Niamh Hargan - Media Law and Practice at University of Ulster Explained

[Niamh Hargan, a recently qualified solicitor took part in the new curriculum, Media Law and Practice, at the University of Ulster. A joint venture between the University of Ulster and SmithDehn LLP. She shares her experience of the course:]


As recently reported on Media Law Northern Ireland and elsewhere, this month has seen yet more exciting news for our burgeoning local film and television industry.

At a launch party on April 26th, international media and entertainment law firm SmithDehn LLP, together with production company Social Construct Media, announced the intention to establish their key European base in Derry later this year.

Already, though, these innovative twin companies have been making an impact: for the past twelve weeks, they have been teaching a pilot course in Media Law and Practice at the University of Ulster’s Magee campus, with partner and CEO Russell Smith at the helm. Among the 30 students, of which I was one, several had a background in legal studies and/or practice, whilst others brought hands-on

Hugh Tomlinson QC - Privacy and Defamation, Strasbourg blurs the boundaries

It is now clearly established in the case law of the Court of Human Rights that Article 8 protects the “right to reputation” as an aspect of private life. This is a relatively new idea, first appearing the case law as recently as 2004 (see Chauvy v France [70]).

The development was a controversial one because “reputation” was deliberately left out of Article 8 when the Convention was drafted (see our posts by Heather Rogers QC “Is there a right to reputation?“, Part 1 and Part 2). Nevertheless, the case law in both Strasbourg and the domestic courts is clear and consistent and is not likely to be reversed.

Dealing with reputation as a Convention Right: the first nine years

The recognition of reputation as a Convention right means that, when it considers defamation cases, the Court needs to balance freedom of expression and reputation from a starting point that neither takes precedence. This is a similar exercise to that carried out in privacy cases and there is a clear risk of the boundary between privacy and defamation becoming blurred (see generally, “Strasbourg on Privacy and Reputation”, Parts 1, 2 and 3).

Introducing irishnewsdiffs.com (@IrishNewsDiffs)

http://t.co/hAYmpcvhWS is now live. Tracking changes to http://t.co/l0k311Hu63 and http://t.co/OtrZXcgasw << I see this becoming invaluable.
— TJ McIntyre (@tjmcintyre) April 7, 2014

@tjmcintyre @Tupp_Ed To highlight differences in coverage? Can you explain? I think I have a case of Monday brain.
— Bernard Tyers (@bernardtyers) April 14, 2014

@bernardtyers Hopefully it will show up the effect of defamation threats. Also, other changes in response to pressure.
— TJ McIntyre (@tjmcintyre) April 14, 2014

Further explanation here:

"Irish NewsDiffs archives changes in articles after publication. Currently, we track rte.ie, and irishtimes.com. 

NewsDiffs, which was born out of the Knight Mozilla MIT hackathon in June 2012, is trying to solve the problem of archiving news in the constantly evolving world of online journalism.

The original NewsDiffs is at newsdiffs.org

This version was launched in April 2014 to track changes to Irish news websites.

The trouble with conflict journalism

@BBCnireland @SpotlightNI conflict journalism at its worst and so juxtaposed to state visit, playing into hands of the bigots? How's that?
— Prof John D Brewer (@Prof_johnbrewer) April 8, 2014

The State Visit of Michael D. Higgins to England and the banquet coincided with a BBC broadcast on alleged IRA gunrunner "Spike" Murray. This caused quite a stir on Twitter. This shows how conflict journalism remains controversial and divided. Some taking a censorial stance. Others more frontal. It shows how some stories could be hidden by fear of causing instability.

.@Prof_johnbrewer @SpotlightNI Are you saying, professor, that you would prefer the BBC not to make politically-sensitive revelations?
— Sam McBride (@SJAMcBride) April 8, 2014

.@Prof_johnbrewer @SpotlightNI You sound nostalgic for the 'responsible' BBC of the 1920s when controversial issues couldn't be reported
— Sam McBride (@SJAMcBride) April 9, 2014

Jaw-droppingly disgraceful tweets from QUB academic @Prof_johnbrewer re: last night's Spotlight. Unbelievable.
— Newton Emerson (@NewtonEmerson) April 9, 2014

Mike Gilson and Mike Nesbitt give evidence before the Finance Committee

Video of Mike Gilson here. Video of Mike Nesbitt here (2hr7m). Text of Mike Gilson here and text of Mike Nesbitt here.

