The following is taken from the law chapter of The Online Journalism Handbook. The book blog and Facebook page contain updates and additions – those specifically on law can be found here.

Harassment

The Protection From Harrassment Act 1997 is occasionally used to prevent journalists on reporting on particular individuals. Specifically, any conduct which amounts to harassment of someone can be considered to a criminal act, for which the victim can seek an injunction (followed by arrest if broken) or damages.

One example of a blogger’s experience is illustrative of the way the act can be used with regard to online journalism, even if no case reaches court.

In January 2010 the Seismic Shock blog published a post linking an Anglican reverend with holocaust denial and antisemitism. The reverend complained of harassment to his local police force – Surrey Police – who passed on the complaint to the police force covering the blogger’s district: Yorkshire Police. Yorkshire Police visited the blogger and suggested he remove his blog.

The blogger, feeling intimidated, complied.

It was only when the reverend threatened another blogger (who had linked to the same evidence), boasting of his previous success (and falsely claiming that Seismic Shock had received a caution), that the Seismic Shock blogger talked publicly about what had happened and the story received national attention (Cellan-Jones, 2010).

Defences to a charge of harassment include if you were undertaking actions for the purpose of preventing or detecting crime, or that your conduct was “reasonable” in the particular circumstances.

The fewer the incidents, and the more spaced out the instances of those, the weaker the case.

If you have complied with an internal code of conduct with regard to privacy and fairness this will also help you.

A further consideration with regard to harassment is if someone claims that they are being harassed on your website. While they can report the harasser to the police, they might also expect you to take action under the Equality Act 2010 if the harassment is sexual in nature or based on gender, sexuality, disability, age, pregnancy, race or religion.

This legislation is useful to refer to if you wish to remove content that might be considered harassment, or bar a contributor for such behaviour. As always, clear terms and conditions outlining unacceptable behaviour that would result in such actions will strengthen your position.

Data Protection

If you gathering user information in any way – for example, requiring users to register to comment, upload material or to access your site, or ‘crowdsourcing’ details which include personal information – then you will need to be aware of the Data Protection Act.

The Data Protection Act 1998 stipulates how you should process any personal information you handle, and gives individuals powers to request access to information held about them. It requires that you use information “fairly and lawfully” and only for the purposes for which it is gathered, and only for as long as it is needed; that you store it securely and do not transfer it outside the EU (unless you ensure adequate protection); that you keep it accurate and up to date where necessary; and that you provide avenues for users to access their personal data if they require it.

In practical terms this means that when you gather information you should be clear about what it is to be used for and how the user can gain access to information held about them.

You should only provide access to user databases or spreadsheets containing personal details to members of staff who need that access to do what you said would be done with that information.

Importantly, the Act contains an exemption for information held only for ‘journalistic, literary or artistic’ purposes, which applies before first publication and if the publisher believes that publication would be in the public interest.

If these conditions are met then the data must only be held securely and you are exempt from the other requirements.

This is clearly important because otherwise the subject of a secret investigation could request any information that is held about them.

More information and advice about data protection can be found on the Information Commissioner’s Office website.

Hate speech laws

A number of laws forbid expression of ‘hate speech’ online in the UK. The Public Order Act 1986, the Racial and Religious Hatred Act 2006 and the Criminal Justice and Immigration Act 2008 cover, respectively, stirring up racial hatred (which can be based on nationality, colour, and ethnic origins); stirring up religious hatred; and inciting hatred on the basis of sexual orientation. If material is published on your site comes under any of these categories you should inform the contributor of the legal basis under which you are removing them.

Incitement and offensive communications

In addition to the hate speech laws covered in the Online Journalism Handbook, there are three other laws that are increasingly coming into play with relation to comments posted by website users.

The law on incitement – now “encouraging or assisting a crime” under the Serious Crime Act 2007 covers acts where individuals incite others to commit illegal acts. It was used in a number of cases surrounding the UK riots where defendants were accused of encouraging disorder using social networks such as Facebook, with two men in particular receiving a sentence of 4 years in prison as a result.

