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What are the pitfalls for a producer who does not consider the legal implications of the narrative content of his or her film or television programme (i.e. the events it depicts, the manner of such depiction and any statements made within it)?
Is in fact an application of diverse laws that have the ability to effectively regulate the media, as well as many other mediums of communication such as conversation, public speaking, stage performance and other types of public display. The recognition of pitfalls that exist in the current law of England and Wales is therefore an examination of all laws that regulate public communication and determine the extent to which these laws will affect the broadcasting of a film or television programme.
Robertson and Nicol's Media Law specifies that there are four main areas of law and hence, four essential heads of claim that producers must consider in order to avoid any legal action as a result of the content of their film or programme. These four main areas are defamation, obscenity, blasphemy and race hatred, confidence and privacy and copyright. Each of these four headings will be described in brief. It would is also prudent mention that additional rules do exist for the publication and reporting of courtrooms trials Whitehall and other governmental procedures but as such broadcasts are specialised, and on account of the constraints of time, they will not be commented upon as part of this paper, which will deal with the types of pitfalls that careless producers of general films and programmes can fall foul of.
Defamation is a common law doctrine of tort which stipulates that no untrue statement or accusation can be made about a particular celebrity or any other individual. Those 'defamed' have an immediate right of action for compensation to reflect the harm done to their names. One such successful case, which is noted in Scott Bayfield, was that of Sir Elton John against the daily Mirror, where he successfully recovered a large sum as a result of an article claiming that he had an eating disorder due to him being seen to regurgitate crisps. The legal parameters for such statements is as follows:
(a) The test for a defamatory statement
(i) Must damage the reputation
The test for a defamatory statement is a question that is determined by the judge in a given case. The starting point lies in the statement of Pare J in the case of Parmiter v Coupland who stated that a defamatory statement is:
A statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade
This therefore means that the libellous words must actually damage the reputation of the individual about whom they are spoken with the result that any dangerous or insulting comment that has no such effect cannot be found to be defamatory. As stated in the case of Mawe v Pigott:
The very circumstances which will make a person be regarded with disfavour by the criminal classes will raise his character in the estimation of right-thinking men. We can only regard the estimation in which a man is held by society generally
(ii) Words are given everyday and ordinary meaning
Words are held to be given the ordinary meaning of the context of the 'right thinking members of society' of the modern day and the notions that can be inferred from these statements. This has the result that the common law doctrine of precedent in the area of defamation is qualified by changes in society's attitudes and perceptions of the meanings and impacts of words in the era in which the defamatory statement is made although this is wholly the discretion of the judge.
This is often referred to as the 'ordinary reader test' from case law and four tests can be deduced for the purpose of excluding those statements whose meanings are deemed to be 'strained' or 'forced.'
Firstly it is trite law that the statement must be read as having the ordinary meaning that would be conveyed to any reasonable person. Secondly, it must be accepted that the public are not naÃÂ¯ve and they have the ability to recognise a joke and an implication without reacting as if there were a scandal. Thirdly there should be no over analysis of the meaning of the statement in a court of law and fourthly, the context of the statement should therefore be seen as that which would be perceived by the those who would read or view the statement.
In conclusion the producer of a programme must ensure that any derogatory statements are in fact true as this the only complete defence to a charge of defamation. If this is not the case the producer must therefore ensure that the statement, when interpreted in line with the above criterion, does not lower the tone of public opinion held for an individual.
B. Obscenity, blasphemy and race hatred
Obscenity is defined in s 1 of the Obscene Publications Act as an article whose:
effect or the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, in all the circumstances, to read, see or hear the matter contained or embodied in it.
As stated in the case against the rather famous outcry against the publication of 'Lady Chatterly's Lover' Deprave essentially means to 'make morally bad, to pervertdebase or corrupt morally' and to corrupt means to:
To render morally unsound or rotten, or destroy the moral purity or chastity of, to pervert or ruin a good quality, to debase, to defile.
(b) The Contemporary Standards Test
In R v Calder & Boyers Salmon LJ stated we:
Must set the standards of what is acceptable, of what is for the public good in the age in which we live
Therefore in terms of modern day broadcasts there is really very little that producers cannot film for fear of depraving or corrupting and this terminology is fast loosing favour in this forward thinking society.