Brian Spencer - The DUP's fight against Libel Reform

GRAPHIC on the story of Libel Reform in Northern Ireland (in full here)

[This was originally published on eamonnmallie.com and Off the Record]
(updated below)


Introducing the Defamation Act 2013

On January 1 2014 the Defamation Act 2013 came into effect in England and Wales.

The new law strengthens freedom of expression and gives a warm hand to journalists, writers, academics and scientists. The new law increases the freedom of readers to receive information. The new law strengthens the free speech position of every internet, social media and Twitter user. Olivia O’Kane explains the changes here.

Northern Ireland retains the old law. A law described by the UK as a “national embarrassment” and by the US as “repugnant” to their Constitution. A law slated by Geoffrey Bindman QC in 1994 as “seriously unbalanced and fundamentally flawed”. In fact, the US enacted the SPEECH Act in 2010 whose very purpose was to nullify and negate the chilling effect of our speech law on their US-based journalists.

Protecting Journalist-Source Privilege in Australia

[This is a guest post by Peter Bartlett and Amanda Jolson (@amanda_jolson) of Minter Ellison (@MintersTMT) on Australia's shield laws. Shield laws are designed to protect the confidentiality of the journalist-source relationship. However there has been a sustained attempt to erode those protections that guard the journalist-source relationship. Peter Bartlett and Amanda Jolson Minter Ellison explain.]


The Media Entertainment and Arts Alliance has called for uniform national shield laws. Christopher Warren, the Federal Secretary of the Alliance correctly referred to Australia's shield laws as "patchy and disparate."
According to Chris "it is appalling journalists are served with a subpoena that essentially would require them to breach their ethical obligation."

The comments followed this week's decision by Justice Janine Pritchard in the Supreme Court allowing us to seek special legal costs from Hancock Prospecting (Gina Rinehart). Hancock Prospecting had sought disclosure of sources from Fairfax's award winning journalist, Adele Ferguson.

Over recent years a number of Australian jurisdictions have adopted 'shield laws' that provide greater protection to the confidentiality of a source, and make it harder to compel journalists to reveal their sources to a court. These laws do not bestow an absolute privilege, but rather discretion available to the court to excuse the journalist from identifying an informant.

Wayne Denner - Do we really think about or pay attention to our Online Reputation?

Sadly NO! At least we have not begun to take the role of Protecting our Online Reputation seriously. But here’s the thing - once it goes online.. it stays online.

It’s not that it’s difficult to remove. It’s near impossible.

Therefore, Online Reputation, which yours truly has been banging on about on Twitter and Facebook, is serious, and it needs your attention RIGHT NOW.

But Wayne stop being over dramatic. Chill. How could a simple tweet or a Facebook post get me in trouble? Well it can, it does and it may cost you some hard earned $$. $105,000 to be exact in the case of former student of NSW School Andrew Farley who was ordered to pay this amount for “compensatory and aggravated damages” for making false allegations about music teacher Christine Mickle on Twitter & Facebook.   

Mike Harris - House of Lords sends a clear message to Stormont: reform of the libel law is overdue

Last Tuesday, Lord Lexden alongside Lord Bew and Lord Black tabled an amendment to the Northern Ireland (Miscellaneous Provisions) Bill to extend the Defamation Act 2013 to Northern Ireland. Seeing the impact on freedom of expression and the opaque manner in which this issue has been handled, respected parliamentarians spoke up for the amendment. The government refused to accept the motion and it was not put to the vote, but the debate itself had the desired impact. The amendment was a direct challenge to the DUP who feel that they alone can decide on libel reform for Northern Ireland.

It remains the case that very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government's attempts to reform the UK's libel laws. As I noted in the Huffington Post, the humiliating rebuke by the United Nations Human Rights Council to the previous state of the libel law in England, Wales and Northern Ireland led to:

“the three major political parties to make a commitment to libel reform in their general election manifestos in 2010. They didn't qualify this bold commitment with "except in Northern Ireland". Why would they? The law in Northern Ireland has always been substantially the same as the law in England and Wales, that is until the government reformed it. At no point in the parliamentary debate did the government signal the Defamation Bill would not apply to the citizens of Northern Ireland.”

