Matrix Media and Information Update – 24 March 2011

24 03 2011

This is a Media and Information 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

Baturina v Times Newspapers [2011] EWCA Civ 308.  The Court of Appeal allowed the appeal by the claimant, the wife of the former Mayor of Moscow, against an order of Eady J striking out part of her claims arising out of the publication and article which wrongly suggested that she had purchased a very large London property.  The Court rejected the “Times'” contention that that a defendant cannot be liable in defamation, if rather than being on the ordinary and natural meaning of the words in his statement, the claim is based on an innuendo, which he did not, and could not reasonably have been expected to, appreciate at the time he made the statement. The claimant’s solicitors issued a Press Release

Zac Goldsmith & Anor v BCD [2011] EWHC 674 (QB). Guidance as to how to deal with return dates for privacy injunctions. Proceedings in 2008 were subject to a “super injunction” provision prohibiting the publication of all information relating to them so as to thwart publication by the then unknown defendant. The claimants had overlooked that they had given undertakings to serve the claim forms, which they did not do. Giving his reasons for discharging the 2008 orders and making fresh ones, Tugendhat J said that while the breach of undertakings, for which the claimants had apologised, was culpable, it was not intended for an improper purpose. The evidence as to the past behaviour of BCD, whose mental health remained fragile, was such that there remained a risk to the claimants from which they were entitled to be protected. He said that the injunction preventing publication of the contents of the e-mails involved no interference with freedom of expression. There is a news story in the Press Gazette.  There is also Inforrm blog post.

Andrew v News Group Newspapers Ltd & Ors. 18 Mar 2011. The claimant sports agent applied for non-party disclosure from the Metropolitan Police Commissioner under the CPR r.31.17 for the purposes of a claim for damages against the first defendant newspaper in relation to the hacking of his mobile phone. The court had to ensure that the intrusive jurisdiction to order disclosure was not used inappropriately even by consent. The court had to consider the balance of convenience including public interest, and had a difficult balancing act to perform between two conflicting public interests. The competing public interest in the instant case were the prejudice to the criminal investigation and the importance of the documents in assisting the claimant’s case. Cogent proof was necessary to show that the disclosure would hamper the investigation. The names of some journalists who were possible participants had already been published and the idea that they would be alerted was fanciful. No sufficiently strong public interest had been demonstrated to show that the investigation would be hampered by the disclosures. On the other side of the balance, the claimant’s case could not be tried without the disclosure as the evidence went to the heart of his case that the defendant newspaper and a private investigator had conspired to obtain confidential information relating to him. The documents were relevant and without them it might be hard for to prove the case. However, the evidence would be redacted to protect the identities of other phone-hacking victims and some third parties.

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]

  • Gwyn Thomas v IC EA/2010/0145. FOI Act 2000, s 44 (prohibitions on disclosure).
  • Chichester District Council v IC EA/2010/0153. EIR 2004, regs 12(4)(e) (internal communications), (5)(d) (confidentiality), (5)(e) (commercial or industrial information).:
  • Andrew Nicoll v IC EA/2010/0157. FOI Act 2000, ss 35 (formulation or development of government policy), 37 (Royal Family).
  • Mr Joe Gilbert v IC EA/2010/0190. FOI Act 2000, s 40 (personal information).
  • Mr L.D. Johnston v IC EA/2010/0130 & 0131. FOI Act 2000, s 40 (personal information).
  • Channel Four v IC EA/2010/0134. FIO Act 2000, s 43 (prejudicial to commercial interests).
  • Robin Makin v IC EA/2010/0080, 0081. FOI Act 2000, s 35 (formulation of government policy).

Recent Developments

Judge overturns ASA sodomy ad ban decision, BBC News – 22 Mar 2011. Notes that a High Court judge has overturned a decision by the ASA that an advertisement by the Sandown Free Presbyterian Church was homophobic. The Church launched judicial review proceedings against the ASA after being found to be in breach of its code of practice. The judge ruled that the ASA’s decision interfered with the church’s rights to freedom of expression under ECHR, art 10.

Data protection: Guardian News & Media, Andrew Pugh. The Lawyer – 18 Mar 2011. Profiles Guardian News & Media’s director of editorial legal services, Gill Phillips and discusses legal issues around the cables passed to The Guardian by WikiLeaks.

SWIFT implementation report: MEPs raise serious data protection concerns, Civil Liberties, Justice and Home Affairs Committee. European Parliament – 16 Mar 2011. Notes that the European Parliament Civil Liberties committee has heard that the four SWIFT data transfer requests made by the US authorities to the Europol agency in the first six months of the Terrorist Finance Tracking Programme Agreement were so abstract that it was impossible for the agency to verify that they complied with it.

For press release, please visit:

Liberty Welcomes Government Moves on Libel Reform, Liberty, Press Release – 15 Mar 2011. Liberty have welcomed the Government’s draft Defamation Bill which will overhaul libel law in the UK. “Justice Secretary Kenneth Clarke’s proposed reforms will help thwart unreasonable libel threats and support free speech while still allowing people to protect their reputations.”

Articles and Discussion

Tipping the balance, Jenny Afia and Phil Hartley (Schillings), New Law Journal N.L.J. (2011) Vol.161 No.7457 pgs.376-377. Argues that proposed reforms to libel law pose serious problems and could decimate the carefully crafted common law principles.


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