Law and Media Round Up – 31 January 2011

31 01 2011

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.

News

Yet again, phone hacking is the leading media law story of the week.   The claims now relate to recent activities and to the actions of other newspapers.   First, there was news of a claim by Kelly Hoppen in relation to “accessing or attempting to access her voicemail messages between June 2009 and March 2010”. The interesting innovation of an “approved summary of the hearing” – made after her initial application in private – has been made available.  Former minister Tessa Jowell has reported to the police that there has been an attempt to hack into her voice mail messages as recently as last week.

It should be noted, however, that the News of the World is reported to have denied the allegation that phone hacking has taken place within the past year.  The BBC has subsequently apologised to the News of the World for not putting the allegation to it.

Secondly, it has been reported that solicitors acting for former Labour MP Paul Marsden are examining evidence that his phone may have been hacked by a Daily Mirror journalist in 2003.   No actions have been commenced against other newspapers.

There have been a number of interesting media comments on the affair.  In the Observer, Peter Preston points out the important role of “no win no fee” agreement lawyer Mark Lewis in the exposure of the phone hacking scandal:

“deeds that needed to see the light of day would have stayed in the shadows without CFAs – and that, without them, this wholly grotty saga might never have emerged”.

Brian Cathcart has kept up his critical analysis of the affair on the “Free Speech Blog”, most recently with a post suggesting that the case for a public inquiry grows stronger and stronger. In contrast, on his blog the Press Gazette editor Dominic Ponsford argues that, on phone hacking prosecuting just Goodman and Mulcaire was a proportionate response.  Jon Slattery’s blog draws attention to reports that News International believes that “external forces” are behind the hacking headlines. The Independent’s media commentator Stephen Glover suggests that Rupert Murdoch has lost control of his own story.  He writes

Where will this end? Not, I hope, in the demonisation of the entire Press and statutory regulation. If that is to be avoided, the News of the World, and other tabloids, must show that they do not believe they can act outside the law.

In another article in the “Independent”, Labour MP Tom Watson asks the question “Why won’t the police tell us who was hacked?”  And finally, former MP George Galloway has told the BBC that he is being offered “substantial sums of money” by the News of the World after his phone was allegedly hacked.

Finally, the implications of the hacking of MPs’ phones for parliamentary privilege is being considered by the House of Commons Standards and Privileges Committee.  On 25 January 2011 the Committee heard evidence from Lords Lester and Nicholls and Professor Anthony Bradley.

We note that the NGO “Privacy International” has a re-designed website.  This includes its study on “European Privacy and Human Rights” in 2010.  The United Kingdom does not do very well – with particular attention being drawn to the availability of ministerial warrants and medical databases with centralised registries.

It is reported that a breakaway leaking site formed by several WikiLeaks defectors has gone live early, ironically after the design of the site was leaked.  The new site is called “Open Leaks” – but has yet to post any content.

Journalism and the PCC

On the Media Standards Trust blog Martin Moore raises the interesting question about the files of Burton Copeland – the firm of well known criminal solicitors called in by Andy Coulson to investigate the phone hacking allegations.  It appears that there are four lever arch files of records which, as he says, might be highly relevant to the police investigation.

Kevin Marsh has an interesting post on the BBC College of Journalism blog entitled “A culture of contempt“.  He points out that the NotW hacking scandal will clearly have consequences for NewsCorp, the Met, the PCC and – of course – the individuals concerned but also suggests that journalists should be taking stock:

We know that there’s a culture of contempt in too many newsrooms – contempt not just for power and celebrity but for the public that we journalists claim to serve. Why else would any of us think it’s OK to tell them less than the truth as a matter of routine?

Statements in Open Court and Apologies

We are not aware of any Statements in Open Court or published apologies in libel actions this week.

In the Courts

On 24 January 2011 permission to appeal was granted in the case of Gaunt v OFCOM. Our post on the original decision is here.

On 27 January 2011, Mr Justice Tugendhat heard another application in the long running case of Thornton v Telegraph Media Group. Our comment on the same judge’s important ruling earlier in the same litigation is here.

