There were three important decisions of the appellate courts handed down this week, covering freedom of information, data protection and the common law offence of misconduct in public office as applied to journalists paying public officials.
First there was the long awaited decision of the Supreme Court in R (Evans) v HM Attorney-General ( UKSC 21) concerning letters written by Prince Charles to seven government departments. The Supreme Court held that they can be released.
The ruling comes after a ten-year legal battle by The Guardian and journalist Rob Evans to get the letters released under the Freedom of Information Act. We had a post on the decision. The request has travelled through various government departments, the Information Commissioner, the Upper Tribunal, the Attorney General and up through the courts. The prince’s office at Clarence House said it was “disappointed the principle of privacy had not been upheld”.
The judgment marks an important development in FOI jurisprudence, as it makes clear that Government cannot trump the decisions of the court when it takes a different view of the facts of the case. The Panopticon blog discusses why the judgment went Evans’ way here. Information Commissioner Christopher Graham welcomed the decision, saying that it “offered greater clarity on a law that, just ten years on from its implementation, is still in its relative infancy”.
Second, there was the important data protection decision in Vidal-Hall v Google Inc ( EWCA Civ 311). Google’s appeal against Tugendhat J’s decision, granting three claimants permission to sue Google over an alleged privacy breach was dismissed. The Court of Appeal held that misuse of private information is a tort and, importantly, disapplied section 13(2) of the Data Protection Act 1998. This opens the way for distress damages claims for data privacy breaches. The Panopticon blog outlines the legal issues and consequences for Data Protection in the UK here
Third, there an important decision of the Court of Appeal, Criminal Division in the case of R v ABC and others  EWCA Crim 359. This was an appeal arising out of the convictions of journalists for paying public officials. These convictions were quashed on appeal. The former News of the World reporter was given a six-month suspended sentence after being found guilty at the Old Bailey last November. The sentence was quashed this week after the Lord Chief Justice found that the trial judge had misdirected the jury on a key aspect of the offence.
There is one Operation Elveden trial presently before the courts. Sun news editor Brandon Malinksy has told the Old Bailey that he relied on his “moral compass” when approaching contacts at Pentonville Prison. Malinksky is accused over allegations that a prison officer was paid for tips about pop star George Michael. He told jurors that during his legal training the issue of public officials never arose and he was never given any guidance about who could be paid.
The death has been announced of Anthony Scrivener QC, a barrister with wide ranging common law practice, which included media law cases. There were obituaries in the Times [£] and the Daily Telegraph.
Data Protection and Data Privacy
Organisations should begin to prepare for new EU privacy rules, according to the ICO. Optanon discusses the upcoming changes and the importance of organisations knowing their data. It also has a post on “Online Tracking and Data Protection Regulation”.
The Datonomy blog has a post on the future of the cookie.
Statements in Open Court and Apologies
There were three statements in open court last week. On 24 March 2015, there was a statement in Open Court in the case of Asfari v MGN. On the same day there was a statement in open court in the case of Harrison-Allan v Newsquest SIOC. There was also a statement in open court in the case of Optical Express v Associated Newspapers. Some information about this can be found on the Optical Express website.
Newspapers, Journalism and regulation
The Independent Press Standards Organisation has ruled that the investigation into Conservative MP Brooks Newmark by Guido Fawkes and the Sunday Mirror was justified. The story was published after a Guido Fawkes reporter posed as a “twentysomething Tory PR girl” on Twitter and exchanged explicit photographs with the Minister. Roy Greenslade wrote an article criticising the ruling, arguing that IPSO should have interviewed Guido Fawkes reporter Alex Wickham in order to test the claim that he was no engaging in a fishing expedition, which would have placed him in breach of the editors’ code of practice.
Last Week in the Courts
On 24 March 2015 Warby J handed down judgment in the case of Rufus v Elliott ( EWHC 807 (QB)). The action was dismissed as the words complained of did not bear a defamatory meaning. There was a 5RB case note.
Closing submissions in the Mirror Damages trial were heard on 24 and 25 March 2015. Judgment was reserved.
