UK

The Media Ownership (Radio and Cross-media) Order 2011/SI No 1503

This Order amends Schedule 14 of the Communications Act 2003 (“the Schedule”, “the Act”) and the Media Ownership (Local Radio and Appointed News Provider) Order 2003 (SI 2003/3299) (“the 2003 Order”) to deregulate the provisions that govern the ownership of local newspapers, radio and television licences. The Order will remove the restrictions and prohibitions on:

• the number of analogue and digital radio licences one person can own in specified geographical areas;
• the circumstances in which more than one local radio multiplex licence can be owned;
• owning more than one national radio multiplex licence;
• owning a regional Channel 3 licence together with one or more local newspapers with a 20% local market share;
• owning more than one local radio licence (where the licences would overlap in their coverage area) at the same time as owning one or more local newspapers with 50% or more of the local market share in the radio coverage area OR the regional Channel 3 licence; and
• owning a local radio licence AND one or more local newspapers with a local market share of 50% or more in the radio coverage area AND the regional Channel 3 licence (whose potential audience includes at least 50% of the potential audience of the radio service).

DRAFT UK LEGISLATION IN PROGRESS

DRAFT DEFAMATION BILL 2011

The Coalition Government is committed to the reform of the law of defamation – following a sustained media attack on the operation of the substantive law and the costs involved – the campaign being primarily lead by The Guardian – Lord Lester of Herne Hill a prominent human rights lawyer and campaigner for reform of the law introduced a Private Members Bill which was withdrawn when the Government brought forward a draft Bill which is currently being considered by a Joint Select Committee of both Houses.

The full measures included in the Draft Bill are as follows:

• A new requirement that a statement must have caused, or is likely to cause, substantial harm in order for it to be defamatory
• A new statutory defence of responsible publication on matters of public interest
• A statutory defence of truth (replacing the current common law defence of justification)
• A statutory defence of honest opinion (replacing the current common law defence of fair/honest comment)
• Provisions updating and extending the circumstances in which the defences of absolute and qualified privilege are available
• Introduction of a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period has passed
• Action to address libel tourism by ensuring a court will not accept jurisdiction unless satisfied that England and Wales is clearly the most appropriate place to bring and action against someone who is not domiciled in the UK or an EU Member State
• Removal of the presumption in favour of jury trial, so that the judge would have a discretion to order jury trial where it is in the interests of justice.

See Draft Bill and consultation of further possible provisions

External website
http://www.justice.gov.uk/consultations/365.htm

Draft Bill and Consultation
http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf

Webpage of Joint Select Committee of both Houses
http://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-defamation-bill1/

This includes oral evidence of judges with experience in area, media figures such as Matthew Parris and Ian Hislop (Editor of Private Eye) and lawyers with interest in media field.

Draft Protection of Freedoms Bill 2011
This extensive Bill will have several impacts in relation to media law – a privacy dimension in stricter regulation of the operation of private surveillance cameras CCTV (Pt 2 of the Bill cc29-36 (Commons Committee Stage)) – introduces a Code of Practice, an Information Surveillance Commissioner to oversee it – breach of code does not give rise to criminal or civil liability as such, but may be taken into account in judicial proceedings (cl 33 Commons Committee Stage) and a widening of the Freedom of Information Act 2000. 

Chapter 4 of the Bill – a disregarding of certain convictions for Buggery (cl 88-94 – in effect treating certain past offences by homosexuals mainly as never having been committed – though no mention of impact on defamation as convictions cannot be raised in judicial proceedings – a person stating such an offence has been committed could not use justification defence).

Part 6 cl 98-104 – amends the Freedom of Information Act 2000 – in particular including publication of Government ‘datasets’ in information that can be released.

s1 Crime and Disorder Act 1998 - the imposing and reporting of Anti-Social Behaviour Orders
www.opsi.gov.uk/acts/acts1998/19980037.htm

Electronic Commerce (EC Directive) Regulations 2002 SI No 2013
www.opsi.gov.uk/si/si2002/20022013.htm

Communications Act 2003 (complete text)
www.opsi.gov.uk/acts/acts2003/20030021.htm

Terrorism Act 2006 ss1-4 Civil Procedure Rules Parts 1, 24 & 53
www.opsi.gov.uk/acts/acts2006/20060011.htm

Criminal Procedure Rules 2005 Part 16 - reporting restrictions and access
www.opsi.gov.uk/si/si2005/20050384.htm#16

Video Recordings Act 1984 - regulation of classification and supply of videos/DVDs/computer games
www.bailii.org/uk/legis/num_act/1984/1810866.html

Police and Criminal Evidence Act 1984 - regulation of obtaining of production orders and search warrants in relation to journalistic material – excluded and special procedure material and access conditions - ss 8, 9, 11, 13, 14 & Schedule 1, 1A
www.bailii.org/uk/legis/num_act/1984/1871554.html

Public Order Act 1986 - key sections s4 - distribution of threatening, abusive or insulting material with intent to cause a person to believe unlawful violence may be used against him or provoke such violence against him & Part III provisions relating to incitement of racial hatred
www.opsi.gov.uk/acts/acts1986/pdf/ukpga_19860064_en.pdf

Malicious Communications Act 1988 - criminal offence in relation to sending of indecent or grossly threatening or false letters or electronic communications with a view to causing distress or anxiety to the recipient
www.opsi.gov.uk/acts/acts1988/Ukpga_19880027_en_1

