Media law can feel like a minefield, can’t it?
And it seems to get more complicated all the time.
Do you worry about careless social media posts costing a fortune?
Are copyright rules causing confusion?
Maybe you are worried about using content created by AI.
These are some of the challenges and worries comms and PR professionals regularly face that we tackled in our latest complimentary webinar.
James White, our CEO, was joined by media law expert David Banks.
David is co-author of three editions of McNae’s Essential Law for Journalists, the ‘bible’ of law for the media.
And he has trained thousands of people for hundreds of organisations over 20 years as a trainer.
They began by exploring if the law is evolving to keep pace with social media changes.
“Technology moves enormously quickly, and legislation moves slowly,” David said.
“We’ve had social media since around 2006, and the first meaningful piece of legislation that touched on social media was not until 10 years after that.
“It took 10 years for the law to realise social media was there, by which time social media is already changing and outpacing it.
“The law grew up around newspapers, and a lot of it is still shaped that way. And that is not always a neat fit for 21st-Century digital media.
“The speed with which we work now is different to the days of hot metal and print. We can get content out enormously quickly, as can the people publishing about us.”
The way we reach audiences now also presents challenges.
David said: “Our content is no longer confined to print footprints – it goes around the world wherever anyone can log on to our social media channels and websites.
“Sometimes, social media spreads lies people want to believe – not out of any malicious motive, they just want some good news.
“We saw this with the fire at Notre Dame cathedral. 24 hours after the fire, this guy started tweeting about the response and what would happen text. And he said it would be repaired with oak trees from the garden of the Palace of Versailles.
“People loved it, and it went viral. No one looked at the picture he posted and went, ‘They’re not oak trees’. And the Palace of Versailles faced this story about its oak trees being chopped down.
“For people in comms, trying to get the real version of events out there during events like this can be challenging.”
What’s the difference between libel, slander and defamation?
You’ve heard these words before.
But what do they mean? And how do they link together?
David said: “This can sometimes be a little puzzling. Why do we have three words for what sounds like one thing?
“Defamation is the umbrella term in England and Wales, and then it divides into libel and slander.
“Libel is defamation in the permanent form. That means it is in print, online or broadcast.
“Slander is defamation by spoken word. It is purely conversational or a speech being made.
Up in Scotland, it is all defamation – they don’t make this distinction.”
What are the risks of libel?
We are clearer on the terms. But what are the risks here for comms professionals and their organisations?
“The reason we worry about it is because it can be expensive,” David said.
“If you get involved in a High Court libel battle, the court can award up to £300,000 in damages, which is enough.
“But on top of that, the other thing you have to worry about is the legal costs. If you lose a libel action as a publisher, usually you will have to pick up the claimant’s legal bill. So, you have your legal bill, their one and the damages to pay.”
But what happens if what you say is true?
“The simple answer is that you can’t be sued for libel if something is true.
“But the way libel works is that it assumes what you have published is not true.
“So, you have to be able to prove it is true to the satisfaction of the court.”
How does a claimant prove something is libellous?
Let’s delve into this in more detail.
David says there are three things a claimant needs to show to prove something is libellous.
He said: “Firstly, they have to show the content has a meaning that damages their reputation. For an individual, that is serious harm. For a company, it is serious financial damage. Companies have to prove a bit more than individuals.
“They must also show they have been adequately identified in what has been published. Usually, they have been named, so it is a given. But they only have to show there is enough information in there for them to be identified by people who know them,
“And the third thing they have to show is that it has been published and put out there to an audience.
“Online, we can potentially extricate ourselves because if we can show we have taken something down quickly and responded to complaints promptly, it may not have been seen by many people. And it is not worth suing for a small audience.”
Is there anything the claimant doesn’t need to prove?
It is worth reversing that previous question and exploring whether there is anything the claimant does not need to prove.
“The claimant doesn’t have to disprove your content,” David said. “They don’t have to show the court your content is untrue.
“The court assumes that for them. The ball is in our court to prove truth.
“The other thing the claimant doesn’t need to prove is that they have a good reputation. The court assumes all claimants have a good reputation. We know that is not true. But a claimant arrives at court with a good reputation.”
Is an opinion a protection against libel?
You may have heard of the honest opinion defence. Doesn’t that protect from libel?
“If you are just expressing an opinion about things, that is usually defensible,” David said.
“But often, people expressing opinion intersperse it with statements of fact.
“You have to be careful with how you express opinion so it is purely an opinion.
“And your opinion must be based on true facts.
“Additionally, if you have some kind of malicious motive against the person you are writing about, that can be used against you to knock down that defence.”
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What about anonymised content?
If you don’t name someone in your content, can you still defame them?
“If you are going to anonymise content, you need to be effective at doing it,” David said.
