official Secrets Acts. This
committee is called the Defence, Press and Broadcasting Advisory Committee (DPBAC) and is
composed of officials from the Ministry of Defence, Home Office and Foreign Office as well as
representatives from major media organisations. It issues Defence Advisory Notices on matters
related to the security and intelligence services, national defence, anti-terrorism measures, nuclear
and non-nuclear military equipment and installations and other protected information. These notices
are not legally binding and editors are free to ignore them and take the risk of prosecution when they
believe that an Advisory Notice is unnecessarily cautious.
Media Law Studies in Britain
Media law is a subject of academic study in British universities. The School of law at King’s College
London, for example, offers courses in media law at both the undergraduate and postgraduatelevels. Media law also overlaps with several other areas of legal study. These includecommunications regulation, intellectual property law, and competition law, as well as Europea Union and international trade law. At the postgraduate level, law students at King’s College are able to study all these subjects. King’s is one of the principal colleges of the University of
London and enjoys an international reputation in the teaching of law