Ethics and PJ Practice L5

Codes of Practice

In the journalism and photography industries it is fundamental to know your rights, and to have trust on your side when producing copy. One of the main jobs of any photojournalist is to gain trust by making content accurate and realistic, and always consider ethical views, the codes of practice, and the legal issues. As viewers, listeners and followers of the BBC, the general public of the UK automatically trust this institution. Following the debate we had during an afternoon workshop 'This house believes that you can trust the media', we found that the majority of news stories, especially represented by the BBC, we trust and believe. This is because, they broadcast a news story exactly how it is happening, with no biased opinions or personal views. Interviews with witnesses etc, obviously display personal opinions, but that is their personal view, not the views of the BBC. The BBC aim to show two sides of a story. According to the BBC: ' we must give our audiences content made to the highest editorial and ethical standards.' 'Drop the Dead Donkey 1990: Death, Disaster and Damien' was a show broadcast on channel 4, and leads us to ask the question: is this ethical? British sense of humour leads us to laugh at this clip, but its not necessarily ethical to a wider audience. The NUJ (National Union of Journalists) claim to be 'the voice of journalists' they have set the key principles of journalism in the UK since 1936. All journalists that join the NUJ, have to agree to abide by their principles and codes of practice.
'A journalist:

1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.
2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair.
3. Does her/his utmost to correct harmful inaccuracies.
4. Differentiates between fact and opinion.
5. Obtains material by honest, straightforward and open means, with the exception of investigations that are both overwhelmingly in the public interest and which involve evidence that cannot be obtained by straightforward means.
6. Does nothing to intrude into anybody’s private life, grief or distress unless justified by overriding consideration of the public interest.
7. Protects the identity of sources who supply information in confidence and material gathered in the course of her/his work.
8. Resists threats or any other inducements to influence, distort or suppress information and takes no unfair personal advantage of information gained in the course of her/his duties before the information is public knowledge.
9. Produces no material likely to lead to hatred or discrimination on the grounds of a person’s age, gender, race, colour, creed, legal status, disability, marital status, or sexual orientation.
10. Does not by way of statement, voice or appearance endorse by advertisement any commercial product or service save for the promotion of her/his own work or of the medium by which she/he is employed.
11. A journalist shall normally seek the consent of an appropriate adult when interviewing or photographing a child for a story about her/his welfare.
12. Avoids plagiarism.'

'Something that is very important in journalism is honour and trust… because our whole business is based on what people believe'. 'The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, make them the common property of the nation… for us, with whom publicity and truth are the air and light of existence, there can be no greater disgrace than to recoil from the frank and accurate disclosure of facts as they are. We are bound to tell the truth as we find it, without fear of consequences.' 'The greatest thing a human soul ever does in the world is to see something, and tell what it saw in a plain way… to see clearly is poetry, prophecy; and religion, all in one.' 'One of the consequences of bringing out detailed sets of regulations is that it fosters a loophole seeking attitude of mind.  The result could be that journalists will come to treat as permissable anything that does not fit the precise specifications of unethical behaviour.' 'The code is now seen as a positive thing, a beacon for journalists to aim for rather than a means to punish.'

Why are codes of Practice Voluntary?

'According to theory, the free press, independent of the state and free from any direct funding by political parties, mediates between the rulers and the ruled, providing the necessary political, financial and social information to the electorate.' 'The notion of the press/media as the Fourth Estate is closely linked to the free press concept….it stresses the watchdog role of the media in providing checks on the abuses of power by both governments and professionals.' 'Journalists assume the role of the ‘public’s guardians’ protecting them against the moral failures of the authorities.'

References

http://www.bbc.co.uk/editorialguidelines/guidelines/

http://www.nuj.org.uk/about/nuj-code/

Geoffery Black quoted in Photojournalism and Todays News by Loup Langton p.139

The Times, 1852, quoted in The Ethical Journalist by Tony Harcup p.28

1904 John Ruskin quoted by Julianne H Newton in The Burden of Visual Truth

1992 Nigel Harris quoted in Richard Keeble Ethics for Journalists 2001

Tim Gopsill from the NUJ quoted in Richard Keeble Ethics for Journalists 2001

http://www.globescan.com/news_archives/bbcreut.html







Copyright & Moral Rights


What Is Copyright?

- The right to authorise or restrict the making of copies
- An authors right and a property right
- A human right
- A collection of rights

Protection, Payment and Permission

Through copyright a photographer can protect their photographs against unauthorised copying and by permitting and restricting use of their photographs they can also get payment from users. Copyright in a photograph lasts for the life of a photographer plus 70 years

A Human Right

Article 27 of the Universal Declaration of Human Rights states that:

1. Everyone has the right to freely participate in the culture of the community to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which they are author.

Human rights legislation support and promote the interests of the creator by guaranteeing respect for their economic and moral rights. The copyright system is the means by which this is achieved.

What is protected by copyright?

Copyright is one of a group of rights called intellectual property rights. ‘Intellectual’ because they are owned like a house or other form of property. Intellectual property in the UK includes patents, trademarks and designs as well as work protected by copyright. Ideas are not protected by copyright. Though copyright attaches to ‘products of the human mind’, the rights only come into existence once the idea is expressed in material form, that is painting, manuscript, photograph or sculpture.

Copyright, Designs and Patents Act 1988

The law protects photographs as artistic works. The act states: 'photograph' means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film. A still from a film or screen grab is not protected by copyright law as a photograph. It is protected as part of a film and the director and producer are its authors and first owners of the copyright.

Computer Generated Work

The term ‘computer generated work’ has a special meaning in UK copyright law. It is work generated by a computer with no human author. The first owner of copyright in such work is the ‘person by whom the arrangements necessary for the creation of the work are undertaken’. It is therefore not a good idea for a photographer to refer to digital photographs or digitally manipulated photographs as ‘computer generated’.

