When government press officers think they are court reporters justice could be the loser

A question for you. When is court report not a court report?

Answer: when a government department writes it. Then it’s a press release.

Confused? You should be. It’s a quirky area of law which triggered a spat last week between the Environment Agency (EA) media team and the north west water company, United Utilities.

The EA published this court report – sorry, press release – on its website after successfully prosecuting UU for polluting a brook.

But the company wondered why the article did not include its plea of mitigation, and asked Kate Hughes, the EA’s deputy director of communications, to explain why.

It had a point. After all, the Defamation Act 1996 (DA) says that court reports must be fair and balanced. If they’re not, then the publisher risks claims of malice.

The EA responded by emphasising that the article was a press release, not a court report, and so did not require the mitigation.

As a result, its report was completely one-sided – and was published like that by the mainstream media.

An EA spokesperson told me: “The information provided in press releases is factual and based on the details of the case and the sentence handed down by the court.”

But its stance produced an odd mixture of media coverage.

The Bolton News had a reporter in court, and so included UU’s mitigation in its report, as required by the DA.

However, the news website Process Engineering left the mitigation out, because its report was based on the EA’s press release.

The case highlights a common practice. Central and local government bodies frequently publish press releases about court cases that they have prosecuted.

But many of these releases are unbalanced and one-sided. They also include some self-glorifying additional quotes, without indicating that they weren’t part of the court proceedings – a practice that carries its own legal risks.

My view is that these ‘press releases’ may actually count as ‘court reports’ under the DA, whatever government press officers may say – and should therefore be balanced.

Section 1 of the DA says that absolute and qualified privilege protect the “author” of a court report. But the author does not have to be a journalist. It could be a central or local government media team.

It can also be argued that media teams fulfil the function of ‘editors’ under DA, because they have … “editorial or equivalent responsibility for the content of the statement or the decision to publish it”.

Tim Crook, Professor in Media and Communications at Goldsmiths College, London, agrees.

He believes government press offices risk claims of malice if their press releases are excessively biased and one-sided, as occurred in the case Lillie & Anor v Newcastle City Council & Ors. Mr Justice Eady found malice in a council media release and awarded the claimants £200,000 each.

Prof Crook said: “Privilege can break down as a defence if malice is proved, and if the fairness and accuracy of the reporting / representation is invalidated.

“Public authorities need to be very careful about media releases from court proceedings and legal matters. If malice is proved their qualified privilege crumbles.

“The demise of qualified and experienced court reporters means that so much online journalism is dependent on public authorities publishing media releases on the outcome of court cases.

“Their accounts would, in my opinion, be entitled to qualified privilege and mainstream professional media publishers should always attribute and source this coverage with caution.”

Something for media teams to think about – and not just those publicising central and local government prosecutions. The police, RSPCA and a range of quangos and other bodies are affected.

This practice of publishing one-sided court reports seems to go against natural justice. People prosecuted by a government body may not receive balanced media coverage unless there’s a ‘real’ journalist in court.

It also bodes the question: why do government media teams, who so frequently complain about press bias, choose not to cover both sides of a story … especially when there’s a legal argument for doing so? A court report is surely too important to be given the PR spin treatment.

Cleland Thom is author of Online law for journalists