“All the claimant needs to show is there is enough detail for them to be identified by someone who knows them.
“So, even though you have taken out a name, there may still be details in there that can identify that person.”
It could also lead to group libel.
“By blurring identity, you might point the finger at a small identifiable group of people or companies.
“It needs to be a smallish group – five, ten, 15 people – but the court has not set a limit. It could say 20 is ok, and that could get expensive.
“You couldn’t libel all the teachers in London, for example, as there are thousands of them. But, if you said a particular primary school, that would be a handful of people. And they could sue as a group.”
What if you repeat or share something on social media that is libellous?
We mentioned earlier how social media has changed the media landscape.
Social media makes it easier than ever before to share and engage with content.
And that creates risks.
“One of the risks we have in social media is the repetition rule,” David said.
“If you repeat something defamatory – which is so easy to do on social media because it is built around sharing and reposting – you are just as libel for it as the person who first put it there.
“And the danger of working for a big organisation is it makes you a target. The claimant doesn’t have to sue the originator if they are not worth suing. They could sue someone further down the line of repetition because they are the ones who can pay damages and costs.
“The courts fully accept that. They expect claimants only to sue someone who can pay.”
Even liking a defamatory post could get you into trouble.
“The thing with likes is that at one time it was just a little vote of confidence,” David said.
“But they have changed the way the algorithm works on lots of social media channels, and likes drive a post up in someone’s timeline, meaning it is more likely to be seen by more people.
“If that got to court, the court might see it as a form of repetition.
“Are you pushing this content to more people? By liking it, I think you are.
“It is something you need to think about and be careful about what you like.”
The changing face of libels
With the way the media landscape has evolved, are we seeing libels move away from traditional media to things like podcasts, video and social media?
“One of the growth areas the High Court has had to deal with has been the rise of social media libels, David said.
“Interestingly, it has been driven a lot by ordinary people suing each other. The libel courts used to be the preserve of the rich and famous suing national newspapers, magazines and broadcasters.
“But we have started to sue each other for things they have posted on Instagram.
“Lots of them don’t get to court because libel law tries to get the two parties to settle out of court.
“But we are seeing social media drive more libel threats.”
What if AI creates the libel?
AI is being used increasingly in our day-to-day work.
What happens if an AI platform creates the content that gets you into hot water?
David said: “The fact it has been created by a programme or app doesn’t help us out.
“One of the rules of libel is that what we intend when we publish doesn’t matter. If we libel someone accidentally, such as through AI, that doesn’t matter.
“We’ve still taken that content and put it on one of our channels.
“So, you must check it in the same way you check any other content. The onus is on you to ensure there isn’t something in there that can create a liability.”
What makes something defamatory?
Let’s recap and consider what makes something defamatory.
You will know some of these. But it is crucial to be clear.
And the part David describes as the ‘danger area’ can be easily overlooked.
“It is not an exhaustive list, but some typical things include saying someone is a criminal or accusing them of being dishonest, threatening behaviour or discrimination.
“A danger area with companies is talking about their financial position – insolvency, bankruptcy, going into administration. People often use these words but don’t know what they mean and don’t get it exactly right. And that can be damaging to a company or business person.”
Time limit
The good news is there is a time limit with libel.
David said: “The Defamation Act of 2013 is the latest bit of law. And that tried to catch up with the internet.
“It did things that help us out as digital publishers.
“One big thing it did was to unify time limits for someone to sue you. If they want to sue you, they must get their action going against you within one year.
“That is plenty of time, but at least it sets a limit. After a year, you don’t need to worry about it.”
Slander
We have focused heavily on libel so far.
But, as you will remember from the start, slander forms another part of defamation – albeit one comms and PR professionals do not need to worry about so much.
David said: “The thing with slander is the person needs to show damage. They have to show some financial consequence of the spoken word they are complaining about.
“The spoken word is so fleeting, and we have seen slander actions disappear from the courts.
“That doesn’t mean you don’t worry about it.
“But it is not the threat it once was.”
Malicious falsehood
This is another part of media law that is important to understand.
Hearing it again during our webinar brought back memories of sitting in media law lessons at Lambeth College many years ago.
“This is a side issue to libel,” David said. “It is a separate legal wrong.
“It is where you say something about someone that causes them financial harm.
“A typical one is saying someone is dead. It is not libellous to say someone is dead – it doesn’t damage their reputation – but it can have a damaging impact on their livelihood.”
A key form of malicious falsehood that comms and PR teams need to be aware of is the slander of goods.
David said: “This is where your organisation wants you to make an absolute claim – ‘We are the only product that does this’, ‘We are the only organisation offering this service’.
“That is not libel because you are not saying anything bad about anyone else. You are boasting about your products and services.