Sampling

For most types of copyright there is an adaption right. The purpose is to allow the author to licence another person to make an adaptation of their work, for example to turn a book into a film. There is no such right for artistic work and photographs. Photographers must instead use their right to control the making of copies (the reproduction right). Where a second image or photograph is created by copying another, then permission should be obtained from artist or photographer who created the first image. Then if there is sufficient creative input in the second work, it will be treated as and original copyright work in its own right. However that does not affect the copyright protection afforded to the underlying work.

Authors and Employees

The author of a photograph is the creator of the work. This term applies to creators of every sort of protected work not just writers. In the case of a photograph, the author is the photographer, not the assistant that loads the film and may even press the button on the camera, nor the art director who came up with the initial concept, nor the stylist. Employed photographers do not hold the copyright of any work produced ‘in the course of their employment’. Instead copyright is owned by the employer. An employed person is generally taken to be someone who works under a contract of employment whose Tax and National Insurance contributions are deducted before receipt and whose employee contributions are paid by their employer.

Moral Rights

In the UK, moral rights are an integral part of copyright law. They differ from other aspects of copyright law because they are personal to the author and are therefore not the same as ‘economic’ rights. That is, moral rights cannot be said to have a direct financial value. Their emphasis is on maintaining the integrity and inviolability of a work, rather than protecting it’s economic value. However, Photographers may find that lack of respect for their moral rights can damage their reputation, ultimately affecting the financial return from their work. As moral rights are personal to the photographer, they cannot be assigned to someone else unlike copyright. Photographers can only assert moral rights or give them up.

The Attribution Right: It is the photographer’s right to have to have their name appear alongside their photograph when ever it appears. This right applies when a photograph is published; when it is exhibited in public; when it is broadcast; or when it appears in a film. This right must be asserted in writing before it applies.

The Integrity Right: It is the photographer’s right to prevent a work being mistreated, but it is qualified by the fact that it only applies to ‘treatments’ of the work which are damaging to the honour of the photographer. This is an automatic right and does not need to be asserted.

The False Attribution Right: This right does not just belong to the author but to anyone who has work attributed to them. It can be useful if a photographer finds his or her name on someone else’s work for example if an advertiser wishes to use the photographer’s name to endorse a product without consent. This right is automatic and does not need to be asserted.

The Privacy Right: There is no general law of privacy in the UK. This is way to control the dissemination and publication of private photographs. This applies to commissions for ‘private and domestic purposes’ for example wedding photographs (and sex tapes).

Moral rights may be waived. A waiver is normally made in writing by the photographer, but it could be done orally. Wherever possible photographers should not waive their moral rights.

Licenses

The photographer may choose to transfer the ownership of copyright in a particular photograph to someone else through an assignment of copyright. The alternative to assignment, and one much preferred by all creators and their representatives, is to licence the reproduction of a work. A licence permits use without transferring ownership of copyright.

References
Beyond The Lens Janet Ibbotson 2003 (Chapter 1: Copyright and Moral Rights)



Copyright Essay

Write a 300-500 word answer to this question: You decide to illustrate a blog report with a photograph that you have found on another site. Are there any copyright implications and/or any actions you should take? You must include one quote from a recognised text to back up your arguments. 

Copyright is an exclusive legal right, given to the originator for their lifetime plus 70 years, that sponsors permission to reproduce material such as photography, print and film. 'There is no system of registering copyright in a photograph in the UK. Copyright exists automatically from the moment it is created.'  It can be an offence to copy an authors work, to issue further copies to the public, and to generally pass it off as your own. If you are unauthorised to use a photograph that is protected by copyright, you may face legal implications such as criminal charges. 
When considering usage of another authors photograph for a blog post, it relies on your own responsibility in order to prevent copyright infringement, as there is many actions and implications that need to take place. The most sufficient way to obtain authorisation to use a photograph would be to directly seek contact from the author. This can be done using writing in a letter or email, it would need to be specified what exactly you are using, the amount of duplicates if any, what it is being used for, and how it will be distributed. If a photograph is negatively used without permission, breaching copyright law, you could also face legal charges of defamation additional to copyright infringement. 'The law states that the author of a work is the first owner of any copyright in that work. As the author of a photograph is the photographer, it is clear that the photographer is the first owner of copyright in every photographic work he or she creates.' It may be a lengthly process, and may seem unnecessary in some cases, but contacting the author and negotiating the usage terms can result in officially using a photograph without breaking any copyright laws. 'The restricted acts are the rights over which the copyright owner has exclusive control and for which they can grant or refuse permission. They are the basis on which the photographer protects their work and earns a living.' If an author doesn't reply to a request, permission is not obtained and the work shouldn't be used. However, if they agree to your request, the author must be credited, and it must be clear that the work is not your own. 'The Stolen Scream' is a typical example how misuse of an image can effect the author, copyright laws are different in America, as creative works have to be registered. If Noam Galai registered his scream photograph for copyright, his life could be much different and he wouldn't be known for the global intellectual property theft of his images.

Here is an example of a model/photo release letter: 

References

Janet Ibbotson . (2003). Copyright & Moral Rights. In: Beyond The Lens. London: The Associations of Photgraphers Limited. p26, p29, p32

Observer vs Voyeur

The question 'how close is too close?' arose in todays lecture after viewing Liba Taylor's 'Motherhood' images. As shown below: 

These images are severely explicit and striking, especially to a viewer inexperienced to the childbirth procedure. Some believe this is far to close for a photographer, but after all, this is documentary photography. It is a clear depiction of reality, and whether or not it is deemed to be ethical by the public, permission was asked to take these photographs. We asked Liba: 'We were wondering why you wanted to get so close and take such explicit images? Also how did the women feel about you being there? And why did they agree to it?' She replied with: 'The pictures were a commission for midwives organisation and the women in the pictures agreed to it. Whoever said no, I didn't photograph.' I believe the photographs would be unethical if they were taken as a fly on the wall, without permission. But as the models have consented, they clearly want to display their proud moments during childbirth. Peoples opinions on childbirth and many other things are only built up from movies and unrealistic representations. If a viewer is unfamiliar with childbirth, these images might be unsettling, they may be too close for the squeamish eye, but still a realistic documentation. Following the 'how close is too close?' question, we were shown a set of images by 'New York photographer Arne Svenson, he snapped his neighbours in their homes without permission – and has just won a court case under his First Amendment rights. Should snooping be allowed in the name of art?'