Student Liam Stacey was charged under a second act – the Crime and Disorder Act 1998 – which covers incitement to ethnic or racial hatred, after making racist remarks on Twitter in the aftermath of the collapse of Bolton Wanderers footballer Fabrice Muamba. He was sentenced to 56 days in prison.

The Communications Act 2003, specifically Section 127 – covers “grossly offensive” messages, a term broad enough to include a worrying range of discussion for publishers.

A number of Twitter users have been prosecuted under the act for offensive messages sent to footballers.

It was also used to prosecute Azhar Ahmed for the following statement, also on Facebook:

“People gassin about the deaths of soldiers! What about the innocent familys who have been brutally killed.. The women who have been raped.. The children who have been sliced up..! Your enemy’s were the Taliban not innocent harmless familys. All soldiers should DIE & go to HELL! THE LOWLIFE F*****N SCUM! gotta problem go cry at your soliders grave & wish him hell because that where he is going..”

The contentious issue here is who decides what is offensive. As Fahad Ansari explains:

“The test for “grossly offensive” is whether or not the message would cause gross offence to those to whom it relates, who need not be the recipients.”

Normally these laws are used to charge individuals, but publishers and journalists should also be aware of the potential for them to be used to request users’ details – including sources. If they have been warned about such content and have not removed it, there may also be legal consequences. These are as yet largely unexplored, although the case of News Ltd in Australia – found to have breached racial discrimination laws in publishing moderated comments – is illustrative.

The lawyer Charles Russell deconstructs a series of cases relating to that act here, including the ‘Twitter Joke Trial’.

Stalking

Bloggerheads’ Tim Ireland writes about his experiences of accusations of ‘stalking’ by one MP after he wrote about evidence surrounding the investigation into her expenses claims. The series is worth reading as an illustration of how social media is bending the boundaries of the physical and digital worlds:

“Chris Paul blogged about Nadine Dorries. Dorries reported him to police as a stalker.

“Ms Humphreycushion tweeted about Nadine Dorries. Dorries reported her to police as a stalker.

“I blogged and tweeted about Nadine Dorries. I also attended a public meeting I was invited to. Dorries reported me to police as a stalker.

“Linda Jack ran against Nadine Dorries in an election. Dorries reported her to police as a stalker.“

Tim has used the Data Protection Act particularly well to obtain the original complaints made against him, although:

“Even when I submitted a subject access request to her office legally compelling her to reveal what she claims are my emails, she refused to cooperate (!) in defiance of the Information Commissioner’s Office and the Data Protection Act.”

Do you know of any other examples of stalking laws being used in relation to journalism?

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Last month you may have read the story of lobbyists editing Wikipedia entries to remove criticism of their clients and smear critics. The story was a follow-up to an undercover report by the Bureau of Investigative Journalism and The Independent on claims of political access by Bell Pottinger, written as a result of investigations by SEO expert Tim Ireland.

Ireland was particularly interested in reported boasts by executives that they could “manipulate Google results to ‘drown out’ negative coverage of human rights violations and child labour”. His subsequent digging resulted in the identification of a number of Wikipedia edits made by accounts that he was able to connect with Bell Pottinger, an investigation by Wikipedia itself, and the removal of edits made by suspect accounts (also discussed on Wikipedia itself here).

This month the story reverted to an old-fashioned he-said-she-said report on conflict between Wikipedia and the PR industry as Jimmy Wales spoke to Bell Pottinger employees and was criticised by co-founder Tim (Lord) Bell.

More insightfully, Bell’s lack of remorse has led Tim Ireland to launch a campaign to change the way the PR industry uses Wikipedia, by demonstrating directly to Lord Bell the dangers of trying to covertly shape public perception:

“Mr Bell needs to learn that the age of secret lobbying is over, and while it may be difficult to change the mind of someone as obstinate as he, I think we have a jolly good shot at changing the landscape that surrounds him in the attempt.

