Law and Media Round Up – 30 August 2011

The last week was a quiet one for media lawyers.  The “phone hacking” saga continues to generate comment and generate new stories.   The Independent reports that more than 120 police officers are now investigating claims of illegal news gathering by News International.  This includes 50 officers from Strathclyde Police assigned to “Operation Rubicon”, its investigation into allegations of perjury involving former News of the World editor Andy Coulson and wider claims of phone hacking aimed at public figures in Scotland.

There is an interesting piece in the “Lawyer” by employment lawyer Anya Palmer on “Coulson’s payoff – the questions that still need to be answered” she notes Mr Coulson’s response to Tom Watson MP in July 2009 when he said  “I got what was contractually due to me. Obviously I did not work my notice so I received what was contractually due.”  She points out the legal difficulties arising from this answer as the contractual entitlements of an employee who resigns are extremely limited.  She concludes

“Coulson and News International continue to insist that the terms of Coulson’s severance package are a private matter.  In my view they should not be allowed to hide behind this. Both parties should now be asked to waive any confidentiality agreement between them and to provide full disclosure of both the employment contract and the compromise agreement.  Coulson needs to show he did not lie to MPs; News International needs to show that the real purpose of the severance package was not to buy Coulson’s silence“.

Brian Cathcart has a piece in the “Daily Beast” entitled “Murdoch Scandal’s Shadow Man” about how the fact that the spotlight is increasingly focussed on Glenn Mulcaire is bad news for the Murdochs.

The leading Australian current affairs programme, Four Corners, has been carrying out an investigation into phone hacking which was broadcast under the title “Bad News” on 29 August 2011.  Its investigation shows

“that phone hacking and illegal information theft were not done on behalf of one “rogue” reporter or one newspaper. Instead, the evidence suggests these surveillance activities were being done on an industrial scale – sometimes by people with criminal backgrounds – for anyone who had the cash to pay for it”.

The programme considered why these matters did not come to light earlier and quotes a victim as saying

“What happened was that the News of the World or News International more generally managed to get its filthy, slimy tentacles in every nook and cranny of the Metropolitan police and to all intents and purpose that corrupted it.”

There is an interesting new story in the South African magazine “Noseweek” by former Evening News journalist Jack Lundin about the role of former “News of the World” managing editor in spiking a story about corruption by casino operators.  There is an edited version of the piece in the Press Gazette.

Finally, on this topic, two overviews of the story so far.  The “Democracy Now” site has an interview with journalist Nick Davies about the phone hacking story. The legal blogger, David Allen Green, has meanwhile provided a very helpful summary of the “Story of Hackgate, Part 1” on his Jack of Kent blog.

We have already posted about the misleading reporting of statistics concerning a “doubling of online defamation cases” – and we will have a further post about this later in the week.  Put shortly, a press release from legal publishers Sweet & Maxwell has been uncritically reproduced by much of the media – without considering whether its claims are accurate or reliable.  The reported “doubling of claims” from 7 to 16 is, as we have pointed out, statistically insignificant – particularly as it based solely on the cases in which there have been judgments included on Lawtel and Westlaw.

Meeja Law had a mop up on 19 August 2011 entitled “Social Media, copyright Wars, Riot Reporting and the PCC’s Future”

Statements in Open Court and Apologies

We are not aware of any statements in open court this week.

On 9 August 2011, the “Daily Mirror” apologised to former Aston Villa manager Martin O’Neill and agreed to pay him libel damages concerning allegations that he had lost the confidence of the dressing room and other allegations.  The apology was noted by the Tabloid Watch blog.

Journalism and the PCC

The Press Complaints Commission has issued an adjudication upholding a complaint against weekly newspaper of the year the Essex Chronicle over an interview conducted in a hospital stroke unit. The complaint related to a story headlined “Victim of attacker ‘lucky to be alive’ after coma ordeal”, published on 3 February 2011, in which a reporter interviewed a man suffering serious head injuries after an assault.  Although the reporter had been their at the request of the victim’s parents he had not obtained the permission of a “responsible executive” of the hospital and there was a breach of Clause 8 of the Code.  There is a report of the adjudication in the Press Gazette.

The Mediapal@lse blog notes that the House of Lords Communications Committee is to undertake a fairly broad-ranging inquiry into the future of investigative journalism, and has issued a call for evidence to support this work. The areas in which it is seeking evidence are wide-ranging. The deadline for submitting written evidence is Monday 12 September 2011.

In the Courts

We are not aware of any media law cases heard by the “vacation judges” last week.

Academic

Professor Leslie Yalof Garfield of Pace Law School has posted her recent article, The Death of Slander, on SSRN. The article argues that the advent of texting, tweeting and other forms of digital communication renders the medieval tort of slander irrelevant in today’s technological world. The article provides new support for the contention that courts and legislatures should treat libel and slander uniformly and should abolish the archaic requirement of proof of special damages, a burden traditionally reserved for the spoken word. Maintaining slander in the Twitter Age, with its requirement of proof of economic harm, vitiates the common law purpose of defamation.

Events

No events for the forthcoming week have been reported to us.

Media Law in Other Jurisdictions

In the case of  Cush and Boland v Dillon [2011] HCA 30 the High Court of Australia dismissed the plaintiffs’ appeal against a finding that publication was on an occasion of qualified privilege.  We will post a note on this case shortly.

Iin the case of Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246 the Court of Appeal in New South Wales reversed the order of Levy DCJ that the trial of the action proceed without a jury.

In the Canadian case of Manson v. Doe, 2011 ONSC 4663 the Ontario Superior Court of Justice ordered an anonymous blogger sued by a defendant in the Lawbuzz defamation case to reveal his or her identity.  There is a news story about the case in the “Law Times”.

In the case of SMY Luluaki Ltd v Paul Paraka Lawyers [2011] PGNC 82 the National Court of Papua New Guinea found in favour of the plaintiff in a libel action.  The action arose out of a newspaper article which alleged that the first plaintiff was making a bogus and inflated claim and that it had not done any of the work it had been contracted to do and that its business was conducted in an unlawful and irregular manner; and that the second plaintiff had attempted to defraud the State by making a bogus claim without legal basis.  Defences of fair comment, truth and qualified privilege were rejected  The assessment of damages was adjourned.

Next Week in the Courts

We are not aware of any media law cases listed for this week.  Mrs Justice Sharp and Mr Justice Kenneth Parker will be hearing Interim Applications in the Queen’s Bench Division in London with Mr Justice Arnold and Mr Justice Newey in the Chancery Division.

Reserved Judgments

The following reserved judgments after public hearings remain outstanding:

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

Ferdinand v MGN, heard 4 to 6 July 2011 (Nicol J)

WXY v Gewanter, heard 11-15, 18-19 July 2011 (Slade J)

Commissioner of Police v Times Newspapers, 18-20 & 22 July 2011 (Tugendhat J)

Morrison v Buckinghamshire CC, heard 20 to 21 July (HHJ Parkes QC)