Law and Media Round Up – 19 December 2011

19 12 2011

The “News of the World” took centre stage at the Leveson Inquiry last week, with evidence from former NoW journalists Mazher Mahmood, Neil Wallis, Neville Thurlbeck, Colin Myler and Daniel Sanderson, lawyers Lawrence Abramson (formerly of Harbottle & Lewis) and Julian Pike (of Farrer & Co), former NoW in-house lawyers Tom Crone and Jon Chapman, and the private investigator Derek Webb. We have posted a round up of weeks three and four.

Fleet Street is divided, with many bitter words being exchanged between journalists from rival titles, as the Guardian came under attack for the “unlikely” allegation that NoW had deleted messages from Milly Dowler’s phone giving her mother “false hope” that she was still alive. While the fact that NoW intercepted the voicemail messages while she was still thought missing has not been disputed, some journalists have claimed that the original story led to NoW’s closure. The Financial Times reported that the dispute “triggered the most destructive outbreak of press tribalism in living Fleet Street memory”.

The Guardian reporter Nick Davies appeared on Newsnight to defend the Guardian’s reporting, alongside NoW’s former head of features Jules Stenson, PCC chair Lord Hunt and journalist Anne Diamond. The programme is still available to watch here.

The row stepped up a gear with intervention from the Sun’s managing editor, Richard Caseby, who told the House of Lords communications committee that the Guardian has “sexed up” its story [PDF]. This led to a story in the Sun outlining the Guardian’s recent run-ins with the title. Jon Slattery reports on the backlash here. The BBC reports on Caseby’s calls for further correction by the Guardian here.

The co-ordinator of the Hacked Off campaign, Thais Portilho-Shrimpton, questions the significance of the new developments here. On Inforrm, Professor Brian Cathcart argued that the press are “lashing out like cornered animals“.

While Lord Justice Leveson made it clear that the Dowler story was not the only reason for the Inquiry, he will be looking into the new developments. “I do think that some thought has to be given to how this picture has been put together so that we can see what actually it is legitimate to say … is the proper conclusion to reach about what happened in 2002“, he said on Monday.

Meanwhile, former Cabinet minister Tessa Jowell accepted £200,000 in damages in her phone hacking civil case against NoW, with £100,000 going to charity. PA Media Lawyer reports here.

In Operation Elveden’s seventh arrest, Lucy Panton, the former News of the World crime editor was arrested and released on bail on “suspicion of paying police officers“, reported Press Gazette.

Only journalists and “legal commentators” will have automatic permission to tweet from court, according to new guidelines issued by the Lord Chief Justice. But who qualifies? Joshua Rozenberg – self-described legal commentator – argues that the guidance [PDF] is unlikely to cause problems in practice: “If you have enough legal or journalistic training to report court proceedings consistently with the laws of contempt, you come within the guidance. If you don’t, you need to ask permission. If there’s any doubt, the judge will have to decide“.

The Australian newspaper has an interesting piece on the tweeting situation in Australian courts, quoting Professor Mark Pearson (@journlaw on Twitter), who says: “Both the courts and the media need to exchange in a discussion about this topic. The technology raises issues that shorthand notebook journalists could never have contemplated and neither could the magistrates and judges on whom they report.”

In the House of Commons the justice secretary Kenneth Clarke clarified plans to televise court hearings: “Initially, we will allow judgments in the Court of Appeal to be broadcast for the first time, and will expand this to the Crown court in due course. We will not allow filming of juries, victims and witnesses under any circumstances“.

The Scottish Parliament has approved the Offensive Behaviour at Football and Threatening Communications (Scotland) Act in a final vote at Stage 3, despite concerns about its implications for freedom of speech. Further background on its relation to freedom of speech can be found at Index on Censorship. While the bill’s introduction has received widespread press coverage, it would be wise to monitor its implementation closely.

Stephen Lloyd MP, Eastbourne and Willingdon, “is to appeal against a High Court ruling that a claim about his predecessor in an election campaign pamphlet was defamatory,reports the BBC.

A contempt of court ruling against the Birmingham Mail has been overturned by the Court of Appeal, in Birmingham Mail v ED, CA (criminal division) 7 December. The newspaper was found to be in contempt by a judge in the High Court Family Division, when it named the defendants in a Birmingham Crown Court criminal trial involving allegations of child cruelty, reports PA Media Lawyer (subscription required).

The Information Commissioner’s Office (ICO) has published new guidance [PDF]making it clear that FOI laws cover relevant information even when stored or sent on private accounts or devices“, reports Out-Law.com. FoI Man comments on the practicalities of the announcement here.

