The most important media law news story of last week was the decision of Mr Justice Mann allowing a number phone-hacking damages claims against The Sun to proceed. News Group Newspapers (NGN), which has already settled more than 1,000 phone hacking claims against the News of the World now faces a substantial number of claims against its daily title.
In a decision handed down on 28 April 2015 ( EWHC 961 (Ch)) the judge said four claimants could amend their cases to include claims against the Sun for the first time in the proceedings. The decision is also likely to impact on a number of existing claims and many others which may be brought in the future.
One of the new claims has been brought by Simon Clegg, the former chief executive of the British Olympic Association. Others now suing include EastEnders actors Christopher Parker and Brooke Kinsella, Coronation Street actor Kym Marsh, designer Pearl Lowe and her musician husband Danny Goffey and actor and comedian Les Dennis.
The National Union of Journalists has endorsed Impress, the regulator created as an alternative to Ipso. The NUJ also labelled Ipso, which was set up by the majority of newspaper and magazine publishers, as a “pointless so called regulator”. The two organisations will meet soon for discussions regarding IMPRESS’s consultation on a new standards code, its journalists’ whistleblowing hotline, and other shared interests. Professor Chris Frost, the chair of the NUJ’s Ethics Council, said:
“Our view is that Impress represents the best opportunity we have for independent press regulation and for providing an alternative to those national newspapers and their publishers who continue to fail to take their responsibilities seriously by hiding their failings behind another pointless so-called regulator. We have welcomed Impress as the alternative press regulator because we want to see regulation which is both Leveson complaint and independent of publishers, whilst involving journalists on its board and with its future development.”
The last few weeks have been dominated by two stories: the celebrity “threesome” injunction and the John Whittingdale “non story”. A number of commentators have suggested that the press’ attitude to these two stories was not entirely consistent. Paul Connew, former Mirror editor, argued that the reluctance to publish the Whittingdale story was probably the result of post-Leveson caution rather than an attempt to protect Whittingdale personally or turn him into a “pliant puppet of the press”. Paul Bernal argues that the press’s actions in obtaining the story were deeply damaging in the first place and should also be scrutinised.
Lancashire Police are investigating allegations of perjury made against Blackpool chairman Karl Oyston. The complaint was lodged in Manchester last month after a court hearing during which Oyston supplied evidence under oath in a libel case against a supporter.
Russian dissident Vladimir Bukovsky has been on hunger strike at his Cambridge home for over a week in protest at what he calls the “Kafkaesque” British judicial system. Bukovsky was charged last year with child pornography offences and in August he took the step of suing the Crown Prosecution Service for libel.
The Derbyshire police made an unsuccessful application for a hearing concerned a Polish sex offender to be held in private. The Chief Constable subsequently accepted that the media were right to challenge the application and the District Judge was right to reject it.
It is time for media law in Africa to “throw off the shackles” and overcome outdated laws, argues Justine Limpitlaw for Akademie. Criminal defamation, for example, has been on the statute books or part of the common law of numerous African countries for decades and has had a chilling effect on journalism across the continent.
Companies who ask their employees to delete tweets may be acting unlawfully. Chipotle Mexican Grill was found to have violated the National Labor Relations Act (NLRA) when it asked an employee to delete posts on his Twitter account about the company.
Roy Greenslade disagrees with the idea that mainstream media is being led astray by social media. He suggests that while newspapers and TV newsrooms should “resist the temptation to react too hastily to online postings”, digital technology is not to blame for journalistic misdemeanours.
Data Protection and Data Privacy
After years of drafting, haggling and editing, the EU General Data Protection Regulation (GDPR) has been approved by the European Parliament. The Dentons Privacy and Cybersecurity blog and Olswang datonomy blog discuss these developments this week.
However, the adoption of the GDPR will not suddenly solve all data protection law issues, the Peep Beep blog argues. Furthermore, with the GDPR not expected to come into force until around mid-2018, the immediate future of EU-US personal data transfers is much less certain. The Panopticon blog discusses this here.
In other news the CMS committee have approved Elizabeth Denham’s appointment as Information Commissioner. Denham, who was the government’s preferred candidate, will replace outgoing Information Commissioner Christopher Graham who has served since 2009.
Websites that detect ad-blockers to stop their users from reading webpages could be illegal under European law. Under EU law in force since May 2011, people must give their consent before an anti-ad-blocker script can run and hide content on a page.
Surveillance and Information Gathering
Britain is responding to the threat of terrorism in ways that could well increase global insecurity, argues Jane Duncan for OpenDemocracy. The Investigatory Powers Bill or “Snoopers Charter”, for example, could set a dangerous precedent and a bad example internationally by giving Britain’s intelligence and police agencies sweeping powers to spy on on vague grounds.
Statements in Open Court and Apologies
There were no statements in open court last week.
