When writing articles, journalists can rely on freedom of press which is protected by various common law defences. In 1950, freedom of expression was included for the first time in the European Convention of Human Rights and Fundamental Freedoms (ECHR). Since then, journalists have been considered the ‘public watch-dogs’ of a democratic society. Today, common law has evolved and journalistic activities are monitored by courts in order to balance media free speech, responsibilities and people’s right to privacy. This essay outlines, which pieces of information gathered from sources close to Mr. Jock Campbell would be safe to publish into a newspaper.
Based on Scotland’s privacy principle of actio injuriarum, injuries to honour, reporting other journalists remarks on Jock Campbell, such as “weirdo”, and “looks creepy,” are irrelevant to the public and can be considered a verbal injury. This act, which derives from Roman law, provides a sophisticated legal framework covering defamation, privacy, harassment. Mr. Campbell is entitled to his right of dignity and in Scots Law, claiming solatium, tort, for ‘wounded feelings’ is a valid remedy.
In law, there are several definitions of what defamatory means. In fact, most of them come from case law, rather than statute. Previous cases have shown that a statement is defamatory when it ‘tends to lower the person, in the estimation of right-thinking members of society’, or exposes the person to ‘hatred, contempt or ridicule’. Legal academics McBride and Bagshaw, in their book Tort law, had come up with a modern meaning of the word. According to them a statement is defamatory if reading or hearing it would make a person: “think less well as a person of the individual referred to; think that the person referred to lacked the ability to do their job effectively; shun or avoid the person referred to; or treat the person referred to as a figure of fun or an object of ridicule.” (Quinn, 2015) McBride and Bagshaw’s definition focuses for the first time on, what impression is the defamatory statement going to leave on those reading it, instead of how the person defamed feels.
For example, in Berkoff v Burchill (1996) the defender, Julie Burchill journalist at the Sunday Times, described actor Steven Berkoff as ‘notoriously hideous-looking’, and as “only marginally better-looking than the creature in Frankenstein”. The pursuer sued for defamation and argued that the statements made him a subject of ridicule. The trial judge ruled in favour of the pursuer, therefore the defender appealed. The Court of Appeal stated that the word ‘defamatory’ cannot be precisely defined, however “words that do not imply disgraceful conduct or lack of business efficiency can still be defamatory if they cause the claimant to be subject to ridicule, contempt or exclusion from society.” (LawTeacher, 2013) Remarks on someone’s appearance and calling them ugly would not usually be defamatory, but they become so based on the actual circumstances in which they were used. Since the pursuer earned his living as an actor, these words made him an object of ridicule. An unpleasant statement can be considered to have crossed the line into defamation if it is said with the intention to ridicule someone.
Comparing Berkoff v Burchill case to the given scenario of Fifi Smith’s murder, publishing words as “weirdo” and “looks creepy”, which are rude personal comments, will likely affect readers’ opinion on Jock Campbell and could be considered defamatory if judged overly offensive. Moreover, if the journalists making these claims on Mr. Campbell’s appearance work for trusted news companies. They imply that it is not safe to be anywhere near him.
Journalists have the responsibility of presenting truthful facts, hence before publishing anything they are compelled to verify their sources. One of the sources claims to know Mr. Campbell and describes him as a “loner” and “different to most other folks.” In addition, he hands an old photograph from the 1980s of a much younger Mr. Campbell with bright purple hair. On the one hand, this source comments, “loner” and “different to most other folks,” can be judged as honest opinion. The latter, previously know as fair comment, is a defence contained in s3 of the Defamation act 2013, which applies to opinions and comments. The article that would be published into tomorrow’s newspaper needs to explain what are facts that led the source to have these particular opinions on Jock Campbell. If there is any evidence suggesting that my source and Mr. Campbell have history of falling out, this might allude that my source did not honestly think these comments but just wanted to seek revenge and damage the coffee shop’s manager reputation.
On the other hand, publishing an unauthorised photograph of Mr. Campbell would result in breach of confidence. In 2003, Hello! magazine published photographs of film stars Catherine Zeta-Jones and Michael Douglas’ wedding. The couple had sold the rights of all the pictures to OK! magazine and banned all their guest from taking photos at the wedding. The Court of Appeal argued that the photographer disclosed pictures of a private event and ‘the intrusion [by the photographer] into the private domain was itself objectionable’. Hello! defended themselves by saying that the pictures were not confidential material since the couple sold them to OK! But the court claimed that celebrities right to sell their pictures, it is comparable to a trade secret like the formula of a drink such as Coca-Cola. Moreover, the court stated that Hello! knew that a publisher had paid for exclusive rights of the pictures and unauthorised use of that information could have resulted in breach of confidence. Hello! had eventually to pay over £1 million.
