Cliff Buddle/JMSC6022/2013
Media Law Course
 Legal Research Tutorials
 24 Jan, 6.30-8.30pm
 29 Jan, 4-6pm
 Digital Media Lab, JMSC
 Case noting
 Research project
 Exam
Intrusions into privacy?
 Photographer David Wolf
 Series “Window Watching”
 SCMP story, 18 Jan. 2013
 Pictures of people in their




homes
Available on his website
http://hongwrong.com/hong
-kong-michael-wolf/
Is it a breach of the law?
Should it be?
Phone hacking?
 Illegal interception of
telephone voicemail
messages
 Celebrities, politicians,
relatives of dead soldiers,
murdered girl
 Leveson inquiry 2011/2012
 Calls for greater regulation of
UK media, underpinned by
law
Naked photographs?
 Prince Harry and naked game
of pool in Las Vegas hotel
suite, August 2012
 Pictures all over the
Internet…
 But British newspapers did
not publish them
 Why not?
Abuses of editorial freedom?
 Southern Weekly
 New Year editorial calling for






application of China’s
constitution
Replaced by propaganda chief
with article praising
achievements of the Communist
Party
Journalists’ outrage, strike
Protests and scuffles
Party boss steps in
Change of editor
Debate over role of the party in
controlling the media
Religious sensitivities





Controversial film made in US
Ridiculed muslim faith
Trailer upload onto Youtube
Sparked riots and protests around the world
Attack on US consulate in Libya, three killed including
Ambassador
 Suicide bombing in Afghanistan
 Move by muslim nations to have United Nations restrict
freedom of expression to prevent attacks on the religion
What is media law?
 What do we mean by the media?
 What do we mean by law?
 How does the law differ from ethics?
 Why should journalists be concerned with the law?
 What are the key legal issues facing the media today?
 How are these issues handled in different parts of the
world?
Fast moving area of the law
 Changes to the media industry
 Law struggling to cope with technological
developments
 Trend towards better protection of people’s privacy
 Calls for greater regulation of the media in some parts
of the world (notably the UK)
 Growth of social media and more investigative
reporting in others (notably mainland China)
What about Hong Kong?







One country two systems
Freedom of the press
Very competitive
Many daily newspapers
Battle of the free newspapers
Awareness of the need to protect free media
Concerns about self-censorship, influence of Chinese
government
 But also concerns about lack of media regulation and
occasional calls for reform
Media Law
 Introduction
 Legal systems and freedom of expression
 Legal foundations, press v judicial system
 Court reporting
 Privacy and obscenity
 Defamation
 Copyright, issues relating to the Internet
Why be a journalist?
 To get rich?
 To enjoy stress-free
working conditions and
lots of leisure time?
 Job security?
Why be a journalist?
 OR
 To travel the world?
 Meet interesting people?
 Witness and record
history being made?
Where is the job satisfaction?
 Break exclusive news




stories
Seek the truth
Access important
information before
others
Give a voice to the weak
and hold the powerful to
account
Change the world for the
better?
What does this have to do with the
law?
 Journalism involves an exercise in…
 The freedom of speech
 The freedom of expression
 The freedom of the press
 Protected by law?
 Is there a difference between them?
US Constitution
 1st Amendment (1791)
 Congress shall make no
law respecting an
establishment of religion,
or prohibiting the free
exercise thereof; or
abridging the freedom
of speech or of the press;
or the right of the people
peacefully to assemble, and
to petition the
Government for redress of
grievances
German Basic Law
 Section 5(i) 1949
 Everyone shall have the right
freely to express and
disseminate his opinion by
speech, writing and pictures
and freely to inform himself
from generally accessible
sources
 Freedom of the press and
freedom of reporting by
means of broadcasts and
films are guaranteed. There
shall be no censorship.
Hong Kong’s Basic Law
 Article 27
Hong Kong residents shall
have freedom of speech,
of the press and of
publication; freedom of
association, of assembly, of
procession and of
demonstration; and the
right and freedom to form
and join trade unions, and
to strike.
Free speech v free expression
 Is there a difference?
 “The freedom of speech (or the freedom of expression)
is a freedom that is essential to Hong Kong’s civil
society.”
 Albert Cheng v Tse Wai Chun, Paul (2000) 3 HKCFAR
339
Freedom of the press v freedom of
expression
 Is there a difference?
 Do media organisations and journalists have special
rights?
 Should they have special rights?
 If so, what should these be?
Protection of sources
 Do journalists have a right to






