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.

Case Law

Cambridge v Makin [2011] EWHC 12 (QB). 12 January 2011, Tugendhat J.  A libel action arising out of an email sent in the course of a campaign in support of a motion of no confidence in the directors of the National Register of Public Service Interpreters Ltd (NRPSI) which meant: ‘the Claimant abused her position as a director of NRPSI by acting on a conflict of interest, namely overseeing the sale of NRPSI members data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit.’  The defence of justification failed on the facts.   The Claimant accepted that some emails were subject to qualified privilege.  The court rejected the Defendant’s case that qualified privilege protected the publication of the email to: (a) those who worked as interpreters in the criminal justice system and were affected by the issues underlying the motion of no confidence; and (b) members of professional associations concerned with the issues underlying the motion of no confidence.   The judge found that the Defendant had not believed what he wrote in the defamatory email; he did not care whether it was true or false.  Damages of £30,000 were awarded to the Claimant.  There is a 5RB case note here.

POI v A Person Known as “Lina” [2011] EWHC 25 (QB).  13 January 2011, Tugendhat J.  Public judgment following the grant of an injunction to restrain the publication of photographs by a blackmailer.  Judge held that circumstances of the case the circumstances of this case require dan order for anonymity as the evidence of attempted blackmail included evidence that there is some information about the case that has been put in the public domain.

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

Death of a good name – defamation and the deceased: a consultation paper, Scottish Government.  Consultation – 11 Jan 2011.  On the question of the extent to which the dead should be protected from unfounded, derogatory comments. The paper will consider whether additional protections, beyond those which already exist, could reasonably be developed in order to deter “defamation of the dead”. Consultation ends: 4 Apr 2011.

“Max Mosley’s privacy claim reaches the European court of human rights“. Afua Hirsch, Legal Affairs Correspondent. The Guardian – 11 Jan 2011.  Reports that Max Mosley, the former FIA president, who successfully sued the News of the World in 2008 for a story detailing his sexual activities with prostitutes, is to appear before a panel of judges at the ECtHR to argue that the newspaper should have been forced to notify him before the story was published.

“Desmond’s titles ejected from PCC regulation”. Press Gazette – 11 Jan 2011.  Notes that Richard Desmond’s newspapers and magazines have been ejected from regulation by the Press Complaints Commission after failing to pay the subscription that fund the self-regulatory body. The PCC has said it now considers titles published by Desmond-owned Northern and Shell as outside its jurisdiction. The decision means newspapers include the Daily Express and The Star and magazine OK, New and Star are no longer covered by the Editors’ Code of Practice which underpins the work of the PCC. For PCC Statement, please visit: PCC Website

“Information Commissioner’s response to the Government’s plans to extend the scope of the Freedom of Information Act“, Information Commissioner’s Office, Press Release – 7 Jan 2011. Welcomes the Government’s proposals. For further commentary on this subject, please visit  UK Freedom of Information blog – which has the Campaign for Freedom of Information response and FOI Man Blog.

Opening up public bodies to public scrutiny, Ministry of Justice, News Release – 7 Jan 2011, The MoJ has unveiled new plans to extend the scope of the Freedom of Information Act 2000, by: increasing the number of bodies to which the FOI Act applies, consulting on bringing other bodies which have a public function into its ambit and making most public records available at The National Archives and other places of deposit ten years sooner, when they are 20 years old.

News of the World suspends assistant editor over phone-hacking claims, James Robinson.  The Guardian – 5 Jan 2011.   Reports a senior News of the World executive has been suspended by the paper following a “serious allegation” that he was involved with phone hacking, shortly after court documents were lodged, which apparently showed that he had asked private investigator Glenn Mulcaire to hack into phones belonging to Sienna Miller and her staff in 2005.

Scottish Government issues privacy guidance, Robin Hopkins,  Panopticon blog – 5 Jan 2011, Notes that the Scottish Government has published its guidance document, Identity Management and Privacy Principles. The guidance is aimed at both public sector policy makers and with those involved in devising or operating systems for proving or recording identity.

For Guidance, please download: Identity Management and Privacy Principles: Privacy and Public Confidence in Scottish Public Services

Articles and Discussion

How audience’s perception of sexual violence in films can influence BBFC’s valuation and vice versa: a comparative study between “Straw Dogs” and “Irreversible”. Claudia Roggero (Studio Legale SIB, Florence). Entertainment Law Review Ent. L.R. (2011) Vol.22 No.2 pgs.53-58.  Discusses, with reference to the films Straw Dogs and Irreversible, the interaction between the approach of the British Board of Film Classification to classifying films containing sexual violence, and audience perceptions of such violence. Reviews the factors considered by the BBFC when classifying material, compares its decisions in respect of the two films and assesses how its changing evaluations reflect alterations in audience perceptions of such violence over a 30-year period.

