The “legal term” in England and Wales begins today – with the courts back in full session. In celebration we begin our round up with the law of privacy rather than phone hacking. The most important decision in this area for some time was handed down on Thursday 29 September 2011. This was the decision of Mr Justice Nicol in Ferdinand v Mirror Group Newspapers ( EWHC 2454 (QB)).
He dismissed an action for misuse of private information based on the publication of a “kiss n’ tell” story – where there had been no “kissing” for at least 5 years before publication. The judgment involved a revival of two long forgotten themes of tabloid “public interest” – the “false image” and “role model”. We had a post by Lorna Skinner raising issues about the Judge’s analysis.
In contrast, the RPC Privacy Blog had a post celebrating the decision with the title “Rio’s ‘role model’ image unravels – landslide media victory in privacy case”. The LSE’s Andrew Scott wrote about the case in the “Guardian” under the headline “Mirror eludes Ferdinand offside trap, but it’s no reprieve for ‘kiss and tell’” – describing the case as a “shock defeat”. He concludes that
“What we have learned is that, rightly or wrongly, the England football captain sits next to the “back to basics” minister and just one along from the pope in the gallery of those who must sport lily-white private lives. But he’s there by choice.”
There are also posts about the case on the 5RB and One Brick Court websites. Meanwhile, the claimant has indicated his intention to appeal. The various comments on the case are listed on our table of “Cases 2010-2011”
In Northern Ireland, it is reported that a woman from County Antrim has been given permission to serve proceedings for libel and malicious falsehood on a company in New York. The plaintiff’s private photographs were maliciously published on a website for prostitutes by her former partner.
The Leveson Inquiry is now moving forward at an admirable pace. We had posts this week about Associated Newspapers’ application concerning panel membership and its “seminar plans”. In relation to the former, Roy Greenslade argues on his blog that there are “fundamental flaws in the composition of the panel“. The Guardian has a piece about the planned seminars.
The Inquiry is not popular amongst journalists. In an odd piece in the “Observer”, Nick Cohen, suggested that the inquiry would “miss the real scandal” – how David Cameron and Jeremy Hunt prostituted their government. He is unimpressed by “well-intentioned authoritarian liberals” who have been campaigning for the inquiry. In contrast, in a piece in the “Guardian” Joshua Rozenberg says that the Inquiry is “right to investigate behaviour of the media’s ‘good guys’” .
And now to phone hacking. The case continues to expand – with the “Telegraph” reporting that News International have handed 11 million emails to the Metropolitan Police.
Meanwhile, at the Labour Party conference Tom Watson MP said that the “Sun” had questions to answer about phone hacking. He said
“Do you really think that hacking only happened on the News of the World? Ask Dominic Mohan, the current editor of the Sun. He used to joke about lax security at Vodafone when he attended celebrity parties. Ask the editor of the Sun if he thinks Rupert Murdoch’s contagion has spread to other newspapers. If he gives you an honest answer, he’ll tell you it’s only a matter of time before we find the Sun in the evidence file of the convicted private investigator that hacked Milly Dowler’s phone”
There were two entertaining phone hacking stories this week. First, Neville Thurlbeck’s spirited – and slightly menacing – statement about his dismissal from the “News of the World”. He said that “that the allegation which led to my dismissal will eventually be shown to be false”. Note that this was a very specific denial in relation to only one matter. He went on to say, in a shot across the bows of his former employers, there is “much I could have said publicly to the detriment of News International“. The “Guardian” has a profile of Mr Thurlbeck.
The second concerns Kelvin Mackenzie, former “Sun” editor and News International stalwart who has been told by the police that there was evidence his phone was hacked and felt “uneasy” and says “oddly I felt quite threatened by this invasion and understood more clearly why celebrities — no matter if they were A or Z listers — felt they had been violated“. But he says that he is not going to sue. Roy Greenslade comments on this revelation on his blog.
Statements in Open Court and Apologies
We are not aware of any statements from open court this week.
“Minority Thought” draws attention to an apology in the “Daily Star” to Katie Price (aka “Jordan”)
On Monday 26th September 2011 we published an article which claimed that Katie Price was involving her son, Junior, in violent pursuits and that this was of deep concern to her ex-husband, Peter Andre. In fact our story was incorrect and Katie had simply taken Junior to a non-contact fun fitness class designed by MMA trainer Sol Gilbert.
