Leading specialists in media law gave an overview of developments in defamation and privacy in England & Wales at last week’s IBC Legal conference, chaired by Andrew Caldecott QC, head of chambers, One Brick Court. A few highlights are reported here.
Inforrm has covered many of the cases (and others mentioned at the conference) in the past year – use the search box on the right or the table of cases to find related commentaries.
“Centre of interests”
Jaron Lewis, a partner at RPC, where he leads the firm’s media group, updated delegates on online defamation & privacy and began with the Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X and Olivier Martinez v MGN Ltd in relation to jurisdiction.
Previously, a claimant could either sue the publisher wherever it is established or could bring separate actions in each jurisdiction, according to Articles 2(1) and 5(3) of the Judgments Regulations (Brussels 1). However, the European court has now added a third alternative – the claimant can now sue where he has his “centre of interests” for all of the harm suffered across the EU. “This is a really significant change,” said Lewis.
“The court looked briefly at what it meant by “centre of interests”. Generally, it’s going to be where the person is habitually resident but it may be a different member state from that, if the existence of a particularly close link can be established, for example, through professional activity”.
Hypothetically, he said, a regional newspaper in the UK could be sued in France for a piece about a French official.
“I do know there are already some claims being brought against UK media organisations in overseas jurisdictions for all of the harm suffered in member states … I think that’s going to be something we see more of, particularly in areas where the law is more generous to claimants.”
Lewis suggested that we might see more privacy cases pursued in other jurisdictions, but that libel claims would continue to be based here.
Hyperlinks & UGC
“A very well-reasoned decision” in the Canadian Supreme Court, Crookes v Newton 2011 SCC 47, is to be noted for its decision that hyperlinks are not a publication for the purposes of defamation, outlined Lewis. It is, he said, “one of the only common law decisions of that sort of status which have looked at these issues in this depth”. In Lewis’ view, it is persuasively argued:“I like to think this it would be persuasive when considered here. It has been considered in one case already“.
That case is the recent decision in McGrath v Dawkins,  EWHC B3 (QB) which Lewis discussed in relation to user-generated content (UGC). One issue was how do you determine meaning with chatroom postings? There could be different messages and combinations, depending what time a reader looks.
“Judge Moloney suggested that the only practical course is to treat the final thread as a single publication for context and meaning purposes.”
Lewis was unsure about that particular decision: “I suspect that will be fact-sensitive and you could get some quite odd results, if you had a strict rule for looking at it on that basis.”
He also mentioned the Tamiz v Google Inc case  EWHC 449 (QB), in which Eady J declined jurisdiction in the proceedings and set aside the order for service out of the jurisdiction. Eady J refused the claimant permission to appeal, but Tamiz has now applied for permission from the Court of Appeal, Lewis reported.
Trivial claims struck out
The court is more readily disposing of trivial defamation claims, said Lewis, for not meeting a threshold of seriousness, or because they concern vulgar abuse and are not defamatory, or because of Jameel and abuse of process.
Some of the reasoning in the decisions is not clear, but what is clear is that the court is starting to get rid of, particularly in an internet context, cases which are not worth people spending tens to hundreds of thousands of pounds litigating over, he said.
English cases in this category included: Smith v ADFVN ( EWHC 1797 (QB)); Clift v Clarke  EWHC 1164 (QB); and El Diwany v Hansen and Others ( EWHC 2077 (QB)) .
Richard Spearman QC, 4-5 Gray’s Inn Square, looked at the ‘rise and fall of super-injunctions‘ – with emphasis on the latter.
On the ground, the landscape for privacy and injunctions, in my view, has changed almost beyond recognition in the last twelve months. At this time last year, the courts were occupied virtually on a daily basis with injunctions against the media – a very large number of them involving kiss ‘n’ tell stories and sports people, typically premier league footballers.
There were several a week and “occasionally there was more than one injunction either sought or threatened in a day“, he said.
The volume of activity has dropped off, he said – he believes that the only injunction sought against the media since last summer was Spelman v Express Newspapers ( EWHC 355 (QB)).
In terms of the internet, he said, breaches were not limited to Twitter: foreign media organisations and website operators abroad also disseminated information. “No-one has put forward a solution to this internet problem,” he said.
In his view, a main factor in the decline of privacy injunctions was the Giggs case, in which Spearman acted for NGN, and the internet publication problem. Additionally, the Practice Guidance issued by the Master of the Rolls on non-disclosure orders and decisions in the High Court and Court of Appeal had led to the privacy injunction “sea-change“.
In his supplementary notes, Spearman outlined some of the reasons for the decline, which include (summarised and abridged):
- in practical terms, injunctions are ineffective to prevent internet publication
- many search engines and operators are outside the jurisdiction
- information can be posted anonymously and disclosure orders may not be successful
- an injunction may do a claimant more harm than good, in terms of speculation and publicity
- people might be deterred by the experience of previous privacy claimants
- the courts have become more vigilant about derogation from open justice – eg. whether hearings should be held in privacy and anonymity orders made
- claimants must expect to progress their claims to final resolution
- the media may have become more cautious about what they publish (but not always – see, for example, the coverage of Natasha Giggs)
Contempt of Court
Manuel Barca QC, One Brick Court, suggested that Contempt had risen from the grave, with signs of a more proactive Attorney-General, who had recently pursued cases following media coverage of Chris Jefferies’ arrest and the Levi Bellfield case.
In his overview, Barca pointed to the Attorney-General’s recent speech at City University London, and this extract:
As I said earlier, it is my belief that hitherto the press has been pushing at the boundaries and in a sense has subtly been seeking to explore what is or isn’t acceptable. Now, I am not here to act as some sort of arbiter of morals nor is it any role of mine to provide legal advice to editors and journalists – but I hope the events of recent months have introduced a degree of clarity. My sole aim in bringing these cases is to ensure that Justice is done. [A-G Dominic Grieve, December 2011]
“You can’t say you haven’t been warned from the man himself. We are unquestionably in a new era where the Attorney is going to be taking a much tougher line on Contempt,” said Barca.
Reports from the conference can also be found on PA Media Lawyer (subscription required)
- Internet threat ‘cut number of privacy order claims’
- Actions for online content spreading into Europe
- Courts more willing to dispose of trivial cases
- Strasbourg ‘loosening strict criteria’
Judith Townend is a freelance journalist and PhD researcher at the Centre for Law, Justice and Journalism, City University London, where she is also co-ordinating the ‘Open Justice in the Digital Era’ project. She is @jtownend on Twitter.