AIBD FES Media Law-1 Printed Version October 2010

MEDIA LAW
H A N D B O O K
Dr Venkat Iyer
Media Law
H a n d b o o k
Dr Venkat Iyer
Copyright - 2010 by Asia-Pacific Institute for Broadcasting Development
All rights reserved. No part of this publication may be reproduced, stored or
introduced into a retrieval system or transmitted in any form or by any means
(electronic or otherwise) without prior permission from the copyright owner of
this publication.
Published in 2010 by
The Asia-Pacific Institute for Broadcasting Development (AIBD)
2nd Floor, Old IPPTAR Building, Angkasapuri
50614, Kuala Lumpur, Malaysia
Disclaimer
The author is responsible for the choice and presentation of the facts contained in
this handbook, and for the opinions expressed therein, which may not necessarily
reflect those of Asia-Pacific Institute for Broadcasting Development (AIBD) or
Friedrich Ebert Stiftung (FES) .
ISBN No. 978-983-43747-7-8
Layout design and printing by Drei Angle Zentrum

Foreword
In recent years, with the technological advances in new media and

mushrooming of social networks and e-commerce, issues related to
media law have become more relevant and prevailing. For example, the
invasion of privacy through new media technologies has become a hotly
contested issue in today’s society. Besides that, copyright laws have
failed to keep pace with the technological development of the Internet.
As a result, the dilemma on how to safeguard intellectual property has
become even more complex and confusing, with many new challenges
affecting copyright law.
But there is another dimension when we talk about media law. While
more and more newspapers, magazines, broadcasting stations and online
news websites exist than ever before, in many countries legal barriers
continue to limit their free and independent operation. However, an
independent media is necessary for the functioning of a democratic
society. It does not only facilitate communication, but also performs
the function of an effective watchdog – it is the so called “fourth
pillar” of every democratic society. Democratic societies depend on the
ability of their citizens to make informed decisions, which requires the
dissemination of accurate informa-tion through an independent media.
However, when journalists are unable to exercise their rights or the
regulatory environment in which they operate discourages independence
and plurality, the media cannot perform these functions.
A country’s legal system, both its laws and their enforcement, is a

significant factor in determining the level of freedom enjoyed by the
media. A strong, independent judiciary that respects the rule of law
and seeks to protect media rights is essential for a legal enabling
environment for journalists. And although laws guarantee¬ing freedom
of expres¬sion are the necessary first step, a free media environ¬ment
i
requires much more than that. Journalists have a profes¬sional duty
to inform the public. Therefore, they must be granted the right to
access information, as well as legal means to protect their sources of
information.
However, laws alone rarely ever determine how pluralistic and

independent the media can be. To create an enabling media environment,
citizens must value the role that the media plays. Therefore, media
literacy is essential. Citizens need to understand the role that an
independent and professional media plays in a democratic society. And
they need to be aware of the importance of a conducive legal framework
for the development of media and civil society.
For journalists, it is even more important to understand the significance

of media regulation and the content of legal provisions, especially
in a global media environment which has become more and more
competitive and where journalistic techniques have become more and
more sophisticated. Likewise, journalists need to have that knowledge
in order to carry out their work in a professional manner and to promote
the development of the media in their respective countries. We hope that
this publication can contribute to achieve this objective. By providing
an overview of media laws in the Asia-Pacific region it can serve as
a guidebook for any media practitioner. The Friedrich-Ebert-Stiftung
would like to thank the author of this handbook, Dr. Venkat Iyer, as well
as the Asia-Pacific Institute for Broadcasting Development (AIBD) for
their efforts in making this publication possible.
- Henning Effner - Sabine Franze

Director, FES Media Asia Program Officer, FES Media Asia
Friedrich-Ebert-Stiftung Friedrich-Ebert-Stiftung
ii
Preface
It is with much pleasure that I present this Handbook on Media Law
being published by AIBD for the benefit of broadcasters and other
media practitioners. The book addresses a strongly felt need for
information on this important subject from a number of quarters. AIBD
has hosted several seminars and workshops on media law around Asia
and the Pacific in recent years, and the feedback that the organisation
has received at these events has consistently indicated a desire on the
part of the media fraternity for a publication that could offer pointed
guidance, in simple language, on the various rules, regulations and
legal principles that affect their work.
I am particularly pleased that Dr Venkat Iyer, who has conducted many

of the AIBD media law workshops, agreed to author this handbook.
He has put together the publication in accessible language, and has
illustrated the points being discussed with appropriate examples from a
number of countries around the world. It is to be hoped that current and
future media persons will profit from the work.
I would be amiss if I did not mention the support that the project has
received from the Friedrich Ebert Stiftung. We are also grateful to Mr
Henning Effner for agreeing to write a Foreword to the book. Finally,
thanks are due to Manil Cooray, Deputy Director of AIBD, for co-
ordinating the project with the necessary skill and patience.
- Mr Javad Mottaghi
Former Director
Asia-Pacific Institute for Broadcasting Development
iii
Introduction
Media law is one of the most complex and fastest growing areas of the
law. Until fairly recently, it was not universally considered a discrete
subject of study, and it was certainly not included in the syllabi of
journalism or other media-related courses. The reason for this neglect
was largely attitudinal: any legal problem which presented itself
to a working journalist was seen as falling with the province of the
professional lawyer. The bigger media outfits have always had an in-
house legal adviser, and the smaller ones usually referred cases to an
outside lawyer.
But a combination of factors made that arrangement less than satisfactory

over the years. These included: rising litigiousness in society; runaway
growth in statutory and other regulatory activity; increasing complexity
of the law; and an intensification of competitive pressures within
the media which has led to, and in many cases actively encouraged,
journalistic risk-taking on a much wider scale than had been seen in
the past.
Consequently, the awareness of a need for the working journalist – and

other media practitioners – to gain at least a rudimentary knowledge
of the law affecting their trade (if it can be called that) began to grow.
The idea of “media law” as an integral part of journalism courses or
vocational training programmes soon gained currency.
This branch of the law is, in fact, a slightly artificial construct: “media
law” essentially consists of principles, concepts and precedents from
a number of traditionally well-established areas of the law such as
constitutional law, criminal law, and contract law. As one leading expert
in this field recently noted, “For an in-depth study of all aspects of
media law, the practitioner would probably require at least half-a-dozen
weighty textbooks.”
iv
This handbook does not aspire to deal with the subject exhaustively.
On the contrary, it is intended simply as a first port of call for any
media practitioner who wants an overview of the basic rules on such
matters as defamation, contempt of court, copyright, official secrecy,
individual privacy, and hate speech in the Asia-Pacific region. One of
the challenges of compiling a work of even such limited scope as this
is that there is a huge diversity of legal systems, principles and rules
within this region, which makes it impossible to offer definitive and
detailed guidance on the subject. This book should not, therefore, be
treated under any circumstances as a substitute for professional legal
advice.
It is seldom realised that sometimes all that is required for a journalist

to avoid a legal pitfall is to make minor changes to his or her copy. For
example, a change in nuance can often turn a potentially defamatory
sentence to something that is legally innocuous. With this in mind, I
have tried to keep the treatment of the various issues as practical as
possible, although for the benefit of the more curious – or the more
legally minded – I have provided relevant references to case law or
other sources.
I would like to congratulate the Asia Pacific Institute of Broadcasting

Development (AIBD) and its dynamic Director of many years, Dr
Javad Mottaghi, for initiating this project and to thank this organisation
for reposing faith in my ability to undertake the task of bringing it to
fruition. Javad and his colleagues, including Mrs Manil Cooray (who
co-ordinated the project) were always a source of great support and
encouragement.
I hope that the handbook will prove useful to media practitioners

throughout the Asia-Pacific region and possibly further afield.
- Dr Venkat Iyer
Northern Ireland
June 2010
v
Contents
Foreword – Henning Effner, i

Director, FES Media Asia
– Sabine Franze
Program Officer, FES Media Asia
Preface – Mr Javad Mottaghi iii
Introduction – Dr Venkat Iyer iv
1. Freedom of Expression: General Principles 1
2. Defamation 26
3. Contempt of Court 60
4. Media Coverage of Sensitive Matters 86
5. Copyright 107
6. National Security and Public Order 133
7. Obscenity and Indecency 144
8. Privacy 150
9. Official Secrecy and Access to Information 164
10. Election coverage 169
11. Self-Regulation of the Media 174

Contents
12. Appendices
Appendix ‘A’ – Text of Article 19, 180

Universal Declaration of Human Rights
Appendix ‘B’ – Text of Article 19, 181

International Covenant on Civil and Political Rights
Appendix ‘C’ – Text of Article 10, 182

European Convention on Human Rights
Appendix ‘D’ – Text of Article 13, 183

American Convention on Human Rights
Appendix ‘E’ – Text of Article 9, 185

African Convention on Human and Peoples’ Rights
Appendix ‘F’ – Text of the Johannesburg Principles 186

on National Security, Freedom of Expression
and Access to Information
Appendix ‘G’ – Text of the UK Editors’ Code of Practice 198

1
FREEDOM OF EXPRESSION:
GENERAL PRINCIPLES
1.1 How important is freedom of expression and its corollary,

media freedom?
Freedom of expression is seen as being extremely important
for the well being of any society. There is hardly any country
in the world whose constitution does not give pride of place
to this freedom. Indeed, as the Inter-American Court of
Human Rights once said,
Freedom of expression is a cornerstone upon which
the very existence of a democratic society rests. It is
indispensable for the formation of public opinion … It
represents, in short, the means that enable the community,
when exercising its options, to be sufficiently informed.
Consequently, it can be said that a society that is not well
informed is not a society that is truly free.1 FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
The importance of this freedom was underlined by the

Supreme Court of Israel in the following words:
Freedom of expression is closely bound up with the
democratic process. It serves not only as a means and
an instrument but also as an aim in itself. Freedom of
expression is a superior right which, together with the
similar right to freedom of conscience, constitutes the
1. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,

Advisory Opinion OC-5/85 of 13 Nov. 1985, Inter-Am. Ct. Hum. Rts. (ser. A) ¶ 70 (1985).
1
prerequisite to the realization of almost all other freedoms.
The supreme value contained in freedom of expression
remains permanent and unalterable.2
Similar sentiments have been expressed by the Supreme
Court of the United States of America. In one famous
passage, Justice Cardozo of that court stated:
Freedom of thought and speech ... is the matrix, the
indispensable condition of nearly every other form of
freedom.3
1.2 What are the purposes that freedom of expression is

intended to serve?
Although there are many theories on the philosophical bases
and practical uses of free speech, it is generally agreed that
the media serve a number of essential purposes in free and
open societies. The Supreme Court of India has identified
four of these:
(a) to help individuals attain self-fulfilment;
(b) to assist in the discovery of truth;
(c) to strength the capacity of individuals to participate in
FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
the democratic process in society; and

(d) to provide a mechanism which will establish a
reasonable balance between stability and social change
in society.4
2. Kol Ha’am Company Lmt & Al-Ittihad Newspaper v. Minister of the Interior, High Court
73/53.
3. Palko v. Connecticut, 302 US 319 (1937).
4. See, e.g. Indian Express Newspapers (Bombay) v. Union of India, AIR 1986 SC 515, 1985 (2)
SCR 287.
2
1.3 How far can the claims for free speech be carried by
journalists?
Journalists can, and do, make strong claims for a maximalist
view of free speech, which is understandable but slightly
misplaced. There is a widespread consensus that freedom
of expression, like all other freedoms, cannot be absolute. It
has to be balanced against other equally legitimate interests
in society, such as upholding public order, safeguarding
national security, protecting the reputation of others,
preserving the authority of the courts, and so on. For those
reasons, every society imposes certain restrictions on free
speech and makes its exercise conditional on the requisite
degree of responsibility being shown by its practitioners.
1.4 How does the law deal with freedom of expression?

There is considerable variation in this area. For a start,
every sovereign nation has the right to put in place its
own arrangements, which includes laws, law-enforcement
mechanisms and conventions, for the protection and
promotion of free speech. Secondly, attitudes towards free
speech are often governed by the history of a country or by
its religious or cultural ethos. Some countries are, therefore, FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
more liberal than others. Even within countries, there might

be differences in the manner in which freedom of expression
may be given effect to. For example, there may be local
laws, based on particular circumstances, which require free
speech to be regulated to a lesser or greater extent than in
the rest of the country to take into account local sensitivities.
Furthermore, even an otherwise liberal society may tighten
restrictions on free speech for particular periods to deal
with serious emergencies which threaten public tranquillity
or the security of the nation.
3
Generally speaking, constitutional provisions on freedom
of expression lay down broad principles. They underline the
importance of free speech, declare freedom of expression as
a basic right, and prescribe the grounds on which this right
can be restricted. It is then left to more specific laws, usually
passed by the legislature, to describe in greater detail the
circumstances and manner in which, and the extent to which,
the restrictions can be placed. Finally, the actual imposition
of the restrictions is put within the domain of administrative
orders, passed in most cases either by government ministers
or by local officials such as commissioners of police or
magistrates.
1.5 What are the legal best practices in this area?

In many countries, the courts have laid down certain
standards for the protection and promotion of free speech
which are seen as constituting good practice. For example,
the Supreme Court of India has, in a number of landmark
judgments, ruled that, for any restriction that is imposed on
freedom of expression to be constitutional, the following
conditions will have to be met:
1. The restriction must fall within one or more heads of

permissible curbs that can be placed on free speech;
2. The restriction must be reasonable, having regard to all
the circumstances; and
3. The restriction must be authorised by law (and not
imposed by executive fiat).
Likewise, the European Court of Human Rights has held
that any restriction that is imposed has to be necessary in
a democratic society, i.e. capable of being justified on the
4
grounds of a pressing social need, and proportional to the
objective for which it is sought to be imposed.
1.6 What are the international standards in this area?

There are a number of international instruments which deal
with freedom of expression. A comprehensive list of these
is provided in Appendix ‘..’. A starting point for most, if
not all, of these instruments is the Universal Declaration of
Human Rights, which was adopted without dissent by the
United Nations in 1948, and which says that:
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.5
This ringing declaration has been expanded upon by the
International Covenant on Civil and Political Rights,
adopted by the United Nations in 1966, in the following
terms:
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.
3. The exercise of the rights provided for in paragraph
2 of this article carries with it special duties and
5. Art. 19.
5
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.
In addition, various bodies and agencies of the United
Nations have adopted a series of documents, including
declarations, resolutions and communiqués which deal with
particular aspects of the right to freedom of expression. The
legal value of these documents depends on a number of
factors, notably the legal character of the body or agency
which adopted it: some documents are, therefore, legally
binding while others are merely persuasive or exhortatory.
Recent years have also been a significant amount of activity
in the evolution of legal standards on freedom of expression
at the regional level. Organisations such as the Council of
Europe, the Organisation of American States, the African
Union, and the Commonwealth, have formulated norms
and guidelines on free speech, and these have been reflected
in documents emerging from these bodies.

Finally, there have been a number of initiatives at the non-
governmental level which have supplemented standard-
setting of the official bodies. For example, a group of experts
with specialist knowledge of national security matters put
together a set of principles which they urged governments
and the media to follow during times of crises. These
principles, called the Johannesburg Principles on National
Security, Freedom of Expression and Access to Information,
seek to reconcile the tensions that frequently arise between
6
free speech and security of the state.6
1.7 What are the main features of the right to freedom of

expression as recognised by international law?
A careful reading of the international human rights
instruments would reveal that the right to freedom of
expression is a multi-faceted right. For example, Article 19
of the UDHR and Article 19 of the ICCPR, two of the key
documents in this category lay down that this right:
- is available to everyone, regardless of their race,
religion, gender, colour, national status, educational
attainments, nationality, political opinion, social origin,
etc.
- includes the right to seek, receive and impart ideas
(through, for example, reading newspapers, listening to
the radio, watching television, accessing the internet,
etc.);
- covers all kinds of information and ideas, including
those which may be shock, offend or disturb others, and
available in any form;
- transcends national and other borders, and can be
exercised across frontiers;
- may be exercised through any media (e.g. books,
newspapers, pamphlets, radio, television, drama, works
of art, public meetings, etc.)
- requires state authorities not only to refrain from
committing acts that interfere with its exercise, but to
take measures which actively promote free speech.
6. The Johannesburg Principles are available online at www.article19.org/pdfs/standards/
joburgprinciples.pdf. They are reproduced in full text at Appendix ‘F’ to this volume.
7
1.8 Is prior restraint (i.e. censorship) of the media legal?
This is a question which calls for a nuanced answer. Generally
speaking, prior restraint, i.e. a requirement that the media
submit material intended for publication to a designated
censor who may veto publication or order modifications
to the material, is deemed undesirable. At least in so far
as the press is concerned, prior restraint is very rarely
carried out in practice: the only occasion when newspapers
are subjected to prior restraint is during emergencies such
as war, and even then on a limited scale. However, prior
restraint is not unusual in the case of motion pictures. Most
countries operate a system of certification which requires
those intending to release any movie for public exhibition
to screen the movie before a designated authority who may
either: approve the film, with or without cuts, for public
release; or rule that it is unfit for public exhibition. The
exception made for motion pictures is based on the widely
accepted view that movies have an impact on the viewing
public that is much stronger and much more immediate than
printed material. The legal validity of censorship in relation
to movies has been upheld in a number of court decisions
around the world.7
Prior restraint in relation to printed matter and regular radio

and television broadcasts has, by contrast, been viewed
with much less favour, although it is not clear if any court
has categorically ruled such restraint to be unconstitutional
or otherwise prohibited. The US Supreme Court has
declared that “Any system of prior restraints of expression
comes to this Court bearing a heavy presumption against
its constitutional validity”8 – a formulation which has
7. See, e.g. K.A. Abbas v. Union of India 1970 (2) SCC 780. See also, Wingrove v. United
Kingdom, 25 November 1996, Application No. 17419/90 (ECtHR).
8. See, e.g. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
8
been echoed by the UN Special Rapporteur on Freedom of
Expression.9
The only international instrument that forbids prior restraint
(except where such restraint is aimed at protecting children)
is the American Convention on Human Rights.10
1.9 What role do the courts have to play in the area of free
speech?
The courts in most countries play a vital role in defining the
parameters of free speech and thus protecting and promoting
freedom of expression, including the media’s freedom to
discharge its functions effectively. Since the law needs to
be interpreted, and since the courts are the ultimate arbiters
of how particular pieces of legislation should be construed
and applied, almost every country has, over time, built up a
substantial body of case law, also called ‘jurisprudence’, on
free speech and its limits. This case law serves as a guide for
future cases, and is also often relied upon by courts in other
countries. For example, courts in Commonwealth countries
(most of which are former British colonies and therefore
share a common legal heritage with Britain) look to court
decisions in both the United Kingdom – e.g. the Privy
Council and the House of Lords – and other member-states
of the Commonwealth when deciding cases in areas where
the law might be similar. There is also a growing tradition of
courts in many parts of the world seeking inspiration from
the Supreme Court of the United States which has built up
an impressive body of case law on free speech issues, based
on the very strong protection afforded to this freedom under
9. Report on the mission to the Republic of Korea of the Special Rapporteur on Freedom of
Opinion and Expression, UN Doc. E/CN.4/1996/39/Add.1, p. 8.
10. Art. 13(2).
9
that country’s written Constitution.11
This process of cross-fertilisation of ideas and legal
principles has been aided in recent years by the advent of
information and communications technology: there are now
a number of easily-searchable databases containing very
useful information of an international and comparative kind
aimed at media practitioners and lawyers.
1.10 To what extent may the media rely on international law

in a national court?
Practice on this matter varies between countries, but
generally speaking there are at least three possibilities.
Where the legal system of a country automatically makes
the provisions of any international instrument (e.g. a treaty,
convention or covenant) a part of domestic law when the
government of the country has ratified the instrument, the
media can ask a national court to apply those provisions
straightaway. Secondly, courts can be asked to apply the
provisions of certain international documents such as the
Universal Declaration of Human Rights in individual cases
on the grounds that they are part of customary international
law binding on all countries. Thirdly – and less strongly –

the media can urge the courts to apply principles derived
from comparative jurisprudence in other countries when
interpreting national laws that leave room for judicial
discretion.
It is worth noting that not all countries allow for the provisions
of international treaties to become part of their domestic
law automatically. Where this is the case, international law
11. The First Amendment to the U.S. Constitution explicitly guarantees the freedom of the press
and couches this freedom in near-absolute terms.
10
will only become binding if the national parliament or other
law-making body incorporates the provisions of the treaties
in domestic law. Even where a national parliament has failed
to carry out the incorporation, the media can plausibly argue
that the authorities should not act contrary to the letter and
spirit of a treaty provision.
There are numerous examples of national courts showing
themselves to be receptive to international law, regardless of
whether such law has been incorporated within the national
legal system. Sample the following observations of the New
Zealand Court of Appeal in a case decided in 1987:
Even though treaty obligations not implemented by
legislation are not part of our domestic law, the courts,
in interpreting legislation, will do their best comfortably
with the subject latter and policy of the legislation to see
that their decisions are consistent with our international
obligations.12
The Supreme Court of Mauritius went even further and
held that the jurisprudence of the European Convention
on Human Rights – a treaty to which that country is not,
and cannot be, a party – would be applied while construing FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
domestic law in appropriate cases, given the similarity

between the fundamental rights guaranteed by the Mauritian
Constitution and the European Convention.13 A similar
approach has been taken by the Supreme Court of India
which noted that the rights guaranteed by that country’s
constitution reflected quite closely the provisions of the
International Covenant on Civil and Political Rights.14
12. Huakina Development Trust v. Waikato Valley Authority and Ors [1987] 2 NZLR 188 at 229.
13. DPP v. Mootoocarpen [1989] LRC (Const) 768 at 771.
14. See, e.g. Jolly George Verghese v. Bank of Cochin, AIR [1980] SC 470.
11
1.11 Can the media avail of international mechanisms
or procedures to advance its right to freedom of
expression?
Yes, though it is by no means guaranteed that it will get
the relief it is seeking, because even if an international
mechanism or procedure accepts a complaint from, say
a journalist, it may not have the power to enforce any
decision that it may hand down. Subject to this important
caveat, there are a number of avenues open for redress under
international law.
For a start, media practitioners can approach one or more
of the working groups or independent experts appointed
by the United Nations under its human rights mandate.
These groups or experts look into country specific or
thematic issues and make periodic reports, which are often
widely publicised. Of particular importance in this context
is the UN Special Rapporteur on Freedom of Opinion
and Expression, an authority created in 1993, who has a
wide-ranging mandate to investigate matters, including
complaints from individuals, concerning free speech and to
raise his concerns directly with governments. The Special
Rapporteur also has the authority to make urgent appeals on
behalf of journalists who may be facing imminent threats to

their human rights.15
Another forum to which the media can take its concerns
is the Human Rights Committee of the United Nations
which requires state-parties to the ICCPR to submit reports
every five years on how they have given effect to the rights
15. In exercise of his powers, for example, the Special Rapporteur in 2005 wrote to the
governments of Kazakhstan, Turkmenistan and Uzbekistan, raising concerns about certain
alleged abuses, including the intimidation of journalists, in those countries – see Report of the
Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression, 29 March 2005, UN Doc. E/CN.4/2005/64/Add.1, paras. 501-504, 946-951,
972-90.
12
contained in that treaty. The Committee, as part of its review
process, accepts information from any source, including
NGOs, on matters falling within its mandate, and used this
information in forming its views, which are subsequently
published. Under a separate procedure which only applies to
those countries whose governments have signed an Optional
Protocol, the Committee may also receive complaints from
individuals about violation of their human rights, and these
complaints – called ‘communications’ in official parlance –
are heard and adjudicated upon.
1.12 Does the right to freedom of expression contain any

implied facets which would be of relevance to the
media?
Yes. The courts have been quite creative – and in some cases
innovative – in deriving certain rights and entitlements
from constitutional or statutory provisions guaranteeing
freedom of expression. They have held, for example, that a
constitutional right to free speech required the government
to open up the state-controlled electronic media, i.e.
radio and television, to political broadcasts by politicians
belonging to different parties, including those in opposition FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
to the ruling party.16 A similar approach was taken by the
Supreme Court of India which ruled, in a landmark 1995
decision, that airwaves and radio frequencies were public
property over which neither the government nor any private
entity could claim a monopoly, which meant that there
should be even-handed and public interest-driven regulation
of broadcasting.17
16. Rambachan v. Trinidad and Tobago Television Co. Ltd and Attorney-General of Trinidad and
Tobago, decision of 17 July 1985 (unreported).
17. Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal AIR
1995 SC 1236; 1995 (2) SCC 161.
13
Another example of pro-free speech intervention by the
courts can be seen in a judgment of the High Court of
Zambia which, in a 1990 case, struck down a government
order under which three state-owned newspapers had been
directed by the country’s President to deny coverage, or
advertising space, to an opposition party in the lead-up
to national elections. This action, said the court, was both
discriminatory and a denial of the right to freedom of
expression:
[I]n the case of newspapers they are supposed to be run
on the basis of journalistic principles and ethics free
from any outside interference. These principles dictate
the coverage of all newsworthy events regardless of the
source of such news. Anything less than this, and it is
very easy for the general public to assess whether or
not a given newspaper is working according to sound
journalistic principles and ethics, is not acceptable from
a publicly owned medium - print or other.18
In another case decided by the Supreme Court of India, the
judges implied a ‘right to reply’, based on considerations of
fairness, in relation to media operating in the public sector. In
this case, a public spirited citizen had published a report into

the activities of an insurance company owned and operated
by the state, but when the company criticised the report in
an article that was published in its house magazine and he
sought space to answer the criticism, he was rebuffed by the
editor of the magazine. The court held that this amount to a
denial of the citizen’s right to freedom of expression.19
18. Arthur Wina & Others v. the Attorney-General (1990) HP/1878 (High Court: Lusaka).
19 Manubhai Shah v. Life Insurance Corp. of India [1992] 3 SCC 637. A similar approach has
been taken by the High Court of Trinidad & Tobago: see, Rambachan v. Trinidad and Tobago
Television Co. Ltd. and Attorney-General of Trinidad and Tobago, decision of 17 July 1985
(unreported).
14
1.13 Are mandatory ‘right to reply’ schemes legal?
Opinion is sharply divided on this controversial issue. The
American Convention on Human Rights is supportive of a
statutory right to reply:
1. Anyone injured by inaccurate or offensive statements
or ideas disseminated to the public in general by a
legally regulated medium of communication has the
right to reply or to make a correction using the same
communications outlet, under such conditions as the
law may establish.
2. The correction or reply shall not in any case remit other
legal liabilities that may have been incurred.20
On the other hand, the Supreme Court of the United States
has rejected the idea decisively, arguing that:
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 officials - whether
fair or unfair – constitute the exercise of editorial control FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
and judgment.21
The legality of a mandatory right to reply scheme will
therefore depend on the particular approach adopted in a
country’s legal and constitutional system.
Interestingly, the Council of Europe, through its Committee
of Ministers, has tried to strike a middle course on this issue
and adopted a Resolution which recognises the right to reply
20 Art. 14.
21. Miami Herald Publishing Co. v Tornillo, 418 U.S. 241, 258 (1974).
15
but within limits. The right would be negated if:
• the request for publication of the reply is not addressed
to the medium within a reasonably short time;
• the length of the reply exceeds what is necessary to
correct the information containing the facts claimed to
be inaccurate;
• the reply is not limited to a correction of the facts
challenged;
• it constitutes a punishable offence;
• it is considered contrary to the legally protected interests
of a third party;
• if the individual concerned cannot show the existence
of a legitimate interest.22
The same Committee suggested two further exceptions in
relation to Internet-based publications, viz.:
• where the reply is in a language different from that in
which the contested information was made public;
• where the contested information is a part of a truthful
report on public sessions of the public authorities or the

courts.23
1.14 What about provisions that require the media, esp.

broadcasters, to carry official messages, communiqués,
etc?
This is another controversial area of the law. Some countries
22. Resolution (74)26 on The Right of Reply – Position of the Individual in Relation to the Press,
2 July 1974.
23. Recommendation No. Rec(2004)16 on The Right of Reply in the New Media Environment,
adopted 15 December 2004.
16
have provisions under which the media are compelled,
on pain of penalties, to carry certain messages issued by
the government. Generally speaking, such provisions are
seen as an unwarranted interference with the broadcasters’
freedom of expression, given their potential for abuse by
politicians and bureaucrats. However, they may be justified
in situations of national emergency.
1.15 Are laws which require cable television operators to

carry certain terrestrial channels compulsorily as part
of their service legal?
Opinion on this matter is divided. The intention behind
such laws, which are usually referred to as “must-carry”
laws, is usually benign, viz. to offer viewers and listeners a
more balanced fare in terms of the coverage they receive.
However, “must-carry” laws are criticised on the grounds
that they needlessly interfere with the cable operators’
freedom to choose their menu of channels, distort the free
market, and show a patronising attitude towards viewers
and listeners. That said, such laws have been held to be
legal,24 and are seen as necessary to promote public service
broadcasting. FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
1.16 Can the media claim any special rights?

Generally speaking, no. However, as a vital organ of society
whose contribution to the maintenance and promotion
of the rule of law is significant, the media can, and does,
enjoy certain privileges in most countries. For example,
journalists are routinely provided with access to certain
events which are not necessarily open to the public, e.g.
24. See, e.g. the decision of the US Supreme Court which upheld one such law in the case of
Turner Broadcasting v. FCC, 512 U.S. 622 (1994).
17
press conferences by government ministers. They are also
given specially reserved spaces and facilities to cover
the proceedings of the courts, parliament, etc. To avail of
these privileges, the media must meet certain accreditation
requirements, and the imposition of those requirements is
deemed to be a reasonable burden on the media.
Occasionally, courts have protected the media from
oppressive use of ordinary laws while emphasising that the
media are not exempt from the application of such laws. The
Supreme Court of India has held, for example, that, although
the press are required to pay taxes like all other business
enterprises, any tax which showed “a distinct and noticeable
burdensomeness” on the press and which indirectly had
the effect of emasculating freedom of expression would
trigger pointed scrutiny. In one case, which involved the
imposition of a tax on newsprint, the court, on a challenge
from a newspaper, ordered the government to suspend
further collection of the tax until it had conducted a study
on the tax’s impact on the newspaper industry.25
The US Supreme Court went even further and struck down
a law which imposed a special tax on newspapers enjoying
circulations larger than 20,000 copies per week. Such a tax,

said the court, was unconstitutional because it amounted
to “a deliberate and calculated device in the guise of a tax
to limit the circulation of information to which the public
is entitled.”26 Clearly, the impact of the measure would be
more relevant in determining its legality than the intent
behind its enactment.
25. Indian Express Newspapers (Bombay) v. Union of India AIR 1986 SC 515, 1985 (2) SCR
287.
26. Grosjean v. American Press Co. 297 US 233, 250 (1936).
18
1.17 What about anti-monopoly laws in relation to the
media?
Most countries have laws to prevent undesirable
concentration of economic power in the hands of one or a
small number of businesses. Such laws have been justified
on grounds of equity and fairness and are usually recognised
as both necessary and acceptable. Many international legal
instruments underline the need to avoid concentration of
media power, and this has provided an additional basis for
laws restricting market share, foreign ownership, and cross-
ownership within the media sector.
However, where an anti-monopoly law is either
discriminatory or has the effect of impacting particularly
harshly on a media business, it may be subjected to special
scrutiny by the courts on freedom of expression grounds.
Interestingly, a number of international bodies and national
courts have held that state monopoly over broadcasting
may amount to an unacceptable infringement of the right
to freedom of expression. As the African Commission on
Human and Peoples’ Rights noted, “State monopoly over
broadcasting is not compatible with the right to freedom of FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
expression.”27 The European Court of Human Rights has
endorsed this view, holding in one case that:
Of all the means of ensuring that [pluralism is] respected,
a public monopoly is the one which imposes the greatest
restrictions on the freedom of expression, namely the total
impossibility of broadcasting otherwise than through a
national station … It cannot be argued that there are no
27. Declaration of Principles on Freedom of Expression in Africa (Oct 2002), accessible at <www.
achpr.org/english/_doc_target/documentation.html?../declarations/declaration_freedom_
exp_en.html>.
19
equivalent less restrictive solutions; it is sufficient by
way of example to cite the practice of certain countries
which either issue licences subject to specified conditions
of variable content or make provision for forms of
private participation in the activities of the national
corporation.28
Even a state monopoly over the printing and distribution of
newspapers may be suspect.29
1.18 Are accreditation schemes for journalists legal?

