The Supreme Court will, today, sit in an unprecedented panel of 11, to hear the most important constitutional case for many years, the so called “Article 50 Brexit” case. This has generated huge media coverage and a commendable effort by the Court to open its processes and communicate with the public.
It has, for the first time, made available the full written cases of the parties (something done as a matter of routine by the US and Canadian Supreme Courts). There will, of course, be the usual live streaming of the hearing (available in Canada but curiously not in the US).
The press coverage has been, predictably, uneven. The Daily Mail had a front page headline “Law Chief: Why those Judges were so wrong” – presenting a version of the Government’s arguments on the appeal (but not those on the other side). The Daily Mail also has profiles of the “11 unaccountable individuals” on the court with “Europhile ratings” – using the familiar tabloid smear concept of “links” (“Six have links with individuals who’ve been critical of the Leave campaign”). Or as, Professor Steven Barnett put it on Twitter
“Today one unaccountable tabloid editor attempts to undermine the integrity of 11 independent judges. And pretends this is journalism”.
Zelo Street also has a piece entitled “Mail Supreme Court Assault Busted”.
George Galloway has sued News UK over a failed sting attempt by the Fake Sheikh Mazher Mahmood in 2006. The meeting between the former MP and Mahmood took place at a dinner at The Dorchester where during which the journalist made what he said was a covert attempt to trick Galloway into discreditable conduct during the event.
A judge has ruled that the inquest into a Russian fraud whistleblower’s death will sit in secret, despite arguments from Guardian News and Media that it should be held in public. The Home Secretary had argued at High Court that disclosing secret documents at the inquest would damage the public interest, and Mr Justice Cranston has said he had “no hesitation” in finding the balance came down in favour of non-disclosure. In their case the Guardian News and Media stressed the importance of open justice and transparency in inquests generally.
A blogger, Jacqui Thompson, who lost a libel case with Carmarthenshire council’s chief executive, Mark James, could be forced to sell her house to pay the legal costs. She faces a £190,000 bill after the failed libel action in which James successfully counter-sued.
Caroline Kean in the Press Gazette has called the privacy injunction to stop the media reporting on the police investigation into a wealthy businessman in the case of ERY vs Associated Newspapers ‘dangerous.’
Phil Collins is facing libel action from his ex-wife Andrea Bertorelli after she criticised him for alleged inaccuracies in his new autobiography. Bertorelli has claimed that “even the most basic facts have become distorted.”
Social Media Law Bulletin has examined the new “Consumer Rights Fairness Act” in the US.
Socially Aware has a round up of the week’s biggest stories in Social Media: “Social Links: Yellow journalism rakes in cash; NYC law protects gig economy pay; Twitter suspends “alt-right” accounts“.
It is reported that Facebook could face “additional action” over using WhatsApp’s data for its own advertising purposes when a panel of Europe’s privacy watchdogs meets next week.
Data Protection and Data Privacy
Hawktalk has argued that the Digital Economy Bill data sharing provisions undermine Parliamentary scrutiny and create privacy risks.
Information Age has questioned what impact Brexit will have on Google’s ‘Right to be Forgotten.’
Freedom of Information
The ICO has published Elizabeth Denham’s speech at the Holyrood FOI Conference in Scotland.
The RPC blog has examined the Investigatory Powers Bill after it was given royal assent by the Queen. Press Gazette has pointed out that the passing of the so-called “Snooper’s Charter” has been condemned by Reporters Without Borders as something which is likely to push the UK further down its World Press Freedom Index from number 38 out of 180 countries.
Privacy International has examined the possibilities of increased surveillance as a result of recent political events.
Cleveland Police Force, who accessed the call records of three regional journalists to find the source of a report about racism, is now also believed to have targeted a national newspaper reporter. A claim that this accessing of communications data was unlawful will be heard by the Investigatory Powers Tribunal on 15 and 16 December 2016.
Statements in Open Court and Apologies
There were no statements in open court read in the last week.