“But, by implication, you are damaging a competitor – one that provides a similar service or makes a similar product.
“If they can show loss of orders, profits or footfalls because of your claim, they could be compensated for that.
“So, temper your language – ‘One of the only’, ‘Thought to be’ – to avoid leaving yourself open to action.”
Copyright aware
Let’s move on to another crucial area of media law – copyright.
What do PR and comms teams and content creators need to be aware of here?
“This is one of the areas of law that has been most challenged by the advent of the internet,” David said.
“It is seen by many as a source of free stuff, and things were ripped left, right and centre when it first arrived.
“But the fact things are visible in public does not make them public domain. It is still someone’s copyright.
“Where it gets quite aggressive is when it is someone’s livelihood – professional photographers and big picture archives.”
How long does a copyright last?
“These are long-lasting standards,” David said.
“For things like text and photography, it lasts for the creator’s lifetime plus another 70 years.
“Text and photography are coming into the public domain this year from creators who died in 1954.
“So, the vast majority of content we see online is not free to use because the creator is still alive or they did not die that long ago.”
Do you need to use the copyright symbol?
What about the C in the circle copyright symbol?
Do you have to use it to protect your work?
David said: “The thing with the symbol is that people use it as a warning.
“You sometimes see it with national newspapers when they get a massive exclusive interview. They stick a copyright symbol on the end of it and put something like ‘Our lawyers are watching’.
“They don’t need to put that symbol on. It is automatically copyrighted. But it is a deterrent.”
Can you share clips of your spokespeople on social media?
Another question comms and PR professionals are likely to ask.
We all want to showcase those high-profile interviews we secure if they have gone well.
“The footage remains the property of the broadcaster,” David said.
“But if you are using a clip, it would probably fall within fair use or fair dealing, as long as you attribute it – ‘Images courtesy of…’.
Fair dealing or fair use – two interchangeable terms – cover things like clips of film, audio and text. Use has to be ‘reasonable’.
David said: “What is reasonable is like the question, 'How long is a piece of string?'. What the courts expect you to do is only take enough so that you do not destroy the value of the original.”
The Dress
Do you remember ‘The Dress’? It was a 2015 online phenomenon that centred on a photograph of a dress, and whether it was blue and black or white and gold.
Well, it contains a media law lesson.
David said: “This stemmed from Australia, where a woman was shopping for a dress for a wedding.
“She sent a photo to a friend to get her opinion. And that friend noticed it appeared to be different colours when she looked on different screens.
“So, she posted it on social media, and everyone had an opinion about the colour of the dress.
“It went around the world, and mainstream media caught up with it.
“Some years later, the woman who took the photograph got signed up by a picture agency. And they are working their way around the world, sending invoices to newspapers and magazines that used the photo.
“And she’s made a fortune. Agencies are doing this quite a lot now. They look out for newsy photographs taken by ordinary people, and tell them if they take it down, they will make them money for it.”
AI-generated images
Yep, it is time to think about AI again.
Are there any legal pitfalls when using AI-generated images and supplying them to the media?
David said: “Be open about the fact it has been produced by AI. A lot of the time, we can tell, but it is not always obvious.
“And in their ethical codes, it says journalist should tell their audience when an image has been generated by AI.”
Does the AI system you used to create the image own the copyright?
“This varies,” David said.
“A few of the systems say that they don’t retain rights in the things produced with their programmes. But they don’t necessarily give you the copyright either. So, that is a confusing situation.
“AI can’t own the copyright because a copyright can only be owned by a human or a company.
“Look at the terms to make sure you are ok to use anything you create.
“Another area to consider with AI is that people say it is learning from copyrighted material. So, there is a risk that copyrighted material turns up in AI output.
“One of the things you can do if you are worried is a reverse search. This is where you put the output into a search to see if it turns up any results.
“In terms of text, copyright only protects exact words. So, if it is rewritten by AI and you edit its output, that reduces the chances of a copyright action.”
How should you deal with takedown requests?
The phone rings in the comms office, and someone wants you to take down some of your content.
It’s a horrible situation. What do you do?
“This depends on the nature of the request,” David said.
“If it is a libel takedown request, you need to have a close look at that
“Sometimes, it might be privacy.
“Other times, it might be for what people think is a breach of terms and conditions, such as where public debate and messages are going on.
“If there is a legal threat behind it, that must always be taken seriously.
“You need to have a clear policy that shows who people should contact in these circumstances and ensures that person owns these requests. That will ensure content is removed if it needs to be taken down.
“You don’t want the content just sitting there continuing to harm.
“If you do take something down, document it as that may be useful if a complaint continues. The fact you acted promptly with a complaint will act in your favour.”
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