The most important decision of the week was that of the Grand Chamber of the European Court of Human Rights on 16 June 2015 in the case of Delfi AS v Estonia in relation to the liability of an online news portal for offensive reader comments.
Contrary to the arguments advanced by the applicant and a number of third party interveneers (including Article 19 and the MLDI) the Grand Chamber upheld the judgment of the Fifth Section and decided that there was no violation of Article 10. We had a post on the judgment from Dirk Voorhoof and there were a number of other comments on the judgment from, amongst others Lorna Woods, Neville Cox and Glyn Moody. The Tech Dirt website reflected a common view when it described the decision as a “huge loss for free speech in Europe”.
The trial of former News of the World deputy editor Neil Wallis continues at the Central Criminal Court. Martin Hickman continues to produce his regular (crowdfunded) reports on Byline:
It is reported that the libel claim by Saudi Arabian billionaire Prince Alwaleed bin Talal against the Forbes magazine group over its reporting on his fortune has been settled.
The Guardian reports that the CPS is reviewing the police file on the “Fake Sheikh”, Mazher Mahmood following an investigation into allegations of perjury and conspiracy to pervert the course of justice.
The Panopticon blog notes that the Scottish government has initiated a Consultation on further extension of coverage of the Freedom of Information (Scotland) Act 2002 (“FoIS”) to more organisations, specifically contractors who run privately managed prisons, providers of secure accommodation for children, grant-aided schools and independent special schools.
The prosecution is seeking an order for £750.000 costs against former News of the World editor Andy Coulson. Mr Justice Saunders said that it was important that any costs order meet with public approval, especially given “the financial restraints the government is currently imposing on the justice system.
Data Protection and Data Privacy
The Justice Ministers of the EU met on 15 and 16 June 2015 and adopted its amendments to the proposed General Data Protection Regulation. The Privacy and Information Law Blog summarises some of the key provisions adopted by the Council. There is also a post about the agreed text on the Privacy Europe blog.
The Hawktalk blog had a post entitled “Harmony? What harmony” Disharmony extends to one third of the Data Protection Regulation” – pointing out the degree of disagreement between Member States prior to the meeting.
The trilogue between the EU Council, the EU Parliament and the EU Commission will start on 24 June 2015.
On 18 June 2015, the Article 29 Working Party published its letters to the three parties with an Appendix [pdf] setting out its opinion on the core themes of the regulation. There was a post about this on the Privacy & Information Security Law Blog.
Datonomy has its Cyber Update for the week commencing 15 June 2015.
Statements in Open Court and Apologies
There were no statements in open court last week.
Newspapers, Journalism and regulation
Roy Greenslade has a piece in the British Journalism Review entitled “Man bites dog” concerning the hypocrisy of journalists and editors who like to dish out criticism in their newspapers but loathe it when they become the targets themselves. He concludes
If newspapers are doing their job, they should hold other newspapers to account. That isn’t treachery. It is not “self-indulgence”. It’s about transparency and, ultimately, about fulfilling their role in a democracy. … Editors need to grow thicker skins.
Last Week in the Courts
The trial in Starr v Ward began on Monday 15 June 2015 before Nicol J. The trial began with evidence from Mr Starr whose cross-examination by David Price QC was reported in the Daily Mail. The Press Gazette reported the Defendant’s evidence that she had told the truth about her encounter with Freddie Starr in Jimmy Saville’s dressing room when she was 15.
On Thursday 18 June 2015 there was yet another application in the case of Otuo v The Watchtower Bible and Tract Society of Britain which was heard by Sir David Eady. Judgment was reserved.
1 July 2015: “Bird & Bird’s Annual Data Protection Update” Bird & Bird, 15 Fetter Lane, London
13 July 2015, “800 years after the Magna Carta, do we have a Free Press?”, London Press Club.
Please let us know if there are any events you would like to be included on this list by email: firstname.lastname@example.org.
Media Law in Other Jurisdictions
In the case of Flegg v Hallett ( QSC 167 [pdf]) Peter Lyons J in the Supreme Court of Queensland awarded general damages of Aus$275,000 and special damages of Aus$500,000 to a former Queensland minister. The defendant was the plaintiff’s former media adviser who, in a 2012 press conference, had falsely alleged that the plaintiff had misled a parliamentary committee about his contact with his lobbyist son. The plaintiff resigned as a minister the next day and was dumped by the Liberal National Party before the election. There is a report of the judgment in the Guardian.
