This is a round up of the 2017 decisions by the Courts of Northern Ireland in libel, privacy and other media law cases along with case summaries dealing with the issues and decisions in each case.

Cushnahan v British Broadcasting Corporation & Anor [2017] NIQB 30 (10 March 2017)

a)     Background/Legal Issues: The Plaintiff sought an interlocutory injunction to prevent the Defendants from re-broadcasting two major Spotlight investigations into NAMA, which were broadcast in February and September 2016. The Plaintiff further sought to prevent the broadcasting of a third, related programme. The Plaintiff asserted his entitlement to an interlocutory injunction on the following basis:

·       Breach of human rights under Article 6 ECHR; and

·       Tort of misuse of private information under the under the Protection from Harassment (Northern Ireland) Order 1997 and Data Protection Act 1998.

b)     Decision: In his judgment, Mr Justice Stephens recognised that “there could be no sensible contention” that the broadcast of the programmes was not in the public interest and that there was a “clear public interest in publication.” Several parts of the claim were also struck out as an abuse of process, including an attempt to bring action against the Editor of BBC Spotlight for contempt of court.

c)     Other commentary: The application involved a consideration of the interplay between the various causes of action and also the interaction between strict liability contempt under the Contempt of Court Act 1981, common law contempt of court and Article 6 ECHR. Following nine months of legal action, the Plaintiff dropped his appeal against Mr Justice Stephens’ decision on 21 June.

Townsend v Google Inc. & Anor [2017] NIQB 81 (31 October 2017)

a)     Background/Legal Issues: The plaintiff was a persistent offender who sought to restrain an internet search engine provider from processing his personal information in such a way as to produce search results revealing sexual offences which he had committed while a child. However, he had no reasonable expectation of privacy in relation to his unspent convictions and there was no serious issue to be tried in relation to his claims for misuse of private information, breach of confidence, and breach of the Data Protection Act 1998.

b)     Decision: It was held that the Plaintiff had no reasonable expectation of privacy regarding his unspent convictions relating to, among other things, fraud and breaches of multiple court orders.

NGK v Google Inc. & Anor [2017] NIQB 74 (31 October 2017)

a)     Background/Legal Issues: The Plaintiff had accumulated what the Court described as a ‘considerable criminal record’ with details of his unspent convictions being readily available through Google searches.  As a result of this, he claimed to have received threats and been the subject of harassment. The Plaintiff commenced proceedings after the first defendant, Google Inc., refused to delist 12 URLs that evidenced details of such records and a change of name. The Plaintiff’s application was twofold: Firstly, he applied for leave to serve notice of the writ of summons out of the jurisdiction on Google Inc., a company incorporated in Delaware USA. Secondly, in the action begun by the writ, the Plaintiff sought an injunction ordering Google Inc. to restrain from processing personal data relating to the Plaintiff within the jurisdiction. The following legal issues arose:

·       Misuse of private information;

·       Breach of confidence; and

·       Breach of the Data Protection Act 1998

b)     Decision: The Court refused the application to serve notice on the basis that there was no serious issue to be tried in relation to the Plaintiff’s claim for breach of confidence, misuse of private information and breach of the Data Protection Act 1998. Mr Justice Stephens concluded that, although the sentences imposed had run their course, they were not ‘spent’ for the purposes of the Rehabilitation of Offenders (Northern Ireland) Order 1978 and therefore remained a matter of public record.

c)     Other commentary: It appeared that a central issue was the balance that needed to be achieved between open justice which includes public debate about the effectiveness of the criminal justice system, and the protection of an offender by prohibiting the disclosure of previous convictions. (Note the current ‘Right to be Forgotten’ case to be heard in the High Court in London http://www.bbc.co.uk/news/technology-43211897 )

Court of Appeal

Coulter v Sunday Newspapers Ltd [2017] NICA 10 (20 February 2017)

a)     Background/Legal Issues: The impugned article concerned the alleged treatment of hotel staff, who had been laid off just before Christmas. It relayed their anger at how they had been treated. A newspaper appealed against an award of £50,000 in respect of the respondent, the chairman of a company which owned the hotel, claim for damages for defamation.

The newspaper submitted that the judge had erred in respect of the following:

i) in failing to observe the single meaning rule when he had found the hotelier was a mean scrooge-like figure, who had also acted callously towards the staff without regard to their interests, and had displayed a meanness of spirit;

ii) in finding the defamatory meanings were assertions of fact, rather than expressions of opinion;

iii) in determining the defamatory meanings as assertions of the newspaper rather than the staff, leading him to wrongly reject the justification defence;

iv) in failing to identify the public interest in the article;

v) in failing to consider the extent to which the defamatory words were in the public interest;

vi) in asserting that the test as to meanings in the context of a Reynolds  defence was different from the single meaning rule;

vii) in failing to consider whether the article was reportage and the extent of the journalist’s duty to verify; and

viii) in making a disproportionate and excessive award.

b)     Decision: The Appeal was allowed on the basis of the following findings and a retrial directed:

(1) Under the single meaning rule, a judge was obliged to determine one meaning of the words used and could not derive more than one meaning from the same words. However, that did not prevent him from deriving a further meaning from the article.

(2) The description of any person as “a Scrooge” expressed an opinion not a fact and the second and third meanings, that the plaintiff was callous and lacked Christmas spirit were also comments. The judge had been wrong to conclude that they were assertions of fact and thus to exclude the defence of honest comment on a matter of public interest.

(3) The judge had been well aware that the sting of the article was based on assertions made by the hotel staff. He had been entitled to conclude that the unequivocal assertions without qualification did not give “reasonable grounds to believe or that there was reason to investigate”(paras 29-32).

