Law and Media Round Up – 14 May 2012

A high-profile week at the Leveson Inquiry, with evidence from Rebekah Brooks, the MailOnline editor Martin Clarke and Andy Coulson (see Natalie Peck’s Inforrm roundup).  As well as sharing David Cameron’s text-speak (lol), Brooks provided the inquiry with an email sent to her by News Corp’s head of communications, Frederic Michel.

This read as follows:

“JH is now starting to look into phone hacking practices more thoroughly and has asked me to advise him privately in the coming weeks and guide his and No 10’s positioning.”

A spokesman for Hunt has said that Michel’s claim was “completely inaccurate“.

According to the Guardian, former Daily Star reporter Richard Peppiatt was one half of the pantomime horse greeting Brooks at the RCJ. On Twitter he said: “neigh comment.”

The Metropolitan Police has said it was impossible to conclude how messages from Milly Dowler’s voicemail were deleted, as reported by the Hacked Off campaign here.

The Queen’s speech, as widely predicted, contained three areas of relevance to media law:

• [Crime and Courts Bill] “The courts and tribunals service will be reformed to increase efficiency, transparency and judicial diversity…
• [Defamation Bill] “Legislation will be introduced to protect freedom of speech and reform the law of defamation…
  
• [Justice and Security Bill] “My Government will introduce legislation to strengthen oversight of the security and intelligence agencies. This will also allow courts, through the limited use of closed proceedings, to hear a greater range of evidence in national security cases“.

In their introduction, Prime Minister David Cameron MP and Deputy Prime Minister Nick Clegg MP said: “A Crime and Courts Bill and Justice and Security Bill will modernise our criminal justice system so criminals are properly punished in the community and law-abiding people are kept safe“…

The Crime and Courts Bill [HL] will have its second reading on 28 May. The MoJ has released its proposals to allow the broadcasting, filming, and recording of selected court proceedings [PDF] and further information here:

“Once the legal changes have been made broadcasting will be introduced initially at the Court of Appeal, where filming will be permitted of opening and closing legal arguments made by lawyers and the judgements handed down.

“The Government will later look to allow filming at the Crown Court – but of judges’ sentencing remarks only. No victims, witnesses, offenders and jurors would be filmed.“

The Defamation Bill was presented to Parliament on 10 May 2012. A date for the second reading will be announced. The Libel Reform campaign, a coalition between English PEN, Sense About Science and Index on Censorship, has welcomed the inclusion of the defamation bill in the Queen’s Speech and publishes various reactions here. It says it will continue to ask for:

“…a public interest defence so people can defend themselves unless the claimant can show they have been malicious or reckless; a strong test of harm that strikes out claims unless the claimant can demonstrate serious and substantial harm and they have a real prospect of vindication; a restriction on corporations’ ability to use the libel laws to silence criticism” and provisions for online hosts and intermediaries, who are not authors nor traditional publishers.“

Law Gazette, meanwhile, reported on reservations with the Bill. The Law Society, for example, raised concerns about the ‘serious harm’ requirement: ‘We agree that a mechanism is needed to discourage trivial claims, but this proposal is likely to inhibit many people trying to validly protect their reputation from doing so.’ Graham Smith, writing on his Cyberleagle blog, provides a detailed run-down of the implications for internet publication.

The Justice and Security Bill, following a green paper, will allow (a limited use) of closed proceedings in national security proceedings [MoJ release – PDF] which has raised widespread concern. The Law Society said: “The secret justice proposals in the Justice and Security Bill must not become a cloak for a Government to hide its blushes nor be allowed to deny justice to deserving cases“. Krishnan Nair comments on proposals on the Charon QC blog here, arguing “…it appears fairness is to take a backseat to security, depending of course on how we must now define fairness“.

Lawrence McNamara, who runs the ESRC-funded Law, Terrorism and the Right to Know project at the University of Reading, has raised the issue of employment tribunals and closed proceedings, in light of the forthcoming J&S Bill. Under Rule 54 of the regulations that govern procedure, closed proceedings and the exclusion of a party and their legal representative can be used in Crown employment matters if it is ‘expedient in the interests of national security’. “…[a]s with all closed material proceedings in existing areas, including SIAC, there seems no record of how often they are used,” he says.