Generally speaking, yes. They are normally put in place to
ensure that the media are provided orderly access to places
and events where there may be a shortage of accommodation.
The rules for accreditation need to be fair, and the scheme
needs to be implemented even-handedly. In the view of
the United Nations Human Rights Committee, which had
occasion to deal with the subject in a complaint adjudicated
in 1999:
[The] operation and application [of an accreditation
scheme] must be shown as necessary and proportionate
to the goal in question and not arbitrary … The relevant
criteria for the accreditation scheme should be specific,

fair and reasonable, and their application should be
transparent.30
28. Informationsverein Lentia v. Austria 24 November 1993, Application Nos. 13914/88,

15041/89, 15717/89, 15779/89, 17207/90, para. 39.
29. See, e.g. Concluding observations of the Human Rights Committee: Armenia, 19 November
1998, UN Doc. CCPR/C/79/Add.100, para. 20.
30. Gauthier v. Canada, 7 April 1999, Communication No. 633/1995, UN Doc. CCPR/C/65/
D/633/1995, para. 13.6.
20
1.19 Can a government require those intending to work as
journalists to obtain and hold a licence?
Licensing of journalists is practised in some countries,
though it is the exception rather than the rule. The reason
usually offered for such licensing is to ensure that the
journalistic profession, like other learned professions,
is properly regulated. However, there is considerable
divergence of view as to whether journalism is a profession
which is amenable to state regulation, given that no specific
qualifications are usually required for a person to express
his views, including for publication to a wider audience.
For this reason, the view has frequently been expressed that
licensing requirements for journalists are a violation of the
right to freedom of expression.
Such a view was echoed by the UN Special Rapporteur
on Freedom of Opinion and Expression who, in a joint
Declaration issued with two other international experts
in this area in 2004, asserted that journalists should not
be required to be licensed or to register with any state-
mandated body.31
The matter was also considered by the Inter-American FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
Court of Human Rights in a decision handed down in 1985.
Adjudicating on a Costa Rican directive which obliged
aspiring journalists to become members of a nominated
association, the court ruled that any such requirement would
be violative of the right to freedom of expression.32
31. Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression,
the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on
Freedom of Expression, 18 December 2003, accessible at <www.cidh.org/Relatoria/
docListCat.asp?catID=16&lID=1>.
32. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,
Advisory Opinion OC-5/85 of 13 November 1985, Series A, No. 5.
21
1.20 What about the imposition of minimum qualifications
for those wanting to become journalists?
While educational qualifications may help in improving
standards of journalism, the imposition of minimum
qualifications has been seen as undesirable. In 2000 the
Inter-American Commission on Human Rights, an inter-
governmental body, condemned the idea, arguing that:
Every person has the right to communicate his/her views
by any means and in any form. Compulsory membership
or the requirement of a university degree for the practice
of journalism constitutes unlawful restrictions of freedom
of expression.33
1.21 Can the media be subject to business regulation?

Yes, because most media enterprises are run as businesses,
and businesses are invariably subject to regulation by the
state. This would involve, among other things, registering
the business with a designated authority, specifying the
location of its office, giving details about its owners, and
so on. There may also be a requirement to periodically
file returns on the commercial aspects of the business. As
long as these requirements are enforced fairly and even-

handedly, they are seen to be acceptable.
Where, however, a government seeks to single out the
media for particularly harsh or onerous treatment – through,
for example, a tough licensing regime – it may amount to a
violation of international standards on freedom of expression.
Several such cases have arisen in recent years, and some
33. Inter-American Declaration of Principles on Freedom of Expression, approved by the Inter-

American Commission on Human Rights during its 108th regular session, 19 October
2000.
22
of them have led to censure from international bodies. In
1999, for example, the UN Human Rights Committee held
that a law which conferred unfettered discretionary power
on the government of Lesotho to grant or refuse registration
to newspapers in that country was a violation of Article 19
of the ICCPR.34
1.22 Are advertisements protected by freedom of expression

laws?
Yes, although in some countries they may enjoy a slightly
lower degree of protection than ‘political’ speech.35
Interestingly, the UN Human Rights Committee has
dismissed the idea of a variable approach in this area when
it decided a case arising from Canada in which a Quebec
law required all advertisers in the state to use both English
and French. The law was intended to protect the French-
speaking minority, and the government argued that it could
be justified on the basis of commercial advertising enjoying
a lower level of protection than the expression of political
ideas. The Human Rights Committee saw no reason to make
such a distinction, and held that there were other ways in
which the interests of the French-speaking minority could FREEDOM OF EXPRESSION: GENERAL PRINCIPLES
be protected without infringing on the advertisers’ freedom
of expression.36
Commercial speech has also been protected in Asian
countries. For example, the Supreme Court of India ruled in
a 1995 judgment that an attempt by a state-owned telephone
34. Concluding observations of the Human Rights Committee: Lesotho, 8 April 1999, UN Doc.
No. CCPR/C/79/Add.106, para 23.
35. Demuth v. Switzerland, 5 November 2002, Application No. 38743/97.
36. Ballantyne and Davidson v. Canada, Communication No. 359/1989, UN Doc. CCPR/C/47/
D/359/1989, 5 May 1993, Annex, para. 11.3.
23
company to ban the publication by a private sector company
of a ‘Yellow Pages’ directory infringed the latter’s right to
freedom of expression which had been guaranteed by the
Constitution of India.37
1.23 What happens when the government uses advertising as

an instrument of control of the media?
This is a sensitive area which has given rise to considerable
friction over the years. Governments, as a rule, have
large powers of patronage at their disposal in the form
of advertisements, and some have attempted to use this
power to control the media by either denying advertising
to newspapers and television companies that are seen to be
hostile or offering contracts to media outlets that are willing
to project the government in a favourable light.
This practice has drawn sharp criticism from international
legal bodies and some national courts. The UN Human
Rights Committee has, for instance, declared that:
[T]he refusal of advertisement by the State and parastatal
companies to newspapers which adopt a negative attitude
against the Government … [is] inconsistent with a respect
for freedom of the press.38

Similar sentiments have been expressed by some of the
regional mechanisms for the protection of human rights.39
At national level, the following observations of the High
Court of Andhra Pradesh in India are pertinent. While
37. Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. AIR 1995 SC 2438.
38. Concluding observations of the Human Rights Committee: Lesotho, 8 April 1999, UN Doc.
No. CCPR/C/79/Add.106, para 23.
39. e.g. African Commission on Human and Peoples’ Rights, Declaration of Principles on
Freedom of Expression in Africa (October 2002).
24
accepting that no government could be compelled to offer
advertisements to particular media outlets, the court held
that, where advertisements were offered, there was a duty
to act fairly:
It is not expected of the Government to exercise this power
in order to favour one set of newspapers or to show its
displeasure against another section of the press. It should
not use the power over such large funds in its hands to
muzzle the press or as a weapon to punish newspapers
which criticize its policies and actions.40
1.24 Do governments have any special responsibilities in

relation to the media?
Yes. The right to freedom of expression guaranteed in
international human rights instruments includes, in the
opinion of many commentators, a duty on the part of
governments to take such reasonable measures as are
feasible and proportionate to protect journalists from threats,
intimidatory actions, and violent attacks on their person and
property. No less importantly, there is also an obligation on
governments to carry out prompt, thorough and impartial
investigations into any attacks that the media may have
been subjected to, despite the adoption of precautionary
measures. Several inter-governmental bodies, such as the
European Court of Human Rights and the Inter-American
Commission on Human Rights, have laid down guidelines
in this regard.41
40. Ushodaya Publications Pvt. Ltd. v. State of Andhra Pradesh, AIR 1981 AP 109 at 117.
41 See, e.g. Miranda v. Mexico, Case 11.739, Report Nº 5/99, OEA/Ser.L/V/II.95 Doc. 7 rev., p.
755 (1998).
25
2
DEFAMATION
I. General
2.1 What is defamation?

Defamation essentially involves an attack on a person’s
reputation. In simple terms, any allegation made about
someone which shows him or her is a poor light in the
eyes of other reasonable people is defamatory. Different
descriptions have been given of what constitutes defamation
– these include:
- any statement which causes a person to be shunned or
avoided;1
- any statement which exposes a person to ridicule, hatred
or contempt;2
- any statement which prejudices a person’s chances of
receiving “respectable consideration from the world;”3
- any false statement about a person to his discredit.4
2.2 How does the law of defamation affect media

practitioners?
Defamation is one of the major risks that those working
1. Youssoupoff v. MGM Pictures Ltd. (1934) 50 TLR 581.
DEFAMATION
2. Parmiter v Coupland (1840) 6 M & W 105.

3. Youssoupoff v. MGM Pictures Ltd, supra note 1.
4. Scott v. Sampson (1882) 8 QBD 491.
26
in the media face. A journalist may fall foul of the law of
defamation if he publishes anything that has the effect of
harming another person’s reputation without sufficient
cause.
Defamation may result in a journalist having to pay
monetary compensation (called “damages”) to the person
or persons affected. In some countries, it may also lead to
the journalist being subjected to criminal sanctions, e.g.
imprisonment and/or a monetary fine.
2.3 Are all statements which cause annoyance or injury to a

person’s feelings defamatory?
No. For example, if it is said – falsely – about a person
that he is dead, the law would not treat such a statement as
defamatory.5
2.4 How does the law deal with defamation?

The law on defamation tries to strike a balance between two
competing interests: on the one hand, the right to personal
reputation; and, on the other hand, the right to freedom of
expression.
In most countries, freedom of expression is usually subject
to a number of restrictions, and defamation law is one of
them. The importance attached to personal reputation can
be seen from the following statement made by a court many
years ago:
Speaking generally the law recognises in every man a right
to have the estimation in which he stands in the opinion of
others unaffected by false statements to his discredit; and if
DEFAMATION
5. e.g. Samuels v. Evening Mail (1875) 6 Hun. (N.Y.) R.5. Such statements may, however, allow
the person affected to sue for ‘malicious falsehood’ (also known as ‘injurious falsehood’ in
some countries), which is discussed below.
27
such false statements are made without lawful excuse, and
damage results to the person of whom they are made, he has
a right of action.6
2.5 What are ‘libel’ and ‘slander’?

They are both terms used to describe defamation. Any
defamatory statement that is in permanent form (e.g. in
writing) is said to constitute ‘libel’ whereas a similar
statement that is in impermanent or transcient form (e.g.
made orally) is seen as resulting in ‘slander’.
It is worth noting that even non-traditional forms of
expression, e.g. pictures, scribblings on a wall, sculptures,
cartoons, or effigies, can be libellous.
From the point of view of broadcasters, it is important to
recognise that any defamatory matter transmitted over the
air waves may constitute slander. It may also amount to
libel where, for example, it is read from a script.
2.6 What are the differences between libel and slander?

The most important difference is that, in libel, the law
presumes that the defamatory statement caused damage to
the plaintiff whereas in slander, the plaintiff must prove that
he suffered damage.7
Damage in this context means loss of money or some
other tangible detriment, e.g. loss of employment, loss of
marriage.
6. Scott v. Sampson (1882) 8 QBD 491, 503.
7. There are, however, circumstances where damage is presumed even in cases of slander, e.g.
DEFAMATION
where the allegation involves: the commission of an offence punishable with imprisonment;
the possession of a contagious disease likely to cause others to shun the plaintiff; acts
likely to damage the plaintiff’s business, profession, trade, calling or occupation; and the
involvement of a woman in adultery or acts of unchastity.
28
2.7 What are the legal risks posed to media practitioners by
defamation?
The most common risk is a suit for defamation. This
means that the person who claims to be defamed (the
‘plaintiff’) will file a civil suit for compensation against
the person or persons responsible for the defamation (the
‘defendant/s’). The compensation awarded as a result is
called “damages”.8
There is also a possibility of media practitioners being
prosecuted for defamation. Here, the person who claims to
be defamed (the ‘complainant’) will complain to the police
who will, in turn, file a criminal charge of defamation against
those responsible (the ‘accused’) for the alleged defamation.
If the court holds that the charge has been proven, it may
order the accused person/s to either pay a fine or suffer
imprisonment or face another form of punishment.
Usually, the two types of proceedings mentioned above
(civil suit and criminal prosecution) are separate and distinct
from each other and are brought in different courts. It is
worth noting that criminal prosecutions for defamation are
being discouraged in many countries on the grounds that
they are unduly harsh on media practitioners. The offence
of criminal defamation has been formally abolished in the
United Kingdom.
II. Extent of liability
2.8 Who all can be potentially liable for defamation?

Under the law of defamation, everyone who has played
DEFAMATION
a part in the dissemination of a defamatory statement is

8. The term ‘damages’ should not be confused with the term ‘damage’. In law, ‘damage’ (i.e.
harm, loss or injury) leads to ‘damages’ (i.e. compensation).
29
potentially liable. This means that, apart from the maker
of the statement, those involved in editing, printing,
publishing and distributing it can be sued. Since the advent
of electronic publishing and the growth of newer platforms
such as web sites, bulletin boards, and web logs (‘blogs’),
much controversy – and uncertainty – surrounds the liability
of intermediaries such as Internet Service Providers. In
many cases, such intermediaries have also been held liable
as ‘publishers’ of defamatory matter.
Most countries do, however, make exceptions for ‘innocent’
disseminators such as newsagents. This is discussed at
greater length below.
2.9 On whom does ‘primary’ responsibility for defamation

lie?
Primary responsibility usually lies with the author, editor
and publisher of any defamatory statement. Generally
speaking,
- ‘author’ means the person who is responsible for
creating/originating the statement;
- ‘editor’ means the person having editorial responsibility
for the content of the statement and/or for the decision
to publish it;
- ‘publisher’ means the person who is engaged in the
business of issuing material to the public or to a section
of the public. Broadcasting organisations are covered
by this definition as are online publishers.
2.10 On whom does ‘secondary’ responsibility for defamation

DEFAMATION
lie?
Secondary responsibility usually lies with anyone other than
30
the author, editor or publisher of a defamatory statement. It
would therefore cover those involved in printing, producing,
processing, distributing or selling such statements. In
the case of electronic publications, this would include
those involved in recording, or operating or providing the
necessary equipment, system or service by means of which
the publication is made available in electronic form.
2.11 What should a person suing for defamation show?

In most common countries which follow English law, there
are only three things that anyone suing for defamation needs
to prove, namely:
(1) that the statement in question refers, or can reasonably
be understood to refer, to him (the plaintiff);
(2) that it is defamatory of him; and
(3) that it was published to one or more third parties (i.e.
persons other than the plaintiff or the defendant) by the
defendant or under his authority.
Crucially, it is not necessary for the plaintiff to prove that
the statement being complained of is false. It is for the
defendant to prove that the statement is true.9
2.12 What is ‘defamatory’ according to the law?

There is no single definition of the term ‘defamatory’ for the
purposes of the law. However, decided cases have shown
that a statement is defamatory if:
DEFAMATION
9. This is usually referred to as a ‘reversal of the burden of proof’, because the general rule in
civil litigation is that the person bringing the case bears a larger burden of proof than the
person/s being sued. It is worth noting that there are certain countries (e.g. ……) where this
reversal of the burden of proof does not apply.
31
• it lowers, or tends to lower, a person in the eyes of
society;10
• it tends to hold up a person to ridicule, hatred or
contempt;11 or
• it results in the person being shunned or avoided by
other people.12
It is important to note that the standard by which the effect
of an alleged defamatory statement will be judged is an
objective standard, and not the subjective view of individual
judges. Courts usually assess the impact of the statement
on a reasonable person or ‘right-thinking members of
society’.13
2.13 How do courts judge whether a statement is

defamatory?
For a start, the courts look at the ‘ordinary and natural
meaning’ of the statement. This has two aspects: (a) the
literal meaning of the words; and (b) any inferential meaning
that can reasonably be drawn from the words. For example,
if it is said – falsely – that ‘X committed the fraud’, it would
be clearly defamatory of X. But if it is said instead that X
was working in the place where the fraud was committed at
the time it happened, that many of the documents involved
had been altered by him, and that he had a motive for
committing the fraud, it may not necessarily mean that he
committed the fraud, although X could still argue that such
an implication was inherent in the statement.
10. e.g. Mawe v Piggott (1869) IR 4 CL 54, 59.
DEFAMATION
11. e.g. Parmiter v Coupland (1840) 6 M & W 105.

12. e.g. Youssoupoff v MGM, supra note 1.
13. e.g. Sim v Stetch [1936] 2 All ER 1237, 1240. A reasonable person is seen to be someone
who is neither cynical nor naïve.
32
2.14 What is ‘innuendo’?
Innuendo is an important aspect of the law of defamation.
Briefly stated, it refers to a situation where a statement
which is innocuous on the surface may still contain a hidden
defamatory meaning to people who are aware of certain
special facts. For example, to say – falsely – of someone
that he owns shares in a company which profits from selling
tobacco products is not defamatory; but the same statement
would be defamatory if said in relation to someone who is
an active anti-smoking campaigner, because it would imply
that he was a hypocrite.
A classic – but old – case of innuendo involved an
advertisement for a chocolate in which a prominent amateur
golfer was shown with a bar of the chocolate protruding
from his pocket. Although there would have been nothing
defamatory about such an advertisement if it had featured
a professional golfer, it was held to be defamatory of
the plaintiff because it implied (as an innuendo) that, by
endorsing the product for a reward, he had compromised
his amateur status.14
2.15 Is the intention of the alleged defamer relevant in the

eyes of the law?
Generally speaking, no. Therefore, even unintentional
defamation may result in a successful legal action.
Contrariwise, a person who intentionally set out to damage
the reputation of another person but did not do anything that
met the strict definition of ‘defamation’ will go scot free.
Intention does, however, become relevant in two
DEFAMATION
circumstances: first, in the assessment of damages –

14. Tolley v Fry and Sons [1931] AC 333.
33
anyone seen to have damaged another person’s reputation
deliberately or with malice is usually asked to pay damages
at a higher level than someone who had no such intention;
and, secondly, where a defendant pleads certain defences
such as qualified privilege (which is discussed below).
2.16 Are cultural or other factors prevailing in a society

relevant in the eyes of the law?
Yes. For example, an untrue statement that a woman has
been a victim of rape may be considered defamatory in a
society which places a high value on female chastity but
not in a society which takes a more liberal view of such
matters.
2.17 Does the standards by which defamation is judged by

the courts change with time?
Yes. For example, whereas it may have been considered
defamatory for a person to be (falsely) accused of being
homosexual twenty years ago, it may not be considered
so today in some societies. This is because, with rapidly
changing social and cultural norms, the stigma attached
to homosexuality may have seen a significant diminution
over time. The courts do take this aspect into account when
deciding defamation cases.
2.18 Will the courts make allowance for trivial acts of

defamation?
Yes. In most countries, there is a threshold of seriousness
which must be crossed before a comment or an allegation
DEFAMATION
becomes actionable. This means that minor slights or other

trivial acts of defamation, even if hurtful to the person
affected, will be ignored by the courts. This is done to
34
discourage frivolous claims. For example, in June 2010, the
High Court of England & Wales ruled that where a journalist
had, in the course of a book review, accused the author of
the book to engage in the practice of ‘copy approval’ (i.e.
allowing those being interviewed to alter a draft text of
the interview before publication), the accusation was not
serious enough to merit judicial intervention.
2.19 Can comedy or satire escape the rigours of defamation

law?
Generally speaking, yes, though judges do, occasionally,
take a harsher view. For example, in one case a newspaper
published a ‘full account’ of a person’s wedding in humorous
vein even before the wedding had actually taken place.
When the person in question complained, the court struck
out the claim as frivolous.15
2.20 What about irony?

Irony can also attract liability in defamation law. For
example, if a journalist referred to someone as “that great
champion of human rights” in a context where it clear that
he has a very poor opinion of the person’s record on human
rights (by alleging, falsely, for example, that he had shown
contempt for the human rights of others), the journalist
would run a risk of being held liable for defamation.
2.21 Can facts that come to light after the publication of a

defamatory statement be used by a plaintiff to strengthen
his case?
Generally speaking, the law would not allow those
DEFAMATION
facts which the plaintiff knew at the time that an alleged

15. Emerson v Grimsby (1926) 42 TLR 238.
35
defamatory statement was published to be used at the trial.
This is to prevent injustice to the defendant. But there are
exceptions, as illustrated in the following example. A rich
man, who had made substantial donations to the Liberal
Party in England, sued a newspaper which had reported that
the names of many prominent people, including a “wealthy
benefactor of the Liberal Party”, had been given to the
police in connection with an alleged murder plot. After the
suit had been filed, a second article named the plaintiff in
connection with the murder investigations. The plaintiff
argued that the two articles together implied that he was
guilty, or at least reasonably suspected, of involvement in the
murder plot. The court agreed, and awarded him damages
of £50,000. When the newspaper argued in appeal that the
second article should not have been allowed to be used in
the trial, the court said that, since the defamatory nature of
the first article had been proved, all that the second article
did was aid in the identification of the plaintiff, which made
it admissible in law.
2.22 What happens when a person who believes he is libelled

is not expressly named in the allegedly defamatory
statement?
It is not uncommon for the media to write derogatory things
about people without naming them, in the hope that they can
escape liability for defamation. This is ill-judged, because
the law does allow for such people to sue successfully. Where
it is reasonably clear that a statement refers to a particular
person, even if he is not named, the affected person can
bring a case and show to the satisfaction the court – usually
DEFAMATION
through external evidence – that most reasonable people

would recognise him as the subject of the attack.
36
2.23 Is it possible for a person to be defamed accidentally?
Yes. A good example is the case of Newstead v. London
Express Newspapers,16 in which a newspaper covering
a criminal trial for bigamy stated that the defendant was
“Harold Newstead, a 30-year-old Camberwell man”.
Although that description was correct in relation to a
bartender, there was, unknown to the newspaper, another
30-year-old man in Camberwell, a hairdresser, who
successfully sued for defamation.
Media practitioners can prevent being made liable for
accidental defamation by being extremely careful about how
they describe people they are writing about. In the above
example, for instance, if the newspaper had either added
the professional background of the defendant, or given his
address, it could have escaped liability. Another precaution
would be – in the print media – to publish a photograph of
the person being discussed.
2.24 Is it possible for someone not named or referred to in a

story to be defamed accidentally?
Yes. For example, if a radio broadcast says – falsely – about
X that he is a habitual drunkard and that “unfortunately, it is
a hereditary problem”, X’s parents can sue for defamation
because those who know them might think the worse of
them.
Another example in this category is the well-known case
of Cassidy v. Daily Mirror Newspapers Ltd.,17 in which a
newspaper published a photograph of a Mr C and a Miss X
with a caption that read: “Mr C, the racehorse owner, and
DEFAMATION
16. [1940] 1 KB 371.

17. [1929] 2 KB 331.
37
Miss X, whose engagement has been announced.” In fact,
Mr C was already married to the plaintiff who had not been
mentioned anywhere in the report. She sued on the grounds
that the report implied that she was an immoral woman who
had cohabited with Mr C without being married to him.
2.25 Can a case be brought where group of people are

defamed?
Generally speaking, not under civil law, and not as long as
the group is a large one. For example, if it was alleged –
falsely – that “all lawyers are liars”, no individual lawyer
will be allowed to sue on the grounds that his reputation was
damaged by the allegation. This is because, on grounds of
public policy, the law discourages such suits. The intensity
of the suspicion cast upon the plaintiff needs to be very high
for any suit to succeed.
There are, however, exceptions to this rule. If, for example,
it is alleged – falsely – that all inspectors attached to a certain
police station are corrupt, and there are only five inspectors
in that police station, each of them can sue because there
is sufficient identification of them. Also, in countries
where the criminal law makes defamation an offence, it is
usually possible for group defamation to lead to successful
prosecutions. This is because the criminal law takes into
account the risks to public order through defamation of
large numbers of people.
2.26 Why is publication to a third party so important in the

law of defamation?
DEFAMATION
Because the law is intended to protect a person’s reputation

in the eyes of others, not in his own eyes.
38
This issue is usually academic to media practitioners, given
that publication to a wide audience is the central purpose
of the media, and so it would be hard to deny publication.
However, on rare occasions, journalists may find the rule
about publication useful. If, for example, a reporter were
to send a draft of an article he has written about someone
to that person prior to publication, and that draft contains a
defamatory allegation, the subject of the report cannot sue
the reporter on that basis.
2.27 To what extent is the distributor of a libel liable in law?

Much depends on the extent to which the distributor
knew, or could have reasonably known, about the libel.
So where a newspaper contained defamatory matter and it
was distributed by a newsagent, the newsagent can escape
liability if he can show that:
(a) he did not know about the existence of the defamatory
matter;
(b) there was nothing in the newspaper at first sight or in
its surrounding circumstances to show that it contained
defamatory matter; and
(c) that he took reasonable steps to ensure that anything
that he distributed was free of legally objectionable
matter.
Where, however, a distributor is alerted to the presence, or
likely presence, of defamatory matter, he shoulders a higher
degree of responsibility, and would be held liable if he failed
to take the necessary steps, including where appropriate to
DEFAMATION
stop distributing the material.
39
2.28 Can the mere repetition of rumours fall foul of defamation
law?
Yes, a newspaper or TV station cannot argue, when faced
with a defamation suit, that all it did was to repeat a rumour
or an allegation which had already been published by
someone else.
Even where a newspaper expressly distanced itself from
such a rumour or allegation, but published it nonetheless,
albeit with a disclaimer, it will be liable in law.
III. Defences
2.29 What are the defences available to a defamation suit?

There are a number of ways in which a person who is sued
for defamation can defend himself. In the first place, he can
show that:
(a) he did not publish the alleged defamatory statement;
(b) even if he did, the words complained of did not refer, or
could not reasonably be said to refer, to the plaintiff;
(c) the words complained of did not bear a defamatory
meaning.
In addition, the law provides certain substantive defences,
namely:
(1) Truth or justification;
(2) Absolute privilege;
(3) Qualified privilege;
DEFAMATION
(4) Fair comment;
40
(5) Unintentional defamation;
(6) Innocent dissemination;
(7) Consent;
(8) Lapse of time.
These are discussed one by one below.
Furthermore, in the case of slander, it may be possible to
argue that:
(a) the words complained of were mere words of anger or
vulgar abuse; or
(b) no special damage (e.g. loss of job) was caused to the
plaintiff.
Some of the defences mentioned are absolute – which
means that they provide complete protection, regardless
of the motive or intention of the defendant – while others
are qualified – which means that they depend for their
success on the good faith and reasonable behaviour of the
defendant.
It is worth noting that similar defences are also available
in criminal law, though there may be some variations,
depending on national statutes.
2.30 What is ‘justification’?

Quite simply, it means that the words complained of were
true in substance and in fact, and that the defendant can
prove it to the satisfaction of the court.
DEFAMATION
When this defence is used in a criminal prosecution for

libel, the defendant is required to also show that the words
complained of were published for the public benefit.
41
It is worth noting that where truth is pleaded, it is not enough
for the plaintiff to show that he genuinely believed in the
truth of the statement; he should also prove the factual truth
of the statement.
As noted previously, it is not for the plaintiff to prove the
falsity of the statement, but for the defendant to prove its
truth.
It may also be necessary for the defendant to prove the
truth of any secondary meaning that the alleged defamatory
statement may carry. For example, if a newspaper published
an article headlined ‘Fraud Inquiry on Smith Firm’ where
Smith is a famous businessman, there might be an implication
that Smith himself was guilty of fraud, in addition to the
literal inference that a firm with which he is connected is
being investigated for fraud. In such circumstances, it is not
enough for the newspaper, when pleading justification, to
show that there was indeed a fraud inquiry launched into
the firm in question (the ‘natural’ meaning), but also that the
inquiry extended to Smith’s own conduct in relation to the
allegations (the ‘extended’ or ‘secondary’ meaning).
Where the defendant makes a minor mistake as to the detail
of a defamatory allegation, he will normally be excused.
What the court is concerned about is the ‘sting’ of the libel.
For example, if a TV station carried a news item which said
‘Mr X was found guilty of false accounting and sentenced
to a year in jail’ when in fact he had been found guilty of
false accounting and sentenced to 11 months in jail, it is
highly likely that a defence of truth will succeed despite the
error, as long as the TV station can be shown to have acted
DEFAMATION
in good faith.
The law allows defendants to plead partial justification. For
42
example, where a newspaper report accuses someone of
shoplifting and wife-beating, but is only able to prove that
he was convicted of shoplifting, the editor and everyone
else involved in the publication of the report will escape
liability for that part of the defamatory statement. They will,
however, still be liable for the allegation of wife-beating,
the truth of which they are unable to prove.
Where a person publishes an allegation which is a repetition
of what someone else has said, he will be required to prove
the truth of the allegation himself and not simply rely on the
previous report.
2.31 What happens when a defence of justification fails?

Where a person insists on proving the truth of a defamatory
statement and fails to do so, the court may take a harsher
view than if he had not so insisted. In such circumstances, the
court may award exemplary damages against the defendant.
But this is by no means always the case – much will depend
on the recklessness with which a plea of justification is
advanced.
2.32 What is fair comment?

