Law and Media Round Up – 2 May 2011

2 05 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 main story this week has been “super injunction hysteria” (see our post here). Although most journalists are well aware that

super-injunctions – those prohibiting reporting their own existence – are no longer made they continue to use the term.  It is more obviously thought to be more difficult to whip up public anger if all that is in issue is what The Louse and the Flea blog has felicitiously described as “Clark Kent injunctions”: boring old privacy injunctions which simply prohibit the reporting of the name of the claimant whose sex life the press wishes to intrude into.

The most high profile privacy story of the week was Andrew Marr’s decision to “out” himself as a privacy claimant – speaking to the “Daily Mail“. The injunction was subsequently inaccurately described as a “super-injunction” in most of the media coverage. In fact, as we have already pointed out, the existence of the injunction has been in the public domain since June 2008 and it is, therefore “Clark Kent”, not “super”. There a post about the story on the Meeja Law blog and a report in the Press Gazette.

We draw attention to four thoughtful pieces on the privacy debate which give slightly different “pro-privacy” perspectives. First, there is Pete Wilby’s “Guardian” Comment is Free piece “Courts must rule on privacy – because parliament hasn’t“. Secondly, Brian Catchart’s piece on the Index on Censorship blog “Injunctions are a necessary last resort“. Thirdly, a piece on the Law Think blog, “Gagging Orders: why is the injunction getting such a bad press?“.  Fourthly, there is another “Comment is Free” piece, this time by US law professor Philip Bobbitt entitled “Injunctions protect the public sphere“.

The 4-5 Gray’s Inn Square website has a piece about the recent privacy cases of Richard Spearman QCthe Tweedledum of the injunction circuit according to the “Independent” (with Inforrm committee member Hugh Tomlinson QC being the “Tweedledee”).

Phone hacking stories continue despite the holiday period. On Tuesday 26 April 2011 the Information Commissioner, Christopher Graham, gave evidence to the Home Affairs Select Committee as part of their “phone hacking” inquiry. He told the Committee that legislation outlawing phone hacking is “very uneven” and “very unclear” and the law should be clarified. On the same day Acting Deputy Commissioner, John Yates, told the Culture Media and Sport Committee that during the 2006 inquiry police had warned 28 people they may have been victims; and that after the Guardian revived the affair in July 2009 they warned eight more. There was a story about this in the “Guardian”.

Meanwhile, the highest profile newly named “phone hacking victim” was Wayne Rooney (see, for example, the “Daily Mail” and “The Independent“). TV presenter Cat Deeley also told the “Guardian” that she believed she was a victim.

Journalism and the PCC

On 27 April 2011, the House of Commons had an adjournment debate on “Press Self-Regulation. Introducing the debate, Labour MP Michael McCann said, in relation to the PCC, that, “Right now there is a serious lack of confidence in the system. My views are based on my personal experience of dealing with the PCC editors code of practice which, sadly, I have had to do in my short spell as a Member of Parliament“. He raised the issue of the prominence of the publication of adjudications. The Government indicated that it remained in favour of self-regulation. Mr John Whittingdale MP, Chair of the Select Committee on Culture Media and Sport intervened to say, in relation to phone hacking, that

“the revelations that have streamed out over the past six months have probably led to a greater loss of confidence in the self-regulation of the press than there has been at any previous time? I strongly support self-regulation, but if the public are to regain confidence in that self-regulation, the PCC will have to be seen to have stronger powers“.

There is a story about the debate in the Press Gazette.

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 has been a week of “Law Vacation” and no judgments have been handed down. Our reporters tell us that there have been no “privacy injunctions”.

Media and Freedom of Expression Law in Other Jurisdictions

In the case of NK v Northern Sydney Central Coast Area Health Service (No.2) [2011] NSWADT 81 the Administrative Decisions Tribunal of New South Wales awarded Aus$40,000 (the maximum permitted) for the disclosure of private information concerning a mental patient. There is a news story about the case in the Sydney Morning Herald.

The Sydney Morning Herald reports that the NSW Supreme Court has begun hearing a nine-year-old special damages defamation case, to decide whether a telecoms company owned by the entrepreneur Tony Hakim can claim between Aus$49 million and Aus$142 million in damages from John Fairfax Publications.

In Scotland a defamation claim by the former captain of the Scottish women’s curling team, Gail Munro, against the former coach, Derek Brown was tried.  The allegation was that she had refused to play for her country.  The defence is that the allegation was true.  There was a report of the hearing in the Scotsman.  Judgment was reserved.

Academic Books and Articles

Daniel J Solove has a new book entitled Nothing to Hide: The False Tradeoff between Privacy and Securityto be published by Yale University Press on 31 May 2011. The book

exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.

Neil M. Richards and Daniel J Solove have a piece entitled “Prosser’s Privacy Law: A Mixed Legacy”, in the California Law Review, Vol. 98, p. 1887, 2010. It is argued that although Prosser gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age.

US Law and Media News

We have (finally) posted our Round Up – generously described by legal tweeter @MarshallYoum as “Comprehensive, up to date”

Events

On Wednesday 4 May 2011 at 6pm there is a Media Law Seminar entitled “This house believes that the English libel laws are unfit for purpose in the Twenty-First Century”.  The speakers will be Mark Lewis, Jonathan Coad, Professor Alastair Mullis and Hugh Tomlinson QC.

Next Week in the Courts

The “Legal Term” begins on Wednesday 4 May 2011. We are not aware of any media cases listed for the forthcoming week. It appears that the report of the Neuberger Committee on Super-Injunctions will be issued in the course of next week, perhaps on Thursday.

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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