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.
David Leigh’s Guardian article about the case of ZAM v CFW has generated another round of media outrage about “super-injunctions”. The mere mention of these two magic words – accurately or not – is sufficient to whip up a frenzy about the iniquities of anonymity and the wrongs of the “rich and powerful”. This is rarely accompanied by any analysis of the reasons given by judges for the making of such orders.
We had a post about these issues on 31 March 2011. We referred to a thoughtful post on the issue on the “Head of Legal” blog “ZAM v CFW & TFW: “suing for libel in secret”. Although the order in ZAM was unusual it was not a “super-injunction” (it did not prohibit reference to the proceedings) and did not directly concern privacy. This did not stop the “Daily Mail” weighing in with a piece by Stephen Glover with the headline “Why are our judges covering up the sleazy behaviour of public figures?” The “Daily Mail” does not give the obvious answer – “because tabloid newspapers like to intrude into people’s private lives without any justification” – but, instead, runs through the usual gamut of complaints about injunctions which have been granted. No mention is made of the fact that in every case either the judge determined or (more commonly) the newspaper conceded that there was no public interest in the publication of the information concerned. The article contained a “rogues” gallery of 10 sinister silhouettes of successful injunction applicants – with no reference to the fact that in many of the cases the claimant was a victim of attempted blackmail with no media involvement.
The “Times” had a front page story on the same topic on Saturday – with the headline “”MPs ‘gagged’ as the rich and famous wage a privacy war”. The article – unfortunately located behind a paywall – tells readers that
“The rich and famous have won at least 30 “gagging” orders blocking publicity about their private lives from being exposed in the media … In a sign that the courts are becoming increasingly sympathetic to celebrities, sportsmen and high-profile businessmen, eight of the orders have been granted in the past three months alone. The total figure is a significant increase on previous estimates, which put the amount at nearer a dozen”.
It is perhaps unusual to find the “Times” railing against the “rich and famous” but it is not surprising that individuals who are so described will be the ones seeking privacy injunctions as it is likely to be their privacy that the popular press wishes to invade. Eight orders in three months – two every three weeks – does not seem to be a torrent. The “Times” does not address the question of how many orders relate to blackmail or how often the press have agreed that there is no public interest engaged. Complaint is made about orders preventing communication with MPs -without engaging with the facts of the undertaking (not injunction) relating to Mr John Hemming MP (discussed by Head of Legal here).
We can avoid rounding up the phone hacking news of the last week as this has already been done in a post on Saturday. It is anticipated that there will be more developments in the story over the next week.
This week saw the broadcast of Episode 1 of the six part BBC documentary series ‘See you in Court’. Roy Greenslade did not approve of the way in which the programme makers dealt with the lawyers. In a post entitled Libel lawyers get too easy a ride in BBC documentary, complaining that it did not put the lawyers on the spot about their fees.
It is reported that electric car maker Telsa Motors is suing the BBC over a broadcast of Top Gear, which staged an unfavorable test of the Tesla Roadster. The Claim form and Particulars of Claim is here. and makes interesting reading.
Meeja Law blog again has a “Mid Week Media Mop Up” – Mooting, souped up injunctions and CFA reform.
Journalism and the PCC
There is a “Guardian” article by Stephen Abell of the PCC about its “anti-harassment” hotline. In the experience of a number of claimant lawyers, this does provide an effective service when individuals are being pursued by paparazzi and journalists at the behest of the mainstream media. The number is: 07659 152656.
The Tabloid Watch blog draws attention to an old tabloid chestnut – the non-existent “Union flag” ban. This follows the Mail, Telegraph, Richard Littlejohn and others claiming in February 2011 that Suffolk Police were happily displaying the rainbow flag for LGBT History Month but were totally ‘forbidden’ from ever flying the Union Flag. Tabloid Watch reproduces the PCC’s ruling and its “request” that” the newspaper would take heed of the points raised in the complaints and alter the article accordingly”.
The “Five Chinese Crackers” blog has, this month, given its coveted “Tabloid Bullshit” award to Richard Littlejohn for what the judges describe as his “spectacularly insensitive comments on the tsunami” – for ‘Who’s the Wally with the Golly?‘ and ‘Why my wife’s PoW grandad wouldn’t mark a minute’s silence for the Japanese‘.
Statements in Open Court and Apologies
We are not aware of any Statements in Open Court in the past week.
In the Courts
Mr Justice Tugendhat’s impressive work rate continues. He gave three media law judgments this week, raising a number of interesting and important new points.
First, on 29 March 2011, there was Cook v Telegraph Media Group Ltd  EWHC 763 (QB). This is a libel claim by a former MP arising out of the Telegraph’s coverage of MP’s expenses. Although certain parts of the claim were unarguably comment, Tugendhat J dismissed the application for summary judgment on justification, comment and Reynolds privilege. The application for jury trial was late and the application for trial by jury was refused as the facts favoured trial by judge alone. There is a Press Gazette report of the case and a 5RB case note.
Second, on 31 March 2011, there was judgment in the case of Lewis v Commissioner of Police of the Metropolis & Ors  EWHC 781 (QB). He held that the words complained of were capable of bearing the defamatory meaning that the claimant was a liar. He also held that evidence of the publishee’s reaction to the words was admissible. He refused to strike out the action as an abuse of the process and refused to give summary judgment on qualified privilege. There were news reports about the case in the “Independent” and the “Press Gazette”. There is also a 5RB case note and a discussion on the 5RB website.
Third, on 1 April 2011, there was judgment in Awdry, Bailey & Douglas v Kordowski  EWHC 785 (QB) (1 April 2011). In that case he struck out the defence of the operator of the “Solicitors from Hell” website in a libel action and granted a permanent injunction to prevent him from publishing the same or similar allegations against the claimant solicitors. Perhaps the most interesting feature of this judgment from our point of view is the first reference to Inforrm in a High Court judgment (see ). Mr Kordowksi has responded with an “editorial” on the Solicitors from Hell website “In Defence of Rick Kordowski”.
Media and Freedom of Expression Law in Other Jurisdictions
In Jamieson v Chiropractic Board of Australia  QCA 56 the Queensland Court of Appeal extended time to permit the applicant to bring a libel action arising out of the publication of defamatory material on the defendant’s website as to the outcome of a court case involving the applicant and respondent.
US Law and Media News
Once again, this will be the subject of a separate post
From the Blogs
The ECHR Blog has an interesting post entitled “Article on ECHR Abuse Clause and Freedom of Expression” dealing with an article by Hannes Cannie and Dirk Voorhoof, both of Ghent University, entitled ‘The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?’ dealing with the use of Article 17 ECHR; the so-called abuse clause, in “hate speech” cases. The authors argue that the abuse clause’s application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework.
The Media Law Journal blog from New Zealand has a post about a privacy injunction obtained by an 18 year student arising out of an alleged sexual incident involving a former Labour Party whip, Darren Hughes
Events and Television
The six part BBC documentary series ‘See you in Court’ begins at 10.35pm on Tuesday 29 March 2011. Episode 2 concerns claims by Uri Geller and former Metropolitan Police Commander Ali Dizaei
Next Week in the Courts
We are not aware of any media law cases before the courts in the next week.
The following reserved judgments after public hearings remain outstanding:
ETK v News Group Newspapers, heard 10 March 2011 (Ward, Laws and Moore-Bick LJJ)
El Diwany v Ministry of Justice & the Police, Norway, heard 16 March 2011 (Sharp J).
Ambrosadiou v Coward heard 21 March 2011 (Master of the Rolls, Leveson and Pitchford LJJ)
Apsion v Dilnot heard 30 March 2011 (Tugendhat J)