The most striking phone hacking story of the week concerns the application by the Metropolitan Police for orders under PACE requiring the “Guardian” to disclose its sources for various phone hacking stories. This was reported in the “Guardian” on Friday and has attracted understandable and widespread concern – from the “Daily Telegraph” to Hugh Grant at the Lib Dem conference. However, the “Independent” reports that the Met is “ready to fight” on this issue.
The legal background is discussed by Obiter J on the “Law and Lawyers Blog” – who also has a piece about the Official Secrets Acts. The Metropolitan Police Statement can be found on the Jack of Kent blog. The application by the Metropolitan Police has much in common with its 2000 application against the “Guardian” arising out of David Shayler’s case and considered in R (Bright) v Central Criminal Court ( EWHC 560 (QB)). On that occasion, the police application was substantially defeated – with an order being made on a very limited basis.
Before the story broke about the order Stephen Glover had a piece in the “Independent” arguing that “Sometimes it can be right to break the law”. The point is fundamental to investigative journalism which will often potentially break both civil and criminal laws. All this suggests, as Brian Cathcart argued in a piece on this blog, that we need a clear definition of public interest to cover these situations.
Meanwhile, the Hacked Off campaign is ensuring that the phone hacking issue remains high on the political agenda with fringe meetings at the party conferences. The first was with Hugh Grant at the Lib Dem conference on Sunday 18 September 2011.
The “Observer” had Harold Evans’ new Preface to his book “Good Times, Bad Times”, which connects the phone-hacking crisis to earlier events at News International. He writes
“It is no pleasure to be vindicated by events. A corporate culture which regards truth as a convenience was bound to prefer a coverup to candor; in this respect the response to the hacking scandal was instinctive. And but for the Guardian’s revelation about Milly Dowler it might just have worked as it had worked before given the ample supply of cash and the scarcity of political courage”.
The phone hacking saga has had fall out in a number of other countries. In the US investigations are continuing. On 14 September 2011 the Australian government announced its own Media Inquiry. The Sydney Morning Herald comments that it is a great opportunity to correct the errors made by former PM Paul Keating – the result of which being that Mr Murdoch controls 70% of the country’s newspapers. However, Mark Pearson expresses concerns about the inquiry on his “Journlaw” blog (now added to our blog roll).
And a reminder about libel reform – which has been rather quiet over the past few months. Libel defendant Hardeep Singh has written a piece in Legal Week entitled “The libel survivor – what it’s like to be faced with a gruelling libel claim”
Statements in Open Court and Apologies
We are not aware of any statements in open court this week.
Journalism and the PCC
In a piece in the British Journalism Review entitled “Crusaders or Pigs in Raincoats?” Steven Barnett tells a cautionary tale about a journalist in search of celebrity tittle tattle about his neighbour “XYZ”. He concludes
If Leveson is about anything at all, it should be about understanding the difference between freedom of speech and freedom from abusive and intrusive speech. This is the chance for journalism professionals to protect the caped crusaders while also defending the legitimate right of XYZ and others to live their private lives in peace. And if it needs an independent body with statutory teeth to make it stick – well, it doesn’t seem to have fettered our television journalists.
Meanwhile, in an article in the THES (“Black and White and Dead All Over”), Tim Luckhurst suggests that, while the public fixates on tabloid phone hacking, the real crisis threatening the survival of newspapers goes unnoticed despite its dire consequences for public affairs. He suggests that
“The pressing question that truly, madly, deeply deserves more thought than hacking is how to fund expensive investigative, foreign and public-interest reporting in the age of Twitter and Facebook”.
We note a couple of interesting pieces by “Guardian” reader’s editor Chris Elliott. The first is on the presumption of innocence and reporting of arrests – a topic we have often commented on this blog (see most recently our piece on Rebecca Leighton). The second concerns the sensitive use of words and pictures after death or injury.
In the Courts
We are not aware of any media law judgments by the “vacation judges” last week.
There has been an important decision of the Court of Human Rights Grand Chamber on freedom of expression in the trade union conduct. In Palomo Sànchez v. Spain the Grand Chamber concluded that the dismissal of trade union members for engaging in offensive and insulting expression in a union newsletter was not a violation of the right to freedom of expression, read in light of freedom of association. There is a powerful critique of this decision on the “Strasbourg Observers” blog which concludes
All things considered, the judgment in Palomo Sànchez represents a retrograde step in terms of freedom of expression generally. While many will take heart from the recognition by the Court of trade union freedom, the Court seemed to approve the principle that trade unions cannot engage in offensive and insulting speech, a dangerous proposition which will chill the speech of unions generally.
There is an event on 20 September 2011 at the Law Society in Chancery Lane on “Privacy, Free Press and the Public Interest” with Gideon Benaim, Jo Glanville, David Leigh and Hugh Tomlinson QC.
Media Law in Other Jurisdictions
On 16 September 2011, in the case of Hyndes v Nationwide News, a former deputy high commissioner to Sri Lanka lost his libel claim against “The Weekend Australian” over the 2008 article, which said that he had helped lend money to drug-dealing Thai officials while on unpaid leave in 1996. A NSW Supreme Court jury took less than two hours to reject the claim agreeing that the imputations were “substantially true”. There is an article about the case in “The Australian”.
Index on Censorship draws attention to the fact that the Ontario Police have charged an activist with two counts of defamatory libel for online comments he made regarding undercover police officers. Using fake names, Dan Kellar outed two officers who had infiltrated activist networks. Police claim the comments were likely to injure the reputation of the officers by exposing them to hatred, contempt or ridicule. Dan Kellar says the charges are an attempt to stifle dissent. He will appear in court in Toronto on 20 September 2011.
In the case of Attorney-General v Leigh  NZSC 106 the Supreme Court of New Zealand dismissed the Attorney-General’s appeal against a decision of the Court of Appeal rejecting the argument that certain communications between a civil servant and a government minister were not subject to absolute privilege. There is a news story about the case in the “New Zealand Herald“.
Next Week in the Courts
We are not aware of any media law cases listed for this week. Mr Justice Edwards-Stuart and Mr Justice Supperstone will be hearing Interim Applications in the Queen’s Bench Division in London with Mrs Justice Proudman and Mr Justice Arnold in the Chancery Division.
The following reserved judgments after public hearings remain outstanding:
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, heard 18-20 & 22 July 2011 (Tugendhat J)
Morrison v Buckinghamshire CC, heard 20 to 21 July (HHJ Parkes QC)