Statements in Open Court and Apologies

Media interest in privacy injunctions was revived with Imogen Thomas’ statement in open court in the case of CTB v NGN, which stated the claimant footballer had accepted there was no basis to accuse her of blackmail. Thomas tweeted a copy of her court statement here. The Guardian reports on the case here.

Journalism and the PCC

There are no new PCC adjudications to report, but four “resolved” complaints: Information Affairs Authority of Bahrain v The Independent, Clause 1, 14 December 2011 ; Mrs Kate Adams-Moor v The People, Clause 1, 13/12/2011; Brent Council v Kilburn Times Clause 1, 2, 12/12/2011; Mr Will Knock v Daily Mail, Clause 1, 12/12/2011.

The Guardian published a list of the 100 most complained about television programmes in 2011, using Ofcom data. The Wright Stuff topped the chart, with 2,220 complaints, up to 9 December).

The BBC has produced a programme on newspapers’ use of computer hackers: it talks to an

undercover operative [who] spent time amid the culture of lawbreaking in the offices of private detective firm, Southern Investigations in London. The former police officer was there for nearly a decade until 2006 gathering intelligence on an unrelated matter. He reveals that computer hacking along with other unlawful techniques, was used in connection with stories for News International and other newspapers“.

The Independent reports on this, and developments in the Metropolitan Police’s Operation Tuleta here.

The Lancashire Evening Post has suspended all comments on its website, as reported by HoldtheFrontPage here. The local news site’s statement reads: “You may have noticed comments on all items on this website have been suspended. This is because of an on-going problem with persistent malicious posters abusing our comments facility.” Lep.co.uk reports that it has taken “legal steps against one user and a number of others are under scrutiny“.

In the Courts

On Monday 12 December 2011 Mr Justice Tugendhat gave judgment in the case of Cooper v Turrell [2011] EWHC 3269 (QB), an assessment of damages in a libel, breach of confidence and misuse of private information case. We will have a case comment on this case shortly.

On Tuesday 13 December 2011 the same judge gave judgment in Waterson v Lloyd (No.2) – refusing an application for permission to amend to plead justification after the judgment which he gave in the first Waterson case ([2011] EWHC 3197 (QB)).  The case is noted on the 5RB website.  On the same day there was a Pre-Trial Review in the case of Lewis v Commissioner of Police.

On 14 December 2011, Mr Justice Tugendhat gave trial directions in the case of Trimingham v Associated Newspapers Ltd.

On 15 December 2011 the Court of Appeal (The Chancellor, Laws and Rafferty LJJ) gave judgment in the case of Terluk v Berezovsky [2011] EWCA Civ 1534 (heard 1, 2 and 3 November 2011). The applications for permission to appeal and appeal were dismissed. The same day, the application for permission to appeal in the case of Ferdinand v MGN was withdrawn, the matter having been compromised as between the parties.

On 15 December 2011 Mr Justice Tugendhat gave judgment in the case of Raab v Associated Newspapers Ltd [2011] EWHC 3375 (QB). We will have a case comment on this shortly.

On the same day, the same judge heard an application for permission to amend in the libel case of Rothschild v Associated Newspapers. Judgment was reserved.

On 16 December 2011, Mr Justice Eady upheld the Master’s decision in Justin Oliver Zinda v ARK Academies [2011] EWHC 3394 (QB) which dismissed the claimant’s defamation action because it was outside the limitation period.

Two judgments which have been subject to reporting restrictions have recently been made public. First, there was the judgment of Mr Justice Tugendhat in the case of Andre v Price [2010] EWHC 2572 (QB) – given on 11 October 2010. Secondly, there was Eady J’s judgment in the case of CTB v News Group Newspapers (No.4) [2011] EWHC 3099 (QB) was made public. This was given on 25 November 2011 and concerned the question as to whether a defendant in a privacy action could make statement in open court. As already mentioned, a statement was made by the second defendant in that action.

Events

9 January 2012, 10 am. Art Exhibition: Justice and Security: there is more than one truth. A series of cartoons and videos on the issues of justice and security, that have been produced in conjunction with the Video Journalism Movement in Amsterdam. Atrium Gallery, LSE, London.

25 -29 January 2012. Centre for Investigative Journalism annual film week. Series of investigative films, followed by a Q&A session with the filmmakers. On Saturday 28 January, after the screening of The Whistleblower, there will be a networking party with opportunity to talk to the filmmakers and other journalists. City University London.

Media Law in Other Jurisdictions

In Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375 Dalton J gave reasons for various rulings given in the course of a libel trial in which the defendant succeeded in establishing the defence of contextual truth.