Newspapers Journalism and Regulation
The Evening Standard has consistently leaned in favour of the Conservative mayoral candidate Zac Goldsmith, according to research by the Media Reform Coalition and Goldsmiths, University of London. The research shows the paper is highly partisan, despite assertions that is would be ‘scrupulous’ in giving equal treatment to the candidates.
The Telegraph has been found to have breached Clause One (accuracy) of the Editors’ Code for an article which was published in March 2015. The article covered an insurance underwriter who was jailed for “harassing five women, putting them in fear of violence, and intimidating three of them”. He complained to press regulator IPSO that a reference in the article to him having broken into one of the women’s homes and stealing her underwear was inaccurate. He also claimed the reference to him as having the nickname “shagger” was inaccurate.
IPSO has ruled that The Sunday Times was in breach of clause 2 of the Code (privacy) in relation to an article about Sir Nicholas Soames’ weight loss speculating as to whether he had had surgery. The speculation about his health was found to be a breach of his right to privacy.
IPSO is advertising for an “Independent complaints reviewer“.
Recent Appeal Decisions
We note two recent Court of Appeal PTA decisions:
12 April 2016, Harvey v News Group Newspapers, permission refused after a hearing.
13 April 2016, Sobrinho v Impresa Publishing SA, permission refused on paper
Last week in the Courts
On 26 April 2016, Warby J handed down judgment in the case of Undre & Anor v The London Borough of Harrow  EWHC 931 (QB). He held that the words complained of it did refer to the claimant company and that, in any event, it had not suffered serious financial loss. There was a 5RB case comment.
On the same day HHJ Moloney QC heard a PTR in the case of Ghuman v Ghuman. He held that it would be disproportionate to permit a defendant in a defamation claim to rely on the evidence of an expert graphologist as to the authenticity of signatures on witness statements.
On 27 April 2016, HHJ Moloney QC heard an application in the case of ZAM v TFW & ors and gave an ex tempore judgment.
As already mentioned, on 28 April 2016, Mann J handed down judgment in the case of Various Claimants v News Group Newspapers ( EWHC 961 (Ch)) allowing four claimants to amend their statements of case to elaborate phone hacking claims against the Sun. An application by News Group to strike out a claim against the Sun.
3 May 2016 Countering violent extremism and freedom of expression, Free Word Lecture Theatre, 60 Farringdon Road, London EC1R 3GA
Please let us know if there are any events you would like to be included on this list by email: email@example.com.
Media Law in Other Jurisdictions
In the case of Kingsfield Holdings v Rutherford ( WASC 117) Kenneth Martin J dismissed a slander claim in respect of 15 words published to one person. The words did not bear a defamatory meaning. There was a news story about the case in the West Australian and a comment on the Whites Legal blog.
In the case of Maras v Lesses ( SADC 40) the District Court of South Australia awarded damages of Aus$75,000 to a member of the Greek Orthodox Community of South Australia against another member of the community in respect of a defamatory flyer, newsletter and email.
A Sydney couple who was sued for defamation by a neighbour over comments on a social media page say rising legal fees could leave them bankrupt. The Palmers thought their legal battle had ended after the publication of an apology on the Scotland Island Community Facebook page. However, the resolution to the dispute collapsed when the page’s moderator, unaware of the agreement, deleted the apology.
The grand mufti of Australia is suing Sydney’s Daily Telegraph for defamation after two stories and a front page it ran in the aftermath of the Paris terrorist attacks. The articles suggested he was “an apologist for the terrorist attacks in Paris”, a supporter of “violent Islamic holy war” and had deliberately refused to attend a vigil after the attacks.
In the case of Pritchard v. Van Nes, (2016 BCSC 686) the Supreme Court of British Columbia awarded damages of Can$50,000 and punitive damages of Can$15,000 in respect of posts on Facebook alleging, inter alia, that the plaintiff was a paedophile. There was a news story about the decision in the Globe and Mail.
The Canadian Privacy law blog addresses “whether the right to be forgotten can find application in the Canadian context”, concluding that it is a concept that cannot find a Charter-resistant foothold within Canadian law.
A mother and daughter have settled two separate €75,000 cases of defamation against Dunnes Stores. Elizabeth Nuga and her daughter Afolashade, claimed that staff at the branch had wrongly accused them of taking a €9 bottle of wine from the shop. The terms of the settlement were not publicly divulged in court.
Ireland must get rid of its disgraceful blasphemy laws, argues Roy Greenslade. The law, passed in 2009 and introduced in January 2010, carries a maximum fine of €25,000. Ireland is the only country in the developed western world to have introduced a blasphemy law in the 21st century.
Lawyers for businessman Denis O’Brien have told the High Court that he continues to suffer harm as a result of alleged defamation of him by the Red Flag Consulting firm, and therefore that his case should be heard as soon as possible. Mr O’Brien initiated his proceedings last October alleging conspiracy and defamation against Red Flag and some of its executives and employees.