'The identities of Svenson's neighbours, who are rendered with a soft, painterly effect, are obscured, and the choice of framing also leaves a sense of mystery. They are truthful, artistic representations of life which possess a subtle theatricality (a characteristic evident throughout his practice). That the chosen moments are so acutely observed makes them disturbing.' 'At the heart of peeping is a desire to 'see' and to 'know' – a wish to connect with strangers, rather than just an inclination to intrude. In Svenson's case, the connection was made in a thoughtful yet controversial way.'

References

http://www.libataylor.eu/tema/mother/pages/gallery01_mother.html
http://www.theguardian.com/artanddesign/photography-blog/2013/aug/19/art-peeping-photography-privacy-arne-svenson
http://arnesvenson.com/theneighbors.html



Rear Window Essay

In the movie ‘Rear window’, L.B Jefferies asks and ethical question: ‘I wonder if it’s ethical to watch a man with binoculars and a long focus lens. Do you suppose it’s ethical even if you prove he didn’t commit a crime?’ Do his actions in the movie make you agree or disagree with this question?

Rear Window is a popular movie directed by Alfred Hitchcock, which involves L.B Jeffries, a photojournalist, being wheelchair bound for 6 weeks. Due to boredom, he begins to observe his neighbours of Greenwich Village during a summer heat wave, through the rear window of his apartment. This casual hobby becomes an obsession as he begins to use binoculars and a telephoto lens to spy further on a particular neighbour who may or may not have murdered his wife. It can be argued that L.B Jeffries is taking advantage of his neighbours privacy, therefore being unethical. This statement would be true if he was doing it for his own pleasure and entertainment, which he was at first, when he was simply observing not spying.  However, once he believed he had maybe witnessed a murder, he then studied his neighbours in the interest of the possible murder victim, he was spying for the better good, in order to prove the crime of Mr Thorwald, and to put him in prison. Therefore, his actions would be ethical, as it would be in the public interest to bring justice to a murderer, and L.B Jeffries would be doing Greenwich Village a huge favour, taking a murderer off the streets. He could be stereotyped as a 'peeping tom', but in this case, it was lucky he was there. Therefore, I agree with L.B Jeffries statement in the movie, it is ethical if you are continuing to spy for the public interest with good intentions, if it was for personal interest, it would become unethical.

References
http://crimewritinghsc.wordpress.com/prescribed-texts/rear-window-1954/



The Pleasure of Looking

'In Rear Window the protagonist is a photographer who is both entertained and hypnotized by other people’s problems; he is both a voyeur of and a participant in the emotional relationships that unfold before his eyes'. 'Rear Window is all about the relationship between the spectator and the image, the viewer and the viewer, the window serves as a literal framing device akin to a photographer’s lens. The window separates Jeffries from the world outside his apartment, isolating and protecting him'. The contemporary form of Rear Window is Big Brother, broadcast similarly to The Truman Show, onlooking everyones every move, all day long.'The concept of objectification has a special relevance to photography. In one sense photography inadvertently objectifies people by turning them into things to be looked at. But it has also been suggested that in everyday life women are already constituted as objects to be looked at and men as ‘possessing the gaze’. According to this argument women internalise the male gaze to the point that they survey themselves. This relationship has been expressed by John Berger in Ways of Seeing'.'Men look at women. Women watch themselves being looked at. This determines not only most relations between men and women but also the relation of women to themselves'.

Guy Bourdin was a very popular and controversial French photographer that in his portfolio, includes photos that glamorise violence against women. He uses the female body to take exotic and explicit 'fashion' photography. Some believe he objectifies the female body, however,  his intentions were always entirely artistic. 

'There are circumstances in which looking is itself is a source of pleasure, just as, in the reverse formation, there is pleasure in being looked at'. 'In his Three Essays on Sexuality, Freud isolated scopophilia as one of the component instincts of sexuality. He associated scopophilia with taking other people as objects, subjecting them to a controlling or curious gaze. His examples centre on the voyeuristic activities of children, their desire to see the private or forbidden. In this analysis scopophilia is essentially active.' 'The cinema satisfies a primordial wish for pleasurable looking, but it goes further developing scopophilia in it’s narcissistic aspect'. 'Curiosity and the wish to look intermingle with a fascination with likeness and recognition. Jacques Lacan has described how the moment when a child recognises it’s own image in a mirror is crucial for the constitution of the ego..their recognition of themselves is joyous in that they imagine that their mirror image to be more complete, more perfect than they experience in their own body..an ideal ego. As the spectator identifies with the main male protagonist (in a movie) he projects his look onto his screen surrogate… the more perfect, more complete, more powerful ideal ego conceived in the original moment of recognition in front of the mirror'. 'By means of identification with him, through participation in his power, the spectator can indirectly possess the (female object) too.' 'However In psychoanalytic terms, the female figure possesses a deeper problem. Ultimately the meaning of a woman is sexual difference. The woman as icon displayed for the gaze and enjoyment of men always threatens to evoke the anxiety it originally signified for a male child. By turning the represented figure itself into a fetish object (hence overvaluation, the cult of the female star) the instinct is focused on the look alone.'

