Law and Media Round up 30 May 2010

30 05 2010

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.

News

We have already commented on the two biggest media law stories of the week.  First, there was the Duchess of York’s exposure by a “News of the World” sting.  The issue of the public interest justification for this operation was discussed by us in a posting, which was subsequently republished on the “Guardian Legal Network”.  This was, in turn, picked up by Roy Greenslade on his blog.  He suggests that we missed the central point at issue by a mile.  According to Mr Greenslade this was that

Any business activity involving a member of the royal family should be transparent. Given their unique (and anachronistic) position of inherited privilege at the apex of society, the public have a right to know about their dealings

I concede that the divorced Duchess is not strictly a member of the family. But she retains a close link to the Prince and this story directly related to that link.

We see the argument but we are not sure it is right.  Many members of the Royal Family have business interests and it has never been suggested that these should be more “public” or “transparent” that the business interests of anyone else.  The “Fergie sting” must, we suggest, in the end be justified on the basis of an inference of impropriety.  Roy Greenslade has also written about the question of “why its right to use entrapment” in his Evening Standard column.  There is an interesting comment on the point by the veteran “Washington Post’s” media reporter Howard Kurtz who said

What the News of the World’s “Fake Sheik” did would be a firing offense at nearly all American newspapers. … there are those who justify such tactics based on the importance of the information (maybe Fergie was a bigger threat to British society than we knew). But you’re still talking about journalists taking it upon themselves to lie and deceive in pursuit of a story”.

The second event of the week was Lord Lester’s Defamation Bill which we analysed in a post on Thursday.  There has been a lot of discussion of the Bill in the media but little further analysis – although there is some discussion on the 1 Brick Court website and on Banksy’s Blog – which also deals with the question of “what is not in the Bill“.  He makes the important point that reform of libel laws should be tied to reform of the regulatory system for the media.  The Bill is also discussed on the Cearta.ie blog.

Lord Lester continues his energetic media campaign with an article in the Sunday Times about the Bill. He is supported by an editorial in the “Sunday Times”.  Roy Greenslade’s Blog reported the comments of “Index on Censorship” and “Sense about Science” welcoming the bill and urging the government to support it.  Both repeat the curious claim that bill is “the first attempt in over a century to redraft libel laws” –  although it deals with many of the same topics as the Defamation Acts of 1952 and 1996 and does not set out to be comprehensive. Unsurprisingly, the bill was welcomed by the Society of Editors.

The Guardian “Comment is Free – Liberty Central” has a debate between Index on Censorship Chief Executive John Kampfner and lawyer Korieh Duodu on the reform of libel laws.  There are some interesting comments on this debate on the Guardian Website.

Press Gazette reports that Max Mosley is pressing on with criminal privacy and defamation actions in France against the News of the World and against the paper’s lawyers – Farrer and Co.

The Northern Ireland newspapers “Sunday World” and “Sunday Life” apologised and paid libel damages to members of the third Stevens Inquiry into allegations of collusion between Loyalist paramilitaries and the security forces. The settlement is reported in the Press Gazette.

The Daily Star apologised to Comedian Matt Lucas and agreed to pay substantial damages over a series of intrusive articles published following the death of his former partner.   The settlement is reported in the Press Gazette.

US Law and Media News

The Court of Appeals in New York held that a building company president did not defame a landlord by likening him to “Clarabell” the clown from the old “Howdy Doody Show” on his website.  The story is reported in Courthouse News.

In Diana G. Adams, U.S. Trustee Region 2  v. Zenas Zelotes, Esq. (Case No. 07-1853cv), the United States Circuit Court of Appeals for the Second Circuit ruled that a Bankruptcy Code Provision [11 U.S.C. sec. 526(a)(4)] did not violate the First Amendment freedom of speech rights of attorney Zenas Zelotes.  He had argued that a  bankruptcy court provision that prohibited debt relief agencies from advising clients to assume additional debt in contemplation of filing for bankruptcy violated his First Amendment right to advise clients freely.  The case is discussed on the Unruly of Law blog.

Media Cases from Other Jurisdictions

In Trace Foundation v. Centre For Research On Globalization 2010 QCCS 2119 the Superior Court of Quebec dismissed a libel action based on publication on a website under the provision of the Code of Civil Procedure which permits a claim to be dismissed if it “restricts freedom of expression in public debate“.

In Trkulja v Yahoo! Inc & Anor [2010] VSC 215 (25 May 2010) the judge dismissed the defendant’s application for summary judgment, holding that material published as a result of a Yahoo search was capable of bearing defamatory meanings.

In Trkulja v Google Inc LLC & Anor [2010] VSC 226 (27 May 2010) the plaintiff complained about photographic images and captions produced as a result of searches on the “Google Image” service.  The judge struck out the pleaded imputations but gave the plaintiff leave to amend.

In Bolkus v Australian Broadcasting Corporation [2010] SASC 150,  the judge held that the material broadcast and published by the defendant was not capable of conveying the defamatory imputations pleaded.

The Sydney libel trial of Antoine Bechara v Paul Bonaccorso continuing last week.  It was reported here, here and here in the Sydney Morning Herald.  On 26 May 2010 the case was adjourned to 29 July 2010 for submissions

Events

Friday, June 11, 2010 from 9:00 am – 4:30 pm One day conference “What is the public value of journalism in 2010?” organised by the BBC College of Journalism and Polis at the LSE

In the Courts

On 26 May 2010 Mr Justice Eady gave judgment in the case of Brady v Norman [2010] EWHC 1215 (QB)). He dismissed the appeal from a decision of Master Leslie of 12 November 2009, whereby in the exercise of the court’s discretion he declined to disapply the 12 month limitation period introduced by Parliament in the Defamation Act 1996.

On 27 May 2010, Mr Justice Tugendhat gave judgment in the case of Underhill v Corser ([2010] EWHC 1195 (QB)) dealing with three preliminary issues.  He held that there had been publication of the words complained of to 13 non-members of the 6024 Preservation Society Limited which were not protected by qualified privilege.  He also held that the First Defendant, an officer of the society, was not responsible for the publication.

On 28 May 2010, Mr Justice Tugendhat gave judgment in the case of Fiddes v Channel 4, allowing the defendant’s application for trial by judge alone.  He said that, although his mind had wavered in the course of the hearing, the case should be tried by judge alone because of the importance of a reasoned judgment on the issues before the court.

Reserved Judgments

The following reserved judgments in media cases remain outstanding:

Imerman v Tchenguiz (and linked appeals), heard 10 to 11 May 2010 (Master of the Rolls, Moses and Munby LJJ)

Ajinomoto Sweeteners Europe SAS v Asda Stores Limited, heard 11 to 12 May 2010 (Sedley and Rimer LJJ and Sir Scott Baker)

The British Broadcasting Corporation -v- Sugar, heard 17 May 2010 (Master of the Rolls, Moses and Munby LJJ)

Khader v Aziz and Davenport Lyons, heard 19 May 2010 (Sir Anthony May P, Carnwath and Moore-Bick  LJJ)

Flood v Times Newspapers Limited, heard 25 and 26 May 2010 (Master of the Rolls and Moore-Bick and Moses LJJ

Thornton v Telegraph Media Group Ltd heard 26 May 2010 (Tugendhat J)
The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate.

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