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Summary Media Law Textbook Notes
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Media Law Textbook NotesL1 part 1: Chapter 1
Importance of Media Freedom:
Freedom of speech is very important
- Without it, a state would find it harder to claim legitimacy for the restrictions it imposes on the
conduct of its citizens, including restrictions on the exercise and enjoyment of other rights such
as privacy or property rights.
Enables the discovery of truths about social, economic and other matters, thereby making progress
possible.
Without this freedom newspapers, broadcasters and other branches of the media could not perform
their vital role in the political and social life of a liberal society
Individuals (whether in politics, social or cultural life) would find it harder to spread their views to
the public
The European Convention and the Human Rights Act 1998:
The Convention and the ECtHR:
- Press and media freedoms are not expressly guaranteed by the European Convention of
Human Rights and Fundamental Freedoms, but they are covered under Art 10 of the
ECHR.
- The importance of Art 10 for the press was shown in the Sunday Times Case: HOL granted an
injunction to stop the publication of a newspaper article that discussed the responsibility of the drugs
company, Distillers, for the deformities caused by its thalidomide drug.
- In Von Hannover the court distinguished the publication of stories of real public interest
(which are protected under Art 10) and celebrity gossip or photographs, which have no real
contribution to public debate.
- Court rules that journalists enjoy freedom under the Convention to report offensive speech in
respect of which the speaker himself could be prosecuted
o Jersild v Denmark (1995) 19 EHRR 1: Danish journalist had conducted a TV interview with a
youth group that made racist remarks. Court held that the journalist’s conviction for aiding the
spread of racist speech infringed Art 10.
- The Jersild decision highlights the crucial role of the media to public political debate and
suggests that the press and broadcasting channels enjoy stronger protection under ECHR, Art
10 than ordinary individuals do when communicating their views to other people.
The Human Rights Act 1998:
- Courts must interpret legislation that restricts media freedom – such as the Defamation Act 1996,
Contempt of Court Act 1981 – in a way that is compatible with the right to freedom of expression,
which in these contexts includes the freedom of the press fully to report legal proceedings.
- Initially it was unclear whether the HRA would have much impact on the purely private bodies
– EG: newspapers, magazines and book publishers – unlike public authorities, they are not directly
bound to act compatibly with Convention rights.
The Special Regulation of the Broadcasting Media:
This freedom is limited only by general law, notably the laws of defamation, privacy and contempt of
court.
Newspapers, magazines (but not book publishers) have been subject to a system of voluntary
regulation operated by the Press Complaints Commission.
In addition to constraints from civil and criminal law, broadcasters are also subject by statute to a
number of special restrictions:
1. The company operating an independent broadcasting channel or providing content services must
obtain a licence.
2. Programme restrictions go beyond the constraints imposed by the general laws, such as
obscenity, hate speech and defamation – EG: offensive and harmful material should not be included in
licensed TV and radio services.
Broadcasters must show ‘due impartiality’ or observe comparable standards in their programmes,
while public service are required to include news bulletins and serious programmes in their schedule.
Political advertising is banned on radio and TV.
- There is no restriction of this kind on the press – A newspaper is free to support a political
party.
, Media Freedom and Freedom of Expression:
Press freedom = the freedom of editors and journalists to express their views
Broadcasting freedom = freedom of radio and TV commentators and producers to speak and make
programmes.
If the government bans a TV programme or libel damages are awarded against a newspaper, both
freedom of speech and freedom of media are implicated.
The Internet and Media Regulation:
Some forms of communication on the net – EG: emails and small group discussions – can’t be equated
with the traditional mass media, but others such as the BBC and other visited websites, the online version
of newspapers and videos and other TV-like material transmitted over the net may be.
- For many people they are important source of news and entertainment, as are social media – EG:
Facebook and Twitter.
The first major issue is how, if at all, the internet is to be regulated – should it be subject to special
regulations comparable to that to which broadcasting is subject, or should it, like the press, be subject
only to the general criminal and civil law, perhaps modified to take account of its characteristics.
Some argue that the internet shouldn’t for reasons of principle and, because it would be extremely
difficult, be regulated by systems of national law. It may be difficult, especially in relation to
anonymous bloggers.
- However, Governments can, and do, control access to the Net and impose restrictions on what
can lawfully be communicated on it.
There is also a general agreement that controls are necessary, for example, over the circulation of
incitement of terrorism, child pornography and some extreme obscenity.
- However, there is a disagreement over the application of other areas of law – EG: defamation law,
to communications/ conversations on the internet.
Dows Jones and Co, Inc v Gutnick (2002) 210 CLR 575 is the major common law authority for the
proposition that in the absence of statutory reform the internet should not be treated more generously
than the other media.
It is for the legislature to decide whether and how to regulate the internet
Arguably the internet should be lightly regulated because it enables individuals as citizen-journalists
to communicate their ideas and provide information, including important news developments, as an
alternative to the traditional media.
Censorship and Prior Restraints:
A newspaper or book publisher might be liable to a criminal prosecution or civil action for damages
in respect of a work which has already been published, but pre-publication censorship is
incompatible with the freedom.
Judicial Prior Restraints:
- No provision in English Law for the licensing or official censorship of newspapers and other
printed media.
- However, the courts may grant an injunction to prevent a publication, on the ground – EG: that it
would amount to a breach of confidence or contempt of court.
- Courts are very reluctant to grant interim relief to restrain publication of material alleged to be
defamatory.
o They are more willing to prevent publication by the media of confidential or personal info,
and so protect privacy.
o This is because once personal info has been published, privacy is lost, so a judicial prior
restraint may be the only effective remedy.
- The compatibility of prior restraints with the ECHR was considered in the Spycatcher case
where it was held that the maintenance of these injunctions after the time when the book became available
in the US couldn’t be justified, as the allegations then ceased to be confidential.
However, 5 members of the court said that prior restraints on publication could never be
o
justified outside of wartime and national emergency.
Human Rights Act 1998:
- S12(1)-(3) – limits the availability of interim relief against the media:
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect
the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor
represented, no such relief is to be granted unless the court is satisfied—
(a)that the applicant has taken all practicable steps to notify the respondent; or
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