Cliff Buddle/JMSC6022/2013

Media Law Course Legal Research Tutorials 24 Jan, pm 29 Jan, 4-6pm Digital Media Lab, JMSC Case noting Research project Exam

Intrusions into privacy? Photographer David Wolf Series “Window Watching” SCMP story, 18 Jan Pictures of people in their homes Available on his website -kong-michael-wolf/ -kong-michael-wolf/ Is it a breach of the law? Should it be?

Phone hacking? Illegal interception of telephone voic messages Celebrities, politicians, relatives of dead soldiers, murdered girl Leveson inquiry 2011/2012 Calls for greater regulation of UK media, underpinned by law

Naked photographs? Prince Harry and naked game of pool in Las Vegas hotel suite, August 2012 Pictures all over the Internet… But British newspapers did not publish them Why not?

Abuses of editorial freedom? Southern Weekly New Year editorial calling for application of China’s constitution Replaced by propaganda chief with article praising achievements of the Communist Party Journalists’ outrage, strike Protests and scuffles Party boss steps in Change of editor Debate over role of the party in controlling the media

Religious sensitivities Controversial film made in US Controversial film made in US Ridiculed muslim faith Ridiculed muslim faith Trailer upload onto Youtube Trailer upload onto Youtube Sparked riots and protests around the world Sparked riots and protests around the world Attack on US consulate in Libya, three killed including Ambassador Attack on US consulate in Libya, three killed including Ambassador Suicide bombing in Afghanistan Suicide bombing in Afghanistan Move by muslim nations to have United Nations restrict freedom of expression to prevent attacks on the religion Move by muslim nations to have United Nations restrict freedom of expression to prevent attacks on the religion

What is media law? What do we mean by the media? What do we mean by law? How does the law differ from ethics? Why should journalists be concerned with the law? What are the key legal issues facing the media today? How are these issues handled in different parts of the world?

Fast moving area of the law Changes to the media industry Law struggling to cope with technological developments Trend towards better protection of people’s privacy Calls for greater regulation of the media in some parts of the world (notably the UK) Growth of social media and more investigative reporting in others (notably mainland China)

What about Hong Kong? One country two systems Freedom of the press Very competitive Many daily newspapers Battle of the free newspapers Awareness of the need to protect free media Concerns about self-censorship, influence of Chinese government But also concerns about lack of media regulation and occasional calls for reform

Media Law Introduction Legal systems and freedom of expression Legal foundations, press v judicial system Court reporting Privacy and obscenity Defamation Copyright, issues relating to the Internet

Why be a journalist? To get rich? To enjoy stress-free working conditions and lots of leisure time? Job security?

Why be a journalist? OR To travel the world? Meet interesting people? Witness and record history being made?

Where is the job satisfaction? Break exclusive news stories Seek the truth Access important information before others Give a voice to the weak and hold the powerful to account Change the world for the better?

What does this have to do with the law? Journalism involves an exercise in… The freedom of speech The freedom of expression The freedom of the press Protected by law? Is there a difference between them?

US Constitution 1 st Amendment (1791) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peacefully to assemble, and to petition the Government for redress of grievances

German Basic Law Section 5(i) 1949 Everyone shall have the right freely to express and disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There shall be no censorship.

Hong Kong’s Basic Law Article 27 Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

Free speech v free expression Is there a difference? “The freedom of speech (or the freedom of expression) is a freedom that is essential to Hong Kong’s civil society.” Albert Cheng v Tse Wai Chun, Paul (2000) 3 HKCFAR 339

Freedom of the press v freedom of expression Is there a difference? Do media organisations and journalists have special rights? Should they have special rights? If so, what should these be?

Protection of sources Do journalists have a right to protect confidential sources? Judith Miller: Reporter for New York Times Jailed for contempt of court for failing to testify Investigation into leaking of the name of Valerie Plame as CIA agent Refused to reveal her source Spent 85 days in jail Later testified after her source confirmed he had released her from duty to keep his name confidential

Protection of sources Sarah Tisdall UK Civil Servant jailed in 1983 for leaking official secrets to The Guardian newspaper The Guardian complied with a court order to produce the photocopied documents (relating to arrival of Cruise missiles in the UK) These documents allowed Tisdall to be traced

UK,Contempt of Court Act, 1981 Section 10 No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

European Court of Human Rights Protection of Sources and Article 10 ECHR “The protection of journalistic sources is one of the basic conditions for press freedom.Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public- watchdogrole of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected. An order of source disclosure... cannot be compatible with Article 10 unless it is justified by an overriding requirement in thepublic interest.” (Goodwin v UK)

