Legal dangers and legal support
The purpose of this guide is not to train you as a lawyer or overwhelm you with the minutiae of the law. Our goal is to give you sufficient information about potential legal dangers you may encounter as a journalist so that you can recognise a legal danger, and you can find someone to help you navigate through it. This guide offers the bare essentials. You should also take all the Legal Dangers eLearning modules to ensure you are familiar with the issues raised and refer to the additional material available in the Editorial Learning Library on the Julius Web site.
If you are interested in a particular topic or would like more information, additional resources are available at the end of the guide. We also encourage you to attend any face-to-face training on legal dangers that may be available where you are.
General Tips
Notes and other records
Keep good records of your interviews, notes, etc. If you can, tape them. (In some countries, it is illegal to tape without the interviewee’s consent, so if in doubt, always ask for consent before taping.) If you take notes, keep them.
A major pitfall for journalists is typing notes into a computer while listening to a source on the phone, then using the notes straight into a story – thus leaving no notes. This can present a problem if we have to refer to the notes as the contemporaneous record in any dispute about what an interviewee may or may not have said. Always save a copy of such initial notes – print it, date it and file it. A law suit usually lands months, if not years, after you’ve written the story. A good set of notes is invaluable.
Accuracy
Speed is important but speed without accuracy is an invitation for trouble. Use all the sources available to you to check the accuracy of information. Never forget you can check official sources for information: e.g. if you hear a rumour that a company has filed for bankruptcy in a bankruptcy court, check the court registry as well as with your company source.
Balance
Always obtain the other side of the story. Give the other side every opportunity to comment. If you don’t elicit a comment in an initial contact, call again. Record all the times you tried to contact them. If they decline to comment, note that down. These notes will be vital in any dispute to demonstrate you made genuine efforts to make contact and offer an opportunity to comment.
Use of quotes
Quotes from third parties often land us in trouble. Sources may deny they said something, even though you may have heard them say it. Just because you use a quote from someone else does not mean we might not face a suit; we could be accused of passing on a defamatory remark and would be just as liable as the originator. If a quote is potentially defamatory, think carefully about where and how you use it. Make sure you can back it up and have a good record of it and offer a balancing view.
Unnamed sources
Some courts consider that if you cannot reveal a source it could mean you have no source at all – suggesting you might have made it all up. And if a court demands you disclose your unnamed source, and you refuse, you might run the risk of fine or even imprisonment for contempt of court.
A healthy dose of scepticism
“Why are they telling me this?” – Sources might offer information because they hope to get something out of it, usually useful publicity. The information they provide could be useful for their cause, so likely to be skewed. In such circumstances ensure you develop a well-rounded story, with balance, not just one side of it.
Your work has a global reach
You may think certain legal issues have no relevance in your country, but the Internet and our global network mean what you write is published in many jurisdictions other than the one where you write. Something perfectly acceptable in your country could get us into trouble in another. This is particularly of concern in cases of defamation and contempt. When in doubt, alert your editors and seek legal advice.
Attention editor
You should include the warning flag ATTN EDITOR (or ATTN ED) in any story that you think may be legally dangerous or may affect the reputation of Reuters. It gives the desk an early warning and a chance to minimise any risk associated with the report. When a story is flagged ATTN EDITOR the reasons should be explained to the editing desk in a separate message, coded to the relevant desk. You should also code the message to the same codes used to send the story to the desk. The desk receiving such a story should refer it to the editor in charge. All reporters must clearly understand when and how to use the ATTN EDITOR flag. Most of the relevant cases are detailed in this section.
Defamation
Reuters applies the principles of English defamation law worldwide because English law on defamation on the whole is more stringent than many other countries’ laws on defamation and we are more likely to be sued under English law or in a jurisdiction that is based on English law. Damages typically tend to be higher in these jurisdictions than in others. Legal concepts described here generally refer to the English law.
What is defamation?
Defamation is a generic term describing the statement to a third party of words or other matter containing an untrue imputation against the character of another. Libel covers publication (including TV and radio broadcasts, Internet, email, blogs, chatrooms, and so on) and slander covers the spoken word.
What is a defamatory statement?
Generally, defamation is the publication of a statement which ‘tends to lower the claimant in the estimation of right-thinking people.’ Most countries have left it to the courts to define what is defamatory, although a few have defined it by statute. What may be defamatory in one country or society at one time may not be defamatory in another.
