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MEDIA LAW
LAW
The definition of law is provided by the understanding of the jurispundence, legal systems and
legal methods
According to Biblical statements law is the first order of God
...
CLASSIFICATION OF LAW
...
Civil law:
It involves a situation where there is a violation of private rights belonging to an individual in his
capacity as an individual
...
If the plaintiff succeeds, the defendant is given the following remedies
...
Injunction-this is a court order telling a person either to do a thing or refrain from doing a
particular act
...
2
...
It involves a situation where a crime has been committed e
...
stealing, rape etc
...
In Kenya, all crimes are included in the penal code
...
1
Other classifications include:a)Public law
This is concerned with powers, rights and duties of the government and relationship between the
government and people, parties of any sort
...
It governs behaviors of governments bodies mainly the court
...
The modern definition covers a number of disciplines interrelation e
...
entertainment law, print
media law, communication law under media law
...
There is no single definition that has been devised to cover every case of defamation
...
It includes a statement about
a person that tend to do any of the following:a) Expose him or her to hatred or ridicule/contempt
...
c) Lower him or her in the estimation of the right thinking members of the society
...
Therefore defamation is any statement that tends to lower a person`s reputation or using a false
statement to injure someone`s reputation causing financial loss or affecting the claimant`s
profession or reputation in the rightful thinking members of society in general
...
They include:a)Construction and meaning of words
...
Construction and meaning of words
...
It is a question of the law to be determined by a judge whether a particular statement
is capable of bearing a particular defamatory meaning
...
Innuendo
This is when the statement doesn’t make a direct criticism in order to be defamed
...
This is because the phrase/word has a technical
slang or meaning known by a certain group
...
Identification
...
3
The claimant doesn’t need to be named in the piece of article and can be identified by description
picture or other characteristics information such as of juxta position especially for a broadcaster
e
...
Dwek vs
...
c) Publication
...
A person not
intended not to get the message
...
g
...
The real skill for writers and broadcasters is determining when the statement may be construed
tending to lower the claimant in the estimation of the rightful thinking members of the society in
general
...
There are three categories of defamation namely:i)Libel
ii) Slander
...
i)Libel
...
Libel can be civil or criminal
...
This is defamation in its temporary form which is spoken defamation
...
The distinction between libel and slander is relevant only in issues of damages
...
An allegation that the claimant has committed a crime punishable by imprisonment
...
An allegation that the claimant is suffering from contagious and infectious disease
...
An allegation that the claimant is unchaste woman
...
An allegation that is likely to damage the claimant`s business or profession
...
This is where a false statement is made and doesn’t damage the claimant’s reputation but causes him or
her financial loss
...
NB: Under normal circumstance cases of malicious falsehood are difficult for a claimant than in libel and
slander
...
Who may sue in a case of defamation?
5
All living person can sue for defamation including children, criminals if wrongly accused, bankrupt and
those of unsound minds
...
Therefore defamation statements may and are usually made with virtual
impunity about those who have died
...
Who may be sued for defamation?
Any person who causes or is responsible for the publication of defamatory statement can be sued for
sued for defamation i
...
the publisher, broadcasters, editors, distributors, programme makers, printers,
and booksellers
...
Defamation do not have a proper standard to determine what is defamatory e
...
a statement found by
the jury to be defamatory 76yrs ago may partly be considered acceptable today e
...
an unmarried
woman who spent woman who spent the night in her boyfriend apartment would have lowered her in
the eyes of the average person in 1920S and 1950s, but it is unlikely to do so today
...
It is always defamatory to suggest that a person is incompetent or unqualified in his or her trade or
profession, therefore it is important to say someone is not able to deliver the output
...
It is not defamatory top say that a person can’t or will not pay up his or her debt
...
Defenses of libel or defamation
...
There are
several defenses of libel or defamation and they include;
a) Justification
b) Fair comment
c) Qualified privilege
d) Absolute privilege
e) Apology/offer of amend
f)
Leave and license/consent
g) Innocent dissemination
h) Limitation of action
i)
Claimant incapable of further defamation
...
