Law and Media Mid-Summer Round Up – 29 August 2012

Parliamentarians are still in recess, Lord Justice Leveson has finished taking evidence for Part 1 of his Inquiry, the Michaelmas legal term has not yet begun, but there have been more than enough media law related developments to justify a mid-summer round up, including new dates for the autumn calendar.

Privacy battle royal: The Sun was the only national newspaper to print blurry photographs of Prince Harry in a hotel room in Las Vegas, proclaiming its right to freedom of expression and a public interest in publication.  According to the “Guardian” the PCC has subsequently received over 3,600 complaints from members of the public. Former deputy editor of News of the World Neil Wallis complained of Leveson’s “devastating effect” on free speech but that view was not shared by all – for example, Professor Brian Cathcart, writing on Inforrm, and the editor of the Independent, Chris Blackhurst, interviewed on the Radio 4 Today Programme. Meanwhile, Brian Pillans, a lecturer in law and journalism at Glasgow Caledonian University, examined the ethical and legal position here.

Elton John: The singer is suing the Times for libel over a story about his alleged connection to a tax avoidance scheme, as Roy Greenslade noted here and the BBC reported here. The Times had already published a correction in June 2012, but his lawyers described it as “wholly inadequate”.

Defamation & reform: Writing in the Telegraph, Alistair Bonnington, former honorary professor of law at Glasgow University, complains that Kenny MacAskill, the Scottish Justice Minister, “has decided to reject almost all of the [Defamation] Bill’s liberalising provisions and include only one minor subsection”, labelling the decision as “arrogant nonsense”. The Lallands Peat Worrier blog takes issue with this version of events here.

The Office of Fair Trading has closed an investigation into “whether a group of companies, and solicitors acting on their behalf, were using threats of defamation action to quell legitimate criticism online”. Without disclosing details, the OFT said its investigation examined whether that had been an infringement of the consumer protection legislation enforced by the OFT under the Enterprise Act 2002.

The Data Protection Act 1998 is increasingly being deployed as part of a claimant’s arsenal in defamation claims, writes Robin Hopkins, a barrister at 11KBW. In a piece exploring the latest developments in this area, he finds that the DPA, in some circumstance, “may appropriately play the lead role rather than a supporting one in a complaint about unjustifiable and damaging communications about individuals”.

The Scottish fencer, Keith Cook, is to sue British Fencing over statements made to the media, the BBC reported.

Tweeter anonymity: Northcliffe Media will no longer pursue Twitter, for details of the individual tweeting as @UnSteveDorkland, a parody account of the company’s chief executive Steve Auckland. The Guardian reports here.

Meanwhile, an anonymous barrister picks up on comments by Gordon Scobbie, deputy chief constable of Tayside Police and the lead officer for social media within the UK police, over on Legal Cheek, voicing concern over Scobbie’s view that

“I can understand why this is necessary in countries where freedom of speech is restricted but in the UK I think if you’ve got something to say – as long as it’s respectful – there is no need to be anonymous” (Hat-tip: @bainesy1969 on Twitter).

Scandalising the court: The Law Commission has opened a consultation into “whether the current offence of scandalising the court should be abolished or, in the alternative, whether it should be retained but modified and, if so, how”. It is part of the Commission’s wider project on Contempt.

Statements in Open Court and Apologies

The Sunday Express has apologised and paid damages to the King Fahad Academy in Acton, West London, after wrongly claiming that the school taught an extreme form of Islam (source: Guardian/Press Gazette). The school has published a press release here:

“The Sunday Express today apologised in the High Court to the King Fahad Academy based in West London and its Director, Dr Sumaya Alyusuf and has agreed to pay them damages and costs which will be assessed at a later hearing.”

Please contact us with additional items for this section and we will update the round up.

Journalism and regulation

Last week on Inforrm, Hugh Tomlinson QC considered whether compulsory regulation of the print media could be compatible with Article 10 of the European Convention. He concluded that “provided that a compulsory regulatory system remains fully independent of government, it seems likely that it would be held to be compatible with Article 10”.

Sir Christopher Meyer, former chairman of the PCC, argues that the PCC is “back in fashion” on the Huffington Post. In a piece about the Sun’s publication of the Prince Harry photographs (“It is for editors to make a judgement on whether their readers will find the images tasteful or decent“) he claims that it was “foolish” it to launch the Leveson Inquiry “on the careless assumption that the PCC was not fit for purpose” and without an “independent member of the [Press Complaints] Commission, past or present, on his panel of assessors“.