The scope to defame a person or company is very wide but most civil actions fall into three classes:
- Imputations of dishonourable conduct or motives, lack of integrity, lying, deceit, insincerity, hypocrisy, or the misuse of some office or position.
- Disparaging a person in his or her job, e.g. suggestions of incompetence or failure to uphold professional standards, even though no moral fault is implied. You can also defame companies by disparaging their services or products, e.g. by saying their products are defective or dangerous, or their service is substandard.
- Statements causing a person to be shunned or avoided, e.g. implying that a company or an individual is experiencing financial difficulties.
Defamation and images
Defamation is not limited to words alone. Sometimes, it is the combination of pictures and words that cause a problem. A typical example is misidentification of a person in a picture as a terrorism suspect or a criminal. In those cases, there is really no excuse. Another typical example is using a stock photograph to illustrate a potentially defamatory or sensitive story where the photograph shows a person or a company who is identifiable and who do not have any other connection with the story. (E.g. a story about an ailing railway industry illustrated by a picture of a train with the train company’s logo clearly visible, or a spread of infectious disease story illustrated with a picture of a person or a hospital that is identifiable). Under those circumstances, the person or the company concerned may have a defamation claim against us.
Who may sue?
The claimant may be an individual, or a company suing in respect of its trading reputation, or any incorporated body whether trading or not. In most countries, a government department, local authority or a political party cannot sue but individuals within these organisations can if they can be identified in a defamatory context, whether they are actually named or not. However, this is not always the case. If in doubt, you should check.
Elements of action
Generally, the claimant must establish three elements:
- The words were defamatory.
- The claimant is identified.
- There was publication.
If the claimant can do that, the action will succeed unless the publisher can offer a defence – truth, fair comment or privilege.
Element 1 – Is it defamatory?
The claimant must satisfy the court that the words defamed him or her in the way they were used – either in the ordinary meaning of the words, an implied meaning, or an innuendo. An innuendo refers to a meaning that is seen in the words by people who have other knowledge of the complainant. For example, if you reported that Mr. X frequently visited 10 ABC Street, it looks like an innocuous statement, but if people who read this knew 10 ABC Street was a den of vice, it would impute bad character on Mr. X and so be defamatory.
Defamation is all about the meaning of words and many statements are capable of more than one meaning. A story which reports an inquiry into the affairs of a company might not be held to mean it was guilty of some malpractice. The courts must decide whether it means the company is suspected of some wrongdoing and, if so, whether that is defamatory.
Element 2 – Does the statement identify the claimant?
The claimant must show that he was identified in the defamatory matter. The law does not require that the claimant be named. If he is not named in the article or in the broadcast, the law does not even require the world at large would know that he was the person meant. In England, and countries that follow its common law, it is sufficient if people who know the claimant, such as relatives, friends or colleagues, would understand the words to refer to him.
If you write about a group of people and the group is so large that no one individual could claim he is identified, this would be considered a non-identifying statement. Classic examples are: “All lawyers are thieves.” and “Journalists write lies.” In such cases no one is identified unless there is something elsewhere in the article that points to a particular lawyer or journalist. But if the group is so small that what is said about the group might be seen to refer to an individual or individuals in the group, then everyone in that group could sue for defamation. In such cases, it would be better to name the particular individual rather than describing him or her as a member of the group.
Element 3 – Has the statement been published?
The claimant does not usually have much difficulty to establish that the matter was published to a third party. Publication in this sense does not mean the traditional print media but includes almost all methods of communication, including email, Internet, chatrooms, broadcasts and radio casts. In some jurisdictions, publication of a libel is deemed to have taken place in a letter, even if only the single recipient reads it, but in most countries if the communication is merely to the claimant there is no cause of action because no damage to reputation would arise in the minds of others.
Any person or company taking part in the publication is liable – the writer, printer, publisher and distributor. In some cases, there is a limited defence for printers, distributors or Internet service providers if they can show they took all reasonable care to avoid communicating the defamation and had no reason to believe it would take place.
Common defences to a defamation action
Defences 1 – Truth/justification
It is a complete defence to a defamation action in England that the words are substantially true. Some other countries, however, require the publisher to show that not only are the words true but that they were published for the public benefit.
