Fair dealing reproduction in electoral leaflets

'Is it legal', 'can I do this' type questions and discussions.
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lukew151
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Fair dealing reproduction in electoral leaflets

Post by lukew151 »

I'm seeking some advice on what constitutes fair dealing, "criticism, review and news reporting", of someone's social media posts, which might include photographs they have published?

I am in the UK, we have local elections in two months. One of my local councillors, let's call him Mr A, has shown some very questionable decision-making over the last few years. I would like to make a leaflet reproducing some screenshots of Mr A's social media posts, which may include photographs - to remind people what kind of individual this is. In all cases these would be social media posts that this public figure has put into the public realm, however in some cases Mr A has subsequently deleted those posts. He has never published any retraction/apology - he just deletes stuff and hopes people forget what he said. To be clear, I am not a rival of Mr A, I have no intention of putting myself up for election. I just wish to distribute a leaflet to remind other residents that Mr A has not acted with much integrity. I have consulted the UK electoral commission about this course of action, and you are allowed to distribute a leaflet, either supporting, or opposing, a candidate or political party. There are various rules about spending limits and providing an "imprint". I'm asking purely about the copyright implications.

My thinking is as follows:
  • We live in a democracy, and every four years we should hold those who are elected to account.
  • Mr A is a public figure, who has voluntarily published these views/ideas.
  • It is "criticism, review and news reporting" of an elected councillor, to accurately report what they have said and done. Screenshots are the evidence, otherwise Mr A will just deny everything.
  • I would not be seeking to profit or benefit from reproducing screenshots.
  • I would add attribution to indicate that Mr A was the original publisher, and I am reproducing for the purposes of criticism and review.
What is the UK legal position on reproducing an elected official's social media posts, for the purposes of criticising him?
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AndyJ
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Re: Fair dealing reproduction in electoral leaflets

Post by AndyJ »

Hi lukew151 and welcome,

You would certainly be justified in using the fair dealing exception for quotation provided by Subsection 30 (1ZA) of the Copyright Designs and Patents Act 1988. However Subsection 30(1) which deals with criticism or review might be more tricky. The exact wording of the section is "Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work ..."(my added emphasis). Note that it is criticism etc of a work, not the speech or behaviour of the indivual whose work it is. In other words if you wanted to criticise his literary style or grammar, subsection (1) would be fine. But I don't think you you can stretch the meaning of that subsection to cover what you want to do.

The news reporting exception in Subsection 30(2) would also be appropriate other than the fact that it explicitly excludes photographs, which you have said would be included. If the photographs were not essential to your overall purpose, and for instance could be blanked out, then 30(2) would provide supplementary grounds.

In addition to these fair dealing exceptions, there is also a little used provision to be found in Subsection 171(3). This says
Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.
This defence has been used in the past to justify criticism of politicians, since there is a clear public imterest in highlighting deficiencies in their statements or past performance, when they are seeking re-election. The rule of law in this instance is Article 10 of the European Convention on Human Rights (freedom of expression).
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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