In this regular feature we draw attention to the recent law and media news and to week’s upcoming events. Today we will deal with news and events since the beginning of August and we will resume regular weekly round ups next week.
The month of August is always a quiet one for both the media and the law. The higher courts are on their summer vacations and, in England at least, there are only a small number of judges available to deal with urgent applications. These have included a number of “privacy injunctions” – the latest reported today in the “Telegraph”. These have not been “super injunctions” so their existence has been the subject of extensive press comment, discussed in a post on this blog last week by Mark Thomson. There have also been press reports of what does seem to have been a “super-injunction” granted to golfer Colin Montgomerie last month.
Blogger Jack of Kent has commented on the press reactions to these injunctions rightly concluding that
“the non-exposure of the sex lives of footballers, soap stars and other celebrities does not represent any significant free speech issue”.
In contrast, former editor, Roy Greenslade, is concerned about some of the press reaction to privacy cases, suggesting that journalists who support a privacy law have “taken leave of their senses”.
The general appallingly low standard of media reporting of media law issues continues. This month’s prize goes to an article in the “Daily Telegraph” with the headline “Celebrities use British laws regarded as toughest in the world” and the sub-heading “Britain’s defamation laws are so tough that it is regarded as an international centre for “libel tourism””. This article manages to run together – apparently without realising it – “privacy injunctions” and “libel tourism”
The summer news deficit has resulted in the usual collection of “non-stories”. Comedian Tom Scott has suggested a series of “Journalism Warning Labels” on his blog. These include “Warning: This article is basically just a press release copied and pasted” and “Warning: This article is based on an unverified anonymous tip off”. He provides a handy sheet of stickers to print out. Perhaps the PCC would like to make the use of these labels a requirement of the code.
In an article published in the “New Statesman” under the headline “How our libel laws censor scientists” Simon Singh discusses the development of US libel laws in the wake of New York Times v Sullivan, concluding that
“We may not want English libel laws that completely mimic the US system in every detail. But there is a growing consensus that we need to shift, at the very least, towards the balance that emerged after the New York Times Company v Sullivan decision”
This “growing consensus” does not, we are afraid, include either Inforrm or the European Court of Human Rights. There is an interesting and thoughtful Financial Times editorial on libel drawing attention to what seems to us to be the fundamental point “a more permissive libel law requires a responsible media“. It repeats the often made suggestion of a specialist libel tribunal – a difficult area to which we will return in a later post.
Simon Singh’s fellow libel reform campaigner, David Allen Green (aka the blogger “Jack of Kent”) has an interesting piece on the “Guardian” “Comment is Free” site with the headline “Why should companies be allowed to sue for libel?” This is also an interesting topic to which we will return in a separate post.
In the Courts
There is an application for permission appeal in the case of His Holiness Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group. This was refused on paper but is now the subject of a renewed oral permission hearing on 22 October 2010. The application for permission is discussed in the Press Gazette. The journalist defendant, Hardeep Singh, has written about the case on the Index on Censorship blog.
On 10 August 2010 “The Times” lodged a petition seeking permission to appeal to the UK Supreme Court in the case of Flood v Times Newspapers. The decision of the Court of Appeal was discussed by us here. On its application for permission “The Times” contends that the Court of Appeal made seven “fundamental errors”, including failing to accept that it was bound by two of its own previous decisions not to interfere with a judge’s assessment of the balance between the parties’ competing rights under the European Convention of Human Rights. It is reported that the Petition says:
“Moreover, if reports on matters of public interest are to be confined in the way that the Court of Appeal’s judgments suggest, there is a real danger that journalistic investigation of possible wrongdoing, particularly by those in authority, will not be undertaken because of the obvious likelihood that it its products will not be published.“
Finally, two “media on media” cases can be noted. First, the claim by the BBC against Harper Collins for breach of confidence (see “Next Week in the Courts” below). Second, the claim for infringement of copyright brought by OK! against MGN for using a “substantial part” of an interview given to the magazine by the late Jade Goody. MGN is accused of acting in “flagrant disregard of Northern & Shell’s rights, entitling the publisher to additional damages”. This claim is reported in the Press Gazette.