The defendant publisher is presumed to have published a false statement until the contrary is proved, so truth is a very difficult defence. Under English law, it is not necessary to prove the truth of every single allegation against the claimant as long as the words not proved do not materially injure the plaintiff’s reputation.
One difficulty in defending a defamation action is that it is often possible to prove the words true on their ordinary natural meaning, but still fail to prove any inference the plaintiff says the words carry. In this case the defence will fail.
A plea of truth may also fail where the words consist of allegations from the past which might suggest any taint on character still exists. To say of a person ‘He is a thief’ on the basis of a long-ago theft could not be defended because what is at stake is the current reputation.
Defences 2 – Fair comment
The fair comment defence protects statements of honestly held opinion on matters of true fact. Subject to some conditions, it is a useful defence in reporting comments by others, such as politicians. The fair comment defence will be defeated if the comment is made maliciously (i.e. recklessly or carelessly). For example, when reporting a stinging attack made by a public figure on another person, it is vital that neither the speaker nor the agency which reports his remarks has confused that person with someone else.
When the facts used for the comment are in a report of a privileged occasion, such as a fair and accurate report of the proceedings in a Parliament or of a court, it is not necessary for the publisher to prove the truth of allegations in the course of those proceedings. The defence will succeed even if the allegations made in the Parliament, or on any privileged occasion, later turn out to be false.
Defences 3 – Absolute privilege
Absolute privilege protects the following:
- Statements in parliamentary proceedings (parliamentary privilege).
- Statements during judicial proceedings (judicial privilege).
- Statements in state proceedings (official privilege).
- Statements by public officials protected by statute (e.g. Parliamentary Commissioner, Commissioner and for Local Administration, Health Services Commissioners, the Legal Services Ombudsman).
- Reports of parliamentary proceedings.
- Reports of judicial proceedings. Absolute privilege protects the communication made on the privileged occasion absolutely. The maker of the statement on those occasions need not fear any defamation claim by someone who may feel their reputation is injured.
Defences 4 – Statutory qualified privilege
In addition to absolute privilege, there are occasions of qualified privilege: i.e. the communication is protected, but only to a certain extent. Usually, these include communications when there is a public interest in the statement being made and received. Typical examples include fair and accurate report of parliamentary proceedings and judicial proceedings. Qualified privilege will always be defeated if statements have been published maliciously and privilege will only attach if the reporting is fair, accurate and contemporaneous.
Defences 5 – Common-law qualified privilege
Common-law qualified privilege may protect other statements which fall outside those given statutory protection. Outside the media world, common-law qualified privilege will only arise when the maker of a defamatory statement has a “duty” to communicate the information and the recipient of that information has a corresponding “interest” in receiving it.
Thus, qualified privilege protects employment references and statements made by a company director to the board of directors or to shareholders, but it was almost impossible for the media to use the defence because readers, viewers and listeners had such a wide range of interests and would not necessarily all be interested in any one particular story.
Since 1999, it is recognised in the UK that there may be a qualified privilege defence at common law where:
- The publisher has a legal, moral or social duty to the public to publish the material in question;
- The public has a corresponding interest in receiving it, and;
- The nature, status and source of the material are such to invite privilege in the absence of malice.
The leading judge in the case suggested that courts should consider the following 10 tests when deciding whether a publication should be privileged, although subject to the caveat that these are not the only issues which must be considered.
These are:
- The seriousness of the allegation.
- The nature of the information and the extent to which it was a matter of public concern.
- The source of the information (some sources may have no direct knowledge of the matter; others might have an axe to grind but the lack of authority for the journalist’s sources should not in itself be a reason for defeating a plea of qualified privilege).
- The steps taken to verify the information.
- The status of the information (an allegation may have already been under an investigation which commanded respect).
- The urgency of the matter (news is a perishable commodity, the judge said).
- Whether comment was sought from the complainant.
- Whether the article contained the gist of his version.
- The tone of the article (for example does the story adopt the allegation as a statement of fact or does it merely say that the allegation should be investigated).
- The circumstances of the publication, including the timing.
Implicit in the new defence is that the information is presented in as fair, reasonable and even a manner as possible. It is commonly known as The Reynolds Defence after the plaintiff in the case.