The MP for Tooting, Sadiq Khan, has tabled an important question for the Justice Secretary to answer on 14 May: ‘on how many occasions a closed material procedure has been used in an employment tribunal in each of the last 10 years’. McNamara suggests that

“any proposals in the Justice and Security Bill should ensure that such records are kept and reported regularly, and that all orders for closure are reviewed periodically so that matters of public interest do not remain secret for any longer than absolutely necessary“.

Private Investigators: Chris Atkins, director of Starsuckers, went undercover to investigate private investigators for a new Dispatches on Channel 4pm (Monday, 8pm). The Independent reports on the programme here.

Trolls: The Justice Gap reports on a new campaign “calling on the police and social media sites to take online abuse seriously” and to back what it says is the “first private prosecution brought by an individual against internet trolls“. The law firm Bains Cohen (acting pro bono for the claimant, Nicola Brooke) and a PR agency are leading the campaign.

Phone hacking: Simon Mckay, solicitor advocate, has an interesting post with an alternative angle on the Culture, Media and Sport select committee report, questioning MPs’ condemnation of Rupert Murdoch.

A former News of the World investigative reporter, Graham Johnson, “has described a culture of fear at the News of the World in which reporters routinely fabricated stories“, reports the BBC.

Statements in Open Court and Apologies

We are not aware of anything to report in this section (please contact inforrmeditorial@gmail.com with any relevant information).

Journalism and regulation

The PCC has ruled on a new case: A Woman v Clevedon People, clauses 3 (privacy) and 14 (confidential sources). A woman complained that her name was published in a letter to the newspaper, despite instructions to the contrary. The commission decided that following a breach of Clause 3, the newspaper had taken sufficient remedial action. There was no breach of Clause 14 of the Code.

Resolved cases include: Mr Stephen Wren v Daily Mail (Clause 1), 11/05/2012; A man v The Sun (Clause 1), 11/05/2012; Worcestershire Acute Hospitals NHS Trust v Daily Mail, Clause 1, 11/05/2012; Ms Louise Pyne v Daily Mail, Clause 1, 08/05/2012.

A speech by the PCC’s chair Lord Hunt to the PPA conference is available here.

The Democratic Society has notes from a recent event at the RSA on media regulation here.

Research & resources

• Eugene Volokh, ‘First Amendment Protection for Search Engine Results‘ – a white paper for Google [PDF] [Wired report], April 2012
• Jeffrey P. Hermes, Citizen Media Law Project, ‘How Should We Measure Damages for Defamation Over Social Media?‘, May 2012
• Diane Leenheer Zimmerman, New York University School of Law, ‘The ‘New’ Privacy and the ‘Old’: Is Applying the Tort Law of Privacy Like Putting High-Button Shoes on the Internet?’, Communication Law and Policy, forthcoming NYU School of Law, Public Law Research Paper No. 12-21, May 2012
• The Internet Newsletter for Lawyers is now open access and its May / June 2012 issue has just been published
• The 40 day free access has now finished, but the Index on Censorship archive from 1972-2010 will now remain free for the rest of the year – to mark the organisation’s 40th anniversary.

In the Courts

Closing submissions in the libel trial of Bento v Chief Constable of Bedfordshire were heard on 8 and 9 May 2012 by Bean J and the trial concluded after a 10 day hearing. Judgment was reserved.

On 8 May 2012 the Court of Appeal (Master of the Rolls and Laws LJ) gave permission to appeal in the case of Coulson v News Group Newspapers.

On 8, 9 and 10 May 2012 Supreme Court heard the appeal in the phone hacking privilege against self-incrimination case of Phillips v Mulcaire. There was an Inforrm post about the case.

On 10 May 2012, Eady J handed down judgment in the case of Hunt v Times Newspapers [2012] EWHC1220 (QB).