In order to raise this defense successful the
defendant must prove the defamatory statement is true both in substance and in fact
...
There are two types of justification that a defendant may raise i
...
substantial and partial justification
...
g
...
And the defendant is able to prove the first allegation but not the second
...
ii) Substantial Justification
...
g
...
>Make sure that you have admissible evidence for your allegation before you publish them
...
>Keep your note and your recording for a minimum of 3 years after publication
...
Fair comment
This allows a person to publish a statement of opinion or a comment on a matter of public interest
provided it’s done without malice
...
In order to raise a
defense of fair comment the comment:1
...
2
...
3
...
4
...
The person making the comment must not be motivated by malice
...
Under this defense, it is divided into two forms:
i) Absolute privilege
ii) Qualified privilege
...
Where absolute privilege applies no action for defamation may succeed irrespective of the honesty or
the motive of the writer or broadcaster
...
Where it is applicable it will succeed no matter how false or defamatory the statement may be or no
matter how malicious the few and narrowly defined and they mostly fall under the following categories;
a) Fair
Accurate
Contemporaneous report of judicial proceedings
b) Statement made in the course of parliamentary proceeding
...
Fair, accurate and contemporaneous report of judicial proceeding
...
The reason for
this is fairly obvious by their nature, court proceedings tend to involve people making serious allegation
against others some of which may be untrue
...
However the
reports must be fair, accurate and contemporaneous
...
It is extended to all document produced
during a court proceeding, witness statements and any other statements made in the course of crime
investigation
...
9
Defamatory statements made in the house of parliament are absolutely privileged however the media
should be careful when reporting such accusations since if the statement is repeated outside parliament
it attracts qualified privilege
...
Qualified privilege protects statements made in certain circumstances where free speech is considered
to be of public interest
...
b) Fair and accurate report of parliamentary proceedings on extract of parliament bills
...
d) Occasions where someone is defending himself against a previous attack on their character or
conduct
...
e) Apology/offer of amend
...
An offer to make amend
must be made before a defense is served
...
10
f) Lease and license/Consent
...
However, the consent must be in writing
...
g
...
, as long as they can show that:a) He didn’t know and had no reason to believe that whatever he did contributed to the publication of
defamatory statement
...
h) Claimant incapable of further defamation
This is where the claimant already has poor reputation
...
Section 4(2) of defamation act give a maximum of 12 months beyond which if the claimant would not
have filled a case then he or she better forget to sue
...
Damages
...
i) Compensatory
Ii) Aggravated
...
iv) Contemptuous
V) Nominal
...
Compensatory
...
Under this, the claimant is entitled to recover monetary
value of everything he had lost and suffered as a result of defamatory statement
...
ii) Damages for distress
...
Special damages
...
ii) Damages for distress
...
B) Aggravated damages
...
g
...
C) Nominal Damages
...
They are usually less than twenty pounds (£20)-Kshs
...
These are ordered where the jury or the judge recognizes that the claimant has been defamed but
in the circumstances consider that the action would not have been brought
...
A claimant who is
awarded contemptuous damage has to pay his cost as well
...
II) INJUNCTION
It is an order preventing publication
...
However
in recent times the human right act 1998 has changed the way the court may issue an injunction
especially if it involves freedom of expression
...
Article 10 doesn’t
require a choice between two conflicting principals where freedom of expression is
...
13
COPYRIGHT
...
Intellectual property rights protect things that are created by
a person`s skill, labour and investment of time and money
...
It’s therefore an exclusive right to use materials in a certain way
...
b) The investment of those who establish/provide their technology necessary to publish such
material such as broadcast newspapers, films, recording companies, publishers etc
...
NB: There`s no copyright in news or an idea, however the law of copyright protect the news idea
or information expressed in a certain way
...
Original, literary, musical, dramatic or artistic work
...
Sound recording, film broadcast or cable programme
3
...
14
1
...
There`s no requirements for literary merit e
...
letters or e-mails written to a
newspaper are subject to copy rights
...
g
...
Dramatic Work
...
Musical Work
...
Artistic Work
...
A work of architecture be it a building or a plan of a building or a model of a building
...
2
...