A number of cases since Reynolds have looked at the 10 factors. In cases where the defence has not been allowed, the journalist concerned has generally failed to seek a comment on the allegations from the claimant, or has failed to write a balanced piece. In some other cases, courts have criticised newspapers for rushing to print with stories that could have waited until all the facts could be checked properly.
Recent developments have further limited the Reynolds defence by requiring that even if the story meets all of the above criteria, it must also satisfy the test of public interest before it can rely on the defence of qualified privilege. It means that the subject matter of the story must be such that it is in the public interest to publish the story. It is not sufficient that the public may be interested in the story. A typical example of the former would be a story on a contaminated food product, which is potentially defamatory of the producer of the food products but it is in public interest to publish a warning about contaminated foods. In contrast, the latter would include stories on celebrity scandals and the like.
The best precaution by a Reuters journalist is always to adhere to the principles of accuracy, integrity and freedom from bias. And remember that speed without accuracy can be a dangerous thing.
Contempt
Contempt of court involves interference with the administration of justice – either in a particular case or more generally with the judicial process. This is not a comprehensive outline of the law of contempt but a guideline on contempt issues most pertinent to Reuters. If you cover court reporting or would like more information on the law of contempt, refer to the additional resources at the end of this section or contact the Legal Department.
What constitutes an act of contempt depends on the law of the jurisdiction. It can cover a multitude of sins from scandalising the court (e.g. by being rude to the judge) to making an unauthorised recording in a courtroom.
Here, we look at two specific acts of contempt that can affect journalists directly. One relates to court reporting and the other to protecting your sources. Again, this is not a comprehensive guideline on the law of contempt and you should refer to the additional material provided at the end of this section.
Contempt and court reporting restrictions
Most democracies uphold the principle of open and public justice. Therefore, the media is usually allowed in courtrooms and may report on court proceedings. However, in most jurisdictions, there will usually be certain restrictions on what the media can report. Such restrictions may be designed to protect the people involved (whether or not they are parties to the proceedings) or to ensure the efficient and effective administration of justice. For example, in most jurisdictions, the media is not allowed to report the identity of a victim of sexual offences or minors. Many jurisdictions also allow judges to impose specific restriction orders on the media for particular cases, for example, in family or domestic cases, to protect the privacy of the parties involved, especially if there are children.
In addition to these special orders or reporting restrictions, some countries also have a general law that prohibits anyone from publishing anything that may give rise to a substantial risk of serious prejudice to the defendant’s chance of receiving a fair trial. This type of law is found most commonly in countries with a jury system, as juries are thought to be more susceptible to the influence of the media.
In many countries the greatest danger of contempt arises from:
- Assuming the guilt of the accused.
- Disclosing previous convictions or other information derogatory of the accused.
- Publication of a photograph of the accused if identity is to be an issue at trial or at a police identity parade.
- Publication during a trial of material the jury ought not to be aware of or to be reminded of.
The UK is one country where such a law is very much alive and presents a serious danger to the media. In the UK, if you publish anything that could give rise to a substantial risk of serious prejudice to a fair trial, you are strictly liable. Strict liability means that you will be found guilty of the offence regardless of your intention or how much care you took to avoid committing the offence. If the publication seriously prejudices a legal proceeding in the UK, there is a chance you will be held liable for contempt. In contrast, in the United States, the First Amendment right trumps any concern over possible prejudice to a fair trial. This poses a particular problem for an international news agency like Reuters. For example, where people are arrested and awaiting trial in the UK and the same people are indicted for similar offences in the United States, the media in the UK will be constrained in what they can report. However, such restrictions would not apply in the United States.
There are internal procedures for dealing with these issues when they arise and you should refer these to the relevant specialist editors and Legal Department.
Contempt and protecting your sources
Although some countries recognise and protect the right of journalists to protect their sources, your refusal to disclose your source where the information is deemed necessary by a court for the administration of justice can mean that you may be held in contempt of court. The sanctions a court can impose in those circumstances can often include physical incarceration as well as a fine. You must escalate any issues relating to contempt to senior editors and the Legal Department.
Procedure for handling stories that risk contempt of court and their publication on the Internet
Any decision whether to publish material from outside the United Kingdom (or other jurisdictions with similar laws) that carries a risk of exposing Reuters to contempt of court proceedings must be taken by the global managing editor and the appropriate global specialist editor in consultation with their equivalents in the affected region.
