Law and Media Round Up – 15 October 2012

We lead with criminal, rather than civil, law developments relating to media and communications. There have been a spate of prosecutions relating to social media use: a teenager from Lancashire was imprisoned for sick and grossly offensive jokes on his Facebook page about the missing 5 year old April Jones and Madeline McCann; in the same week, Azhar Ahmed was sentenced to 240 hours of community service for posting an offensive update to his Facebook page about British soldiers in Afghanistan, following the death of six British soldiers.

Both were convicted under s127 of the Communications Act 2003. Eloise le Santo reported these and other developments here, for Inforrm, arguing that “S127 represents an unnecessary and chilling encroachment on free speech and the increasing prosecutions under this legislation should be cause for serious concern“.

The DPP has been holding a series of round table debates with industry figures discussing the law in this area. Separately, in a podcast available here, legal blogger Charon QC discusses the issues with John Cooper QC, who led the team in the well-known “Twitter joke” case, Chambers v DPP [2012] EWHC 2157.

The Defamation Bill has received its second reading in the House of Lords. The Committee stage, which includes line by line examination of the Bill, is yet to be scheduled.

The words complained of in libel claim brought by Elton John against The Times “are not capable of bearing the meanings attributed to them by the claimant or any other meaning defamatory of him“, according to Mr Justice Tugendhat in John v Times Newspapers [2012] EWHC 2751 (QB). John sued the Times over articles about tax avoidance schemes. The judge had to find whether the words complained of are capable of being understood at one of the three Chase levels: 1 (actual guilt), 2 (reasonable suspicion of guilt) and 3 (grounds to investigate whether there is guilt). He rejected that the words could bear a chase level 1 or 2 meaning. On the chase level 3 meaning, he found that “some readers might infer something to the discredit of the Claimant to be investigated“, but accepted the Defendant’s submission “that a hypothetical reader of The Times who inferred that would be outside any definition of the reasonable reader which a jury could apply without perversity“.

The online travel review website TripAdvisor, give up its jurisdictional challenge in a case brought in a Scottish small claims court by guesthouse owner Richard Gollin, the Herald has reported, as does the Hebrides News here.

Richard Horton, the police detective who was outed as the author of an anonymous blog about his police work has settled his claim of breach of confidentiality, misuse of private information and deceit against The Times and accepted £42,500 in compensation plus legal costs. David Allen Green reported on this latest development and comments on the case at the New Statesman here.

Statements in Open Court and Apologies

On 2 October it was reported by the BBC that the actor Nicolas Cage had won an apology and undisclosed damages from MailOnline following article published on 1 September called him a “tax evader”. TabloidWatch comments on developments here.

We are not aware of anything further to report in this section. Please alert us with any relevant listings: inforrmeditorial@gmail.com.

Journalism and regulation

There are no new PCC adjudications to report, but numerous resolved cases:

Honest Reporting v Daily Mail, Clause 1, 12/10/2012; Susan Weeks-Wade v York Press, Clause 1, 12/10/2012; Adrian Evans v The Times, Clause 1, 12/10/2012; Mr Iain Simcock v Souther Reporter, Clauses1, 2, 3, 12/10/2012; A woman v The Sun, Clause Clause 1, 12/10/2012; Mr Berwyn Jay v Daily Mail, Clause 1, 12/10/2012; Michael Ludlam v Daily Mail, Clause 1, 12/10/2012; Dr JG Flood v Daily Mail, Clause 1, 12/10/2012; Mr Iain Simcock v The Scottish Sun, Clauses 1, 2, 3, 12/10/2012; Mrs Sarah Catt v Daily Mail, Clauses 1, 3, 4, 9, 12/10/2012; Naomi Thomas v Metro, Clauses 1, 3, 12/10/2012; Cllr Gerald Vernon-Jackson v The Daily Telegraph, Clause 1,12/10/2012; Mr Gary Benardout v Daily Mirror, Clause 1, 12/10/2012; Mr Gordon Bell v The Independent; Clauses 1, 2, 12/10/2012; Lisa Duller v Metro Clauses 1, 12, 10/10/2012; Miss Naomi Bloomer v Herald Series (Oxfordshire), Clause 1, 09/10/2012; Bacs Payment Schemes Ltd v Daily Mail, Clause 1, 08/10/2012.

