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| Are journalists above the law? – asks Abugri |
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| Posted on: 2008-Feb-07 George Sydney Abugri/Daily Graphic |
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At exactly 11.28 a.m. on February 1, 2008, someone using an apparently false name (Yaw Ampiaw), posted a report with the ungrammatical headline "Prof is died" on Ghanaweb. It alleged that the NDC presidential candidate, Professor Evans Atta Mills, had died in South Africa while receiving medical treatment.
In less than an hour, some radio stations in Accra were broadcasting the news. Professor Mills was heard speaking live on radio from South Africa later in the day. "I am alive and kicking", the presidential candidate protested.
It shows that journalists need to be particularly careful about using Internet sources of information, because of their anonymity and unreliability. That a news medium merely published information provided by someone else is no defence under the law when it comes to court suits.
Media publication of information from Internet sources carries great risk, especially because of the danger of defamation. The individual and/or medium who repeats a defamatory allegation is just as liable as the original source of the allegation.
When the chips are down, the anonymous Internet source goes scot-free, leaving the medium which published the information to hold the hot can.
While studying media law will not make lawyers of journalists, knowledge of media law will guide journalists away from the numerous legal land mines which infest the rugged terrain along which the media operate.
It has been frequently explained that most countries' laws on the media exist not to inhibit media freedom, but to protect the rights and welfare of citizens of every country.
In order to do this, media freedoms have to be subjected to some formalities, conditions, restrictions or penalties prescribed by law.
This is done in the interests of democracy, national security, public safety and the protection of the health and morals of citizens of every country.
Other reasons for subjecting media freedom to restrictions include the prevention of crime, the protection of the rights and freedoms of others, preventing the disclosure of lawfully confidential information, and maintaining the authority and impartiality of every country's judiciary.
The study of media law in the training of journalists is intended to introduce journalists to areas of the law, which deal with these restrictions, formalities, conditions and penalties, as well as other legal concerns relevant to their work of gathering and publishing information.
On the basis of the preceding arguments, it may be concluded that journalists who insist on operating outside these clearly defined boundaries of the law are, in effect, demanding that they be allowed to operate outside the rule of law.
Some of the legally risk-prone areas of the law which students of media law are introduced to are those areas related to defamation, libel, contempt of court, the rights of citizens under the law, coverage of issues involving minors, family issues, state secrets, property or copyright, and sexual offences.
British laws and indeed the laws of most countries guarantee full anonymity to complainants in sexual offence cases: Legal restriction on identifying complainants or victims in rape cases states that "once an allegation of rape has been made, the victim's name, address, workplace, school or educational establishment, or picture, must NOT be published in his or her life-time, if it is likely to identify him or her."
In cases of sexual intercourse with a mentally handicapped person, indecent assault of children, incest by a man or woman, the law guarantees the same anonymity for the victims. Anonymity for the complainant or victim remains in force "even if the allegation is later, withdrawn".
The restriction on identifying victims of sexual offences and coverage of issues related to the rights of individuals was the subject of a recent dispute between the Daily Guide newspaper and the National Media Commission (NMC).
The NMC issued a statement critical of the Daily Guide's identification of an alleged rape victim by name and place of residence and the publication of a partially obscured picture of the alleged victim on the paper's front page.
The NMC argued that this was unethical and that the publication had inflicted as much damage on the alleged rape victim as the alleged rapist had done. In the second instance, the NMC statement was critical of another story published in the newspaper under the misleading headline "Mills in coma".
It was evident from the story itself that the reference to a "coma" was not medical, but that it was what the paper referred to as "a political coma". The NMC argued that it was unethical to show insensitivity to "the sick and the vulnerable".
In an editorial, the paper stated that it took "serious exception to the NMC's stance on the alleged rape case, and stated that "we have no remorse for our action in as much as it is in the public interest, and for the [alleged victim] to get justice".
The paper argued that its action "had been informed by the need for justice and the inconsiderate manner in which the case had been handled."
Media law provides journalists with various possible defences where they breach the restrictions on identifying victims of rape. One key defence which journalists and editors can argue in their defence is that at the time of the publication, the news medium did not know that the matter that breached the restriction was included in its story.
A second defence could be that a witness or victim of rape was identified, to show that the journalists had no reason to suspect that the necessary criminal investigation had begun. This appeared to be the Daily Guide's argument, that its action had been informed by "the need for justice and the inconsiderate manner in which the case had been handled."
Other leading legal risks which a study of media law helps journalists to guard against relate to defamation and its two generic variants, libel and slander. Where the defamation is in writing or in some other permanent form, it is a libel. Where it is spoken or in some other temporary form, it is slander.
Media law assures journalists that to be able to successfully bring a claim of defamation against a journalist or news organisation, an aggrieved individual must prove that the news medium and/or journalist against whom the claim is brought did indeed publish defamatory material about the claimant.
For the sake of doubt, a "publication" is defined as the communicating of an allegation to another person or persons. Thus communicating an allegation to one person, as in the case of a letter, or to millions of people, as in the case of a newspaper, is a publication. It makes no difference in law, whether the medium in which the allegation is published is electronic or print.
A defamatory allegation is defined as an allegation that tends to make right-thinking people think the worst of the claimant, and that would lead people to avoiding the claimant or exposing the claimant to ridicule.
Media law makes journalists aware that in a defamatory publication, an unnamed claimant who can be identified by other means as the target of the defamatory allegation made in the publication will be able to sue.
Any person who shares the same name as the intended target of the publication can also sue!
Reporters are advised to use the almighty alibi "allegedly". They are, however, also warned that the word "allegedly" does not protect a journalist or medium sued for defamation, although it might help the defendants' case in court.
Journalists can minimise the risk of contravening reporting restrictions imposed by the law and the risks of defamation suits, by constantly asking a few simple but essential questions:
Do I have the facts? Can I say in all honesty that my report is balanced and fair to all parties concerned? Have I attributed quoted statements in the report to identified and verifiable sources? Will my report contravene any reporting restrictions imposed by law?
Whenever journalists contravene reporting restrictions spelt out in the law, members of the public often ask the discomforting question:
Are journalists above the law?
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