A decision should be based on consideration of internal and external legal advice that includes an assessment of the probable risk of prosecution, noting that UK contempt is deemed to be a SERIOUS risk of SUBSTANTIAL prejudice. Such a risk should be balanced against the news value of the story. Editorial has the final say on whether to publish and what to publish, having considered all the relevant facts.
In the event of publication, the following should apply:
- The story carried on terminals and our wholesale media wires should carry an advisory that states: (NOTE TO EDITORS: This story is not for use in the United Kingdom [or other jurisdiction], where its publication may be deemed to constitute contempt of court).
- The story should not be carried on reuters.co.uk [or on the local site in another jurisdiction] and should not be included in any categorised online news reports that are sent to UK subscribers. On a case-by-case basis and after consideration of the relevant facts, editorial may decide to carry the story on reuters.com and in categorised online news reports that go to subscribers outside the UK.
- Similar provisions should apply, with necessary regional changes and transmission variations, in other jurisdictions where contempt law applies (e.g. Australia, Canada, New Zealand, Singapore, Malaysia).
Copyright
This part looks at the common problems Reuters encounters with copyright issues, rather than the general principles of copyright law. For an overview of copyright and other related laws, please go to Editorial Learning: Legal Dangers on the Julius Web site.
Copyright protects the skill and labour that produce a literary, artistic, dramatic or musical work once it is recorded in any form, whoever has recorded it. The basic principle is that without permission (usually a licence to reproduce) we are not entitled to make use of a substantial part of another’s copyright work and they are not able to make use of a substantial part of any work of ours.
Copyright infringement
Copyright protects “original” work, in the sense that if you created the work independently without copying someone else’s work, you own the copyright in the work. One of the golden rules for Reuters journalists is never to plagiarise. Given this rule and the originality threshold, we would never expect a Reuters journalist to be accused of infringing someone else’s copyright material.
We have more problems where others use our material without properly crediting Reuters. Often, you will be the one to discover these problems. We describe below what you need to do if this happens to you.
Copyright and stringers
Copyright also becomes important when stringers work for us. The law provides that if a work is created by an employee in the scope of his or her employment, the copyright belongs to the employer. But if a work is created by a contractor, and not an employee, then the copyright belongs to the contractor, unless there is an agreement to the contrary. This is why it is absolutely vital that if you engage a stringer, you should always have them sign a stringer contract with us so that there will be no dispute as to who owns the material they produce for us. Contact the Legal Department if you need a copy of the standard stringer contract.
Applying this to Reuters Editorial, if the journalist writing the story or taking the photographs is an employee, Reuters owns the copyright in the news reports or the photographs. However, if it is done by a stringer, it may be unclear as to who owns the material and it may become a subject of a dispute. So always try to put a standard contract in place when dealing with stringers or at least make it very clear from the beginning in writing who would own the copyright in the material they produce.
What to do if you discover others are infringing Reuters copyright
If you discover any content infringement by third parties (e.g. others using Reuters articles in whole or in part without proper crediting), you should bring it to the attention of the Media Sales team in your region. If the infringing party is a non-client, it presents a sales opportunity for Reuters. If it is a client, then the client is likely to be in breach of their contractual obligation and it helps with future negotiations with the client to know about these breaches. If persistent infringement occurs, the matter will be escalated to the Legal Department by Media Sales.
Privacy and Data Protection
The right to privacy is a fundamental human right enshrined in various international conventions and national laws. Some countries provide greater protection than others for individual privacy but the general trend in most countries is towards greater protection of an individual’s right to privacy. This has consequences for the media particularly with regard to the publication of photographs but also applies to the publication of private information.
Right to privacy and publication of images
In many countries, the law prohibits the publication of a person’s image without his or her consent. This is true of those countries in particular that have adopted or are influenced by a strong civil law tradition (such as France, Germany, Japan, South Korea, etc.). There is usually an exception, however, if the publication is for the purpose of reporting current affairs, but only if such reporting is in the public interest. (The definition of public interest is discussed below).
This is the rule as it applies to private individuals. For well-known people (such as politicians or celebrities) however, it is accepted that they are a part of current affairs and so long as they are not in a place where they also have an expectation of privacy, their pictures may be taken and used.