Regulation (EC) No 1049/2001, 31/5/2001 OJ L145/43 - rules relating to freedom of information and access to European Union documents
ec.europa.eu/transparency/access_documents/docs/1049EN.pdf

Regulation of Investigatory Powers Act 2000 - important legislation in relation to the interception and monitoring of communications including those of journalists and broadcasters
www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_1

Wireless Telegraphy Act 2006 - regulation of unauthorized broadcasting and pirate broadcasting stations and regulation of the regulation of radio spectrum
www.opsi.gov.uk/acts/acts2006/ukpga_20060036_en_1

Counter-Terrorism Act 2008 – extends ever wider the complex web of provisions to counter the effects of modern terrorism – as well as widening existing definitions of terrorism the Act provides for new powers of search, seizure, copying, and retention of documents (ss1-9); new powers permitting disclosure by anyone of confidential information to the intelligence services free of any obligation of confidence (ss20-21) and a new offence of eliciting, publishing or communicating information about a member of the armed forces that would be likely to be useful to a person preparing an act of terrorism subject to a defence of reasonable excuse (s78)
www.opsi.gov.uk/acts/acts2008/ukpga_20080028_en_1

Coroners & Justice Act 2009 – This Act introduces a number of amendments which may impact on media law – ss62-69 amend the law relating to the making and possession of prohibited images of children; s73 abolishes the common law offences of seditious libel, defamatory libel, and obscene libel; ss74-85 provide for anonymity orders to be made in relation to people willing and able to assist in the investigation of ‘qualifying offences’ (serious offences such as murder); ss86-96 provide for a new regime in relation to the making of witness anonymity orders; Part 7 (ss165-172) provides a regime for the expropriation by ‘exploitation of proceeds orders’ of proceeds received by persons convicted of serious offences from ‘criminal memoirs’; s143 provides for increased criminal penalties in relation to breaches of Directive 20001/31/EC (Electronic Commerce Directive) and Directive 2006/123/EC (provision of services in EU) and ss173-175 amend the Data Protection Act 1998.
www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_1

Irish Defamation Act 2009 - A useful comparison in considering any deficiencies of English and Welsh defamation law is to look at this major overhaul of another common law defamation system – Ireland. The Act also provides for the setting up of a statutory Press Council and Ombudsman to oversee the regulation of the Press – s44 and Schedule 2.
www.bailii.org/cgi-bin/markup.cgi?doc=/ie/legis/num_act/2009/031.html&query=title+(+Defamation+)+and+title+(+Act+)&method=boolean

Policing and Crime Act 2009 - Section 26 extends s53 of the Regulation of Investigatory Powers Act 2000 to non-compliance with a de-encryption notice in relation to investigation to child indecency offences and ss34-42 create powers to grant injunctions to restrain the use of gang related violence – these can include restricting a person using the internet to incite such violence.
www.opsi.gov.uk/acts/acts2009/ukpga_20090026_en_1

Audiovisual Media Services (Product Placement) Regulations SI2010/831
www.opsi.gov.uk/si/si2010/uksi_20100831_en_1

Audiovisual Media Services Regulations SI2010/419
www.opsi.gov.uk/si/si2010/uksi_20100419_en_1

Audiovisual Media Services Regulations SI2009/2979
www.opsi.gov.uk/si/si2009/uksi_20092979_en_1

This tranche of statutory instruments implement the new EU Audiovisual Media Services Directive 2007/65 – the main objectives are to update the regulation of traditional television services within the EU (so-called linear services) but more fundamentally to create a new regulatory regime for web-based television-like services (so-called non-linear services). More controversially, following a complete ‘u-turn’ by the UK Government for the first time in relation to certain categories of domestically produced television programmes, product placement will be permitted subject to fairly rigorous controls.

Video Recordings Act 2010 – A short Act to repeal and re-introduce the provisions of the Video Recordings Act 1984 which was found to be non-compliant with EU law – this error has now been corrected and so the Act can continue legally in force.
www.opsi.gov.uk/acts/acts2010/ukpga_20100001_en_1

The Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulation SI 2010/31 – A series of high-profile ‘data protection’ scandals has lead to demands for the Information Commissioner to be given more effective powers to enforce the Data Protection Act 1998 – this order made under s55A permits the Information Commissioner to impose a penalty for up to £500,000 in relation to specified breaches of the Act.
www.opsi.gov.uk/si/si2010/uksi_20100031_en_1

Scottish

Criminal Justice and Licensing (Scotland) MSP 2010

Provisions  which may impact on the media – s38 (abusive behaviour), s39 Stalking, ss40-43 pornography, extreme pornography and voyeurism; s87 protection of vulnerable witnesses and s90 witness anonymity orders.

Freedom of Information (Scotland) Act 2002
www.opsi.gov.uk/legislation/scotland/acts2002/20020013.htm

The Environmental Information (Scotland) Regulations 2004 SI No 520
www.opsi.gov.uk/legislation/scotland/ssi2004/20040520.htm

Offences (Aggravation by Prejudice) (Scotland) Act 2009 - This Act permits sentencing for the underlying predicate offence to be adjusted where it is aggravated by prejudice relating to disability, sexual orientation, and transgender identity.
www.opsi.gov.uk/legislation/scotland/acts2009/asp_20090008_en_1