On 17 April 2015, the Crown Prosecution Service issued a statement concerning its re-review of Operation Elveden cases. It announced that no further action would be taken in the cases of nine out of the twelve journalists awaiting trial or re-trial.
The decision follows the acquittals of three more tabloid journalists this week. Sun journalists Brandon Malinsky, Neil Millard and former Daily Mirror journalist Graham Brough were cleared of all charges after an eight-week trial.
Those who no longer face prosecution under Operation Elveden include former News of the World editor Andy Coulson. The CPS said it had decided to continue with the prosecutions of three Sun journalists; Jamie Pyatt, Chris Pharo and – in a separate case – Anthony France.
The CPS said the Court of Appeal ruling about misconduct in public office cases would be reflected in updated guidance for prosecutors deciding whether suspects should face charges. This fresh guidance will be applied in the five cases where suspects are currently under investigation and may face prosecution.
Roy Greenslade welcomed the news, but argued that the flawed nature of Operation Elveden should have been recognised long before now. He described the investigation as a “misconceived witch-hunt”.
The Sun’s reporting of Operation Elveden prosecutions and decisions has been remarkable even by the low standards of the British press. It has apparently been forgotten that the journalists only faced prosecution in the first place because their emails were handed over to the police by News Corporation’s Management and Standards Committee. The Zelo Street blog drew attention to a number of other hypocritical elements in the coverage.
With the general election just three weeks away, the main parties’ intentions for the world of media law are becoming clearer.
The Liberal Democrats have unveiled plans for a ‘public interest’ defence for journalists in their manifesto. The party would give legal protection to journalists who break the law to expose wrongdoing, and would give investigative reporters a public interest defence in court. The Sun reports Lib Dem leader Nick Clegg as saying that such a change “would provide peace of mind to journalists”.
The Open Rights Group has examined where the main parties’ manifestos stand on surveillance. They argue that Labour is “rather vague”, while the Conservatives want to “increase the surveillance powers available to the police and intelligence agencies”. The Liberal Democrats and the Greens give greater detail. Their analysis can be viewed here.
The Hawtalk blog has also examined the party manifestos and have extracted all relevant information on Data Protection, FOI, Digital rights, Human Rights, Leveson and mass surveillance.
In other news, a Freedom of Information Request revealed that Manchester Metropolitan University has spent almost £1.2 million in legal costs defending a libel action. The case was brought by one of the university’s own academics. A Lithuanian university also involved in the case settling for one-tenth of the sum.
A Blackpool supporter sued by club owner Owen Oyston and chairman Karl Oyston has apologised for comments made on the internet. Frank Knight, who published his apology on Facebook, is also paying £20,000 damages to the Oystons. He is the third Blackpool supporter to be sued by the family.
Data Protection and Data Privacy
The United Nations Human Rights Council has announced that it will appoint a new position as special rapporteur on the right to privacy. The position is intended to reaffirm the right to privacy and the right to the protection of the law against any interference on a person’s privacy, family, home or correspondence.
General Data Protection Regulation is on its way, but may take another year due to the complex and lengthy legislative procedure of the European Union. Fieldfisher’s Privacy and Information Law blog covers the process. It also covers the problem of EU data exports here.
The ECJ heard arguments, this week, in the action against the Irish Data Protection Commissioner that Safe Harbor should be declared invalid. The Dentons Privacy and Data Security Law Blog covers the case here.
Freedom of Information
Statements in Open Court and Apologies
There was a statement in open court in the case of Hourani v Persons Unknown on 16 April 2015.
Newspapers, Journalism and regulation
Daily Express owner Richard Desmond has donated £1m towards UKIP, on top of £300,000 donated to the party last year. Desmond said UKIP was a party for “good, ordinary British people”. Desmond donated £100,000 to the Labour Party in 2001.
Roy Greenslade reported on the donation here, arguing that it would be seen as unfair by Express Newspapers’ journalists, who have been denied a pay rise for seven years.
Last Week in the Courts
There were no hearings or judgments in media law cases last week. The application before Sir David Eady on 16 April 2015 in Watchtower Bible & Tract Society v Otuo was adjourned.