An anonymous piece in the Observer discusses a “culture of casual sexism and harassment” in the television industry, following the recent Jimmy Savile allegations.

Moderators on Reddit’s politics site r/politics banned links from Gawker Media, as Poynter reported. Memeburn has a good summary here, and here’s the Gawker piece at the heart of it.

Research & resources

• Podcast, ‘Data Protection and Social Networks’: Dr. Ian Brown, Senior Research Fellow, Oxford Internet Institute, with an analysis of the interface between Data Protection regulation and social networking. Part of the OxPILS series ‘Mending the Tangled Web? Informational Privacy 3.0’.
• The online legal resource sites, LawBore and LearnBore have re-launched with a new design. They act as a digital portal for City University Law School, but content is open to all.
• Declaration on Parliamentary Openness launched at the World e-Parliament Conference 2012 [via the Democratic Society blog]
• New paper: Lothar Determann: ‘Social Media Privacy, A Dozen Myths and Facts’, The Stanford Technology Law Review
• Academic blog post: Daniel Solov: ‘Do Young People Care About Privacy?’

In the Courts

On 10 October 2012 Tugendhat J handed down judgment in the case of John v Times Newspapers [2012] EWHC 2751 (QB). The claim was dismissed on the ground that the words complained of were not capable of bearing a defamatory meaning (see above).

There was a hearing in the Voicemail Interception litigation before Vos J on 11 October 2012. The judge gave further directions and made orders in relation to costs.

On the same day there was a hearing in the case of McCann v Bennett – relating to the claimants’ committal application. The defendant’s application for an adjournment was refused and the court ordered that the claimants’ committal application would be heard as soon as practicable but with penalty only being determined after any libel trial.

There was a case management conference in the case of Hunt v Times Newspapers on 12 October 2012.

Events

18 October, 10.30am, The Communications Data Bill: ‘Snoopers’ charter’, or safeguarding our security? Index on Censorship and the Global Network Initiative. Free Word Centre, London.

22 & 29 Oct, 7.30pm, Rich Peppiatt: One Rogue Reporter, Soho Theatre, London.

24 October 2012, 6pm, Ten Years On – The Iraq Dossiers: Who Was Damaged Most by Hutton?, Media Society debate with Kevin Marsh, former editor ‘Today’; Peter Oborne, Lance Price, Professor Steven Barnett, Professor Jean Seaton (Chair: Steve Hewlett). University of Westminster, London.

25 October 2012, After Leveson: Annual Conference of the Institute of Communication Ethics (from 9.30am); Media Society debate (3.30pm); launch of The Phone Hacking Scandal: Journalism on Trial (Abramis),second edition. Frontline Club, London.

13 November 2012, 6.30pm, ‘Regulating for Communication’, Baroness Onora O’Neill, Goldsmiths University, London.

19 November 2011, all day, Media and War: challenging the consensus, Goldsmiths University, London.

19 November 2012, The Poetry of Free Expression: Celebrating 40 years of Index on Censorship, Index on Censorship / Poet in the City. King’s Place, 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 autumn? Please let Inforrm know: inforrmeditorial@gmail.com.

Media Law in Other Jurisdictions

Australia: Robert Clark, Victorian Attorney-General, will lead a working group to create national guidelines on social media, following concern that comments on social media will damage the fair trial of a man accused of murdering the ABC journalist Jill Meagher. A detailed piece on PBS MediaShift discusses events here. A magistrate issued a suppression order on publication of prejudicial content about the man charged with the murder, which includes social media content. Jill Meagher had moved to Australia from Ireland three years ago.

In the case of Harbour Radio v Trad [2012] HCA 44 the High Court of Australia allowed the defendant’s appeal, holding that most of the broadcast complained of was protected by “reply to attack” qualified privilege. Certain matters concerning the defence of truth were remitted to the lower court.

India: Louise Khurshid, the wife of Salman Khurshid, is pursuing a defamation claim against the TV Today group for a programme on its ‘Headlines Today’ and ‘Aaj Tak’ channels which alleged financial irregularities relating to a trust run by the couple. The Times of India reports here.

Scotland: A man who was wrongly labelled a criminal “lifer” in council files has been granted legal aid in his defamation claim. It marks the first time that legal aid has been given in a defamation case, following a legislative direction in civil legal aid law in 2010, according to the Herald.