Newspapers Journalism and Regulation
On Tuesday 6 December 2016 the House of Commons Culture Media and Sport Committee will hear evidence on “Dealing with Complaints against the Press”. It will hear evidence from Hacked Off, IMPRESS and the PRP.
On the same day the House of Lords Communications Committee will hold evidence sessions with IPSO, Hacked Off and others to discuss developments in press regulation.
The Society of Editors has launched a fresh campaign against plans to enact Section 40 of the Crime and Courts Act.
Gawker has submitted a motion in bankruptcy court to approve a $1 million libel settlement with Mail Online over an article Gawker published entitled “My Year Ripping Off the Web With the Daily Mail Online.”
Jonathan Heawood of Impress writing on Open Democracy has questioned why the BBC is giving licence fee money which is meant to be going towards local journalism to large media groups which have in fact damaged local journalism.
Daily Mail editor Paul Dacre has announced he is to step down after eight years as chairman of the Editors’ Code Committee. On leaving he has made some critical comments on Press Regulator IMPRESS.
The Committee has also announced a public consultation into how the standards policed by the IPSO can be changed.
Two brothers whose sister claimed they sexually abused her have had their complaint against a regional daily, the Belfast Telegraph, upheld on grounds of accuracy.
A weekly newspaper, the Falkirk Herald, has been cleared of wrongdoing over photographs taken of a defendant and his partner outside court.
A convicted stalker who claimed a regional daily, the Manchester Evening News, had identified her child during court proceedings has had her complaint dismissed by IPSO.
Last week in the Courts
On 29 and 30 November and 1 December 2016 the Court of Appeal (Macfarlane, Davis and Sharp LJJ) heard the important “serious harm” appeal in the case of Lachaux v Independent Print. Judgment was reserved.
On 30 November 2016, the Court of Appeal (Patten, King and Simon LJJ) heard the appeal in the case of His Highness Prince Moulay Hicham Ben Abdullah Al Alaoui of Morocco v Elaph Publish Limited. Judgment was reserved.
On 2 December 2016, judgment was handed down in the libel case Shakil-Ur-Rahman v ARY Network Ltd & Anor ( EWHC 3110 (QB)). The case was tried by Sir David Eady on 31 October to 4 November and 7 November 2016. Judgment was entered for the claimant in the sum of £185,000. There were news stories about the case in Biz Asia, Daily Pakistan and on the 5RB website.
8 December 2016, Article 19 event: 250 years of freedom of information, Free Word Centre.
24 March 2017, the European Centre for Press and Media Freedom conference on Media Freedom in Strasbourg, entitled: “Promoting dialogue between the ECtHR and the media freedom community”
Media Law in Other Jurisdictions
Human Rights Watch has said that Angolan President José Eduardo dos Santos should refuse to sign a new media law until parliament revises provisions restricting the right to freedom of expression.
In the case of Reid v Dukic ( ACTSC 344) Burns J award Aus$180,000 damages for a series of posts of an “irrational or ranting” posts on Facebook.
The trial in the case of Graeme Cowper v Fairfax Media Publications is continuing before a McCallum J and a NSW Supreme Court jury.
Azerbaijan’s parliament has approved a new law which makes insulting the country’s president on social media a criminal offence. Online defamation was already a crime, but the new law makes specific provisions for the president. Offenders using fake accounts could face a 1,500 manats (£676; $855) fine and up to three years in jail for insults against President Ilham Aliyev.
A top city official in Guelph, Ontario has filed a $500,000 defamation lawsuit against Gerry Barker, who runs a local political blog known as Guelph Speaks.
The Supreme Court of Canada has permitted the disclosure of a mortgage document over a debtor’s privacy objections. In a proceeding brought by the Royal Bank of Canada against a debtor, the bank required the mortgage discharge statement held by Scotiabank in order to complete a sheriff’s sale of the property.