Sound recording includes any recording of sound regardless of how it is made
...
15
A film is a recording of any medium from which a moving image may by any means be
produced therefore video piracy is an infringement of copyright
...
e
...
Cable programme broadcast belongs to the person owning the cable
service and the same applies to the person owning the Satellite
...
Copyright in sound recording is owned by the person who makes arrangement necessary for
making the recording
...
Typographical arrangement/publish edition of work
This copyright protects published edition of the whole or any part of one or more literary or
dramatic or musical work
...
Who owns copyright?
Copyright in dramatic, musical and artistic work belong to the author of the work, this means
that any person whose skills and effort produced the work e
...
the writer of a book, not the
secretary who typed
...
g
...
A freelancer on the other hand owns the copyright to all their work unless they agree otherwise
to the company that commissioned them
...
16
If two or more people jointly create a work and their contribution is invisible then the copyright
is owned jointly
...
The author has to be a real human being
...
However the writer of the letter retains the copyright in it
...
Who owns copyright in photography?
Before CDPA 1998 the copyright photograph used to be owned by the owners of the films
...
The original copyright belong to the
person who takes the photo even for copyright issue on a family snap shot, the picture still
belongs to the person who takes the photo
...
Copyright
in individual pre-recorded programme is owned by the programme maker
...
Infringement of Copyright
...
The copyright owner can permit or prohibit others to deal with the work
...
However the formula © or ® and the name of the copyright owner, the date of first publication
must always be place for international protection
...
Copying
...
Even
if you acknowledge it is an infridgement
...
17
Some copying is not a breach of copyright e
...
if a copy is made for television or broadcast for
private purpose only doesn’t amount to an infringement of copyright
...
b) Copies to the public
...
Under the
CDPA the term used is to publish them
...
Performing literary, musical, dramatic work in public is an infringement of copyright
...
This also includes using copyrighted work and lectures or in presentation using film recording or
broadcast
...
Broadcasting a literary musical or dramatic work infringes copyright, however when an artistic is
publicly displayed it can be included in broadcast or film
...
Making adaptation of literary, dramatic or musical work is an infringement of copyright e
...
turning a book into a play or vice-versa, translating a work or putting it into picture is also an
infringement
...
g
...
e
...
Defences of Infringement
...
18
B) Incidental inclusion
C) Spoken words
...
E) Innocent infringement
...
a) Fair dealing
...
CDPA limits this purpose to news reporting (with the exception of photograph)
...
b
...
g
...
c
...
The record is a direct record of spoken word e
...
from a speech or interview not taken
from previous recording
...
The speaker has not said that the recording shouldn’t be made
...
The word themselves do not breach any existing copyrights
...
The speaker has not prohibited the use that is, made of words before they were recorded
...
The person who has lawful possession of the record consent to the use made of the words
...
Public interest
...
This is a common law defense rather than
statutory defense which has been developed by the court in circumstances where the materials
has been obtained unlawfully e
...
in Hyde
Part resident limited vs
...
The son claim that it was covered by the public
interest defense because the issue of whether the mother of the future King of England had
planned to re-marry was a matter of public interest
...
Acquiescence
Where the owner of copyright knows that their work is being used and allows this to go on
without complaint they may find it difficult to claim a breach of copyright later on e
...
film
investors overseas services v home video channel limited 1996
...
The copyright holder was aware
of this from early 1993 but did nothing about it
...
Innocent infringement
20
If a breach of copyright is committed by a publishes or a broadcaster and he or she is in
possession to prove that he had no idea and didn’t suspect that whatever he was doing was a
breach of copy right then he can use this defense though he cannot escape account of profit but
not damages
...
Right clearance of copyright
Assignment and license
Transferring copyright
...
Assignment
Assigning copyright is the equivalent to selling it, or part of it e
...
many publishers buy
copyright as part of the deal when they commission a feature
...
Assignment of copyright must be in writing to be legally binder
...
In others a commissioning form is sent out when each job is
ordered
...
