We rounded up phone hacking developments in a post on Friday.  Perhaps the most important development of the past week in this area was the police abandonment of their production order application against the “Guardian”.  On Friday the Chair of the House of Commons Home Affairs Select Committee, Keith Vaz MP, raised this at a private meeting with the Deputy Assistant Commissioner Mark Simmons.

After the meeting he criticised officers’ failure to seek external legal advice before resorting to the courts to obtain notes about phone-hacking stories.

“I consider it was a mistake that they did not use senior counsel in the first place and that the Official Secrets Act was used in these circumstances.  It was right to withdraw the proceedings against The Guardian.”

There have been a number of other developments in this story since our last post.  Most strikingly, it was reported that some of the claimants in the phone hacking litigation were investigating the possibility of US legal action.  US lawyer Norman Siegel told BBC News he was at an “exploratory phase” of examining evidence that had emerged in the UK to see if US federal laws or New York state laws may have been violated.  It is not clear how many claimants are involved in this piece of “phone hacking” tourism – but, as the “New York Times” reported, other UK claimants dissociated themselves from the move.

One new claim has actually been issued.  Former News of the World editor Andy Coulson issued High Court Proceedings in London against News Group Newspapers claiming that they were obliged to continue paying his legal fees.  It appears that from his resignation in 2007 until July 2011 News Group paid Mr Coulson’s legal fees but are now no longer doing so.  His solicitors, DLA Piper confirmed that proceedings had been issued.

Then there was the “Daily Telegraph’s” claim that News International paid Mr Coulson’s former deputy, Neil Wallis, for stories when Mr Wallis’ company, Chamy Media, was working for the Metropolitan Police.  The potential conflicts of interest are obvious.  One of the stories he was paid for was said to be about a suspected assassination attempt on the pope during his visit to the UK last year.  The Guardian reported that a spokesman for Scotland Yard declined to comment, other than to say that its contract with Chamy Media “had a confidentiality clause, a data protection act clause and a conflict of interest clause within it“.

It appears that the police are still contacting new victims of phone hacking.  The mother of Jade Goody is concerned that she may have had her phone hacked and is reportedly set to contact Scotland Yard.  Max Clifford told “Sky News” that Jade had told him “she was convinced her phone messages were being listened to and intercepted”.

Readers may recall that 3 October 2011 is the imposed cut-off deadline imposed by Vos J in respect of the various actions, the trial of which and the generic trial of which will commence at the end of January 2012.  This means that any phone hacking claims issued after 3 October will be stayed pending the determination of the “first round” of claims.

Finally, the Democracy Fail blog has a discussion of Dame Stella Rimington’s revelation in “the Lady” that she was spied upon by Rupert Murdoch’s Sunday Times while she was head of MI5 (1992-96). They snooped into her private life – her shopping, her banking and even her medical records.

The Canadian Privacy Law blog has an interesting presentation on international developments in privacy regulation – with particular reference to recent developments in the United States and on the Asian Pacific Economic Co-operation (“APEC”) privacy framework.

The independent review of the impact of UK government transparency on privacy, commissioned by the Cabinet Office and led by Dr Kieron O’Hara was released on 13 September 2011.  There is a post about this on the Tech and Law Blog.

Statements in Open Court and Apologies

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

The Tabloid Watch blog draws attention to an apology to Osmond Kilkenny for an allegation of dishonesty in the “Daily Mail” on 19 September 2011 – eighteen months after the original article appeared.

Journalism and the PCC

As the Leveson Inquiry moves into gear, Media Regulation is the topic of the hour.   We will be posting on this issue later this week.  A summary of some of the debates can be found in an article by Jon Slattery entitled “Let’s do Press Regulation Again …“.

Roy Greenslade has a post entitled “A perfect case history of press regulation for Leveson to consider” about the press corrections of an inaccurate story about the NHS paying £32 for a loaf.  There are also posts about this on the Tabloid Watch and Sun – Tabloid Lies blogs.

Yesterday we republished our account of John Lanchester’s important article on “The Future of the Press”.  Ian Jack has written an elegy for newspapers in the Guardian – suggesting that newspapers are in crisis and that

“The eventual destination of the printed newspaper, then, looks likely to be the equivalent of the artisanal cheese. There may be a few producers obeying the old laws of newspaper-making, laws set by the finite space of print rather than the infinity of the internet, catering to a small audience that likes to turn a real and not a virtual page and knows its Bodoni from its Cheltenham Bold

Roy Greenslade has a piece on his blog entitled “Why we journalists need confidential police sources“.


We draw attention to a new paper on “The Law of Reputation and the Interest of the Audience“, by Laura A. Heymann, of William & Mary Law School,  Boston College Law Review, Vol. 52, No. 1341, 2011.  She argues that reputation is fundamentally a social concept but the law’s interest in reputation tend to focus on the individual with the reputation and the defendant accused of having unlawfully harmed it. But, she argues, the community that constructs reputation also has an interest in the soundness of a reputation’s foundation so that future uses of others’ reputations will be effective.  A more complete conception of reputation, therefore, should take such community interests into account.

In the Courts

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


On 29 September 2011 they will be a Guardian Debate with the title “After Hacking: how can the press restore trust?” – the participants are Carl Bernstein, George Eustice MP, Sylvie Kauffmann and Alan Rusbridger.

Media Law in Other Jurisdictions

In Australia, the Government has published an issues paper, A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy, to inform its response to the Australian Law Reform Commission’s recommendations to introduce a statutory cause of action for serious invasions of privacy.  Further details can be found on Department of the Prime Minister’s website.  There is a discussion of the paper in “The Australian“.

In Girao v. Zarek Taylor Grossman Hanrahan LLP, 2011 FC 1070, the Federal Court of Canada found a law firm liable for having posted on its website a previous report of findings from the Office of the Privacy Commissioner of Canada along with a cover letter that identified the complainant.  There is a post about the case on the Canadian Privacy Law Blog.

The “Journ Law Blog” has a post about Canadian Chief Justice Beverley McLachlin Queensland “Supreme Court Oration” on ‘Courts and the Media’.  The post provides the “Journ Law” tweets of the speech – which is not yet publicly available.

In the case of Kendall v Daily News (21 September 2011), the Virgin Islands Supreme Court held that a series of newspaper articles and an editorial about a retired judge’s performance of his duties did not defame him.  There is a post about the case on the Reporters Committee for Freedom of the Press website.  The decision affirmed a trial judge’s dismissal of Leon Kendall’s defamation claims against the Virgin Islands Daily News and one of its reporters.

Next Week in the Courts

At 2pm on Thursday 29 September 2011 Mr Justice Nicol will hand down judgment in the case of Ferdinand v MGN (heard 4 to 6 July 2011).

Reserved Judgments

The following reserved judgments after public hearings remain outstanding:

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)