UK Courts “The media are the eyes and ears of the public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than the right of the general public. Indeed, it is that of the general public for whom they are trustees.” Sir John Donaldson in Attorney-General v Guardian Newspaper (No. 2) [1988] 3 All ER 545, 600 Spycatcher case

What about the US? Some commentators have argued 1 st Amendment reference to press freedom confers special rights on the media This has mostly been rejected by the Supreme Court Ordinary citizens enjoy the same protection against libel as the press But in Miami Herald v Tornillo 418 US 241 (1974) right to editorial independence was upheld

Miami Herald case Political candidate Claiming right of reply to editorials attacking him Florida’s right of reply law provided such a right Does such a law enhance or restrict free speech as protected by the constitution? Law held by Supreme Court to breach constitution

Miami Herald case “A newspaper is more than a passive receptacle or conduit for news, comment, and advertising… The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public official -- whether fair or unfair -- constitute the exercise of editorial control and judgment.”

Germany Constitutional Court interprets Article 5(1) as meaning press and broadcasting freedom is distinct from freedom of expression Protects institutional independence of newspaper and broadcasting companies Eg. Right not to reveal sources Also protects against pressure from other media groups (Blinkfur, 1969)

What do you think? Should the media enjoy special rights? Should press freedom be the same as freedom of expression?

What is the media? Traditionally…. Newspapers Magazines Radio Television BUT….

New media? Technological advances have changes the media scene Websites? Facebook? Wikileaks? Bloggers? Citizen journalists?

What is law? Rules and regulations governing the way we live our lives Can be distinguished from ethics: Standards of behaviour which are not necessarily underpinned by law Voluntary codes of conduct, for example

What about media law? Significant laws affecting the media Sometimes specific laws on how media is regulated Tend to focus on broadcast media, but can have wider application Mostly same laws on freedom of expression as for everyone else

Freedom of expression Most issues concerning media law concern the concept of freedom of expression What happens when free expression conflicts with other rights or interests To what extent can freedom of expression be restricted? Where is the line to be drawn?

What is freedom of expression? Dictionary definition not sufficient Covers much more than “speech” Comprehensive definition to be found in the International Covenant on Civil and Political Rights

Free expression: A human right Universal Declaration of Human Rights Adopted by UN General Assembly 1948 Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers

ICCPR International Covenant on Civil and Political Rights 1966 Legally binding Most states have ratified 24 have not ratified or acceded to ICCPR Burma, Malaysia, Singapore have not signed China and Cuba have signed but not ratified

ICCPR and Hong Kong Article 39 of the Basic Law The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

Where does ICCPR apply?

Article 19, ICCPR 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 19, ICCPR 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Why protect freedom of expression? Promotes discovery of truth Promotes political participation (by being better informed) Maintains social stability (information allows problems to be addressed quickly) Provides safety valve (more fulfillment) Provides crucial check on government Guards against gross human rights abuses

Why do we protect freedom of expression? Self-fulfillment “Marketplace of ideas” Political debate and check on government

Self-fulfillment Freedom of expression a basic part of human dignity Essential to self-development and fulfillment Is freedom of expression more important to human happiness than other basic needs? Food? Housing? Health? What do you think?

Marketplace of ideas First put forward by English poet John Milton in 1644 Popularised by philosopher John Stuart Mill in 19 th century Wrong to suppress falsehoods Allow them to compete with the truth in the marketplace of ideas – competing views Free expression will ensure truth always wins

Influential in US The ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our constitution. US Supreme Court Justice Oliver Wendell Holmes in Abrams v United States 250 US 616 (1919)

Political debate and check on government “Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials.” Lord Steyn in R v Secretary for the Home Dept, exp Simms (20000) 2 AC 115

What do you think? Are these three reasons always true? Is the marketplace of ideas open to everyone What about press freedom?

An absolute right? Should the freedom of expression be subject to restrictions? Or should it be an absolute right? What do you think?

No restrictions? Taken to extremes, theory of “marketplace of ideas” means freedom of expression should not be subject to any restrictions at all Absolutist theory Argued by 2 former US Supreme Court justices, Black and Douglas Repeatedly rejected by the majority of the court

Unsuccessfully argued in HK Oriental Press case Lawyers for popular newspapers tried to argue freedom of expression is protected in absolute terms Secretary for Justice v Oriental Press Group [1998] 2HKLRD 123 (trial) Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 (appeal)

Oriental Press Case 1998 Obscene Articles Tribunal ruled against one of HK’s best selling newspapers Newspaper also unhappy about court rulings in cases it was involved in, involving expat judges Oriental Daily News responded with strong and personal criticism of OAT and judges

