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    Thursday, 11 November 2010

    Reframing Libel: taking (all) rights seriously and where it leads

    Last week at the Reframing Libel symposium at City University, Alastair Mullis and I offered a first airing of a paper we've been developing over recent weeks. A working paper version of this paper will be published shortly, and thereafter we hope to publish a more developed, academic version of the idea.

    For the meantime, the executive summary of the working paper (reproduced below) gives a sense of our argument and proposals:

    1. In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law. We offer a fresh analysis of the purposes of the law which culminates in innovative proposals regarding its substance and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation.

    2. The conclusions that we reach lead us to reject the overall approach taken in the Defamation Bill sponsored by Lord Lester. Though we agree with a number of his proposals and would support their adoption, we fear that overall the Bill will do little to reduce the existing complexity and expense of the law. Indeed, it may exacerbate both. Most fundamentally, we consider that the Bill addresses the problems of libel law through the prism of an over-weaned emphasis on freedom of expression, and therefore fails properly to triangulate the rights and interests of claimants, defendants and the wider public.

    3. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice, simplify processes and reduce costs for the vast majority of libel actions. In essence, our proposal involves the recommendation of a two-track libel regime.

    4. The first track in this new regime would comprise a much-simplified process. This could be administered by the High Court, but the function might instead be allocated to the County Court, the Tribunals Service, or an appropriately designed (self-)regulator. The overwhelming majority of cases would be addressed by this route. Damages would only be available for psychological harms protected under Article 8 ECHR, but would be capped at £10,000. Vindication would be obtained by an appropriate – and mandated - discursive remedy (correction; apology; right of reply; declaration of falsity). The remedy in damages for intangible harm to reputation would be withdrawn. Special damages for provable loss would be unavailable in this track. Determination of the meaning of imputations would be much simplified by adopting the meaning(s) inferred by the claimant subject to a test of capability / reasonableness / significance. Truth and fair comment would remain as the primary defences, while in appropriate cases the defendant would also be able to rely on absolute, traditional or statutory qualified privilege. The rationale underpinning the Reynolds public interest defence in track one would disappear. The approaches to substantive questions suggested here would very significantly reduce the complexity and cost associated with particular cases. Hence, it would reduce the chilling effect of the law on publication, and markedly enhance access to justice for defendants and claimants.

    5. The second track would be limited to the most serious and/or most damaging libels. Cases would proceed down this track only where special damages for provable loss are claimed, or where psychological harms protected under Article 8 are severe so that the track one procedure would be manifestly inappropriate to deal with the case. Track two cases would continue to be heard in the High Court. As in track one, the remedy in damages for intangible harm to reputation would be unavailable, and vindication would be obtained by a discursive remedy. Where proven by the claimant, special damages would be recoverable. Uncapped damages would be available for Article 8 psychological harm (although a de facto cap would remain by pegging to damages recoverable for physical injury). On account of the power of the court to award very substantial damages and the likelihood of significantly increased costs, the potential pre-publication chilling effect requires the availability of a Reynolds-style public interest defence in track two. Where the defendant relies on Reynolds, however, proper recognition of the underlying principles of freedom of expression and the importance of reputation require that the defendant provide either a right of reply or a notice of correction with due prominence. Truth and/or fair comment would remain available, and in appropriate cases the defendant would be able to rely on absolute, traditional and / or statutory qualified privilege.

    6. We envisage that adoption of the above scheme would also provide significant incentives for complaints to be settled quickly between the parties without recourse to the formal legal regime. We recognise that the availability of track two may continue to facilitate the abusive threat of legal action, but suggest that claims to have suffered severe Article 8 harm or particular losses could be easily identified and quickly dismissed by the court if unsubstantiated. We also recognise that the releasing of media defendants in most cases from the risk of very significant legal costs and damages may encourage ‘game-playing’ by some organisations. In our view, the blunt constraint currently afforded by high costs are adequately substituted by obliged dedication of space to accommodate discursive remedies and the loss of credibility that would go along with such repeated emphasis on poor quality journalism. We do not shy from the fact that these remedies themselves involve interference with defendants’ Article 10 rights ‘not to speak’. We also note that discursive remedies afforded quickly are often the primary outcome that claimants seek.