protect confidential sources?
Judith Miller: Reporter for New
York Times
Jailed for contempt of court for
failing to testify
Investigation into leaking of the
name of Valerie Plame as CIA
agent
Refused to reveal her source
Spent 85 days in jail
Later testified after her source
confirmed he had released her
from duty to keep his name
confidential
Protection of sources
 Sarah Tisdall
 UK Civil Servant jailed in
1983 for leaking official
secrets to The Guardian
newspaper
 The Guardian complied
with a court order to
produce the photocopied
documents (relating to
arrival of Cruise missiles in
the UK)
 These documents allowed
Tisdall to be traced
UK,Contempt of Court Act, 1981
 Section 10
 No court may require a person to disclose, nor is any
person guilty of contempt of court for refusing to
disclose, the source of information contained in a
publication for which he is responsible, unless it be
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.
European Court of Human Rights
 European Court of Human Rights
 Protection of Sources and Article 10 ECHR
 “The protection of journalistic sources is one of the basic
conditions for 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 publicwatchdogrole of the press may be undermined, and the ability of
the press to provide accurate and reliable information be
adversely affected. An order of source disclosure ... cannot
 be compatible with Article 10 unless it is justified by an
overriding requirement in thepublic interest.”
 (Goodwin v UK)
UK Courts
 “The media are the eyes and ears of the public. They
act on behalf of the general public. Their right to
know and their right to publish is neither more nor
less than the right of the general public. Indeed, it is
that of the general public for whom they are trustees.”
 Sir John Donaldson in Attorney-General v Guardian
Newspaper (No. 2) [1988] 3 All ER 545, 600
 Spycatcher case
What about the US?
 Some commentators have argued 1st Amendment
reference to press freedom confers special rights on the
media
 This has mostly been rejected by the Supreme Court
 Ordinary citizens enjoy the same protection against
libel as the press
 But in Miami Herald v Tornillo 418 US 241 (1974) right
to editorial independence was upheld
Miami Herald case
 Political candidate
 Claiming right of reply to editorials attacking him
 Florida’s right of reply law provided such a right
 Does such a law enhance or restrict free speech as
protected by the constitution?
 Law held by Supreme Court to breach constitution
Miami Herald case
 “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 official -- whether fair or unfair -constitute the exercise of editorial control and
judgment.”
Germany
 Constitutional Court interprets Article 5(1) as meaning
press and broadcasting freedom is distinct from
freedom of expression
 Protects institutional independence of newspaper and
broadcasting companies
 Eg. Right not to reveal sources
 Also protects against pressure from other media
groups (Blinkfur, 1969)
What do you think?
 Should the media enjoy special rights?
 Should press freedom be the same as freedom of
expression?
What is the media?
 Traditionally….
 Newspapers
 Magazines
 Radio
 Television
 BUT….
New media?
 Technological advances
have changes the media
scene
 Websites?
 Facebook?
 Wikileaks?
 Bloggers?
 Citizen journalists?
What is law?
 Rules and regulations
governing the way we
live our lives
 Can be distinguished
from ethics: Standards of
behaviour which are not
necessarily underpinned
by law
 Voluntary codes of
conduct, for example
What about media law?
 Significant laws affecting the media
 Sometimes specific laws on how media is regulated
 Tend to focus on broadcast media, but can have wider
application
 Mostly same laws on freedom of expression as for
everyone else
Freedom of expression
 Most issues concerning
media law concern the
concept of freedom of
expression
 What happens when free
expression conflicts with
other rights or interests
 To what extent can
freedom of expression be
restricted?
 Where is the line to be
drawn?
What is freedom of expression?
 Dictionary definition not sufficient
 Covers much more than “speech”
 Comprehensive definition to be found in the
International Covenant on Civil and Political Rights
Free expression: A human right
 Universal Declaration of Human Rights
 Adopted by UN General Assembly 1948
 Article 19
 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
ICCPR
 International Covenant on Civil and Political Rights
 1966
 Legally binding
 Most states have ratified
