Alfred Baker.

Pitman's practical journalism; an introduction to every description of literary effort in association with newspaper production online

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144 PRACTICAL JOURNALISM

than that of supplying the public with information as to the
doings of Parliament or the Law Courts.

Publication of Police and other Official Notices.

An important provision for the protection of newspapers
is contained in Section 4 of the Law of Libel Amendment
Act, 1888, in the form of a stipulation that

" The publication at the request of any Government
office or department, Officer of State, Commissioner of
Police, or Chief Constable, of any notice or report issued
by them for the information of the public shall b j privileged,
unless it shall be proved that such report or publication
was published or made maliciously."

It will be noticed that the privilege is carefully restricted
to notices or reports issued by Government offices or depart-
ments, Officers of State, a Commissioner of Police, or a Chief
Constable, and published at their request. No privilege is
accorded where there has been no such request ; and
information published at the request of mayors, magistrates,
justices of the peace, boards of guardians, county councils,
and similar bodies is not privileged.

The privilege granted by the section may be lost in three
instances : (1) when the publication of the information can
be shown to have been " malicious " ; (2) when a person
aggrieved by the publication has requested the insertion in
the newspaper of a " reasonable letter or statement by way
of contradiction or explanation," and his letter or statement
has been refused insertion ; and (3) when the matter pub-
lished is " not of public concern " and is " not for the public
benefit." It will be seen that the exercise of considerable
editorial discretion is indispensable.



CHAPTER III

COMMENTS AND CONTEMPT OF COURT

FAIR comment on all matters of public interest and on the
conduct of all persons whose conduct is brought prominently
before or at the moment concerns the general public, is
legitimate. The right to comment implies the right to
criticise and to condemn, and to do so, on proper occasions,
with some severity. In giving judgment in an action which
came before him in 1886, Lord Herschell laid down a sound
general rule on the subject. He said : "No doubt the public
acts of a public man can be made the subject of fair comment
or criticism not only by the Press, but by all members of the
public ; but the distinction cannot be too clearly borne in mind
between comment or criticism and allegations of fact, such as
that disgraceful acts have been committed or discreditable
language used. It is one thing to comment upon or criticise
even with severity, the acknowledged or proved acts of a
public man, and quite another to assert that he has been
guilty of a particular act of misconduct."

These words indicate the chief characteristics which differ-
entiate fair criticism from libel. The line is sometimes diffi-
cult to draw. The points to be borne in mind are that, in
order that statements, however strong or severe, may not
exceed the limits of fair comment

(1) They must consist of comments only (mere assertions
of facts are not comments) ;

(2) The matter commented on must be of'-public interest ;

(3) The comment must be fair and honest.

Any person who, by addressing the public, taking any action
in relation to public proceedings, publishing a book, exhibiting
a picture, staging a play, or otherwise, challenges public
criticism, and is not entitled to complain of any criticism that is

145



146 PRACTICAL JOURNALISM

forthcoming, however severe or condemnatory it may be,
provided it is fair and honest criticism, bond fide published
in the public interest.

Where the criticism or comment rests on alleged facts,
care must be taken to ascertain that the supposed facts
really occurred. In the words of Mr. Justice Avory, in
summing up in the case of Kemp v. Yexley (The Times,
26th May, 1914) : " The comment must be founded on facts
that were undisputed that is to say, facts which were
stated must not be mis-stated, and material facts must not
be omitted. If either of these conditions were not fulfilled,
the plea of fair comment would not succeed . . . Further,
what was said must not be expressed in intemperate or
exaggerated language that was out of all proportion to the
matter dealt with."

Criticisms of Judges, Magistrates, etc.

Judges, magistrates, and all other persons who exercise
judicial authority are subject to the same liability to
criticism that exists as regards public men generally. Every
subject is entitled to hold and to say that a particular deci-
sion of a judge or of a magistrate was wrong, or that a
sentence inflicted by either was unreasonably harsh or severe,
if he genuinely thinks so ; and such a statement may be
published in a newspaper. Fair even though severe
comment on the manner in which a judge or a magistrate
exercises his powers is not actionable. But the criticism
will cease to be fair if base, sordid, or unworthy motives
are attributed merely from suspicion, and without there
being any ascertained and provable facts to justify the
charge. In such a case, the statements will be actionable.

