Matrix Media Law Update – 19 November 2010

19 11 2010

This is a Media Law Update covering the last week prepared by the Legal Information Team at Matrix Chambers, which they have kindly agreed to make available to readers of Inforrm.

Latest Cases

Ntuli v Donald [2010] EWCA Civ 1276.  CA (Civ Div) – 12 Nov 2010. The appellant appealed against an interim injunction restraining her from publishing certain information about her former relationship with the respondent and also from publishing the existence of the injunction. The appellant argued that the judge had erred in his analysis of the competing factors in the balance between the respondent’s right to privacy and her right to free expression. Further, it was unclear what “intimate” details the injunction covered. Held:  There was nothing wrong with the analysis in the judgment. The judge had considered the appellant’s motives for wanting to disclose the relationship, the respondent’s past admissions about sexual behaviour, and the possible impact on their respective children. The word “intimate” did not have an essentially sexual connotation; the same word was used in the order in McKennitt v Ash [2006] EWCA Civ 1714 where the relationship was not sexual. Taking into account the need to prevent the respondent’s claim from being undermined pending trial, the appropriate restriction on publicity was one that limited publicity to what was contained in the instant judgment and ancillary orders. For the same reasons there was no justification for continued anonymity. Disclosure of the mere fact of his past relationship, which was not entirely secret, did not carry with it particularly grave consequences. Although there was no urgency in respect of that disclosure, there was no compelling reason to restrain it. The judge had not erred by not restraining disclosure of the existence of the relationship.  For news story, please visit: BBC Website and for Inforrm post see here.

Cairns v Modi [2010] EWHC 2859 (QB) .  QBD – 10 Nov 2010. The defendant applied for the court to try, as a preliminary issue, the extent to which an allegedly libellous publication had been read within England and Wales. Held: it was not appropriate to try the issue. The claimant’s primary concern was vindication, not damages for what had been suffered in the past, and the number of publishees within the jurisdiction, however limited, was not determinative of the issue whether the action amounted to an abuse of process which should not progress to trial.  Inforrm post here.

Ifedha v Archant Regional Ltd (Kilburn Times North West London Newspapers) [2010] EWHC 2819 (QB). QBD – 8 Nov 2010.  The claimant nightclub owner applied to set aside an order staying libel proceedings brought against the defendant newspaper publisher and the defendant cross-applied to strike out the claim. Held: the proceedings were struck out on the basis that the claimant’s fifth attempt to draft a statement of case was still deficient for the purposes of CPR r 3.4(2)(a) and (b). The latest pleading did not disclose a reasonable cause of action. On the basis of what the claimant admitted in his statement, the action was worth no more than a nominal amount, if anything at all: the claim for damages bore no relation to the law or to reality.

JIH v News Group Newspapers [2010] EWHC 2818. QBD – 5 Nov 2010.  The court was required to determine the circumstances in which a claimant in an action to restrain misuse of private information had not to be named. The Court found that under ECHR, art 10 the general principle was that parties’ names should be included in the orders and judgments of the court, and an order for anonymity was a derogation from the principle of open justice and an interference with the rights of the public. Therefore, the Court declined to make an anonymity order as the applicant had not shown to that high standard that the object of achieving justice in his case would be rendered doubtful if the anonymity order was not made. The proposed order would be effective to achieve justice, and would give all necessary protection to the private lives of the applicant and his family, if it identified the applicant, but gave information about the subject matter only in the confidential schedule. The schedule would be served on newspaper publishers so that they would know what they could and could not publish in the future.  For Inforrm post see here.

Statements in Open Court

Henry v Independent News & Media Ltd. QBD – 26 Oct 2010. Made in proceedings for defamation following the publication of false statements on a newspaper website and in a national newspaper which referred to the claimant social worker.

Latest Regulatory Decisions

Latest decisions of the Scottish Information Commissioner

Latest Decision Notices from the Information Commissioner’s Office

Latest decisions of the First-tier Tribunal, General Regulatory Chamber [Information Rights]

Recent Developments

Websites publish advice to student protesters on how to avoid arrest. Paul Lewis. The Guardian – 16 Nov 2010. Notes that police act to close down anti-authority blog Fitwatch on grounds of ‘criminal’ activities

Information Commissioner’s report to Parliament on the state of surveillance. Information Commissioner’s Office. Report – 11 Nov 2010. An update report on developments since the 2006 Report on the Surveillance Society by members of the Surveillance Studies Network.

‘Solicitors from Hell’ owner vows to persevere after another libel loss. James Dean.  Law Society Gazette – 11 Nov 2010.  Reports that the owner of solicitorsfromhell.co.uk has vowed to keep the site going, despite losing the latest in a series of libel cases. In the High Court, London firm Brett Wilson forced site owner Rick Kordowski to make an undertaking to the court: not to publish any further reference to the firm or partner Iain Wilson; not to republish a number of comments set out in the particulars of Brett Wilson’s claim; and to remove outstanding web links on solicitorsfromhell.co.uk by the end of the week. Brett Wilson waived costs and damages.

Digital Economy Act to be judicially reviewed for compliance with EU privacy law. Julian Wilson. Panopticon Blog – 10 Nov 2010. Announces that ISPs Talk Talk and Virgin were today granted permission by the High Court for a judicial review of whether the Digital Economy Act 2010 complies with existing EU legislation on data protection and privacy.

Member States continue discussions on key copyright Issues, World Intellectual Property Organisation, Press Release – 12 Nov 2010, Notes that WIPO’s top copyright negotiating body has held discussions on limitations and exceptions to copyright law, as well as updating the rights of broadcasting organizations and the rights of performers in their audiovisual performances. The Standing Committee on Copyright and Related Rights, meeting from 8–12 Nov 2010, “took stock of the status of discussions in each of these three key areas and agreed on a road map for future negotiations.”

Articles and Discussion

Either side of the fence. Sharon Mitchell.  New Law Journal N.L.J. (2010) Vol.160 No.7441 pgs.1566-1567.  Examines BBC v HarperCollins Publishers Ltd [2010] EWHC 2424 (Ch) on whether the publication by an individual of information that was subject to a confidentiality clause, between his agent and an entertainment company, was a breach of that contract and whether an equitable remedy was available once the information was in the public domain; and Veolia ES Nottinghamshire Ltd v Nottinghamshire CC [2010] EWCA Civ 1214 on whether a local authority was constricted in its release of business information to interested parties, concerning businesses tendering for public services.

Liability of internet service providers for online defamation in India, Valentina Simonenko (Gide Loyrette Nouel),  Computer and Telecommunications Law Review C.T.L.R. (2010) Vol.16 No.8 pgs.218-225.  Examines Russian case law developments on the liability of hosting service providers for copyright infringement. Discusses the Federal Arbitrazh Court of Moscow Region decisions in: Content i pravo LLC v Masterhost dismissing a song owner’s claim for compensation against an HSP, which hosted a website on which several of its songs had been placed; and First Music Publishing House LLC v Rambler Internet holding that an HSP was liable for administrating a website on which music was posted and not removing it, even after being alerted as to copyright infringement.


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