The media and law news this week was dominated by the attempts of the British press to undermine another privacy injunction. This injunction relates to a story which noone contended related to a public interest story and which the press has been aware of for 5 years.
The injunction was granted against Helen Wood who now says that she regrets speaking to the press about the case years ago. An American magazine has now published the actor’s name and details of his infidelity, and his name has also been circulated on social media sites.
Ms Wood also criticised the cost of privacy orders as she says that only the wealthy can afford protection. She said to Russia Today that the only reason that she did not get an injunction was because she could not afford one.
The editor of a US publication has pledged to continue to expose celebrities who have injunctions to prevent the British papers from reporting about their private lives. The name of the tabloid and the editor cannot be published in England and Wales because it might lead readers to the coverage and therefore break the injunction.
Lord Lester QC wrote a curious article in the Daily Telegraph criticising the celebrity injunction as being part of ‘an attack on the freedom of the press.’ He does not discuss the extensive Strasbourg jurisprudence concerning the balancing of Article 8 and Article 10 rights but, apparently, favours the US approach of granting unlimited freedom to the press.
Meanwhile, the Reporters Without Borders World Press Freedom Index places 23 Council of Europe Countries (which balance freedom press against other rights), including the United Kingdom, above the United States – which is at number 41 on the list (between Slovenia and Burkina Faso).
A former press officer with the South Yorkshire police has claimed that she was asked to emphasise elements of evidence that were positive for the police, including poor behaviour by Liverpool fans, at the time of the Hillsborough disaster.
And finally … David Banks’ blog has a discussion of the reporting restrictions which are likely to affect the reporting of latest plot twist in the Archers.
Data Protection and Data Privacy
In Willow v Information Commissioner & Ministry of Justice this week the Upper Tribunal considered at the question of restraint techniques used in young offender institutions and secure training centres.
Hawktalk looks at the question of whether the UK’s approach to the GDPR will be harmonised.
Facebook has lost the first round of a court case raised by a plaintiff in Illinois, USA who claims that the social media site “unlawfully” collected and stored users’ biometric data taken from their photographs.
A blog was published in the Social Media Law Bulletin about the implications of social media on ‘socially responsible advertising.’
Surveillance and Information Gathering
Ahead of the the 25th session of the Universal Period Review Working Group in Geneva, Privacy International has submitted a joint stakeholder report with civil society groups in Thailand, Tanzania and Hungary, which are some of the countries which will be reviewed. In this report they present their “concerns about the protection and promotion of the right to privacy and related issues” and some recommendations for improvements.
Statements in Open Court and Apologies
There were no statements in open court last week.
Newspapers Journalism and Regulation
This week the New Day, Trinity Mirror’s newest print newspaper, has closed after only 50 editions. Editor Allison Phillips has said “We have tried everything we could but sadly we just haven’t reached the sales figures we needed to make it work financially.”
As Roy Greenslade wrote in the Guardian, the paper won plaudits for its final story, which revealed that “cheating teachers… are fiddling the results of Sats exams” in increasing numbers. The story got several mentions on Radio 4’s Today programme.
In another piece in the Guardian, Greenslade described the closure of the New Day as “no surprise.” He said that it was “a toe-in-the-water, rather than a full-hearted, experiment”, a newspaper that was “bold in its concept and timid in its execution.” To illustrate this he points to evidence such as the fact that the paper was printed using the same presses as the Daily Mirror, meaning that it had to be printed in the early evening, which resulted in it not being able to publish breaking news or sports results.
The Telegraph has committed its ninth code breach under IPSO with a front page about Abu Hamza’s daughter-in-law. The story, headlined “Abu Hamza and the latest blow to UK sovereignty” was found to be inaccurate by the press regulator. It reported that an “EU law chief” had “ruled” that terrorist Abu Hamza’s daughter-in-law could not be deported from the UK, however the complainant said that the role of the Advocate General in the CJEU was to give a legal opinion for the court to consider. He said that this opinion was not a ruling of the court, and that the phrase “EU law chief”, and the reference to a “ruling”, were therefore misleading. The Telegraph has amended the online article and published a clarification.
In the Guardian Roy Greenslade discussed Michael Hedges assertion on FollowTheMedia site that investigative journalism is now characterised by data leaks rather than “clandestine meetings”. Greenslade argues that these clandestine meetings remain important, that “the new has not replaced the old” but added a “new dimension to journalism.”
In a blog in the Press Gazette, Dominic Ponsford says that the ‘shameless’ Guardian board has allowed former editor Alan Rusbridger to take the blame for the paper’s financial meltdown.
Last week in the Courts
On Tuesday 3 May 2016, HHJ Moloney QC heard an application in the case of Bukovsky v CPS.
On 4 May 2016, a confidentiality trial with the intriguing name of A1, B2 and C3 v A Government Department was due to begin before Jay J. The case was, however, settled shortly before the hearing was due to commence. It appears that the media did not pursue the “open justice” issues which appear to arise in relation to this case.
On the same day Nugee J heard an application to make a statement in open court in the case of Webb v Lewis Silkin. He held that the principles relating to defamation statements in open court should be applied in privacy cases. The Court should take a relatively non-interventionist approach to allow the claimant to say what she wanted to say about the action and the settlement. The statement in open court was approved subject to two small amendments. The Judge gave permission to appeal.