Sweden / Ethiopia: In December 2011, an Ethiopian court found two Swedish freelance journalists guilty of entering Ethiopia illegally and assisting a rebel group. They had been travelling to the politically unstable southern Ogaden region. On 14 September 2012 they returned home after being imprisoned for 438 days. Poynter has interviewed the journalists, Martin Schibbye and Johan Persson, here.

United States: In Seaton v. TripAdvisor, LLC, 2012 U.S. Dist. LEXIS 118584 (E.D. Tenn. August 22, 2012), the district court found that 2011 Trip Advisor “Dirtiest Hotels” ranking constituted hyperbolic opinion and rhetorical exaggeration and was therefore not actionable under Tennessee defamation law, as this post on Proskauer’s new media and technology blog explains.

Next week in the courts

On Monday 15 October 2012, Tugendhat J will hand down judgment in the case of BUQ v HRE.

Two libel trials begin on Monday 15 October 2012. The first is the trial of Frankie Boyle v MGN – before Eady J and a jury, which is the second libel jury trial this year. The Mirror summarises the case as follows:

“Frankie Boyle is taking legal proceedings against us for the description of him as a ‘racist comedian’. He claims it is untrue and defamatory. We are defending this claim on the basis of truth and fair comment. We are also defending his claim that we libelled him by suggesting that ‘he was forced to quit Mock the Week’ in 2009.”

Secondly, there is the trial in the case of Spiller v Joseph – case which went to the Supreme Court in 2010 on the question of “comment” ([2010] UKSC 53). This is to be tried by Tugendhat J sitting without a jury.  The claim is for special damages arising out of the loss of two contracts by the claimants.  There is an issue as to whether the words complained of are defamatory.  The defendants rely on  defences of justification and honest comment and the claimant contends that the defendants were actuated by malice.  The trial was originally due to commence on 8 June 2009. It was listed for jury trial but the defendants have now consented to trial by judge alone.  It is estimated that the trial will take 3-4 days.

Next week in Parliament

Tuesday 16 October 2012, 10.30am, Culture, Media and Sport, Subject: Channel 4 Annual Report 2011. Witness(es): Lord Burns, Chairman, Channel 4 and David Abraham, Chief Executive, Channel 4. Location: Room 5, Palace of Westminster, House of Commons.

Tuesday 16 October 2012, 3pm, Draft Communications Data Bill. Subject: Draft Communications Data Bill. Witness(es): Sir Paul Kennedy, Interception of Communications Commissioner, Interception of Communications Commission and Joanna Cavan, Chief Inspector, Interception of Communications Commission; Christopher Graham, Information Commissioner, ICO. Location: 4A, House of Commons.

Wednesday 17 October, 3pm, Draft Communications Data Bill. Subject: Draft Communications Data Bill. Witness(es): Jamie Bartlett, DEMOS; Lord Carlile of Berriew, Former Independent Reviewer of Terrorism Legislation Subject: Draft Communications Data Bill. Witness(es): Jamie Bartlett, DEMOS; Lord Carlile of Berriew, Former Independent Reviewer of Terrorism Legislation. Location: 4A, House of Commons.

Thursday 18 October, Draft Communications Data Bill Joint Committee. Subject: Private meeting. Witness(es): Committee visit to the Metropolitan Police Service.

Judgments

The following reserved judgments after public hearings remain outstanding:

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

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

Also on Inforrm last week

• The Savile affair and the media – the watchdog which didn’t bark
• “Everybody’s Hacked Off”, Chapter 1 – Brian Cathcart
• Ireland: When ‘we dance’ to the High Court for an injunction – Eoin O’Dell
• The Mail’s Way with Words – Brian Cathcart
• Beyond a joke? Social Media, free speech and “grossly offensive” communications – Eloise le Santo
• Privacy, Lessons from 1890 – Richard Ridyard
• Journalisted: week ending Sunday 7 October 2012, Savile, April and Militants
• Case Law, New Zealand, C v Holland, Court recognises “intrusion on seclusion” privacy tort – Hugh Tomlinson QC
• Fighting anonymity with anonymity: open justice and cyberbullying – Eoin O’Dell
• The Many Mythologies of Press Freedom, Part 1, Free Speech and the “Sun” – Julian Petley
• The Many Mythologies of Press Freedom, Part 2, Media Self-Censorship – Julian Petley

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.