“I invite you to join an informal lobbying group with one simple demand; that PR companies/professionals declare any profile(s) they use to edit Wikipedia, name and link to them plainly in the ‘About Us’ section of their website, and link back to that same website from their Wikipedia profile(s).”

The lobbying group will be drawing attention to Bell Pottinger’s techniques by displacing some of the current top ten search results for ‘Tim Bell’ (“absurd puff pieces”) with “factually accurate and highly relevant material that Tim Bell would much rather faded into the distance” – specifically, the contents of an unauthorised biography of Bell, currently “largely invisible” to Google.

Ireland writes that:

“I am hoping that the prospect of dealing with an unknown number of anonymous account holders based in several different countries will help him to better appreciate his own position, if only to the extent of having him revise his policy on covert lobbying.”

…and from there to the rest of the PR industry.

It’s a fascinating campaign (Ireland’s been here before, using Google techniques to demonstrate factual inaccuracies to a Daily Mail journalist) and one that we should be watching closely. The PR industry is closely tied to the media industry, and sockpuppetry in all its forms is something journalists should do more than merely complain about.

It also highlights again how distribution has become a role of the journalist: if a particular piece of public interest reporting is largely invisible to Google, we should care about it.

UPDATE: See the comments for further exploration of the issues raised by this, in particular: if you thought someone had edited a Wikipedia entry to promote a particular cause or point of view, would you seek to correct it? Is that what Tim Ireland is doing here, but on the level of search results?

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2 weeks ago the Scottish Sunday Express led with this cover story (PDF) on how the survivors of the Dunblane massacre were turning 18 and – shock, horror – drinking and making rude gestures. Reporter Paula Murray, it seemed, had “managed to inveigle her way into a Facebook friendship with teenagers from the town and write a salacious piece about their “antics”, based on information culled from their profiles.” You can read it in full here (text) and also here (PDF). The original was quickly taken down.

So far, so middle market. But what happened next was an abject lesson for the Express – and Paula – in how things have changed for journalists who will do anything for a ‘story’.

Of course, “the blogosphere erupted” as some newspapers reported (as if this was some fringe). That included comedy writer Graham Linehan, who wrote a wonderful post urging readers to take action:

“Clearly aware of the legal guidelines in place to protect those under eighteen against invasion of privacy (and the specific instructions that the Press Complaints Commission issued regarding the Dunblane children), she waited until they hit eighteen. Then she wrote this.”

His suggested actions included writing to the editorial director and publisher, joining a Facebook protest group and signing an online petition.

At the time of writing his post has had 173 comments, the Facebook protest group has over 6,800 members and the petition has had over 10,000 signatories.

Meanwhile there was extensive discussion on forums, Twitter, and more blogs.

Bloggerheads – who you may remember from their campaign against Daily Mail journalist Julie Moult – highlighted at length Paula Murray’s double standards in her own use of social media, including many images culled from her Facebook profile and Twitter account:

“In her attack on Dunblane survivors, Paula Murray castigated and demonised survivors of that tragedy who “boasted about alcoholic binges”, which is EXACTLY what she’s doing here.”

It also managed to find that the quote from an MP apparently condemning the teenagers’ behaviour were taken out of context.

And it supplied a list of Express advertisers to target.

Meanwhile, The Press Complaints Commission received over 30 complaints (60 according to Press Gazette) including 2 from those mentioned in the article.

The Express’ apology, for its size, is described by The Guardian as “strongly-worded”.

Bullshit.

It’s largely self-congratulatory: “It is 81 years since the first edition of this great newspaper rolled off the presses in Glasgow,” is the first line. The last is: “The Scottish Sunday Express is a big newspaper, with a long and illustrious history. We are also big enough to say we are truly sorry.”

Big enough to say sorry, but not big enough to allow people to comment on the apology. The door is closed. Talk to the hand.

