In this regular feature we draw attention to the last week’s law and media news and next week’s upcoming events. If readers have any news or events which they would like to draw attention to please add them by way of comments on this post. We are particularly interested in forthcoming events which readers are interested in publicising.
The general election is over. It has, perhaps inevitably, shown the British press at its partisan worst. And there will be more to come: as Roy Greenslade says on his blog “watch out Clegg, the pro-Tory press is on your case“. Charlie Beckett has an interesting post entitled “How do you report a hung parliament?”
It is not clear what effect this will have on the “libel reform” campaign. The “skeptical” blogger Jack of Kent has a piece “Libel Reform the Day after the General Election” lamenting the failure of Dr Evan Harris and Joanne Cash to attract the support of the voters. However, we note that the latter has her own criticisms of the press. At the election count she delivered what the Evening Standard – somewhat harshly – describes as a “rant at the press”. She complained that
“the Westminster North media have played an incredibly powerful role, and we have to face the question about what their role will be, going forward. Are they going to tell the truth or are they going to trash people, lie about their families?”
She went on to warn the press: “for the record, press, you are on notice. No more lies”. This highlights the problem. The election has seen high levels of biased, misleading and inaccurate press reporting. The law of libel is a very blunt instrument for dealing with this but it does provide some degree of restraint. If not the law of libel, what can a victim of “press lies” do?
Phone hacking remains in the news. The Press Complaints Commission chair, Peta Buscombe, has told the Independent that the watchdog would act if it thought that journalists at the News of the World were currently involved in phone-hacking. There is a report on the Guardian media website.
The PCC has commissioned a survey on public attitudes towards it. This suggests that the public favours apologies over fines for those that breach the Code of Practice. Tabloid Watch reports this under the headline “PCC is great as it is, says PCC Poll”. There is a very good analysis of the poll and its defects by Martin Moore of Media Standards Trust on his blog.
We have featured a number of recent posts (see here and here) about the relations between freedom of expression and freedom of information. They have been picked up the NZ “Media Law Journal” blog and on the excellent new UK Human Rights blog. It is worth remembering that whatever the law says, practical obstacles are often placed in the way of those who try and obtain official information. A recent survey by the Newspaper Society records eight out of ten local newspaper editors as believing that accessing information from public bodies has become increasingly difficult – with journalists being barred from public meetings and prevented from reporting details.
The News of the World has agreed to pay the ex-wife of Paul Gascoigne what are reported to be “five-figure damages” over a suggestion that she falsely claimed the former England footballer forced himself on her sexually. An article published on 18 October 2009 and headed “You Lying Bitch”, suggested she had lied by falsely claiming that her former husband had forced himself on her sexually and that she suffered repeated acts of violence at his hands. The newspaper accepted that these allegations were wholly untrue. This features in Tabloid Watch’s helpful and entertaining “Round up of apologies and retractions”.
In Holland the prosecutor is appealing against an order acquitting the Arab European League (AEL) of hate speech charges stemming from posting an inflammatory cartoon on their website. The court ruled that publishing the cartoon, which insinuated that the Holocaust was fabricated, was not a criminal offense because it was intended to be a contribution to public debate.
Retired Sydney Libel judge David Levine has given a lecture with the title “Reputation, Celebrity, Money and Juries – a 21st Century Reconsideration”. This contains some interesting comments on the use of juries in defamation trials. His (perhaps now unfashionable) view is summed up by a passage he quotes from a RA v Nationwide News Pty Ltd  FCA 130.
[Juries] are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications.”
The pioneering “Out-law” site, produced by law firm Pinsent Masons, is ten years old. For many years this was the only place to find breaking law, technology and media stories – it was a blog avant la lettre. Many congratulations.
From the Blogs
The Canadian Defamation Law Blog has a post about the decision in Warman v Fournier 2010 ONSC 2126 (Div. Ct.) – which considers the circumstances in which a court will order the disclosure of information identifying a previously anonymous poster on a website or a blog, holding that this should not be automatic but should involve a consideration of the interests of privacy and freedom of expression. There is also a post about this on the consistently interesting Canadian site Slaw.ca.
The Legal Satyricon blog has a post about United States District Court for the District of New Jersey in Murphy v. Millennium Radio Group LLC, No. 08-1743, Op. at 13 (D.N.J. Mar. 31, 2010) held, reversing the previouis position in New Jersey, that a false assertion that someone is gay is not defamatory.
Eric Goldman’s Technology and Marketing blog has an interesting post about the decision of the Texas Appeal Court in Milo v. Martin, 2010 WL 1708895. An (unsurprising) decision that section 230 of the Communications Decency Act (the federal law that provides legal protections to operators of websites and other types of interactive computer services) continued to apply despite the fact that a Website asserted the accuracy of its contents.
The Privacy Lives blog discusses the Californian case of Catsouras v. California Highway Patrol, which concerned an 18 year old woman who was killed in a devastating car crash. The gory photos of her body and the crash scene were posted on the Web, The family sued the California Highway Patrol for negligence and invasion of privacy and California appeals court ruled that the highway patrol’s behavior—specifically, the actions of the two dispatchers found to have disseminated the photos—had been “morally deficient,” causing emotional distress to the family for the mere purpose of creating a “vulgar spectacle.”
