Question-Answerson Mass Media Law
Question-Answerson Mass Media Law
Oneof the major and influential sectors in each and every country is themass media sector. There has been an ever changing aspect of the massmedia law. With the publication of the 19thedition of the book by DonPember and Clay Calvert, the book continues to provide learners withthe essential foundation needed to understand the dynamic nature ofthe media law. In addition the book helps to understand thecontroversies surrounding press ad speech across the media industry.Massmedia lawcan be defined as the legal field which encompasses a host ofcommunication industries i.e. film, broadcasting, internet and theprint media, with the recent advancement in technologies, the massmedia have the capability to influence or affect people in differentways (Pember& Calvert, 2011).Laws governing these communications can sometimes be complicated andhave diverse effects to the parties involved. This paper looks intodifferent questions with reference to the mass media law.
Three processes to ameliorate the effect of publicity about a case by mass media
Theeffects of the mass media can be detrimental to a case in the courts.However, the impact of the mass media can be controlled by the judgewho can act in different ways to improve the cons implications ofmass media exposure about a case through different ways. One suchmethod is through relocating or moving the trial to distant county.This minimizes the mass media impact and in turn improving the casescenario. Secondly, the trial judge may sequester the jury, andfinally, he may control the effects through voir dire examinationquestioning of potential jurors. This is the taking of an oath by thejuror to tell the truth (Rubow, 2014).
Restrictive order issue during a criminal case process
Themain factor behind the issuing of a protective order by the court, isprevent abuse and in turn enhance safety to the party seeking courtprotection. When a trial judge wants to issue a restraining orderagainst the media/press during an ongoing criminal case, a fewconsiderations must be put in place before such a restrictive orderis issued (Pember& Calvert, 2008).A trial judge is responsible for controlling the publicity issuesabout a case and in turn is allowed to give a restrictive order. Thepress on the other hand is allowed to give out information that ishas legally obtained about a criminal case, but this may berestricted when the intensity and pervasiveness about the case inquestion is certain. Moreover, the restrictive order may be issuedwhen no other reasonable alternative is likely to alleviate theimpact of the pre-trial publicity. Finally, the order may issue ifthe order willhelp in preventing the prejudicial material, making their way to thejurors, moreover, the judge must value the impact of the press in thecase (Papandrea,2006).
Comparison between the Hicklin rule and the Miller test
Oneof the major issues in media law is the obscenity issues, over thetime there have been different approaches to define obscenity.Different approaches have been deployed at different times to defineor distinguish what is an obscene article or work. Some of theseapproaches to define obscenity are the Miller test and Hicklin rulefor obscenity. By definition, the Hicklin rule was defined inreference to a 1868 British case commonly known as Regina v. Hicklin,which stated that, “a work is referred to as obscene if it has ainclination to lead astray or/and corrupt individuals whose intellectare open to such wicked influences, and into whose plight it mightfall (Pember& Calvert, 2011).The rule applied to any extract of a book or any other literaturework, that would be seen to corrupt any individual mind whether achild or an adult, who may come across the work, the material inquestion. This definition of obscenity prompted government censorshipover a wide range of material (Martin,2002).
Afterthe adoption, of the Hackling rule, there came a new definition ortest for obscenity in the early 1960’s which was referred to as‘the Roth-Memoirs test. The evolution over the definition andtreatment of obscenity within the United States continued and today,the ‘Miller test is used by the American courts to determinewhether any material can be termed as obscene. Also known to some asthe ‘three prong obscenity Test, Miller test is the united statessupreme court test that is deployed to determine whether a statement,expression or speech can be classified as obscene (Papandrea, 2006).Despite the two tests looking to define what is obscene, there is adifference between them. One of the major differences between the twotests is that, the Hicklin test defined obscenity with reference tothe most susceptible members in a society. Moreover, the test allowedany piece of work to be passed obscene judged from isolated passagesfrom the work in question. This case is different when it comes tothe Miller test the judge is allowed to decide depending on what isacceptable in a society. Community standards play a key role indefining what is obscene. According to Miller test, any work is seenas obscene if it portrays in any deliberately distasteful way, sexualconduct which are specifically defined by an applicable state law(Pember& Calvert, 2008).