On 11 May 2012, Sharp J handed down judgment in the case of King v Grundon. The defendant succeeded in a summary judgment application in respect of libels published in correspondence and it a website book review.  The claimant was a former barrister who had been convicted in New Zealand of conspiracy to unlawfully detain a person and unlawful possession of a firearm.  The judge held that the convictions were admissible as evidence of bad reputation and that the defence of justification was bound to succeed.

Events

15 May 2012, 7pm: #FCBBCA with Timothy Garton Ash: Is it time for a global conversation on free speech? Frontline Club, London.

17 May 2012, 6pm: Rally for Media Reform – The Coordinating Committee for Media Reform, in conjunction with the Hacked Off campaign, Westminster Central Hall.

26 May, 4.30pm: Index on Censorship discussion, in association with Free Word: Where do you draw the line? Brighton Festival (Brighton Dome, Corn Exchange).

30 May, 9am – 7.30pm: Conference: ‘After phone hacking, what next?’ / Charles Wheeler Award, University of Westminster, London.

12 June 2012, all day: The ‘Right to be Forgotten’ and Beyond: Data Protection and Freedom of Expression in the Age of Web 2.0, Oxford Privacy Information Law and Society, Centre for Socio-Legal Studies, Oxford University.

22 June 2012, 10.30am-1pm: Changing the face of freedom, Free Word Centre, London.

28 June 2012, all day, LexisNexis Defamation & Privacy conference, London.

1-27 August, 5pm, Comedy: ‘One Rogue Reporter‘, Rich Peppiatt / Something for the Weekend, Edinburgh Festival.

Know of any media law events happening in May / June? Please let Inforrm know: inforrmeditorial@gmail.com.

Inforrm recently celebrated one million hits, two years and three months after launch. To mark the milestone, there will be a a party for the site’s contributors and subscribers. Details will be emailed to subscribers shortly (hint: to get an invitation, you need to subscribe).

Media Law in Other Jurisdictions

Australia: In the case of Association of Quality Child Care Centres of NSW v Manefield ([2012] NSWCA 123) the New South Wales Court of Appeal unanimously dismissed an appeal by an employers’ association ordered to pay damages of Aus $150,000 for a defamatory email. The court (Beazley and McColl JA and Tobias AJA) found Child Care NSW acted maliciously when it sent the email to 650 members. The court agreed that judge’s damages award while “generous”, was not excessive.

The Sydney Morning Herald reports that the Catholic Archbishop Cardinal George Pell has dropped a defamation threat over a tweet, “which falsely suggested he condoned the sexual abuse of young boys.” In another Australian case, a defamation defendant has successfully appealed a judgment ordering him to pay $150,000 to his neighbour for calling him a ‘wog’ and a ‘paedophile’ at a surf club. The court ordered both sides to pay their costs to date, reports Goldcoast.com.au.

United States: According to the ACLU blog, Twitter “has filed a motion in state court in New York seeking to quash a court order requiring it to turn over information about one of its users and his communications on Twitter“.

Ireland: In Moram v Bell & Ors [2012] IEHC 111, a defamation action against members of a Jehovah’s Witnesses’ congregation has been dismissed by the High Court.

Liberia: As reported by IPI, President Johnson Sirleaf “has endorsed the Declaration of Table Mountain, which calls for the repeal of criminal defamation and insult laws across the African continent“.

Next week in the courts

On 14 May 2012 Sir Charles Gray will give directions for the second trial in the case of WXY v Gewanter.

On Tuesday 15 May 2012 Tugendhat J will deal with the costs issues in the case of Hallam Estates Ltd & Anor v Baker.

On 16 May 2012 there will be an oral permission to appeal hearing in the Court of Appeal in the case of Iqbal v Manson before one of Mummery, Hooper or Pitchford LJJ. The case can be found on Case Tracker.

On 15 May 2012 there will be a hearing in the case of Kim v Park & ors.