Big enough to say sorry, but not big enough to realise that the balance of power has shifted. Your readers are your distributors. Piss them off, and you have a distribution problem. 

Big enough to say sorry, but not big enough to learn from Liverpool’s boycott of The Sun, or the mistakes made in reporting the Virginia Tech tragedy.

If I was a senior staffer on the Scottish Sunday Express I’d see this as a distribution opportunity. I would open comments on the apology and respond to them myself. I might even give Paula Murray some quick training in online communication and point out that she would do well to engage herself.

I would use the apology to link to the Facebook group and online petition to show that we were aware of them. I would also visit that Facebook group and apologise there.

I would visit as many forums and blogs as I can and apologise again.

And I would follow up and address responses to my apology that raise reasonable points I can respond to.

I would not entrust this to a PR company or marketing department, or to a junior member of staff. Because this is about distribution – and you wouldn’t entrust a negotiation with TNT to a PR person would you?

Start learning. Start talking.

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UPDATE: A response from the Daily Mail’s Martin Clarke: “comments on the article in question were not published, because the story was already a few days old … If you want to complain about a story some days after it’s published you have to take a more traditional view of things and write to the editor”

I’ve blogged before about the problem with ignoring comments. But recently “marketing man gone native” blog Bloggerheads has been providing a rather stronger case.

Julie Moult is a journalist who wrote a particularly poorly informed non-story for the Daily Mail about UK MP Hazel Blears being Googlebombed (in short, Blears wasn’t Googlebombed at all: the top result for her name just happened to be a humorous image).

The Bloggerheads blogger (‘Manic’), frustrated by its inaccuracies, posted a comment on the story correcting it. Because that’s what comments are for, right?

Apparently not.

The comment was not published. So Manic took things up a notch.

He posted a lengthy – and search engine optimised – blog entry – Julie Moult is an idiot – to demonstrate his points:

“I think with a quiet word to my readers and a few other web users, I could easily have the entire front page for ‘julie moult’ in Google Images filled with images telling the world that Julie Moult is an idiot… and if she thinks really, really hard about it, she might just begin to understand that what enables/powers the eventual result isn’t magic or trickery, but instead Google detecting a genuine public response to my appeal and her own damn articles”

Just over an hour after publishing, his post was the top result on Google for the search ‘Julie Moult’. Now, as predicted, the whole page of results is also filled with similar entries.

Yesterday he published an update taking things up another notch – this time targeting the Daily Mail itself.

The problem? Despite the fact that “tens of thousands” of readers had seen Manic’s post (including “people at 36 different workstations at Associated Newspapers,”) the article has not been updated – and not a single comment has been published.

“After thousands and thousands of visitors that have dropped by knowing that there is something wrong with this article, not one comment has been published about it and not one change has been made.

“And if that’s not bad enough, The Daily Mail then go on to lie about it:

“”No comments have so far been submitted”…?

“What a pack of lying bastards.”

He’s now inviting readers to help document “the lies and falsehoods of the Daily Mail (focusing on a subject, speciality or columnist of your choosing)” and get Daily Mail Watch to the top of the Google search for Daily Mail.

They’re hitting the Daily Mail where it hurts – on search engines – and who can blame them? It is incredibly frustrating for any reader to put the effort into posting a useful comment on a news website only to see it disappear into oblivion. I know – it happened to me when I also published a comment correcting a Daily Mail article last February (worse, Martin Belam’s comment was edited to remove criticism*).

The lesson behind all this is best left to Manic himself:

“Just so you’re aware that your notoriously self-serving comment moderation policy does have its hidden costs; normally you lot wouldn’t be worth the time and effort, but your ignoring/deleting my quite reasonable comment response to your article annoyed me just long enough for this idea to take shape. There, now aren’t you glad that you censored a polite comment pointing out an obvious flaw?”

*UPDATE: It seems Belam’s full comment was eventually reinstated, lower down the comments and with a timestamp the day after Belam blogged about it.

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