(4) In the context of a Reynolds defence, a proper assessment of the public interest was required for balancing against damage to the plaintiff’s reputation. No one reading the judgment could have been in any doubt that it was in the public interest (paras 33-36).

(5) The judge had failed to consider the second limb of the Reynolds privilege defence, that being, it was reasonable to include the particular material complained of. The judge had failed to address whether it was reasonable to include that particular material, and to consider editorial judgment. However, given his criticism of the article as a whole, his judgment implied that he would have concluded that it was unreasonable to include all the material complained of (paras 45-48).

(6) The single meaning rule did not apply for the purposes of Reynolds privilege. The failure of the judge to address the question of alternative meanings was a cause for concern.

(7) The judge had carefully and correctly referred to the guiding legal principles in determining quantum in defamation cases, including comparison with personal injury awards in Northern Ireland.

Fulton v Sunday Newspapers Ltd [2017] NICA 45 (11 August 2017) 

a)     Background/Legal Issues: The Court held that there was a public interest in exposing the appellant’s alleged paramilitary influence in a loyalist area of Belfast which the investigations conducted by the newspaper had uncovered. The appellant appealed against the dismissal of his claim for damages and injunctive relief against the respondent newspaper under the Protection from Harassment (Northern Ireland) Order 1997. The appellant’s submissions were as follows:

                          i.          the statutory tort of harassment was intended to protect intrusion into a person’s private and family life. He asserted that the use of pejorative nicknames had been abusive name-calling, some details of the allegations had been found to be incorrect, and that the publication had referred to an affair and had inferred that he had no means of funding his lifestyle;

                         ii.          the judge had taken account of matters which had not been known to the respondent at the time of publication, and the articles had been published in bad faith; and

                        iii.          there was no reference to public interest in the Order, and reasonableness could not be found simply by establishing that the publisher had acted rationally.

b)     Decision: Appeal dismissed. The appellant’s submissions were not consistent with the case he had made in his statement of claim that the respondent’s conduct had contributed to a risk to his life and caused him alarm and distress. It was not open to the appellant to completely alter the basis of his case eight months after judgment.

The Court noted that there was a difference between rationality and reasonableness. Reasonableness was a more demanding objective standard requiring the publisher to satisfy the court that the circumstances were such that publication would not constitute an abuse of the freedom of the press. In making his judgment about reasonableness, the judge had taken into account the seriousness of the allegations and the fact that the appellant had not been questioned by police about them. It was an entirely appropriate role for the press to draw allegations of serious wrongdoing to the public’s attention. The respondent had established that its approach to publishing articles about the appellant was reasonable in the circumstances and that the publication was a robust expression of press freedom which the courts had a duty to protect.

Arthurs v News Group Newspapers Ltd ([2017] NICA 70) (22 November 2017)

a)     Background/Legal Issues: The application sought to prevent the ongoing publication of an article by The Sun newspaper that reported on the criminal convictions of the Plaintiff’s father. Claims were brought in respect of:

·       Misuse of private information; and

·       Breach of the Data Protection Act 1998.

b)     Decision: Appeal dismissed.

The Court of Appeal’s reaffirmed that the Plaintiff did not have a reasonable expectation of privacy in respect of his association with his father’s criminal convictions. It reached that conclusion because (i) he was an adult at the relevant time; (ii) he had voluntarily put himself forward for a public competition to perform on television, therefore putting himself in the public eye; (iii) when asked by the programme’s producers, he had not said that he wanted to keep his family’s background private, but instead had given selective information about his family background; (iv) his relationship with his father would have been well known in his local area; and (v) the link with his father had previously been disclosed in another newspaper, albeit without setting out the detail of his convictions.

c)     Other commentary: Despite finding the Plaintiff had no reasonable expectation of privacy, the judge proceeded to carry out the balancing exercise between Articles 8 and 10, which he concluded came down in favour of The Sun. The Plaintiff was correctly found to have failed at the first hurdle and that the second stage of the balancing exercise did not require consideration. The reporting restriction and anonymity order were subsequently lifted by the court and the Plaintiff was ordered to pay the Defendant’s costs.

JR20 v Facebook Ireland Ltd [2017] NICA 48 (19 December 2017) 

a)     Background/Legal Issues: The Court of Appeal was asked to rule on a decision of the Northern Irish High Court in which it found Facebook Ireland Ltd liable for misuse of private information arising from its hosting of three webpages on which abusive messages about the claimant had been posted. The private information consisted of the fact that the claimant’s grandchildren were Catholic, and an allegation that he was a police informant.

In summary, the issues were whether the judge had been correct to find that (1) the respondent had a reasonable expectation of privacy regarding the comments about his children; (2) the respondent had a reasonable expectation of privacy regarding the caption labelling him as a tout; (3) the appellant was responsible for the publication of those comments after the solicitors’ letter to the appellant asking that the material be taken down.

b)     Decision: Appeal allowed in part.

                          i.          Information about the grandchildren’s religion – The appeal court found that on the facts the claimant had no reasonable expectation of privacy. The disclosure had been made by their grandmother, and the grandchildren were adults. There was no question of damage to the grandchildren’s reputation. Any damage to the claimant’s reputation arose from his conduct towards his children, and he had not pleaded that the nature of that relationship was private.

                         ii.          The allegation of being an informant – The appeal court noted that the claimant’s letter before action did not refer to this allegation, nor to any webpage that contained it. Therefore the first time Facebook became aware of it was when it was served with proceedings. However, once that material had been served, Facebook should have taken the material down expeditiously, and the trial judge had been correct in concluding that it had failed to do so. Facebook was therefore liable for the publication of the allegation from the end of September until it was taken down on 9 October. Given the limited time period involved, the court reduced the level of damages to £500.

Olivia O’Kane is specialist media lawyer at Belfast solicitors Carson McDowell