Italy may introduce fines against vexatious defamation lawsuits against journalists, as part of a large-scale reform being discussed by the parliament. In March, the chamber of deputies passed a set of recommendations, including the use of penalties to discourage the use of libel suits to intimidate journalists.
It is reported that German Chancellor Angela Merkel has shocked observers, announcing that her government would allow the prosecution of a German comedian for insulting a foreign head of state, Turkey’s President Erdogan. In reaction to public outcry against his prosecution, Chancellor Merkel has vowed to repeal the section outlawing insults against foreign heads of state.
Labour MP Silvio Schembri, together with his wife Deandra Schembri, have won €3,000 in libel damages. They sued PN media over reports over reports that Mrs Schembri was given a job through favouritism.
A court has upheld a complaint filed TV presenter Stephanie Chircop against an editor and a journalist. The complaint centred on a report that she was going to be charged over an attempt to frame her estranged husband. Chircop was awarded €2,000 in damages after the court ruled that the story published by newspaper Illum was libellous.
A lawyer being double-booked is not reason enough to put off a defamation hearing, Justice Paul Heath has decided. Earlier this month, Callaghan tried to adjourn the hearing because senior lawyer, Queen’s Counsel Daniel McLellan, is not available at that time because of a trial in the Cook Islands.
Ulster Unionist leader Mike Nesbitt has pledged to place libel reform in the negotiations for a Programme for Government in the next Assembly. Although the law on defamation was updated in England and Wales in 2013, Stormont stopped the changes from being introduced in Northern Ireland.
Stormont is refusing to name a politician who settled a libel action last year and landed the taxpayer with a £25,000 legal bill. The figure was revealed to Sunday Life after they made a request under Freedom of Information laws.
A Portuguese appeals court has overturned the libel conviction of a former detective Goncalo Amaral, who published a book alleging the parents of Madeleine McCann were involved in their daughter’s disappearance. The decision means Amaral’s book, ‘The Truth of the Lie’ could potentially go on sale in Portugal again.
Former Labour minister Andy Kerr’s purchase of a property given to his community a century ago has led to an unusual defamation action. Speculation on a Facebook group about an unnamed politician buying the property has led to a defamation action against the moderator of the group. The seller has sued the moderator of the social media group, Paulo Quadros, 62, for £20,000.
Scotland’s defamation law needs to catch up with England’s, argues Herald Scotland. Drew Campbell, Scottish Pen’s president, suggests “This is a dire threat to both media plurality and the diverse media landscape in Scotland that continues to grow amid continued challenges across both the industry and the country.”
Buzzfeed has said that a story headlined “The King of Bullsh*t News” was not intended to be defamatory of news agency boss Michael Leidig. Leidig claims that the story was false and that it was intended by Buzzfeed to damage a competitor news provider.
Research and Resources
- MsLods’ Law + tech news round-up. 26 April 2016.
- Legal Cases on Posthumous Reputation and Posthumous Privacy: History Censorship, Law, Politics and Culture Syracuse Journal of International Law and Commerce 42.1 (2014):40-122, Bo Zhao, University of Groningen.
- Unilateral Invasions of Privacy 91 Notre Dame Law Review 1075 (2016), Roger Allan Ford, University of New Hampshire School of Law.
- Watching the Watcher: Recent Developments in Privacy Regulation and Cyber-Surveillance in South Africa ‘Watching the Watcher: Recent Developments in Privacy Regulation and Cyber-Surveillance in South Africa’ (2006) 3:4 Script-Ed 344 – 354, Caroline B. Ncube.
- A Conceptual Approach to Privacy NZLC MP19, report for the New Zealand law Commission (1 November 2007). Mark Hickford Victoria University of Wellington – Faculty of Law.
- United States Media Law Update 20 Media & Arts L. Rev. 461 (2016), Lyrissa Barnett Lidsky and Rachael L. Jones. University of Florida – Levin College of Law and University of Florida, Levin College of Law, Students.
- The Privacy Case for Body Cameras: The Need for a Privacy-Centric Approach to Body Camera Policymaking Columbia Journal of Law & Social Problems, Vol. 50, 2016, Ethan Thomas, Columbia University, Law School, Students
Next Week in the Courts
On Tuesday 3 May 2016, HHJ Moloney QC will hear an application in the case of Bukovksy v CPS. As we have already mentioned, Mr Bukovsky is on hunger strike in protest against the listing of his case.
We are not aware of any other media and law cases due for hearing next week.
The following reserved judgments in media law cases are outstanding:
CG v Facebook Ireland Limited, heard 4 and 5 April 2016 (Morgan LCJ, Gillen and Weatherup LJJ)(Northern Ireland Court of Appeal)
PJS v News Group Newspapers, heard 21 April 2016 (UK Supreme Court)
This Round Up was compiled by Tessa Evans, a journalist and researcher. She tweets@tessadevans
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