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Media Law in Other Jurisdictions
In the case of Dods v McDonald (No.2)  VSC 201, Bell J awarded damages of Aus$150,000 to a police officer against a barrister who are jury had found had defamed him in online comments. The judge had earlier rejected a submission of no case to answer ( VSC 200). There were a number of news stories about the case including on ABC News, MailOnline and Australasian Lawyer
The B.C. Supreme Court‘s recent decision in Pritchard v. Van Nes (2016 BCSC 686) serves as a reminder that people are not only liable to pay damages for their own comments on social media, but they are also liable for third party comments as well as further sharing or republication of those comments.
Vancouver businessman Altaf Nazerali has won Can$1.2 million after a five year battle after articles were published on the internet which portrayed him as “a gangster, arms dealer, drug trafficker, financier of al-Qaida and member of the Russian and Italian Mafias.”
In the case of Hynes v Pro Dive Marine Services Ltd., 2016 NLCA 17 the Newfoundland and Labrador Court of Appeal upheld an order striking out a statement of claim in a defamation action
The identity of a woman who was raped and murdered in Kerala last week has been disclosed in the national media, despite the fact that there is no indication that the victim’s family gave authorisation. It is unclear whether the name appeared in the media or on social media first, and this could be an example of the national media bowing to the pressures of social media.
On World Press Freedom day, the Hoot drew attention to the vulnerability of journalists in India, particularly those working at a district level. They highlighted the situation in three states Chhattisgarh, Uttar Pradesh and Tamil Nadu where defamation cases against the media are routinely filed.
Ireland’s newspaper association, NewsBrand Ireland (NBI), has called for defamation law reform. On World Press Freedom Day they said “It is time for Ireland’s defamation laws to be brought into line with the rest of Europe.” They highlighted the facts that defamation awards in Ireland are higher than in the rest of Europe and that it is the only country in Europe where defamation actions are heard before a jury.
A judge has been recused from a defamation case because of an article he wrote about the plaintiff four years before he became a judge.
The leader of the church of Scientology is threatening to use Northern Ireland’s stricter libel laws to prevent a ‘tell-all’ book by his father, entitled Ruthless: Scientology, My Son David Miscavige and Me’ from being published.
Comedian Arsenio Hall is suing Irish musician Sinead O’Connor for defamation over a Facebook post in which she accused him of providing Prince with drugs. She also accused him of drugging her. The lawsuit seeks more than $5 million in damages. O’Connor has replied to the lawsuit with another Facebook post.
Sean Penn has settled a defamation lawsuit against director Lee Daniels after he made comments in an interview last year saying that he was ‘a wife beater.’ Daniels has publicly apologised to Penn, retracted his statements and agreed to make an unspecified donation to the actors’ Haiti charity.
A Florida law firm has sued for libel after their sign was used on a TV show about an unrelated insurance fraud probe, concerning an attorney and a chiropractor.
The former head of the Venezuelan National Assembly has sued the Wall Street Journal for libel after they published an article alleging that he was involved in criminal activities related to drug trafficking and money laundering.
Research and Resources
- Law+tech news round up Ms Lods, 4 May 2016
- Cross-Cutting Conflicts: Developments in the Use of Norwich Orders in Internet Defamation Cases Annual Review of Civil Litigation, Forthcoming, Robert J. Currie, Dalhousie University – Schulich School of Law.
- Defining a Right of Reply: An Examination of the Law Commission’s Proposals to Use a Right of Reply to Regulate Online Conduct Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 5/2016, Katharine Stove, Victoria University of Wellington
- Remembering and Forgetting – Protecting Privacy Rights in the Digital Age (2015) 1(3) European Data Protection Review pp.164-177, Stephen Allen.
- Public Opinion Toward Internet Freedom in Asia: A Survey of Internet Users from 11 Jurisdictions Berkman Center Research Publication No. 2016-8, Fei Shen and Lokman,Tsui City University of Hong Kong (CityUHK) and The Chinese University of Hong Kong, (CUHK) – School of Journalism and Communication.
- Drones and Their Legality in the Context of Privacy Ketan Modh, National Law University Jodhpur (NLUJ).
- The Data Protection Regime in China. In-Depth Analysis Brussels Privacy Hub Working Paper, Volume 1, Number 4, Paul De Hert and Dr. Vagelis Papakonstantinou, Free University of Brussels (VUB)- LSTS and Free University of Brussels (VUB)
- Should There Be a Right to Be Forgotten (The Right to Make Search Engines Hide Information About You) in New Zealand? An Analysis of Google v Spain ,Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 3/2016
Anna Fraser, Victoria University of Wellington – Victoria University of Wellington, Students/Alumni.
- Anonymous Online Speech: Striking a Balance between Accountability and the Right to Freedom ofExpression Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 2/2016, Charlotte Doyle, Victoria University of Wellington, Students.
- Privacy as a Line of Flight in Societies of Mass Surveillance Ethical Space: International Journal of Communication Ethics 12(3/4): 39-46. Chris Campbell and Rosamunde van Brakel, University of Stirling – School of Management and Free University of Brussels (VUB)
Next Week in the Courts
On 10 May 2016, there will be an application in the case of Ghuman v Ghuman.
On 12 May 2016, there will a PTR in the case of Economou v de Freitas which is due to be tried on on 13 June 2016. The claimant has issued a public statement about the case and has a website discussing the full background.
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 week’s round up was compiled by Georgia Tomlinson who is a researcher.