 24 have not ratified or acceded to ICCPR
 Burma, Malaysia, Singapore have not signed
 China and Cuba have signed but not ratified
ICCPR and Hong Kong
 Article 39 of the Basic Law
 The provisions of the International Covenant on Civil and
Political Rights, the International Covenant on Economic,
Social and Cultural Rights, and international labour
conventions as applied to Hong Kong shall remain in force
and shall be implemented through the laws of the Hong
Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents
shall not be restricted unless as prescribed by law. Such
restrictions shall not contravene the provisions of the
preceding paragraph of this Article.
Where does ICCPR apply?
Article 19, ICCPR
 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.
Article 19, ICCPR
 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.
Why protect freedom of
expression?
 Promotes discovery of truth
 Promotes political participation (by being better
informed)
 Maintains social stability (information allows
problems to be addressed quickly)
 Provides safety valve (more fulfillment)
 Provides crucial check on government
 Guards against gross human rights abuses
Why do we protect freedom of
expression?
 Self-fulfillment
 “Marketplace of ideas”
 Political debate and check on government
Self-fulfillment
 Freedom of expression a basic part of human dignity
 Essential to self-development and fulfillment
 Is freedom of expression more important to human
happiness than other basic needs?
 Food? Housing? Health?
 What do you think?
Marketplace of ideas
 First put forward by English poet John Milton in 1644
 Popularised by philosopher John Stuart Mill in 19th
century
 Wrong to suppress falsehoods
 Allow them to compete with the truth in the
marketplace of ideas – competing views
 Free expression will ensure truth always wins
Influential in US
 The ultimate good desired is better reached by free
trade in ideas – that the best test of truth is the power
of the thought to get itself accepted in the competition
of the market…. That at any rate is the theory of our
constitution.
 US Supreme Court Justice Oliver Wendell Holmes in
Abrams v United States 250 US 616 (1919)
Political debate and check on
government
 “Freedom of speech is the lifeblood of democracy. The
free flow of information and ideas informs political
debate. It is a safety valve: people are more ready to
accept decisions that go against them if they can in
principle seek to influence them. It acts as a brake on
the abuse of power by public officials.”
 Lord Steyn in R v Secretary for the Home Dept, exp
Simms (20000) 2 AC 115
What do you think?
 Are these three reasons always true?
 Is the marketplace of ideas open to everyone
 What about press freedom?
An absolute right?
 Should the freedom of expression be subject to
restrictions?
 Or should it be an absolute right?
 What do you think?
No restrictions?
 Taken to extremes, theory of “marketplace of ideas”
means freedom of expression should not be subject to
any restrictions at all
 Absolutist theory
 Argued by 2 former US Supreme Court justices, Black
and Douglas
 Repeatedly rejected by the majority of the court
Unsuccessfully argued in HK
 Oriental Press case
 Lawyers for popular newspapers tried to argue
freedom of expression is protected in absolute terms
 Secretary for Justice v Oriental Press Group [1998]
2HKLRD 123 (trial)
 Wong Yeung Ng v Secretary for Justice [1999] 2
HKLRD 293 (appeal)
Oriental Press Case 1998
 Obscene Articles Tribunal ruled against one of HK’s
best selling newspapers
 Newspaper also unhappy about court rulings in cases it
was involved in, involving expat judges
 Oriental Daily News responded with strong and
personal criticism of OAT and judges
Oriental Press Case
 Oriental does not care if you are yellow-skinned or
white or a pig or a dog. In our self-defence, we are
determined to wipe you all out!
 Here Kung Fu Tea warns the pigs and dogs: don’t you
bother me again. Otherwise, when I counterattack in
self-defence, you will regret it! I repeat: you will regret
it very much
Oriental Press Case
 Defendants charged with contempt of court through
scandalising the court
 First case of its kind in Hong Kong
 Defence was that the charges breached freedom of
expression
 Right protected by Article 27 of the Basic Law
 Defence rejected and editor jailed for four months
 OPG fined HK$5 million
 Freedom of expression not absolute
 Can be restricted in some circumstances
Scandalising the Court
 Free speech balanced with right of judicial system to be