Similar considerations apply to criticisms or comments
on the manner in which public worship is conducted by a
clergyman, the public actions or the speeches of a public
man, or the policy advocated by him, and the conduct or
the words of a representative in Parliament so far as the
comments are based on a fair and accurate report.



NEWSPAPER LAW 147

Contempt of Court.

Contempt of court is an offence hardly capable of very
precise definition. Anything which, in the opinion of a
judge, tends or is likely to bring a court or a judge into
contempt or to obstruct or interfere with the proper adminis-
tration of justice, or the carrying through of the prescribed
process of the court, may be held to constitute " contempt
of court " and to be punishable accordingly.

The offence may obviously take many specific forms.
But the following publications have been held to amount
to " contempt "

(a) Articles or comments on legal proceedings civil or
criminal pending at the time of publication ;

(b) Copies of the pleadings or of the evidence to be given
in proceedings not yet tried ;

(c) Reports of proceedings directed to be held in private,
including proceedings before a judge or a master " in
Chambers " ; and comments on such proceedings (though
it seems that it is not contempt merely to mention the result
of the proceedings) ;

(d) Comments on proceedings in which a jury has dis-
agreed and in which, therefore, there is likely to be another
trial;

(e) Comments or other matter likely to deter a witness
from giving evidence, to prejudice the minds of jurors, or
to create prejudice against any person a party to the
proceedings ;

(/) Reports or comments which misrepresent the
proceedings ;

(g) In criminal matters, comments on a charge after a
magisterial inquiry resulting in a committal for trial and
before the trial has taken place.

It is not contempt of court to report the proceedings at an
inquiry before a magistrate where the inquiry takes place
in an open court to which the public is admitted ; or the
proceedings at a coroner's inquest. It is not contempt of
court to publish in the advertising columns or elsewhere



148 PRACTICAL JOURNALISM

a bond fide advertisement inviting persons able to give
evidence in a pending case to communicate to a specified
person or address, or offering a reward for any such evidence.

11 Trial by Newspaper."

The offence somewhat loosely described as " trial by
newspaper " is contempt of court. It has been frequently
denounced from the Bench, and it has been punished, some-
times by fine, sometimes by imprisonment. There are not
wanting indications that the judges are likely in future
to impose severer punishments than hitherto. " The con-
stitution of the country," said Mr. Justice Darling in 1914,
" has provided tribunals with which the country is satisfied,
for the elucidation of truth and for the judging of those who
are accused. It is not necessary that newspapers should
take upon themselves the trial of cases which are to be tried
by persons whose duty it is to try them and who have
experience for the task. There is no public advantage in
newspapers usurping the powers and attempting to cischarge
the duties of the justiciary."

Strictly speaking, newspapers do not attempt to discharge
any of the functions of the justiciary ; they make known
information that comes into their possession bearing on
cases that are to be tried. To what extent is this course
legitimate ? At what point does it become illegitimate ?

To announce that an action has been commenced by one
person against another ; to mention the nature of the claim ;
to state when and where the trial will take place ; to give
similar information as to a pending criminal prosecution :
is not contempt of court. The statements are mere news-
items, which, presumably, will only be published when they
are believed to be of general public interest. Care must be
taken not to frame the statements in such a way as to suggest
to the reader that the person against whom the civil action
has been commenced is undoubtedly in the wrong, or that
the person against whom criminal proceedings are contem-
plated or are pending is guilty ; or in such a way as to be



NEWSPAPER LAW 149

prejudicial to any of the parties concerned. The possibilities
of a libel action are not to be overlooked. And in this con-
nection, the aid of that somewhat overworked word " alleged "
is not to be despised.