The PCC has been active during August, with numerous published resolutions and two adjudications.

On 1 August 2012, a complaint brought by Toyota (GB) Plc against the Sunday Times for allegations about its service to customers was not upheld (clauses 1, 2, 4, 10). “[T]he newspaper had taken appropriate care in presenting the coverage as a whole to make clear that it was reporting claims of former dealers and technicians,” the Commission found, and considered the Clause 1 complaints in this context. Additionally, “it had emphasised – including in the front-page headline – that it was reporting ‘accusations’ against the company, and it had published a standalone article under the heading “Toyota say there is no problem”, summarising the complainant’s position”. On the Clause 4, Harassment complaint, “[t]he Commission did not agree that the use of a telephone number, or the visit to a home address, provided to a reporter by an acquaintance of the individual, amounted to intimidation or harassment.”

The commission upheld a complaint brought by Richard Rawson (a rapper known as Fazer and former member of N-Dubz) against Heat Magazine over an article alleging that he had ‘cheated’ on his girlfriend [at the time, the Commission notes, the complainant had been in a relationship about which he had spoken publicly].

“In the circumstances – which included the nature of the allegations and the prominence given to them – the Commission concluded that the magazine’s decision not to contact the complainant’s representative about the story prior to publication had represented a failure to take care not to publish inaccurate or misleading information, and a breach of Clause 1”.

The Commission did not, however, uphold a complaint under clause 3 (privacy), over the use of photographs depicting him dancing with the woman. It found that the Claimant did not have a reasonable expectation of privacy at the time the photographs were taken, at a press night at a nightclub.

Resolved complaints since our last round up include: [Week commencing 20 August]: Mr Wayne Jenkins v The Sunday Times, Clause 1, 24/08/2012; Mr Adam Wood v Daily Mail, Clause 1, 23/08/2012; Mr Frank Kane v Newtownards Chronicle, Clause 3, 23/08/2012; Mr Serge Voronov v The Daily Telegraph, Clause 1, 23/08/2012; Mr Oliver Gray v Daily Mirror, Clause 1, 23/08/2012; Mr Oliver Gray v The Daily Telegraph, Clause 1, 23/08/2012; Linda Sutherland v The Sentinel (Staffordshire), Clause 3, 23/08/2012; A woman v The Independent, Clause 1, 23/08/2012; Full Fact v The Daily Telegraph, Clause 1, 23/08/2012, Mr Stephen Vincent Murray v The Herald (Glasgow) None 23/08/2012; Mrs Donna Smith v Derry Journal, Clauses 1, 2, 3, 5, 6, 23/08/2012; Dr Carol Steele v The People, Clauses 1, 12, 23/08/2012; Mr Arnaud Mafille v Daily Mail, Clause 1, 20/08/2012.

[Week commencing 13 August] Full Fact v Evening Standard, Clause 1, 17/08/2012; Joseph Horner v The Observer, Clause 1, 16/08/2012; Mr Christopher Mackin v Daily Mail, Clause 1, 15/08/2012; Jane Hughes v The Independent on Sunday, Clause 1, 15/08/2012; Dr Yannis Alexandrides v Daily Mail, Clause 1, 15/08/2012; Mr Oliver Gray v Daily Mail, Clause 1, 15/08/2012; Alex Jarvis v Daily Mail, Clauses 3, 5, 15/08/2012; Inspired Thinking Group v Print Week, Clauses 1, 2, 14/08/2012; Teresa Kendal v Braintree & Witham Times, Clauses 1, 5, 13/08/2012.

For a full list, visit the PCC’s website.

Research & resources

Updates and additional resources for textbooks:

• Blackstone’s Statutes on Media Law
• McNae’s Essential Law for Journalists – 21st edition, McNaes.com

The Media Legal Defence Initiative now has a quarterly newsletter – sign up on its website here. Its first newsletter (July 2012) can be viewed here.

