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.
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.
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’.
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?
Neil Clark on one occasion complained to the police about Oliver Kamm, although he didn’t get anywhere with it. Kamm wrote of “a telephone call from a bewildered gentleman at Abingdon Police Station”.
Could calling a local councillor ‘a fat-faced twat’ on my blog be construed as harassment and would I go to jail?
(Bearing in mind it could be a statement of fact)
It seems to me that a single incident wouldn’t be considered harassment. That wouldn’t stop someone complaining, but would make it unlikely to reach court in my non-legal opinion.
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