License
A license is a way of giving someone permission to use the work in a particular way or for a
particular length of time e
...
freelance writer only grants a license for example the right to
publish the article once in a particular magazine, the copyright remains with the writer and if the
publisher wants to use the piece elsewhere or again it must get permission
...
When producing an original programme, publication, or one that incorporates pre-existing
material, it is vital for the producer or editor to `clear’ such rights will result in infringement of
the copyrights, moral rights or performers` rights of the contributor and may result in legal
action
...
If copyright is to be cleared for specific
use, the terms of a license must be agreed between the producer or editor and the contributor that
allow the pre-existing material to be exploited as part of the programme or publication
...
g
...
Rights clearance is a time-consuming and costly process
...
The three types of rights the producer or editor must clear are copyrights
i) Moral rights
ii) Copyrights
iii) Performers rights such as actors or musicians by consent to exploit
...
Moral rights actually have little relevance or effect in English law
...
Under the CDPA, an author has the
power to waive his moral rights
...
An author can even consent to an infringement of his moral
rights
...
Otherwise, the situation could arise where the author claim minor cuts or additions to his work
breach the right to paternity or the right to integrity
...
This is the right of the author of literary, dramatic, musical or artistic work or the director of a
film to be identified as the author
...
The identification or
author must be clear, reasonably prominent and in a form that may include use of a pseudonym
approved by the author or director
...
Integrity
...
23
Modification is justified only if `reasonable in the circumstances and not prejudicial to the honor
or reputation of the author or director
...
Authors who produce work in the course of their employment cannot complain if their employer
consents to a modification
...
REMEDIES OF COPYRIGHT
...
Injunction
b
...
c
...
d
...
A
...
The
principals and practices are similar to those applicable in civil action such as defamation
...
Damages
...
Damages are not available
for a defendant who didn’t know or had no reason to believe that copyright existed in a work
infringed
...
Infringement damage
...
It’s reparation for the owner to put him or her into the position he or she would have been if the
copyright had not been infringed
...
ii) Fragrant damages
...
They are aimed at deterring/stopping the
defendant did so regardless in order to benefit him or herself financially
...
C) Account of profit
...
The amount is
calculated in reference to the profit made by the defendant not the loss suffered by the claimant
...
25
D) Delivery Up
...
This act enables the copyright owner to demand a
delivery up i
...
the handing over of the leaked document e
...
secretary of state for defense v the
guardian N/P ltd (1985)
...
The law protects an individual for misuse of personal information about him or her under the
common law of statute
...
Elements on breach of confidence
...
b) The information was impatient in circumstances which imposed an obligation of confidence
...
Elements on Breach of confidence
...
26
b) The information was impatient in circumstances which imposed an obligation of confidence
...
a) The information has the necessary quality of confidence
...
This
includes also ideas/opinion
...
Breach of an obligation not to take photograph will give the claimant a course of action on the
basis of an inputted confidential relationship
...
b) The information was impatient in circumstances which imposed an obligation of
confidence
...
An obligation of confidence can arise in terms of agreement
...
Even if there is no term relating to confidentiality, the agreement may be so obvious depending
on the nature of transaction that confided the agreement
...
27
A contract of employment may contain terms that expressly present an employee from
disclosing the information learnt during the course of employment
...
The duty is often used to pre vent employees setting up in competition with his ex-employer
...
An action for breach of confidence can also be used by the government to prevent employees
giving information to the media or to suppress embarrassing politically sensitive matter of
information
...
iv) Relationship between a confider and a confidant
...
by virtue of relationship between the confider and the confidant
...
The law will not permit the revelation of anything confident by one spouse to another or during a
marriage
...
vi) Other sexual relationship
...
Therefore we should be careful as journalists
when we are revealing information of any sexual relationship
...
vii) Doctor and patient
...
g
...
viii) Parishioner and a priest
...
ix) Client and a lawyer
...
X) The media and its sources
...
NB: It is open question as to whether information disclosed by a child to a teacher is subject to
an obligation of confidence
...
Several defences are available in an action for breach of confidence;
1
...
2
...
3
...
4
...
29
1
...
Confidentiality will not attach to information that is already in general public knowledge or in
public domain
...
2
...