From the Blogs
Not all bloggers have been on holiday over the summer. Jack of Kent has had a series of interesting posts on legal – non-media – matters ranging from the legal regulation of dress, cats and wheelie bins to Ray Gosling and “wasting police time”. Although we do not always agree with him – particularly on libel reform – his posts are consistently thoughtful and worth reading.
We had a post last week discussing the important confidentiality case of Imerman v Tchenguiz. It has also been discussed by a number of other bloggers including the UK Human Rights Blog, the Panopticon Blog, IPKat, the Estates Gazette and family law blogs, the Marilyn Stowe Blog and Family Lore.
The Strasbourg Observers blog discusses the recent Court of Human Rights decision in Aksu v Turkey in which, in a 4:3 split decision, the Second Section held that a two publications – a book and dictionary – containing offensive statements about Roma did not constitute a violation of Article 14 of the Convention.
US Law and Media News
This will, again, be the subject of a separate post.
In Islam Expo v The Spectator ( EWHC 2011 (QB)) – handed down on 30 July 2010 – Mr Justice Tugendhat decided that the words complained were capable of referring to the claimant, even if words which were the subject of a hyperlink were taken into account. The case is discussed on the Journalism.co.uk website and there is a 5RB case note. The Spectator has now published an apology on its website for what is described as the “unintended and false” suggestion which was complained about.
Media Law Cases in other jurisdictions
It is reported that a British journalist Michael Leidig has won a High Court libel action in Austria over claims he made up interviews for a book about kidnapped Austrian girl Natascha Kampusch. The Austrian High Court, has ruled three interviews alleged to have been made up had, in fact, taken place. The court said: “It is obvious that the defendant’s allegations and reports seriously damaged the reputation of the plaintiff and constricted his work as a serious journalist”. The case is discussed on Jon Slattery’s blog.
There have been a number of decisions in media law cases in Commonwealth jurisdictions. Most notably, the High Court of Australia gave judgment on 4 August 2010 in the case of Aktas v Westpac Banking Corporation  HCA 25. We have discussed the case in a post yesterday.
In Kermode v Fairfax Media Publications Pty Ltd  NSWSC 852 Simpson J dealt with an application to strike out various paragraphs of the defence and the issue of “contextual truth”. Certain paragraphs were struck out and permission to amend given.
The case of Cragg v Stephens (2010 BCSC 1177) was an assessment of damages in a defamation case in British Columbia. The defendant defamed all three plaintiffs in their professional capacities including making allegations of improper and criminal behaviour. The publications were circulated widely via e-mail to the plaintiffs’ work colleagues and supervisors, media outlets, politicians, officials, civil servants, and others an award of Can $25,000 for general damages and Can $10,000 for aggravated damages.
In Martin v. Lavigne and Neufeld 2010 BCSC 1136, another British Columbia case, the defendant successfully relied on a defence of qualified privilege in a libel case based on the publication of a letter.
In Monument Mining Limited v. Balendran 2010 BCCA 373 the Court of Appeal for British Columbia allowed the plaintiff’s appeal against the judge’s order striking out its defamation action on the basis that the words complained of were not capable of a defamatory meaning.
The Ontario case of Black v. Breeden, 2010 ONCA 547 concerned a series of libel actions based on internet publications brought by Conrad Black. The defendants’ application to stay the action on the ground of forum non conveniens failed at first instance. Their appeal to the Court of Appeal for Ontario was unsuccessful.
Next Week in the Courts
On Tuesday 31 August 2010, Mr Justice Morgan will hear an application for an interim injunction in the case of BBC v Harper Collins – in which the BBC seeks an injunction to restrain the publication of a book which is said to reveal the identity of the individual who plays “The Stig” in the BBC Top Gear programme. For the BBC’s own news item on the case, see here.
The following reserved judgments remain outstanding:
Clift v Slough BC heard 23 and 24 June 2010 (Ward, Thomas and Richards LJJ).