US Law and Media News
In Newdow v John G Roberts 7 May 2010 the US Court of Appeals for the District of Columbia Circuit rejected an attempt to remove the phrase “so help me God” from the presidential oath. The challenge was brought by atheist Michael Newdow and several other groups, who claimed the phrase violates the Establishment Clause of the First Amendment. Rather than addressing the merits the claim was rejected on procedural grounds: the claims regarding the 2009 inaugural ceremony were moot and plaintiffs lack standing to challenge the 2013 and 2017 inaugurations. The court
The only apparent avenue of redress for plaintiffs’ claimed injuries would be injunctive or declaratory relief against all possible President-elects and the President himself. But such relief is unavailable. Beyond the fact that plaintiffs fail to name future President-elects or the President in their suit, plaintiffs cannot sue all possible President-elects for the same reason they cannot sue all possible inaugural participants; as discussed, general injunctions are outside the judicial power. With regard to the President, courts do not have jurisdiction to enjoin him … and have never submitted the President to declaratory relief.
There is an item about the case on the Jurist site.
In Poston v Burns 2009 AP 463 the Wisconsin Court of appeal ruled that a couple did not invade their neighbors’ privacy by placing a US$50 recorder from Radio Shack on the windowsill in order to bust them for being too noisy. The story is on “Courthouse News“.
In The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. the The New Hampshire Supreme Court ruled that a mortgage industry-watchdog Web site is a news organization and should not have been ordered to remove a leaked document it published or to identify its source. This also noted on the Blog Law Blog.
The case of Edelman v Croonquist concerned a defamation action against a stand-up comedian for making mother-in-law jokes. The action was dismissed by a federal judge. Sunda Croonquist was sued for defamation by her mother-in-law, Ruth Zafrin, and two other in-laws who claimed she defamed them with untrue quips about their supposedly meddlesome and annoying ways.
The satirical magazine, The Onion has a spoof ruling of the US Supreme Court in an “obscenity case” which has gained wide currency on the blogosphere.
Media Cases from Other Jurisdictions
The most important decision of the week is that of the Canadian Supreme Court in R v National Post 2010 SCC 16. The Court held that journalists do not have an automatic right to protect their sources and that decisions on who is entitled to remain anonymous will be made on a case by case basis. The Court upheld an order requiring a former National Post reporter to turn over evidence to police in connection with an on-going investigation. This has been widely discussed in the press and on the blogosphere, for example in the Toronto Star, on the Jurist site and on the Unruly of Law blog. We hope to deal with this case at greater length in a separate post.
The Belfast Telegraph reports a claim for invasion of privacy by Roberta Campbell against the “Sunday World”. The claim arose out of an article reporting that a sports car had been set on fire outside the Belfast home of Downtown Radio DJ Dougi Marshall. Mr Marshall received an apology in open court over the story in March 2010. Ms Campbell has now amended her claim to include a claim for misuse of private information on the basis that the article referred to her as “a current flame of Mr Marshall” and as the “presenter’s secret mistress”, and contained a photograph her under which it said “Roberta Campbell is having an affair with Dougi”. The privacy aspect of the claim relates to the gratuitous publication of her address, details of the cars owned by her, that she was a dog lover and also in relation to the publication of a photograph of her was taken without her permission.
No relevant events in the next week have been drawn to our attention.
In the Courts
Judgment in the case of Mireskandari v Associated Newspapers Ltd  EWHC 967 (QB) was given by Mr Justice Eady on 4 May 2010 on a remarkable application bythe claimant for
“An Order requiring the Defendant to disclose to the Claimant the number of matters that they instructed Mrs Justice Sharp to advise on and/or represent them prior to her appointment as a judge in January 2009 and the dates when such instructions were given because the Claimant has learned that Mrs Justice Sharp represented the Defendants in relation to 5 leading cases in 2006 to 2008 and the Claimant believes in itself gives rise to bias and/or the appearance of bias and the Claimant believes that Mrs Justice Sharp represented the Defendants and/or gave advice in many more cases which have not been reported which will certainly give rise to bias and/or the appearance of bias. The targeting of ethnic minorities is an issue in this case and Mrs Justice Sharp may have represented the Defendant in relation to such cases.”
The application was dismissed, with the judge noting that the claimant appeared to be seeking to “fish” for further information in the hope that something more substantive may turn up, so as to enable him to argue at some stage in the future that Sharp J should recuse herself if the litigation comes before her again.
[Update] On Monday 10 May 2010 Mr Justice Tugenhdat will hear the trial of a preliminary issue as to qualified privilege in the case of Underhill v Corser – a case arising out of a publication in a magazine known as the King’s Messenger – the magazine of the 6024 Society which operates a preserved King Class Steam Locomotive number 6024. The judgment on an earlier interim application in this case can be found here.
There are three cases of interest to media lawyers being heard by the Court of Appeal next week:
Ajinomoto Sweeteners Europe SAS v Asda Stores Limited, (on appeal from  EWHC 1717 (QB)) to be heard on 11 May 2010 by Sedley and Rimer LJJ and Sir Scott Baker.
Imerman v Tchenguiz (on appeal from EWHC 2024 (QB)) to be heard on 10 May 2010 by the Master of the Rolls, Moses and Munby LJJ (there are also two linked family appeals from  EWHC 3486 (Fam) and  EWHC 64 (Fam)).
Smith v ADVFN Plc & ors (on appeal from  EWHC 1797 (QB)) to be heard on 11 May 2010 by Ward, Richards and Jackson LJJ.
The following reserved High Court judgments in a media cases remain outstanding:
Shovell v Adventis Group, heard 19 to 27 April 2010 (Sir Charles Gray)
Kaschke v Osler, heard 23 April 2010 (Eady J)
Hays PLC v Hartley, heard 5 to 6 May 2010 (Tugendhat J) – discussed in our post here.