Nick Knight

Floria Sigismondi

Paolo Roversi

Steven Meisel

Laura Pannack

References
Philip Brookman Exposed : Voyeurism, Surveillance and the Camera 2010
Michelle Henning The Subject as Object in Photography: A Critical Introduction 2005
http://www.guybourdin.net
Laura Mulvey Visual Pleasure and Narative Cinema

www.lensculture.com/articles/erica-simone-nue-york-self-portraits-of-a-bare-urban-citizen



The Pain of Seeing

Each person is different and they could look at these pictures on any of the following:

• News?
• History?
• Propaganda?
• Insight?
• Investigation?
• Curiosity?
• Empathy?
• Excitement?

'We have relied on photography to function as a privileged verification of events we might otherwise never know. In the twentieth century, photography was called upon to verify what we could not even imagine and hence not believe. The photographer was called to witness in a form that becomes both a document of the event and of the witnessing'. 'Being a spectator of calamities taking place in another country is a quintessential modern experience, the cumulative offering by more than a century and half’s worth of those specialised tourists known as journalists.' 'Nonstop imagery (television, streaming video, movies) is our surround, but when it comes to remembering, the photograph has the deeper bite. Memory freeze-frames; it’s basic unit is the single image. In an era of information overload, the photograph provides a quick way of apprehending something and a compact for memorising it'. 'Remembering is an ethical act, has ethical value in and of itself. Memory is, achingly, the only relation we can have with the dead'. 'We hope only (so far in vain) to stop genocide and to bring to justice those who commit gross violations of the laws of war (for there are laws of war, to which combatants should be held) and to be able to stop specific wars by imposing negotiated alternatives to armed conflict'. 'Conscripted as part of journalism, images were expected to arrest attention, startle, surprise. The hunt for more dramatic (as they’re often described) images drives the photographic enterprise, and is part of the normality of a culture in which shock has become a leading stimulus of consumption and source of value.' 'Photographs are a means of making ‘real’ (or ‘more real’) matters that the privileged and the merely safe might prefer to ignore'. 'Photographs of an atrocity may give rise to opposing responses. A call for peace. A cry for revenge. Or simply bemused awareness, continually restocked by photographic information, that terrible things happen.' 'There is a mounting level of acceptable violence and sadism in mass culture: films, television, comics, computer games. Imagery that would have had an audience cringing and recoiling in disgust forty years ago is watched without so much as a blink by every teenager. Indeed, mayhem is entertaining rather than shocking to most people in most modern cultures'. 'Consumers droop. They need to be stimulated, jump- started again and again. Content is no more than one of those stimulants'. 'Flooded with images of the sort that once used to shock and arouse indignation, we are losing our capacity to react. Compassion, stretched to its limits, is going numb.' 'However, It has become a cliche of the cosmopolitan discussion of images of atrocity to assume they have little effect, and that there is something innately cynical about their diffusion. As important as people now believe images of war to be, this does not dispel the suspicion that lingers about the interest in these images'. 'The feeling persists that the appetite for such images is a vulgar or low appetite. Victims are interested in the representations of their own sufferings and want their plight to be recorded in photographs.' 'Let the atrocious images haunt us. Even if they are only tokens, and cannot possibly encompass most of the reality to which they refer, they still perform a vital function. The images say: This is what human beings are capable of doing. Don’t forget.'

References

Griselda Pollock Dying Seeing Feeling: Transforming the Ethical Space of Feminist Aesthetics

Susan Sontag Regarding The Pain of Others 2003



Freeconomy & Copyright Continued

What is Copyright?

• The right to authorise or restrict the making of copies
• An author’s right and a property right
• A human right
• A collection of rights

Through copyright a photographer can protect their photographs against unauthorised copying and by permitting and restricting use of their photographs they can also get payment from users. The law protects photographs as artistic works.  The act states: “photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film. A still from a film or screen grab is not protected by copyright law as a photograph.  It is protected as part of a film and the director and producer are its authors and first owners of the copyright. The photographer may choose to transfer the ownership of copyright in a particular photograph to someone else through an assignment of copyright. The alternative to assignment, and one much preferred by all creators and their representatives, is to licence the reproduction of a work.  A licence permits use without transferring ownership of copyright. Below is Noam Galai's famous scream photograph that wasn't copyrighted and stolen by people all over the world to make money. 

References
Copyright, Designs and Patents Act 1988 
http://www.thestolenscream.com/



Historical Value of Photographs of Atrocities Essay

Remembering is an ethical act, has ethical value in and of itself. Memory is, achingly, the only relation we can have with the dead. Write 200 words stating your view of the historical value of photographs of atrocities and integrate the above quote into your text.

'Photography is a way of feeling, of touching, of loving. What you have caught on film is captured forever… it remembers little things, long after you have forgotten everything.' quotes Aaron Siskind. Photographs hold memorable and educational values that help the planet evolve. Without photographs of historical events and atrocities, they would be as valued as a myth, with the memories continuing through future times just by word of mouth with no actual proof.  From the publication: The Pain Of Others, Susan Santag quotes: ‘Remembering is an ethical act, has ethical value in and of itself. Memory is achingly, the only relation we can have with the dead’. Murray Becker was an associated press photographer whose pictures of the burning airship Hindenburg and a weeping Lou Gehrig are among the most memorable in journalism. News photographs are so important to our society, as they are an exact representation of the current reality of the situation. Becker's acclaimed photographs of the Hindenburg disaster in 1937, at Lakehurst, N.J, were a series of 15 shots, from first flare-up to the rescue of survivors. Becker captured this disaster and has allowed all future generations to appreciate the significance of the horrific and saddening event. 

References
http://www.tripwiremagazine.com/2011/10/famous-photographers.html




Does the ends justify the means?

According to the moral philosophy utilitarianism; Jeremy Bentham claims an act is morally right if that act causes ‘the greatest happiness for the greatest number’. Therefore, the end justifies the means if the new equilibrium overrules the process in terms of public interest. If an action is unethical but results in an end that is morally correct, the ends consequently justifies the means. However, John Stuart Mill claims; ‘An act is wrong in the proportion in which it contributes to general unhappiness or pain’. For example, pain could be caused to one individual, which in effect is morally wrong, but if it would benefit a larger group, it can be justified.

