On 17 July 2015, the Divisional Court declared that section 1 of the Data Retention and Investigatory Powers Act 2014 was inconsistent with EU law and made an order for disapplication suspended until 31 March 2016. The Government has indicated its intention to appeal.
The two lead claimants, David Davis MP and Tom Watson MP, were represented by Liberty. We had a case note about this decision and there were comments from interveners Open Rights Group. from Paul Bernal and on the UK Human Rights Blog (David Hart QC).
In a post published before the decision, Graham Smith writes about “Red lines and no-go zones – the coming surveillance debate”.
The remarkable media stories of the week was the Sun’s front page story entitled “Their Royal Heilnesses” showing stills from an apparently stolen private cine film from 1933. The lack of public interest justification for this publication of a private film is demonstrated by the Sun’s own statement
“While there is clearly no suggestion that the Queen or Queen Mother were ever Nazi sympathisers, Edward’s links with Hitler and fascism are very well documented“.
On 14 July 2015 judgment was handed down in another non-media libel case Steve Paris and Angel Garden v Andrew Lewis and Melanie Byng [pdf]. HJJ Seys Llewellyn QC handed down judgment dismissing the claims. The first defendant has provided his perspective on the case on his blog The Quackometer. This was the fifth libel case of 2015 – so far the claimants have won two and the defendants have won three (for the others see our post on Starr v Ward).
On 15 July 2015 Mirror journalist Lee Harpin was arrested on suspicion of phone hacking. He is the fifth journalist arrested in relation to allegations of phone hacking at the Mirror with fourteen having been interviewed under caution. There was a piece about the arrest on the Zelo Street blog
Data Protection and Data Privacy
The Privacy and Information Law blog has an interesting post entitled “Unravelling the mysteries of the GDPR trilogues”.
The Hawktalk blog suggests that the Council of Ministers text of the GDPR negates the ECJ rulings in Lindqvist and Ryneš.
In a written statement to Parliament the Parliamentary Secretary for the Cabinet Office made a statement about a new Commission on Freedom of Information. The Commission will be chaired by Lord Burns and will report by the end of November 2015. The Commission has a webpage. There is a post about the review on the Panopticon blog.
Statements in Open Court and Apologies
There were no statements in open court last week.
Newspapers, Journalism and regulation
There has been considerable comment this week about the new Green Paper on the BBC. Roy Greenslade has a post “The BBC’s future: what the national newspapers, predictably, say”. The Media Blog has a post entitled “It is time to back the BBC, not pick it apart”.
Last Week in the Courts
On Monday 13 July 2015 Judge Wikeley sitting as the Upper Tribunal (Administrative Appeals Chamber) heard the Information Commissioner’s appeal in the case of Colenso-Dunne v ICO. Judgment was reserved
On the same day Warby J will heard an assessment of damages in the case of Sloutsker v Romanova. He handed down judgment on 16 July 2015 ( EWHC 2053 (QB)). Damages of £110,000 were awarded. There is a 5RB case note.
As already mentioned, on 14 July 2015 HJJ Seys Llewellyn QC handed down judgment in the libel case of Steve Paris and Angel Garden v Andrew Lewis and Melanie Byng [pdf].
On the same day Mann J handed down judgment in the case of Burrell v Clifford. He dismissed the defendant’s application to strike out the claim. There was a news report in the Guardian and a 5RB news item.
On 15 July 2015, there was a harassment trial in the case of XYZ v Khan before HHJ Moloney QC. Judgment was reserved.
On 16 July 2015 there was an application in the case of Yeo v Times Newspapers which was heard by Warby J. Judgment was reserved.
On the same day HHJ Moloney QC heard an application in the harassment case of Spencer v Dunnett and gave an ex tempore judgment.
The Court of Appeal handed down judgment in the case of National Farmers Union v Tiernan which concerned an application for committal in a harassment injunction case. There is a 5RB case note.
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Media Law in Other Jurisdictions
On 13 July 2015, the Court of Appeal of New South Wales gave its reasons for refusing an application for permission to appeal in the case of Dank v Rothfield ( NSWCA 193). The primary judge (McCallum J) had struck out the Statement of Claim against the Fourth Defendant and directed that the plaintiff should not leave to replead. As a result the claim was dismissed.
Fairfax Media is seeking payment of 60% of its costs by Federal Treasurer Joe Hockey on the basis that his libel action was an “unmitigated disaster”. Justice White reserved his decision on costs.
It is reported that Ontario Cabinet Minister Michael Chan has said that he will sue the Globe and Mail over an article which suggested that his ties to China make him a threat to national security.
The Law of Privacy in Canada blog, in its last post before closure of operations, discusses the decision of the Supreme Court of British Columbia in Niemela v Google Inc 2015 BCSC 1024. Fenlon J – the same judge that granted a worldwide injunction against Google in the Equustek case – dismissed a claim for a worldwide defamation injunction against the same defendant.
The Supreme Court has begun to hear the appeal in the case of Subramanian Swamy v Union of India, a direct constitutional challenge to the crime of defamation. This has been described as the most significant free speech case in years. The Government argued that the offence did not have a chilling effect on free speech. This stance disappointed the Hindu which argued that criminal defamation had a pernicious effect on society.
A Circuit Judge has awarded a Traveller widow and her two brothers damages of €20,000 in a libel action against Sunday World over a story that efforts had been made to bring her late husband’s remains back from Germany in a van. The Judge held that the words in the article, which did not name the plaintiffs
“were clearly referable to the widow and in the unusual circumstances and context of Travellers’ culture/tradition, they would be injurious to her good name in that community, that is, that she being very close family had neglected in her duty to her late husband”.
There was also a report of the case in the Limerick Leader.
The Institute of Maltese Journalists has called for reform of the libel laws and expressed solidarity with two Times of Malta journalists faced with warrants of seizure over their assets.
It is reported that Ryanair has lost a libel claim against the makers of a Dutch documentary called Mayday Mayday which claimed that pilots were under pressure to reduce the amount of fuel their aircraft carried.
Benjamin Wey, who was ordered to pay $18 million to his former intern, Hann Bouveng, now faces a second libel action from her attorneys. Mr Wey described attorneys David Ratner and Benedict Morelli on his blog as “midget lawyers” and “extortionists” and said that they were under FBI investigation for bank fraud. Mr Ratner and Mr Morrelli are seeking $300 million damages from Mr Wey.
Research and Resources
- Data Protection and European Private International Law. Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/40, Maja Brkan , Maastricht University – Faculty of Law , SSRN
- Should Hate Speech be Constitutionally Protected, Leonard C Simpson II, Southern Illinois University.
- Freddie Starr: when reputation management in the courts goes wrong, Tom Rudkin, PR Week.
Next week in the courts
On 20 and 21 July 2015, there will be a trial of a preliminary issue as to “serious harm” in the cases of Lachaux v Independent Print, Lachaux v Evening Standard and Lachaux v AOL (UK) Ltd before Warby J.
On 22 July 2015 there will be an application in the case of McGrath v Bedford.
The following reserved judgment in media law cases are outstanding:
Pinard-Byrne v Linton, heard 22 April 2015 (Judicial Committee of the Privy Council).
Rahman v ARY Network Ltd, heard 1, 2 and 6 July 2015 (Haddon-Cave J).
Yeo v Times Newspapers heard 13 July 2015 (Warby J)
Colenso-Dunne v ICO heard 13 July 2015 (Judge Wikeley)
XYZ v Khan, heard 15 July 2015 (HHJ Moloney QC)