Law and Media Round Up – 25 April 2011

25 04 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

The weeks media and law news has been dominated by “privacy gag madness”.   The press have fulminated against privacy injunctions – without actually suggesting that any of them have been wrongly granted.  No public interest in the publication of stories about the sex lives of celebrities has been suggested.  Despite occasional references to “double standards” and “sponsorship deals” it is not suggested that any of the claimants have taken any public positions inconsistent with their private conduct.  We have had a number of post on these issues this week – from Dominic Crossley, Adam Wagner and Mark Thomson.

One area which not covered in this post are the extraordinary threats by, amongst others, a member of parliament to “name” the privacy claimants under the cover of parliamentary privilege.    This threat was headline news in the “Daily Star”. Tabloid Watch has a post entitled “Sex, lies and the Daily Star” – the headline “30 Gag Order Sex Rats named” introduces an article which says nothing of the sort but deals, rather, with the threat by Mr Hemming.  It is difficult to know why this MP believes that, not having had sight of the evidence in any of the cases, he is in a better position than the judges to gauge whether this material should be published.  We have already mentioned “The Head of Legal” blog’s   post on the background to Mr Hemming’s “hyperinjunction” case.  This week it has a post on Mr Hemming’s change of  mind on the ZAM v CFW case.

One interesting piece of libel news this week concerns the notorious case brought by US company, NMT Medical, against cardiologist Dr Peter Wilmshurst.  The Index on Censorship Blog reports that NMT “has announced that it is ceasing operations and selling off its assets“.  This looks like the end of the libel action – although Dr Wilmshurst appears to have been left with a large irrecoverable costs bill.  “Index” quotes him as saying

It is good news that it seems that my libel case may now be over. However it has cost me all my free time for the last three and a half years. It has also cost hundreds of thousands of my own money and about £200,000 on the conditional fee agreement with my lawyers, Mark Lewis and Alastair Wilson QC. Now that NMT have gone into liquidation, we are uncertain how much of the money we will get back. There will be no compensation for the enormous amount of time my family and I have wasted in fighting the case”.

There is also a report about the case in the Press Gazette.

Solicitors acting for retired school master Chris Jefferies – traduced by the press after his arrest for the murder of Joanna Yeates (see our post at the time) – have announced that he is making claims libel and invasion of privacy against six newspapers.  There is a press release from his solicitors, Simons Muirhead & Burton.   We note that, although the press release refers to “giving notice” of libel claims (that is, writing pre-action letters), the press have misinterpreted this to mean that proceedings have actually been commenced.   The case is discussed on the Tabloid Watch and Greenslade blogs which both rehearse some of the background.

The Meeja Law blog’s “Midweek media law mop up” is entitled “Privacy rights and children; NMT Medical closure; and phone hacking coverage visualized”

Journalism and the PCC

A criminal case this week reminds journalists of the limits placed by the law on their information gathering activities.   The Press Gazette reports that Emma Smiter, a former journalist turned Hertfordshire police community support officer has been jailed for 12 months leaking confidential information taken from police computers to a news agency.   The information  appeared in reports in national newspapers including The Sun and Daily Mirror.  Ms Smiter was found guilty of misconduct in a public office and attempting to pervert the course of justice.

The Tabloid Watch blog notes that, in its ruling on the important question of whether or not X-Factor was too sexy, OFCOM implicitly criticises the “Daily Mail” – which covered the story using photographs which were not, in fact, part of the broadcast, which coverage led to the large majority of the complaints.

Statements in Open Court and Apologies

We are not aware of any Statements in Open Court having made in the past week.

In the Courts

This was a week for privacy decisions which – at least from the point of view of the media – were controversial.  First, there was the decision of the Court of Appeal in ETK v News Group Newspapers ([2011] EWCA Civ 439).  Eddie Craven’s post on this case became – in only 4 days – our most popular ever.  Siobhain Butterworth has a post entitled “Should people with children have more right to privacy?”.  She does not approve “it creates a two-tier right to a private life, which places privacy rights of people who have children above those who don’t. That looks like discrimination to me”.   On the other hand, it might be thought to look like the court taking all circumstances into account – just like taking a person’s fragile health into account is not discrimination against the healthy, taking the impact on children into account is not discrimination against the childless.  There is also a news story about the case in the Press Gazette.

