We begin, this week, with the Leveson Inquiry. It held its first two “seminars” on Thursday 6 October 2011, before a distinguished “media audience”. A presentations was given by Phil Hall – former News of the World editor, turned PR man – which the “Daily Telegraph” reported under the headline “Leveson inquiry: phone hacking was not caused by newsroom pressure” and the BBC had “Hacking not due to sales pressure”. Presentations were also given by Clare Enders (interesting statistics on the problems of the press in the digital age) and former “Star” journalist and trenchant tabloid critic Richard Peppiatt (his presentation impressed the Angry Mob blog).
The second seminar had papers from Brian Cathcart (reproduced on this blog), Alan Rusbridger and Trevor Kavanagh of the “Sun” – reproduced in part in that paper under the headline “We must never lose our right to free speech“.
Overall, this was the day of the “Media Empire Strikes” back – telling the Inquiry that, with some very small exceptions, they are an ethical and responsible bunch who work on stories with the PCC Code in hand. As the “Daily Mail” put it “Senior journalists have united in defence of the freedom of the press.” This is all good to know although it is difficult not to suspect it might not be the full picture. As James Cusick put it in the “Independent”:
“If Lord Leveson allows months of this, his inquiry will fail before it has started. A talking shop with a delusionary rose-tinted view of Fleet Street isn’t what was ordered”.
Roy Greenslade commented that “never have so many editors and former editors gathered together to discuss their trade so earnestly”. He went on to say that,
“listening in, it was clear a line was emerging across what we still tend to call Fleet Street. It’s an extension of the initial defence used by News International to quash speculation on the extent of the phone-hacking scandal: that old line about voicemail interception being the work of a lone “rogue reporter”. Now, it appears, editors are trying to distance themselves from the dark arts of the News of the World by urging the public to regard to it as a lone “rogue newspaper”.”
BBC Radio 4 had a programme with the title “Post Hackgate: Journalism at the Crossroads“. It is at present available on BBC iPlayer. There was also a profile of Lord Justice Leveson also available on BBC iPlayer.
There were two phone hacking hearings. First, there was a short directions hearing in the judicial review claim brought against the police by Chris Bryant MP, Lord Prescott and others. At this hearing the Metropolitan Police disclosed that Operation Weeting had now contacted 452 victims or potential victims of hacking. The Court rejected an application by the Claimants for an order that these victims be informed of the judicial review proceedings. There was a report in the “Evening Standard”
Second, on Friday 7 October 2011 there was the fourth Case Management Conference before Mr Justice Vos in the phone hacking litigation – the first in the new “Rolls Building” (which brings together the Chancery Division, Commercial Court and TCC under one roof). A Statement in Open Court was read on behalf of Kelly Hoppen – the fifth phone hacking case to conclude by judgment or settlement. The judge was told that there were now a total of 60 active cases – issued before the 3 October 2011 “cut off date” for participation in the trial at the end of January 2012.
Meanwhile, the stories about “Mirror” hacking continue although no claims have yet been issued. The latest concerns allegations apparently made in an employment tribunal claim by a former “Mirror” journalist.
Statements in Open Court and Apologies
On 5 October 2011 there was a statement in open court in the case of Cleverley v News Group Newspapers. The Statement was read after the “Sun” had made an offer of amends. There is a story about the case in the Press Gazette.
We have already mentioned the (rare) Chancery Division statement in open court in the Kelly Hoppen case. We are not aware of any other statements in the past week.
Journalism and the PCC
The Daily Mail attracted a lot of attention on the blogs this week with its online report “Amanda Knox looks stunned as appeal against murder convicted is rejected”. The complaint was not that the paper had prepared this alternative – hastily taken down when the mistake was realised – but its content. In particular, as Tabloid Watch pointed out, the report contain a number of invented quotes from prosecutors and “facts” as to what happened after the verdict. Malcolm Coles also blogged about this – pointing out that the Sky News and the Guardian also claimed she’d been found guilty – just not with made up quotes.
Society of Editors Director Bob Satchwell delivered the Olsen Lecture at St Bride’s, Fleet Street on 6 October 2011 and asked who will fund the “great edifice of regulation” being called for in the wake of the hacking scandal. There is a report in the Press Gazette.
In the “Observer”, Peter Preston has a piece linking media regulation and “catgate” entitled “Let the PCC show its teeth as MPs’ claws come out over human rights”. He suggests that when newspapers publish rubbish about human rights, they should be investigated by thePCC. We are not holding our breath on this one.
Privacy, Data Protection and FOI
The Centre for Law and Democracy has produced a “Global Right Information Rating“. The results are surprising – to us at least – with Serbia top and the UK at number 27. There is a discussion of this by the Australian “Open and Shut” blog – which pointed out Australia was number 39.