Where civil proceedings are involved, the only safe course
is neither to publish the allegations of either party before
they have been made in court at the trial, nor to comment
on the case till after the trial has been completed and the
verdict announced. In particular, information supplied by
or on behalf of one of the litigants should not be published.
The informant may genuinely believe it to be accurate and
unimpeachable : under cross-examination in court it may
break down completely. It cannot be claimed that it is a
matter of urgent public interest that the facts to be brought
out in a civil action should be made known before they have
teen properly sifted in court. And, obviously, previous
publication may prejudice the trial.

Criminal proceedings sometimes involve other considera-
tions ; and there are occasions upon which the temptation
to overstep the boundary is very strong. A serious crime
comes to light which excites public feeling. The circum-
stances are obscure or mysterious. Journalists are
dispatched immediately to ascertain the facts. The fullest
information that can be obtained is given to the public as
quickly as possible. There is risk of inculpating, or, at all
events, of suggesting the guilt of, an innocent person. But,
apart from that, until proceedings have been commenced,
cautiously framed statements on what is a matter of
undoubted public interest at the moment are probably quite
legitimate. Rumours and unauthenticated statements should
not be presented as facts ; and the practice of getting persons
to make statutory declarations, and of publishing these with
the object of giving to one-sided statements a quasi- judicial
appearance, should be scrupulously avoided.

Immediately a public investigation is commenced or some
person is charged at a police court with the commission of
the offence, the newspaper should confine itself to reporting



150 PRACTICAL JOURNALISM

the actual proceedings. Witnesses, or possible witnesses,
should not be interviewed ; no statements not yet made in
court should be published ; and no comments should be
made till the trial has been completed. It is these things
that are objected to as " trial by newspaper."

When a jury disagrees, the same reticence should be
observed. The disagreement of a jury means that the trial
is to take place again ; the case is still sub ^udice. The only
source through which fresh evidence can be legitimately
made known is the court ; and the only time at which it
can be legitimately made known is after it has been given
in court,

Advertisements.

It has already been pointed out that advertisements
inviting communications from persons able to give evidence
in a particular case are legitimate. But an advertisement
may be so worded as to amount to " contempt of court."
The publication in an advertisement of statements or insinua-
tions against the credit or reputation of a party to any pending
proceedings involves liability to the same penalties for con-
tempt as are incurred by comments in the body of the
paper.

Advertisements for Lost Property.

The Larceny Act, 1861 (24 & 25 Vic. c. 96), imposes a
penalty of 50 on every person who " publicly advertises "
a reward for the return of " any property whatsoever," which
has been stolen or lost, and who, in the advertisement, uses
" any words purporting that no questions will be asked,"
or that a reward will be " given or paid " for any property
which has been stolen or lost ' r without seizing or making
any inquiry after the person producing such property."
The Act imposes a similar penalty in respect of any advertise-
ment of stolen or lost goods which contains a " promise or
offer " to return to any pawnbroker or other person who may
have bought or advanced money by way of loan upon the



NEWSPAPER LAW 151

stolen or lost property, the money so paid or advanced, or any
other sum of money or reward for the return of the stolen or
lost property.

Both stipulations apply not only to the advertiser, but
also to every person who prints or publishes the advertisement.

A subsequent Act (The Larceny Amendment Act, 1870,
33 & 34 Vic. c. 65), limits the right to recover from a printer
or publisher of a newspaper penalties for publishing such
advertisements to a period of six months after the date of
the offence, and makes it necessary, in any case, to obtain
the written assent of the Attorney-General or the Solicitor-
General to any action for recovery of such penalties.

Official Secrets.

The Official Secrets Act, 1889 (52 & 53 Vic. c. 52),
imposes heavy penalties upon persons who commit a variety
of offences enumeiated in the Act. Among these, the
principal offences that concern Pressmen are

(1) Obtaining any document, sketch, plan, or model, or
knowledge of anything which the offender is not entitled
to obtain ;

(2) Communicating or attempting to communicate it to
any person to whom it ought not, " in the interests of the
State," to be communicated at that time ,

(3) Inciting or attempting to procure another person to
commit an offence under the Act.

