Media Law

by Sallie Spilsbury

London: Cavendish Publishing, 2000
Pp.570, £22.95 (pb)
ISBN 1 85941 530 X

Reviewed by:
MICHAEL SKREIN
Head of the Media Unit, Commercial Disputes Group
Richards Butler

This excellent book approaches media law from the point of view of both practical application and theoretical framework. The bulk of it looks at regulation of media content.

The book starts with the Human Rights Act 1998, and its effect on the media. This might seem a curious place to begin. But the principal concern of the text is the extent to which the media enjoys freedom of expression. So, when the author goes on to look at substantive law, after a helpful detour to cover both private and public law remedies, she has content and free expression very much in mind.

The first chapter in this substantive section is defamation. There is then one on malicious falsehood. By the time one has read the chapter on the law of confidence, one is almost half way through the book. There follow chapters on copyright and related rights, chapters that this reviewer would have liked to have been longer. Then we are back into human rights: privacy and, after data protection, contempt, sources, morality and secrecy/freedom of information.

The substantive section closes with a chapter on character merchandising and another on competitions. There follow the comparatively short second and third sections of the book. The first of these looks at extra-judicial regulation of media content. The second examines certain day to day transactions and, in particular, provisions from typical media agreements. Here the author aims to provide a context for what has come before.

The book is quite big. Who is it intended for? Law degree and LPC students, and practitioners. It can both be read from cover to cover and kept on the shelf for reference. It will be of use to those whose need to know about media law is frequent, as it will be to those whose need is occasional.

The book is designed to bridge the gap between traditional text books and practitioners’ works. It certainly achieves explanation, with clarity and without condescension of so many basic elements of so many different topics. It takes readers through these various branches of the law, balancing the need to say enough with the need to be concise, so as to cover all these topics in just the one book.

This is not a dry textbook. It contains opinion, and innovative thought. As a lawyer in private practice, this reviewer will certainly want to have the book for its new look at problems, and their legal context.

To go back to the beginning, the Human Rights Act 1998 overlays everything. And so, this book starts straight off with it and, indeed with a paean to freedom of expression. Free speech has not been protected in this country to the same degree that it has been in the United States. The Act gives effect to the European Convention on Human Rights. Whether the need for our courts to construe legislation in line with the Convention will make much real difference to the freedom of expression allowed to our media remains to be seen. The law will develop – indeed, the author would be entitled to curse her luck in not having available the Douglas decision (Douglas v. Hello! Ltd [2001] 2 WLR 992) when discussing the development of a right to privacy in the wake of the Act. But for anyone wanting to understand the structure of the Act in 30 pages, this book is the place to come.

It sets off at a cracking pace and contains a judicious mixture of law and easy to read practical example. After that helpful chapter on remedies, the author has about 100 pages to cover defamation and malicious falsehood. That is not much space in which to provide both a beginner’s guide and an interesting discussion. Somehow, she manages it. This is partly, again, through the use of example and comparison. The book is not dull. Few readers would fail to find the discussion on meaning, for instance, thought provoking.

It is on the subject of journalists’ sources that the author’s opinion comes through most clearly. She warns in her opening chapter that ‘it is at least arguable that English law concerning the disclosure of sources has been applied in a way which cannot be reconciled with the Convention’. This is a mild way to put it. English courts’ lip service to the value of the role of the journalist is illustrated by the decision of the House of Lord in X Ltd v. Morgan Grampian (Publishers) Ltd [1991] 1 AC 1. This was a case in which the Law Lords ordered disclosure of a journalist’s notes. In doing so, the Lords saw ‘the interests of justice’ as extending to enabling someone to exercise important legal rights and protect himself from serious legal wrongs, regardless of whether he resorts to legal proceedings to attain those objectives. Thus, the desire of an employer to be able to sack a disloyal employee qualifies as engaging ‘the interests of justice’, so that a source may have to be revealed, where otherwise it was protected. The author comments, with restraint, that the breadth of the concept of the interests of justice has substantially reduced the media’s immunity from disclosure. She could have said that this was an astounding judgment, in which our highest domestic court showed what the media is up against. The European Court of Human Rights, as one can see from Goodwin v. UK [1996] 22 EHRR 123, was boxed in on the issue, and those defending the media now have to persuade courts to work around a very hostile definition.

This can be done, as Lord Woolf showed in John v. Express Newspapers [2000] 1 WLR 1931, a decision which post-dates both the Morgan-Grampian and Camelot Group Plc v. Centaur Communications Ltd [1999] QB 124 cases and, as the author says, departs from the approach of previous courts.

The way in which courts treat the issue of source indicates the value courts ascribe to freedom of expression. As the author says, the media must hope that future cases follow the spirit of the Court of Appeal’s decision in John, and afford real weight to the wider public interest in freedom of expression if the anonymity of sources is to be truly protected.

In conclusion, this book contains a nice blend of material – to inform and to provoke thought and discussion.

Citation: Skrein, Michael, 'Media Law, by Sallie Spilsbury', Entertainment and Sports Law Journal (ESLJ) Volume 1, Number 1 <http://www.warwick.ac.uk/go/eslj/issues/volume1/number1/reviews/skrein/>