This is a defence under which the defendant pleads that the
words complained of by the plaintiff were a fair comment
on a matter of public interest.
The rationale behind this defence is to encourage free
discussion on matters of public interest. As such, this
defence is widely used by media practitioners.
DEFAMATION
For this defence to succeed, a number of conditions must

be met:
43
(a) the words complained of must be a ‘comment’ (and not
fact);
(b) the comment must be supported by fact;
(c) the subject-matter of the comment must be one of public
interest;
(d) the comment must be ‘fair’.
It is for the defendant to satisfy these conditions.
Importantly, this defence will only succeed if there is no
malice on the part of the defendant. The burden of proving
malice falls on the plaintiff.
A typical example of a defamatory allegation where the
defence of fair comment can be used would be: “Most people
would have serious reservations about letting Mr X operate
on their children” where Mr X is a surgeon. This comment
would be held to be fair if it was founded on the fact that
Mr X had been found guilty of professional negligence, and
that the statement had been made without any malice on the
part of the person making it.
It is not always easy to distinguish comment from fact.
Although the use of expressions such as ‘In my opinion’ or
‘I think’ may be useful, they are not conclusive. Generally
speaking, headlines in newspapers or on radio bulletins will
not be considered as comment.
The fairness of a comment will not depend on its
reasonableness for the defence to succeed. If, therefore,
the words complained of were couched in exaggerated
DEFAMATION
language, or showed prejudice on the part of the defendant,

they may still be accepted as fair, as long as they can be
seen to be an expression of genuinely held opinion.
44
As for public interest, there is no exhaustive definition of
this concept. However, the following are usually seen as
matters of public interest:
• the public conduct of a person who occupies or seeks a
public office or position of trust;
• matters concerning the government or politics (as
widely defined) at all levels;
• matters involving public bodies and agencies of the
state;
• matters involving the church or other religious bodies;
• literature, art, science, culture, learning, etc.;
• public performances; and
• matters concerning institutions in the management
of which the public have, or are presumed to have, a
legitimate interest.
Where, however, the law specifically prohibits certain
types of public comment, e.g. remarks which scandalise
the judiciary (see Chapter 3), the defence of fair comment
would not save such comment.
Malice has two meanings for the purposes of this defence.
In its ordinary sense, malice means spite or ill-will. In law,
malice may mean improper motives. Quite simply, it can be
said that, where the defamatory comment did not represent
the honestly held opinion of its maker, it is vitiated by
malice.
DEFAMATION
2.33 What is absolute privilege?

The law recognises that there are certain occasions when
45
a person must be allowed to speak his mind without fear
of legal consequences, even if what he says is false or
malicious. This is founded on the importance that is attached
to free speech in democratic societies.
The most prominent example of absolute privilege is
speeches made in, or documents prepared under the
authority of, parliament.18 Absolute privilege also covers
reports of proceedings of parliament.
Likewise, all proceedings in courts of law are also protected
by absolute privilege. Generally speaking, therefore,
anything said by a judge, jury, party to a case, advocate
or witness in the course of legal proceedings before a duly
constituted court, however untrue or malicious, cannot give
rise to liability under defamation law.
The media can, and often do, use absolute privilege to
their advantage. For example, when a newspaper does an
investigative story and has more than a strong suspicion,
but not hard proof, of wrongdoing on the part of one or
more parties who are the subject of its investigation, it can
seek the assistance of a friendly Member of Parliament to
name the guilty party in a speech in parliament and then
publish a report of the speech without fear of a defamation
suit.19
2.34 What is qualified privilege?
This is a variant of absolute privilege. It allows protection
from defamation suit for defamatory matter that is published
on certain occasions, provided that the person responsible
18. The term ‘parliament’ also includes state legislative bodies where they exist, e.g. in federal
DEFAMATION
countries.
19. A disadvantage of using this technique is that the newspaper will not be able to claim
exclusivity in the story as the speech in parliament can be reported freely by all media
outlets.
46
for publication is acting in good faith and without an
improper motive.
The rationale for this defence is that the law should provide
sufficient freedom for people to communicate frankly with
each other where they have a duty and an interest in doing
so.
The simplest example of a situation covered by qualified
privilege would be where a person, who is asked for a
reference for a job-seeker, writes a letter which contains
some defamatory remarks about the job-seeker. Here, the
writer has a moral duty to provide a frank assessment of the
candidate to the prospective employer, and the prospective
employer has a corresponding interest in receiving such a
statement.
Traditionally, this defence has been of limited value to the
media. It has been used mostly in relation to media reports
of judicial proceedings: as long as the reports are fair and
accurate, their publication would not attract liability for
defamation.
In recent years, however, the defence of qualified privilege
has been extended in some countries to provide greater
protection to the media. The trend started with the English
case of Reynolds v. Times Newspapers Ltd.,20 in which
the House of Lords held, in substance, that the media
could escape liability for defamation even if it published
defamatory allegations provided it could show that it had
a duty to publish the allegations in the public interest, and
the recipient of the information (i.e. the reading/listening/
viewing public) had a corresponding interest in knowing
DEFAMATION
about the allegations.

20. [1993] 3 All ER 961.
47
This defence, sometimes called ‘extended qualified privilege’,
was strengthened in the subsequent case of Jameel v. Wall
Street Journal Europe,21 with the result that it is now
available to the media in circumstances where the media
can show that it engaged in ‘responsible’ journalism in
the area of public affairs. A number of tests have been laid
down to assess ‘responsibility’, but essentially the courts
would look at the conduct of the journalist and the content,
timing, tone and importance of the article in question.
It needs to be noted that the Reynolds/Jameel defence is only
available in a few countries. It has not yet been accepted in
most Asian jurisdictions.
Malice defeats the defence of qualified privilege.
2.35 What is unintentional defamation?

Unintentional defamation usually occurs where the plaintiff
is defamed without the defendant being aware that he, the
plaintiff, would be identified from the statement.
Generally speaking, a lack of intention on the part of the
defendant will not be allowed to excuse him from liability
for defamation. It may result in reduced compensation being
awarded to the plaintiff.
Some countries have, however, made provisions in their law
for a measure of protection to be given in circumstances
where the defendant has exercised reasonable care prior
to publication. This means, for example, that a journalist
does everything that is reasonably practicable to avoid
innocent third parties being defamed by any news story
or report that is about to be published. It would also
DEFAMATION
help if media practitioners acted quickly in publishing a

21. [2006] UKHL 44
48
suitable correction and apology as soon as any instance of
unintentional defamation was brought to their attention.
2.36 What is innocent dissemination?

This is a defence which is usually used by distributors of
newspapers, books, etc. and it is based on the argument that
they were unaware, and could not reasonably be aware, of
the presence of defamatory matter in any publication being
sold or distributed by them. To avail of this defence, they
have to demonstrate that they took reasonable care, and that
they had no reason to believe that the publication contained
defamatory matter.
The defence would cease to apply as soon as it becomes
clear that those seeking to rely of it were put on notice of
the presence of defamatory matter.
Considerable controversy surrounds the use of this defence
in relation to internet service providers (ISPs). On a strict
application of the rules concerning ‘publication’, an ISP
would be liable, regardless of whether he actually knew about
the presence of defamatory content in any online material
that had been made available to his subscribers. However,
a more pragmatic – and more reasonable – approach which
is being adopted by national authorities around the world is
that an ISP would only be liable if he had ‘effective control’
over the content being disseminated or did not heed any
warnings about the presence of defamatory matter in such
content. There have been a few cases where ISPs have been
required to pay damages to individuals who have been
defamed by third-party postings after they failed to act on
DEFAMATION
notices requiring them to stop disseminating the offensive

postings.22
22. e.g. Godfrey v. Demon Internet Ltd. [2000] 3 WLR 1020.
49
Broadcasters are usually protected from liability over
defamatory comments made by viewers or listeners on
live talk shows, as long as they can show that they had
no ‘effective control’ over such comments. They would,
however, be expected to take reasonable care, including,
for example, introducing a time-delay mechanism in the
broadcasting of live programmes dealing with highly
sensitive issues.
2.37 What is consent?

It is a well-accepted principle of law that anyone who
consents to a lawful act cannot later complain if they
are adversely affected by it. This principle applies to
defamation also so that if, for example, a celebrity grants an
interview to the media in the course of which he consents
to the publication of certain matters which he later believes
is defamatory of him, he will have no cause to complain.
Though cases in this category are rare, they do occur,
and media practitioners should therefore be aware of this
possibility. In practical terms, it is always a good idea for
the media to record interviews or other similar interactions
and to maintain such records for a reasonable length of
time.
2.38 What is lapse of time?

The law requires everyone to act promptly to assert their
rights. This means that, where someone feels that their
rights have been violated, they should approach the courts
without undue delay. Most countries have strict time limits
for filing cases under different heads, and this applies to
defamation also.
DEFAMATION
Generally speaking, the law allows for between one and

three years within which a person who thinks he has been
50
defamed is expected to sue. National laws in this area
differ markedly. If the time limit is exceeded, the courts
will normally summarily reject any attempt to sue. From
the media’s point of view, therefore, this is a good point to
remember when faced with tardy litigants.
IV. Remedies
2.39 What are the remedies that a court can award in a

defamation suit?
The most common remedy – and one which is sought in an
overwhelming majority of cases – is damages. The purpose
of this remedy is to compensate the plaintiff for the harm,
loss or injury suffered by him as a result of the defamation.
The court may also grant an injunction, which will either
prevent the publication of a libel that is imminent or prevent
the wider dissemination of a libel that has already been
published.
Both these remedies are discussed in greater detail below.
2.40 What are the types of damages that can be awarded?

There are different types of damages, notably:
Compensatory damages – these are intended to “fairly and
reasonably compensate the plaintiff for his injured feelings
and for any diminution in his standing among right thinking
people as a result of the words complained of ...” 23 The
court may also sometimes award ‘special’ damages under
this head, e.g. where the defamation has led to the plaintiff
DEFAMATION
losing his job or losing his marriage.
23. Barrett v. Independent Newspapers [1986] ILRM 601.
51
Punitive damages – these are intended to punish the
defendant, and they are awarded when the defendant either
publishes the defamatory words on a calculation that he
would make a profit even if compensatory damages are
awarded against him, or behaves in an unreasonable manner
prior to or during litigation.
Nominal damages – these are awarded where the plaintiff
makes it clear that his only purpose in bringing the suit is to
vindicate his character.
Contemptuous damages – these are intended to show the
court’s disapproval of the plaintiff’s conduct in bringing the
suit while recognising that he has established some damage
to his reputation.
2.41 What are the factors that the court will take into account
in determining the level of damages?
The court will have regard to a number of factors, including:
the nature of the defamation; the extent of its dissemination;
the standing of the plaintiff; and the conduct of the defendant
at different stages of the case (including before the launching
of the legal action).
2.42 What are aggravating factors in the determination of

damages?
Aggravating factors include: lack of full and proper apology
from the defendant; excessive circulation of the defamatory
matter; dismissive attitude to a reasonable offer of settlement
from the plaintiff; unsuccessful attempts at justifying the
defamatory words; and unsuccessful attempts at maligning
DEFAMATION
the reputation of the plaintiff in the course of the litigation.
52
2.43 What are mitigating factors in the determination of
damages?
Mitigating factors include: evidence of plaintiff’s bad
reputation prior to the publication of the defamatory matter;
unreasonable rejection by the plaintiff of defendant’s offer
of correction and apology before the start of the litigation;
unreasonable rejection by the plaintiff of defendant’s offer
of a right of reply; evidence of other unreasonable conduct
on the part of the plaintiff; and limited circulation of the
defamatory matter.
2.44 What is an injunction and how does it work in relation

to defamation suits?
An injunction is an order of a court which requires those
to whom it is directed to either do something (a mandatory
injunction) or desist from doing something (a restraining
injunction). In the case of suits for defamation, the court
usually grants a restraining injunction.
Generally speaking, injunctions are rarely granted in
defamation cases. This is mainly because, as a matter of
policy, courts – and society in general – place a high value
on freedom of expression and do not restrain free speech
except in very clearly defined circumstances of compelling
need.
In most countries, the law specifically discourages
judges from granting an injunction where the defendant
pleads justification or fair comment in his defence. In
such situations, the principle of ‘publish and be damned’
is followed – which means that if the defence fails, the
DEFAMATION
defendant will be ordered to pay substantial damages.
53
2.45 Are there any other options available to a defendant in
a suit for defamation?
In some countries, defendants can make a ‘payment into
court’ prior to the trial. Under this procedure, the defendant
first admits liability, and then deposits an amount in court
which the plaintiff can accept. If the payment is accepted,
the case ends there. The amount deposited in court is kept
secret from the jury (where defamation cases are heard by
a jury).
If, however, the payment is not accepted, and the court
awards an amount which is smaller than the payment
made into court, the plaintiff is allowed to claim, from the
defendant, all his costs from the time he made the payment.
This procedure acts as a strong incentive to settle cases
before trial.
V. Miscellaneous
2.46 Can an employer be held liable for an act of defamation

by his employee?
Yes, if the act was carried out ‘in the course of employment’.
This means that where a news report carried by a broadcasting
organisation contained a libel authored by a reporter, the
owners of the broadcasting organisation can be sued. This
is known as the principle of ‘vicarious liability’ in law.
Media companies should, therefore, be alert to the possibility
of being sued for the acts of their employees. A practical
way of protecting themselves from such suits is to ensure
that all employees are provided with proper training so that
DEFAMATION
they steer clear of defamation traps.
54
2.47 Can a company sue for defamation?
Yes, where the reputation of the company is affected,
for example by allegations about its business practices,
creditworthiness, treatment of employees, safety standards,
or social responsibility. Companies will, however, only be
awarded damages for any actual loss suffered, not for injury
to feelings, etc.
2.48 Can unincorporated associations sue for defamation?

Generally speaking, no. However, the laws of many
countries allow partnerships and trade unions to sue.
2.49 Can a government body sue for defamation?

Generally speaking, yes. However, in recent years the courts
of some countries have ruled that it would be unfair, on
grounds of public policy, to allow government bodies and
public authorities to launch defamation suits because these
entities are expected to withstand strong public scrutiny and
public criticism of their activities. This rule was first laid
down in the case of Derbyshire County Council v. Times
Newspapers Ltd.,24 where the House of Lords held that to
prevent criticism of democratically elected bodies – such
as local authorities – would have a ‘chilling’ effect on free
speech. It has been adopted in India by a 1994 decision of
that country’s Supreme Court.25
This principle has been extended, in England, to suits by
large public corporations26 and political parties.27 It does
not, however, apply to commercial, i.e. private sector,
corporations.28
24. [1993] AC 534.
DEFAMATION
25. R. Rajagopal v. State of Tamil Nadu 1994 (6) SCC 632.

26. British Coal Corp. v. NUM, unreported 28 Jun 1996.
27. Goldsmith v. Bhoyrul (1998) 2 WLR 435.
28. e.g. McDonalds v. Steel, unreported judgment of 31 Mar 1999.
55
It needs to be noted, however, that there is nothing to prevent
officers of government bodies to sue for defamation where
their own reputations may be damaged by an attack on their
employers, even if they have not been explicitly named in
the attack.
2.50 Can a bankrupt sue for defamation?

Yes, but if his loses his case, his opponents may not be
able to recover their costs for obvious reasons, unless the
bankrupt is being funded by someone else.
2.51 Can a child sue for defamation?

Yes, usually through an adult who is known as their ‘litigant
friend’ (e.g. a parent). An example of such litigation is a case
brought in 1991 against The Sun newspaper in England,
which had carried a story headlined ‘Britain’s worst brat’
concerning a six-year-old boy with psychiatric problems.
A suit was brought by the boy (through his mother) and the
newspaper agreed to settle it with a payment of £17,500.29
2.52 Can a mentally ill person sue for defamation?

Yes, through a litigation friend, on terms similar to a child.
2.53 Can a defamation suit be brought in relation to a person

who is dead?
Generally speaking, no. This is because the law presumes
that a person’s reputation ends with his life. The matter is
not quite straightforward, however. Some legal systems
do allow for defamation suits to be brought in respect of
dead persons, so it is advisable to check national law in this
regard.
DEFAMATION
29. Hunt v. News Group Newspapers, unreported May 1991. In this case, the mother brought
a separate suit against the newspaper on the grounds that the article implied that she had
failed in her duties towards her son. She too received £17,500 by way of settlement.
56
Even where the law does not allow for suits to be brought in
relation to defamation of dead persons, it may be possible
for a criminal prosecution be launched in relation to
such defamation. This is because the criminal law makes
allowance for the possibility that where the defamation is
serious enough, it may lead those who were close to the
dead person (e.g. living relatives) to take retaliatory action
which, in turn, may provoke a breach of the peace.
2.54 What happens if a person who has filed a defamation

suit dies before the case is heard?
Generally speaking, the suit comes to an end on his death. An
example of such a case involved the former Prime Minister
of India, Morarji Desai, who had filed a case against the
American author, Seymour Hersh, and his publishers in
respect of alleged defamatory words contained in a book
authored by Hersh. Before the case came to trial in India
(where delays in the litigation process are endemic), Mr
Desai died. The suit was terminated at this stage.
2.55 Are there special rules in relation to defamation suits

brought by public figures?
Some countries treat public figures differently from ordinary
people for the purposes of the law of defamation. Under US
law, for example, a public figure cannot sue for defamation
unless he can show malice on the part of the person/s
responsible for the alleged defamatory statement, i.e. that
he knew the statement to be false, or had been reckless as
to the falsity of the statement.30 A few other countries have
followed this rule, including India.31 It is also generally
accepted that, under US law, no suit for defamation can be
brought for the expression of an opinion (as distinct from a
DEFAMATION
30. New York Times v. Sullivan 376 US 254 (1964).

31. R. Rajagopal v. State of Tamil Nadu, supra note 25.
57
statement of fact).
But the law in many other countries does not make a
distinction either between public figures and ordinary
citizens or between opinion and fact.
2.56 How are criminal sanctions for defamation treated in

international law?
Recent years have seen a growing disfavour in international
law for criminal sanctions in relation to defamation. Many
leading authorities, including those in the inter-governmental
sector, have argued that they constitute an unacceptable
restraint on the right to freedom of expression. The UN
Special Rapporteur, speaking jointly with his counterparts
in the Organisation of American States and the Organisation
for Security and Co-operation in Europe, declared that
“Criminal defamation is not a justifiable restriction on
freedom of expression; all criminal defamation laws
should be abolished and replaced, where necessary, with
appropriate civil defamation laws.”32 But it is worth noting
that the European Court of Human Rights has declined an
invitation to rule criminal defamation laws unlawful.33
2.57 How does the law deal with situations where a person
may not be defamed, but nonetheless suffers financial
damage as a result of something said about him or her
by the media?
A typical example of such a situation would be where a
newspaper publishes an article suggesting, recklessly or
mischievously, that a well-known businessman is dead
when in fact he is alive. Such a report would not, strictly
DEFAMATION
32. Joint Declaration of 10 December 2002, accessible at <www.cidh.org/Relatoria/docListCat.

asp?catID=16&lID=1>.
33. See, e.g. Castells v. Spain, 23 April 1992, Application No. 11798.
58
speaking, be defamatory because no person is lowered in
his reputation by the false suggestion that he is dead. The
businessman in question may, however, suffer financial
damage (as well as mental distress, and even embarrassment)
because, for example, many of his customers may not deal
with him in the belief that he is dead. In such circumstances,
the businessman can avail of a remedy called “malicious
(or injurious) falsehood”.
There are three things that the person suing for malicious
falsehood must prove:
1. that the words in question are false;
2. that they were published maliciously; and
3. that monetary or financial damage was caused to him as
a direct result of the publication.
One of the best known cases on malicious falsehood arose in
the United Kingdom when Gordon Kaye, the actor and star
of the television comedy series ‘Allo ‘Allo, was engaged
in a conversation and photographed by representatives of a
tabloid newspaper while lying semi-conscious in a hospital
bed after suffering serious brain injury in a car accident. The
newspaper headlined the article as an “exclusive interview”
with Kaye, which it manifestly was not. Kaye, outraged that
his privacy was invaded in this way, successfully sued the
newspaper for malicious falsehood arguing that he had not
given his consent to the interview and was in no state to
have.34
It is worth noting that one of the most important differences
between defamation and malicious falsehood is that, where
in defamation the falsity of the allegation is presumed, no
DEFAMATION
such presumption is made in malicious falsehood.

34. Kaye v. Robertson [1991] F.S.R. 62.
59
3
CONTEMPT OF COURT
I. General
3.1 What is contempt of court?

Contempt of court is a legal concept designed to protect
the administration of justice in any country from being
subjected to serious unjustified attacks. It allows judges to
punish anyone who, through their speech or acts, bring the
judiciary into disrepute or threaten public confidence in the
administration of justice.
3.2 What is the legal basis for contempt of court?

Contempt of court relies on the widespread acceptance,
in free societies, of the principle that the courts and other
tribunals should be free from any undue external influence in
the discharge of their duties. The law on contempt, therefore,
attempts to strike a balance between freedom of expression
and the public’s right to know about the functioning of the
courts, on the one hand, and the unhindered administration
of justice, on the other.
The law of contempt also attempts to strike a balance
between free speech and the right of everyone to a fair trial
CONTEMPT OF COURT
before an independent and impartial tribunal.

Most national constitutions make provision for restrictions
to be imposed on freedom of expression on the grounds of
contempt of court.
60
3.3 How does contempt of court affect media
practitioners?
Contempt of court affects media practitioners in three
principal ways. Firstly, it discourages journalists from unduly
influencing the result of pending cases (often referred to
as ‘trial by media’). Secondly, it acts as a deterrent against
scurrilous media attacks on judges. Thirdly, it prevents – or
punishes – disobedience by journalists of court orders.
3.4 What specific risks should media practitioners be aware

of in this area?
The most common risks are:
- anticipating the course of a trial: while it is entirely
appropriate for a journalist to report or comment on a
pending case in general terms, any attempt to predict the
outcome of a trial or offer odds on particular outcomes
would amount to contempt;
- publishing details of a defendant’s previous convictions:
generally speaking, any person accused of an offence
is expected to be tried for his conduct in relation to
that offence alone; so the publication of information
about his previous convictions would be seen to be
prejudicial to his right to a fair trial and would amount
to contempt;
- publishing photographs of accused persons: where
identification of any defendant is in issue in a case, the
CONTEMPT OF COURT
publication of his photograph may lead eye-witnesses

to identify him rather than the person they saw at the
scene of the crime, and thus result in a miscarriage of
justice;
61
- deterring or threatening potential witnesses: where a
media report seeks to deter or threaten a potential witness
in a case, it would be seen as a serious interference
with the administration of justice and would constitute
contempt;
- revealing deliberations in the jury room: in countries
where jury trials occur, any attempt by the media to
interview jurors or to publish details of their discussions
in the jury room will be deemed to be contempt as the
law requires deliberations of the jury to be kept secret
at all times;
- criticising the decision to prosecute: where a media
report attacks a decision by the authorities to prosecute
someone, it may amount to contempt because of the
impact that the attack may have on witnesses for the
prosecution in terms either of their willingness to testify
or of the content of their testimony;
- publishing scurrilous attacks on judges and courts:
although the media are allowed to criticise judges and
their work, any attack which goes beyond the bounds
of honest and temperate criticism may be deemed
to constitute contempt on the grounds that such
attacks could result in the public’s confidence in the
administration of justice being shaken;
- disobeying a court order: where the media disobeys a
court order, e.g. to postpone the reporting of a trial, it
CONTEMPT OF COURT
runs the risk of contempt, particularly if the disobedience

is wilful or reckless.
62
3.5 Are there any standards set for the exercise of the
contempt power?
Generally speaking, the power of contempt should be
exercised sparingly by the courts. Many decided cases
have laid down that judges should only use this power as a
measure of last resort. In particular, they should not penalise
criticism of the judiciary, however strongly such criticism
may be expressed, unless it ascribes improper motives to a
judge or a court. The following observations of Lord Atkin,
one of England’s most famous judges, give an indication of
the approach that is seen as desirable in this area:
The path of criticism is a public way. The wrong-headed
are permitted to err therein. Provided that members of
the public abstain from imputing improper motives to
those taking part in the administration of justice, and are
genuinely exercising a right to criticism, and not acting
in malice or attempting to impair the administration of
justice, they are immune. Justice is not a cloistered virtue.
She must be allowed to suffer the scrutiny and respectful,
even though outspoken, comments of ordinary men.1
The power of contempt has not been used against the media
in several countries, including the United States, Canada
and Australia for several years now. It has, however, been
used liberally in some Asian countries. There are a number
of examples, including from Asia, where journalists have
faced heavy fines, and even imprisonment, for publishing
matter critical of individual judges. In 1999, for instance,
CONTEMPT OF COURT
a court in Malaysia sentenced Murray Heibert, a Canadian

journalist who was employed by the Far Eastern Economic
Review, to six weeks in jail after he had written a story
1. Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322 at 335.
63
which reflected public surprise at the speed with which a
defamation case filed by the wife of a sitting Court of Appeal
judge had been taken up for hearing. Heibert contrasted the
case with the generally slow pace of litigation in Malaysia,
but his report was deemed to scandalise the Malaysian
judiciary. In the event, he was released after spending four
weeks of his prison term.
3.6 When would media criticism of a judge become

unacceptable?
It is difficult to lay down a precise dividing line between
acceptable and unacceptable criticism given the wide
variation in standards between countries (and sometimes
within countries). However, as a general rule, it can be
said that where the criticism is so sustained, scurrilous,
intemperate, reckless and made in bad faith that it challenges
the authority of the court, it would be seen as unacceptable.
An example of this kind of criticism is provided by a case
from Hong Kong where the island’s largest-selling tabloid
newspaper, the Oriental Daily News, engaged in a long-
running campaign of abuse against the local judiciary,
calling some judges “white-skinned pigs” and “yellow
coloured dogs” and “judicial scumbags”. The newspaper
also, for good measure, deployed a team of its reporters to
follow an appellate judge round the clock for three days,
ostensibly to educate him about the ways of the ‘paparazzi’.
Such conduct was clearly held to constitute contempt of
court: the newspaper was fined HK$5 million and its editor
was sentenced to four months in jail.2
CONTEMPT OF COURT
By contrast, when the Daily Mirror newspaper in London

published a banner headline ‘YOU FOOLS!’ and the
2. Wong Yeung Ng v. Secretary for Justice, judgment dated 9 Feb 1998 (CFA), accessible at
http://law.hku.hk/clsourcebook/conlawcase/wongyeungngCA.htm.
64
inverted photographs of three Law Lords who had delivered
a controversial decision in 1987, the courts took no action
against the newspaper, even though many people were of
the opinion that the item in question was in poor taste and
deeply offensive.
3.7 What about personal attacks on judges?

If a newspaper or broadcasting outfit made a personal
attack on a judge, i.e. an attack which did not relate to his
office as a judge, it would not constitute contempt of court.
This is because the purpose of the law of contempt is not to
protect the reputation or honour of the judge, but to shield
the administration of justice from unjustified attacks.
A judge may, however, be able to successfully sue for
defamation in relation to personal attacks which damage
his reputation.
3.8 What is meant by ‘sub judice’?

In essence, the term ‘sub judice’ refers to a pending case.
It signals the need for caution in commenting on such a
case for fear that any improper comment may prejudice the
upcoming trial of the case.
But the parameters of the ‘sub judice’ rule are sometimes
inadequately understood by media practitioners who
assume that, once a case has been filed, no comment on it
is permissible. This is incorrect, because no legal system
imposes a blanket ban on reporting or commenting on
CONTEMPT OF COURT
pending cases. Generally speaking, all that is prohibited is

prejudging the outcome of a case or discussing its merits
in such detail as to influence the verdict of the jury (or, to a
lesser extent, a judge) hearing the case.
65
3.9 For how long would the ‘sub judice’ rule apply?
Generally speaking, from the time the case begins till the
time it is finally disposed of. In short, when proceedings are
‘active’. Usually, proceedings will be deemed to become
active in criminal cases from the time a person is arrested,
or a warrant or summons for his arrest is issued, or he is
charged orally. They will cease to be active when the person
is either released unconditionally or not arrested within 12
months from the date of the issue of a warrant, or where the
case is discontinued by the prosecution, or a trial is held and
duly concluded with a verdict of conviction or acquittal.
3.10 Can a journalist be liable for contempt for reporting a

case which is heard in public?
Generally speaking, no. But exceptionally there may be
situations where the presiding judge has imposed reporting
restrictions. The judge may, for example, order that all
reports of the proceedings must be postponed until the end
of the trial or until such other date as may be specified (this
may be to avoid prejudice to another trial connected with
the case which may follow shortly). If any such order is
passed, the media must be careful not to breach it. It is
therefore a good idea for journalists to check whether there
are reporting restrictions before publishing anything about
a case.
3.11 Where no reporting restrictions are imposed, how safe

is it for the media to comment on a pending case?
CONTEMPT OF COURT
The rules vary between countries, but generally speaking

the media should avoid any comment that may pose a
‘substantial risk of serious prejudice’ to the trial that is
either ongoing or may follow. What is a ‘substantial risk’
and what is ‘serious prejudice’ is ultimately for the court to
66
decide, but there is guidance available from decided cases,
and journalists would do well to familiarise themselves
with such guidance.
For example, in 2004 the Daily Star newspaper in England
published an article which revealed the identities of two
well-known footballers who were being questioned by
police following a complaint of rape. The victim of the
rape did not herself know that her alleged attackers were
prominent footballers, and the identities of the attackers
were at issue in the case. In the circumstances, the article
in question was seen as posing a substantial risk of serious
prejudice to any trial that may have followed the police
investigations, and the newspaper was therefore held to be
in contempt and fined £60,000.
On the other hand, if a newspaper article which commented
on a pending or likely trial was published several weeks or
months before the commencement of the trial, it may not be
held guilty of contempt because it is likely that the content
of the article may be forgotten (by the jury or judge) before
the time of the trial. This is known as the ‘fade factor’ and
it also applies to articles that are likely to be read largely
by people living some distance away from the venue of the
trial.
Also, sometimes the courts would consciously disregard
media comment about a pending case (even if it had the
potential to interfere with a trial) where the circumstances
are such that a higher than usual degree of media interest
is unavoidable. This happened in a case in 1996 when,
CONTEMPT OF COURT
following a series of horrific murders in a town in England,

one of the persons convicted for the murders, Rosemary
West, failed to have her conviction set aside by arguing that
adverse press coverage had prejudiced her right to a fair
67
trial. In such cases, all that can reasonably be done is for
the jury (where there is one) to be directed by the presiding
judge to ignore any media comment they may have seen
or read. This approach was explained by a senior judge as
follows:
In determining whether publication of matter would cause a
substantial risk of prejudice to a future trial, a court should
credit the jury with the will and ability to abide by the judge’s
direction to decide the case only on the evidence before
them. The court should also bear in mind that the staying
power and detail of publicity, even in cases of notoriety,
are limited and that the nature of the trial is to focus the
jury’s minds on the evidence put before them rather than on
matters outside the courtroom.
3.12 Are there any options available to the media when a

judge bans reporting of a case?
Yes. The media can, individually or collectively, first ask the
judge to reconsider the ban. This can be done either through
a request via the court clerk or, more formally, through an
application presented by a lawyer on behalf of the media.
In some countries, there are formal processes for pleas from
the media in such circumstances. Another possibility is for
the media to appeal to a higher court.
Most liberal legal systems place great value in the courts
being open to public scrutiny, so bans on reporting
proceedings are the exception rather than the rule. As the
Supreme Court of Canada noted in one famous judgment:
CONTEMPT OF COURT
Public access will be barred only when the appropriate

court … concludes that disclosure would subvert the ends
of justice or unduly impair its proper administration.3
3. Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, paras. 3-4.
68
But the media should remember that, where a reporting ban
is in place, it should be obeyed until it is set aside either
by the same court or a higher court. Failure to do so would
result in the media being charged with contempt of court.
3.13 What about general reporting restrictions?