The Centre for Law and Democracy is also involved in “The 6 Question” campaign – asking 80 governments round the world six questions about access to budget information. The report noted that
“the so‐called established democracies perform substantially less well in terms of budget openness than other countries with relatively well-‐established right to information laws, such as the newer democracies of Eastern and Central Europe”.
In the Courts
As we mentioned on the blog, the privacy trial in Trimingham v Associated Newspapers began and was then adjourned as a result of amendments to the claim.
On Friday 7 October 2011, Mr Justice Tugendhat handed down judgment in the case of Adelson v Anderson ( EWHC 2497 (QB)) striking out a libel action which had been served in March 2006 and where there had been a delay of 3 years since the last substantive steps in the action.
No events have been reported to us for the next week. The UEA London Lecture will be given by Dr Daithí Mac Síthigh on Thursday 20 October 2011 under the title “Tweeteasy? What does social media mean for the rule of law“.
Jan-Jaap Kuipers, an Assistant Professor of European Law at the Radboud Universiteit Nijmegen, has written an article entitled “Towards a European Approach in the Cross-Border Infringement of Personality Rights” in the German Law Journal. This deals with on cross-broder infringement of personality rights. He concludes that “Sound reasons exist to reconsider the exclusion of defamation from the scope of Rome II”, proposing that
“the law applicable to a defamation proceeding should be established on the basis of the principle of closest connection. The principle of closest connection would enhance legal certainty by the application of a single law to an infringement of personality rights, while at the same time contributing to better coordination between the laws of the Member States and those of third countries”.
Media Law in Other Jurisdictions
There were a number of decisions in Australia in the past week relating to procedural issues in libel claims. In Han v Australian Kung Fu (Wu Shu) Federation Inc  VSC 498) the plaintiff was partially successful in an application to extend time. In Trkulja v Google Inc & Anor (No 3)  VSC 503 the court dealt with an application for disclosure in long running libel litigation against Google. In Griffin v Kotsifas  SASC 161 an order was made striking out a limited part of a defence of fair comment.
There is an interesting opinion piece in the “Sydney Morning Herald” by our friend Richard Ackland (publisher of the “Gazette of Law and Journalism“) about privacy in Australia – concluding that a Federal privacy law looks “too fraught and too fanciful“.
The “Courier Mail” in Queensland reports that the Supreme Court of that state has ordered Google Australia to release details of creators of website labelling self-help guru Jamie McIntyre a ‘thieving scumbag’
There are two defamation judgments from British Columbia this week. First, in Marley v. Kains, 2011 BCSC 1306 the plaintiff sued for slander in respect of words spoken at an election meeting. The judge held that the words were not defamatory and that, in any event, were protected by qualified privilege.
Second, there is the judgment in Wilson v. Switlo, 2011 BCSC 1287 – running to 586 paragraphs – a claim arising out of “band politics” and a conflict over who speaks for the Haisla, a band of approximately 1600 members of whom 900 live on-reserve at Kitamaat Village, near the City of Kitimat on the north coast of British Columbia. The plaintiffs were successful in part and general and aggravated damages totalling Can $114,000 were awarded.
The Court of Appeal in Ontario heard the appeal in the case of Jones v Tsige (on appeal from 2011 ONSC 1475). The first instance judge had held that “there is no tort of invasion of privacy in Ontario”. It appears that the Court of Appeal were not sympathetic to that view. Judgment on the appeal was reserved however the The Financial Post reported that questions from the bench suggest a likelihood that there will be a tort of invasion of privacy before long.
In Ireland, it is reported that the former Minister Michael Lowry is facing a legal bill of up to €50,000 after journalist and broadcaster Sam Smyth successfully defended his defamation claim.
In Scotland a parliamentary bill designed to “tackle sectarian hatred and other offensive and threatening behaviour is being proposed. Meeja Law has an interesting post about the free speech complexities which it gives rise to – including a link to all the Parliamentary submissions and correspondence.
Next Week in the Courts
There are a number of media law cases listed for hearing in the forthcoming week. On Monday 10 October 2011 Mr Justice Tugendhat will hear and application in the case of Sleeman v Panchaud -which concerns a defamation injunction apparently granted in August 2011 by a vacation judge.
On Wednesday 12 October 2011 there are two applications in the case of Kordowski v Hudson – a claim for slander brought by the operator of the “Solicitors from Hell” website against the Chief Executive of the Law Society. The claimant seeks summary judgment and the defendant is making a Jameel strike out application.
On Thursday 13 October 2011 there is another meaning application in the case of Miller v Associated (for a previous one see  EWHC 700 (QB)).
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)