In the case of Moran v Schwartz Publishing  WASC 215 Kenneth Martin J struck out two paragraphs of the defence including prior publications relied on in mitigation of damage.
The trial in the case of Robinson v Furlong began on 15 June 2015 in the Supreme Court of British Columbia. The plaintiff is a freelance journalist and the defendant is the former CEO of the Vancouver Olympics. There was a report in the Globe and Mail.
The Digital Privacy Act was passed by the House of Commons on 18 June 2015 (having previously passed the Senate). It brings in amendments the Personal Information Protection and Electronic Documents Act (PIPEDA) including mandatory breach notification, and requirements on record keeping. The passage of the bill was noted on the Privacy and Data Security Law Blog, the Canadian Privacy Law blog and the Law of Privacy in Canada Blog.
The Irish Independent reports that Christopher Sower has won a defamation claim against Boylesports betting shop after he was refused a bet after having been mistaken for another customer who had “wrecked the place” a few days earlier. The District Court awarded Mr Sower €5,000 damages.
The Prime Minister Najib Razak and his wife Rosmah Mansor have initiated a libel suit against an opposition MP, Nga Kor Ming for alleging that that the prime minister’s wife attended Cabinet meetings.
In the case of Ayers v LexisNexis New Zealand ( NZHC 1348) the High Court struck out part of a claim for libel and ordered security for costs in the sum of NZ$20,000.
The privacy claim brought by wrestler Hulk Hogan against the “Gawker” gossip website arising out of the publication of a sex tape is due to commence in a Florida Court on 6 July 2015. Eric Goldman commented to the Fusion website
“Right now there’s an ‘anything goes’ mentality when it comes to publishing information about celebrities. If Gawker loses, we might begin to see some rethinking of that mentality.”
Hogan (whose real name is Terry Bollea) is seeking US$100 million damages. The case will be heard by a judge and jury.
Research and Resources
- Compensation And/Or Correcting the Record: A Framework for the Regulation of (Defamatory) Speech Media & Arts Law Review, Vol 16, (2011) 123-43, Chris Dent , Murdoch University – School of Law
- Privacy and the Canadian Media: Developing the New Tort of ‘Intrusion Upon Seclusion’ with Charter Values Western Journal of Legal Studies, Vol. 2, No. 1, 2012, Jared A Mackey, University of Toronto – Faculty of Law
- A Primer on the Law of Internet Communication and Content: From the UK and Dutch Perspective, Dialogos de Saberes, 2015, Arno R. Lodder and A.D. Murray, Vrije Universiteit – Dep. Transnational Legal Studies – CLI/Center for Law and Internet and London School of Economics – Law Department
- Searching for Reputation: Reconciling Free Speech and the ‘Right to Be Forgotten’
Forthcoming, 17 N. C. J. of Law and Tech. (Oct. 2015), Jeffrey Abramson, University of Texas at Austin
Next week in the courts
The trial in the matter of Starr v Ward will continue this week before Nicol J.
There will be an application in the case of Decker v Hopcraft on 23 June 2015, an application in the case of Rio Tinto v Vale on 25 June 2015 and an application in Verrai v Goff on 26 June 2015.
The trial in the case of Dufour v News Group, which was due to commence on 22 June 2015 has been adjourned to a date to be fixed next legal term.
The following reserved judgment in media law cases are outstanding:
Pinard-Byrne v Linton, heard 22 April 2015 (Judicial Committee of the Privy Council).
Masters v Palmer, heard 5 May 2015 (HHJ Moloney QC).
Otuo v Watchtower Bible and Tract Society, heard 14 May 2015 (HHJ Moloney QC).
Ma v St George’s Healthcare Trust, heard 8-10 June 2015 (Sir David Eady)
Lachaux v Independent Independent Print, heard 11 June 2015 (Nicol J)
Otuo v The Watchtower Bible and Tract Society of Britain, heard 18 June 2015 (Sir David Eady)