In most countries, the law imposes restrictions on the
reporting of certain details on grounds of public policy. For
example, it is felt that certain vulnerable groups, such as
children, rape victims, victims of blackmail, etc. involved in
legal proceedings, should be protected from being identified
in the media. If, in those circumstances, a newspaper or
broadcaster did publish details of a person from a protected
group, it would face a charge of contempt.
Generally speaking, it is not advisable for the media to name
any child or young person4 involved in legal proceedings,
especially in criminal cases, or to publish information
such as their address, school or place of work which may
identify them. In certain types of cases, e.g. incest, it is also
necessary for the media to avoid naming the perpetrator of
the offence because of the risk of indirect identification.
Likewise, the media should remember that, in most
countries, rape victims – and victims of other sexual
offences – are given lifelong anonymity, sometimes from
the stage at which a complaint is made. This means that
nothing should be published which will reveal their identity.
The law does often allow for such a person to voluntarily
give up his or her right to anonymity, but there are usually
CONTEMPT OF COURT
strict conditions attached to the waiver of anonymity.5

4. The definition of a ‘young person’ may differ from country to country, with the qualifying age
usually ranging between 10 and 18 years.
5. For example, the law would require the media to obtain consent in writing, and without any
undue pressure or duress being applied on the victim.
69
Also, the law may allow for a complainant of rape or other
sexual offence to be identified if, after her alleged attacker
is acquitted, proceedings are brought against her for perjury
or other similar offences.
It is extremely important in such cases that the media do not
publish photographs of any person falling within a protected
group.
Restrictions are also usually imposed on the reporting
of details of an intimate nature in cases involving sexual
offences or matrimonial disputes.6 Where these exist, the
media should ensure that their reports are free of such
details.
3.14 What is ‘jigsaw’ identification, and how should the

media deal with it?
‘Jigsaw’ identification involves a situation where one
newspaper or broadcaster reveals a piece of information
about a person whose identity requires to be protected, e.g. a
child involved in a criminal case, and another newspaper or
broadcaster reveals a different detail about the same person.
Although by itself each of those descriptions is lawful, the
reports, when pieced together, may end up breaching the
law by allowing an astute reader, listener or viewer to work
out the identity of the child.
The only reasonable way of avoiding this problem is for
media organisations to agree on a co-ordinated policy under
which all media outlets only publish certain permitted
CONTEMPT OF COURT
details.
6. A typical law under this head would say that “it is unlawful to print or publish, or cause or
procure to be printed or published – in relation to any judicial proceedings any indecent matter
or indecent medical, surgical or physiological details being matter or details the publication
of which would be calculated to injure public morals” (Judicial Proceedings (Regulation of
Reports) Act 1926, s. 1(1)(a), UK).
70
3.15 How safe is it for the media to report ‘confessions’ made
by accused persons outside a courtroom?
Quite unsafe. This is because, not only are such ‘confessions’
far from conclusive in law, but it is always possible for the
accused person to deny any guilt when brought before a court
and to raise all manner of legal defences. This happened
in a 1997 case when two British newspapers reported that
a domestic servant had been caught on film ‘red-handed’
stealing from a 82-year-old widow. The servant pleaded ‘not
guilty’ when asked by the court and opted for a jury trial.
The newspaper would have been held liable for contempt
under those circumstances but managed to escape liability
because the trial took place several months after the article
had been published.
3.16 How safe is it for the media to report appeals issued

by the police about people who are suspected of being
involved in a crime?
Fairly safe, as long as the report limits itself to the
information supplied by the police. In theory, there is a risk
of contempt and a further risk that the named person/s may
sue for defamation, but the media are usually protected
from such suits as they are acting under advice from a legal
authority.
3.17 What about notices offering a reward for evidence?

These are potentially risky because they may interfere
CONTEMPT OF COURT
with the administration of justice. Where, for example,

a newspaper report alleging fraud by a businessman had
resulted in a libel case being launched by the businessman,
and while the case was pending, the newspaper offered
71
a substantial reward to anyone who came forward and
successfully testified in support of the allegation, the court
may regard the offer of the reward to be a contempt.
3.18 Can the media safely report all proceedings held in open
court?
Generally speaking, yes; however, there are exceptions.
Occasionally, the court may order that certain parts of
the trial should not be reported, e.g. where evidence of an
indecent or highly sensitive nature is being given. In such
circumstances, it is always advisable for journalists to seek
clarifications from the court.
Another situation which the media should be aware of is
what is called a ‘trial within a trial’. This only happens
when a jury is involved. The court may decide to send away
the jury temporarily and hear legal arguments about, say,
the admissibility of some of the evidence that is likely to
be tendered. In such situations, the media should not report
any of the matters that were discussed while the jury were
away.
3.19 Can the media freely name parties to a case that is being
heard in public?
Generally speaking, yes. But occasionally a court may order
that the name or other details (e.g. occupation, address) of
a party or a witness be withheld from the public. In such
situations, the media should not use this information and
CONTEMPT OF COURT
should substitute pseudonyms. Normally such orders are

made to prevent victims of blackmail or those involved
in sensitive national security operations being exposed to
glare of publicity.
72
3.20 How important is it that media reports of legal
proceedings are accurate?
Very important. If a report distorts or misrepresents the
facts of a case being heard in a court, and that has the effect
of prejudicing the trial, the journalist and others responsible
for the report can be punished for contempt.
3.21 Can the media expect support from the courts in gaining
information about pending and upcoming cases?
As a rule, yes, though practice tends to vary between
countries. In most democracies, there are guidelines
formulated by the courts themselves for the dissemination of
information, documents, etc. to the media. These guidelines
require the information to be made available conveniently
and without discrimination to all media, although there
may be a system of accreditation and a fee structure for the
information.
Exceptionally, a court may allow proceedings to be filmed
and for a feed from the filming to be made available to
broadcasters, subject to certain conditions.
3.22 How safe is it for the media to campaign for the acquittal
of an accused person?
Very unsafe. Just as launching a campaign aimed at securing
the conviction of someone suspected of a crime risks a
contempt charge, so also a campaign which seeks to show
that an accused person is not guilty. This will be seen as
attempting to interfere with the course of justice.
CONTEMPT OF COURT
3.23 In what other ways can a journalist fall foul of the law of
contempt?
There is a species of contempt called ‘contempt in the face of
73
the court’ which may, on rare occasions, affect journalists. If
a journalist covering a trial engages in disruptive behaviour
or is disrespectful towards the court, he can be punished for
such conduct. Such occurrences are, however, rare.
Also, journalists should be aware that using cameras, tape-
recorders or other recording devices are usually not allowed
in courts.7 If therefore any such device is used, a journalist
can be punished for contempt.
3.24 What about frustrating court orders?

The media’s actions may result in the frustration of a court
order, and where this is deliberate, it may give rise to a
charge of contempt. For example, in a famous case involving
the book Spycatcher which detailed sensitive intelligence
operations by a former member of the British security
services, the UK Government had secured injunctions
against two newspapers, the Guardian and Observer,
restraining publication of extracts from the banned book.
Two other newspapers, the Independent and Sunday Times,
despite knowing about the injunctions, published material
which was covered by them. It was held that, although the
injunctions had not been directed specifically at them, the
Independent and Sunday Times were guilty of contempt
because their actions had the effect of frustrating the court
orders.
Journalists should therefore be careful not to do anything
that might amount to knowingly frustrating a court order.
CONTEMPT OF COURT
7. In most countries, this rule is absolute. There are, however, some countries where a tape-
recorder may be used, with the prior permission of the judge/s, purely as an aide-memoire
for the journalist. Even where permission is granted, at no time should the recording ever be
published.
74
3.25 Can a person be prevented from taking notes in open
court?
No. As long as the proceedings are open to the public
and there is are no specific legal restrictions imposed by
the court on any recognised grounds, everyone – whether
an accredited journalist or not – is entitled to attend and
take notes of proceedings. They should, however, do so
decorously and without causing any disturbance to the
court.
The Grand Bench of the Supreme Court of Japan, in
criticising a trial judge for refusing to allow a non-journalist
to take notes in court (the policy being to allow only
members of the “reporters’ club” to take notes), observed
that Article 21 of Japan’s Constitution was consistent with
Article 19 of the International Covenant:
The freedom to come into contact with and absorb this
information, etc., is a derivative principle that naturally
follows from the meaning and purpose of [Article 21]
... . The provisions of Article 19(2) of the International
Covenant on Civil and Political Rights ... reflect nothing
other than the same intent.8
The Court concluded that the judicial policy of prohibiting
non-journalists from taking notes during a trial was “an
exercise of the courtroom policing power lacking a rational
basis.”
3.26 Can the media publish a graphic representation of a

CONTEMPT OF COURT
court?
Yes, as long as it is not a photograph taken in court. The
8. Kaneko v. Japan, 23 Keishu 1490, SC (Grand Bench), 26 November 1969
75
common practice in many countries is for artists employed
by the media to draw sketches of courtroom scenes which
are then published. It is important to note that these artists
are usually forbidden from making sketches in court – they
can only make sketches outside the court from memory. It is
also important to remember that where sketches are made,
they do not identify any members of jury or any witness
whose identity is ordered to be kept secret.
3.27 Can a journalist disobey a court order which appears to

be clearly erroneous?
No. Even if it is clear that a court has passed an order that is
wrong, no one is entitled to disobey or disregard it. If they
do, they are likely to be in contempt. The proper course of
action in such circumstances is for the order to be appealed
in a higher court.9
II. Confidentiality of sources
3.28 Can a journalist insist on keeping his sources secret?

Generally speaking, no. This is clearly a very difficult and
controversial area. Ethically, journalists are usually required
to honour any promise they make to their sources, including
a promise not to reveal their identities. However, the law
in most countries allow courts to compel journalists to
furnish such information on pain of a penalty. This has led
to frequent clashes between journalistic ethics and the law.
CONTEMPT OF COURT
One famous case, which occurred in England in the

1980s, is illustrative of the problem. A journalist, William
Goodwin, who was working for The Engineer magazine,
9. In some cases, it may be possible for, say, a journalist to point out the error to the judge or
magistrate who made the order, who may then amend or vary it.
76
was approached by a source who told him about the financial
woes of a certain company on conditions of anonymity.
When Goodwin drafted an article based on this information
and attempted to check the information with the company, it
obtained a court injunction and sought details of Goodwin’s
source. He refused and was threatened with imprisonment
and a fine of £5,000. His appeals to the higher courts of
England were turned down, but the European Court of
Human Rights came to his rescue and ruled that whatever
benefits may have accrued to the company by the disclosure
of the source (e.g. exposing a disloyal employee or
collaborator) were outweighed by the vital public interest in
the protection of the source. The European Court underlined
the importance of this issue thus:
Protection of journalistic sources is one of the basic
conditions of 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 watchdog role of the press may be
undermined and the ability of the press to provide accurate
and reliable information may be adversely affected.
Having regard to the importance of the protection of
journalistic sources for press freedom in a democratic
society and the potentially chilling effect an order of
source disclosure has on the exercise of that freedom,
such a measure can not be compatible with Article 10 of
the Convention [which guarantees freedom of expression]
unless it is justified by an overriding requirement in the
CONTEMPT OF COURT
public interest.10
In some countries, the law provides at least partial protection
10. Goodwin v. UK (1996) 22 EHRR 123, para. 39.
77
to journalists by limiting the circumstances under which a
court may order disclosure of sources. The UK’s Contempt
of Court Act 1981, for instance, forbids any court from
requiring anyone to disclose their source “unless it is
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.”11
Also, it is the practice in many countries that no journalist
is required to reveal his source at an interlocutory (i.e. pre-
trial) stage of legal proceedings, e.g. in a defamation suit.
3.29 What are the best practice guidelines in this area?
A number of inter-governmental organisations and non-
governmental organisations have, over the years, put forward
principles that should be followed when dealing with the
issue of disclosure of a journalist’s confidential sources.12
Those principles have been summarised as follows:
• A journalist should only be ordered to disclose the
identity of a source if there is an overriding requirement
in the public interest, and the circumstances are of a
vital nature … [T]his could be the case only if disclosure
was necessary to protect human life, to prevent major
crime or for the defence of a person accused of having
committed a major crime.
• The interest in disclosure should always be balanced
against the harm of ordering disclosure to freedom of
expression.
CONTEMPT OF COURT
• Disclosure should only be ordered at the request of an

11. S 10, Contempt of Court Act 1981.
12. Among the organisations involved are: the Inter-American Commission on Human Rights,
the African Commission of Human and Peoples Rights, the Council of Europe, the European
Parliament, and the Organisation for Security and Co-operation in Europe.
78
individual or body with a direct, legitimate interest,
and who has demonstrably exhausted all reasonable
alternative measures to protect that interest.
• The power to order disclosure of a source’s identity
should be exercised exclusively by courts of law.
• Courts should never order disclosure of a source’s
identity in the context of a defamation case.
• The extent of a disclosure should be limited as far as
possible, for example just being provided to the persons
seeking disclosure instead of general public.
• Any sanctions against a journalist who refuses to
disclose the identity of a source should only be applied
by an impartial court after a fair trial, and should be
subject to appeal to a higher court.13
3.30 Are there any special rules that apply to journalistic

material?
Many countries have laws which confer special protection
on information and documents that are used for journalistic
purposes. This is to ensure that such material is not subject
to the normal search and seize procedures of the law-
enforcement authorities. Among the reasons advanced
for the conferment of special protection is that the media
should be shielded from the intimidatory effects of police
and military raids, and that the authorities should not be able
to use their normal search and seize powers to circumvent
CONTEMPT OF COURT
laws on the confidentiality of a journalist’s sources.

Typically, a law on the sanctity of journalistic material
13. Central Asian Pocketbook on Freedom of Expression (London: Article XIX, 2006), pp. 85-
86.
79
would require law-enforcement authorities to first seek
the permission of a higher authority – normally a judge –
before attempting to search for or seize such material. Such
laws would also require the higher authorities to carefully
balance the need for the search with the need to prevent any
danger to the free exercise of a journalist’s duties.
However, such protections are not universal, and journalistic
material is often treated in many legal systems as being on
par with other material for the purposes of searches and
seizures.
III. Defences
3.31 What are the defences available to a person charged

with contempt?
There are very few defences open to those charged with
contempt. Unlike defamation, truth or justification is,
generally speaking, not a defence, though some countries
have begun relaxing the law in this area (see discussion
below). The most common argument put forward by alleged
contemnors is that the matter complained of was unlikely to
interfere with, or prejudice, the administration of justice.
Strong and cogent evidence will have to be provided to
back up that argument. There are a couple of other possible
defences that can be advanced, and these are discussed
below.
CONTEMPT OF COURT
3.32 To what extent can a journalist argue that any report for
which he is charged with contempt is true in substance
and in fact?
Only to a limited extent. As noted above, truth is, generally
80
speaking, not recognised as a defence, but courts in some
countries do accept it in certain circumstances. In India, for
example, the Contempt of Courts Act 1971 was amended
in 2006 to allow alleged contemnors to prove the truth of
their allegations if it is satisfied that to do so was in the
public interest and that the request to invoke this defence
was made in good faith.14
Truth will usually only succeed if the person responsible for
publication had made a serious attempt to bring the subject
matter of his story, e.g. corruption in the judiciary, to the
attention of relevant official authorities or agencies before
publication, but without success. If, therefore, a complaint
to the chief justice or an anti-corruption body about bribery
allegations against a judge had been ignored or brushed
aside, a newspaper or TV station might be justified to
publicise the case, despite its implications under contempt
law.
3.33 Can a media person use ‘innocent publication’ as a

defence to a contempt charge?
Yes, in certain limited circumstances. For example, a
journalist could argue that he did not know, when he
published material concerning someone involved in legal
proceedings, that the proceedings were active. In practice
this would mean, for instance, that, although someone
suspected of a crime had been arrested, no publicity was
given by the police of the arrest, and furthermore that the
police had not alerted the journalist about the arrest when
CONTEMPT OF COURT
he had been talking to them about the crime.

Likewise, where a journalist publishes something that had
14. Contempt of Courts (Amendment) Act 2006, s. 2 (amending s. 13 of the parent Act).
81
been the subject of reporting restrictions, he may argue
that he did not know, and could not reasonably be expected
to know, about the existence of the restrictions. For this
defence to succeed, however, it is important in both cases
for the journalist to show that he took all reasonable care
and all reasonable steps to find out if the proceedings in
question were active or if reporting restrictions had been
imposed.
3.34 To what extent can a person use the defence of ‘innocent

distribution’ as a defence to a contempt charge?
To a limited extent. This defence usually applies to
distributors of newspapers and other publications (though in
exceptional circumstances it may also apply to broadcasting
organisations). Here, the person charged with contempt
shows that, despite taking all reasonable care to ensure that
the publication being distributed by him did not infringe the
law of contempt, he did not know, nor could he reasonably
have known, about the existence of contemptuous matter in
the publication.
The courts will look at a number of factors while considering
this defence, including, for example, the amount of interest
that the case in question has aroused among the public, the
nature of the article or report, the extent of its circulation,
etc.
3.35 To what extent can a reporter seek to escape liability for

contempt if he is not responsible for publication?
CONTEMPT OF COURT
This will depend very much on the precise details of each

case, but, generally speaking, it is arguable that a court
will treat reporters who do not have responsibility for
82
publication leniently. If, therefore, a reporter on a crime
beat sent information about an offence that had been
committed on his ‘patch’ but did not write the story himself,
and it subsequently transpired that the story which was
published – based on the reporter’s information – amounted
to a contempt of court, the reporter would very likely be
able to escape liability on the grounds that the information
supplied by him was not ‘published’ in the sense of being
made available to the public at large or a section of it, but
had only been supplied to a few colleagues in the media
organisation for which he worked.15
3.36 Are editors always liable for contempts committed by

their reporters or other journalists?
Generally speaking, yes. This is based on the principle of
‘vicarious’ liability discussed in the previous chapter.16
3.37 What about the liability of broadcasters for contempts

contained in a programme made by independent
contractors?
Generally speaking, the broadcaster responsible for
transmitting the programme would be held liable.
3.38 Can the media use the defence of ‘discussion of public

affairs’ in contempt cases?
Yes, in some countries. The essence of this defence is
that, although the report in question may have a tendency
CONTEMPT OF COURT
to interfere with the course of justice, it was published as,

or as part of, a discussion in good faith of public affairs.
15. See, e.g. R. v. Griffiths, ex p. Attorney-General [1957] 2 QB 192

16. See,...
83
This defence succeeded in a case which arose in England in
1981 when the Daily Mail newspaper published an article
by the writer Malcolm Muggeridge strongly criticising the
medical profession for readily carrying out abortions at a
time when a doctor had been facing trial for the murder of
a Down’s Syndrome baby. The article had been published
on the eve of a parliamentary by-election in which one of
the candidates had been standing on a pro-life platform. In
the circumstances, the court held that it could be seen as
being part of a discussion of public affairs and therefore not
contemptuous.
In all the above situations, the person facing a contempt
charge must show that he acted in good faith at all times.
3.39 Is there any other defence available to the media?

Very rarely, the media may be able to argue that, although
it has committed a technical contempt, it should not be held
liable for commonsense reasons. Such a situation arose in
an English case decided in 1979 which involved criminal
proceedings for breach of official secrets. Although the
case was heard in open court, one of the witnesses was
given anonymity on national security grounds and referred
to simply as Colonel ‘B’. In the course of his testimony,
Colonel ‘B’ proffered enough information about himself
to enable two magazines to carry out research in available
public sources and identify the colonial by his real name.
They published the name and were charged with contempt.
In their defence, they argued that there could not be any
CONTEMPT OF COURT
question of contempt because the colonel himself had

allowed his identity to be revealed through testimony given
in open court. This defence was accepted and the magazines
were acquitted.
84
IV. Punishment
3.40 What are the common types of punishment meted out

for contempt of court?
In most countries, contempt is punishable with either a
monetary fine or a term of imprisonment.
3.41 What are the guidelines for the punishment of

contempt?
As noted above, it is accepted in most countries that the
contempt power should be used very sparingly by the
courts. Even where a contempt has been established, the
preferred course of action is for judges to show leniency to
the contemnor. This is done, firstly, by giving the contemnor
an opportunity to ‘purge’ his contempt by tendering an
apology to the court, and, secondly, by avoiding custodial
sentences unless the behaviour of the contemnor has been
particularly egregious.
Such guidance can be found in many cases decided over the
years. It has also occasionally been enshrined in statutes,
such as the Indian law on contempt which says expressly
that:
no court shall impose a sentence … for a contempt of court
unless it is satisfied that the contempt is of such a nature
that it substantially interferes, or tends substantially to
interfere with the due course of justice.17
CONTEMPT OF COURT
17. S. 13(a) Contempt of Courts Act 1971, as amended in 2006.
85
4
MEDIA COVERAGE OF SENSITIVE MATTERS
4.1 Can the media may be subject to restrictions on the

grounds that the subject-matter of what they propose to
cover is sensitive?
Yes. There are a number of areas where the law, in most
countries, deems it necessary for the media to be subjected
to restraints on this ground. These include:
• coverage of, or comment on, legal proceedings involving
sexual offences;
• coverage of, or comment on, offences committed by, or
on, children and young persons;
• coverage of, or comment on, issues or events involving
racial, religious, ethnic, linguistic or other similar
overtones in circumstances where they would lead to
public disorder;
• coverage of, or comment on, family law cases, e.g.
cases involving divorce or separation, wardship, and

adoption.
4.2 Would a blanket ban on coverage or comment in such

areas be justified?
Normally not. The importance of free speech and the
freedom of broadcasters to inform their viewing and listening
public require that only the barest minimum restrictions are
86
imposed. However, much will depend on the nature of the
society in question and the circumstances prevailing at the
time the restrictions are sought to be imposed. For example,
if in a given country there is a serious risk of large-scale
violence arising from a heightened state of tension between
different racial or religious groups, the state may be justified
in requiring the media to refrain from publishing material
that may exacerbate that tension, even if the material in
question would be seen as falling within the acceptable
limits of free speech in normal times.
The test that is normally used to assess the appropriateness
of restrictions in this area is whether the material in question
is likely, having regard to all the circumstances, to lead
to violence and/or large-scale disruption to the life of the
community. Courts in many countries have insisted that any
measures which are adopted are proportional to the dangers
sought to be averted. The European Court of Human Rights
has also used the test of ‘pressing social need’, which it has
said, involves showing that any interference with a right
was necessary in a democratic society. This presupposed
a regard for “pluralism, tolerance and broadmindedness”,
argued the court.1 MEDIA COVERAGE OF SENSITIVE MATTERS
However, standards in this area differ from country to

country. It is worth remembering in particular that the
norms laid down under the European Convention on
Human Rights do not apply to Asian countries because the
Convention does not apply to such countries (although the
courts in some Asian countries have shown a willingness to
apply those norms).
1. Handyside v. UK [1976] ECHR 5.
87
I. Sexual offences
4.3 What is the general approach of the law in relation to

media reporting of sexual offences?
In most countries, the law gives victims of sexual offences
the right to remain anonymous. This means that such
a person cannot be named or otherwise identified by the
media in any of its reports. The rationale for this restriction
is that there is still a stigma attached in most societies to
being subjected to a sexual attack.
4.4 How extensive is the ban on the identification of victims

of sexual offences?
This differs from country to country. Generally speaking,
victims of sexual offences enjoy lifelong anonymity. This
means that no one – including the media – can say or do
anything which will result in the identification of such a
person till his or her death. There are, however, exceptions
to this rule which are noted below.
Doubts can occasionally arise about when the ban on
identification begins. The law in some countries (e.g. the
UK) is explicit that the ban takes effect from the time the
person in question makes a complaint about the alleged

offence. If the law is not so clear, the media would have to
make the necessary enquiries to ascertain the exact starting
point for the ban.
4.5 What about identification of the alleged perpetrator of a

sexual offence?
There is usually an asymmetry in the law concerning comment
on cases involving sexual offences. In most countries, the
88
law does not prohibit the media from identifying the alleged
perpetrator of a sexual offence. This has led to complaints
of unfairness from equality campaigners and defendants
in sexual cases who argue that, even where a person is
eventually acquitted of all charges, his reputation suffers
serious, sometimes irreparable, damage while his accuser
continues to enjoy anonymity for life.
Such complaints have frequently led to calls for reform
of the law, with the preferred option being to allow both
the accuser and the accused anonymity until the end of the
criminal trial and, in the event of an acquittal, for the rest of
their lives. However, in the absence of any such change in
the law, the media are left with the option of either acting in
conformity with the existing provisions or, on a voluntary
basis, refraining from naming or otherwise identifying
defendants in sexual cases until they are formally convicted
in a court of law.
4.6 Are there any exceptions to the rule against naming

victims of sexual offences?
Yes, generally speaking, the media would be allowed to
name or otherwise identify victims of sexual offences in
certain circumstances. These include the following:
(a) where the person concerned has himself or herself

allowed for the anonymity to be lifted: occasionally,
the victim of a sexual offence may want to have their
identity revealed, for example to lend their names
to a public campaign against rape or other evils. In
such circumstances, the media can name the victim.
It is, however, a good idea for journalists in such
circumstances to ensure that the person in question
89
gives his or her consent unequivocally and in writing,
so that there is not dispute later about whether consent
had actually been given. The laws of some countries
(e.g. the UK) also require that, where consent for being
named is sought by the media, no person involved in
seeking the consent unreasonably interferes with the
peace or comfort of the victim.
(b) where the court orders the anonymity to be lifted,
usually on the grounds that, to do otherwise would
impose a substantial and unreasonable restriction on
the reporting of the criminal trial for the sexual offence
in question. The court may also order the anonymity to
be lifted on an application by the defendant’s lawyer,
for example on the grounds that only by revealing the
identity of the complainant will certain witnesses who
are crucial to the defence come forward to give evidence
in court.
It is always a good idea for journalists to check with the
court whether, and to what extent, the anonymity of a victim
has been removed before he or she is named or otherwise
identified.
4.7 What about ‘jigsaw’ identification of victims of sexual

offences?
This is a risk which the media should avoid. ‘Jigsaw’ or
‘patchwork’ identification involves one newspaper or media
outlet giving certain details about a rape victim without
naming him or her, and another paper giving certain other
details about the person (also without naming him or her),
with the result that, when the emerging details are pieced
together, a discerning reader would be able to make out the
90
identity of the victim. The only way in which this problem
can be avoided is through close co-operation between
newspapers and broadcasting organisations in the coverage
of such cases. In many countries, media outlets have an
agreed approach for the reporting of sexual offences.
4.8 Does the anonymity rule apply to civil cases involving

sexual offences?
Generally speaking, yes. Where, for example, the victim of
a sexual offence sues his or her attacker for damages, or
where he or she is involved in a case before a tribunal, the
media are not allowed to publish anything that might reveal
the his or her identity.
4.9 What are the sexual offences covered by the anonymity

rule?
Usually, rape, attempted rape, incest, and indecent assault
are covered by the rule. However, national laws vary in this
area: in some countries, there is a longer list of offences, so it
would be worthwhile for journalists to make closer enquiries
before reporting on such offences. The media would also
do well to check on whether male or homosexual rape is
included in the list of offences to which the anonymity rule
applies, as practice in this area varies between countries.
ii. Coverage of matters involving children or

young persons
4.10 How does the law deal with media coverage of matters
involving children or young persons?
Generally speaking, the law is protective of children
91
and young persons. Such an approach is justified on the
grounds that children being vulnerable, their privacy must
be carefully protected and public institutions (including the
courts) should have constant regard for their welfare.
4.11 How is a ‘child’ or ‘young person’ defined in law?

