Media and Law Review of the Year, 2014: Part 1: The Cases – defamation, privacy and Google

The last year was, again, a relatively quiet one in the English media law courts, with the predicted flood of litigation seeking to work out the meaning of the newly in force Defamation Act 2013 failing to materialise and privacy activity continuing at a relatively low level.

Defamation

Our Table of Media Law cases records only 43 decisions of all kinds in defamation cases in 2014 (down from 52 in 2013). There were none in the Supreme Court, 5 in the Court of Appeal and 38 at first instance.

The Defamation Act 2013 came into force on 1 January 2014 but was considered in very few cases, most importantly in the context of the trial of a preliminary issue as to “serious harm”:

• Cooke v MGN [2014] EWHC 2831 (QB) – in which Bean J (elevated this year to the Court of Appeal) applied a high standard of “serious harm” and dismissed the claim. We had a post about this decision which is generally regarded as the most important libel case of 2014.

There were no libel jury trials in the year and only one full trial by judge alone.

• Garcia v Associated Newspapers [2014] EWHC 3137 (QB). A Spanish GP based in Hastings, Dr Jose Antonio Serrano Garcia, won libel damages of £45,000 in an action against the Daily Mail based on an April 2012 column by Kelvin MacKenzie.

In addition, there were two hearings at which damages for libel were assessed after judgment had been entered:

• Kadir v Channel S [2014] EWHC 2305 (QB) – damages of £40,000 were awarded. We had a post about this decision.
• ReachLocal v Bennett [2014] EWHC 3405 (QB) – general and special damages in the total sum of £443,000 were awarded. We had a post about the decision.

There was one high profile trial of preliminary issues in a libel trial involving a politician and a national newspaper:

• Mitchell v News Group Newspapers; Rowland v Mitchell [2014] EWHC 4015 (QB). In ruling given immediately after the conclusion of the trial Mitting J found that Andrew Mitchell MP did call police officers plebs.  Final judgment in Mr Mitchell’s libel action and the “mirror” action brought by PC Rowland is awaited but, in the light of the ruling, the final result seems inevitable.  We had a post about the judgment and some of the media coverage.

In addition, there were nine cases in which meaning was determined as a preliminary issue:

• RBoS Shareholders Action Group v News Group Newspapers [2014] EWHC 130 (QB)
• McEvoy v Michael [2014] EWHC 701 (QB) – a decision about meaning and comment in the context of political speech and the subject of a post by Anthony Hudson.
• Building Register v Weston [2014] EWHC 784 (QB)
• White v Express Newspapers (No.2) [2014] EWHC 814 (QB)
• Johnston v League Publications Ltd [2014] EWHC 874 (QB)
• Contostavlos v NGN [2014] EWHC 1339 (QB)
• Donovan v Gibbons [2014] EWHC 3406 (QB)
• Hamaizia v Commissioner of Police (No.2) [2014] EWHC 3408 (QB)
• Al Saud v Forbes LLC & Ors [2014] EWHC 3823 (QB)

With only a few exceptions, the determination of meaning in these cases resulted in a swift settlement of the case.

There is one other case which is, perhaps, worth mentioning: Yeo v Times Newspapers [2014] EWHC 2853 (QB).  In this case Warby J (appointed in June 2014) refused an application for trial by jury in a claim by a politician against a national newspaper.  It was, as Alan Richards put it, the case which buried the Seven Bishops.

Privacy

There was even less activity in the privacy field.  The official statistics [pdf] showed no privacy injunctions in the first half of the year. The only one against the mainstream media was the case of AMM v News Group [2014] EWHC 4063 (QB) – granted on 29 November 2014 and, as noted in our news post, the first against the media for nearly two years.

There were final determinations in two privacy cases in 2014:

• NNN v Ryan [2014] EWHC B14 (QB) – summary judgment in favour of the claimant.
• Weller v Associated Newspapers [2014] EWHC 1163 (QB) – judgment for the claimant after a trial. We had a case comment on this case and related posts about image rights and the position under German law. There is an appeal to the Court of Appeal pending.

There was a failed strike out application in the case of Hannon v News Group Newspapers [2014] EWHC 1580 (Ch).  We had a case comment on this by Dominic Crossley.

There was one privacy case in the Court of Appeal, PNM v Times Newspapers [2014] EWCA Civ 1132.  We had a case comment on this.  The claimant has sought permission to appeal to the Supreme Court and a decision is awaited.

The managed phone hacking litigation arising out of the activities of News of the World journalists and investigators has now run its course, with almost all the claims having settled.  There is now new managed litigation against Mirror Group, with a trial of a number of claims due early in 2015.

There were several hearings in 2014.  We noted one hearing which took place on 28 October 2014 and which resulted in a judgment of Mann J – Various Claimants v MGN [2014] EWHC 3655 (Ch)).

Google

The most important media law case of the year was not decided in the English Courts, but rather in Luxembourg, by the Court of Justice of the European Union.  This was the case of Google Spain v González [2014] EUECJ C-131/12 (13 May 2014).  We have had many posts about this case including

• Google v Spain, landmark ECJ decision in relation to freedom of expression and the right to be forgotten – Lorna Woods
• Google Spain and the EU’s data protection Directive – Steve Peers
• Google Spain: whatever happened to freedom of expression? – Guy Vassall-Adams
• Does Google Spain drive a coach and horses through the safe harbour defences? – Ashley Hurst
• Dutch Google Spain ruling: More Freedom of Speech, Less Right To Be Forgotten For Criminals – Joran Spauwen and Jens van den Brink
• Google Spain: Article 29 Working Party Issues Guidelines for De-Listing Decisions
• Google Spain, the missing link: where do third parties stand in the “right to be forgotten”? – Stacie Walsh

There were two important domestic cases involving Google

• Vidal-Hall v Google Inc [2014] EWHC 13 (QB) – which decided that misuse of private information is a tort and upheld an order for permission to serve Google out of the jurisdiction. We had a post about the decision.  Google’s appeal against this decision is currently part heard.
• Hegglin v Persons Unknown and Google Inc [2014] EWHC 2808 (QB) – in which permission to serve Google out of the jurisdiction was granted and an expedited trial was ordered. settled before the commencement of the trial on Monday 24 November 2014 and a short Statement in Open Court [pdf] was read.

Other

The most controversial media related decision of the year was perhaps OPO v MLA [2014] EWCA Civ 1277 – the decision of the Court of Appeal to ban a book by granting an injunction in the tort in Wilkinson v Downton.  This produced our most popular post of the year – Dan Tench’s full frontal attack on the decision, “Shock and disbelief at the Court of Appeal“.  The year ended with the Supreme Court granting permission to appeal and expediting the hearing, so that is now due on 19 January 2015.

In our round up last year, we mentioned the fact that the Government consulted on proposals for costs protection in defamation and privacy claims.  We suggested that it was likely that recoverable success fees and after the event insurance will be abolished in defamation and privacy cases in the spring of 2014.  In fact, despite a few rumours, there has been nothing said officially about this consultation and it seems likely that no action will now be taken this side of the election.  So libel CFAs have, against the odd, survived another year.

And during this year we noted the retirement, on 2 June 2014, of Mr Justice Tugendhat  – who had been the judge in charge of the jury list since 1 October 2010 and had decided many of the important defamation and privacy cases over that period.  At the end of the year his position as judge in charge of the jury and non-jury lists remains vacant.