On Wednesday 20 April 2011, Mr Justice Eady handed down judgment in OPQ v BJM ([2011] EWHC 1059 (QB)).  We also had a case comment on this case.  Andrew Scott has a post on the MediaPal@LSE blog  which concludes

it would seem that the award of the final injunction contra mundum was entirely appropriate. To do otherwise would be plainly ridiculous and unjust, and no amount of self-serving, obfuscatory verbiage from the media can change that”.

Keith Mathieson on the RPC Privacy Blog was more sceptical, suggesting that the case “appears to be a significant extension of the jurisdiction to grant injunctions that bind third parties”.  This is a debate which has a long way to go.

Media and Freedom of Expression Law in Other Jurisdictions

In Charmyne Palavi v Queensland Newspapers Pty Ltd ([2011] NSWSC 274) Nicholas J in the Supreme Court  of New South Wales considered the question as to whether the destruction by a  plaintiff of potentially relevant material when legal proceedings were in contemplation  amounted to an attempt to pervert the course of justice.  Prior to the commencement of proceedings the plaintiff had disposed of an Apple phone and had deleted matter from another Apple phone on 4 May 2010, with the intention in each case of destroying material which may be used in evidence in these proceedings.  As a result, the Judge held

“the acts of the plaintiff had a tendency, and were intended, to pervert the administration of justice. This is because by so acting the plaintiff denied the court and the defendants’ knowledge of the true circumstances of the case and thereby perverted or obstructed the capacity of the court to do justice”  [35]

In the circumstances, the conduct of the plaintiff was an abuse of the process of the court and the action was dismissed.

In the case of Chand v Fiji Times Ltd [2011] FJSC 2 the Supreme Court of Fiji dismissed an appeal against an order dismissing a defamation claim on the basis that, read as a whole, the article was not defamatory.

Academic Articles

Our attention has been drawn to three academic articles this week.

First, an article by Andrew T. Kenyon and Hean Leng Ang in the Singapore Journal of Legal Studies, pp. 256-281, December 2010 entitled “Reynolds Privilege, Common Law Defamation and Malaysia

Second, an article by Lili Levi entitled “The Problem of Trans-National Libel“, University of Miami Legal Studies Research Paper No. 2011-11 – dealing, inter alia, with the SPEECH act and the Defamation Bill.

Third an article by Robert Jacob Danay, “The Medium is Not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation”  in the McGill Law Journal, Vol. 56, No. 1, 2010.  The author criticises the approach to defamation over the Internet taken by the Canadian courts.   He questions the approach of equating the internet with traditional broadcast media  leading the courts to hold that when defamatory words are transmitted using the Internet, this will vitiate the availability of any qualified privilege   Drawing inspiration from a comparison to defamation under the civil law of Quebec, the author proposes a new approach that involves the examination of impugned statements on a case-by-case basis, paying careful attention to the context in which these were actually made

US Law and Media News

Once again, this will (eventually) be the subject of a separate post

From the Blogs

The Strasbourg Observers blog has an interesting comment on the Grand Chamber hearing in the case of Aksu v. Turkey. – which concerns a State-sponsored dictionary and book that contained derogatory stereotypes of Roma.

Events

No events for next week have been reported to us.

Next Week in the Courts

This week is the “legal vacation” and no cases are listed the High Court in England and Wales.   The vacation judges in the Queen’s Bench Division, Mrs Justice Nicola Davies and Mr Justice Eder are available to hear urgent business.

Reserved Judgments

The following reserved judgment after a public hearing remains outstanding:

El Diwany v Ministry of Justice & the Police, Norway, heard 16 March 2011 (Sharp J).


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25 04 2011
Law and Media Round Up – 25 April 2011 « Inforrm's Blog « Media Point

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