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.
In his keynote address at the JUSTICE/Sweet and Maxwell Human Rights conference on 20 October 2010 Lord Justice Sedley suggested that the courts have started to move towards a greater sensitivity to the right to freedom of expression. He said that the the change came as the courts had started moving “away from some of the rigidities and artifices of libel law”.
He said that he suspected that this change was due anyway and was not directly a result of the Human Rights Act or the European Convention. He went on to say
“But it is an important fact in Convention law and in human rights law that care must be taken not to confuse the noise that the media are able to make with public opinion. Public opinion I sometimes think is in large part an echo chamber inhabited when one gets there by leader writers and public moralists and perhaps not many other people. There are interests which do not feature in the conventional account of public opinion – and the right to reputation is one of them – which do have to be watched and guarded”.
BBC News reports that Cardiff solicitors, Hugh James, have “taken forward six defamation actions involving Facebook in the last nine months”. It is said that these action involve “unfounded allegations, false Facebook profiles, and altered or cropped photos”. The defendants in these actions are not identified – and we assume that they were not against Facebook itself (as this is a US Corporation protected by the “SPEECH” Act). It is not clear whether any of these actions have succeeded.
An action for defamation by Mark Bridger against the Crown Prosecution Service, arising out of an email sent to his employers concerning a prosecution has been settled. The email outlined the case against him but did not mention the fact he was acquitted. The apology is set out on the website of the claimant’s solicitors, Armstrongs.
Barbara Broccoli, the producer of the James Bond films, begun proceedings against Associated Newspapers in a row over a story that appeared in the Mail on Sunday. She is suing over a story headed “Axed film quango gave £70m to own members” which appeared in August and over a diary item. The claim is reported in the Press Gazette.
Journalism, the PCC and Ofcom
The Press Complaints Commission yesterday failed in a bid to censure the Daily Star and Daily Express newspapers (both owned by Richard Desmond’s Northern and Shell group) for paying a witness in a criminal trial under clause 15 of the Code. The complaint was one which the PCC brought of its own motion. The decision is reported in the Press Gazette.
There is a discussion on the PCC Watch blog under the headline “Why the PCC is right to bring cases against newspapers” which draws attention to two other cases which the PCC brought itself. It notes the PCC’s point that clauses 13, 15 and 16 are the ‘victimless’ clauses (presumably making it necessary for the PCC to bring complaints itself).
In a comment piece in the Guardian Damian Tambini advances a powerful argument that “the government’s proposal for the reform of Ofcom is one of the gravest assaults on broadcasting freedom … seen in the UK”. There is a also a piece on the reforms by Maggie Brown.
In the Courts
A statement in open court was read in the case of Kenyon v Associated Newspapers (which had been listed for a jury in November). The statement recorded that Associated Newspapers is to pay £20,000 damages plus legal costs to Chelsea Football Club and its former chief executive over claims the soccer boss acted unprofessionally over the departure of a colleague. The statement is reported in the Press Gazette.
It was also announced that the case of Taylor v Associated Newspapers (incidentally based on an article by, Charles Sale, the same Mail journalist as the Kenyon case) had settled and the jury trial which had been last week did not take place. The settlement is reported in the Press Gazette. This means that there has still not been a libel jury trial since July 2009.
On 22 October 2010, the Court of Appeal gave the claimant permission to appeal in the case of His Holiness Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group (on appeal from  EWHC 1294 (QB)). The Press Gazette reports that Lady Justice Smith granted the applicant permission to appeal. The Jack of Kent blog has a post on the background to the case.
Lady Justice Smith gave permission on a limited basis:
“It does appear to be arguable that there are in this libel action issues that do not necessarily depend on the details of religious doctrine or religious procedure. Mr Alan Newman QC for the applicant has accepted that the judge’s decision was right in some respects.It seems to me this was a sensible concession to make but there are remaining issues that are arguably important, and which may make it appropriate for the matter to proceed to trial”.
We thank Mr Benjamin Pell for providing us with a note of these reasons.