There is some variation in this area between countries. A
typical law would define a ‘child’ as someone under the age
of 14 years and a ‘young person’ as someone between the
ages of 14 and 18 years.
4.12 Can a child be held responsible for a criminal offence

and punished by a court of law?
Yes, although different countries have different ages at
which children can be charged with criminal offences.
Typically, a child cannot be so charged unless he or she is
at least 10 years of age. This is because anyone under that
age is deemed “incapable of crime” (doli incapax). Where
a child or young person is charged with an offence, he is
usually brought before a juvenile court or youth court, and
there are reporting restrictions on proceedings before such
courts.
4.13 What may the media report in relation to proceedings

involving children and young persons?
There are, potentially, a number of restrictions that the
media may be subject to in this area, depending on the laws
of individual countries. Generally speaking, juvenile courts
and youth courts do not allow the public the same degree of
access as adult courts – in many countries, the public (except
those intimately connected with a case) are prohibited
92
from entering these courts. Journalists may, however, be
allowed to enter and remain present during proceedings,
although they may only report certain matters. They are,
in particular, usually prohibited from publishing the name,
address, school details or other information which may lead
to the identification of the child or young person involved in
the proceedings. Where such a prohibition exists, no media
outlet should, of course, publish any photograph or sketch
of the child or young person.
The reporting of juvenile court proceedings calls for great
care. While it would be alright to describe a defendant as, say,
a ’15-year-old disabled Bangkok boy’ (because Bangkok is
a large city), a report that the defendant was a 15-year-old
disabled boy from a small village in rural Thailand might
prove problematic (because many people who knew the
village and its inhabitants could easily identify the boy in
question).
4.14 Are there any circumstances under which a child or

young person involved in criminal proceedings is allowed
to be identified?
Yes. Occasionally, the court may order that the child or
young person be named to avoid injustice to him or her,
or where there was a strong public interest in the identity

of the child being revealed. This happened in a notorious
case in the UK where two young boys, Jon Venables and
Robert Thompson, were tried and convicted of the murder
of a 2-year-old toddler, James Bulger, in 1993. Given the
horrific nature of the crime, the court unusually ordered
that the two murderers be named, although they were only
between 12-14 years of age.
93
Yet another circumstance under which a child or young
person may be named in the media is when he or she is
either suspected of, or charged with, a serious offence and
has absconded.
4.15 What is the position concerning young persons being

tried for offences in adult courts?
Occasionally, a juvenile may be charged with an offence
for which he or she is tried in an adult court. In such cases,
there is usually no automatic ban on the identification of the
juvenile by the media. However, it is possible for the court
to impose a ban, in which case the media should be careful
not to breach it.
In many countries, the discretion of the court in imposing
such a ban is circumscribed by a requirement that it should
carry out a balancing exercise between the needs of open
justice and the need to protect the juvenile from undue
public exposure. Where the media feel that this balancing
act has not been carried out properly, it would be well within
its rights to ask the court – or a higher court – to review the
order.
4.16 What about cases in adult courts that may involve

children as victims?
As a rule, where an adult is charged with an offence
involving children as victims, there is no prohibition on the
identification of the adult. However, there is an important
caveat. The media should not publish anything that might
identify the children, even indirectly. So, where a case
involves incest, for example, the media should not name
the adult defendant (e.g. the father) who is facing trial,
94
because that will easily lead to the identification of the child
victim.
4.17 Can any reporting restrictions made in relation to

children involved in legal proceedings continue after
they have become adults?
Generally speaking, no. However, the courts may,
exceptionally, allow for the restrictions to continue
indefinitely. Two examples from the UK are illustrative. In
the first, a judge ruled in 1984 that Mary Bell, who had
been found guilty of murder when still a child, should not
be identified even after she became an adult. A similar
ban was placed on the identification of a child which had
subsequently been born to Mary. The intention here was to
protect the child, not Mary herself.
In the second case, decided in 2001, a judge ruled that Jon
Venables and Robert Thompson, who had killed the toddler
James Bulger when they were still children, should both be
shielded from publicity even after they had become adults,
because there was a real risk that, otherwise, they would
be subjected to revenge attacks by members of the public.
This decision was criticised for being too sweeping and
highly restrictive of the media’s freedom of expression, but
it continues to be in force.
4.18 What happens where an adult involved in criminal

proceedings ask for anonymity on the grounds that his
or her children’s privacy need to be protected?
The media should not, normally, fear any legal consequences
if they identified the adult as long as there was no court
order banning such identification (this means that the media
95
should take all reasonable measures to check whether there
is any court order). However, there have been occasions
when judges have been persuaded to issue injunctions in
such circumstances.
In 2005, for example, a woman had been on trial for knowingly
infecting her husband with human immunodeficiency virus
(HIV). She argued for anonymity on the grounds that, if she
is named, her children would be left with the lasting stigma
of HIV/AIDS and would suffer as a result. The court in the
UK accepted this plea and granted an injunction.2
This may not be the outcome in all cases. In another English
case decided in 2004, the House of Lords refused to grant
an injunction to a woman who had been charged with the
murder of a child, even though identifying the woman would
have had an adverse effect on the privacy of her own son.3
4.19 Are there any restrictions that the media should be aware
of when covering civil proceedings involving children?
Yes. In many countries, the law does not allow the media
to identify children who are involved in proceedings such
as those for wardship, adoption, supervision, contact, etc.
Sometimes, there is a complete ban on journalists remaining
present at such hearings, in which case nothing can be

reported about the hearings. More frequently, representatives
of the media are allowed to remain present, but they are not
allowed to publish anything which identifies a particular
child involved in the proceedings or details of the evidence
given at the hearing.
The media should also be careful, where reporting
2. Re W (Children) (Identification: Restrictions on Publication) [2005] EWHC 1564.
3. Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47.
96
restrictions are in place, not to reproduce extracts from, or
summarise, witness statements, medical or social reports,
transcripts, etc. used in the case.
III. Coverage of matters involving racial, religious

and other issues (‘hate speech’)
4.20 How does the law deal with media coverage of issues
concerning racial, religious, linguistic and other
matters?
The position varies from country to country. Much depends
on the history of racial, religious and other tensions prevailing
in a given society, and on the approach the government
takes to dealing with such tensions. Some countries have
laws that are stricter than those in other countries. There is
also, clearly, a discernible difference of approach adopted in
such matters between developed and developing countries.
In the former, the law generally tends to take a more relaxed
view than in the latter.
There are huge definitional problems in this area. It is not
often easy to define racial or religious hatred, partly because
the level of tolerance of inter-racial or inter-religious
conflict varies from society to society, and partly because
what constitutes a race, or amounts to a religious belief, is

elusive.
An approach which has been seen to be sensible and
reasonable is for the law to proscribe those acts – verbal or
physical – which are likely to lead to violence and public
disorder. In practice, this has meant that the law usually
makes it an offence for anyone to engage in ‘threatening,
abusive or insulting’ behaviour with intent to stir up hatred
97
on grounds of race, religion, language or other similar
characteristics, or where such hatred is likely to be stirred
up. To ensure that such powers are not used harshly against
free speech, the test that is recommended for use in this
context is an objective one, whereby the effect of the action/s
in question are judged from the viewpoint of a reasonable
person of normal sensibilities.
In practice, this area of the law has often proved highly
contentious and it has led to many skirmishes between the
media and the authorities, including the courts.
For the sake of convenience, contentious speech of this kind
is usually referred to as ‘hate speech’.
4.21 Does international law have to say anything on this

subject?
Yes, notably Article 20(2) of the International Covenant on
Civil and Political Rights, which states that:
Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.
Also, incitement to genocide is a crime under the law which
established the International Criminal Court in 1998.4

Another international instrument, the Convention on the
Elimination of All Forms of racial Discrimination, obliges
all its signatories to “declare an offence punishable by law
all dissemination of ideas based on racial superiority or
hatred [and] incitement to racial discrimination.”5 This law
4. Rome Statute of the International Criminal Court, adopted 17 July 1998 (entered into force 1
July 2002), UN Doc. A/CONF.183/9 (1998), Article 25(3)(e).
5. Art. 4.
98
is controversial because, unlike most human rights laws, it
does not require national authorities to consider whether the
speech in question has the potential – indeed, a propensity
immediately – to result in violence.
It is worth noting also that the United Nations Special
Rapporteur on Freedom of Expression, along with two
other experts on the subject, has laid down the following
guidelines for consideration by governments in relation to
hate speech:
• no one should be penalised for statements which are
true;
• no one should be penalised for the dissemination of
hate speech unless it has been shown that they did so
with the intention of inciting discrimination, hostility
or violence;
• the right of journalists to decide how best to communicate
information and ideas to the public should be respected,
particularly when they are reporting on racism and
intolerance;
• no one should be subject to prior censorship; and
• any imposition of sanctions by courts should be in strict
conformity with the principle of proportionality.6
4.22 What are the main challenges in this area?

As in other areas, the law has to perform a delicate balancing
act, in this case between freedom of expression and the right
of people to be protected against unwarranted attacks against
their racial, religious or other beliefs. The task becomes
6. Joint Statement of the UN Special Rapporteur on Freedom of Opinion and Expression,

the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on
Freedom of Expression, 27 February 2001.
99
particularly difficult in deeply divided societies where
discourse on such matters often tends to be inflammatory.
4.23 How much of freedom would a journalist have to report

or comment on racially or religiously sensitive matters?
Much depends on the specifics of national law and on the
precedents established by the national courts. As a general
rule, the following guidelines should be useful:
(1) There should be considerable freedom given to
discussing racial, religious and other matters,
however sensitive they may be. This is because
open exchange of views is seen as essential for the
healthy development of free societies. In promoting
such exchange, the media has a vital role. The media
should therefore be allowed to promote a vigorous
debate on such matters.
(2) Simply because a piece of reportage or a comment is
offensive to someone of a particular racial or religious
affiliation should not be the ground for banning it.
By the nature of things, discussion of such matters
tends to provoke strong feelings among people, but
the importance of free speech cannot be allowed to
be overshadowed by fear of mere offence.
(3) There is often a risk that, if frank discussion of

racially, religiously or communally sensitive issues
is prevented as a matter of abundant caution, a
culture of self-censorship may develop which may,
in the long term, have a chilling effect on free speech.
Alternatively, suppression of such discussion may
lead to people taking the law into their own hands
and engaging in vigilante actions against certain
individuals and groups.
100
(4) Rational criticism of another person’s race, religion
or other attribute, made in good faith, even if it has
a tendency to wound the feelings of followers of a
religion, is not punishable, if the aim of the criticism
is to facilitate social reform by administering a shock
to the followers of that religion.7
(5) While construing hate speech statutes, the article
in question must be read as a whole for malicious
intention – in the absence of such intention, no
offence is committed; the court should also have
regard to the class of persons for whom the article is
primarily intended, and the state of feelings between
the relevant classes or communities.8
(6) Clearly, a strongly worded speech or article which
is intended for a learned audience has to be judged
differently from a similar speech or article intended
for a lay and easily excitable audience. Likewise, the
timing of the speech or article is also important: if it
is published at a time when racial, religious or other
tensions are boiling over, it will be less acceptable
than if is aired during periods of relative calm.
4.24 How are laws in this area usually worded?

There is, as noted earlier, wide variation in the manner in

which laws dealing with hate speech are drafted around
the world. International law on freedom of expression –
such as the Universal Declaration on Human Rights, and
the International Covenant on Civil and Political Rights –
require that these laws are tightly worded, so that they do
not leave too much discretion to those who apply them (the
7. Shiv Ram’s case (1955) (India).
8. Babulal Patel v. The State (1980) (India).
101
administrators, including the law enforcement authorities)
and those who interpret them (the judges). Some examples
of such laws are provided below:
‘Inciting hatred against any identifiable group where
such incitement is likely to lead to a breach of the peace’
or ‘wilfully promoting hatred against any identifiable
group by communicating statements other than in private
conversations’ (Criminal Code, Canada).9
‘Promoting, or attempting to promote … disharmony or
feelings of enmity, hatred or ill-will between different
religious, racial, language or regional groups or castes or
communities’ (Penal Code, India).
‘Implying that any class of persons cannot, by reason of
their being members of any religious, racial or … group
… bear true faith or allegiance to the Constitution of India
… or uphold the sovereignty and integrity of India’ (Penal
Code, India).
‘Insulting, or attempting to insult, the religion or religious
belief of any class of persons with deliberate intention to
outraging their feelings’ (Penal Code, India).
In most countries, the prosecution will have to prove that,
where a journalist is charged with an offence of this sort,
he committed the impugned act with intent or at least

recklessness.
4.25 What are the main pitfalls in this area for journalists?
Clearly, broadcasters are particularly at risk in relation to
hate speech. The risk is enhanced in ‘live’ broadcasts where
the room for mature reflection is limited. Sometimes, the use
rashly of a word or a phrase can make an acceptable piece
9. It is worth noting, incidentally, that, under this law, the truth of the statement in question is
allowed as a defence to any prosecution brought, under certain circumstances.
102
of reportage or comment unacceptable. For example, a few
years ago, an Australian radio talk host was reprimanded
for uttering the following words in the course of a live chat
with a caller:
“I’ll tell you what, Stewart, you are so typical of so many of
your race. You’re belligerent, you’re a bully, you’re a loud-
mouth, you’re ill-informed, you’re plain bloody stupid”10
The use here of the phrase “so typical of so many of your
race” was found to be objectionable. The rest of the comment
would have passed muster, even if it caused offence to the
caller in question and others listening to the programme.
As a rule, it is a good idea for journalists, when they
have to report or comment on highly inflammatory or
provocative hate speech, to ask themselves whether, all
things considered, the speech in question is likely to lead to
violence or public disorder. If so, they should find less risky
ways of conveying the same message (e.g. by paraphrasing
the incendiary words).
4.26 If the media is faced with a prosecution, or the threat of

legal action, what arguments can it use in its defence?
In addition to a plea that it had no intention to stir up hatred
or feelings of ill-will, the media can urge the following
principles which have been recognised as constituting good

practice in modern democracies:
(a) freedom of expression should be given a wide latitude,
even where discussions of sensitive matters are
involved;
(b) where a law allows for restrictions to be imposed on
free speech (e.g. on grounds of public order), it will
10. John Laws v. Australian Broadcasting Tribunal, 1987.
103
have to be construed strictly, so that the restrictions are
kept to the barest minimum;
(c) in particular, any restriction that is imposed must be
proportionate to the danger being averted and confined
to the shortest possible length of time;
(d) the law enforcement authorities must explore other
possibilities of achieving the objective being pursued
before imposing restrictions on the media – they should
also use the sanctions at their disposal very sparingly;
(e) where any restrictions or sanctions are applied, the
media should be provided with an opportunity of
appealing them to a higher authority – the actions of the
law-enforcement authorities should also, at all times,
be subject to the supervision of an independent and
impartial tribunal, e.g. a court of law.
4.27 How does the law deal with blasphemy?

Blasphemy is a major risk for the media in many countries.
In its essence, blasphemy consists of any speech, writing or
imagery which denigrates a religion or religious symbols or
which constitutes such an outrageous attack on a religion
that its adherents and supporters would be provoked into
breaching the peace.
Blasphemy laws have been criticised by free speech

campaigners as antiquated and ill-suited to free societies.
Even so, such laws continue to remain in force in a number
of countries, although recent years have seen a trend towards
their obsolescence and even abolition.11 One of the curious
11. The criminal offence of blasphemy was, for instance, formally abolished in the United
Kingdom by the Criminal Justice and Immigration Act 2008. Although this offence had been
on the statute book for several centuries, it was seldom used since around the mid-twentieth
century (the last person to be sent to prison for blasphemy was John William Gott who was
convicted in 1921).
104
aspects of the law of blasphemy was that it often applied only
to a particular religion: in the United Kingdom, for example,
the religion enjoying such protection was Christianity – an
attempt by Muslims to use blasphemy laws to punish the
author of The Satanic Verses, Salman Rushdie, for what
was seen as an outrageous attack on Islam, failed on this
ground.12
Some countries have had a tradition of not recognising
blasphemy within their legal systems. The United States
Supreme Court has, for example, expressed itself strongly
against the offence on the ground that “is not the business
of government … to suppress real or imagined attacks upon
a particular religious doctrine …”,13 given that country’s
traditional separation of church and state.
The European Court of Human Rights has, on the other
hand, endorsed the need for blasphemy laws. In one leading
case, where it upheld the seizure by Austrian authorities
of a motion picture which, among other things, portrayed
Jesus Christ as mentally deranged and the Virgin Mary as a
lascivious woman, the court said:
The respect for the religious feelings of believers …
can legitimately be thought to have been violated by
provocative portrayals of objects of religious veneration;

and such portrayals can be regarded as malicious violation
of the spirit of tolerance, which must also be a feature of
democratic society.14
12. Chaudhury v. UK, 5 March 1991, Application No. 17439/90 (European Commission of
Human Rights).
13. Joseph Burstyn, Inc v. Wilson, 343 U.S. 495, 504-05 (1952).
14. Otto-Preminger-Institut v. Austria, 20 September 1994, Application No. 13470/87, at para.
47.
105
The court was equally robust in defending the ban imposed
on another film, Visions of Ecstasy, produced in the United
Kingdom, which depicted erotic arousal in a nun beside
the crucified body of Christ. The ban was, said the court,
justified because of the film’s offensive mixing of sexual
and religious imagery.15
Many Asian countries have laws which forbid outraging the
religious feelings of individuals or groups, and these laws
have been invoked from time to time, occasionally under
controversial circumstances. In 2008, for instance, cases
were filed against an artist, M.F. Husain, in the Indian courts
after he had painted a number of pictures which depicted
certain Hindu gods in naked or scantily-clothed poses.
These cases have not reached trial as Mr Husain left the
country and has refused to co-operate with the authorities.
15. Wingrove v. United Kingdom, 25 November 1996, Application No. 17419/90 (European
Court of Human Rights).
106
5
COPYRIGHT
I. General
5.1 What is copyright?

Copyright is a form of legal protection offered to the
creators of literary, dramatic, musical and other works
which prevents such works from being exploited by others
without the creator’s permission.
Put simply, copyright gives authors, playwrights, composers
and others an exclusive right to deal with their creations in
any manner they think fit within the law. They can therefore
sell, distribute, show, perform or broadcast their work,
adapt it, or authorise its adaptation, translation into other
languages, etc. on terms that suit them best (as long as, of
course, they are able to secure agreement for such deals
from other parties).
Copyright falls within intellectual property law. It is an
example of intangible property (as distinguished from ‘real’
property, e.g. land, buildings, possessions). For a work to
enjoy copyright, it has to be recorded in some form.
Copyright exists for a limited period of time, after which the
protected work may be freely copied or otherwise exploited
by anyone.
COPYRIGHT
5.2 What is the rationale for copyright?

Copyright protection rests on the belief that, in a free
107
society, everyone should have the right to the fruits of their
skill, labour, creativity and time. Copyright is valued by all
societies which believe in rewarding individual effort and
enterprise.
There are both moral and economic arguments favouring
copyright.
5.3 How does copyright serve the public interest?

As well as protecting creators of literary, artistic, dramatic
and other works from being unfairly denied the fruits of
their skill and labour, copyright acts as an incentive for the
creation of new works and thus aids cultural progress in any
society. It also enhances national prestige by offering legal
protection to the cultural heritage of a country.
5.4 Can it not be argued that copyright is restrictive of

competition?
In theory, it can, given that copyright confers a monopoly
right on authors. However, the restrictive effect of copyright
is mitigated by two factors: (1) copyright only exists for a
fixed term (usually the lifetime of the author plus between
50-70 years); and (2) the law recognises certain situations
when someone’s copyright can be overridden in the public
interest (e.g. unauthorised copying from protected works
for the purposes of research).
5.5 How does copyright work in practice?

Stated briefly, in countries where copyright is recognised by
the law, every author is entitled to copyright protection for
COPYRIGHT
his works. Taking the example of someone who has written

a book, he can have the book published and sold on terms
108
that he is happy with, and he can also sell the translation,
adaptation and other rights to the book for monetary reward.
Once the book is published, he will be entitled to receive a
percentage of the sale proceeds of each copy sold for the
entire duration of the term of copyright (such a payment
being called a ‘royalty’). He will also be able to license his
work to, say, a playwright who wishes to make a play out of
the book. Here, again, he would receive a further payment
(known as a ‘licence fee’).
One of the salient aspects of the copyright system is that
it works across national boundaries as well as within
countries. Through a well-established treaty mechanism
(which is explained below), authors can enjoy the benefits
of copyright on a global scale.
By spreading the reward that creators of important works
expect equitably among the consumers of such works,
and by striking a fair balance between the expectations of
authors and the legitimate needs of society for access to
important works, copyright is seen to perform a valuable
function.
5.6 What exactly is protected by copyright?

The first thing to note is that copyright does not protect ideas,
but only expression of ideas. This means that, if X were to
provide the idea for a radio programme and Y followed up
the idea and made a radio programme based on it, Y will
not be in breach of X’s copyright. For this reason, it is not
uncommon to see many different motion pictures based on
a common theme, e.g. a historical event or a famous work
COPYRIGHT
of literature. Each such film enjoys copyright independently

of the others.
109
How the law differentiates between an idea and the
expression of it is discussed in greater detail below.
5.7 Are ‘facts’ protected by copyright?
No, all that is protected is the form in which facts are
presented. If, therefore, two journalists publish their
respective reports of a same factual situation, each of them
enjoys copyright in his report even if there are similarities
between the reports.
5.8 What about the reporting of news?
The law makes allowance for the reporting of news, and so
it would not be a violation of copyright when a journalist, as
part of his normal reportage duties, produces copy that may
contain material to which copyright attaches. However, if
one reporter copies the report of another reporter without
the latter’s permission, it would amount to infringement.
5.9 What are the kinds of work protected by copyright?
Copyright normally applies to the following works:
(a) literary, dramatic, musical or artistic works;
(b) sound recordings, films, broadcasts or cable
programmes;
(c) the typographical arrangement of published editions.
5.10 Can someone who merely puts together publicly available
material in a new work enjoy copyright in that work?
Yes, as long as the work (which is usually referred to as a
‘compilation’) is the result of some skill and effort on the
COPYRIGHT
part of the compiler.
110
5.11 Are there any pre-conditions for the enjoyment of
copyright?
Yes, the work in question must be an ‘original’ work. What
this means, first of all, is that some degree of skill or effort
must have gone into the making of the work. The standard
that is expected was formulated in a 1923 case as follows:
To secure copyright for the product it is necessary that
labour, skill and capital should be expended sufficiently
to impart to the product some quality or character which
the raw material did not possess and which differentiates
the product from the raw material.
Secondly, the work in question should not itself be a
copy of another work. For example, in relation to a cable
programme, there will be no copyright if it simply involves
the reception and immediate transmission of a broadcast.
5.12 What is meant by the term ‘author’ in relation to
copyright?
The term ‘author’ has specific meanings under the law
of copyright. This term is extremely important, not least
because the duration for which copyright subsists in a
work is sometime dependant on the life span of its author.
Generally speaking, the following is a good guide to the
way the law defines an ‘author’:
- In relation to a literary, dramatic, musical or artistic
work, it is the person who created the work;
- In relation to a photograph, it is normally the person who
operated the camera at the time it was taken (although
there may be occasions when the composition of the
COPYRIGHT
picture was done by one person and the actual pressing

of the button on the camera was done by another
111
person, e.g. his assistant, in which case the law would
treat the person responsible for the composition as the
‘author’);
- In relation to motion pictures and sound recordings, it is
usually the person who puts in place the arrangements
necessary for the making of the film or sound recording
(i.e. the producer, as he is often called) – in many cases,
this will be a commercial corporation;
- In relation to a computer-generated work, it is the
person who undertakes the arrangements necessary for
creating the work;
- In relation to broadcasts, it is the person who makes
the broadcast – this can be either (a) the person who
transmits the programme, or (b) the person who has
responsibility for the contents of the programme and
who makes the arrangements for its transmission jointly
with the person transmitting it.1
5.13 Are there any exceptions to the rules on authorship?

Yes. Where a person creates a work in the course of his
employment, it is his employer and not himself who would
be deemed to be the ‘author’ of the work for copyright
purposes. This exception does not, of course, apply to
‘independent contractors’, i.e. persons who undertake
work on a contract for services (rather than a contract of
service).
Where, for example, a staff reporter on a newspaper or TV
station writes a story that is published, it is not the reporter
1. Where the person transmitting the programme does his job merely mechanically without any
COPYRIGHT
practical or legal responsibility for the contents of the programme, he will not be treated as
the ‘author’. In relation to satellite broadcasting – where the broadcaster simply receives a
broadcast and re-transmits it immediately – the authorship rests with the person making the
original broadcast and not with the person re-transmitting it.
112
but the newspaper or TV station employing him that owns
copyright in the story. By contrast, where a newspaper
publishes an article by a freelance journalist, it is the
journalist who would own copyright in the article.
However, these rules can be overridden by contractual
arrangements.
5.14 At what point does copyright protection begin?

Usually, at the point at which the work is created in any
tangible form. So, for example, if it is a literary work, as
soon as the work is recorded in writing or in some other
form, it begins to attract copyright protection. The recording
can be in any language, style or script: the Pitman shorthand
system, for instance, has been held to be protected,2 as has a
catalogue of print type styles.3
5.15 Can a slogan or a catchword be copyrighted?

Generally speaking, no.
5.16 What about titles for films, books and other

publications?
Usually, such titles do not attract copyright protection. For
example, when the Twentieth Century Fox Corporation
made a film with the title “The Man Who Broke the Bank
at Monte Carlo”, which had been taken from a song that
carried the same words, the court held that there was no
infringement of copyright.4 According to the judges, the
theme of the film was different from that of the song and
COPYRIGHT
2. Pitman v. Hine (1884) 1 TLR 39.

3. Masson, Seeley & Co. Ltd. v. Embosotype Manufacturing Co. (1924) 41 RPC 160.
4. Francis, Day & Hunter Ltd. v. Twentieth Century Fox Corporation Ltd. [1940] AC 112.
113
the words were, as well as being obvious, too insubstantial
to constitute an infringement in that context.
Likewise, when the Exxon Corporation complained that
another company had used the word ‘Exxon’ in its name,
the court rejected the argument that there had been an
infringement.5 The word in question could not, said the
court, be called a literary work because it did not confer
“information, instruction or pleasure in the form of literary
enjoyment.” It is worth remembering, however, that in such
circumstances, those complaining may seek the help of
trade mark law which protects certain descriptors against
the offence of ‘passing off’.
5.17 What about cartoons?

Cartoons fall under ‘artistic’ works for the purposes of
copyright. It is worth noting that only the drawing/sketch
is protected, not the joke itself. If therefore two cartoonists
try to raise a laugh based on a common joke, they can
enjoy copyright in their respective cartoons as long as the
drawings are distinct and different from each other.6
5.18 What is the position of speeches made by a person which

are recorded and used by others?
This is a slightly difficult area of the law on which many
national statutes are silent. However, some guidance is
offered by the UK legislation under which words spoken
by a person – say in the course of an ex tempore speech
or a media interview – can be recorded and reproduced by
another person, e.g. a reporter, without fear of legal action
COPYRIGHT
5. Exxon Corp. v. Exxon Insurance Consultants International Ltd. [1982] Ch 119.

6. See, e.g. McCrum v. Eisner (1917) 117 I.T. 536.
114
for breach of copyright, provided that certain conditions are
satisfied, viz.
(i) the record made by, say, the reporter must be a direct
and true record of the words that have been spoken and
not something taken from a previous record;
(ii) the person speaking the words must not have objected to
the recording or reproduction of his words (sometimes,
the speaker may make it clear that only certain parts
of his speech can be published, in which case that
instruction must be obeyed);
(iii) where the words include material in respect of which
copyright already exists, the reporter must obtain a
licence from the owner of copyright therein before he
reproduces it;
(iv) any use to which the record (or recording) is put should
be only by, or with the authority of, the person who is
in lawful possession of it.
5.19 Assume that a reporter for a broadcasting organisation

records on tape a speech made by a politician. He intends
to broadcast the tape, but he has also made a transcript
of the recording. What rights, if any, does he have over
the recording and/or transcript?
If all that the reporter has done is stick a microphone in
front of the politician and record everything the politician
says, there is no question of the reporter enjoying any
copyright on the words uttered by the politician because no
skill or effort has gone into the making of the transcript as
COPYRIGHT
a literary work. However, the reporter will enjoy copyright

in the recording as a sound recording which will allow
115
him to prevent anyone else using the recording without his
permission.
5.20 What about copyright in musical works?

Generally, copyright in a musical work applies to the music
in the work, exclusive of any words or action that is sung
or performed with the music. In a song, therefore, there
are two copyrighted items: the music itself and the lyrics
(which qualifies as a ‘literary work’).
The music itself needs to be recorded in order to enjoy
copyright protection. This can be done in one of two ways:
(i) it is written out as a musical score; or (ii) it is performed
and recorded, say on a compact disc. Where a recording
takes place, the performer or record company acquires what
is called a ‘performing right’.
II. Term
5.21 What is meant by ‘term’ of copyright?

‘Term’ means the period of time for which a person is
legally allowed to enjoy copyright. Different countries
have different periods, though there is now a move towards
harmonisation in this area.
5.22 What is the typical term of copyright?

Typically, copyright exists for the lifetime of the author and
a fixed number of years after his death. This means that the
author would enjoy all profits from his work (e.g. royalties,
licence fees, etc.) from the time he creates the work until
COPYRIGHT
his death, after which his estate (i.e. heirs and successors)
continue enjoying the profits for a certain number of years.
116
Under the Berne Convention, the minimum period for
which copyright is expected to subsist is the lifetime of the
author plus fifty years.
It is worth noting that copyright law often lays down
different periods for different types of work.
A typical example is provided by the Indian Copyright Act
under which:
- literary, dramatic, artistic and musical works carry
copyright for the lifetime of the author plus sixty
years;7
- literary, dramatic, artistic and musical works whose
authorship is not known8 carry copyright for sixty
years from the date of their first publication;9
- photographs, motion pictures and sound recordings
carry copyright for sixty years from the date of their
first publication;10
- works whose first owner are a government, public
sector undertaking, or international organisation
carry copyright for sixty years from the date of their
first publication.11
The corresponding British legislation allows for copyright
7. S. 22. The period of 60 years is calculated from the beginning of the calendar year following
the year in which the author dies. Where the work is jointly authored by two or more persons,
the period of 60 years starts running from the time the death of the author who lives longer
or longest.
8. Such works are referred to as ‘anonymous’ or ‘pseudonymous’ works.
9. S. 23. If the authorship of any such work is disclosed before the end of the term, copyright
would subsist for the lifetime of the author plus 60 years following his death. For the purposes
of this law, a work is deemed to be ‘published’ if it is performed in public or if any records of
COPYRIGHT
the work are sold, or offered for sale, to the public.

10. Ss. 25, 26, 27.
11. Ss. 28, 28A, 29.
117
to subsist for the lifetime of the author and seventy years as
do some European laws.12
5.23 How is the term of copyright in a broadcast or cable

programme calculated?
It is usually calculated as subsisting for a fixed period of
time (say, fifty years) from the end of the year in which the
broadcast was first made or the cable programme was first
included in a cable programme service.
Repeated transmissions of the broadcast or cable programme
do not result in an extension of the term of copyright.
5.24 Can the term of copyright be varied?

National parliaments do have the power to legislate to
vary the term of copyright protection. In 2001 the Indian
Parliament used this power to grant an additional ten years
of protection to the works of that country’s leading author
and Nobel laureate, Rabindranath Tagore. However, if a
country is a signatory to the Berne Convention, the term of
copyright protection cannot be reduced below the lifetime
of the author plus fifty years.
III. Infringement
5.25 What is infringement of copyright?

When a person does anything which runs counter to the rights
of the copyright owner, he is said to infringe copyright. It
is therefore an invasion of the exclusive rights vested in the
owner of copyright.
COPYRIGHT
12. Copyright, Designs and Patents Act 1988 (see, e.g. s. 12). However, under British law, a
period of 50 years is retained for certain types of work, e.g. computer-generated works,
sound recordings.
118
5.26 What are the exclusive rights vested in a copyright
owner?
Most national laws recognise the following as exclusive
rights enjoyed by the owner of copyright in a protected
work:
- to copy the work;
- to sell, distribute or otherwise issue copies of the work
to the public;
- to exhibit, perform or play the work in public;
- to broadcast the work or include it in a cable programme
service; and
- to make an adaptation of the work and sell, distribute,
exhibit, perform, play or broadcast it or include it in a
cable programme service.
These acts are also, incidentally, referred to as ‘restricted’
acts, and the doing of any restricted act by another
person without the author’s consent would amount to an
infringement.
5.27 Does the violation of copyright have to apply to the

whole work for it to amount to infringement?
The law in most countries takes a commonsense view of
infringement. Therefore, it only requires that someone
invade a ‘substantial’ part of another person’s copyright to
become liable for infringement.
5.28 How does the law define ‘substantial’ infringement?

COPYRIGHT
There is no fixed formula for determining substantial

infringement. The courts do not go merely by a mechanical
119
test of quantity, although quantity will be a relevant factor
in the determination process. The central focus will be on
whether the infringed portion represented a pivotal or key
part of the original work or whether it was merely incidental
to that work.
In practice, commercial considerations will also weigh
significantly in the assessment process. As one judge pithily
observed, “what is worth copying prima facie is worth
protecting.”13
When, therefore, a publication used certain lines from a
popular song as the opening paragraph of a story, the courts
held that this did not constitute infringement. One of the
considerations that weighed with the judges was that the
purpose for which the publication had used the lines was
totally different from the purpose behind the song. The court
noted as well that copyright law should not be allowed to be
used as a means of oppression.14
5.29 Can the publication of unauthorised still photograph

from a motion picture amount to infringement?
Yes. This principle also applies to the unauthorised copying
and use of portions of a broadcast.
5.30 What are the tests for infringement?