If the owner of the information consents to its publication he/she cannot later prevent or restrict
its publication
...
3
...
The information discloses iniquity
...
It includes crime, financial malpractice
and police corruption
...
The court may find the breach of confidence is justified
on the ground of iniquity but only to the extent that the information is handed to the proper
authority e
...
police, employer etc
...
4
...
The definition of public interest in the press complain commission code of practice include not
detecting or exposing crime but also protecting public safety and preventing the public from
being misled by some statement or action by an individual or organization
...
The remedies to the breach of confidence are similar like those of copyright:30
i) Interim injunction
...
i) Interim injunction
An interim injunction is usually the most important aspect of claim of breach of confidence
...
The argument is that once the information is given is given out to the
public the damage cannot be replaced
...
ii) Damages
...
However in business and trade secrets information, the claimant may require damages using the
market value of information
...
An account of profit is the most relevant to the group publishers
...
iv) Delivery up
...
Any defendant who is ordered to hand back the material should bear in
mind section 10 of the contempt of court Act 1981 which protects the identity of the source
...
31
Contempt of court is improper interference in the administration of justice
...
Interfering with proceedings or imminent court proceedings
b
...
Scandalizing the court
...
Failing to comply with a court order
...
Improper use of document disclosed during a proceeding
...
Interfering with proceedings or imminent court proceedings
A person is guilty of an offence under the common law of contempt if he publishes materials that
are calculated to prejudice or interfere with the proceeding or an imminent proceeding e
...
publishing a defendant’s previous conviction
b
...
g
...
When a judge declares a session is in private and you continue recording or taking
photos
...
Scandalizing the court
This is an oral or a written statement designed to bring to the court or the judge into contempt or
lower his or her authority
...
d
...
g
...
g
...
e
...
Apart from the purpose meant for, if you use it
for another purpose you will be in contempt
...
Strict liability means that if you published something about active proceeding that carries a
substantial risk of prejudice you can be liable regardless of whether or not you intended to
prejudice the proceedings or you realized you might do so
...
Strict liability
...
Publication
...
Active proceeding
...
A substantial risk of serious prejudice
...
Strict liability
...
If a publisher creates a substantial risk of prejudice
to the proceedings that are active, there is no defence since it is assured so with mens rea
ii
...
Section 2 of the contempt of court act provides that strict liability rule applies only to
publication
...
g
...
ii
...
Criminal proceeding becomes active on;
Arrest without a warrant
...
33
The issue of summon to appear in a court
...
An oral charge except in Scotland
...
A substantial risk of serious prejudice
Section2(2) of the CCA states that strict liability rule only applies to publication that creates a
substantial risk of serious prejudice to the cost of justice or a particular case
...
The following factors are to be assessed by the media when assessing whether a feature is likely
to be in contempt; the court date of hearing, the place of trial/content/circulation, undermining or
intimidating the witnesses, anticipating the verdict
...
1
...
However there is no limit to the term
or of fine, imprisonment that can be imposed
...
2
...
This is a court order which restrains the publication either permanent or impermanent
...
In family court it is extremely common for an injunction to the media to prevent
infringement on privacy of the family and also protect minor against publicity
...
34
Against the world and this injunction binds all publishers within the jurisdiction of the
U
...
A,U
...
C
...
Provide 3 defences to the strict liability contempt
j) Innocent publication
...
Fair and accurate contemporary reports
iii
...
i) Innocent publication
The defendant can use this defence if at the time of publication having taken all care, he/she can
show that he didn`t know and had no reason to suspect that the proceedings were active
...
Fair and accurate contemporary reports
The element of this defence is that the report must be fair and accurate
...
e
...
Be published in good faith (honesty without ulterior motive)
...
Discussions of public affairs
...
The defence didn`t exist before 1981 and
it came to be after the implementation of contempt of court act
...
INDECENCY, OBSCENITY AND RACIAL HATRED
...
According to obscene act 1959,it states that an
article shall be obscene if it affects or if it effects the particular party by depraving and
corrupting those who are likely to read, hear the matter contained or embodied in it e
...
in R Vs
Hicklin case, the matter that is likely to be depraved depend on the type of a person and where it
is published
...