Oriental Press Case Oriental does not care if you are yellow-skinned or white or a pig or a dog. In our self-defence, we are determined to wipe you all out! Here Kung Fu Tea warns the pigs and dogs: don’t you bother me again. Otherwise, when I counterattack in self-defence, you will regret it! I repeat: you will regret it very much

Oriental Press Case Defendants charged with contempt of court through scandalising the court First case of its kind in Hong Kong Defence was that the charges breached freedom of expression Right protected by Article 27 of the Basic Law Defence rejected and editor jailed for four months OPG fined HK$5 million Freedom of expression not absolute Can be restricted in some circumstances

Scandalising the Court Free speech balanced with right of judicial system to be Free speech balanced with right of judicial system to be free from “malicious conduct aimed at undermining the free from “malicious conduct aimed at undermining the due administration of justice” – Wong Yeung Ng v. Sec. due administration of justice” – Wong Yeung Ng v. Sec. for Justice (1999) for Justice (1999) Free speech: can criticize courts Free speech: can criticize courts Scandalizing: cannot unduly interfere with legal system Scandalizing: cannot unduly interfere with legal system Different common law jurisdictions interpret this very Different common law jurisdictions interpret this very differently differently Doesn’t exist in the US Doesn’t exist in the US UK has not had a prosecution since 1931 UK has not had a prosecution since 1931 Canada uses a “clear, serious and immediate” danger test Canada uses a “clear, serious and immediate” danger test New Zealand: “real risk” New Zealand: “real risk” Singapore: “inherent tendency” Singapore: “inherent tendency”

Common restrictions Safeguarding other rights Right to a fair trial Right to reputation Right to privacy Intellectual property

Restrictions Laws restricting freedom of expression used by many groups against media Big business, rich litigants etc But most often used by governments Wary of media threat to their control over information National Security, State Secrets etc Restrictions open to abuse – covering up scandals and abuses of power, cracking down on dissent History of government restrictions helps explain different approaches to media law around the world

Early Press regulation in UK William Caxton started first British printing press in 1476 Government quickly enacted laws restricting what could be printed Law of seditious libel made it a crime to publish criticism of the government, even if true Censorship laws spread to British colonies around the world

Early Press Regulation in US UK extended censorship to US This strengthened campaign for independence Zenger trial, 1735 New Weekly Journal opposed opinions of the Colonial governor Arrested, charged with seditious libel Jury refused to convict him – landmark case On Independence US adopted strong protection for freedom of expression

Colonial legacies Even in US, many decades before courts began using 1 st amendment to protect freedom of expression Many other countries kept UK restrictions after independence Malaysia and Singapore still have Internal Security Acts, which originated from British rule (Malaysia plan to repeal it)

Hong Kong Still has wide-ranging British enacted laws against sedition Last used during Cultural Revolution in 1967 Tsang Tak-sing jailed for 2 years – now a senior government official (Secretary for Home Affairs) Attempts to liberalise the law have failed After 1997, China reversed amendments liberalising law on freedom of assembly Article 23 of Basic Law requires passing of new laws on treason, subversion, sedition, state secrets

Cultural Restrictions Laws restricting freedom of expression are often driven by cultural sensitivities Lese majeste in Thailand, criminalising disrespect for the monarchy there “Defame, insult, threaten...” January 17, 2013, “red shirt” leader jailed for two years for a speech at a rally in 2010 Lese majeste in Thailand carries a sentence of up to 15 years jail

Religious restrictions Laws protecting Islam in Afghanistan, Bangladesh, Brunei, Indonesia, Malaysia, Pakistan, East Timor Indonesia prohibits conduct or comment hostile to religion. Editor charged with blaspheming Islam by publishing cartoon of Prophet Mohammed Pakistan religious court held “penalty for contempt of the Holy Prophet is death and nothing else” Man jailed for 10 years for outraging religious feelings in Pakistan in January 2013 Afghan editor sentenced to 2 years for articles against stoning, Islamic punishment in 2005

Democracy Spread of democracy has usually led to easing of restrictions on media South Korea and Taiwan now have much freer media following advent of democracy But this is not always the case Criticising a public official in East Timor, one of the world’s newest democracies, can bring a prison term of 3 years

Economic growth? Economists often argue free flow of information needed for economic growth China as an example No democracy, but rapid economic growth Media still heavily restricted Freer now than 20 years ago?

Around the world

rts%20and%20Graphs%20-%20Web%20site_0.pdf rts%20and%20Graphs%20-%20Web%20site_0.pdf

Most important factors? History Political system Economic system Religion Cultural factors Is media freedom more or less important in a democracy?

But where is the line to be drawn? Permitted restrictions on free expression have often been abused by governments To what extent is free expression to be restricted In what circumstances To what extent?

Next Week Legal Systems and Freedom of Expression