Olivia O'Kane - The curious case of user-generated comment

Online responsibility is governed by the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No 2013) and The Defamation Act 1996, commonly known as the safe harbour defences.

[Our original post on the Delfi AS v Estonia judgement here]

LEGAL FRAMEWORK

The following legislation provides that no liability shall arise until and after Information society Service Providers [“ISPs] are put on notice of the material complained about:

1. Pursuant to Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 where:

an ‘information society service’ is provided which consists of the storage of information provided by a recipient of the service the service provider is not liable for damages or for any unlawful activity as a result of that storage where the storage provider “does not have actual knowledge of unlawful activity or information” and the provider “upon obtaining such knowledge or awareness acts expeditiously to remove or to disable access to the information”.

The psychology of internet trolls

Via Andrew Sullivan's The Dish here, research on Internet trolls has found that they are often Machiavellian sadists:

"The research, conducted by Erin Buckels of the University of Manitoba and two colleagues, sought to directly investigate whether people who engage in trolling are characterized by personality traits that fall in the so-called “Dark Tetrad”: Machiavellianism (willingness to manipulate and deceive others), narcissism (egotism and self-obsession), psychopathy (the lack of remorse and empathy), and sadism (pleasure in the suffering of others). 

It is hard to underplay the results: The study found correlations, sometimes quite significant, between these traits and trolling behavior. What’s more, it also found a relationship between all Dark Tetrad traits (except for narcissism) and the overall time that an individual spent, per day, commenting on the internet."

The Guardian's Gill Phillips on press freedoms

[VIDEO: Q&A session with Gill Philips at the Hong Kong Media Law and Policy in the Internet Age Policy Conference, here also.]

Gill Philips (@ladywell23) is a media lawyer and head of legal at The Guardian. She gave witness to the Leveson Inquiry here and later said that the process has been "disastrous". During her career Phillips has witnessed the rise of the internet and social networking sites and has watched as technology has transformed the media and how extensively media law has struggled to keep pace.

In an interview with The Lawyer magazine here, she explained how, where the civil law had dominated, the criminal law has encroached more and more into the realm of the press and communications:

"When I started doing media litigation it was primarily civil litigation – civil cases brought by private individuals. Now, there is much more crime around. The criminal law has encroached more and more into free speech."

Defamation Act and Louise Mensch comments suggest McAlpine/Bercow Twitter law isn't final

@Mardconsult @Davejf27 @BanTheBBC @Claire_Phipps @wallaceme @GuidoFawkes In my opinion McAlpine should never have sued Sally Bercow, yes.
— Louise Mensch (@LouiseMensch) July 24, 2013

@wallaceme @JackofKent not at all, but perhaps this is tomorrow's conversation. McAlpine behaved, in my view, disgracefully.
— Louise Mensch (@LouiseMensch) January 23, 2014

@cllrilindley @wallaceme @JackofKent pursuing libel cases after apologies and settlements were offered; and worse, selectively pursuing them
— Louise Mensch (@LouiseMensch) January 23, 2014

Sally Bercow "learned the hard way" that a single impertinent and nervy tweet is no defense against serious libel charges.  Mr Justice Tugendhat delivered judgment in the case and made precedent to which we are all bound. Twitter may have made publishing vastly easier, but it has not made it responsibility free.

However since the coming into force of the Defamation Act 2013 in England and Wales on January 1 2014, tweets will be required to meet the higher thresholds laid out in the new legislation. How judges interpret the new legislation means that the law will continue to develop. But in the mean time, the McAlpine precedent rests. Media Law NI covered the McAlpine-Bercow case extensively here.

A communication made on Twitter is potentially libellous in England and Wales if it damages someone's reputation "in the estimation of right thinking members of society". It can do this by exposing them to "hatred, ridicule or contempt". This applies also to re-tweets.

Fintan O'Toole - Libel action should be an absolute last resort

In December 2010 The Sunday Times carried a long, anonymous profile of Irish Times columnist Fintan O'Toole and included the assertion that he drove home from an Irish Congress of Trade Unions rally in a BMW 5 Series. As Fintan O'Toole said, the story "was pure invention and almost every “fact” that followed was wildly and demonstrably wrong." He could have sued, but choose not to. He explained:

"The “profile” was, in other words, a gold mine. I had hit the libel jackpot. The Sunday Times couldn’t possibly go into court to defend an article that was so sloppily written and badly researched. Even the most aggressive lawyer would tell them to stuff my mouth with gold and make the whole thing go away fast."