The courts have regard to a number of factors in deciding
whether infringement has taken place. Although they are by
no means exhaustive, the following points are relevant:
- Where two works are similar, or even identical, but
COPYRIGHT
one has not been derived from the other, there is no

13. University of London Press Ltd. v. University Tutorial Press Ltd. [1916] 2 Ch. 601.
14. Chappell & Co. Ltd. v. D.C. Thompson & Co. Ltd. (1928-35) MCC 467.
120
infringement. This can happen, for example, when
two artists paint pictures of a landscape from the same
viewpoint. In this case, there will be very little difference
between the two pictures. Even so, each picture enjoys
copyright separately and distinctly from the other.
- It is not necessary for the person who alleges
infringement of his copyright to prove that the infringer
acted deliberately or with bad intention.15 Even
unconscious copying will result in liability (although
the amount of damages awarded will, in such cases, be
comparatively smaller).
5.31 What is ‘secondary’ infringement?

This involves actions that aid or support infringement,
such as renting a theatre where a play which has infringed
copyright is allowed to be performed, or importing or
keeping for sale pirated copies of books, tapes or compact
discs. Generally speaking, any legal action for secondary
infringement would require the plaintiffs or prosecutors to
show knowledge on the part of those being targeted.
IV. Defences
5.32 What are the main defences to a charge of copyright

infringement?
Most national legislation recognised the following as
defences to a charge of infringement:
- fair dealing
COPYRIGHT
- the work being in ‘the public domain’

15. See, e.g. Byrne v. Statist Co. [1914] 1 K.B. 622.
121
5.33 What is ‘fair dealing’?
The law recognises as legitimate the use of reasonable
extracts from copyrighted material without the owner’s
permission, and this is known as ‘fair dealing’. mThe
purposes for which such use may be made are:
(a) research or private study;
(b) criticism or review;
(c) reporting current events.
Where anyone uses copyrighted material for any of the
abovementioned purposes, there is no infringement.
5.34 What are the conditions attached to ‘fair dealing’?

Firstly, that the quantity of extracts used must be ‘reasonable’.
Secondly, that due acknowledgement is made of the source
of the extracts. Thirdly, that the extracts are only used for
purposes allowed by the law.
5.35 What is considered ‘reasonable’ under ‘fair dealing’?

There is no mechanical formula to determine reasonableness.
Much would depend on the facts of each case. The following
examples will illustrate the approach taken by the courts in
this area.
In 1991 British Satellite Broadcasting (BSB), a satellite
channel, used brief excerpts of World Cup coverage from
the BBC which had exclusive rights to the matches. The
excerpts lasted between 14 and 37 seconds and were
transmitted four times in BSB’s sports news bulletins with
COPYRIGHT
due acknowledgement to the BBC as the source of the clips.

The BBC accused BSB of infringing its copyright, arguing
122
among other things that the excerpts used were from the
most interesting parts of the matches. BSB defended the
action by pleading fair dealing. The court accepted that
defence, noting that there had been no disproportionate use
of copyrighted material.16
Likewise, when a prominent terrestrial TV station used
excerpts from a film entitled A Clockwork Orange in one
of its review programmes, and the excerpts amounted to 8
per cent of the film and 40 per cent of the programme, the
court ruled that the defence of fair dealing would succeed.
The copyright owners argued, among other things, that the
excerpts used were an unrepresentative selection and that
the TV station had an ulterior motive in using the clips, but
the court rejected those arguments, holding that as long as
the purpose to which the excerpts were put was genuine
criticism or review, the defence was valid.17
5.36 Is the defence of fair dealing available in respect of

unpublished works?
Generally speaking, no, though the position may vary
between countries. Under British law, for example, it is
now only available to works that have been “made available
to the public”. As a result, when a prominent newspaper
published extracts from the private diaries written by
Prince Charles, the heir to the British throne, which made
controversial observations about Chinese politicians during
the handover of Hong Kong to China, and the prince sued
them for infringement of copyright, their defence of fair
dealing failed. The court was shown that copies of the diaries
had been circulated to only between 20 and 70 close friends
of the prince, and this, held the judges, did not amount to
COPYRIGHT
16. BBC v. British Satellite Broadcasting Ltd. [1992] 1 Ch. 141.

17. Time Warner Entertainments Co. v. Channel Four Television [1994] EMLR 1.
123
being made available to the public.18
5.37 What is meant by a work being in “the public

domain”?
When the term of copyright in a work expires, the work is
deemed to be in the public domain. This means, in practice,
that the work can from then on be copied, translated,
adapted or dealt with in any way by anyone without
seeking or obtaining the permission of the author or his
representatives.
Works in the public domain are also often referred to as
works “out of copyright”.
5.38 Is there a defence of ‘public interest’ possible in cases of

copyright infringement?
Generally speaking, no. However, judges have sometimes
recognised such a defence in limited circumstances. For
example, where a media organisation published excerpts
from a confidential document that had been ‘leaked’ to it, it
may be able to argue that, although there was an infringement
of copyright, the infringement should be excused on the
grounds that the publication of the document was in the
public interest.19
5.39 Can copyright be denied to a work on grounds of

immorality or indecency?
Many legal systems restrict the enjoyment of copyright
for public policy reasons. One of the grounds on which a
copyright owner may be prohibited from asserting his rights
COPYRIGHT
18. HRH Prince of Wales v. Associated Newspapers Ltd. [2006] EWHC 522; [2006] EWCA Civ
1776.
19. See, e.g. Beloff v. Pressdram [1973] 1 All E.R. 241; Express Newspapers v. News Ltd. [1990]
3 All E.R. 376.
124
is immorality or behaviour that is contrary to accepted
standards of decency. Hence, the author of a book which
is pornographic in nature may not be able to prevent others
from plagiarising the work.20 Likewise, it was held by the
UK’s House of Lords in 1990 that Peter Wright, the author
of Spycatcher (the book written in breach of an obligation of
confidentiality to the British Government) would not be able
to claim the protection of copyright law to sue anyone who
might copy and sell the book without his permission.21
5.40 Can protection be removed from a work which enjoys

copyright?
Some national laws do allow for copyright protection to be
removed under certain circumstances. For example, under
the UK’s Copyright, Designs and Patents Act 1988, the
British Government can make an order removing copyright
protection for specified works created by foreign authors if
it appears to the Government that the law of the country to
which the author belongs does not give adequate protection
to British works.22
However, it is worth noting that not all countries may
recognise immorality as a ground for denying copyright
protection. Also, standards of morality keep changing from
time to time, so precedents in this area must be treated with
care.
COPYRIGHT
20. See, e.g. Glyn v. Weston Feature Film Co. [1916] 1 Ch. 261.
21 Att-Gen. v. Guardian Newpapers Ltd. (No. 2) [1990] 1 AC 109.
22. S. 160.
125
V. Transfer of copyright
5.41 Can copyright be transferred from one person to
another?
Yes. The transfer can be limited or unlimited (both in terms
of time and territorial reach), conditional or unconditional.
In most countries, any transfer of copyright requires it to
be in writing and to be signed by the person making the
transfer.
5.42 What is a ‘licence’ in relation to copyright?

In simple terms, a licence is permission granted by the owner
of copyright to another person to do something which he,
the copyright owner, alone can do in law. The person or
company issuing the licence is called the ‘licensor’ and the
person or company to whom the licence is issued is called
the ‘licencee’.
Although no special formalities are necessary for the grant
of a licence, most licences are given in writing, with all
the terms clearly stated. This makes it easier to resolve
any disputes that may arise later. However, a licence may
sometimes be implied. For example, when a person sends
a letter to the editor of a newspaper for publication in the
newspaper, it is implied that the person intends to grant the
editor a licence to publish (there is also, incidentally, an
implied licence on the part of the writer to let the editor
edit the letter for reasons of space or linguistic accuracy or
elegance).
5.43 What is the position concerning media releases?

COPYRIGHT
Often a person or a company sends out a press release or, as

is increasingly becoming common now-a-days, messages
126
in other media forms (e.g. a compact disc or video), fully
intending that it will be published, i.e. widely disseminated,
by the entity to which it is sent. Here, there is an implied
licence on the part of the copyright owner. However, some
media releases come with an embargo, i.e. a clear statement
that the information contained in it shall not be released
before a certain date. If the media organisation breaches this
embargo and publishes the information ahead of that date, it
will be liable for breach of copyright, because the implied
licence does not begin to take effect until that date.
5.44 Can a licencee sue a third party for breach of

copyright?
Generally speaking, only if he has been specifically
authorised by the owner of copyright. Where, therefore, a
person who has bought the rights to publish and sell copies
of a book, discovers that another person (who holds no such
licence) also – unauthorisedly – sells copies of the book,
all he can do is ask the owner of copyright who can sue the
latter. He is, however, entitled to recover any loss that he
suffers as a result of the infringement from the owner of
copyright, as long as he has an exclusive licence to sell the
book.
5.45 What precautions should broadcasters and other media

organisations take in relation to licences?
They must ensure that they have obtained the necessary
licences from everyone who owns copyright in any material
that is planned to be used. If the work in question has
multiple owners (e.g. where a TV drama is written by three
COPYRIGHT
persons), consent must be obtained from each of them.

Broadcasters must also make sure that they obtain licences
for every intended use of the copyrighted material.
127
VI. International Arrangements
5.46 Does the law of copyright have an international

dimension?
Yes and no. Generally speaking, copyright is governed by
domestic law, with each country having its own copyright
regime, including enforcement mechanisms. However,
since many copyrighted works are exploited internationally,
i.e. across national boundaries, there is a need to ensure that
sufficient protection is afforded to them even outside the
country from which they originate. This is done through a
treaty-based system which rely on reciprocity and mutual
recognition.
5.47 What are the main international treaties on copyright?

There are essentially three major treaties:
(1) The Berne Convention;
(2) The Universal Copyright Convention; and
(3) The Rome Convention.
5.48 What are the main features of the Berne Convention?

Known formally as ‘The Berne Convention for the Protection
of Literary and Artistic Works’, this convention was
concluded in 1886 in Berne, Switzerland. All signatories to
it are required to recognise and give effect to the copyright
of works from any member-state to the same extent as they
would to works emanating from within their own borders.
This is known as the ‘system of equal treatment’.
COPYRIGHT
In addition, members of the Berne Union are also required

to provide a certain minimum level of protection through
standards in national law. For example, every literary or
128
artistic work (except photographs) shall enjoy copyright
protection for the lifetime of its author and at least 50 years
after his death.23
The Berne Convention has been revised several times, e.g.
1896 (in Paris), 1908 (in Berlin), 1928 (in Rome), 1948 (in
Brussels) and 1967 (in Stockholm)
5.49 What are the main features of the Universal Copyright

Convention?
The Universal Copyright Convention grew out of a 1952
initiative of the United Nations Educational, Scientific
and Cultural Organisation (UNESCO) aimed to cater to
a number of developing countries and to the then Soviet
Union which disagreed with the concept of strong copyright
protection embodied in the Berne Convention. In due course,
many of the Berne Convention states also joined the UCC,
although it was made clear that, if any Berne Convention
state subsequently renounced that Convention, it would not
continue to enjoy protection afforded by the UCC.
In practice, the UCC began losing its significance, especially
since the end of the Cold War and the advent of the Agreement
on Trade Related Aspects of Intellectual Property Rights
(TRIPS) under the World Trade Organisation.
5.50 What are the main features of the Rome Convention?

The Rome Convention – formally known as the International
Convention on the Protection of Performers, Phonogram
Producers and Broadcasting Organisations – came into
existence in 1961 and is administered by the World
COPYRIGHT
Intellectual Property Organisation, an inter-governmental

23. It is, of course, possible for a country to offer protection for a longer period if it so chooses.
129
organisation headquartered in Geneva, Switzerland. It
extended copyright protection to the then new technologies
of sound and image reproduction (such as tape-recorders and
gramophone records). Under this convention, performers –
including actors, singers, musicians, dancers and others who
perform literary or artistic works – are allowed to control the
broadcasting and dissemination to the public of their live
performances, the fixation (i.e. recording on to a tangible
medium) of such performances, and the reproduction of
recordings, without their consent.
The Rome Convention also allows producers of phonograms
to prohibit the reproduction of their phonograms, and
broadcasting organisations to prohibit the rebroadcasting
of their broadcasts or the unauthorised recording of such
broadcasts.
The convention does, however, recognise some exceptions
to the rights of performers, producers and broadcasters in
their works. These include:
- private use;
- use solely for the purpose of teaching or scientific
research;
- use of short excerpts for the purpose of reporting current
affairs;
- ephemeral fixation by a broadcasting organisation;
- any other use permitted by national law on copyright.
5.51 Are there any other international treaties relevant to the

media in relation to copyright?
COPYRIGHT
Yes, the Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPs), in particular, which is part of
130
the World Trade Organisation (WTO) legal regime. This
agreement, concluded in 1994, lays down minimum
standards of protection and enforcement for various
intellectual property rights, including copyright, for those
countries which are part of the WTO system.
5.52 What are the salient features of TRIPs?

The first thing to note about TRIPs is that the consequences
of non-compliance with its provisions are far more
serious than under, say, the Rome Convention. Whereas
disputes under the Rome Convention are referrable to the
International Court of Justice at The Hague (a mechanism
which has been seen to be quite weak), any breach of TRIPs
are dealt with by the WTO which has far stronger sanctions
at its disposal. Among other things, if the relevant WTO
panel hearing a TRIPs complaint enters an adverse finding
against a country, that country can be subjected to retaliatory
trade measures by other members of WTO.
In substantive terms, the most important change brought
about by TRIPs is that it takes a more serious view of
infringements than the regime established under the World
Intellectual Property Organisation (WIPO). All members
of the WTO are required to ensure that the provisions of
the Berne Convention (except the moral rights listed under
Article 6 bis) are complied with scrupulously. This means,
among other things, that where a broadcaster uses material
from other countries in its broadcasts, it will have to comply
strictly with requirements for royalty payments. (In practice,
this may not make any difference to those countries which
are already signatories to the Berne Convention, but it will
COPYRIGHT
impose new obligations on those WTO member countries

which have not yet signed up to the Berne Convention.)
131
5.53 Are there any perceived gaps in copyright protection
under international law?
Yes. One which has been highlighted in recent years
concerns the lack of protection for broadcast signals, viz.
electronic signals carrying radio or television programmes
before they are received by the public. This makes it
difficult for broadcasting organisations to stop or prevent
appropriation of such signals by those who are not entitled
to use them, causing significant financial losses. Where,
for example, a broadcaster has paid a huge sum of money
to buy the rights to telecast a football match, and another
broadcaster dishonestly ‘steals’ the signals carrying the
programme (with a view to telecasting it commercially), the
first broadcaster is usually left with no legal remedy against
the second. Broadcasting organisations have, therefore,
been campaigning for a new treaty which would protect
broadcast signals. Although such a treaty has been discussed
at the international level, it has not yet been brought into
existence.24
VII. Miscellaneous
5.54 What is meant by ‘collective enforcement’ of

copyright?
Since it is very difficult for individual copyright owners to
manage the enforcement of their rights and to track down
infringements, many of the creative industries – esp. the
music industry – have established a system of collective
enforcement. Under this system, a ‘collecting society’ – e.g.
the Performing Rights Society in the UK – represents the
interests of all its members and to issue licences, etc. to
third parties who may wish to use copyrighted material.
COPYRIGHT
24. For further information on this subject, see the website of the Asian Broadcasting Union,
www.abu.org.my.
132
6
NATIONAL SECURITY AND PUBLIC ORDER
6.1 How does national security affect the media?

National security considerations may affect the media in
a number of ways. The most obvious is when restrictions
are imposed on what the media can report or comment on
concerning matters which may affect the security of the
state. Such restrictions are invariably tightened during
periods of national emergency, e.g. war or threat of external
aggression by a foreign power. National security may
also affect journalists in terms of their movement within a
country. Certain parts of the country, and certain installations,
facilities, offices, etc. are usually kept out of bounds on the
grounds that access to such places may compromise the
security of the state. Likewise, the media may be denied
access to certain materials, e.g. official documents, for fear
that disclosure of such documents may prove beneficial to
a country’s enemies. NATIONAL SECURITY AND PUBLIC ORDER
6.2 How does media law deal with national security?

Generally speaking, the legal system of every country
allows the government to impose restrictions on freedom
of expression in situations where national security may be
at risk. The extent of the restrictions would depend on a
number of factors, including the tightness with which terms
like ‘national security’ or ‘security of the state’ are defined,
the threshold for activation of the restrictions, the exceptions
allowed for public interest disclosures, the provisions made
133
for appeals against executive orders to an independent
authority, and, most important of all, the sagacity with which
such laws are implemented. Some laws are ‘permanent’
laws, which operate even during normal times (e.g. an
Official Secrets Act), while others are exceptional, and
come into force only during pre-determined situations of
emergency (e.g. censorship orders).
6.3 Is there any acceptable definition of ‘national

security’?
Not really. This term is defined in innumerable ways by
different authorities. Some legal systems provide a very
broad definition (e.g. any conduct which is “inimical to
the well-being of the nation”) whereas others are more
nuanced. Ideally, the definition should be tightly drawn
so that the scope for abuse of this power is reduced as far
as possible. International law offers some guidance on the
subject: for example, one document adopted by the United
Nations Sub-Commission on Prevention of Discrimination
and Protection of Minorities notes that:
National security may be invoked to justify measures
limiting certain rights only when they are taken to protect
the existence of the nation or its territorial integrity or
political independence against force or threat of force.

National security cannot be invoked as a reason for
imposing limitations to prevent merely local or relatively
isolated threats to law and order.1
A genuine threat to the life of the nation (and not, for
example to the stability of a government) is therefore the
1. Siracusa Principles on the Limitation and Derogation of Provisions in the International
Covenant on Civil and Political Rights, Annex to UN Doc E/CN.4/1984/4 (1984).
134
threshold at which curbs on the media can be justified.
6.4 What are the legal standards in this area?

A number of cases involving national security have arisen
over the years, and this has led to a significant body of
case law being created at both domestic and international
level. In terms of best practice, it may be worthwhile to
ask two questions before, say, a journalist is condemned for
breaching, or threatening to breach, national security. The
first is: what is the intent behind the speech or writing that
is being questioned – is it to engage in rational, if heated,
debate with a view to bringing about reform through peaceful
means, or is it to incite people into violent action against
the state? As the Supreme Court of the United States has
noted in a landmark case, even advocacy of the use of force
can only be banned or punished “where such advocacy is
directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.”2
The second question is: is there a real and immediate
likelihood of violence arising from the speech or writing
being questioned? Only if such a connection can be
establishment will any restrictions on free speech be
justified.
6.5 What approach have international courts taken in

relation to restrictions on the media for national security
reasons?
Generally speaking, international courts and international
human rights bodies have tended to apply the national
security exception to freedom of expression narrowly. They
2. Brandenburg v. Ohio, 395 U.S. 444 at 447 (1969).
135
have held that the threshold for imposing restrictions on
free speech must be quite high, and that where other means
of furthering the interests of national security are available,
the government should resort to those means first.
In the famous Spycatcher case, for example, the European
Court of Human Rights refused to accept a plea by the
British government that an injunction which had initially
been granted against the sale of a book which had been
written in breach of the country’s secrecy laws needed to be
continued even after the information sought to be shielded
from public disclosure had become public through other
sources.3
However, a different approach was taken when a ‘media
ban’4 which had been imposed on alleged terrorists and
their supporters in Northern Ireland, was challenged by a
group of journalists. Here, the European Commission on
Human Rights (a body which acted as a first port of call
under the Council of Europe arrangements) held that, given
the impact of the electronic media and given the possibility
of coded messages being relayed by terrorist suspects, the
impugned measures were a justifiable restriction on freedom
of expression.5
6.6 What is the offence of ‘sedition’ and how relevant is it to

the media?
Sedition is connected with the violent overthrow of a duly
constituted government. A typical definition of sedition is
3. The Observer and Guardian v. United Kingdom, Judgment of 26 Nov. 1991, Series A no.
216, para. 69.
4. Under the terms of the ban, although the subjects of the ban could be interviewed on radio
or television, their voices could not be broadcast.
5. Purcell v. Ireland, Appln. No. 15404/89, Admissibility Decision of 16 April 1991.
136
to be found in the Indian Penal Code, which describes it as
an:
act of bringing or attempting to bring into hatred or
contempt the government established by law, or the
excitement or attempt to excite disaffection towards
the government by words, signs, or other visible
representation.6
As can be seen, the offence also encompasses the use of
words, signs or other visible representation, which means
that in appropriate – but rare – cases it can affect the
media. Generally speaking, the media would be caught by
a provision – usually accompanying the main offence –
which criminalises the dissemination of seditious matter.
However, the law usually provides that mere criticism,
however strong, of a government cannot invite a charge of
sedition. Indeed, as the relevant provision in the Indian Penal
Code goes on to say, “comments expressing disapproval
of Governmental measures with a view to obtaining their
alteration by lawful means would not amount to sedition.”7
What is required is a clear intent to subvert the government
by violent means.
The threshold that requires to be crossed seditious acts to
become actionable is quite high, as a leading case from India

illustrates. When a journalist, Brahma Chellaney, published
a news report alleging that a large number of innocent Sikh
pilgrims had been shot in cold blood by the Indian army after
the army had carried out a violent anti-insurgency operation
in the Golden Temple at Amritsar, he was charged with
sedition, presumably on the grounds that his report might
6. S. 124A.
7. Ibid.
137
incite the public to overthrow the government. The case
provoked strong criticism from fellow media practitioners,
lawyers and civil liberties, and was withdrawn before it got
to a trial. It is unlikely that any court would have entered a
finding of sedition in the circumstances of the case.
That point is underlined by a judgment of the Supreme
Court of Canada which, speaking through Justice Kellock,
formulated the requirement for a successful prosecution
thus:
It cannot be that words which, for example, are intended
to create ill-will even to the extent of violence between
any two of the innumerable groups into which society is
divided, can, without more, be seditious. In my opinion to
render the intention seditious, there must be an intention
to incite to violence or resistance or defiance for the
purpose of disturbing constituted authority. I do not think
there is any basis in the authorities for defining the crime
on any lower plane.8
6.7 What about ‘causing disaffection’ among the police or

armed forces of the state?
Many legal systems make it an offence for anyone to say
or do anything which has the effect of causing disaffection
among the law enforcement authorities. In such situations,

the media need to be careful that they do not aid or abet
this offence by carrying articles that may amount to causing
disaffection.
Merely reporting, as an item of news or current affairs, that
someone had, for example, asked soldiers or policemen to
desist from carrying out their duties in certain circumstances
8. Boucher v. the King [1951] 2 DLR 369 at 389.
138
will not amount to aiding and abetting the causing of
disaffection.
6.8 How do national courts deal with national security

matters?
The record in this area is quite mixed. In many countries,
the courts are cautious and uphold orders which rely on
the executive’s assessment of threats to national security.
However, in other countries, judges have queried such
assessment and nullified restrictions on free speech.
For example, the Supreme Court of Israel in 1985 struck
down an order from the country’s Broadcasting Authority
which required the media to desist from interviewing
“public personalities identified with those who see the
Palestine Liberation Organisation as the exclusive or
legitimate representative” of the Palestinian people. This
order, said the court, was too vague and therefore an
unjustified interference with the media’s right to freedom
of expression.9
Likewise, the Constitutional Court of South Korea held the
phrase “military secrets” in a law which made it an offence
to collect or disclose such secrets an offence. In the opinion
of the court:
The definition of military secrets is ambiguous and

misleading enough to restrict the freedom of information
and expression. [Accordingly,] there needs to be a more
exact and detailed specification. Everything related to
military affairs cannot be defined as a military secret.10
9. Zikhrony v. Broadcasting Authority, HC 37 (1) PD 757
10. “Military Secrets Protection Act Lacks Legitimacy on Freedom of Information Grounds”,
Korea Times, 26 Feb. 1992.
139
6.9 When would words advocating a criminal act or the use
of force be penalized?
The standard here differs from country to country. In some
countries the courts take a strict and literal view of legal
provisions which make advocacy of criminal or violent acts
an offence. In others, such laws are made subject to certain
conditions.
A landmark case from the United States will illustrate the
latter point. The US Supreme Court, in Brandenburg v. Ohio,
ruled that advocacy of violence will only become punishable
if: (1) the advocacy is “directed to inciting or producing
imminent lawless action”; and (2) the advocacy is also
“likely to incite or produce such action.”11 This formulation
is often referred to as the ‘clear and present danger’ test,
and it has been used in other countries as well.
6.10 How does the law deal with words or actions that may
have the tendency to provoke a breach of the peace
or provoke feelings of hatred or disharmony between
different racial, religious or other groups?
In a number of countries – particularly countries that are
deeply divided on racial, religious or other lines – the law
makes it an offence to promote or attempt to promote feelings
of hatred or disharmony between different population

groups. The intention behind such laws is to prevent public
disorder, but courts have a difficult job determining the
threshold at which an act would become punishable.
Generally speaking, good practice in this area requires
judges to give freedom of expression the utmost scope
11. 395 US 444 (1969).
140
and to only penalise acts which have a clear propensity
to provoke a breach of the peace, applying the ‘clear and
present danger’ test. This is illustrated in an important
case which was decided by the Supreme Court of India in
1989. Here, a motion picture produced for public exhibition
strongly criticised the government’s policy of affirmative
action for certain traditionally disadvantaged groups. Irked
by this criticism, some persons threatened violence against
cinemas which were scheduled to show the film. The Board
of Censors, on hearing about these threats, ordered a ban on
the film. The ban was challenged by the film’s producers on
the grounds that it violated their freedom of expression, and
the Supreme Court held that there was no justification for
the ban. The judges explained the approach that needs to be
adopted in such situations in the following words:
There does indeed have to be a compromise between the
interest of freedom of expression and social interests.
But we cannot simply balance the two interests as if
they are of equal weight. Our commitment to freedom
of expression demands that it cannot be suppressed
unless the situations created by allowing the freedom are
pressing and the community interest is endangered. The
anticipated danger should not be remote, conjectural or
far-fetched. It should have a proximate and direct nexus

with the expression. The expression of thought should
be intrinsically dangerous to the public interests. In other
words, the expression should be inseparably locked up
with the action contemplated like the equivalent of a
`spark in a powder keg’.12
12. Rangarajan v. Jagjivan Ram and Ors.; Union of India and Ors v. Jagjivan Ram 1989 (2) SCR
204 at 226.
141
6.11 What about inciting disaffection against the
government?
This is another legal risk that the media has to face in some
countries. It is analogous to the offence of sedition, though
there are some differences. In most liberal democracies, the
offence of “causing disaffection against the government” is
obsolete and no prosecutions have been brought under this
head for decades.
Where a charge of causing disaffection is made, the
prosecution normally needs to meet a high standard of
proof that the words or actions in question was likely to
lead to imminent violence or serious public disorder. Mere
criticism of the government, however robust in tone or
effect, cannot amount to causing disaffection, as a Pakistani
case demonstrates. In this case, heard by the Peshawar
High Court, a man was sought to be punished for calling
the government “a government of thieves”. The court ruled
that this could not, by any reasonable standard, constitute
an offence of causing disaffection, given that everyone had
a constitutional right to criticise the government as part of
his right to freedom of expression.13
The Supreme Court of Sri Lanka has also affirmed the
importance of dissent in open societies. Holding that “[t]
he right to … criticise Governments and political parties,

policies and programmes is fundamental to the democratic
way of life,” the court declared in a 1993 judgment that:
[T]he expression of views which may be unpopular,
obnoxious, distasteful or wrong, is nevertheless within the
ambit of freedom of speech and expression provided of
13. Hussain Bakhsh Kausar v. The State, PLD 1958 (WP) Peshawar 15.
142
course there is no advocacy of, or incitement to, violence
or other illegal conduct ... Stifling the peaceful expression
of legitimate dissent today can only result, inexorably, in
the catastrophic explosion of violence some other day.14
14. Amaratunga v. Sirimal & Ors., S.C. Appln. No. 468/92, decided on 6 March 1993, at pp.
5-6.
143
7
OBSCENITY AND DECENCY
7.1 What are the legal risks involved in the media publishing
material that may be deemed ‘obscene’?
Obscenity is a ground on which the laws of many countries
restrict freedom of expression. This is done for public
policy reasons, usually to protect certain vulnerable groups
in society, such as children. Censorship of obscene matter
is also justified on grounds of decency. If, therefore, a
journalist publishes something that is deemed obscene, he
or she runs the risk of being penalised through the criminal
law.
7.2 What is obscene for the purposes of the law?

Obscenity is a very difficult concept to define. Typical legal
definitions refer to “indecency”, “lewdness”, “something
that is morally degrading or which appeals to prurient
interest”, etc. Material that depicts or describes, in a
patently offensive way, sexual conduct is usually treated
as ‘obscene’, though the standards by which this is judged
vary significantly from country to country.
It needs to be noted that, in modern times, the concept of
‘obscenity’ is not synonymous with sexual explicitness,

as might have been the case in the days gone by. Many
sexually explicit images or descriptions are now accepted as
permissible within the public domain (although restrictions
may be placed on access to such material by children).
144
7.3 What are the tests applied by the courts to judge whether
something is obscene?
The courts adopt a number of tests, including the
following:
• is the predominant theme or purpose of the material in
question, when viewed as a whole, intended to appeal
to the prurient interest of the audience that is likely to
come into contact with it?
• does the material in question patently offensive to an
average person of reasonable sensibilities through its
depiction of sex or related matters?
In arriving at its decision, the court will have regard to
contemporary standards of morality and decency. It will
also take into account the overall impact of the material,
not just a few isolated images or passages which may be
explicit or even shocking.
7.4 Does the legal definition of obscenity depend on who

accesses such material?
Only up to a point. A test used widely in bygone years did
indeed place a lot of reliance on the projected audience. As
the judge who propounded that test put it in 1868, the court
must consider:
whether the tendency of the matter charged as obscenity
is to deprave and corrupt those whose minds are open to
such immoral influences, and into whose hands such a

publication might fall.1
But that standard has been qualified in many respects
1. R. v. Hicklin (1868) L.R. 3 Q.B. 360.
145
over the years. Among other things, there is now a further
requirement that, even within this target group, there should
be a significant number of people who may be corrupted by
the material in question. In one case, it was held that there is
possibility that, sometimes an image or description may be
so offensive or indecent that, far from corrupting a reader
or a viewer, it may actually repel him, in which case the
material in question cannot be classified as obscene.2
7.5 Does the law provide for any exceptions to the rule on
obscenity?
Yes. Where an item is alleged to be obscene, the court will
ask whether the item has any literary, artistic or scientific
merit which would make its circulation within society
necessary. If so, the item will not be proscribed.
7.6 What are the international law standards on obscenity?