No absolute rule can be laid down as to what comes within
the prohibition. While it is generally quite legitimate to
publish information officially communicated to the Press
by persons in the employ of the Crown or of other public
authorities, there is a risk in publishing information received
surreptitiously from any such person which came into his
possession officially and confidentially by reason of his
official position, and where the information can only reach
the public as the result of a breach of duty on his part
especially when publicity may be contrary to " the interests
of the State." To incite, by the offer of payment or



152 PRACTICAL JOURNALISM

otherwise, any person to obtain or to communicate such
information, is equally an offence.

News in War Time.

In time of war the ordinary rights of the journalist in rela-
tion to the collection and publication of news undergo con-
siderable restriction. Concerning the movements of troops,
the disposition of the fleet, military and naval preparations,
and information generally which is deemed likely to be helpful
to the enemy, strict secrecy is nowadays enforced. It is
customary for Parliament to grant extensive powers to the
Executive in this respect. In the event of an outbreak of
hostilities, the journalist should, therefore, make himself
acquainted with the precise provisions of any emergency
legislation that may be passed, and with the terms of any
Order in Council issued in pursuance of such legislation, and
with all regulations that may be made from time to time by
any Press Bureau, Censor, or other authority temporarily
invested with power to forbid, to delay, or to control the
publication of information of any specific character. He may
find it necessary to submit to a Censor before publishing them
articles or paragraphs relating directly or indirectly to the
war ; and as severe penalties may attach to a disregard of such
a requirement, he should be scrupulously careful to keep
himself well informed as to the regulations on the subject.



CHAPTER IV

QUESTIONS OF COPYRIGHT

Reports of Political Speeches, Lectures, etc.

THE Copyright Act, 1911 (1 & 2 George V, c. 46), expressly
declares that it is not to be an infringement of copyright in
" an address of a political nature delivered at a public meeting"
to publish a report of it in a newspaper ; and it contains a
similar provision with regard to " lectures delivered in public,"
except where a report of the lecture is prohibited by conspic-
uous notices affixed " at or about the main entrance " to the
building and in a position " near the lecturer." Any speech
or address is for this purpose to be regarded as a lecture.
The provision extends to sermons, but in their case the notice
need only be " at or near the main entrance " of the building
in which the sermon is delivered. Lectures or sermons, the
publication of which is in this formal manner prohibited, must
not be reported.

Copyright in Reports, Articles, etc.

Reports, verbatim or otherwise, supplied to a newspaper
by a reporter who is engaged as a salaried servant of the
proprietor of the paper, or who is serving such proprietor
as an apprentice, become the property of the employer, and
the copyright of every report so supplied vests in him, subject
to the restriction that he is not at liberty to publish it in sepa-
rate form (i.e., otherwise than as part of a newspaper) without
the consent of the author.

The same principle applies whether the employer is an
individual, a firm, a news agency, or a joint stock company.

It applies also to news items and to articles supplied in
the course of his employment by a person in the service of
any such employer, whether his remuneration takes the form
of a fixed salary or of payment according to a stipulated
scale for " copy " used.

153

ii (1600)



154 PRACTICAL JOURNALISM

The respective rights of employer or employee may, of
course, be extended or limited by written agreement between
them.

Simultaneous Reports Voluntarily Contributed.

There do not seem to have been any legal decisions deter-
mining the question in whom the copyright vests of news
items sent in simultaneously and in identical terms by an
outside contributor to several newspapers and paid for and
published by two or more of them ; and the Copyright Act,
1911, does not deal with the point. The practice is well
known and has long been recognised ; and it would seem
that each newspaper which pays for and uses such a news
item has a limited copyright in it (i.e., a right to restrain
other persons from copying it from its pages, but not a right
to restrain others from using it who have acquired the matter
direct from the author).

Identical Reports, etc., Supplied by News
Agencies.

News items, reports, articles, paragraphs, and other matter
supplied by a news agency to a large number of newspapers
are usually so supplied on conditions which make it clear
that the only right which is to pass is the right to use the
matter so supplied for the current or an early issue of the
newspaper. Presumably, however, the proprietor of a news-
paper taking and using such matter would be entitled to
prevent any person from actually copying it from his columns.
But he could not infer from its mere presence in another
newspaper that it had been copied from his columns.
Evidence of the fact would be necessary.