In the case of Ponifasio v Apia Broadcasting Ltd [2011] WSSC 136 the Supreme Court of Samoa awarded damages of $130,000 (including aggravated and exemplary damages) in respect of a news broadcast concerning a political candidate.

An Indian politician, Anand Singh Dangi, is being sued for defamation by a retired teacher, Prem Singh Rathi, for the former’s implication of the latter in an assault case 23 years ago, The Times of India reports. 20 December is set as the next hearing date.

In Zimbabwe, the Standard Newspaper will be tried in a criminal defamation case, after a bid to refer the case to the Supreme Court failed. The provincial magistrate in Harare said the case should proceed to trial. AllAfrica.com has a report here.

The preliminary “Article 32” hearing of the US soldier accused of leaking military documents to Wikileaks, Bradley Manning, has begun. Journalist Heather Brooke has commented on the case here. The Guardian’s coverage of the trial can be found at this link.

Next week in the courts

On 19 December 2011, the Court of Appeal (Master of the Rolls, Etherton and Gross LJJ) will hand down judgment in the case of Hutcheson v Popdog Limited (heard 7 December 2011).

On the same day Tugendhat J will hand down judgment in the injunction case of AB v Barristers Benevolent Association Ltd (heard on 13 December 2011) and Eady J will hear an application in the libel case of Hunt v Times Newspapers.

On 20 December 2011, HHJ Parkes QC will hand down judgment in the case of Morrison v Buckinghamshire CC, (heard 20 to 21 July).

Next week at the Leveson Inquiry

Monday 19 December: Matthew Driscoll (a sports reporter sacked by the Now in April 2007 while on long-term sick leave for stress-related depression), James Hanning (Deputy Editor of the Independent, and Stuart Hoare (brother of the recently deceased former NoW journalist Sean Hoare).

Tuesday 20 December: Matthew Bell, Christopher Johnson, Sharon Marshall, Piers Morgan (via video link), Julian Pike (recalled) and Steve Turner.

Wednesday 21 December: Nick Fagge, Padraic Flanagan, James Hipwell and David Pilditch.

Next week in Parliament

19 December 2011, 2.45pm, Joint Committee on Privacy and Injunctions: Professor Anthony Bradley QC, Research Fellow, Institute of European and Comparative Law, University of Oxford, David Howarth, Cambridge University and former MP, and Sir William McKay, Clerk of the House of Commons, 1998–2002; David Beamish, Clerk of the Parliaments and Peter Milledge, Deputy Counsel to the Chairman of Committees, House of Lords, Robert Rogers, Clerk of the House of Commons and Michael Carpenter, Speaker’s Counsel. Location: The Boothroyd Room, Portcullis House

20 December 2011, 2:30 pm, House of Lords communications committee, the future of investigative journalism: Mrs Jane Wilson, chief executive officer, the Chartered Institute of Public Relations (CIPR); Mr Simon Kelner, chief executive officer, the Journalism Foundation. The meeting will continue in private at 3.45pm. Location: Room 2, Palace of Westminster.

The House of Commons will be in recess from Wednesday 21 December. The House will next sit on Tuesday 10 January 2012.

Judgments

The following reserved judgments after public hearings remain outstanding:

WXY v Gewanter, heard 11-15, 18-19 July 2011 (Slade J)

Flood v Times Newspapers, heard 17 and 18 October 2011 (Supreme Court)

Cambridge v Makin, heard 3 November 2011 (Hughes, Black and Tomlinson LJJ)

McGrath v Dawkins and another, heard 10 and 11 November 2011 (HHJ Moloney QC).

Levy v. Coomber heard 9 and 16 November 2011 (HHJ Moloney QC).

Phillips v NGN, heard 28 and 29 November 2011 (Judge LCJ, Neuberger MR, Kay V-P)

Rothschild v Associated Newspapers Ltd., heard 15 December 2011 (Tugendhat J)

Also on Inforrm last week

Privacy: The New Methodology, Part 1. The first half of Sir David Eady’s talk given as part of the Great Britain China Centre project, “EU-China promoting legal protection for the media” at a seminar on personality rights legislation.

“Press Freedom: a Democratic Rubric”, Part 1 and Part 2. Julian Petley, professor of screen media and journalism at Brunel University, shares his evidence to the Leveson Inquiry, suggesting that “the time has come to re-think the whole notion of press freedom – and indeed of the freedom of the media in general“.

Case law: Coward v Harraden – the value of open justice. Gervase de Wilde examines a recent case, Coward v Harraden [2011] EWHC 3092 (QB) that considered the importance of open justice, and the potential for litigants to use the principle for their own ends.

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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19 12 2011
Law & Media round up & a few bonus links | Media law and ethics

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