The Aspects of Media Law: Defamation, Privacy and Social Media - John Hawker

Freedom of Speech:

In a free pluralist democracy freedom of expression is paramount to freedom as a whole
Freedom of expression is guaranteed by
Tradition
Constitution
Law (Art 10 ECHR & Human Rights Act 1998):

Article 10 part 1: Everyone has the right to freedom of expression: including freedom to hold opinions and to receive and impart information and ideas without interference by public authority.

Article 10 part 2: The exercise of these freedoms, in subject to such formalities are prescribed by law and are necessarily in democratic society in interest of: National security, public safety, prevention of crime, protection healthily morals, protection of reputation of rights of others, protecting the disclosure of information received in confidence of from maintain the authority.

Defamation – Libel and Slander

Both are defamation. The only real difference is that libel is something, which is permanent and can be seen whereas slander is not recorded permanently and is transient.
Slander cases are less rare than libel because it’s hard to prove the act happened without written or recorded evidence.

Broadcast Images

The defamatory effect of broadcast images is determined as libel by the effect of section 4 of The Theatres Act 1968
Where defamatory material is broadcast by radio or television it is libel by section 166 of The Broadcasting Act 1990

E-Mail

Multigroup Bulgaria Holdings v Oxford Analytica Ltd. (1997)

Classed as permanent even though transient
Therefore libel and not slander
(Deleted email can be recovered and read by others)

Nature of the Tort

Statement made about the claimant that reflects negatively upon the reputation they enjoy.
It must be of a nature that ‘lowers the claimant in the estimation of right thinking members of society’ or ‘which would tend to cause people to shun or avoid’ the claimant or would expose the claimant to ‘hatred ridicule or contempt’
Along with demonstrating that the detrimental statement has been made the claimant must show that the statement has been published.
Broadcast or published simply means disseminated
S.1 Defamation Act 2013 – “serious harm” to reputation

Defamation, weather its libel or slander, is an act that can damage someone’s reputation. This can be done by a story, photograph, video, any social media platform is capable of performing a defamatory act on somebody.
However, the truth is a defence to defamation.

Right Thinking People

The words must be defamatory in the view of right thinking people
Sim v Stretch [1936] 52 TLR 669 “an exclusive group of people who were neither too tolerant or too censorious”
Simply an attempt to identify the average, reasonable person who does not hold extreme views.
Some people are sensitive to opinionated comments and its crucial they don’t come across as facts.

Defamatory Meaning

Words may be in their natural meaning defamatory.
Words like; ‘Thief’, ‘Criminal’, ‘Adulterer’, ‘Racist’, ‘Pedophile’ are all capable of lowering a person in the minds of right thinking people.
Claimant replies on the natural meaning of the words.
Some words are ambiguous.
The meaning of words in common parlance change e.g. Gay
The claimant must show that the words carry a defamatory meaning that refers to the claimant.

The cases of Crow v Johnson (2012) and Lord McAlphine v Bercow (2013):

Crow v Johnson:

The leader of the RMT Union Bob Crow took London mayor Boris Johnson to court relating to issued leaflets of the 2012 London election campaign. However he had failed his libel act case.
In the judgement of the day of the hearing, Mr Justice Tugendat announced that ‘in the context of a hotly contested election” the words could not be held to be defamatory

McAlpine v Bercow

Sally Bercow, the wife of the House of Commons speaker tweeted ‘Why is Lord McAlpine trending?’ was seen libellous in the high court. An innocent emoticon was posted at the end of the question insinuated that Lord McAlpine was guilty of a crine he was wrongly accused of. As a result of Bercow agreed to pay £15,000 in damages for the libel tweet.

Innuendo

Innocent words may be defamatory because of extrinsic facts known to the reader.
X is ‘stepping out with’ Y is innocent on the face of it.
But not if Y is married to or in a long term relationship with Z (Bowman v MGN (2010))

Who can be Sued?

The originator of the statement is liable for his or her own deliberate or negligent publication
Every one repeating the libel (distributors)
Employers may be vicariously liable

All active publishers…
Newspaper proprietor
Journalist
Editor
Printer
Publisher
(But most claimants will sue those who have the most money – newspapers rather than journalists/ editors)

Defences: General

Most defences to defamation have recently been amended and put into statutory form by the Defamation Act 2013 (came into force on Jan 1 2014)

Defences:

Consent (‘Leave and licence’)
Truth (s.2 DA 2013)
Honest Opinion (s.3 DA 2013)
Publication on matter of public interest (s.4 DA 2013)
Operators of websites (s.5 DA 2013)
Peer-reviewed statement in journals (s.6 DA 2013)
Reports protected by privilege (s.7 DA 2013)
Offer of Amends (plus accord & satisfaction)

No member of parliament can be sued for defamation

Truth (s.2 DA 2013):

It is a defence for the defendant to show that the imputation conveyed by the statement complained of is substantially true
Where there are multiple imputations, the defence still remains as long as imputations not shown to be substantially true do not seriously harm the claimant’s reputation

Truth Examples:

Taylforth v News Group Newspapers (1994) (Evidence of police witness crucial to supporting the allegation of oral sex in a car)
Aitken v Guardian Newspapers (1997) (last minute discovery of factual evidence to support the allegation of breaching ministerial guidelines)
Miller v Associated Newspapers Ltd (2005) (despite errors in its assertions the newspaper was fundamentally correct in its allegation against the claimant

Honest Opinion

Defence applies if 3 conditions are met:
1. It was a statement of opinion (not an imputation of fact)
2. The statement indicated (in general or specific terms) the basis of the opinion
3. An honest person could have held the opinion on the basis of any fact which existed at the time the statement was made (or anything which was asserted to be a fact in a privileged statement)

Publication on a matter of public interest (s.4 DA 2013)