Media and Freedom of Expression Law in Other Jurisdictions
In Globe and Mail v. Canada (Attorney General), 2010 SCC 41 the Supreme Court of Canada considered another case about the protection of journalist’s sources – this time under the law of Quebec. It held that there is no basis for recognizing a class‑based constitutional or quasi‑constitutional journalist‑source privilege under either the Canadian Charter or the Quebec Charter. For reasons set out in R. v. National Post, 2010 SCC 16 and in particular the difficulty in defining such a heterogenous and ill‑defined group of writers and speakers with the necessary degree of certainty, freedom of expression under the Canadian Charter and the Quebec Charter cannot constitute the basis for recognizing journalist‑source privilege. To require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate first that the questions are relevant. If the questions are relevant, the court must then consider the four Wigmore factors: (1) the relationship must originate in a confidence that the source’s identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.
In Campbell v. Tremblay, 2010 NLCA 62, the Court of Appeal of Newfoundland and Labrador. The appellant had written a letter about the respondent, saying amongst other things that he was “dumb or a deceitful, belittling, lying criminal” and characterizing his actions as “fraudulent”. The defences of justification, qualified privilege and fair comment were unsuccessful and the trial judge had awarded general damages of Can$7,000 along with aggravated damages of Can$5,000 and Can$11,000. The appeal on liability was dismissed but the Court of Appeal overturned the awards of aggravated and special damages.
An article in the Montreal Gazette discusses the broader implications of a lawsuit brought by a Toronto constable against his online detractors: Toronto cop’s lawsuit shows bubble may be bursting for anonymous online comments.
In Ireland an application for summary judgment under section 34 of the Defamation Act 2009 by Tipperary TD Michael Lowry against journalist Sam Smyth was adjourned until 22 November 2010. Mr Lowry is seeking a declaration that words are false and defamatory under section 28. There is an interesting blogpost about this case on the Cearta.ie blog.
The High Court in St Vincent has struck out the defence of talk show host Junior Bacchus and BDS Limited, owners of Nice Radio, in a defamation case brought against them by Prime Minister Dr Ralph Gonsalves. The decision is the subject of a report in the “Daily Herald” – it is however reported that the defendants are appealing.
In Robertson v Dogz Online Pty Ltd & Anor ( QCA 295) the Queensland Court of Appeal allowed the appeal of a litigant in person against the striking out of her statement of claim.
In Bechara v Bonacorso (No. 4) ( NSWDC 234) the New South Wales District Court dismissed a defamation action arising out of slanders to spoken to police officers. Defences of unlikelihood of harm (s 13 Defamation Act 2005 (NSW)) and qualified privilege (at common law and pursuant to s 30 Defamation Act 2005 (NSW) succeeded.
US Law and Media News
Once again, this will be the subject of a separate post.
No events have been reported to us for next week.
From the Blogs
The Cearta.ie blog has a post which we missed last week on liability for defamatory comments on websites – looking at the position under EU law and at common law.
Judith Towend’s “Meejalaw blog” has an interesting post on her FOIA requests about the MoJ’s plans for a media database of reporting restrictions – the short point is there are no plans to develop such a database, because it has been unable to resolve some “key issues”.
Next Week in the Courts
The appeal of the defendant against the ruling of Mr Justice Tugendhat (determining the meaning of the words complained of) in the libel case of Cambridge v Makin will be heard by the Court of Appeal on 27 or 28 October 2010.
The following reserved judgments after public hearings remain outstanding:
Clift v Slough BC heard 23 and 24 June 2010 (Ward, Thomas and Richards LJJ).
Spiller v Joseph heard 26 and 27 July 2010 (Lords Phillips, Rodger, Walker and Brown and Sir John Dyson).
McLaughlin & ors v London Borough of Lambeth, heard 19-21 October 2010 (Tugendhat J).
Bowker & anr v Royal Society for the Protection of Birds, heard 21 October 2010 (Sharp J)