International law allows for freedom of expression to be
restricted on grounds of decency and morality, which means
that any material that exceeds the bounds of acceptable
explicitness may be banned, having regard to cultural and
other attitudes prevailing in particular societies. However,
international courts have, by and large, tended to take a
fairly liberal view of what is obscene. They have accepted
that it is extremely difficult, if not impossible, to find a
common standard that is applicable across countries. As the
European Court of Human Rights noted in a famous case
emanating from the United Kingdom:

[I]t is not possible to find in the domestic law of the various
Contracting States a uniform European conception of
2. R v. Calder and Boyars Ltd. [1968] 3 All E.R. 644.
146
morals. The view taken by their respective laws of the
requirements of morals varies from time to time and from
place to place, especially in our era which is characterised
by a rapid and far-reaching evolution of opinions on the
subject.3
However, the lack of consensus on this subject does not
mean that an international court will tolerate an unbalanced
approach on the part of a national government so that even
mildly offensive material is sought to be proscribed.
7.7 Is it unlawful to simply possess obscene material without

any intention to distribute or sell it?
In many countries, mere possession of obscene material is
not unlawful. Usually, possession has to be coupled with an
intention to distribute, sell, let on hire or lend such material.
Some laws also make it an offence to possess, own or control
an obscene article “for publication for gain”.4
7.8 What are the defences open to someone charged with

publishing or distributing obscene material?
They can argue that the material in question was a serious
work of art, literature, learning or science. This is known as
the defence of “public good”. The burden of proving artistic,
literary, scientific or other merit will fall on the defendant.
Secondly, they can argue that they were at best engaged
in “innocent publication”, viz. that they did not know nor
could have known that they would be liable for prosecution.

This defence is usually very difficult to raise, except in a
small number of cases such as where a wholesale distributor
3. Handyside v. United Kingdom, 7 December 1976, Application No. 5493/72, para. 48.
4. e.g. Obscene Publications Act 1964 (UK).
147
of books or other publications could not reasonably have
known or suspected that one of the publications contained
obscene matter.
7.9 What other aspects of the law should the media be aware
of in relation to obscenity?
Under English common law (which applies in a number
of former British colonies), it is an offence to “corrupt
public morals” and to “outrage public decency”. Although
these offences are seldom invoked, there have been a few
prosecutions in recent years which should put the media on
guard.
In 1990, for instance, an exhibition which included a
sculpture with earrings made of freeze-dried human foetuses
became the subject of considerable controversy after many
members of the public had taken deep offence by the display.
It led to the artist in question and the owner of the gallery
being charged with, and convicted of, outraging public
decency. Their defence of “public good”, i.e. artistic merit,
failed because the law does not recognise such a defence to
the charge of outraging public decency.5
The media should also be aware of the risks involved in
relation to depiction of children. Most countries have laws
which make it an offence to publish or distribute indecent
pictures or images of children, or to publish advertisements
for products or services which promote such indecency.
There are also laws which criminalise the production and

distribution to children and young persons of books and
magazines that portray indecency or extreme violence or
cruelty.
5. R. v. Gibson [1990] 3 W.L.R. 595.
148
In addition, broadcasters should note that where national laws
prescribe a “watershed” before which certain programmes
with adult content should not be telecast, any breach of
such laws would invite legal action, usually resulting in the
suspension or cancellation of their licence to broadcast.
149
8
PRIVACY
8.1 How is ‘privacy’ treated in relation to the media?

Privacy is a concept that is not easy to define. Essentially,
it can be seen as the right – or at least an expectation – of
every individual to be shielded from intrusion into his or her
personal life or affairs. The intrusion may happen through
physical means or through the publication of material or
information. Given that the media often write about people
and their activities, including highly personal activities, this
area of the law is of considerable relevance to journalists
and other media practitioners.
8.2 How does the law deal with privacy?

Some countries (e.g. France) have discrete laws which
attempt to define and protect an individual’s privacy.1
These laws punish the media with fines or imprisonment
in the event of any invasion of privacy taking place. Where
such laws exist, the media is, not surprisingly, usually
particularly careful in what it publishes about individuals.
Some commentators have argued that the presence of such
strict laws discourages investigative journalism.
In a lot of other countries, especially those which follow
English common law, the tradition of having laws that
specifically and explicitly recognise the right to privacy
does not exist. In these countries, privacy is protected
PRIVACY
1. In France, the invasion of privacy as a civil wrong was recognised as far back as 1858. It
became part of the French Civil Code in 1970.
150
through laws on other subjects such as defamation, breach
of confidence, trespass, data protection, and copyright.
8.3 What does international law have to say on privacy?

Recent years have seen the inclusion of protection for
individual privacy in international human rights instruments.
For example, the European Convention on Human Rights,
to which some 47 countries are signatories, has a provision
which declares that “Everyone has the right to respect for his
private and family life, his home and his correspondence,”2
subject to certain qualifications. The courts in a number of
countries, e.g. the United Kingdom, have used this article
to introduce a right of privacy in their own domestic legal
systems, with varying degrees of success.
The International Covenant on Civil and Political Rights
lays down that:
No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour
and reputation.3
8.4 How does the law of trespass deal with privacy?

Trespass to property has been one of the earliest legal
techniques to be used to protect a person’s property. Under
the law of trespass, it an unlawful for anyone to enter another
person’s property without permission or reasonable cause.
If, therefore, a journalist were to walk into the grounds of
a celebrity footballer and take pictures of him against his
wishes, the journalist could be prosecuted for trespass.
PRIVACY
2. Art. 8.
3. Art. 17(1).
151
The law of trespass does not, however, assist property
owners if the media was to intrude on their privacy from a
public road or from another person’s property which they
have lawfully entered. This is often the case when press
photographers take pictures of celebrities using telephoto
lenses.
8.5 How can the law of defamation deal with privacy?

Defamation has a limited use in the protection of privacy. It
can only be used where information that is untrue has been
published about someone. However, some well-known
figures, e.g. the late London-based publishing tycoon Robert
Maxwell, have used the threat of a defamation action to
frighten the media from investigating their lives or business
affairs.
The threat of a defamation suit can quite potent in countries
where the courts have a tradition of either being too
plaintiff-friendly or subject to political pressures. In such
circumstances, the media might consider it too risky to
engage in investigative journalism.
8.6 How can the law on breach of confidence deal with

privacy?
Breach of confidence is one of the most commonly used
remedies against invasion of privacy, especially in recent
years when this area of the law has been extended quite
significantly in some countries. In its essence, the law of
confidence makes it unlawful for a person to reveal to
another person, without authorisation, any information that
the former may have received in confidence. Traditionally,
PRIVACY
three conditions needed to be satisfied for this remedy to be

invoked:
152
1. the information in question must have a quality of
confidence;
2. it should have been communicated in circumstances
“importing an obligation of confidence”; and
3. there must be an unauthorised disclosure of the
information.4
The law was progressively liberalised, with the result that
two of those conditions came to be modified as follows:
(a) the need for an initial confidential relationship
(circumstances “importing an obligation of confidence”)
was removed;
(b) ‘confidential’ information was deemed to include
‘private’ information as well.
The test as it stands today is that, where information about
someone is disclosed without authorisation to a third party
in circumstances where it should have been clear to the
person disclosing that it was ‘private’ information, there
would be a cause of action. So, if a journalist came upon a
picture concerning intimate moments between a celebrity
and his wife and he decided to publish the picture without
authorisation from either of them, they could sue him for
breach of confidence.
8.7 How is breach of confidence treated by the courts?

The experience varies from country to country, but if
the English courts are anything to go by (and it is worth
remembering that their judgments have high persuasive
PRIVACY
4. These conditions were laid down in the case of Coco v. A.N. Clark Engineers Ltd. (1969)
R.P.C. 41.
153
value in most common law countries), a number of factors
are taken into account. The following cases would illustrate
the trend.
In A v. B and Another,5 a footballer, Gary Flitcroft, sought
an injunction against a newspaper which wanted to publish
an interview given by one of two women with whom he
had had an extramarital affair. The court refused to grant
the injunction on the ground that the conduct in question
did not merit a ban on publication (if the newspaper had
sought to publish private information about Mr Flitcroft’s
relationship within his marriage, it would have been
restrained from doing so).
In Theakston v. MGN,6 a television presenter tried to stop a
newspaper from publishing details, including a photograph,
of his visit to a brothel. The newspaper successfully argued
that any such ban would amount to an unjustified restraint
on its freedom of expression. The court agreed and allowed
the story to go ahead, but it injuncted the newspaper from
publishing the photograph on the ground that there was no
public interest to be served in its publication.
In Campbell v. MGN Ltd,7 a fashion model, Naomi Campbell,
sued a tabloid newspaper which had published a front page
story alleging that Miss Campbell was addicted to certain
narcotic drugs, that she was receiving treatment for her drug
addiction, and that she was attending meetings of Narcotics
Anonymous. The paper also gave details of the treatment
that Miss Campbell had been receiving, and published a
photograph of her leaving a Narcotics Anonymous meeting
5. [2002] EWCA Civ 337.
PRIVACY
6. [2002] EWHC 137 (QB).

7. [2004] UKHL 22.
154
(which it had obtained through surreptitious means). The
court held that the newspaper was justified in publishing
information about Miss Campbell’s drug addiction, and
the fact that she was receiving treatment for it, including
attending meetings of Narcotics Anonymous. This was
particularly so, argued the judges, because Miss Campbell
had previously lied about her drug addiction, and there was
in any case a strong public interest justification for the story.
There was however no justification, said the court, for the
publication of the details of Miss Campbell’s treatment or
of a picture of her leaving the NA meeting. In this case,
the court used the term “misuse of private information” as
better describing the cause of action traditionally known as
“breach of confidence”.
In Douglas v. Hello!,8 an actor couple, Michael Douglas and
Catherine Zeta-Jones, sued a celebrity magazine, Hello!, for
publishing pictures of their wedding reception, the rights for
which had been granted exclusively to another publication
for a hefty fee. The couple had taken elaborate precautions
to prevent surreptitious photography at the reception, but
Hello! magazine managed to evade those precautions. The
court held that the couple’s right to privacy was not reduced
by their decision to sell the pictures in question, and that
Hello! magazine’s actions had resulted in a breach of their
privacy.
8.8 Can the media use a “public interest” argument to

publish information that someone may want to keep
private?
Yes, this is what happened in the Spycatcher case referred
to above. However, sometimes such an argument may fail,
PRIVACY
8. [2005] EWCA Civ 595.
155
as can be seen in the case of X v. Y 9 decided in the UK.
Here, a newspaper reporter was supplied with confidential
information by a health trust employee which indicated that
two doctors working in a hospital or hospitals belonging to
the trust were carrying the AIDS virus. Before the journalist
could publish an article revealing this information, the
hospital trust sought and obtained an injunction restraining
publication. The court in this case ruled that the public
interest in keeping the information confidential (so as not
to deter prospective patients from seeking treatment in the
hospital/s) outweighed the public interest in the freedom of
the press to report the matter.
8.9 How can the law on copyright deal with privacy?

Copyright can be used effectively in some circumstances
to protect individual privacy. For instance, if a newspaper
or a television channel used photographs or video clips
which belonged to the subject of a story and which it has
obtained without his permission, he can (assuming that he
is the copyright owner in the picture or video) could sue for
copyright infringement.
The usefulness of copyright in protecting privacy was
brought home in a case filed by the Prince of Wales, the
heir to the British throne, when a newspaper decided to
publish extracts from his private diaries in which he had
made certain indiscreet observations about the political
leaders of China with whom he had interacted during the
British handover of Hong Kong to the Chinese government
in 1997. The diaries were meant to be circulated to a
small number of close friends of the prince, but when the
PRIVACY
9. [1988] 2 All E.R. 648.
156
newspaper surreptitiously obtained a copy for publication,
he approached a court to restrain it. One of the grounds on
which the court granted the injunction was that copyright in
the diaries vested in the prince and the newspaper had not
obtained permission to reproduce extracts.10
8.10 How does the law on data protection deal with privacy?
Data protection is a relatively new area of the law.
Essentially, it involves safeguards in the use of personal
data, particularly personal data stored in electronic form.
Some countries have put in place sophisticated regimes for
data protection, but a large number of nations do not have
any laws in this area. To that extent, the use of this concept
to protect individual privacy is limited.
An example of a fairly advanced data protection regime
can be found in the United Kingdom, whose law enshrines
the following eight basic principles in relation to personal
data (which are defined as “data which relate to a living
individual who can be identified – (a) from those data; or
(b) from those data and other information which is in the
possession of, or is likely to come into the possession of,
the [person controlling the data]”:
1. Personal data shall be processed fairly and lawfully
and, in particular, shall not be processed unless –
(a) at least one of the conditions in Schedule 2 is met,
and
(b) in the case of sensitive personal data, at least one of
the conditions in Schedule 3 is also met.
PRIVACY
10. H.R.H. Prince of Wales v. Associated Newspapers Ltd. (2006) EWCA Civ 1776.
157
2. Personal data shall be obtained only for one or more
specified and lawful purposes, and shall not be further
processed in any manner incompatible with that purpose
or those purposes.
3. Personal data shall be adequate, relevant and not
excessive in relation to the purpose or purposes for
which they are processed.
4. Personal data shall be accurate and, where necessary,
kept up to date.
5. Personal data processed for any purpose or purposes
shall not be kept for longer than is necessary for that
purpose or those purposes.
6. Personal data shall be processed in accordance with the
rights of data subjects under this Act.
7. Appropriate technical and organisational measures shall
be taken against unauthorised or unlawful processing of
personal data and against accidental loss or destruction
of, or damage to, personal data.
8. Personal data shall not be transferred to a country or
territory outside the European Economic Area unless
that country or territory ensures an adequate level of
protection for the rights and freedoms of data subjects
in relation to the processing of personal data.11
A simple example of how data protection law may affect
the media can be seen in the following circumstances. A
newspaper publishes a story about someone. That person
can, under the law, demand that the newspaper provide him
with a copy of all the information it, the newspaper, holds on
PRIVACY
11. Data Protection Act 1984.
158
him. He may also require the paper to publish a correction
where the story is inaccurate in any respect.
Data protection laws also affect marketing activities by the
media.
8.11 How does the law on harassment deal with privacy?

Most countries have laws which make harassment an offence
or a civil wrong. There are several facets to harassment, but
from the point of view of the media, “doorstepping” activities
or intolerable pursuit of individuals by photographers
(“paparazzi”) would be particularly relevant.
Harassment usually requires a persistent course of conduct
which causes alarm or distress to the person being harassed.
If proved, this sort of conduct can lead to both criminal
and civil consequences, viz. a fine/imprisonment and/or
damages. There have been numerous cases of high-profile
celebrities using the law of harassment to protect themselves
from media intrusion.
For example, the actress and model Sienna Miller succeeded
in obtaining compensation to the tune of £37,000 in 2008
from the well-known picture agency, Big Pictures Limited,
after she alleged that she was being relentlessly pursued
by that agency’s photographers. As part of the settlement
reached, the agency also undertook not to pursue Miss
Miller or doorstep her at her home.
8.12 What is the legal position concerning the use of telephone

taps?
This is a complex area, and the laws and practices vary
markedly from country to country. As a rule, most
PRIVACY
democracies have legal safeguards against indiscriminate or

159
arbitrary interception of communication by both government
agencies and private parties. Exceptions are always made
for interception of communications for national security and
other similar purposes, and such interception is, for obvious
reasons, carried out without the knowledge of those being
targeted.
Typically, there would be a law – passed by the national
parliament – which would lay down the conditions under
which telephones or other forms of communication can
be tapped.12 These would include: the interests of national
security; the prevention or detection of serious crime; and
the protection of vital economic interests of the nation.13
The tapping can only take place if it is authorised by a
senior government functionary, e.g. a Cabinet minister, and
then only if the information being sought cannot reasonably
be obtained by other lawful means. The law would also
require the order for tapping to be precise in scope and to be
confined to a limited period. Frequently, the working of this
legal regime is overseen by a tribunal or a commissioner
who would have powers to order the termination of any
telephone tap if it fails to comply with the requirements
of the law or is otherwise unjustified. More importantly,
the law would make all unauthorised interception of
communications illegal.
Many countries do not, however, have such strict controls
over telephone tapping. Indeed, instances are rife where
private communications are routinely intercepted both
12. Exceptionally, where the national parliament has failed to make a law, the courts may step
in and lay down guidelines which the government is obliged to follow. This happened in
India where the Supreme Court, in the landmark case of People’s Union for Civil Liberties
v. Union of India AIR 1997 SC 568, prescribed an elaborate set of rules for interception of
PRIVACY
communications.
13. See, e.g. Interception of Communciations Act 1985, s. 2 (UK).
160
by state agencies and private parties without official
authorisation. Often the targets of such unauthorised
interception may be the media, so journalists need to be
particularly careful when revealing confidential information
over public telephone networks.
Equally, it is possible that journalists themselves may fall
foul of the law if they engage in intercepting other people’s
communications without authority in pursuit of a story.
Since breaking the law can never be justified, any such
action will result in criminal sanctions and/or a claim for
compensation.
8.13 What about publishing a person’s picture without his or

her permission?
There is wide variation in the legal position between
countries. Generally speaking, it would be impermissible to
photograph a person without his or her permission on private
premises, viz. premises to which members of the general
public do not have a right of access. In some countries, it is
an offence – and/or a civil wrong – to publish the photograph
of a person without his or her permission even on public
premises. For example, the Canadian Supreme Court has
held that the right to one’s “image” is a right protected by
that country’s Charter of Human Rights and Freedoms: it
consequently held that the publication by a magazine of a
17-year-old girl sitting on the steps of a public building in
Montreal was unlawful. However, some exceptions have
been recognised to that rule: where a person engages in
public activity or where someone’s “professional success
depends on public opinion,” he or she would have no ground
PRIVACY
to complain.
161
The prohibition against publishing pictures of individuals
in public places is enforced even more strictly in France.
Here, it is not uncommon for individuals to sue or prosecute
the media, for example, for publishing a picture of a crowd
in which the complaining individual may be present. A few
years ago a male nurse sued a newspaper which printed
a photograph of him standing near the French President,
Jacque Chirac, because the nurse did not want to be seen
with Mr Chirac.
Even in liberal California a law was passed in 1999 under
which it was made unlawful for anyone to photograph a
person “in circumstances where they had a reasonable
expectation of privacy.”
However, in a significant number of other countries, including
the United Kingdom, it remains entirely legal for anyone to
be photographed in public without their consent. This is seen
as a necessary extension to freedom of expression. Where,
however, any photograph taken in a public place is either
altered in any way or used as part of, say, an advertisement
or write-up in a manner that shows the person involved in
a disparaging manner, those responsible for the act would
expose themselves to an action for defamation.
8.14 Can a broadcaster use images of someone taken from a

CCTV camera installed in a public place?
Generally speaking, only with some risk. The perils are
highlighted in a case14 from the UK which involved a young
man who unsucessfully attempted, to commit suicide in a
public place by slashing his wrists. While moving around
a city centre in a distressed state with a knife in his hand,
PRIVACY
14. Peck v. UK [2003] 36 EHRR 41.
162
he was captured by CCTV cameras operated by the local
authority who, on the basis of the pictures, stopped the
suicide. When the local authority subsequently gave the
film to a television company which broadcast it, the young
man sued on the grounds that his privacy had been invaded.
After losing his case in the UK courts, he took his plea to
the European Court of Human Rights which agreed with
him and ordered the UK government to pay compensation
for breach of privacy.
PRIVACY
163
9
OFFICIAL SECRECY AND ACCESS TO
INFORMATION
9.1 How does the law on official secrets affect the media?
There are some kinds of information which governments all
over the world want to keep secret. Normally, these involve
matters of national security, nuclear policy, financial plans,
or other strategic interests. Such information, if made
public, may be used by a country’s enemies – both domestic
and foreign – against the interests of the country and its
people. For that reason, there are laws which allow for such
information to be kept confidential. Journalists, in particular,
need to be aware of these laws and their implications.
Here, as elsewhere, the importance of a fair balance cannot be
underestimated. The right of the public to be kept informed
about how they are governed has to be balanced against the
right (and, indeed, the duty) of the government to protect
OFFICIAL SECRECY AND ACCESS TO INFORMATION
the security and other vital interests of the country. Striking

this balance is not always easy, and this area of the law
has consequently given rise to many cases of confrontation
between the media and government authorities.
9.2 Can the needs of national security be reconciled with

journalistic freedom?
Yes. As one commentator has argued,
national security is not fundamentally at odds with
freedom of expression and information. To the contrary,
164
a clear-eyed review of recent history suggests that
legitimate national security interests are, in practice,
better protected when the press and public are able to
scrutinise government decisions than when governments
operate in secret. Freedom of expression and access to
information, by enabling public scrutiny of government
action, serve as safeguards against government abuse and
thereby form a crucial component of genuine national
security. Equally, national security is a pre-condition for
the full enjoyment of all human rights, including freedom
of expression.1
Many countries have been able to reconcile the often
conflicting demands of national security and free speech
without too much confrontation or contention.
9.3 How does the law deal with access to official, i.e.
government, information?
Access to information held or controlled by the state is
seen as vital for the healthy functioning of any free society.
For that reason, recent decades have seen a growth of legal
measures aimed at guaranteeing information to the general
public on a wide range of matters the disclosure of which
was hitherto left to the absolute discretion of the government.
These measures include codes of practice and statutes – the
latter are usually called ‘freedom of information’ laws or
‘right to know’ laws. The media have found such measures
hugely beneficial, not least in conducting investigative
journalism.
1. Sandra Coliver, “Commentary to: The Johannesburg Principles on National Security,

Freedom of Expression and Access to Information” 20:1 (1998) Human Rights Quarterly
12-80, accessible at http://muse.jhu.edu/journals/human_rights_quarterly/v020/20.1coliver.
html.
165
It needs to be remembered, however, that not all information
in the possession or control of the state can be made available
to the public. Even the most liberal democracies recognise
that certain types of information, e.g. material relating to
national security, police investigations, or strategic financial
plans, cannot – and should not – be disclosed because
disclosure would cause considerable harm to vital interests
9.4 Are there any international legal standards on access to

information?
Yes. A large number of international bodies and agencies
have formulated principles and guidelines on access to
information over the years, and these principles attempt to
strike a balance between the requirements of openness and
confidentiality.2
Alongside these, there is also guidance on access on
information put together by campaigning groups in the
non-governmental sector at both domestic and international
level. One such group has suggested that any “right to
know” regime should be founded on the following basic
principles:
• everyone has the right to access information held by

public bodies;
• everyone has the right to access information held by
private bodies which is necessary for the exercise or
protection of any right;
• any refusal to disclose information shall be subject to
appeal to an independent body and/or the courts;
2. Among the bodies engaged in such activity are the United Nations (including its agencies
and special procedures), the Organisation of American States, the Council of Europe, and
the African Union.
166
• public bodies shall be required, even in the absence of
a request, actively to publish important information of
significant public interest;
• no one shall be subject to any sanction for releasing in
good faith information on wrongdoing, or that which
would disclose a serious threat to health, safety or the
• environment save where the imposition of sanctions
serves a legitimate interest and is necessary in a
democratic society; and
• secrecy laws shall be amended as necessary to comply
with freedom of information principles.3
These guidelines require “right to know” regimes to include
guarantees that ‘whistle-blowers’, i.e. those who supply
information from within an organisation without revealing
their identities, are adequately protected from victimisation
or prosecution.
9.5 Are there any guidelines specifically on the media’s access

to information about police and judicial matters?
Yes. For example, the Council of Europe adopted certain OFFICIAL SECRECY AND ACCESS TO INFORMATION
principles in 2003, of which the following are particularly
relevant:
Principle 4 - Access to information
When journalists have lawfully obtained information
in the context of on-going criminal proceedings from
judicial authorities or police services, those authorities and
3. Article XIX, Central Asian Pocketbook on Freedom of Expression (London, 2006), at p.

185. Article XIX has also drafted a Model Freedom of Information Law for adaptation by
national governments – this document is accessible at <www.article19.org/pdfs/standards/
modelfoilaw.pdf>.
167
services should make available such information, without
discrimination, to all journalists who make or have made
the same request.
Principle 5 - Ways of providing information to the media
When judicial authorities and police services themselves
have decided to provide information to the media in the
context of on-going criminal proceedings, such information
should be provided on a non-discriminatory basis and,
wherever possible, through press releases, press conferences
by authorised officers or similar authorised means.
Principle 6 - Regular information during criminal
proceedings
In the context of criminal proceedings of public interest or
other criminal proceedings which have gained the particular
attention of the public, judicial authorities and police services
should inform the media about their essential acts, so long
as this does not prejudice the secrecy of investigations
and police inquiries or delay or impede the outcome of
the proceedings. In cases of criminal proceedings which
continue for a long period, this information should be
provided regularly.4
4. Council of Europe, Committee of Ministers, Recommendation Rec(2003)13 on the provision

of information through the media in relation to criminal proceedings, 10 July 2003.
168
10
ELECTION COVERAGE
10.1 Does the media have any special responsibilities during

or in the run-up to elections?
Yes, given the importance of elections in democratic
societies. The media is expected to be fair and even-handed
in its coverage of elections and pre-election reporting.
10.2 Is there any guidance on political advertising during

elections?
Yes. Different countries deal with political advertising
in different ways. Many countries, such as the United
Kingdom, ban such advertising on radio and television at
all times. Such a ban has been accepted without demur, as
long as it is applied even-handedly and without exceptions.
Where, however, political advertising is normally allowed,
and restrictions are sought to be imposed during elections,
they may prove contentious.
In Australia, for instance, the government sought to impose
a blanket prohibition on all political advertising during
elections at every level – federal, state and local. The aim
of the prohibition was to reduce the pressure on political
parties and candidates to raise huge sums of money to win
ELECTION COVERAGE
votes and to thus reduce the risk of corruption and undue

influence. However, a substitute arrangement put in place
by the government which allowed candidates free airtime
was so heavily weighted in favour of the established parties
169
and against new and non-party candidates that the High
Court ruled it unlawful on the grounds that it violated the
‘free communication’ guarantee implied in the Australian
Constitution.1
10.3 Does the media have any discretion in the manner of

allocating airtime during elections?
Yes. As long as the media is even-handed and does not
behave in a partisan or arbitrary manner, it is well within
its rights to adopt its own policy in this area. In 1975,
for example, a public broadcasting system in Germany
decided that it will not give any airtime to either of the two
main parties involved in a contentious referendum on the
geographic status of a certain territory. When one of the
parties challenged this policy, the country’s Constitutional
Court ruled that, as long as the broadcaster remained neutral,
it was fully entitled to deny access to either party.2
10.4 In legal terms, what are the main risks that the media
faces in relation to elections?
Most countries have laws in place which impose restrictions
on the media during and immediately prior to elections.
These are intended to ensure that elections are conducted
fairly and smoothly. The laws vary widely in scope and
content, but, generally speaking, they cover the following
areas:
• publication of false statements of fact concerning the
ELECTION COVERAGE
personal character or conduct of candidates with a view

to affecting their chances at the election;
1. Australian Capital Television Pty Ltd v. The Commonwealth; New South Wales v. The
Commonwealth (No. 2) 1992] 66 ALJR 695.
2. 42 FCC 53 (1975).
170
• publication of false statements that a candidate has
withdrawn from an election (with a view to promoting
the chances of another or other candidates).
These restrictions normally carry criminal sanctions. In
addition, it is possible for the media to be sued for defamation
where any false statement published lowers the reputation
of a candidate..
It is important to note, however, that where a journalist
is accused of publishing a false statement concerning a
candidate, the statement must relate to the candidate’s
personal character or conduct, and not his political behaviour
or actions, in order for the charge to succeed.
Also, it is important to note that only statements of fact are
caught by this offence, not statements of opinion.
10.5 What about publication of exit polls by the media?

It is commonplace for restrictions to be placed on the conduct
and publication of exit polls in many countries. This is done
to avoid any possibility of the results of the election being
distorted by pre-judgment of the results. Normally, the law
would ban the publication of any exit polls until after the
voting is completed. This causes difficulties for the media
in some circumstances.
For example, where there is a significant gap between the
close of voting and the publication of the official results,
the ban on publication of information about voter intentions
ELECTION COVERAGE
and voter behaviour may seem harsh. Also, where postal

ballots are involved, these may result in further delays in
the publication of results. The media, however, needs to
be mindful of these restrictions and to comply with them
where necessary.
171
10.6 Are there any issues concerning the publication of
advertisements which the media should be aware of?
Yes, in many countries there are strict laws on how much
money a candidate can spend in connection with advertising
and publicity during an election. Usually, such laws require
all advertisements to be authorised by the candidate or
his election agent. If therefore a newspaper is offered an
advertisement by someone other than a candidate or his
agent, it should refuse the offer, failing which it may be
convicted of an offence.
This restriction does not, however, affect editorial
endorsement of candidates.
10.7 What about reporting of speeches made at election

meetings and rallies?
Here again, there are potential pitfalls which the media
should be aware of. In particular, journalists need to be
careful in reporting speeches or comments of an extremist
nature because these may fall foul of ‘hate speech’ laws. If
in doubt, it is best to paraphrase such speeches or comments
in language that is not provocative or threatening, insulting
or abusive.
It is also advisable for the media to avoid describing
candidates with prefixes such as ‘fascist’, ‘communist’,
etc.
Generally speaking, qualified privilege will apply to fair
ELECTION COVERAGE
and accurate reports by the media of election meetings

and rallies in much the same way that it applies to public
meetings and press conferences.
172
10.8 What is the position of media presence at election
counts?
The practice in this area varies from country to country.
Most countries allow media personnel (or at least one or
more representatives of the media) to remain present at
election counts. Some countries (e.g. the UK) also allow
photographers and TV cameramen to be present and to cover
the counting. However, many countries do not allow the
latter. In certain countries, the matter is left to the discretion
of the Returning Officer for the count. If that is the case,
the Returning Officer has a duty to be fair and even-handed
in the manner in which he exercises his discretion, and the
media will be justified in challenging any arbitrary decisions
made by him.
10.9 Is there anything else the media should note about

elections and election coverage?
Yes, in some countries the government puts in place codes
of conduct during elections. These codes apply to both those
taking part in elections (e.g. candidates and their agents,
political parties, etc.) and the media. If any such code is
promulgated, the media should abide by its provisions. ELECTION COVERAGE
173
11
SELF-REGULATION
I. General
11.1 What is self-regulation in relation to the media?

Self-regulation is a model of regulation which has become
quite popular with the media in the past few decades. It is
an alternative – occasionally, a supplement – to statutory
regulation, viz. prescriptive regulation by the state. As the
name suggests, self-regulation essentially means regulation
of the media by the media itself. In other words, it is
regulation of media practitioners by their own peers.
11.2 How does self-regulation work in practice?

Typically, self-regulation would involve a body such as
a Press Council, a Broadcasting Standards Council, or a
Media Council, which would be composed of members
who are broadly representative of the media businesses and
organisations that are sought to be regulated. These members
would be either elected or nominated by the businesses or
organisation and would hold office for a fixed period. They
would have responsibility for overseeing the conduct of the
media entities covered by the Council and to receive and
adjudicate complaints received against those entities from
SELF-REGULATION
the public.
174
11.3 What is the touchstone on which a self-regulatory
mechanism would judge the conduct of the media?
Usually, every self-regulatory mechanism would be backed
by a code of conduct which sets out the norms by which
media practitioners and businesses would have to abide.
These norms would cover such matters as:
• accuracy in the gathering and reporting of news;
• fairness in the treatment of news sources and other
subjects of media operations;
• respect for the privacy of individuals;
• respect for the public’s right to know;
• avoidance of ‘cheque-book journalism’, i.e. the practice
of paying criminals, etc. for stories;
• protection of confidentiality of sources;
• sensitivity in reporting of certain topics, e.g.
bereavement, and in the treatment of vulnerable groups,
e.g. children, victims of sexual offences, etc.
11.4 How are self-regulatory bodies funded?