On 25 March 2015, Warby J handed down judgment in the privacy injunction case of YXB v TNO ( EWHC 826 (QB)). The privacy injunction was discharged on the ground of non-disclosure. There was a 5RB case note.
As already mentioned, on 26 March 2015 the Supreme Court handed down judgment in the “Prince of Wales” letters FOI case of R (Evans) v HM Attorney-General ( UKSC 21), heard 24 and 25 November 2014.
On the same day Dingemans J handed down judgment in the case of Owens v Grose  EWHC 839 (QB), dismissing the claimants’ appeal against an order for summary judgment in a libel case.
29 April 2015 Advertising & Marketing Law Conference, IBC Legal Conferences, London
12 May 2015, IBC’s 22nd Annual Defamation and Privacy Conference, Grange City Hotel, London
Media Law in Other Jurisdictions
The long running case of Liu v The Age Company Ltd was back before the Courts on 23 March 2015 when McCallum J agreed to stay a previous order requiring The Age and its journalists Richard Baker, Philip Dorling and Nick McKenzie to reveal the identity of three sources in a series of stories about Ms Liu and Labor MP Joel Fitzgibbon ( NSWSC 276). The stay was granted on the basis that the defendant agreed to abandon the defence of qualified privilege. The case continues. There was a report of the latest hearing in the Sydney Morning Herald.
In the case of Ryan v Random House Australia  NSWDC 31, the District Court of New South Wales struck out a number of imputations in a libel action brought by a 95 year old plaintiff in respect of a book dealing with his activities in the 1970s.
In the case of Self v Baha’i 2015 NSSC 94 the Supreme Court of Nova Scotia discharged a cyber protection order which had been made ex parte, holding that a finding of cyber-bullying required proof of malice.
The Canadian Privacy Law Blog shared a presentation on cyber-bullying for Family Law practitioners here.
Georgia’s Supreme Court has ruled against a woman who claimed she was stalked online. Linda Ellis described having photos of her home, financial information and family members’ names posted online. However, the state’s supreme court ruled that Ellis was never spoken to directly, and overthrew the lower court ruling.
Acting on a request from the Justice Department to prevent the airing of U.S. national security secrets, a federal judge in Manhattan threw out a Greek shipping tycoon’s libel lawsuit against an anti-Iran group. “The Court is convinced that further litigation of this action would impose an unjustifiable risk of disclosing state secrets,” wrote the judge.
Research and Resources
- Defamation on Facebook: Isparta v Richter 2013 6 SA 529 (GP), Potchefstroom Electronic Law Journal, Vol. 17, No. 6, 2014, Anneliese Roos and Magda Slabbert, SSRN
- Going ‘Below the Waterline’: The Paradoxical Regulation of Secret Surveillance in the UK LSE Law – Policy Briefing Paper No. 9, Bernard Keenan.
- MsLods’ News Round-Up: Law + Technology Round Up, 29 March 2015.
- ISP Liability Blog: Spanish Case Law & More (and a slightly different version in Spanish).
- Spanish cases dealing with Internet intermediaries liability.
- Peep Beep! – a blog dedicated to privacy and information security law.
- Libel and Slander update – Defamation Act 2013, Jonathan Barnes, Law Society Gazette.
Next week in the courts
On 30 March 2015, Dingemans J will hear an application in the case of His Highness Prince Moulay Hicham Bin Abdullah Al Alaoui of Morocco v Elaph Publishing Ltd. The background to the case can be found here.
On 1 April 2015, Nicola Davies J will hand down judgment in Lachaux v AOL Ltd.. On the same day Nicol J will give judgment in relation to the reporting restrictions in R v Incedal.
The following reserved judgment in media law cases are outstanding:
OPO v MLA, heard 19 and 20 January 2015 (UK Supreme Court)
Murray v Associated Newspapers, heard 21 January 2015 (Longmore, Ryder and Sharp LJJ)
Coulson v Wilby heard 6 March 2015 (Warby J).
This Round Up was compiled by Tessa Evans, a journalist and researcher. She tweets @tessadevans