This is a new defence and is based on the common law defence established in the landmark case of Reynolds v Times Newspapers Ltd (1999)
The defence is established if :
1. The statement was on a matter of public interest, and
2. The defendant reasonably believed that publishing the statement was in the public interest

Reynolds: Ten Factors
1. The seriousness of the allegation
2. The nature of the information
3. The source of the information
4. The steps taken to verify
5. The status of the informant
6. The urgency of the matter
7. Whether comment was sought from the claimant
8. Whether the article contained the claimants side of the story
9. The tone of the article
10. The circumstances of the publication

Reynolds: Subsequent cases

Flood v Times Newspapers (2012)
Allegation of corruption made against Sgt. Flood
Court of Appeal denies the defence – inadequate steps taken on verification
Supreme Court upholds the defence – significance of decision
Subsequently Sgt Flood wins 60K damages – Times did not update its story and report that he had been exonerated following investigation. Failure to report this was “a refusal to take a course which was professional, responsible and fair”

Reportage

S.4(3) DA 2013 puts into statutory form the defence of ‘reportage’ (the neutral reporting of attributed allegations involving the claimant rather than their adoption by the newspaper)
Defendant does not need to have verified the information because the way the report is presented gives a balanced picture
In determining whether it was reasonable for the def to believe publication was in the public interest the court must make such allowance for editorial judgement as it considers appropriate

Offers of Amends:

Defence under Defamation Act 1996. Any party guilty of defamation may make offer of amends where:
Did not know/ have reason to believe words applied to claimant
Did not know that words were defamatory of that person (i.e. a mistake)
Offer must be in writing
Make suitable apology
Publish a correction in a reasonable manner
Pay compensation and costs (as agreed or ordered)

Privacy:

A right to privacy is guaranteed by Article 8 of the European Convention on Human Rights
Article 10 of the ECHR also recognises a right to freedom of expression
Human Rights Act 1998 s.12, – where a journalist is facing an injunction to prevent publication, courts will have regard to freedom of expression & compliance with any relevant privacy code, e.g. Clause 3 Editors’ Code

How does a court decide?

Relevant factors/ requirements:
Does the claimant have a reasonable expectation of privacy?
What were the expectations of any pre-existing relationship?
If it is private, how serious an invasion is it?
Is the information already in the public domain?
What is the claimant’s history of prior revelations?
Are there public interest grounds to warrant the intrusion?

Development of Privacy

Does not technically exist as a separate tort (why did the courts not develop this or parliament legislate for it?)
Has developed out of traditional breach of confidence
Is typically characterised as an action arising from ‘misuse of private information’

Campbell v MGN (2004)
Is ‘misuse of private information’ the same thing as breach of privacy?

Test:
Did the claimant have a reasonable expectation of privacy with respect to the information disclosed?
Does right to privacy outweigh freedom of expression?
What were the elements of private information in this case? (fact of drug addiction; fact that receiving treatment; receiving treatment at NA; details of NA therapy; photos of her going into/ out of the clinic)
Why were MGN entitled to publish the first two elements but not the remaining three? (public interest)
What is ‘different’ about the three? (note the overlap with Data Protection on the fifth)

Should the law go further?

Mosley v United Kingdom (2012)
What were the issues at stake in this case?
What arguments were advanced by Mosley?
What arguments were advanced by the UK govt.?

Mosley

How did the ECHR justify its judgment?
Do you think they were right? How much of a ‘chilling effect’ would a pre-notification requirement have on political reporting and investigative journalism?
Is ‘entertainment’ as opposed to education/ information something that deserves the same level of consideration under freedom of expression?

Social Media

General problem is that social media means that we are all now ‘publishers’ and should think carefully about what we say – Facebook, Twitter etc. all pose significant legal risks depending on how they are being used.

The Risks of Social Media:
• Defamation
• Harassment
• Privacy
• Offensuve/Malicious/Menacing communications
• Confidential Information/ Data Protection
• Copyright

Media Law Essay

How Should The Law Respond To The Growth Of Social Media?

Social media is at its prime, it is forever growing, and adapting, and quite frankly it is hard to keep up. As social media is developing at rapid speed, it is fundamental that media law changes alongside regarding privacy and defamation.

Defamation is a criminal act in the eyes of media law that can affect the reputation of someone in the public eye and effectively de-fame them. Many things said via Twitter and Facebook can be potentially defamatory towards ‘celebrities’, but media law cannot keep track of every single statement published online. The privacy of ‘celebrities’ is limited, and is difficult to be protected by the law concerning the media. Sometimes, ‘celebrities’ can automatically attract defamatory attitude by writing a controversial status, but sometimes ‘celebrities’ are innocently undermined, with no other intention that to de-fame the person.

Although proven difficult to conserve crimes committed online, and on social networks, the law should respond to social media by closely monitoring social networks, and setting examples of people using defamatory language. This regulation could encourage more people online to think before they ‘status update’.

Philosophy of Ethics

Utilitarianism

‘An act is morally right if that act causes the greatest happiness for the greatest number’An action is judged pragmatically by its effects. The results of an action determine is rightness.

Ethical Egoism

We have the duties to anyone but ourselves

Deontological Ethics

According to deontological (or ‘duty’) ethics it is the nature of the act that decides moral status…deontological ethics invites us to consider the act without pondering it’s consequences.According to deontological ethics, some types of actions are prohibited, or obligatory, irrespective of their consequences.
The best known representative of deontological ethics is Immanuel Kant (1724 – 1804).
The morally important thing is not consequences but what choosers think when they make choices
Only one kind of thing is inherently good and that is good will.

Good Will

• Is not a material thing
• Is our power of rational moral choice
• Its presence gives humans their inherent dignity
• The will is good when it acts out of duty, not out of inclination
• Acting out of inclination: to do something because it makes you feel good or because you hope to gain something from it
• Acting of duty is to act from respect for the moral law. To know moral law, we use the, ‘categorical imperative’

Categorical Imperative

Categorical imperative: a rule stating what ought to be done based upon pure reason alone and not contingent upon sensible desires. ‘I am never to act otherwise than to will that my maxim should become universal law’.