The same conditions apply to " serial rights " in stories,
which are arranged for almost invariably on conditions which
reserve the copyright in the author or his assignee.

Copying from other Newspapers.

There is no legal right, apart from a specific agreement
between the parties concerned, for one newspaper to copy



NEWSPAPER LAW 155

articles or parts of articles, news items or reports from any
other newspaper ; and the courts have refused to recognise
any custom to do so. The owner of the copyright is entitled
to restrain all such copying, even when the source is
acknowledged.

This is subject to the right in commenting upon any inci-
dent, or criticising or calling attention to any argument or
expression of opinion in another newspaper, periodical, or
book, to make fair and reasonable quotations. But even this
use of the work of others must be bond fide, and the quotations
must be limited. A few introductory or supplemental
comments will not entitle one newspaper to set out the
whole or the bulk of an article taken, without consent, from
another newspaper.

Extracts from Books, etc.

The Copyright Act, 1911, expressly declares that "any
fair dealing with any work for the purpose of criticism, review,
or newspaper summary " is not an infringement of an author's
copyright. Quotations at such length as to make it
unnecessary for a reader to buy the book " reviewed " will
not be held to be " fair dealing."

Copyright in News.

It is sometimes said that there is no copyright in news.
In a strict sense, this is true : there is nb copyright in an
incident, an occurrence, an event. But there is copyright
in the form in which an incident, an occurrence, or an event
is described in words. It is the particular statement to
which copyright attaches. The facts may be otherwise
stated without infringement of copyright.

Even a list of names, for instance, a list of registered bills
of sale, or any other compilation, is protected where it is
the result of the labour of the person claiming protection,
or of one of his paid servants, or has been acquired by him
by payment. Copyright attaches to it because it is an
original literary product.



156 PRACTICAL JOURNALISM

Reports of cricket and other matches, and of races, etc.,
are in the same category. Even a cricket score obtained
by a reporter in the course of his duties, and telegraphed
by him to his newspaper, is protected. Anybody else who
obtains the same figures by personal inquiry can publish
them ; but he is not entitled to copy them from another
newspaper.



CHAPTER V

EDITORS AND CONTRIBUTORS

Disclosure of Contributor's Name.

IT has been held that where an action for libel is brought
against the proprietor or editor of a newspaper, and he
admits the publication of the words complained of, he can-
not be compelled to disclose the name of the writer, unless
it can be shown that the identity of the writer is a fact
material to some issue raised in the particular case before
the court. In most instances, the question is irrelevant.
The leading case on the point is that of Hennessy v. Wright,
which came before the Court of Appeal in 1888. In giving
judgment, Lord Esher made it clear that, in the opinion of
the court, the sole question was whether the comments
complained of were fair. " How can it be said," asked His
Lordship, " to depend upon the name of the persons who
gave the information, or whether they were acting maliciously ?
How can the names of the informants be important or in any
way effective upon the question whether the defendant's
comments are fair ? 1 cannot see how the knowledge of
those names would aid in solving that question. As to the
question whether the report is correct, how can the names
of infoimants affect the matter ? "

The decision has been followed in all similar cases since.
Disclosure has been refused, and the refusal has been upheld
by the courts where the information sought was the name
of the writer of either an article, a news-item, a report, or
a letter from a correspondent using a nom de plume.

Apart from legal proceedings or a threat of legal pro-
ceedings, a newspaper proprietor or editor should not dis-
close to third persons the names of contributors or corre-
spondents without the express consent of the latter. The
submission of an article or a letter without the actual name

157



158 PRACTICAL JOURNALISM

of the writer attached to it implies a condition that the
name is not to be divulged.

Contributor's Right to " Norn de plume."


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Online LibraryAlfred BakerPitman's practical journalism; an introduction to every description of literary effort in association with newspaper production → online text (page 12 of 14)