The latest issue of the Journal of Media Law has been published, Volume 4, Number 1, July 2012. Its articles include [by subscription only]:

• Reynolds Privilege and Reports of Police Investigations, pp. 1-10(10) Eric Barendt
  
• ‘It’s Hard for Me to Say I’m Sorry’: Apology as a Remedy in the South African Law of Defamation, pp. 11-16(6) Dario Milo
• Parliament Reports on the Law of Privacy and Injunctions, pp. 17-28(12) Kirsty Hughes
  
• Insulting Politicians on the Radio?, pp. 29-34(6) Ivan Hare
  
• Measuring Media Plurality in the United Kingdom: Policy Choices and Regulatory Challenges, pp. 35-63(29) Rachael Craufurd Smith,Damian Tambini
  
• An Appropriate Remedy for the Publication of False Private Information, pp. 93-115(23) John Hartshorne
  
• Truth and the Unnamed Source, pp. 117-145(29) Damian Carney
  

In the Courts

On Monday 30 July 2012 Tugendhat J handed down a joint judgment in seven privacy injunction cases from 2011: Goodwin, JIH, TSE, MJN, ETK, NOM and XJA (JIH v NGN and other cases [2012] EWHC 2179 (QB)). The judgment noted that injunctions granted against News Group Newspapers in 2010 and 2011 had been discharged by consent. In each case, the anonymity of the claimant was retained (except for Frederick Goodwin, formerly MNB but whose injunction was varied in 2011, see [2011] EWHC 1309 (QB) (23 May 2011)).

On the same day, Tugendhat J also handed down a judgment in EWQ v GFD [2012] EWHC 2182 (QB) (30 July 2012), which continued an earlier injunction preventing the Defendant from disclosing private information, and from harassing the Claimant. The claimant and defendant are both business people.

On the same day Eady J handed down judgment in Lord Ashcroft v Foley (heard 20 July 2012, (Lord Ashcroft KCMG v Foley & Anor [2012] EWHC 2214 (QB) (30 July 2012)). He described the two and a half-year litigation as having “an unfortunately long and tortuous history” and sets out the “unusual basis” for his judgment, in which he allowed the pleas of justification and fair comment to go ahead:

“Nonetheless, in the course of submissions on 20 July 2012, I believe that it did finally emerge sufficiently clearly what the Defendants intend to allege. I propose, therefore, to proceed on the basis of what I perceive to be the substance of the Defendants’ case, despite the fact that it has not been crystallised in writing. This is an unusual course to take, but to adjourn the matter for yet further drafts would hardly meet the overriding objective. I hope that the Claimant will know at last from this judgment what case he now has to meet. In these circumstances, I will give permission for pleas of justification and fair comment to go forward. That is not to say that the Claimant’s advisers should not have the opportunity of seeking further clarification in correspondence or by way of requests for further information” [4].

The judgment in SKA v CRH (heard in private on 10 and 11 July 2012) was handed down by Nicola Davies J on 31 July 2012 9 (SKA & Anor v CRH & Ors [2012] EWHC 2236 (QB) (31 July 2012). It followed Tugendhat J’s public judgment [2012] EWHC 766 (QB), which made an order against both defendants prohibiting disclosure of private information and harassment (see Case Comment here). Nicola Davies J granted a permanent injunction against the first Defendant:

“A permanent injunction is sought. In my view, two reasons underpin the need for such a measure. Firstly, the defendant’s denial of any of the alleged conduct. Secondly, the defendant’s statement about resorting to the mass media. I have no confidence that unless restrained by a permanent injunction there will not be an attempt by the defendant to disclose the private information contained in the November letter and documents. I am conscious that in making such an order it imposes a significant restriction upon the defendant but the information which he seeks to disclose is private, and this step is necessary to properly protect those affected by such disclosure” [65].

Please contact us with additional items for this section and we will update the round up.

Events

18 September 2012, 6pm, Law Society Public Debate Series, Triumph of Free Speech or Libeller’s Charter? – The Defamation Bill 2012.

20 September 2012, IBC Legal’s 18th Annual Protecting the Media conference, London.

27 September 2012, Conference5RB (media law & entertainment) London.

28 September 2012, LexisNexis Butterworths Intellectual Property in the Digital Enviroment, London.

28 November 2012, 6pm ‘CEL Annual Lecture 2012: Media Freedoms & Media Standards’, Baroness Onora O’Neill

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

Media Law in Other Jurisdictions

Ireland: The High Court has told Louis Walsh that he is entitled to discovery of documents “relating to the Sun newspaper’s coverage of Garda inquiries into allegations of a sex attack by him on a man in a nightclub toilet”, the Irish Times reports:

“Mr Justice O’Neill said that while journalistic privilege existed to protect the proper functioning of journalism, the allegations made by Mr Walsh relative to his claim for aggravated or exemplary damages, if true, could well merit the description of improper journalism.”