Recent controversy entailed the case of the public autopsy that aired in 2003 via the influence of the preservation expert, Professor GÃÂ¼nther von Hagans but the context of this broadcast was such that rendered it capable of falling under the public good defence under the 1959 Act, whereby under s 4(1), there is a defence to obscenity where the material is in the interests of science, literature, art or learning. Further to this, Schedule 15, paragraph 5(2) of the Broadcasting Act 1990 has combined this public good ground to apply equally to books and films.
As a pitfall that a producer could fall into, the question of contemporary moral limits could be breached if there is no attention paid to watershed and topics that would overstep the mark in the society of today, including bestiality, paedophilia and, to this day, an erect penis.
The offence of blasphemy is the making of an abhorrent comments of a vilifying, ridiculing or indent kind about God, people of holy personage or Anglican faith Articles.
(b) Application today
Recently there was uproar over the recent broadcast of Jerry Springer, The Musical, which depicted a rather overweight and Asian looking Jesus Christ and a script that was filled with strong and coarse language. Christians and Christian groups complained in their thousands with regard to this broadcast but no successful claims regarding blasphemy were made.
As with obscenity, tolerance has a large part to play in this and as a result, there has only been one successful prosecution since 1922 in the case of Whitehouse v Lemon which was nicknamed the 'Gay News Trial'. Here the magazine Gay News published an article about the conversion of a homosexual to Christianity and there were references made to homosexual acts by Jesus Christ. This case showed that the crucial point of blasphemy is that only the most abhorrent statements or images will actually constitute blasphemy. It is for this reason that 'Jerry Springer the Opera', 'Monty Python's the Life of Brian' and Martin Scorsesee's 'The Last Temptation of Christ,' all escaped prosecution but nevertheless, in the case of the latter two, were heavily censored and even banned from broadcasting for a brief period.
In any case the current law on blasphemy is flawed as it's meaning is too wide, the intentions of the publisher are seen as irrelevant and the law only protects the Anglican church, which is wholly inappropriate to a society governed by secular laws. Since this time Article 14 of the European Convention on Human Rights has been implemented into UK law in accordance with s 1 of the Human Rights Act. Here there can be no discrimination on religious grounds and for this reason, the law of blasphemy will not be updated but has largely been overshadowed by human rights legislation.
3. Racial Hatred
S 18 of the Public Order Act 1986 states that it is an offence to use threatening, abusive or insulting words of behaviour that carry with it the intention to incite racial hatred or where such hatred is likely to be stirred up. S 19 makes it an offence to publish such material. In terms of the groups that are affected, this would include groups that are defined by colour, race or ethnic group, or national origin. There is somewhat of a fine line between those that are included in such a group definition and those that are not but this is beyond the scope of this exercise.
By virtue of s 164 the Broadcasting Act 1990, the offence may now be committed via the transmission of the television and the radio and it is the producer him or herself who is deemed to have made the incitement. As with blasphemy, the intention of the producer is also irrelevant and the result is that any broadcasts of racist points of view have to be reported in a negative medium. If this is the case there can be no prosecution and a defence under Article 10 of the ECHR would be upheld.
The parameters in which this pitfall could occur for the careless producer are therefore very narrow since there would have to be an active attack on a specific race, ethnic group or national origin.
C. Confidence and Privacy
The law of confidence is another common law doctrine which requires that there must be an existing obligation of confidentiality although it is not necessary for there to be an actual contract of confidentiality. Thomas J stated in Argyll v Argyll that:
a contract or obligation of confidence need not be express, but could be implied
Further to this, in accordance with the findings of Lord Goff of Chieveley in the case of Attorney General v Guardian Newspapers Ltd, the requirement is that the party in breach requires to have known or ought to have reasonably known that the information was confidential and this is how third parties, such as film producers, can become liable for breach of confidentiality.
As well as the requirement that there is an existing obligation of confidence that was not already in the public domain, Lord Magarry VC stated in the case of Coco v AN Clark (Engineers) Ltd that the information must also be of the necessary quality of confidence and there must also have been unauthorised use of the information that was to the detriment of the party communicating it.
The enactment of the Human Rights Act has however had an impact on the law of confidentiality as regards finding a balance between Article 10 (ECHR) on freedom of expression and Article 8 (ECHR) on the right to privacy. This was scrutinised in the case of A v B and Another in which Lord Woolf stated that a denial of freedom of the expression under Article 10 (ECHR) has to be justified, regardless of any existing justification on grounds of being in the interests of the public. The enactment of the Human Rights Act and this subsequent judgement therefore go a long way to ensure protection of freedom of expression in the media.
