IBC Legal’s Protecting the Media 2010 conference provided a timely update on the uncertain state of freedom of expression in the media industry Gathering a varied audience, from top media lawyers and in-house newspaper lawyers to legal advisors for MTV, the conference highlighted the challenges and changes faced by all areas of the media in Britain, not least those enhanced by new technologies.
The specific areas covered throughout the day were privacy, Conditional Fee Agreements (CFAs) and cost issues, investigative journalism, advertising boundaries, defamation, online publishing and contempt of court.
Each speaker brought vibrancy to their own subject and most expressed a personal stance on the developments in media law, some more controversial than others.
While half the speakers favoured information-heavy approaches, providing delegates with pages of written examples, others chose to speak with only minimal PowerPoint presentations as support. Both approaches proved equally engaging and informative.
Many subjects overlapped, highlighting that each branch of the media shares the challenges of another.
Privacy
Many could not resist mentioning privacy, and the John Terry case proved the most popular example to use. Antony White, QC of Matrix Chambers, who delivered the talk ‘Reconsidering Privacy and the Media’, highlighted many interesting debates, but also shone a light on how supportive, if controversial, some judges have been of the media in recent years.
Among his examples was a judgement made by Lord Woolf suggesting that a celebrity or public figure, whether a voluntary role model or not, must accept that his or her actions will be of greater interest to the public and therefore, the media.
More controversially, Woolf’s judgement also said that the Courts must recognise that ‘if papers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.’
White went on to provide recent instances where judges have granted freedom to the media to reveal an individual’s identity, particularly if it will render a story in the public interest more newsworthy, quoting one judge who commented that a story without a protagonist would be very much disembodied.
He ended provocatively, suggesting that the media have, in fact, not been singled out in this respect.
Investigative journalism and documentaries
Introducing a very different tone, Dominic Harrison, a lawyer from Channel 4, delivered a passionate presentation about the way in which investigative journalism, particularly television documentaries, is stunted by endless legal barriers, often before an investigation even begins.
One of the main points was not just that broadcast and documentary journalism is forced to show so much of its hand early on, but that audio-visual material on the Internet is virtually unregulated in comparison.
The Internet and technology have led many areas of journalism into unknown territories and the law often finds itself dragging behind.
Claiming that the laws are neither practicable nor accessible, clear nor predictable, Harrison painted a bleak picture of investigative journalism’s limited freedoms.
Advertising
Another area largely affected by the growth of the Internet and technology is advertising.
Marina Palomba, Partner at Reed Smith LLP, described the Internet as having been a ‘wild west’ for a long time.
Discussing the newest forms of advertising, such as location-based social networking, Foursquare and Facebook Places for example, and augmented reality applications, like Lonely Planet and the Museum of London’s ‘Street Museum’ application, Palomba made it obvious that the possibilities for advertising, in this respect, are becoming boundless.
However, at the beginning of the month it was agreed that the Advertising Standards Authority (ASA) is to have their digital remit extended significantly to enhance consumer protection online.
The Internet has blurred the line between what is promotional and what is editorial advertising – an already difficult distinction. For example, on ITV’s Facebook pages the television company writes enthusiastically about future shows on their channels – is this editorial or promotional? Online viral videos – are they considered purely promotional?
As the ASA has always said it will not interfere with editorial content, from next year, with the stricter rules in practice, the difference between editorial and promotional will be considerably more important to distinguish.
The conference, while providing the latest updates on cases and practice, also raised many debates and interesting questions.
All the answers, however, could not possibly be given. As areas such as CFAs remain in a state of uncertainty, according to speaker Louis Charalambous, Partner at Simons Muirhead & Burton, and future developments in defamation law cannot be predicted, we can only prepare ourselves for all the possibilities.
Evie Jeffreys
http://www.themediasociety.com/news/PROTECTING+THE+MEDIA%3F/144/
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