Walsh is suing Newsgroup Newspapers Limited for damages, including aggravated and exemplary damages, for defamation of character over an article published in print and online in June 2011.

United States: Andrew Wakefield, “who was struck off the medical register for professional conduct over allegations that the MMR vaccine was linked to autism, has failed in a bid to sue the British Medical Journal (BMJ) for defamation,” reported PA Media Lawyer. Wakefield, who now lives in Texas, sued for libel in the 201st District Court in Travis County, Texas. Judge Amy Clark Meachum found that the Texas court had no jurisdiction over the BMJ, its editor-in-chief Fiona Godlee, and journalist Brian Deer, and dismissed the case.

Mauritius: Dharmanand Dhooharika, the editor-in-chief of the Samedi Plus newspaper, has applied to the Judicial Committee of the Privy Council for permission to appeal against a three month jail sentence for the criminal contempt of scandalising the court (source: PA Media Lawyer).

Australia: The Supreme Court has upheld a ruling which found that comedian Mick Molloy had defamed former Labor party candidate Nicole Cornes in 2008, as reported by AAP here. Last year Molloy and Network Ten were ordered to pay Cornes $85,000 in damages, plus interest and costs, for defaming her on the television program ‘Before The Game’ in 2008, according to the Australian.

Canada: The Supreme Court of Nova Scotia has awarded damages of $425,000, an injunction, and costs against a blogger based in the US, for the defamation of two Nova Scotia business owners and their company, reports Michael V Coyle (Trout Point Lodge Ltd. v. Handshoe, 2012 NSSC 245 (CanLII).

Autumn dates

Royal Courts of Justice: The Michaelmas term runs from Monday 1 October to Friday, 21 December 2012.

The House of Commons is in recess. The House will next sit on Monday 03 September 2012. The House of Lords is in recess. The House will next sit on Monday 08 October 2012.

Judgments

The following reserved judgments after public hearings remain outstanding:

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

Miller v Associated Newspapers heard 21 to 25 May 2012 (Sharp J)

Qadir v Associated Newspapers heard 26 and 27 July 2012 (Tugendhat J)

KC v MGN; Cairns v Modi, heard 26 and 27 July 2012 (Lord Chief Justice, Master of the Rolls, Eady J)

Also recently posted on Inforrm …

• US Freedom of Expression and Media Law round-up – 27 August 2012 – Gervase de Wilde
• The Sunday Times, bravery and press freedom – Brian Cathcart
• US Law: The Blackmail Paradox – Eugene Volokh
• The Mail and the naked prince – Brian Cathcart
• New Zealand Law Commission: Ministerial Briefing on Harmful Digital Communications
• Prince Harry, Privacy and Naked Photos: what part of “private” do the press not understand?
• Announcement: Hacked Off recruiting for the next phase of its campaign
• What prompted concerns about extra-judicial blogging and how should new guidance be interpreted? – Judith Townend
• Let the Judges Blog – Adam Wagner
• News: Northern Ireland judge orders Facebook to identify account holders
• New South Wales: Qualified privilege falls short again – Graham Hryce
• The 10% libel damages increase: questions unanswered – Isabel Hudson
• General tort damages (including defamation) to increase by 10% from 1 April 2013 – Kim Waite
• “Hacked Off” Statement to Supporters: a New Beginning
• “Snooper’s Charter” Consultation – Paul Bernal
• Hunt/Black plan fails the Prime Minister’s Dowler/McCann test – Martin Moore
• Case Law: Faber v Hungary, Restriction on the display of flag during demonstration was a breach of Article 10 – Eloise le Santo
• South Africa: The five ingredients for a constitutional national security law – Dario Milo
• Inforrm Debate: Abolition of Libel Juries, Poll Results
• Analysis: Privacy cases re-visited, a year on from Super Injunction Spring – Judith Townend
• “Its not in the papers”: media reporting about media regulation

This 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.