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

services.

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

television filming.

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

without malice.

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

information.

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

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