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    Wednesday, 24 September 2008

    Respect for Contempt?: keeping speech free and trials fair

    Following the failure of the jury to reach verdicts on some of the charges in the airlines liquid bomb plot there has been much media comment on the rights and wrongs of the outcome. This is interesting because, of course, the prosecution is still considering whether to pursue the case before a reconstituted jury. Thus, for the time being the matter remains 'active' for the purposes of the Contempt of Court Act 1981, and hence putatively sub judice.

    In light of the media publicity, and the seemingly sanguine response of the Attorney General's Department, there has been an exchange of views between leading lawyers and the current Attorney General - Baroness Scotland - in the letters pages of The Times. Alun Jones QC asked "has the law of contempt ceased to apply to the media?... The times have gone when the Attorney-General enforced the law of contempt effectively. If she does not do so, what is the point of it?".

    In response, Baroness Scotland explained that "the law on contempt involves a delicate balance between two vital public interests — on the one hand freedom of speech and of expression, and on the other hand the right of an accused person to a fair trial. Not every public comment about a particular case, however outspoken, will seriously interfere with the rights of the accused... Journalists and commentators should be in no doubt that I will continue to enforce the law on contempt fairly and robustly".

    The upshot for journalists and editors is that the law and practice engenders something of a grey area in which the legality of stories - or perhaps the susceptibility to prosecution - is indeterminate.

    From our perspective, its a timely re-emergence of a long-standing debate. Next month, the LSE Law Department - together with the BBC College of Journalism and Polis - is to host a public panel debate on the theme. The evening's discussion will be chaired by Maxine Mawhinney of BBC News 24, who was herself embroiled in the problems created for journalists by the current law during the breaking of the Suffolk Strangler story. Broadly speaking, Joshua Rozenburg (Legal Affairs editor at the Telegraph) and Mark Haslam (partner at BCL Burton Copeland who represented Steve Wright in the Suffolk murders case) will speak in favour of media caution, while Jonathan Kotler (US Attorney, and Professor at the USC Annenburg School of Journalism) and Nick Davies (Guardian, and author of Flat Earth News) will question the utility of the current regulatory regime.

    We are preparing a set of background papers in support of this and a second event. These cover the current law in England and Wales, equivalent regulation in comparable jurisdictions, the state of the social-scientific evidence on the impact of media publicity on the fairness of trials, and an options paper. We're looking into how best to make this material more widely available.

    Tuesday, 16 September 2008

    Libel-tourism: impending collapse of another operation?

    There was a very interesting opinion piece published on the NY Times site on Sunday reflecting on the libel-tourism phenomenon which sees US-based celebrities and others sue in UK/Irish courts for purported defamation only 'incidentally' perpetrated here. The Independent had a piece on the phenomemon last month.

    The gander has been gotten up in the US, and was reflected in the UN Human Rights Committee statement published a few weeks ago. Following the Rachel Ehrenfeld case, the NY State legislature was looking to introduce a blocking statute. It seems that there is now a federal bill as well that may be passed before the end of next month.

    Friday, 12 September 2008

    Contested territory: Ofcom and BBC Trust elaborate on regulatory boundaries

    Ofcom has published an addition to its March 2007 memorandum of understanding with the BBC Trust as to which regulator will review which supposed content code infractions (1). The position has been that the Trust deals with all matters relating accuracy or impartiality, while Ofcom reviews allegations of inclusion of offensive and harmful material.

    The new 'addition' is intended to cover situations in which a single programme gives rise to an issue both of offence and/or harm, and accuracy. This clarifies that Ofcom will enjoy jurisdiction where three conditions are satisfied, even if the allegation involves accuracy. Otherwise matters remain the sole preserve of the Trust. These conditions are:
    - It is not an issue arising from News/news headlines or Current Affairs content as defined in the Memorandum of Understanding; and
    - It arises from deceptive or misleading content; and
    - It arises from (a) an explicit on-air invitation to the audience to participate in a vote or competition and harm or offence to members of the public is, or is likely to be, caused or (b) an on-air invitation to the audience/members of the public to act in a manner likely to result in material harm and/or offence (for example, actions likely to result in detrimental life changing consequences such as injury to health or financial well being).

    Unwitting exclusions: Rowntree study on poverty reporting in the media

    The Joseph Rowntree Foundation has published a study into the reporting of 'poverty' across media in the UK. Its an interesting read, and makes points that will be familiar to those of a 'Chomskyite' perspective (ie that the mainstream media systematically under-reports some matters of importance to society) - see medialens for elaboration on this viewpoint.

    The relatively unsurprising key findings of the study include:
    - Coverage of poverty is peripheral in mainstream UK media. The causes of poverty and the consequences of poverty were rarely explored.
    - Non-news broadcasts rarely mentioned poverty, although they often featured those experiencing deprivation. Coverage tended to focus on extreme cases, highlighting the inherent ‘failings’ of undeserving people. Some documentaries explored the inequities of poverty and complex circumstances of those experiencing it, but reached limited audiences.
    - In news media, poverty in the developing world received as much coverage as poverty in the UK, but was reported differently. Depictions of extreme poverty outside the UK correspond with and may influence how the public perceive and define poverty.
    - The campaigning sector contributes to keeping UK poverty in the news and is valued by media professionals as a source of comment and a means to access people experiencing poverty. Campaigners recognise that they could be more proactive in generating and promoting coverage of under-reported aspects of poverty.
    - Audiences tend to interpret representations of poverty and its causes in accordance with their beliefs and understandings. A key limitation of media coverage is the tendency to marginalise accounts which confront negative public attitudes.
    - The researchers conclude that if media coverage could challenge misperceptions of poverty in the UK, it could prove an effective means of generating public support for anti-poverty initiatives.

    There are also a couple of lovely quotes from focus group participants and others - for example:

    "Journalists don’t slam the door in the face of the poor. They just don’t go knocking. It's not just the journalistic process: poor people don’t make their voices heard so their stories don’t get reported." (Editor, regional newspaper)

    "I read the News of the World but I don’t believe a single word that is in it. Not even the times of the TV programmes." (White female, urban Scotland).

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