In other countries where privacy laws are not as strict and there is no express prohibition on the unauthorised use of a person’s image in news reports, you may still have problems with the publication of a picture if it is taken against an expectation of privacy and the publication of the picture does not add anything to the news but is gratuitous.
Public and non-public places
The publication of a picture taken in a non-public place where a person may have an expectation of privacy is likely to infringe the person’s right to privacy. However, the boundaries are not always clear-cut. Non-public places, where a person is entitled to an expectation of privacy, are held to include the balcony of a hotel, a private strip of beach, a secluded part at the back of a restaurant and an office. However, in some cases, photographs or footage obtained on a public street or outside a building have been held to infringe the right to privacy where the image captured is particularly distressing or humiliating to the person concerned and it is not in the public interest to publish the image.
It is difficult to lay down any specific guideline in this instance. A good rule of thumb may be to put yourself in the shoes of the subject of the image and consider whether you would feel your privacy was invaded if the image were to be published, and whether you would be able to defend publication on the ground of public interest if we were to publish the image.
Celebrities
Celebrities and well-known people are more likely to bring claims for infringements. In fact, recent developments in this area of law have largely been funded by lawsuits brought by celebrities from minor royals to former supermodels against the publishers of magazines and newspapers. They are more aware of their rights and have the means to litigate. You are advised to be extra cautious if you obtain images or footages that may be of questionable origin or taken in non-public places, especially using telephoto lenses.
Pictures of minors
Always be sensitive when you take and publish photographs of children. In most jurisdictions, minors fall into a special category of protected persons and are also held to be incapable of giving legally effective consent. Therefore, even if you obtain the agreement of the children to be photographed, it would not necessarily provide any protection against a claim for infringement of their right to privacy if challenged by their families or guardians.
Publication of private information
Given the nature and the type of reporting Reuters does, it is unlikely that it would be held to infringe someone’s right to privacy by publishing information that is of a private nature. However, you should always consider whether the detail you are reporting adds to the newsworthiness of the story or whether it is gratuitous information of a private nature whose publication is not in the public interest. Also, many jurisdictions prohibit the identification of victims of particular kinds of crimes (such as victims of rape) to protect their privacy.
A defence against the claim of infringement of privacy is that the publication is in public interest. However, the courts distinguish between what is in the public interest from what is of interest to the public. Salacious gossip or scandal about celebrities or politicians may be of interest to the public but their publication will not necessarily be in public interest.
Data protection
The law of privacy should not be confused with the data protection law. The latter is a separate body of law developed more recently to protect the unauthorised processing and transfer of personal data. Personal data in this case refers to any information that can be used to identify an individual, such as their name, age, gender, address, telephone number, occupation, physical attributes, personal preferences, and so on.
The law provides a special exemption if compliance is incompatible with the purposes of journalism. This means that a journalist is allowed to collect, process and use personal information if such information is required for the purposes of reporting.
This is a complex area where the rules are not clear and there are large differences between countries. If in doubt, you should contact the Legal Department for advice.
Additional Information and Legal Support
The Julius Learning site is a gateway to considerable additional guidance on legal issues but journalists should never shy from seeking expert advice.
In order to ensure that journalists are able to obtain legal guidance and assistance whenever they need it, the General Counsel’s Office maintains a global follow-the-sun legal support model, with in-house lawyers on-call and available at any time of day. If you have a legal query, your first point of contact should be one of the lawyers identified below for your region. If you are unable to contact one of your regional lawyers (for example, given the time of day it is), you should contact one of the lawyers in the region that is in its working day. Click here for the names and contact details of Reuters duty lawyers.
You may also send an email to “Lex Editorial” via an internal email account or lexeditorial@reuters.com via external email account to send a note simultaneously to all the lawyers in the list.
For those based in Britain, you may also contact the duty lawyer at Clifford Chance, an external law firm, for libel or contempt law advice if no in-house lawyer is available. Their contact details are available from the UKI Bureau Chief or the Chief Correspondent. For those in Asia, if no in-house lawyer is available, external counsel is available to provide advice in a number of countries. Their contact details are available from members of the Asia Editorial cluster group and Charlina Kung.
Category: Specialised Guidance