In Campbell v MGN (2004), the Mirror was sued by model, Naomi Campbell for releasing pictures of her attending the Narcotics Anonymous. Lord Hope talked about breach of confidence when he said: “The underlying question in all cases where it is alleged that there has been a breach of the duty of confidence is whether the information that was disclosed was private and not public…If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected.”
If for any reason, a journalist decides to publish a photograph of Mr. Campbell, he would need to be able to prove that it was published with the pursuer’s consent, or was already in public domain or that there is a public interest reason in publishing it.
Another source, claims that Mr. Campbell was apparently known to be very friendly with a convicted sex offender. As written above, this claim needs to be verified by the journalist before publishing it. Assuming that this is true, a journalist might publish it as a matter of public interest. In the Editor’s Code of Practice of IPSO, public interest includes “raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public. The regulator will consider the extent to which material is already in the public domain or will become so and editors invoking the public interest will need to demonstrate that they reasonably believed publication – or journalistic activity taken with a view to publication – would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time.” (IPSO, 2018)
Public interest was a new defence introduced with the Defamation Act 2013 to substitute the Reynolds defence. It protects the media, which publishes issues of public interest in a responsible way even when what has been said turns out to be false. If the media was required to be able to prove, to court, that every allegation is true before publishing it, that would mean that important true stories would be suppressed from being published at all. Also, the media will only be protected if they have reported the allegations and conducted their research in a responsible way. Therefore checking the sources’ background and proofs are a must to protect yourself as a journalist and your newspaper credibility. In order to publish an impartial and balanced story, Mr. Jock Campbell side needs to be portrayed at least in general terms. The author of the news story cannot be disadvantaged if the pursuer refuses to give his side of the story. Likewise, paying a source for information might be seen by a court as bias thus not reliable, which means that a public interest defence would not stand a chance.
For instance in Bonnick v Morris, a story about a Jamaican company, JCTC, making business with another company, Prolacto was published in a newspaper. The pursuer used to be employed by JCTC but left just after the contracts were made with the other company. The article reported that the contracts were very advantageous to Prolacto and that Bonnick left the company after making the second contract. The pursuer sued for defamation because the article implied that he acted improperly in arranging the contracts, and that was the reason why he had to leave. The newspaper used public interest as a defence and argued that they had approached JCTC for comments, but they gave no statement. Additionally, the pursuer was approached as well, and he explained that there was nothing suspicious about the contracts and that they had nothing to do with him leaving the Jamaican company. The court found that the news story was defamatory, however, it was a matter of public interest and the newspaper acted responsibly in gathering the information.
Finally, Rosie Parker, who used to work at the coffee shop, says Campbell would spy on his female neighbours through his office window, but she has never reported this to the police. Publishing this information might result in Contempt of Court, which means prejudicing Mr. Campbell right to a fair trial and Fifi’s family right to justice. Contempt of Court was introduced to protect the system of justice because in a criminal case, the jury should reach a verdict solemnly based on the evidence which was heard in court. A newspaper can commit a contempt by publication in two ways. One is called strict liability, under the Contempt of Court Act 1981, which happens when a publication generates substantial risk of prejudicing an active case and it occurs even if the publisher did not know that a risk would have been created. The other one is covered by common law, which states that it is contempt to intentionally aim to impede a case.
Daily Mail and Daily Mirror were found guilty of contempt in Levi Bellfield’s case. The judge of the case dismissed the jury before they could reach a verdict, because of the media coverage. In fact, the Daily Mail and Daily Mirror published articles, when the jury was still debating to charge Bellfield for attempting to kidnap, at the time schoolgirl, Rachel Cowles. These articles had information, which the high court said went “far beyond” what the jury knew. Unfortunately, Rachel Cowles and her family were deprived of a verdict in their case, because the media coverage did not comply with the Contempt of Court rules.
Media plays a fundamental role in a democratic society and it holds the power of changing people’s perspective on several situations. However, there have been cases, in which media had conducted their own trial of the defender and gave a verdict before the court could reach its. The so-called, trial by media is an interference with the justice system because it does a separate investigation and builds a public opinion against the defender, which can prejudice the judge. Also, this might cost a lot of money to news agency. In 2007, Kate and Gerry McCann sued Express Newspaper over articles suggesting that they were responsible for their daughter’s death. The judge ordered the media outlet to pay £550,000 and a public apology. As a journalist, it is important to avoid accusing Jock Campbell, unless a jury finds him guilty.
This paper analyses, which risks a journalist might encounter when publishing information related to a murder. From defamation to breach of confidence, there are many remedies adopted in Scottish law to assure fair trials, but at the same time, freedom of press.
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