If a producer of a film were to instantly remove a bestseller from the shelf of a bookstore, adapt it into script form and create a movie without the consent or recognition of the author, they would be in breach of the two fundamental facets of copyright protection, namely, the right for the author to draw on the financial and the moral benefit, such as recognition for authorship of their work.
However knowledge of the unlawfulness of this conduct is not enough for a producer to immunise himself from the pitfall of copyright theft. In actual fact, the requirement that a work is 'original' is not wholly accurate for the reason that the quality of the work need not be of the type that is worthy of publication or broadcast. The threshold for originality under the s 1(1)(a) of the Copyright, Patent and Design Act 1988 very low as a result of the fact that courts interpret the term as a relationship between the work dramatic, artistic, musical or literary work and the author.
Peterson J stated in University of London Press v University Tutorial Press that:
The word 'original' does not in this connection mean that work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of 'literary work', with the expression of thought in print or writing
The producer must therefore be aware of the fact that inventive works are not the only types of creations that are protected under the 1988 Act. Peterson J said in the case prior to the enactment of the 1998 Act that this was an essential element of copyright protection not place boundaries on protection such as the length of time taken to create the work, creativeness and the use of styles that have preceded its creation. He states:
If time expended is to be the test, the rapidity of an author like Lord Byron in producing a short poem might be an impediment in the way of acquiring copyright, and, the completer his mastery of his subject, the smaller would be the prospect of the author's success in maintaining his claim to copyright
As a result of this low threshold, courts have in the past recognised copyright protection over works such as examination papers and even football fixture lists.
This therefore means that the potential pitfalls of copyright theft are far greater than for any of the other types of legal pitfall so far mentioned.
There are many pitfalls into which the careless producer can fall but it is also clear, that some, such as obscenity, racial hatred and blasphemy would require something VERY serious in order to fall foul of the common law doctrines that govern these offences. On the other hand, it has become clear that the wide scope given to the quality and type of original work under the Copyright, Patent and Designs Act 1988 means that producers must constantly be on their guard to ensure that they are not in breach of the Act. Finally, recognition of a very fundamental right to freedom of expression, although decided within the context of the law of confidentiality, is a wave of freedom that will transcend all areas of law affecting media broadcasting.
European Convention on Human Rights (ECHR)
Human Rights Act 1998
Obscene Publications Act 1959
Copyright, Designs and Patents Act 1988
Broadcasting Act 1990
Public Order Act 1986
Defamation Act 1952
Parmiter v Coupland (1840) 6 M & W 105
Scott v Sampson (1882) 8 QBD 491
Mawe v Pigott (1869) LR 4 CL 54
Lewis v Daily Telegraph Ltd  AC 234
Mapp v News Group  EMLR 397
Gillick v BBC  EMLR 267
Skuse v Granada TV  EMLR 278
Lewis v Daily Telegraph  AC 234
Popow v Samuels  4 SASR 594
Whitehouse v Lemon (1978) 68 Cr App R 381
Mandla v Dowell Lee  1 All ER 1062
Crown Suppliers v Dawkins  ICR 517
Jersild v Demark (1995) 19 EHRR 1
Argyll v Argyll  Ch 302
Attorney General v Guardian Newspapers Ltd [No. 2]  1 A C 109
Coco v AN Clark (Engineers) Ltd  RPC 41
Saltman Engineering Co Ltd v Campbell Engineering Co Ltd  3 All ER 413
2002 EWCA Civ 337
University of London Press v University Tutorial Press  2 Ch 601
Ladbroke (Football) Ltd v William Hill (Football) Ltd  1 WLR 273
R v Calder & Boyers  1 QB 151
Text Book Publications
G Robertson & A Nicol, 'Media Law,' (Penguin Books, 4th edition, 2002)
J A Scott-Bayfield, 'Defamation Law and Practice' (Butterworths, 1st edition, 1996)
Flint, Fitzpatrick, Thorne A user's guide to Copyright2 (Butterworths, 6th Edition, 2004)
D. Bainbridge Intellectual Property (Longman, 5th edition, 2002)
M Henry Media Industry Transactions, (Butterworths, 1st edition, 1998)
Law Commission's Working Paper No 79 Offences Against Religion and Public Worship, 1986