On 28 January 2011, Christopher Clarke J gave judgment in the case of Wallis & anr v Meredith [2011] EWHC 75 (QB) (heard on 29 November and 1 December 2010).  The claim was struck out under the Jameel principle.

Media and Freedom of Expression Law in Other Jurisdictions

In Osuamadi v Okoroafor ([2011] NSWDC 1) the District Court in New South Wales assesed the damages for defamation in a claim between two members of a small ex-patriot community from Igbo in south-western Nigeria.  The claim arose from the distribution of a number of emails which, inter alia, accused the plaintiff of theft and corruption.  Compensatory damages for defamation of Aus$30,000 were awarded, along with aggravated damages of Aus$15,000.

It is reported that Sweden’s Princess Madeleine is set to receive damages in excess of the equivalent US$540,000 from a number of German newspapers for libel and intrusion in her private life.  The award was made by a German court. The stories were published between 2000 and 2004 and included a wide range of false information and claims about Princess Madeleine’s life and living habits, including details that she was pregnant and planning to marry.

US Law and Media News

Once again, this will be the subject of a separate post.

Events

On 31 January 2011 the British Institute of International and Comparative Law holding an event entitled “Freedom of Information in the WikiLeaks Era”.  The event starts at 5.00pm at the British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP.

The Blogs

Jon Slattery’s blog notes a story in the “Sunday Times” that senior ministers are backing a change in the law to stop the media identifying crime suspects before they are charged.  According to the “Sunday Times” the change would mean that no newspaper or broadcaster could name someone arrested or questioned by the police until after a decision had been made to charge the person with a crime.  The change is, apparently, being supported by Justice Secretary Kenneth Clarke and the Attorney-General, Dominic Grieve.  It might be thought that, in the light of the press treatment of Chris Jeffries, such a provision is long overdue.

The Strasbourg Observers blog has a post by Rónán Ó Fathaigh the recent Article 10 decision of the Court of Human Rights in Hoffer v. Germany which considered the criminal convictions of protestors who compared abortion to the holocaust.  Like Hugh Tomlinson’s Inforrm post on the case, Rónán Ó Fathaight is critical of the decision, concluding

All in all, the judgment in Hoffer is particularly bereft of reasoning: failing to place the statements in the context of a pamphlet, where hyperbole is to be expected; and failing to place importance on the statement being a value-judgment. When these issues are considered together, it is highly questionable whether attributing the meaning of such a statement to refer to a particular doctor, and not to abortion generally, is consistent with the high degree of protection afforded to freedom of expression under Article 10 on matters of public debate.

Next Week in the Courts

At 10.00am on Monday 31 January 2010, the Court of Appeal will give judgment in the case of JIH v News Group Newspapers, which heard on 14 January 2011 by the Master of the Rolls, Maurice Kay and Smith LJJ.

Mr Justice Tugendhat meanwhile will hear an adjourned application in the case of The Viscount Monckton of Brenchley v British Broadcasting Corporation (initially listed on 27 January 2010 before Mr Justice Supperstone in the interim applications court).

On 3 February 2010 the High Court will hear an application to strike out the defence in the case of Lord Ashcroft v Independent News and Media Ltd

We understand that the libel jury trial of Warren v Moloney which was due to be heard this week has settled.  It is now 557 days since the last High Court libel jury trial in Desmond v Bower (in July 2009).  This gap seems to be the longest in English legal history.  According to the always well informed Mr Benjamin Pell the previous record was 332 days (ending with the trial in Howlett v Holding on 23 May 2005).

Reserved Judgments

The following reserved judgments after public hearings remain outstanding:

Bowker v Royal Society for the Protection of Birds, heard 21 October 2010 (Sharp J).

Pritchard Englefield & anr v Steinberg heard 19 November 2010 (Eady J)

Brady v Norman, heard 19 January 2011 (The President of the Queen’s Bench Division, Smith and Aikens LJJ)

McKeown v Attheraces Ltd, heard 20-21 January 2011 (Tugendhat J)

Thornton v Telegraph Media Group, heard 27 January 2011 (Tugendhat J)


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