"Sweat Of The Brow" Doctrine, And Why It Was Rejected By The Supreme Court
“Sweatof the brow” doctrine is referred to as a property law that relatesto copyright law. With reference to this doctrine, an author gets therights simple diligence during the creation of a work i.e. databaseor a directly and in turn a substantial originality isn’t neededfor one to claim ownership. The main underlyingprinciple behind the doctrine was that, copyright was remunerationfor the hard work that went into assembling facts (Martin,2002).The doctrine gave a creator of a copyrighted work, which may beunoriginal protection of his work which may not be used withouthis/her permission, but can recreate the work through effort orresearch. Despite the formation of the doctrine, it didn’t work forlong as the Supreme Court rejected it. The main reason behind itsrejection by the court is that, the court argued that, it is theoriginality and not the effort that should be recognized or be thebasis of copyright protection (Rubow,2014).
Four criteria that courts use to determine whether a use is a fair use
Thecourts have been the only fair way to define or decide whether a useis a fair use, the courts are entitled to be given their decisionwhether a certain use is a fair use to have it. In order this to bedone the court uses four factors to resolve fair use disputes. Thefour factors act as guidelines for a court which are adopted indifferent cases differently and it becomes hard for anyone to predictthe outcome of any given case regarding the determination of fair use(Martin,2002).
Thefirst factor is ‘thepurpose and character of the use’according to the Supreme Court, this factor was deemed as key indetermining a fair use. This factor allows to determine whether thematerial has been used to create something or a copy, or else whetherit’s for personal use or commercial. Secondly, there is ‘thenature of the copyrighted work’.This factor has its focus on the work itself. Next there is ‘thesubstantiality and amount of the portion in use, compared to thecopyright-protected work’(Rubow, 2014). This factor brings into consideration how much of thecopyrighted work was used in comparison to the initial original work.Finally, there is ‘the effect of the use of the potential market’. This factor is used by the court to determine whether the use of thework will result in an economic loss that the copyright holder isentitled to receive. In summary, these factors are helpful guides tothe courts, but they do not define a use that are or not fair (Pember& Calvert, 2011).
Three elements in the FTC`s definition of false advertising
Themain purpose of advertisements by an organization is to generatebrand awareness as well as increase sales. However, theadvertisements are supposed honest and without deception. Accordingto the Federal Trade Commission Act, any advertisement should bewithout deception and should always be honest. Moreover, there shouldbe evidence to support advertisement’s credibility. The FTC has adefined way to examine whether an ad, is deceptive in any way.According to the FTC, false advertising is denoted by the followingelements when an ad has distortedinformation (Pember& Calvert, 2008).When an advert possesses some misrepresentations or facts thatdistort information, then it qualifies as a false advert. Anotherelement is when an advert has some misleadingclaims.These include ambiguous statements which may have a second meaning.Finally, an advert is referred as false when is depicts somedishonesty.When advert guarantees some rewards such as money to the customer andthe advertising company fails to honor the pledge, then thisqualifies to be a false advert. Due to the increased number ofadverts being made in the recent times, FTC needs to be on alert forexploitation of the customers through false ads (Rubow, 2014).
Pember,D. R., & Calvert, C. (2011). Massmedia law.New York: McGraw-Hill.
Rubow,L. (2014). New Media, Old Regimes. BerkeleyJournal Of International Law, 32(1),
Papandrea,F. (2006). Media Diversity and Cross‐MediaRegulation. Prometheus, 24(3),301-
Martin,J. B. (2002). Massmedia: A bibliography with indexes.Hauppauge, N.Y: Nova Science.
Pember,D. R., & Calvert, C. (2008). Massmedia law.Boston: McGraw-Hill College.