Law and Media Round Up – 24 October 2011

24 10 2011

The Leveson Inquiry was not the only media law show in town this week, with the publication of the Joint Committee on the Draft Defamation Bill’s first report.  It accepts most of the government’s draft bill’s contents, but proposes a test of “serious and substantial harm” in clause 1 and some amendments to clause 2 (responsible publication) and to other clauses. It recommends that qualified privilege should be extended to fair and accurate reports of academic and scientific conferences and peer reviewed articles.

Various consultation issues were also addressed, including internet publication, corporations, early resolution and cost control. The Committee proposed a new notice and take-down procedure for online defamation, including the possibility for Internet Service Providers [ISPs] to seek a “leave-up” order. “Identifiable” material would be treated differently from “non-identifiable” content, with the aspiration “that, over time, people will pay less attention to and take less notice of material which is anonymous”.   Additionally, the committee recommended reforming the Defamation Act 1996 so that “liability should be determined by the way in which the host or service provider responds to a request for a defamation notice or a take-down order”. In regards to corporations, the committee recommended that companies should have to obtain the permission of the courts to issue proceedings by demonstrating an arguable case that “substantial financial harm” was suffered. Inforrm published a report analysis here. Out-Law.com focuses on the online liability aspect here. The Libel Reform Campaign welcomed the report, with a call for the government to include the defamation bill in the next Queen’s speech.

In Scotland, a man who used Facebook to post sectarian comments about Catholics and Celtic supporters has been jailed for eight months, PA Media Lawyer reported. Sectarian hatred is at the centre of political discussion at present: the proposed Offensive Behaviour at Football and Threatening Communications Bill will create two new offences around behaviour found to “incite religious, racial or other forms of hatred” in and around football grounds and on the internet.

Lord Justice Leveson rejected calls by Associated Newspapers, Trinity Mirror and Guardian News & Media, for additional Inquiry assessor/s from tabloid and regional newspaper backgrounds. He said:

“I accept that the time and commercial pressures may well be different across the market-place and I bear in mind that the focus for stories in, say, a tabloid, is likely to be different to the focus in a broadsheet, but that is something that can be addressed in the evidence and which I can evaluate in due course.”

The twenty six member Joint Committee on Privacy and Injunctions held an evidence session on 17 October 2011. The witnesses were Jack Straw MP, Lord Wakeham, Sir Stephen Sedley, and Professor Gavin Phillipson. The uncorrected transcript of their evidence is now available and the Session can also be seen on Parliament TV. We published an Inforrm report here.

The attorney general has launched contempt of court proceedings against the Daily Mail and Daily Mirror over the papers’ coverage of Levi Bellfield’s conviction for Milly Dowler’s abduction and murder. A hearing date has not yet been listed.

The Government has been criticised by Amnesty International over its plans outlined in a green paper on justice and security, to hold terror compensation cases behind closed doors.

Statements in Open Court and Apologies

The Sunday Times has published an apology and paid substantial libel damages to Russia’s richest woman Elena Baturina, after the newspaper wrongly claimed that she had secretly bought a £50m mansion in Highgate, London. The Guardian has a report here.

Lady Moore, the wife of actor Sir Roger Moore, accepted “substantial” undisclosed libel damages and costs from Associated Newspapers over a claim by the Daily Mail that she lived with a “playboy” in the French Riviera during her youth.

On 19 October, Ossie Kilkenny, an adviser to singer Susan Boyle, accepted substantial libel damages, costs and an apology, over a claim by the Daily Mail that he was unfit to handle her affairs.

Journalism and the PCC

The full text of former PCC chair Baroness Buscombe’s recent talk at City University London is now available to download at this link [PDF]. A video of the event can be found on City’s Centre for Law, Justice and Journalism site.

The Lord Chief Justice stepped into the press regulation debate on Wednesday 19 October 2011, when he gave a speech on “Press Regulation”, which can be downloaded at this link [PDF] at the “Justice” Annual Human Rights Law Conference. We published an Inforrm report here.

Following evidence given by a Farrers’ partner, Julian Pike, to the House of Commons Culture, Media and Sport Select Committee, the BBC has written to the Solicitors Regulatory Authority seeking advice about its previous correspondence with the law firm over their work for the News of the World during the phone hacking scandal.

Mr Pike told the CMS Committee that he became aware that the “one rogue reporter” defence the News of the World was using in the wake of the initial scandal was wrong. As reported by the Guardian here, the BBC said in a statement that the Panorama team was “surprised to hear Mr Pike’s testimony … since, on the face of it, it seems to contradict one aspect of what he’d written in a letter to the programme”. The Lawyer Watch blog has an interesting commentary about the ethical issues here.

Ahead of the News International annual general meeting last Friday, News International confirmed it has reached an agreement to pay Milly Dowler‘s family £2m in compensation, with Rupert Murdoch personally donating an additional £1m, which will be divided among six charities.

Meanwhile, a letter to the House of Commons Home Affairs select committee from Surrey Police chief constable Mark Rowley, confirmed that police knew Milly Dowler’s phone had been hacked by someone working for the News of the World in 2002. A BBC News report can be found here.

We reported a Reuters Institute debate, with John Lloyd, director of journalism, the Reuters Institute and Bruce Page, investigative journalist and author of The Murdoch Archipelago. It launched Lloyd’s new Reuters Institute publication “Scandal! News International and the Rights of Journalism”. The publication is available free from the Reuters Institute for those who register. In addition, audio from the debate is also available at the RSA website here.

In keeping with Paul Dacre’s promise to the Leveson Inquiry seminar, the Mail titles have begun publishing correction columns. The Tabloid Watch blog notes that while the Mail on Sunday’s clarifications were all published on MailOnline, the original articles were not corrected and did not have the clarifications added. In the Daily Mail’s column on Tuesday, it finally corrected its false claims in July 2011 that the NHS spent £32 for a loaf of gluten-free bread.

