As the festive season is well and truly upon us, I am not giving you the Twelve Days of Christmas – instead, it is what you’ve all been waiting for, the ‘Twelve Months of Media Law’, round-up of 2014.
So, here are some of the key developments of 2014, which will continue to impact the regional press into 2015, and beyond. The new Defamation Act (“the Act”), which is in force in England and Wales, has brought about many changes, some of which are very important – so let’s start with that…
- If you’re a regular reader of this column, you cannot have failed to notice us talking about the new “serious harm” test in Section 1.
This new test seems to have raised the bar quite substantially, according to the case of Cooke & Midland Heart v MGN. In this case, a prominent and quick apology had a significant impact, not only in mitigating the harm, but also in preventing the offending words from being defamatory.
- Section 4 of the Act introduced the “public interest” defence, and saw the abolition of the Reynolds Defence. In order to utilise the defence, the statement complained of must be on a matter of public interest (an objective test), and the publisher must reasonably believe that its publication was in the public interest (a subjective test). The courts will also take into account ‘all of the circumstances’ of the case, which is where we think the responsible journalism factors will still come into play.
- The presumption that a libel claimant can elect for a trial by jury has been abolished. The court still has discretion to order a trial by jury, but it is difficult to envisage circumstances in which they will exercise that discretion. Whilst libel trials will continue to be complex and very expensive, this is a step in the right direction in controlling the proportionality of the cost.
Much of the new Act has not been tested in the courts, so watch out for our updates as and when it happens.
Data protection, reporting restrictions, new press regulators and RIPA have also been keeping us busy this year…
- Data protection has risen to the forefront, particularly with the Google Spain “right to be forgotten” ruling. We’ve seen Google removing a whole range of articles under the “right to be forgotten”, which prompted complainants, mistakenly, into believing that the ruling allows them to have stories removed from a newspaper’s website itself. It doesn’t.
- An updated version of “Reporting Restrictions in the Criminal Courts” has been published by the Media Lawyers Association, the Press Association and the Society of Editors. If you haven’t got a copy of it already, it should be in every court reporter’s Christmas stocking!
- The Court of Appeal ruled that validly imposed anonymity orders made under S.39 of the Children and Young Persons Act 1933 expire automatically upon the subject reaching the age of 18.
- The new press regulator IPSO launched on September 8. So far, the new regulator’s reign has been largely uneventful, but watch this space.
- IMPRESS, a rival regulator to IPSO, has now recruited its first Board, and has indicated that it will be seeking recognition under the Royal Charter in the New Year.
- June saw the “secret terror trial” furore, with an attempt for the trial of AB and CD to be held entirely in private on the grounds of national security – it would have been the first case in modern history to be held entirely away from the public gaze. Following challenges from the media, the defendants were allowed to be named, and some parts of the trial were held in public.
- Finally, the police’s use of the Regulation of Investigatory Powers Act (“RIPA”) has provided a controversial end to the year, with the police gaining access to journalists’ phone records without the need for judicial approval. The issue has sparked outcry from the industry, both national and regional and is sure to roll on into the New Year.
Wishing you all a very merry festive season – see you in 2015!