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

Spiller & Anor v Joseph & Ors [2010] UKSC 53,  1 Dec 2010.  On appeal from [2009] EWCA Civ 1075.   The Supreme Court considered the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated.

The Supreme Court unanimously allowed the appeal, holding that the defence of fair comment should be open to the appellant entertainment booking service. The elements of the defence of fair comment had been set out by Lord Nicholls in the Hong Kong case of Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777. His fourth proposition, namely that the comment must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded, had attracted criticism and was challenged by the appellants. Lord Nicholls’ requirement, that readers should be in a position to evaluate the comments for themselves, could not be reconciled with the authorities. This was so, even where the subject matter was not within the public domain. Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment. The fourth proposition should be re-written as follows: ‘the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.’ The Inforrm case comment is here.

KJH v HGF [2010] EWHC 3064.   24 Nov 2010.  The applicant applied to continue an interim injunction against the respondent prohibiting the publication of certain information on the grounds of confidentiality and privacy. The injunction had been continued on two occasions since it was first made. Held: the evidence established to a high degree of probability that the applicant was the victim of blackmail involving the threat of the revelation of stolen private and confidential information. Applying the relevant principles and considering the Human Rights Act 1998, s 2(4) and whether the threshold test in s 12(3) concerning the right to freedom of expression was satisfied, an interim injunction was therefore necessary. A final determination of the matter had to await trial, granting anonymity at the interim stage served the interest of such an applicant in protecting his or her rights under the ECHR,  art 8 and the public interest in promoting the prevention and punishment of blackmail. As a result it had also been necessary to derogate from the principle of open justice by holding the instant hearing in private in accordance with CPR 39.2(3)(a)(c) and (e) and to anonymise the names of both parties. The Inforrm case comment is here

Daniels v BBC [2010] EWHC 3057 (QB).  24 Nov 2010.  The claimant had worked for a short period at the BBC.  Complaints had been made about him by his colleagues and he was dismissed.  He brought three sets of libel proceedings against the BBC for comments made by employees  in a feedback schedule.  The BBC applied for a ruling that the words complained of were incapable of bearing a defamatory meaning, for summary judgment and for an extended civil restraint order against the Claimant.   Sharp J granted summary judgment, holding that the words complained of were not capable of bearing any meaning defamatory of the Claimant. They did not impute to the Claimant some quality which would be detrimental, or the absence of some quality which is essential, to the successful carrying on of his office, profession or trade.  The complaint did not surmount the threshold of seriousness.  In any event, the words were plainly protected by qualified privilege and the case on malice was bound to fail.  Civil restraint order refused as claimant had not demonstrated the necessary hallmark of persistent vexatiousness.

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]

  • Smartsource Drainage & Water Reports Ltd v IC EA/2010/0077. EIR 2004. Transfer of the appeal to the Upper Tribunal.
  • Dorothy Cooksey v IC EA/2010/0113. FIO Act 2000, ss 12 (cost of compliance), 16 (duty to assist):
  • Martin Brighton v IC EA/2010/0114. FIO Act 2000, s 1 (duty to confirm or deny).

Recent Developments

Solicitor wins phone hacking libel claim. 5RB Website.  Notes that a libel action brought by solicitor Mark Lewis against the PCC and its chair,  Baroness Buscombe, has settled with payment to Mr Lewis of a sum in damages and a statement in open court. It is believed to be the first case in which the PCC has been successfully sued for libel.

WikiLeaks US embassy cables: live updates. The Guardian – 30 Nov 2010

High Court rules newspapers can charge for web links, Oliver Luft, Press Gazette – 26 Nov 2010. Notes that the Newspaper Licensing Agency won a significant victory as the High Court ruled that aggregated web links taken from newspaper websites are protected by copyright law. Mrs Justice Proudman ruled that end-users who paid aggregator Meltwater News to distribute online newspaper content in the form of a news monitoring service infringed publisher’s copyright if they acted without an NLA licence.

Data protection reform strategy: EDPS urges Commission to meet the challenge of an ambitious reform for a strong and effective data protection European Data Protection Supervisor.  Press Release – 15 Nov 2010.  Peter Hustinx, European Data Protection Supervisor, and Giovanni Buttarelli, Assistant Supervisor, spoke to the press about the future of the EU legal framework for data protection and addressed in particular the European Commission’s recent communication on a data protection reform strategy.

Articles and Discussion

ASA rules will apply to social media and company websites. Tim Beadle (Atrium).  Privacy Laws & Business United Kingdom Newsletter P.L. & B.U.K.N. (2010) No.52 November pp.1, 4-6.  Reports on the Committee of Advertising Practice Code being introduced by the ASA from Mar 2011. Highlights that it will also apply to company website advertisements and marketing communications and to company information on social networking sites.

ICO commends its line to the Ministry of Justice on revision of the EU DP Directive. Laura Linkomies. Privacy Laws & Business United Kingdom Newsletter P.L. & B.U.K.N. (2010) No.52 November pp.7-9.  Examines the response of the Information Commissioner to the MoJ call for evidence on the data protection legislative framework. Reports on the Commissioner’s recommendations concerning international data transfers, data breach notification, consent to personal data processing, the definitions of data processor and data controller, an EU wide notification system, the role and powers of the commissioner, and the overlap between data protection and freedom of information legislation.

Compensation for breach of privacy rights under the spotlight. Rosemary Jay (Pinsent Masons).  Privacy Laws & Business United Kingdom Newsletter P.L. & B.U.K.N. (2010) No.52 November pp.11-14.  Considers the availability of compensation for damages and distress under the Data Protection Act 1998, assesses whether the UK position is out of step with other EU Member States. Compares the rights to compensation for breach of data protection rights in the UK, France, Spain and Germany.

Protection of commercial secrets uncertain and expensive. James Michael, Privacy Laws & Business United Kingdom Newsletter P.L. & B.U.K.N. (2010) No.52 November pp.16-18.  Highlights the inconsistency in the protection of government contract information from public disclosure. Reviews: the First-Tier (Information Rights) Tribunal decision in Department for Work and Pensions v Information Commissioner, which ordered disclosure of financial details of an information technology contract; and the decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire CC [2010] EWCA Civ 1214 which refused disclosure of the financial details of a waste processing contract.

EU Commission takes UK to court over DP implementation. Laura Linkomies.  Privacy Laws & Business United Kingdom Newsletter P.L. & B.U.K.N. (2010) No.52 November p.19.   Reports on the data protection infringement procedure against the UK commenced by the European Commission in Apr 2009. Outlines the three specific areas in which the UK treatment of confidentiality of electronic communications is considered to be in breach of Directive 2002/58 (e-Privacy Directive) and Directive 95/46 (Data Protection Directive). Reviews the background to the infringement proceedings and notes that the Commission has referred the matter to the CJEU.