Self-regulatory bodies are usually funded through
contributions from the media organisations which sign up
to them. The contributions may vary according to the size
of individual businesses.
Some self-regulatory bodies are funded – or part-funded
– by fees charged to those who use their services, viz.
SELF-REGULATION
complainants, though this is rare.
175
11.5 Can there be a combination of statutory and self-
regulation?
Yes. In quite a few countries, this model, which is sometimes
referred to as ‘co-regulation’, is followed. Here, the
regulatory body – e.g. a Press Council – is established by
statute or other law made by the state, but its composition and
day-to-day running is left largely to representatives of the
media (the degree of autonomy given to the Council varies
from country to country). The funding of this arrangement
is usually the responsibility of the sponsoring government
department, although it is possible for a private-public
partnership model to be adopted.
11.6 Is self-regulation effective?

There is divergence of opinion on this point. Some
commentators have argued that self-regulation works better
than statutory regulation because it is free from interference
by the state. Others have expressed the view that self-
regulation lacks credibility because those being regulated
are the regulators themselves. Increasingly, however, the
trend around the world appears to be away from state
regulation and towards self-regulation (or co-regulation),
except in the area of broadcasting where there is still a
continuing preference for state involvement.
One of the major drawbacks of Press Councils and similar
mechanisms is their lack of enforcement powers – in most
cases, all that a Press Council can do is censure a media
organisation. It is not uncommon for newspapers and
SELF-REGULATION
broadcasters to ignore the decisions of self-regulatory

bodies – a practice which has reduced the credibility of
such bodies.
176
11.7 How is broadcasting likely to be regulated in the
future?
Traditionally, the shortage of radio frequencies has justified
extensive state interference in the area of broadcasting.
Many countries have state broadcasters exercising a
monopoly in the provision of television services. Recent
years have however seen an opening up of this market,
with digital communication technologies allowing for
an expansion in the frequency spectrum available for
broadcasting. The situation has been made more complex
by the advent of satellite television which allows for cross-
border broadcasting. This new phenomenon has made
regulation of broadcasting more difficult, especially on the
content side.
11.8 What are the main challenges in this area?

Apart from the challenges posed by cross-border broadcasting
(which requires extensive co-operation between national
governments and their law-enforcement authorities), the
issue of insulating the regulator from extraneous pressures is
a pressing problem which both governments and the media
are having to contend with around the world. There are no
easy solutions to this problem, but a number of measures
have been recommended to secure the independence of the
regulator, including the following:
• a clear statement in statute (or, better still, in the national
constitution) guaranteeing such independence;
SELF-REGULATION
• an assured funding mechanism, which does not leave

too much discretionary power in the hands of the
government, to allow the regulator to discharge its
responsibilities efficiently and effectively;
177
• genuine functional autonomy for the regulator in
carrying out its day-to-day functions;
• a fair, non-partisan and transparent appointment process
for the regulatory body (including any oversight
mechanism that may be constituted as part of the
regulatory regime);
• effective protections against arbitrary removal of
members of the regulatory body or its oversight
mechanism;
• clear, effective and transparent accountability systems
for the regulator, including periodic reporting to the
national parliament and rigorous financial audits.
II. Ombudsman mechanism
11.9 What is an Ombudsman and how does this mechanism

operate?
This is a relatively new mechanism in many parts of the
world, although the institution has existed in Sweden for
over two centuries now. An Ombudsman is an in-house
‘referee’ appointed by the media organisation to receive
and consider complaints from readers, listeners or viewers
of the organisation’s publications or programmes. He is
usually a respected figure, such as a retired judge, who
would command the confidence of the public.
The mechanism works fairly simply, with the Ombudsman
SELF-REGULATION
investigating those complaints which contain prima facie

evidence of misconduct by journalists or other editorial
staff belonging to the media organisation. The complaints
received usually concern inaccuracy, bias or invasion of
178
an individual’s privacy. The Ombudsman gives the editor
or other senior functionary within the organisation an
opportunity of responding to the complaint, and if after due
consideration of all the facts he comes to the conclusion that
any action is called for, he makes a recommendation to that
effect to the editor, who is then left to take such measures
as he deems fit.
The Ombudsman cannot order any monetary or other
compensation to a complainant. He does not have any
enforcement powers either in relation to any conclusion
that he may have come to in relation to a complaint. For that
reason, and for the reason that he is appointed – and paid
– by the media organisation, many people have expressed
scepticism about the impartiality and usefulness of this
mechanism. Even so, the institution of Ombudsman as a
facet of self-regulation has been gaining ground around the
world.
SELF-REGULATION
179
12
APPENDICES
APPENDIX ‘A’
Text of Art 19, Universal Declaration on Human Rights
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.
APPENDICES
180
APPENDIX ‘B’
Text of Art 19, International Covenant on Civil and Political

Rights
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.
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.
APPENDICES
181
APPENDIX ‘C’
Text of Art 10, European Convention on Human Rights

1. Everyone has the right to freedom of expression. this right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or the rights of
others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality
of the judiciary.
APPENDICES
182
APPENDIX ‘D’
Text of Art 13, American Convention on Human Rights
Freedom of Thought and Expression

1. Everyone has the right to freedom of thought and expression.
This right includes freedom to seek, receive, and impart
information and ideas of all kinds, regardless of frontiers,
either orally, in writing, in print, in the form of art, or through
any other medium of one’s choice.
2. The exercise of the right provided for in the foregoing
paragraph shall not be subject to prior censorship but shall
be subject to subsequent imposition of liability, which shall
be expressly established by law to the extent necessary to
ensure:
(1) respect for the rights or reputations of others; or
(2) the protection of national security, public order, or public
health or morals.
3. The right of expression may not be restricted by indirect
methods or means, such as the abuse of government or private
controls over newsprint, radio broadcasting frequencies, or
equipment used in the dissemination of information, or by
any other means tending to impede the communication and
circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public
entertainments may be subject by law to prior censorship for
the sole purpose of regulating access to them for the moral
protection of childhood and adolescence.
APPENDICES
5. Any propaganda for war and any advocacy of national, racial,

or religious hatred that constitute incitements to lawless
183
violence or to any other similar action against any person or
group of persons on any grounds including those of race, color,
religion, language, or national origin shall be considered as
offenses punishable by law.
APPENDICES
184
APPENDIX ‘E’
Text of Art 9, African Convention on Human and Peoples’

Rights
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate
his opinions within the law.
APPENDICES
185
APPENDIX ‘F’
Text of the Johannesburg Principles on National Security,

Freedom of Expression and Access to Information
(U.N. Doc. E/CN.4/1996/39 (1996))
INTRODUCTION
These Principles were adopted on 1 October 1995 by a group of
experts in international law, national security, and human rights
convened by ARTICLE 19, the International Centre Against
Censorship, in collaboration with the Centre for Applied Legal
Studies of the University of the Witwatersrand, in Johannesburg.
The Principles are based on international and regional law and
standards relating to the protection of human rights, evolving state
practice (as reflected, inter alia, in judgments of national courts),
and the general principles of law recognized by the community
of nations.
These Principles acknowledge the enduring applicability of the
Siracusa Principles on the Limitation and Derogation Provisions
in the International Covenant on Civil and Political Rights and
the Paris Minimum Standards of Human Rights Norms In a State
of Emergency.
PREAMBLE
The participants involved in drafting the present Principles:
Considering that, in accordance with the principles proclaimed
in the Charter of the United Nations, recognition of the inherent
dignity and of the equal and inalienable rights of all members of
APPENDICES
the human family is the foundation of freedom, justice and peace

in the world;
186
Convinced that it is essential, if people are not to be compelled
to have recourse, as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the rule of
law;
Reaffirming their belief that freedom of expression and freedom
of information are vital to a democratic society and are essential
for its progress and welfare and for the enjoyment of other human
rights and fundamental freedoms;
Taking into account relevant provisions of the Universal
Declaration of Human Rights, the International Covenant on
Civil and Political Rights, the UN Convention on the Rights of
the Child, the UN Basic Principles on the Independence of the
Judiciary, the African Charter on Human and Peoples’ Rights,
the American Convention on Human Rights and the European
Convention on Human Rights;
Keenly aware that some of the most serious violations of human
rights and fundamental freedoms are justified by governments as
necessary to protect national security;
Bearing in mind that it is imperative, if people are to be able to
monitor the conduct of their government and to participate fully
in a democratic society, that they have access to government-held
information;
Desiring to promote a clear recognition of the limited scope of
restrictions on freedom of expression and freedom of information
that may be imposed in the interest of national security, so as
to discourage governments from using the pretext of national
security to place unjustified restrictions on the exercise of these
freedoms;
APPENDICES
Recognizing the necessity for legal protection of these freedoms

by the enactment of laws drawn narrowly and with precision, and
187
which ensure the essential requirements of the rule of law; and
Reiterating the need for judicial protection of these freedoms by
independent courts;
Agree upon the following Principles, and recommend that
appropriate bodies at the national, regional and international
levels undertake steps to promote their widespread dissemination,
acceptance and implementation:
I. GENERAL PRINCIPLES
Principle 1: Freedom of Opinion, Expression and

Information
(a) Everyone has the right to hold opinions without interference.
(b) Everyone has the right to freedom of expression, which
includes the 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 or her choice.
(c) The exercise of the rights provided for in paragraph (b) may
be subject to restrictions on specific grounds, as established
in international law, including for the protection of national
security.
(d) No restriction on freedom of expression or information
on the ground of national security may be imposed unless
the government can demonstrate that the restriction is
prescribed by law and is necessary in a democratic society
to protect a legitimate national security interest. The burden
of demonstrating the validity of the restriction rests with the
APPENDICES
government.
188
Principle 1.1: Prescribed by Law
(a) Any restriction on expression or information must be
prescribed by law. The law must be accessible, unambiguous,
drawn narrowly and with precision so as to enable individuals
to foresee whether a particular action is unlawful.
(b) The law should provide for adequate safeguards against abuse,
including prompt, full and effective judicial scrutiny of the
validity of the restriction by an independent court or tribunal.
Principle 1.2: Protection of a Legitimate National Security

Interest
Any restriction on expression or information that a government
seeks to justify on grounds of national security must have the
genuine purpose and demonstrable effect of protecting a legitimate
national security interest.
Principle 1.3: Necessary in a Democratic Society

To establish that a restriction on freedom of expression or
information is necessary to protect a legitimate national security
interest, a government must demonstrate that:
(a) the expression or information at issue poses a serious threat to
a legitimate national security interest;
(b) the restriction imposed is the least restrictive means possible
for protecting that interest; and
(c) the restriction is compatible with democratic principles.
Principle 2: Legitimate National Security Interest

APPENDICES
(a) A restriction sought to be justified on the ground of national

security is not legitimate unless its genuine purpose and
189
demonstrable effect is to protect a country’s existence or its
territorial integrity against the use or threat of force, or its
capacity to respond to the use or threat of force, whether from
an external source, such as a military threat, or an internal
source, such as incitement to violent overthrow of the
government.
(b) In particular, a restriction sought to be justified on the ground
of national security is not legitimate if its genuine purpose or
demonstrable effect is to protect interests unrelated to national
security, including, for example, to protect a government from
embarrassment or exposure of wrongdoing, or to conceal
information about the functioning of its public institutions,
or to entrench a particular ideology, or to suppress industrial
unrest.
Principle 3: States of Emergency

In time of public emergency which threatens the life of the country
and the existence of which is officially and lawfully proclaimed in
accordance with both national and international law, a state may
impose restrictions on freedom of expression and information but
only to the extent strictly required by the exigencies of the situation
and only when and for so long as they are not inconsistent with
the government’s other obligations under international law.
Principle 4: Prohibition of Discrimination

In no case may a restriction on freedom of expression or
information, including on the ground of national security, involve
discrimination based on race, colour, sex, language, religion,
political or other opinion, national or social origin, nationality,
APPENDICES
property, birth or other status.
190
II. RESTRICTIONS ON FREEDOM OF
EXPRESSION
Principle 5: Protection of Opinion

No one may be subjected to any sort of restraint, disadvantage or
sanction because of his or her opinions or beliefs.
Principle 6: Expression That May Threaten National

Security
Subject to Principles 15 and 16, expression may be punished as a
threat to national security only if a government can demonstrate
that:
(a) the expression is intended to incite imminent violence;
(b) it is likely to incite such violence; and
(c) there is a direct and immediate connection between the
expression and the likelihood or occurrence of such violence.
Principle 7: Protected Expression

(a) Subject to Principles 15 and 16, the peaceful exercise of
the right to freedom of expression shall not be considered a
threat to national security or subjected to any restrictions or
penalties. Expression which shall not constitute a threat to
national security includes, but is not limited to, expression
that:
(i) advocates non-violent change of government policy or the
government itself;
(ii) constitutes criticism of, or insult to, the nation, the state or
its symbols, the government, its agencies, or public officials
APPENDICES
3, or a foreign nation, state or its symbols, government,

agencies or public officials;
191
(iii) constitutes objection, or advocacy of objection, on grounds
of religion, conscience or belief, to military conscription
or service, a particular conflict, or the threat or use of force
to settle international disputes;
(iv) is directed at communicating information about alleged
violations of international human rights standards or
international humanitarian law.
(b) No one may be punished for criticizing or insulting the nation,
the state or its symbols, the government, its agencies, or public
officials, or a foreign nation, state or its symbols, government,
agency
Expression, whether written or oral, can never be prohibited on the
ground that it is in a particular language, especially the language
of a national minority.
Principle 10: Unlawful Interference With Expression by Third

Parties
Governments are obliged to take reasonable measures to prevent
private groups or individuals from interfering unlawfully with
the peaceful exercise of freedom of expression, even where
the expression is critical of the government or its policies. In
particular, governments are obliged to condemn unlawful actions
aimed at silencing freedom of expression, and to investigate and
bring to justice those responsible.
III. RESTRICTIONS ON FREEDOM OF

INFORMATION
Principle 11: General Rule on Access to Information

APPENDICES
Everyone has the right to obtain information from public

authorities, including information relating to national security.
192
No restriction on this right may be imposed on the ground of
national security unless the government can demonstrate that the
restriction is prescribed by law and is necessary in a democratic
society to protect a legitimate national security interest.
Principle 12: Narrow Designation of Security Exemption

A state may not categorically deny access to all information
related to national security, but must designate in law only those
specific and narrow categories of information that it is necessary
to withhold in order to protect a legitimate national security
interest.
Principle 13: Public Interest in Disclosure

In all laws and decisions concerning the right to obtain information,
the public interest in knowing the information shall be a primary
consideration.
Principle 14: Right to Independent Review of Denial of

Information
The state is obliged to adopt appropriate measures to give effect
to the right to obtain information. These measures shall require
the authorities, if they deny a request for information, to specify
their reasons for doing so in writing and as soon as reasonably
possible; and shall provide for a right of review of the merits and
the validity of the denial by an independent authority, including
some form of judicial review of the legality of the denial. The
reviewing authority must have the right to examine the information
withheld.
APPENDICES
193
Principle 15: General Rule on Disclosure of Secret
Information
No person may be punished on national security grounds for
disclosure of information if (1) the disclosure does not actually
harm and is not likely to harm a legitimate national security
interest, or (2) the public interest in knowing the information
outweighs the harm from disclosure.
Principle 16: Information Obtained Through Public Service

No person may be subjected to any detriment on national security
grounds for disclosing information that he or she learned by
virtue of government service if the public interest in knowing the
information outweighs the harm from disclosure.
Principle 17: Information in the Public Domain

Once information has been made generally available, by whatever
means, whether or not lawful, any justification for trying to stop
further publication will be overridden by the public’s right to
know.
Principle 18: Protection of Journalists’ Sources

Protection of national security may not be used as a reason to
compel a journalist to reveal a confidential source.
Principle 19: Access to Restricted Areas

Any restriction on the free flow of information may not be of such a
nature as to thwart the purposes of human rights and humanitarian
law. In particular, governments may not prevent journalists
or representatives of intergovernmental or non-governmental
APPENDICES
organizations with a mandate to monitor adherence to human

rights or humanitarian standards from entering areas where
194
there are reasonable grounds to believe that violations of human
rights or humanitarian law are being, or have been, committed.
Governments may not exclude journalists or representatives of
such organizations from areas that are experiencing violence or
armed conflict except where their presence pose a clear risk to the
safety of others.
IV. RULE OF LAW AND OTHER MATTERS
Principle 20: General Rule of Law Protections

Any person accused of a security-related crime involving
expression or information is entitled to all of the rule of law
protections that are part of international law. These include, but
are not limited to, the following rights:
(a) the right to be presumed innocent;
(b) the right not to be arbitrarily detained;
(c) the right to be informed promptly in a language the person can
understand of the charges and the supporting evidence against
him or her;
(d) the right to prompt access to counsel of choice;
(e) the right to a trial within a reasonable time;
(f) the right to have adequate time to prepare his or her defence;
(g) the right to a fair and public trial by an independent and
impartial court or tribunal;
(h) the right to examine prosecution witnesses;
(i) the right not to have evidence introduced at trial unless it
APPENDICES
has been disclosed to the accused and he or she has had an

opportunity to rebut it; and
195
(j) the right to appeal to an independent court or tribunal with
power to review the decision on law and facts and set it
aside.
Principle 21: Remedies

All remedies, including special ones, such as habeas corpus or
amparo, shall be available to persons charged with security-related
crimes, including during public emergencies which threaten the
life of the country, as defined in Principle 3.
Principle 22: Right to Trial by an Independent Tribunal

(a) At the option of the accused, a criminal prosecution of a security-
related crime should be tried by a jury where that institution
exists or else by judges who are genuinely independent. The
trial of persons accused of security-related crimes by judges
without security of tenure constitutes a prima facie violation
of the right to be tried by an independent tribunal.
(b) In no case may a civilian be tried for a security-related crime
by a military court or tribunal.
(c) In no case may a civilian or member of the military be tried by
an ad hoc or specially constituted national court or tribunal.
Principle 23: Prior Censorship

Expression shall not be subject to prior censorship in the interest
of protecting national security, except in time of public emergency
which threatens the life of the country under the conditions stated
in Principle 3.
APPENDICES
196
Principle 24: Disproportionate Punishments
A person, media outlet, political or other organization may not
be subject to such sanctions, restraints or penalties for a security-
related crime involving freedom of expression or information that
are disproportionate to the seriousness of the actual crime.
Principle 25: Relation of These Principles to Other

Standards
Nothing in these Principles may be interpreted as restricting or
limiting any human rights or freedoms recognized in international,
regional or national law or standards.
APPENDICES
APPENDIX ‘G’
Text of the UK Editors’ Code of Practice
All members of the press have a duty to maintain the highest
professional standards. The Code, which includes this preamble
and the public interest exceptions below, sets the benchmark for
those ethical standards, protecting both the rights of the individual
and the public’s right to know.
It is the cornerstone of the system of self-regulation to which the
industry has made a binding commitment.
It is essential that an agreed code be honoured not only to the
letter but in the full spirit. It should not be interpreted so narrowly
as to compromise its commitment to respect the rights of the
individual, nor so broadly that it constitutes an unnecessary
interference with freedom of expression or prevents publication
in the public interest.
It is the responsibility of editors and publishers to apply the
Code to editorial material in both printed and online versions
of publications. They should take care to ensure it is observed
rigorously by all editorial staff and external contributors, including
non-journalists, in printed and online versions of publications.
Editors should co-operate swiftly with the PCC in the resolution
of complaints. Any publication judged to have breached the Code
must print the adjudication in full and with due prominence,
including headline reference to the PCC.
1 Accuracy
i) The Press must take care not to publish inaccurate,
APPENDICES
misleading or distorted information, including

pictures.
198
ii) A significant inaccuracy, misleading statement or
distortion once recognised must be corrected, promptly
and with due prominence, and - where appropriate - an
apology published.
iii) The Press, whilst free to be partisan, must distinguish
clearly between comment, conjecture and fact.
iv) A publication must report fairly and accurately the
outcome of an action for defamation to which it has been
a party, unless an agreed settlement states otherwise, or
an agreed statement is published.
2 Opportunity to reply
A fair opportunity for reply to inaccuracies must be given
when reasonably called for.
3 *Privacy
i) Everyone is entitled to respect for his or her private and
family life, home, health and correspondence, including
digital communications.
ii) Editors will be expected to justify intrusions into any
individual’s private life without consent. Account will
be taken of the complainant’s own public disclosures of
information.
iii) It is unacceptable to photograph individuals in private
places without their consent.
Note - Private places are public or private property where
there is a reasonable expectation of privacy.
APPENDICES
199
4 *Harassment
i) Journalists must not engage in intimidation, harassment
or persistent pursuit.
ii) They must not persist in questioning, telephoning,
pursuing or photographing individuals once asked
to desist; nor remain on their property when asked to
leave and must not follow them. If requested, they must
identify themselves and whom they represent.
iii) Editors must ensure these principles are observed by
those working for them and take care not to use non-
compliant material from other sources.
5 Intrusion into grief or shock

i) In cases involving personal grief or shock, enquiries
and approaches must be made with sympathy and
discretion and publication handled sensitively. This
should not restrict the right to report legal proceedings,
such as inquests.
*ii) When reporting suicide, care should be taken to avoid
excessive detail about the method used.
6 *Children
i) Young people should be free to complete their time at
school without unnecessary intrusion.
ii) A child under 16 must not be interviewed or photographed
on issues involving their own or another child’s welfare
unless a custodial parent or similarly responsible adult
consents.
APPENDICES
iii) Pupils must not be approached or photographed at school

without the permission of the school authorities.
200
iv) Minors must not be paid for material involving
children’s welfare, nor parents or guardians for material
about their children or wards, unless it is clearly in the
child’s interest.
v) Editors must not use the fame, notoriety or position of
a parent or guardian as sole justification for publishing
details of a child’s private life.
7 *Children in sex cases

1. The press must not, even if legally free to do so, identify
children under 16 who are victims or witnesses in cases
involving sex offences.
2. In any press report of a case involving a sexual offence
against a child -
i) The child must not be identified.
ii) The adult may be identified.
iii) The word “incest” must not be used where a child
victim might be identified.
iv) Care must be taken that nothing in the report implies
the relationship between the accused and the child.
8 *Hospitals
i) Journalists must identify themselves and obtain
permission from a responsible executive before entering
non-public areas of hospitals or similar institutions to
pursue enquiries.
ii) The restrictions on intruding into privacy are particularly
APPENDICES
relevant to enquiries about individuals in hospitals or

similar institutions.
201
9 *Reporting of Crime
(i) Relatives or friends of persons convicted or accused
of crime should not generally be identified without
their consent, unless they are genuinely relevant to the
story.
(ii) Particular regard should be paid to the potentially
vulnerable position of children who witness, or are
victims of, crime. This should not restrict the right to
report legal proceedings.
10 *Clandestine devices and subterfuge

i) The press must not seek to obtain or publish material
acquired by using hidden cameras or clandestine
listening devices; or by intercepting private or
mobile telephone calls, messages or emails; or by the
unauthorised removal of documents or photographs; or
by accessing digitally-held private information without
consent.
ii) Engaging in misrepresentation or subterfuge, including
by agents or intermediaries, can generally be justified
only in the public interest and then only when the
material cannot be obtained by other means.
11 Victims of sexual assault

The press must not identify victims of sexual assault or
publish material likely to contribute to such identification
unless there is adequate justification and they are legally
free to do so.
APPENDICES
202
12 Discrimination
i) The press must avoid prejudicial or pejorative reference
to an individual’s race, colour, religion, gender, sexual
orientation or to any physical or mental illness or
disability.
ii) Details of an individual’s race, colour, religion, sexual
orientation, physical or mental illness or disability must
be avoided unless genuinely relevant to the story.
13 Financial journalism
i) Even where the law does not prohibit it, journalists
must not use for their own profit financial information
they receive in advance of its general publication, nor
should they pass such information to others.
ii) They must not write about shares or securities in whose
performance they know that they or their close families
have a significant financial interest without disclosing
the interest to the editor or financial editor.
iii) They must not buy or sell, either directly or through
nominees or agents, shares or securities about which
they have written recently or about which they intend
to write in the near future.
14 Confidential sources
Journalists have a moral obligation to protect confidential
sources of information.
15 Witness payments in criminal trials

APPENDICES
i) No payment or offer of payment to a witness - or any

person who may reasonably be expected to be called as
203
a witness - should be made in any case once proceedings
are active as defined by the Contempt of Court Act
1981.
This prohibition lasts until the suspect has been freed
unconditionally by police without charge or bail or the
proceedings are otherwise discontinued; or has entered
a guilty plea to the court; or, in the event of a not guilty
plea, the court has announced its verdict.
*ii) Where proceedings are not yet active but are likely and
foreseeable, editors must not make or offer payment to
any person who may reasonably be expected to be called
as a witness, unless the information concerned ought
demonstrably to be published in the public interest and
there is an over-riding need to make or promise payment
for this to be done; and all reasonable steps have been
taken to ensure no financial dealings influence the
evidence those witnesses give. In no circumstances
should such payment be conditional on the outcome of
a trial.
*iii) Any payment or offer of payment made to a person later
cited to give evidence in proceedings must be disclosed
to the prosecution and defence. The witness must be
advised of this requirement.
16 *Payment to criminals
i) Payment or offers of payment for stories, pictures or
information, which seek to exploit a particular crime
or to glorify or glamorise crime in general, must not be
made directly or via agents to convicted or confessed
APPENDICES
criminals or to their associates – who may include

family, friends and colleagues.
204
ii) Editors invoking the public interest to justify payment
or offers would need to demonstrate that there was good
reason to believe the public interest would be served. If,
despite payment, no public interest emerged, then the
material should not be published.
The public interest

There may be exceptions to the clauses marked * where they can
be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or
statement of an individual or organisation.
2. There is a public interest in freedom of expression itself.
3. Whenever the public interest is invoked, the PCC will require
editors to demonstrate fully that they reasonably believed that
publication, or journalistic activity undertaken with a view to
publication, would be in the public interest.
4. The PCC will consider the extent to which material is already
in the public domain, or will become so.
5. In cases involving children under 16, editors must demonstrate
an exceptional public interest to over-ride the normally
paramount interest of the child.
APPENDICES
205
About the Author
DR VENKAT IYER
BSc(Hons), LLB, LLM, PhD, Barrister
Senior Lecturer in Law, University of Ulster, UK, and Law

Commissioner, Northern Ireland
Dr Venkat Iyer is a barrister and academic. He is attached to the

School of Law of Ulster where he teaches constitutional law,
media law, and business law. A former Nuffield Press Fellow at
Cambridge University, Dr Iyer has lectured in a number of
foreign universities, including Meiji University in Tokyo,
Japan, University of Melbourne, Australia, and University of
Malaya, Malaysia, and acted as a consultant to a number of
governments, private corporations, and non-governmental
organisations. In 2003-2004, he was invited by the Royal
Government of Bhutan to advise on, and draft, media laws for
that kingdom. In 2007, he was appointed a consultant by the
World Bank to review and design a programme on Continuing
Legal Education for the Kenyan Bar. Dr Iyer runs training
courses on media law and ethics for newspapers and media
organizations around the world. He is the author of a number of
books and articles, and the editor of The Commonwealth
Lawyer and The Commonwealth Journal of International
Affairs, both published from London.
ISBN 978-983-43747-7-8
9 789834 374778
The Asia-Pacific Institute for Broadcasting Development (AIBD)

2nd Floor, Old IPPTAR Building, Angkasapuri
50614, Kuala Lumpur, Malaysia
Email : admin@aibd.org.my
Website : www.aibd.org.my

AIBD FES Media Law-1 Printed Version October 2010

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

AIBD FES Media Law-1 Printed Version October 2010

Uploaded by

Copyright:

Available Formats

MEDIA LAW

ISBN No. 978-983-43747-7-8

Layout design and printing by Drei Angle Zentrum

In recent years, with the technological advances in new media and

A country’s legal system, both its laws and their enforcement, is a

However, laws alone rarely ever determine how pluralistic and

For journalists, it is even more important to understand the significance

- Henning Effner - Sabine Franze

I am particularly pleased that Dr Venkat Iyer, who has conducted many

But a combination of factors made that arrangement less than satisfactory

Consequently, the awareness of a need for the working journalist – and

It is seldom realised that sometimes all that is required for a journalist

I would like to congratulate the Asia Pacific Institute of Broadcasting

I hope that the handbook will prove useful to media practitioners

Foreword – Henning Effner, i

1. Freedom of Expression: General Principles 1

4. Media Coverage of Sensitive Matters 86

6. National Security and Public Order 133

7. Obscenity and Indecency 144

9. Official Secrecy and Access to Information 164

10. Election coverage 169

11. Self-Regulation of the Media 174

Appendix ‘A’ – Text of Article 19, 180

Appendix ‘B’ – Text of Article 19, 181

Appendix ‘C’ – Text of Article 10, 182

Appendix ‘D’ – Text of Article 13, 183

Appendix ‘E’ – Text of Article 9, 185

Appendix ‘F’ – Text of the Johannesburg Principles 186

Appendix ‘G’ – Text of the UK Editors’ Code of Practice 198

1.1 How important is freedom of expression and its corollary,

The importance of this freedom was underlined by the

1. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism,

1.2 What are the purposes that freedom of expression is

the democratic process in society; and

1.4 How does the law deal with freedom of expression?

more liberal than others. Even within countries, there might

1.5 What are the legal best practices in this area?

1. The restriction must fall within one or more heads of

1.6 What are the international standards in this area?

in documents emerging from these bodies.

1.7 What are the main features of the right to freedom of

Prior restraint in relation to printed matter and regular radio

1.10 To what extent may the media rely on international law

law binding on all countries. Thirdly – and less strongly –

domestic law in appropriate cases, given the similarity

behalf of journalists who may be facing imminent threats to

1.12 Does the right to freedom of expression contain any

this case, a public spirited citizen had published a report into

report on public sessions of the public authorities or the

1.14 What about provisions that require the media, esp.

1.15 Are laws which require cable television operators to

1.16 Can the media claim any special rights?

circulations larger than 20,000 copies per week. Such a tax,

1.18 Are accreditation schemes for journalists legal?

criteria for the accreditation scheme should be specific,

28. Informationsverein Lentia v. Austria 24 November 1993, Application Nos. 13914/88,

1.21 Can the media be subject to business regulation?

long as these requirements are enforced fairly and even-

33. Inter-American Declaration of Principles on Freedom of Expression, approved by the Inter-

1.22 Are advertisements protected by freedom of expression

1.23 What happens when the government uses advertising as

for freedom of the press.38

1.24 Do governments have any special responsibilities in