“Where blackmail assists: anonymity in privacy litigation”. Eleanor Steyn (Michael Simkins LLP). Entertainment Law Review Ent. L.R. (2011) Vol.22 No.2 pgs.59-61.  Comments on High Court decisions upholding interim injunctions to prevent private information about celebrity claimants’ sexual activities from being published and authorising the proceedings to be anonymised to maintain the public interest in combating blackmail. Discusses the rulings in DFT v TFD, and AMM v HXW, including the grounds for derogating from the principles of open justice, for serving the respondents and media organisations with the anonymity orders on the day they were made, and the blackmail elements of the cases. Considers the practical significance of the judgments.

“Independent judicial oversight to guarantee proportionate revelations of journalistic sources under art.10 ECHR: the Grand Chamber’s decision in Sanoma Uitgevers BV v Netherlands”. Ashley Savage (Durham University) and Paul David Mora.  Entertainment Law Review Ent. L.R. (2011) Vol.22 No.2 Pages 65-70.  Discusses the decision in Sanoma Uitgevers BV v Netherlands (App No 38224/03) on whether a police summons issued without prior judicial authorisation, requiring journalists to surrender material concerning illegal street racing that would allow the identity of their privileged sources to be identified, infringed the right to freedom of expression under the ECHR, art 10.

The Stig speeds away from the BBC’s interim injunction, Nicholas Tall and Michelle Lewiston (Speechly Bircham LLP).  Entertainment Law Review Ent. L.R. (2011) Vol.22 No.2 Pages 70-72.  Comments on BBC v HarperCollins Publishers Ltd [2010] EWHC 2424 (Ch), which held that the BBC was not entitled to an interim injunction preventing the disclosure in an autobiography of the identity of “The Stig” character from the television programme “Top Gear”. Examines the background to the case and the court’s approach to claims that the respondent should not benefit from breaching his duty of confidence, including its analysis of the extent of the duty, and whether the information concerned ceased to be confidential when it entered the public domain.

Commercial information and human rights – new tribunal decision. Anya Proops.  Panopticon blog – 7 Jan 2011.  Discusses Nottinghamshire CC v IC & Veolia & UK Coal Mining Ltd EA/2010/0142. The case was concerned with a request for disclosure of particular information contained in a waste management contract between the council and Veolia. The particular information in dispute before the Tribunal was information contained in a schedule to that contract. In essence, the schedule detailed the leasing arrangements under which the council had an option to lease certain land from UKCM. The intention was that, once the leasing option was exercised by the council, Veolia would take a sub-lease of the land and then would build and maintain an incinerator on the land for the purposes of discharging its waste management obligations under the contract.

“Manifestly unreasonable” requests under the EIR: relevance of cost of compliance and duty to advise and assist. Robin Hopkins.  Panopticon blog – 3 Jan 2011.  Discusses Little v ICO and Welsh Assembly Government EA/2010/0072, the latest application of the principles in DBERR v IC and Platform EA/2008/0096 concerning “manifestly unreasonable” requests under EIR, reg 12(4)(b). In particular, it deals with a public authority’s reliance on that exemption based on the excessive time which would be required to comply with the request.

Events and Seminars

Freedom of Information in the WikiLeaks Era, British Institute of International and Comparative Law. 31 Jan 2011 : 17.00 – 19.00 : British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London, WC1B 5JP : Member of BIICL £60 : Non-Member £100.

This seminar will discuss these legal questions, as well as the relevant legislation which needs to be considered in relation to this new online phenomenon. While freedom of the press is central to this debate, the balance between the public interest in freedom of information and the need for confidentiality, for reasons such as national security, needs to be considered when analysing the legal aspects. As a result, this seminar will cover the wider legal context in which websites such as WikiLeaks operate, without limiting itself to the recent publication of a series of diplomatic cables.

Chair:

  • Joshua Rozenberg (Legal Commentator).

Speakers:

  • David Banisar (Article 19).
  • Andrew Murray (LSE).
  • Mark Stephens (FSI Law).
  • James Leaton Gray (BBC Information Policy and Compliance).

To book a place at this event, please email eventsregistration@biicl.org or call 020 7862 5151.