Surviving the legal minefield

Surviving the legal minefield (September 2004)

It’s easy to fall foul of the law. And you ignore the consequences at your peril, writes Cathryn Smith

PUBLISHING is one of the most dynamic, rewarding and exhilarating of professions, but the price to be paid for such pleasure is that a publisher carries legal risks which are quite unique.

Everyone involved in publishing, from those in charge of the largest newspapers or magazines to the smallest in-house newsletters must be aware of the substantial and potentially expensive legal minefield they face. It is easy for the unwary to fall foul of the laws of libel, to be held in contempt of court, or to find themselves breaching copyright. All of these hurdles can have significant financial consequences in the form of damages claims and legal costs; some can even result in imprisonment.

Future articles will explore each potential problem in greater detail but for the present let’s start with an overview.

The Law of Libel

A publication is defamatory if it tends to lower a person in the estimation of the right thinking member of society; exposes a person to hatred, ridicule or contempt; or injures a person’s reputation in his trade or profession; or causes others to shun or avoid him.

In other words, say almost anything unpleasant about another person or company and it is probably defamatory! England is not the libel capital of the world for nothing.

Unfortunately it is not always easy to spot a defamatory article. Particular care needs to be taken when considering articles in relation to celebrities, politicians, policemen, lawyers, and others whose professional standing within the community is of particular importance in their trade or profession.

If a proposed publication is defamatory, is there a defence? Do you have the benefit of Absolute Privilege? Can you prove what you say is true, (i.e. justified) or is it fair comment - as defined by the Courts? At a more practical level, you must consider the commercial risks involved in publishing defamatory information. There is no such thing as a defence that is certain to succeed.

Defamation proceedings are notoriously expensive and uncertain. Although the Courts have indicated that defamation claims are likely to be limited to no more than £200,000 per claimant (for the most serious defamations) if unsuccessful in defending a claim, defendants will also have to pay the Claimant’s legal costs which can frequently be at least ten or even twenty times higher than any damages awarded.

Advertising

Don’t fall foul of the Advertising Standards Authority. What is your liability if you fail to run an advert and the advertiser sues for loss of profit? Are you protected by your Terms and Conditions? Are you liable if an advert incites racial hatred or is defamatory?

Contempt of Court

Is the proposed article in contempt of court, will it breach a reporting restriction order, or prejudice forthcoming criminal proceedings? If you don’t know, you need to seek advice.

Under the proposed courts Bill, likely to become law later this year, if your publication is responsible for the collapse of a trial you may be ordered to pay the costs associated with that collapse which could amount to many hundreds of thousands of pounds.

Breach of copyright

Restrictions on reproduction apply to most artistic and literary creations including photographs, cartoons and words. These original works cannot be reproduced without the copyright holder’s consent without fear of a claim for damages. There are certain exceptions to this general rule including the right to use words and cartoons from copyright material to illustrate a current news event provided certain requirements are met and attribution given. It is important to remember that this exception does not extend to photographs. The law in relation to copyright is ever changing, not least because of European legislation.

Data Protection Act

Although most public bodies are aware of the provisions of the Data Protection Act, you the publisher will be required to consider the Act from a different angle - for example, reproducing a photograph of somebody without their consent may breach the Act.

Press Complaints Commission

If you are publishing and distributing any kind of newspaper or magazine you will be subject to the provisions of the PCC’s Code of Practice which regulates issues such as intrusion into private and family life, identification of children, discrimination and misrepresentation. Fall foul of the Code and you will have to answer to the Commission.

Competitions

The rules in regulation to competitions and lotteries are lengthy and complex. Contravene them at your peril. Fines will swiftly follow.

The Law of Confidence

(Privacy by the back door?)

2003 saw a significant increase in the number of individuals bringing claims for breach of confidence where details about their private lives have been published, sometimes inaccurately, without their consent.

Although the House of Lords have indicated that there is no law of privacy under English law, arguably the Courts have used the law of confidence whenever possible to protect and compensate individuals whose privacy has been inappropriately invaded.

So, whatever the nature of your publication, make sure that you avoid the legal minefield and have access to good, practical legal advice.

Published 27/09/2006.