Olivia O’Kane - Northern Ireland Media Law Round Up 2013

The Courts in Northern Ireland heard a wide range of media law cases in 2013. In this post I will provide summaries of the most important cases in which judgments were given and are publicly available.

The innocent court reporter

The case of ZY v. Paul Higgins ([2013] NIQB 8) was heard on 25 January 2013. It concerned the Article 2 rights of a convicted child sex offender seeking anonymity to continue after conviction in order to safeguard his wellbeing from risk of suicide within the confines of Prison when it appeared a journalist was to write a piece to distributed to the mainstream media.

On 2 September 2011 ZY, a male in his 20s, was arrested and charged with attempting to blackmail a female in relation to an indecent video recording made when she was 15 years of age; engaging in sexual activity with a minor; and possessing indecent images of children. On 7 December 2012 ZY pleaded guilty to the charges and was sentenced to 21 months imprisonment. Following sentencing, representations were made on behalf of the first defendant journalist, Paul Higgins, seeking revocation of the anonymity order which had been made at the first remand hearing.

Mike Gilson on the Northern Ireland (Miscellaneous Provisions) Bill

Libel reform in Northern Ireland is running over several rails.

1. By Mike Nesbitt's Defamation (Northern Ireland) Bill whose public consultation received "overwhelming support."
2. In September 2013 Simon Hamilton asked (here) that the Northern Ireland Law Commission cast a fresh pair of eyes over the decision to veto the Defamation Act 2013. They responded here in December 2013  to look into the issue and recommended a public consultation on the matter.
3. By means of the Northern Ireland (Miscellaneous Provisions) Bill, Westminster peers Lords Lexden, Bew and Black have intervened on the matter via London, ontop of the two prongs operating from Belfast.

The London Bill deals with a number of issues relating to Northern Ireland. But it contains an important amendment that would extend the Defamation Act 2013 to Northern Ireland. In response to this Bill, the editor of the Belfast Telegraph Mike Gilson wrote if it in an article here, 'Libel law reform will protect us all'. He said:

James Delingpole - "Twitter is a publishing medium more dangerous than any that has ever before existed"

James Delingpole (@JamesDelingpole) wrote an article in The Spectator magazine, 'How Twitter almost destroyed me.' He called Twitter, "the perpetually gaping maw of the gigantic elephant trap that is Twitter." He said of the micro-blogging site here:

"Twitter is a publishing medium more dangerous than any that has ever before existed. The problem is that it is once trivially ephemeral and hideously permanent. Whatever your state of mind, whether you’re drunk or sober, depressed or euphoric, it’s there waiting to capture your every thought from the moment you wake up to the moment you check your Twitter feed one last time before you go to sleep."

SDLP, Alliance, UUP and Sinn Fein support libel reform

In the Belfast Telegraph of September 16 2013 here, the editor of that paper Mike Gilson welcomed the decision of Simon Hamilton to refer the Defamation Act 2013 to the NI Law Commission (we posted here). In that report he said:

"This is an important subject, and the UUP leader Mike Nesbitt and the Sinn Fein MLA Daithi McKay deserve credit for keeping up the pressure on this issue."

The News Letter reported in March 2013 here:

"The SDLP and Alliance Party have since said that they support the reform. And the SDLP said that the decision was not taken by the five-party Executive but by Peter Robinson and Martin McGuinness’ department."

Paul Tweed - Twitter is likely to be one of the key legal battlegrounds of the next decade

Stan Collymore highlights what is likely to be one of the key legal battlegrounds of the next decade http://t.co/84BAZgAaJp @StanCollymore
— Paul Tweed (@Paul_Tweed) January 22, 2014

Two plead guilty after sending abusive tweets to Caroline Criado-Perez

Two people have plead guilty after sending abusive tweets sent to UK feminist campaigner and journalist Caroline Criado-Perez. They will reappear in court January 24 2014 for sentencing. The BBC reports here. Caroline speaks on BBC Newsnight with Jeremy Paxman in the video above. On Radio 4 PM here and in the audioboo below.

listen to ‘Caroline Criado-Perez on today's Twitter verdict’ on Audioboo