Journalism and the PCC
We begin with an piece about writing for the “Daily Mail” by Anna Blundy, entitled “No need to hack phones – we stitch ourselves up“. After describing her experience of trying to write a piece for that newspaper she concludes
“Just because our phones aren’t being hacked, doesn’t mean we haven’t been exposed and embarrassed in the press – we do it to ourselves without quite allowing ourselves to notice“.
The “Angry Mob” blog has an interesting series of posts on its exchanges with journalist Melanie Philips concerning an article she wrote about “winterval”. After the blog published an email from her, Ms Phillips complained stating that she would have a claim for libel. This produced a robust response from the “Angry Mob”.
The media blogosphere has been following the mainstream media hysteria about the fictitious BBC decision to stop using the terms “BC and AD”. On Monday Tabloid Watch had a post about the “Mail on Sunday” on the subject entitled “The ‘BBC drops BC/AD’ lie continues to spread”, followed up by posts “And on it goes …” and then “And of course Littlejohn …“. On Sunday the “Media Blog” had a post “More dategate duplicity from the Mail”.
We have had two posts this week on “Media Regulation” (here and here). As the Leveson Inquiry begins its investigations, this is a subject of wide discussion. On the “Index on Censorship” blog, Michael Harris criticises the Ivan Lewis speech at the Labour Party conference concluding that “Public confidence in the press has been shaken. It won’t be restored by ill-considered proposals from politicians“.
The Press Gazette quotes Guardian journalist Amelia Hill as saying that the Met has scuppered state regulation of the press but voluntary self-regulation is insufficient. She comes out in favour of “independent regulation with a statutory backdrop” (Martin Moore’s “Option 3”).
Meanwhile Roy Greenslade, a supporter of “PCC Plus” (Martin Moore’s “Option 2”) addresses the “Desmond Problem” in an article entitled “What can be done about a problem called Richard?“. He is not sure about the inevitablility of statutory regulation, saying
“I believe that Desmond, when confronted with the reality of statutory regulation, will come to realise that the self-regulatory tent is a better place to be. If so, he will need to give assurances to Leveson and to fellow publishers”.
Privacy and Data Protection
A number of privacy groups have written to European ministers and urged them to rethink data retention plans. The letter is available on Privacy International’s web site. The authors call for caution in the re-writing of data retention rules, which they add were created without full and proper consideration.
Wojciech Sadurski of the University of Sydney-Faculty of Law has written a paper on “Freedom of the Press and General Theory of Freedom of Speech”, Sydney Law School Research Paper No. 11/57 (available from SSRN here). He argues that freedom of the press is a special principle,being governed by particular principles and criteria which do not apply in the same way to the general principle of freedom of speech. The ‘special’ character of freedom of the press is displayed by a special range of its right-holders, by the special subject-matter of rights triggered by freedom of the pressand most importantly, by special rationales for freedom of the press. He argues that deriving the rules regarding freedom of the press from the requirements of democracy is ultimately persuasive.
In the Courts
We have already mentioned the judgment given on 29 September 2011 in the privacy case of Ferdinand v MGN. We are not aware of any other media cases heard or decided in the past week.
No events have been reported to us for the next week.
Media Law in Other Jurisdictions
In the case of McGrane v BTQ Channel 7  QSC 290 the Supreme Court of Queensland struck out a libel claim brought by a convicted murderer who claimed that he had been defamed in a television programme (though giving the right to replead).
Canadian blogger Matthew Nied has published an interesting piece on “The Internet, Cloud Computing and the Charter Right to Privacy: The Effect of Service Agreements on Reasonable Expectation of Privacy in Criminal Cases”.
In Malaysia, it is reported that the High Court has found that newspaper publisher Utusan Melayu (Malaysia) Berhad has defamed Khalid Abdul Samad, a member of parliament.
Next Week in the Courts
The new legal term starts on Monday 3 October 2011.
The first significant case of the term begins on Tuesday 4 October 2011 before Mr Justice Tugendhat. This is the privacy trial of Trimingham v Associated Newspapers. This claim brought by the partner of Energy Secretary Chris Huhne is listed for a period of 4 days. The Press Gazette reported that the claimant is seeking damages arising out of eight stories that appeared in the Daily Mail and Mail on Sunday in June and July 2010 relating to her relationship with Mr Huhne.
On Friday 7 October 2011 there is a further Case Management Conference before Mr Justice Vos in the phone hacking litigation.
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)