•Before you act, consider the maxim or principle on which you are acting
•Generalise that principle
•Test One: If once generalised it makes no sense because it contradicts itself, then it is wrong to use that maxim as a basis for action
•If necessary perform Test Two (Reversibility) – if the generalised version makes no sense, ask whether you would choose to live in a world where everyone followed it. If not, do not act on that maxim.

Interpretation of Kant’s Categorical ImperativeEven if Kant has not arrived at absolute duties in any impeccable way, he may have hit on a crucial moral truth. He may be right in his insistence that, in addition to a class of less strict, ‘imperfect’ duties (such as the duty to help each other), there exists a class of absolute moral duties (such as the duty never to kill an innocent human being).
Is he right? Are there absolute duties? Are there certain kinds of actions that we can clearly define such that we ought to perform, irrespective of their consequences in the individual case?
- Understanding Ethics: An introduction to moral theory Torbjorn Tannjo 2008


The Means Justifies the Ends

How does this affect the work of Journalists and Photojournalists?
If our ethics are based on our actions what should those actions be in accordance with moral duties? What actions should we not take?
1. Don’t use people to obtain your goals to seek an edge or unfair advantage
2. People have rights which supersede the tyranny of the majority in utilitarianism
3. How far should respect for persons proceed?



Ethics essay

Visual Pleasure or Fantasy Object

Does contemporary fashion and celebrity photography support the theory of the male gaze?

The term gaze refers to a concept used for analysing visual culture, and deals with how an audience views the subjects presented. The observer determines the different types of gaze. The term male gaze can be traced back to 1975 hen Laura Mulvey’s essay Visual Pleasure and Narrative Cinema was published. Mulvey was a British feminist film theorist, and stated that women are objectified to the male gaze, rather than the possessors of a gaze themselves. In contemporary styles of media, especially photography, women are arguably seen as sexual objects more than ever before. Are women portrayed as fantasy objects just to satisfy the male sexual gratification, or are they used for visual pleasure to all? 

Mulvey states that audiences of film have to view characters from a heterosexual male assumption and that: “In a world ordered by sexual imbalance, pleasure in looking has been split between active/male and passive/female. The determining male gaze projects its fantasy on to the female form which is styled accordingly.” Observation of women in the media for visual pleasure is an argument developed by Mulvey using Freudian theory, which suggests that the female spectators have learnt to see the image through male eyes, evolving their own male gaze. There is the possibility that the female figure is generally more attractive and visually pleasurable, to both genders. For example, when watching ballroom dancing, all eyes automatically follow the female dancer, regardless of the gender. We have been obliviously trained by society to view the female form with passivity. “Sexual objectification occurs when a woman’s body or body parts are singled out and separated from her as a person and she is viewed primarily as a physical object of male desire.” (Bartkly, 1990). The perfect female form often displayed in the media can supposedly be considered as a fantasy object. Fredrickson and Roberts theory of objectification suggests that many women are sexually objectified and considered as an object only to be valued for its use by others. “Evidence for the sexual objectification of women can be found practically everywhere, from the media, to women’s interpersonal experiences, to specific environments and subcultures within culture where the sexualisation of women is cultivated and culturally condoned.” (Fredrickson and Roberts, 1997). Sexual objectification and the exhibition of women as fantasy objects is likely to contribute towards the insecurities of the modern young woman, possibly causing eating disorders and depression. “In order to gain social acceptability, women are under constant pressure to ‘correct’ their bodies and appearance more generally, and make them conform to the ideals of feminine appearance of their time, the so-called ‘norms of feminine appearance.” (Jennifer Saul, 2003). The male form seldom faces objectification argued by the fact that females are more visibly pleasurable. “According to the principles of the ruling ideology and the psychical structures that back it up, the male figure cannot bare the burden of sexual objectification. Man is reluctant to gaze at his exhibitionist like”, agrees Mulvey. 

