MEDIA LAW

By Jamie Elliott

A must know for every journalist
We include media law in all our courses because being able to spot the legal risks in a story is a vital skill for any journalist.

This is because, whilst an editor may forgive the odd spelling mistake or factual inaccuracy, a law suit – especially one for defamation – can end up costing a media organisation millions. It can also leave an editor, and even the journalist concerned, bankrupt.

And even if you win a libel case, it can still cost you or your employer a small fortune, as Dr Ben Goldacre, who was sued for an article published in the Guardian, explains in this video clip.

Ten tips for avoiding a libel suit – click here

Libel law and the ‘chilling effect’
Journalists in England and Wales face a far higher bar than in many other countries when it comes to persuading editors that it is legally safe to publish. We have some of the toughest libel laws in the world.

This is because someone who believes they have been defamed does not have to prove an allegation is false. They simply have to show that what has been published ‘tends to’ damage their reputation in the eyes of ‘right thinking members of society’.

The burden of proof as far as the truthfulness of an allegation goes, lies entirely with the publisher (which means the media organisation, the editor, the journalist, or all three). The publisher has to prove the story is true to combat an allegation of libel – the person or corporation suing for libel does not have to prove it is false.

This is in stark contrast to the United States for example, where anyone suing for libel must first prove that the statement was false, and second, that it caused harm.  They also have to prove that any allegation was made without adequate research to check its accuracy.

Editors are terrified of libel
The upshot of our very stringent libel laws is that editors here are terrified of being sued and tend to take a decidedly safety first approach when it comes to breaking controversial stories. This has become known as the ‘chilling effect’.

In my experience, editors tend to raise the threshold of legal safety higher than may be strictly necessary in order to be absolutely sure that they are not going to have to explain to their boss why a costly law suit has to be defended.

If, as a journalist, you have one or two witnesses who are prepared to go on the record to back up your story, your editor may demand at least one or two more. Or they may tell you that a story can only be covered once the perpetrators have been prosecuted when any report will be covered by absolute privilege (the legal protection which means reports of court cases cannot be subject to libel claims).

Important stories remain unpublished
As a result of the very legitimate concerns of editors – most national news organisations are defending a number of libel cases at any one time – many stories which journalists and editors know to be true never see the light of day.

This can mean that serious wrong-doing by individuals and corporations sometimes goes unchallenged because the risk of being sued is too great – especially if the individuals or corporations have deep pockets.