Next week at the Leveson Inquiry

Monday 14 May, 10:00 – 16:30: Alastair Campbell, Lord O’Donnell

Tuesday 15 May, 10:00 – 16:30: Adam Boulton, Lord Wakeham

Wednesday 16 May: 10:00 – 16:30, Jack Straw MP

Thursday 17 May, 10:00 – 16:30: Sir Harold Evans, Peter Oborne

Next week in Parliament

We are not aware of any relevant scheduled sessions this week, but tabled written and oral questions in the House of Commons for a future day include:

Monday 14 May

• 2 N. Mr Adrian Sanders (Torbay): To ask the Attorney General, whether the costs of the legal representation of Government Ministers who have been granted core participant status at the Leveson Inquiry will be met from the public purse; and if he will make a statement (106569).
• 3 N. Mr Adrian Sanders (Torbay): To ask the Attorney General, for what reason Ministers which are core participants at the Leveson Inquiry are being represented by Treasury Counsel (106570).
• 4 N. Mr Adrian Sanders (Torbay): To ask the Attorney General, if he will make public funding available on a non-means-tested basis to cover the costs of legal representation at the Leveson Inquiry for all core participants who are (a) active in politics and (b) hon. Members (106571).
• 93. N. Dan Jarvis (Barnsley Central): To ask the Secretary of State for Culture, Olympics, Media and Sport, whether he has had discussions with (a) the Minister for the Cabinet Office, (b) the Prime Minister and (c) the Deputy Prime Minister about the continued existence of his Department. (106556)
• 338 N. Frank Dobson (Holborn and St Pancras): To ask the Prime Minister, with reference to his oral Answer of 30 April 2012, Official Report, column 1248, on the Ministerial Code (Culture Secretary), whether the (a) Cabinet Secretary and (b) source of legal advice in the Cabinet Office were aware that the Secretary of State for Culture, Olympics, Media and Sport had previously indicated his support for the News International bid to take over BSkyB (106701).

Tuesday 15 May

• *11, Dr Julian Huppert (Cambridge): What recent progress he has made in reforming the law on defamation. (106584)
• 22 N. Ms Harriet Harman (Camberwell and Peckham): To ask the Secretary of State for Culture, Olympics, Media and Sport, if he will place in the Library copies of all (a) emails and (b) text messages between him and Frederic Michel between 1 June 2010 and 31 July 2011 (106986).

* Indicates a Question for Oral Answer. [N] Indicates a Question for Written Answer on a named day.

Judgments

The following reserved judgments after public hearings remain outstanding:

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

El-Naschie v Macmillan, heard 11, 14, 16 to 18, 21, 22, 25, 28-30 November, 1 -2 December 2011 (Sharp J)

Woodrow v Johansson, heard 19 January 2012 (HHJ Parkes QC)

Chambers v DPP, heard 8 February 2012 (Gross LJ and Irwin J)

Hunt v Times Newspapers, heard 9 and 12 March 2012 (Eady J)

Bento v Chief Constable of Bedfordshire, heard 3 April 2012 (Maurice Kay and Hooper LJJ and Henderson J)

Trimingham v Associated Newspapers heard 23-25 and 27 April 2012 (Tugendhat J)

Levi v Bates, heard 23-26 April 2012 (HHJ Gosnell)

Bento v Chief Constable of Bedfordshire, heard 24 to 27 and 30 April and 3, 8 and 9 May 2012 (Bean J)

Phillips v Mulcaire, heard 8 to 10 May 2012 (Supreme Court)

WXY v Gewanter & ors, heard 9 to 11 May 2012 (Slade J)

Also on Inforrm last week

• Rebekah Brooks at the Leveson Inquiry: People’s pal or power broker? – Brian Cathcart
• Case Law: SKA v CRH, variation of a privacy injunction – Kirsty Hughes
• Case Law: R (Calver) v Adjudication Panel, Censure of councillor for “sarcastic, lampooning and disrespectful” blog breached his free speech rights – Rachit Buch
• Privacy On Parade – Mark Pearson
• Freedom of Expression: the Adventures of Tintin in the land of the law – Jogchum Vrielink
• Journalism and the Wonderland of Public Interest, an Australian Perspective – Richard Ackland
• Opinion: “Free speech? Not when a newspaper sets a private investigator on a journalist” – Brian Cathcart

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. Please send suggestions, tips and event listings for inclusion in future round ups to jt.townend@gmail.com.