In Freud’s The Three Essays of Sexuality using psychoanalysis regarded scopophilia as a type of gaze, which translates to ‘the love of watching’. “Freud isolates scopophila as one of the component instincts of sexuality which exist as drives quite independently of the ergogenic zones. At this point he associated scopophila with taking other people as objects, subjecting them to a controlling and curious gaze.” (Mulvey, 1975). Scopophila is a synonym of voyeurism, which in turn describes the observation of others secretly and obtaining sexual gratification. Freud considered pleasure in looking to be a regular partial instinct of childhood. Mulvey elaborates that; “His particular examples centre around the voyeuristic activities of children, their desire to see and make sure of the private and the forbidden (curiosity about other people's genital and bodily functions, about the presence or absence of the penis and, retrospectively, about the primal scene). In this analysis scopophilia is essentially active.” Scopophila is developed throughout life’s early stages, and although Mulvey relates this theory to the cinema, it has been around since the history of art. Even since the 1700’s scopophila has been active, with nude paintings of the female form geared towards the male spectator. The male gaze was considered as the ideal audience, with the female models posed to allure the male viewers. “There is a long tradition in art of defining the female nude as the project and possession of the male artist. In these paintings, the men gaze upon the female figures as possessions. The women are the objects of the male gaze, and their returning looks are accorded no power in the image” (employees.oneonta.edu, 2014). This trend is further developing into the modern culture, and is associated with most forms of media. “In their traditional exhibitionist role women are simultaneously looked at and displayed, with their appearance coded for strong visual and erotic impact so that they can be said to connote to-be-looked-at-ness. Woman displayed as sexual object is the leit-motif of erotic spectacle: from pin-ups to striptease, from Ziegfeld to Busby Berkeley, she holds the look, plays to and signifies male desire” (Mulvey, 1975). Sex symbols such as Marilyn Monroe and Grace Kelly in the 1950’s have intensified the worlds desire for the perfect female icon, or the fantasy object. Women like this featured in Hollywood movies and the cover of numerous magazines acting as objects to the male gaze. “Thus Marilyn Monroe's first appearance in The River of No Return and Lauren Bacall's songs in To Have or Have Not. Similarly, conventional close-ups of legs or a face integrate into the narrative a different mode of eroticism” (Mulvey, 1975). In the contemporary media industry we are surrounded on a daily basis by photographs of fashion models, often portrayed in vulnerable and powerless situations, sometimes appearing nude or semi-nude. With some images in photography and film focusing purely on parts of the body conforming to objectification. This is closely related to the theory of fetishisation. “Fetishisation intends to reduce women to disembodied parts of their anatomy, for instance breasts, which are then taken as a sign of female sexuality. Violation we are told is the inescapable conclusion of the degradation brought about by objectification. It is the end result of the belief that pornography, as an extreme form of objectification, either leads directly to sexual violence by men against women or that it creates an ideological climate in which it is inevitable.” (Firstpages.com, 2014). The women featured in today’s media, such as ‘lad’s mags’ appeal to the theory of fetishisation, and is closely related to pornography, with females posed in sexually gratifying positions, giving a returning look to the male gaze. This type of magazines ideal audience is that of the male gaze, and is designed essentially for fetishistic scopophila. “Fetishistic scopophilia, on the other hand, can exist outside linear time as the erotic instinct is focused on the look alone” (Mulvey, 1975). It is this objectification of the female form that signifies them as fantasy objects, conjoined with their use only for visual pleasure. “Each is associated with a look: that of the spectator in direct scopophilic contact with the female form displayed for his enjoyment (connoting male fantasy) and that of the spectator fascinated with the image of his like set in an illusion of natural space, and through him gaining control and possession of the woman within the digenesis” (Mulvey, 1975). “Pornography defines women by how we look according to how we can be sexually used. Pornography participates in its audience's eroticism through creating an accessible sexual object, the possession and consumption of which is male sexuality, as socially constructed; to be consumed and possessed as which, is female sexuality, as socially constructed” (MacKinnon 1987).

The concept of objectification and the theory of the male gaze have a special relevance to photography. “In one sense photography inadvertently objectifies people by turning them into things to be looked at. But it has also been suggested that in everyday life women are already constituted as objects to be looked at and men as ‘possessing the gaze’. According to this argument women internalise the male gaze to the point that they survey themselves.” John Berger in Ways of Seeing has expressed this relationship: “Men look at women. Women watch themselves being looked at. This determines not only most relations between men and women but also the relation of women to themselves”. Women also have a sense of scopophila towards themselves, and others of the same gender. However, they can objectify themselves, but not their peers. They can display themselves as a fantasy object, or they can admire their gender simply for visual pleasure. The difference is, in photography, women can be portrayed for the male gaze, or for them female gaze. Women are featured on the cover of magazines aimed for both genders. On the male-targeted magazines they are portrayed to appeal to the male gaze and displayed as a fantasy object. However, on the female-targeted magazines, they are portrayed for visual pleasure to the female eye. Some women enjoy being observed, which is why they nurture their look. By attending to their appearance and obsessing over a multitude of beauty products, they are conforming to scopophila. This behaviour is not for the male gaze alone, but indeed for that of their peers, and for themselves. In the modern world females are often judged more by females than males, especially within the fashion industry. Guy Bourdin was a very popular and controversial French photographer, including photos that glamorise violence against women in his portfolio. He uses the female body to take exotic and explicit 'fashion' photographs. Some believe he objectifies the female body, however, his intentions were arguably entirely artistic. He was first commissioned by the shoe company Charles Jourdan in the 1960’s and produced his controversial advertising campaigns. “Bourdin pioneered what might be called the new soft porn - the acceptable face of sex to sell anything, an aesthetic too knowing, too caught up in unveiling the world of the fetish, to be actually pornographic” (The Guardian, 2003). The campaign was aimed at females, but still gratified the male gaze, using shots of the legs, and PVC costumes to allure the viewer. “I'd say about half of the Bourdin photos I've seen portray violence against women, and another sizeable portion seem to signify that women are nothing more than blow-up dolls to be used and discarded. I could even consider overlooking these disturbing images if they were part of a larger body of work that didn't glorify dead/objectified women, but I found nearly all of his photos to be fairly repugnant. I could also perhaps consider separating the images from Bourdin himself - just because his photos dehumanize women doesn't necessarily mean he is a misogynist” (Makeupmuseum.org). His photographs adhere the statement that contemporary fashion photography appeals to the male gaze. Often it was only the models lower body featured in the photographs creating the models to be fantasy objects, rather than for visual pleasure.

To conclude, contemporary photography especially in fashion and advertising adhere to the male gaze, and support theories of objectification, fetishism and scopophila. This need in the media industry for the male gaze is increasingly growing, as society is becoming more and more used to visually accepting the naked female body publically.

References


Laura Mulvey, Visual Pleasure and Narrative Cinema, 1975

Sandra Lee Bartky, Femininity and the Modernization of Patriarchal Power, 1990

Fredrickson and Roberts, Theory of Objectification, 1997, http://www.sanchezlab.com/pdfs/FredricksonRoberts.pdf

Jennifer Saul, 2003, http://plato.stanford.edu/entries/feminism-objectification/

http://employees.oneonta.edu/farberas/arth/arth200/Body/gaze.html, 2014

http://www.firstpages.com/hauschild/photography/aib/aib/pg.htm, 2014

MacKinnon, 1987, http://www.feministes-radicales.org/wp-content/uploads/2010/11/MacKinnon-Sexuality-Pornography-and-Method-Pleasure-under-Patriarchy.pdf

John Berger, Ways of Seeing, 1972.

http://www.theguardian.com/theobserver/2003/apr/13/features.review27

http://www.makeupmuseum.org/home/2013/10/guy-bourdin-and-nars.html