Dana Scallon, singer and former MEP, has lost a legal bid to force her sister and niece to put up security for costs in a defamation case against her. The Dublin High Court Action arose out of a 2011 interview when Ms Scallon was asked about allegations of sexual abuse made against her brother, John Brown.
A top court in Italy has ruled that calling someone “a homosexual” is no longer offensive. In a libel case the Court of Cassation ruled that the term was “neutral” and was not harmful to the reputation of the complainant.
The Chairman of NH International (Caribbean) construction company, Emile Elias, has given away $900,000 to civil society organisations after he won a slander lawsuit against Soca artiste, Iwer George, owner of the radio station 99.1 and talk show host Barrington “Skippy” Thomas. The lawsuit arose out of statements made by Thomas on the radio station in the lead-up to the general elections in 2010.
In Indiana a Lake County Superior Court Judge has heard arguments on whether to dismiss a defamation lawsuit filed against radio personality and activist Eve Gomez. Joan Gorcos, a St. John Police Department secretary and part-time county dispatcher, sued Gomez in April over allegations the activist said in a speech that Gorcos engaged in racial profiling.
A 31-year-old Oregon man has become the first to be imprisoned under the state’s revenge porn law, for sharing pornographic videos online without his partner’s consent.
A trade group representing olive oil importers has sued television personality Dr. Mehmet Oz after his claims that the imported extra virgin olive oil sold in U.S. supermarkets may be fake. Georgia is among 13 U.S. states that have food libel laws that generally have a lower legal burden than traditional libel laws. These laws make it easier for food companies to sue people who make disparaging remarks about their products.
The “Consumer Review Fairness Act of 2016” which has just been passed by the House of Representatives has some business owners worried but one Internet Law Professor has called it a ‘big win for free speech.’ The aim of the legislation is to stop consumers fighting legal battles after leaving negative reviews. The Register has said that “the news is good for both consumers and businesses.”
The Columbia Journalism Review has examined the “five takeaways from the Rolling Stone defamation case.”
Research and Resources
- Campus Speech and Harassment, Minnesota Law Review, Vol. 101, 2017, Alexander Tsesis, Loyola University Chicago School of Law.
- Privacy-Related Crimes in Italian Law, Tilburg Law School Research Paper, Bert-Jaap Koops, Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT).
- Making News: Balancing Newsworthiness and Privacy in the Age of Algorithms Erin C. Carroll, Georgetown University Law Center.
- Privacy of Public Data, Kirsten E. Martin and Helen Nissenbaum, George Washington University School of Business and New York University
Next Week in the Courts
On 5 December 2016, there will be an application in the case of Lokhova v Longmuir before Warby J. The application for permission to appeal against an earlier decision in this case is now listed for an oral hearing on 15 February 2017.
On 6 December 2016 there will be a trial in the case of Fly Me Now Ltd v Quick Air Jet Ltd. This is listed for 2 days.
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).
Mionis v Democratic Press heard 27 October 2016 (Gloster, Sharp and Lindblom LJJ).
Otuo v Watchtower Bible and Tract Society 8 November 2016 (Chancellor, Gloster and Sharp LJJ).
Lisle-Mainwaring v Associated Newspapers heard 11 November 2016 (HHJ Parkes QC).
Optical Express v Associated Newspapers Ltd, heard 16 November 2016 (Nicola Davies J).
Lachaux v Independent Print. heard 29 and 30 November and 1 December 2016 the Court of Appeal (Macfarlane, Davis and Sharp LJJ).
His Highness Prince Moulay Hicham Ben Abdullah Al Alaoui of Morocco v Elaph Publish Limited, heard 30 November 2016 (Patten, King and Simon LJJ).
Note that the case of Holyoake & Anor v Candy & Ors heard 4 November 2016 by Warby J which was previously recorded as a reserved judgment was, in fact, delivered ex tempore on the day of the hearing.
This post was compiled by Georgia Tomlinson who is a researcher.