The law of
obscenity cannot be issued to prohibit what the society considers to be in bad taste
...
In deciding whether an article tend to be depraving or corrupt, the magistrate or judge must judge
the article with the standards of the day
...
According to the obscene publication act 1959 publisher means to
distribute, circulate, sell, rent or offer for sale
...
b) Public good
A publisher shall not be convicted if the article is justified as being in public good on ground that
it’s in the interest of science, health, literature learning or even other object or general concern
...
However, imprisonment
is generally reserved for commercial exploitation of pornography
...
Indecent matter is not
defined however a matter is displayed if it is visible from the public face
...
36
NB
...
RACIAL HATRED
Racial hatred or incitement to racial hatred is defined as hatred against a group of citizens in a
country defined in reference to colour, race, nationality (citizenship), ethnic or national origin
...
ii) Publishing or distributing abusive or insult related material, perform plays, distribute or
present visual images or sound or produce programmes containing abusive or
insulting related material
...
The word threatening abusive or insultative carry their ordinary everyday meaning
...
PROTECTION OF JOURNALISTIC SOURCES
...
It is a cardinal rule of journalism that his/her identity
remain confidential
...
37
However there are several main areas subject to exemption where disclosure of sources will be
necessary,
a) In the interest of justice/the contempt of court act, 1981
...
d) The official secret act, 1939
...
f) Police and criminal evidence act 1984
...
The contempt of court act details that when a journalist is ordered by a court or some kind of a
tribunal, he/she should reveal the source of information for the smooth administration of justice
...
The issues that the court will have to consider include:1
...
e
...
2
...
g
...
b) The interest of national security
...
Secretary of state for defence v
Guardian paper
...
The government went back to court to get the document it
will reveal the civil servant (source)
...
The House of Lords
ordered the court to deliver the document basing on argument on national security context
...
Tisdall was sentenced to six months imprisonment
...
38
c) For the prevention of crime and disorder
Journalists can be forced to reveal the source of information it its going to stop or help the police
stop the person or someone else from committing a crime or causing disorder
...
d) Police and criminal evidence act 1984(pace)
...
`
e) The Official secrete Act
...
If they have a reasonable ground for suspecting that spying was undertaken and
that a person can supply information about the offence, then a senior police officer can order the
person to reveal source of information
...
f) The Terrorism Act 2000
This act requires that anybody with information on terrorism reveal the source
...
The media is won by the act that it is a
serious offence to withhold information concerning suspected terrorists, especially if the
information will assist the police to:i) Prevent someone from committing an act of terrorism
ii) Bring about apprehension or conviction of someone for committing, preparing or instigating
an act of terrorism
...
Personal data doesn’t only include private information such as health and medical record or even
financial record but according to DPA it include any automatically processed information as well
as information recorded as part of filling information
...
This includes any information from newspaper to television
companies
...
1
...
2
...
3
...
4
...
5
...
6
...
7
...
8
...
Schedule 2
...
Schedule 3
...
1
...
2
...
40
3
...
The processing is necessary to protect the vital interest of the data subject
...
The processing is necessary for medical purposes
The processing is necessary with connection with legal proceeding, legal advice or rights
...
1
...
The data owner or subject is entitled to apply in writing or payment of a certain fee of whatever
information is being processed (personal data) from the data controller
...
2
...
A person is entitled at any time to right to data controller stopping the process of personal data
concerning him/her because it is causing substantial damage or distress to him or another person
...
3
...
A person is entitled at anytime to right to a data controller, requesting that a controller sees or
doesn’t begin to process personal data concerning you for the purpose of direct marketing to him
...
4
...
A person is entitled to anytime to write to data controller requiring that no decision is taken that
significantly affect the individual automatic processing of personal data e
...
personal
performance at work, credit worthiness etc
...
5
...
41
A person may apply to a court for an order that the data controller rectify, block, erase, or
destroy inaccurate data
...
Right to compensation
...
Media organization may be liable to pay compensation even when the
damage has not been caused as long as the processing is for journalism literature or art
...
Right to assessment
...
42