free from “malicious conduct aimed at undermining the
due administration of justice” – Wong Yeung Ng v. Sec.
for Justice (1999)
Free speech: can criticize courts
Scandalizing: cannot unduly interfere with legal system
Different common law jurisdictions interpret this very
differently
Doesn’t exist in the US
UK has not had a prosecution since 1931
Canada uses a “clear, serious and immediate” danger test
New Zealand: “real risk”
Singapore: “inherent tendency”
Common restrictions
 Safeguarding other rights
 Right to a fair trial
 Right to reputation
 Right to privacy
 Intellectual property
Restrictions
 Laws restricting freedom of expression used by many groups






against media
Big business, rich litigants etc
But most often used by governments
Wary of media threat to their control over information
National Security, State Secrets etc
Restrictions open to abuse – covering up scandals and abuses of
power, cracking down on dissent
History of government restrictions helps explain different
approaches to media law around the world
Early Press regulation in UK
 William Caxton started first British printing press in
1476
 Government quickly enacted laws restricting what
could be printed
 Law of seditious libel made it a crime to publish
criticism of the government, even if true
 Censorship laws spread to British colonies around the
world
Early Press Regulation in US




UK extended censorship to US
This strengthened campaign for independence
Zenger trial, 1735
New Weekly Journal opposed opinions of the Colonial
governor
 Arrested, charged with seditious libel
 Jury refused to convict him – landmark case
 On Independence US adopted strong protection for freedom
of expression
Colonial legacies
 Even in US, many decades before courts began using 1st
amendment to protect freedom of expression
 Many other countries kept UK restrictions after
independence
 Malaysia and Singapore still have Internal Security
Acts, which originated from British rule (Malaysia plan
to repeal it)
Hong Kong
 Still has wide-ranging British enacted laws against sedition
 Last used during Cultural Revolution in 1967
 Tsang Tak-sing jailed for 2 years – now a senior government
official (Secretary for Home Affairs)
 Attempts to liberalise the law have failed
 After 1997, China reversed amendments liberalising law on
freedom of assembly
 Article 23 of Basic Law requires passing of new laws on treason,
subversion, sedition, state secrets
Cultural Restrictions
 Laws restricting freedom of expression are often driven
by cultural sensitivities
 Lese majeste in Thailand, criminalising disrespect for
the monarchy there
 “Defame, insult, threaten...”
 January 17, 2013, “red shirt” leader jailed for two years
for a speech at a rally in 2010
 Lese majeste in Thailand carries a sentence of up to 15
years jail
Religious restrictions
 Laws protecting Islam in Afghanistan, Bangladesh, Brunei,




Indonesia, Malaysia, Pakistan, East Timor
Indonesia prohibits conduct or comment hostile to religion.
Editor charged with blaspheming Islam by publishing cartoon
of Prophet Mohammed
Pakistan religious court held “penalty for contempt of the
Holy Prophet is death and nothing else”
Man jailed for 10 years for outraging religious feelings in
Pakistan in January 2013
Afghan editor sentenced to 2 years for articles against stoning,
Islamic punishment in 2005
Democracy
 Spread of democracy has usually led to easing of
restrictions on media
 South Korea and Taiwan now have much freer media
following advent of democracy
 But this is not always the case
 Criticising a public official in East Timor, one of the
world’s newest democracies, can bring a prison term of
3 years
Economic growth?
 Economists often argue free flow of information
needed for economic growth
 China as an example
 No democracy, but rapid economic growth
 Media still heavily restricted
 Freer now than 20 years ago?
Around the world
Around the world
 http://www.freedomhouse.org/sites/default/files/Cha
rts%20and%20Graphs%20-%20Web%20site_0.pdf
Most important factors?
 History
 Political system
 Economic system
 Religion
 Cultural factors
 Is media freedom more or less important in a
democracy?
But where is the line to be drawn?
 Permitted restrictions on free expression have often
been abused by governments
 To what extent is free expression to be restricted
 In what circumstances
 To what extent?
Next Week
 Legal Systems and Freedom of Expression