Press Gazette reports that the Society of Editors is urging the House of Lords to abandon clause 13 of the new Education Bill granting anonymity to teachers accused of committing a criminal offence against a pupil.

From the blogs

The comedian Robin Ince discusses the recent controversy around Ricky Gervais’s tweets.

Tabloid Watch takes issue with the Express’s poll report claiming that ‘75% say: ‘Quit the EU now”.

In the Courts

The most important media law case of the week was Flood v Times Newspapers, heard in the Supreme Court on Monday and Tuesday 17 and 18 October 2011. We had a case preview last week.

On 17 and 18 October 2011 Mr Justice Tugendhat heard an application in the long running libel case of Morrissey v McNicholas – Morrissey having issued the claims in 2007, contending that the NME had accused him of racism. The magazine’s lawyers argued that it should be “struck out” as an abuse of process as it was “not a genuine bid for vindication“.  Judgment was reserved.

On Wednesday 19 October 2011 there was an application in the case of Tesla Motors v BBC. The BBC asked the High Court to throw out the whole claim brought by the electric car manufacturer Tesla, over a Top Gear programme first aired in 2008. Tugendhat J dismissed the libel claim but reserved judgment on the claim for malicious falsehood. We have previously drawn attention to the Claim Form and Particulars of Claim.

On Friday 21 October 2011 judgment was handed down in the case of Kordowski v Hudson ([2011] EWHC 2667 (QB)). The judge struck out a claim by Rick Kordowski, publisher of the Solicitors from Hell website, which attempted to sue the chief executive of the Law Society for slander. We will have a case comment later in the week.

An application for permission to appeal in the case of Ferdinand v MGN has been lodged and is “awaiting a judicial decision on the papers“.

Events

On Thursday 27 October 2011 at 6.30pm, “Building an International Rule of Law”. Speaker: Judge Patrick Robinson; Location: Sheikh Zayed Theatre, New Academic Building, London School of Economics. Details at this link.

Law students with an interest in media law may like to note that registration is now open for the 2012 Price Media Law Moot Court Competition – International Rounds in Oxford.

Media Law in Other Jurisdictions

There were two Australian decisions dealing with procedural issues in defamation cases.  In Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286  the Court of Appeal in Queensland upheld the judge’s slightly surprising decision that the words complained of in a newspaper diary piece were “capable” of being defamatory of the claimant.  In Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498  the Court granted an extension of time for bringing a defamation claim whilst, at the same time, striking out certain allegations and ordering them to be repleaded.

On 19 October 2011 the Supreme Court of Canada handed down judgment in the eagerly awaited case of Crookes v Newton 2011 SCC 47. We had a post on this case from two of the Canadian lawyers involved.  We will have a further case comment later in the week.  The case was widely reported in the media – for example by BBC News and in the “Vancouver Sun“.  According to the “Globe and Mail”

the Supreme Court of Canada bowed to the inevitable this week by exempting the Internet from legal restrictions that have often been used to repress speech in traditional media.

The New York Times reports that a Paris court has ruled that French ISPs must block access to the website Copwatch Nord Paris I-D-F, which has published pictures and videos of police officers arresting suspects, taunting protesters and committing alleged acts of violence.

In Ireland, presidential candidate Dana Scallon has been threatened with libel proceedings over statements she made on television about members of her family.

Next week in the courts

On Monday 24 October 2011 Mr Justice Tugendhat will hear further submissions in the case The Commissioner of Police for the Metropolis v Times Newspapers Ltd. Judgment was reserved on 22 July 2011.

On Tuesday 25 October 2011 the Court of Appeal (Master of the Rolls, Jackson and Aikens LJJ) will hand down judgment on the permission application in The Queen on the application of Guardian News and Media Limited -v- City of Westminster Magistrates’ Court which was heard on 11 October 2011.  We had a case comment on the first instance decision.

In the Leveson Inquiry : a further directions hearing will be held at 10.30 on Wednesday 26 October 2011 at the Royal Courts of Justice. Issues to be covered will include the date for opening submissions and the start date for oral evidence.

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)

Miller v Associated Newspapers, heard 13 October 2011 (Tugendhat J)

Morrisey v McNicholas, heard 17 and 18 October 2011 (Tugendhat J)

Tesla v BBC, heard 19 October 2011 (Tugendhat J)

Also on Inforrm last week

What redress should be available for breach of standards? Desmond Browne QC’s presentation to the third Leveson Inquiry Seminar, “Supporting a free press and high standards – approaches to Regulation”.

Trafigura v Guardian News and Media. The “Guardian” has now provided us with a copy of the Judgment of Mr Justice Maddison on the initial injunction application.

Opinion: “Role models and hypocrites” – Max Mosley. The former head of the FIA argues that the right to privacy should not be swept aside for the mere amusement of the tabloid reader.

Opinion: “The Lord Chief Justice, the law and the PCC” – Brian Cathcart. Professor Cathcart analyses the Lord Chief Justice’s speech on press regulation.

Inforrm Top Posts of the Last Quarter and Two Polls. Our analytics show that Natalie Peck’s report on Cheryl Cole, harassment and injunctions topped the Inforrm chart in the last quarter. Plus, two polls asking what readers would like to see covered on Inforrm.

This week’s Round Up was compiled for Inforrm by Judith Townend, a freelance journalist and PhD researcher examining legal restraints on the media, who runs the Meeja Law blog. She is @jtownend on Twitter.


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24 10 2011
Draft defamation committee on online liability and limitation | Media law and ethics

[…] just compiled last week’s media law round up for the Inforrm blog, which opened with the Joint Committee on the Draft Defamation Bill’s first report. Its […]

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