First published 1/2/21
The UK officially left the European Union on 31 January 2020 after a one-year transition period with an eleventh-hour trade agreement.
But does our departure affect journalists working in the UK and EU – or those trying to sue them?
Travelling for work
Brexit negotiator Michel Barnier told the FT the UK had refused the EU’s offer of special travel rights for journalists, as well as other cultural professions such as musicians and artists, during negotiations.
No 10 told The Independent this was because the offer “fell short”.
As it stands anyone can travel through the Schengen area for 90 days but journalists are among the many professions who would not be allowed to work, with exact requirements and penalties differing by country but potential fines reaching thousands of pounds.
Journalists wishing to travel from the UK to Europe therefore need to check the visa or work permit requirements of their destination, collated by the National Union of Journalists here (excluding any additional Covid-19 restrictions).
An Early Day Motion tabled in Parliament on 26 January has been backed by more than 40 MPs calling for the Government to review its position on travel rights for creative workers.
It notes that “media organisations need the capacity to react quickly when following news and investigative stories and not get bogged down with costly or time-consuming bureaucracy”.
The lack of a deal was particularly problematic for British journalists based in Europe, a group to which about 440 NUJ members are thought to belong, who were left questioning whether they could take short trips to work in a third country (further to the UK or their host EU member state).
Nick Gammon, a UK photojournalist based in Amsterdam, told Press Gazette: “We have been forgotten about… these are really big questions and we are not getting any clarity to be honest from anybody.”
“If you are a British journalist you don’t have a deal,” he added. “There is no deal for journalism. The most important thing about the agreement is we are not in it, therefore it is no deal for us.”
Shadow Culture Secretary Jo Stevens wrote to the Government in November specifically asking what measures were being taken to ensure UK-based freelance journalists would be able to operate across European borders after the transition period.
Media minister John Whittingdale responded that the Government was seeking a reciprocal agreement with the EU that could allow UK citizens to undertake some business activities without a work permit, on a short-term basis.
Gammon, who is hoping for work permit-free travel for culture and media reasons for periods of up to 90 days, said: “It’s a bit of a disappointment therefore that we are not included in the trade agreement because this was specifically a question regarding the media.”
The NUJ has taken up the case for a long-term solution to this problem with both the UK and EU but has said it will “take time”.
As Gammon said in his submission to the House of Lords EU Services Sub-Committee’s inquiry into future trade relations: “While most countries issue media visas to third country nationals these visas usually expect journalists to take up residence for long periods of time – these journalists are usually foreign correspondents employed by large media operations. And they are often prohibitively expensive.
“Clearly, these visas are not appropriate for freelancers who want to cross the border frequently on short assignments that may even last less than a day. So, what kind of permit is required if a story is breaking just across the German border, an hour’s drive away?”
NUJ press cards
According to the NUJ, new postal rules mean its press cards cannot be sent to members based outside the UK as they would need a custom declaration unless they were clearly “personal correspondence”.
This is particularly a problem during the Covid-19 pandemic, the union said, with members under lockdown in France relying on their press cards as a supporting document for the proof they need to fill out each time they leave home to work. The NUJ in London and Paris has been working on a solution.
Libel and Brexit
Post Brexit it will be much harder for foreign claimants to sue for libel in England and Wales, in what media lawyer Greg Callus described to Press Gazette as by far the biggest legal change affecting journalism as a result of Brexit.
The trade agreement secured in December means the UK is no longer covered by the Brussels Recast Regulation or the Lugano Convention, which detail cross-border civil and commercial jurisdiction, although the UK has applied to re-join the latter.
This has affected the jurisdiction of the English courts over foreign defendants in all types of claims.
But in particular this affects Section 9 of the Defamation Act 2013, which stopped the UK from having jurisdiction to hear and determine an action against a person or media company domiciled outside the UK and EU if it was not the most appropriate place to bring the action. This now applies to all those outside the UK.
The EU General Data Protection Regulation, which came into force in 2018 forcing publishers to change how they deal with reader consent, profiling, portability and the right of the consumer to be forgotten, had already been adopted into UK law meaning there were no immediate changes in this area.
[Read more: Greg Callus’ take on GDPR and journalism]
However the trade deal put in place an initial four-month bridge during which data could continue to be transferred between the UK and EU while the EU Commission made an adequacy decision on whether the UK has a sufficient level of data protection.
Draft decisions published in February indicate the UK and EU will likely continue to operate to the same standards as the Commission found the UK “ensures an essentially equivalent level of protection” to GDPR and the Law Enforcement Directive. Once adopted, these decisions will be valid for an initial four years.
The Information Commissioner’s Office previously issued guidance telling UK businesses the EU GDPR may continue to apply directly to them if they operate in and/or offer goods or services to individuals in Europe.
However, some companies quickly took big steps to combat nervousness over what Brexit could mean after this window.
Capital Business Media – which owns several B2B media brands including Business Matters, Fund Manager Today and Travelling for Business – relocated its UK content marketing and SEO division to Ireland and will now deal with all the needs of this part of the business through a new Irish company called Inscriptio.
It said it had decided to do this because it remains possible that at the end of the “bridge” window its ability to send emails to its subscribers and the panel of its business research division will be jeopardised.
Group managing director Richard Alvin said: “During 2020, we saw a 200% increase in demand within our dedicated content marketing as a result of the rapid digital growth of businesses.
“With so many concerns surrounding Brexit possibly threatening the day-to-day operation of this division within the UK, we knew in order to sustain this growth and continue offering our services, we needed to launch the division as a separate firm outside of the UK.
“It was a very easy decision considering the planned expansion of the company, and we knew that having a dedicated office based in Ireland would not only ensure our compliance, but also open up opportunities for our continued growth.”
The UK said last year it had no intention of adopting the EU’s controversial Copyright Directive, part of which has been dubbed the Link Tax as it forces online platforms and aggregators to pay press publishers to use their content in snippets and previews of articles.
More generally the Government has said a substantial part of UK copyright law was derived from the EU’s legislation, meaning it is expected to stay largely the same although reciprocal cross-border arrangements have been amended or stopped.
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