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
In the case of Gacic v John Fairfax Publications Pty Ltd ( NSWCA 99) the Court of Appeal in New South Wales allowed the appeal and cross-appeal on damages. The compensatory damages award was increased by Aus$20,000 and the same sum was awarded as exemplary damages. Taking into account Burstein particulars the majority reduced the damages by Aus$5,000 to take mitigation into account.
A consumer advocate who was spied on by the Commonwealth Bank is facing legal action. The bank is funding a senior executive’s defamation action against the advocate, Michael Fraser, who runs website The Arbitrator and uncovered a spying scandal related to the bank in October 2013. The legal action is understood to have used the discovery process to seek the names of CBA whistleblowers and correspondence with journalists.
The judgment in the case of Bernstein v Poon, (2015 ONSC 2125) concerned the costs order to be made after a successful libel trial at which the plaintiff had recovered Can$10,000. In a judgment of 62 paragraphs the judge concluded
Defamation litigation is a high stakes business, in large measure because the costs incurred by the parties will often exceed the monetary recovery. This case involved two egos, not just one. The plaintiff ruthlessly pursued the defendant. The defendant stubbornly refused to yield. Dr. Bernstein and Dr. Poon each enjoyed a measure of success but I would characterise the overall outcome as close to a draw. The exercise has cost them both a lot of money and, as noted in the reasons for judgment, has used a scarce public resource in doing so. The parties should each bear their own costs.
The Supreme court has put two cases against chief minister Arvind Kejriwal on hold this week, after Mr Kejriwal challenged the validity of a law that allows criminal proceedings in a defamation case. Criminal defamation law is currently under judicial scrutiny in India. The Hindu carries an editorial on the legal issues here
The libel suit against Africa Independent Television by a national leader of the All Progressives Congress has been adjourned by a Lagos State High Court. Politician Bola Tinubu had sued Daar Communications Plc, owner of AIT, for allegedly defaming him in a documentary entitled “The Lion of Bourdillon”.
The travel ban on a Japanese journalist on trial for defaming the South Korean President has been lifted. Former Seoul bureau chief of Japan’s Sankei Shimbun newspaper, Tatsuya Kato, was accused of defaming President Park Geun-hye in October.
The defamation trial against HBO over a “hoax” child labour report has begun with a statement by the attorney for Mitre Sports International. The company has accused the broadcaster of showing a report titled “Children of Industry” which was full of “fabricated” or “dramatized” scenes about the soccer brand.
In his opening statements, HBO’s lawyer admitted that the report may not have been “perfect.” But he said the report was `”responsible, if not generous to Mitre”. The jury also heard testimony from TV journalist Bryant Gumbel on Friday.
An Alabama blogger has been ordered to pay $3.5 million in a defamation lawsuit filed by a former campaign manager for Alabama Attorney General Luther Strange. The blogger had written about an alleged affair between Strange and the campaign manager.
A US wedding photographer has filed a defamation suit against her former clients, seeking US$1 million in damages for defamation. Photographer Andrea Polito claims the couple ‘engaged in a smear campaign’, and took ‘pride and pleasure in the harm they caused’.
Research and Resources
- MsLods; Round Up: Law + Technology, 15 April 2015.
- Serious spam: strike out under section 1 of the Defamation Act 2013 [pdf], Jennifer Agate, Farrer & Co
- The Citizens’ Internet: The Many Threats to Neutrality, Ralf Groetker, SSRN
Next week in the courts
On 20 April 2015 Warby J will hear applications in Baron & ors v Collins and Baron & ors v Vines.
On 23 April 2015 there will be an application in Decker v Hopcroft.
Our attention has been drawn to one libel trial this term, Frith v Wayne, on 18 May 2015, with a time estimate of 3 days.
As far as we are aware, there is only one other libel trial listed to take place before the end of the judicial year, Star v Ward, listed for 15 June 2015 with a time estimate of 10 days.
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)
Various Claimants v MGN, heard 9-13, 18, 24-25 March 2015 (Mann J)
His Highness Prince Moulay Hicham Bin Abdullah Al Alaoui of Morocco v Elaph Publishing Ltd heard 30 March 2015, Dingemans J
This Round Up was compiled by Tessa Evans, a journalist and researcher. She tweets @tessadevans