    Thursday, 21 October 2010

    Lord Justice Sedley on media slant and the right to reputation

    Media Lawyer has reported a number of interesting comments made by Lord Justice Sedley yesterday at the Thomson-Reuters/Justice conference on human rights. He is reported as having noted recent moves by the courts "away from some of the rigidities and artifices of libel law". He also warned, however, that:

    it is an important fact in Convention law and in human rights law that care must be taken not to confuse the noise that the media are able to make with public opinion... public opinion I sometimes think is in large part an echo chamber inhabited when one gets there by leader writers and public moralists and perhaps not many other people... there are interests which do not feature in the conventional account of public opinion - and the right to reputation is one of them - which do have to be watched and guarded.
    The full transcript of the speech may be made available anon. In addition, Lord Lester was speaking at the event on human rights under the new government, while there was also a session on the right to reputation that was to be led by Heather Rogers QC and Padraig Reidy of Index on Censorship. I haven't yet come across any report on what was said in those sessions (presuming that Lord Justice Sedley's comments were made during his plenary).

    Friday, 15 October 2010

    Media Futures: keynotes from the Belfast Media Festival

    Last week saw the inaugural Belfast Media Festival which was aimed at projecting forward on what might / could be the shape of the media sector in Northern Ireland in the coming digital years (the sector is already one of the major employers in the province).

    The Festival included five keynote speakers:  Peter Johnston (Director BBC NI); John Linwood (Chief Technology Officer, BBC); Janice Hadlow (Director BBC2); Sir Bob Geldof, and Martin Davidson (BBC Commissioning Editor). Videos of these sessions are available here.

    In particular, see the presentation by John Linwood which gives an interesting and concise overview of the possible future(s) of audio-visual (interactive) content delivery, and also then the remarkably incisive speech by Bob Geldof on the future of journalism (interesting and engaging from the start; riveting from about 20 mins).

    Tuesday, 5 October 2010

    Brand on celebrity; Dispatches on phone-hacking

    There have been a couple of interesting items on tv in recent days re media law issues. First, Jeremy Paxman - clearly a fan - conducted an interview with Russell Brand which highlighted issues such as the 'compliance culture', privacy and celebrity.

    Secondly, last night's Dispatches on Channel 4 saw Peter Oborne analyse the phone hacking scandal and probe the issue of quite what Andy Coulson knew (this will be available on 4OD shortly).

    Thursday, 9 September 2010

    Understanding Rooney: privacy and prior publicity

    The recent spate of publications regarding the private life of Wayne Rooney is difficult to understand. It has been suggested that he had some notice of what was to come but nevertheless did not seek interim relief to prevent publication. In a detailed post coupled with an interesting follow-up, the editors of the Inforrm blog express some surprise as the stories appear to involve a clear misuse of private information and there does not appear to be any substantial public interest. The brouhaha about brand development and maintenance is just that.

    The Inforrm editors also quote suggestions made elsewhere online to the effect that the identity of the duty judge - Judge Tugendhat as opposed to Judge Eady - may have influenced the choice not to proceed, and that the legal pendulum may be swinging back so as to permit kiss-and tells. Like them, I don't think either of these arguments is particularly tenable. Having recently had occasion to read through all the decided privacy cases from the last decade or so, I haven't detected any particularly obvious divergence between the views that tend to be expressed by those two judges.

    Much of what has been published in this instance, and on a number of other occasions of late is certainly prima facie actionable. So what is going on. For me there are three explanations: (a) the media have something else on Rooney and he has accepted this spate of stories in exchange for non-publication of something worse (hmmm, 0.0001% likely, and what could that be?); (b) the media are publishing in the full expectation that he will not subsequently sue (this might explain the seeming 'in for a penny, in for a pound' mentality that has now seen the tabloid pages carry Rooney's mug for five consecutive days, but it doesn't explain why he didn't seek an injunction), or (c) there is more to the argument regarding prior publicity that the 'public interest' alone.

    Focusing on (c), remembering that every privacy application will involve 'an intense focus on the facts of the case', and relying on Tugendhat J in Terry (a decision questioned by some) here is an attempt at explanation. Prior publicity is relevant to the claim for misuse of private information in a number of places:
    • first, at the first stage of analysis when the judge is determining whether a privacy interest is engaged at all;
    • second, when determining whether there is a publication interest argument to be weighed against privacy in the balancing exercise, but also
    • thirdly, in determining how strong the privacy interest in play actually is.
    If the privacy interest can be shown to be weak, then it is at risk of being outweighed by even a minimal countervailing freedom of expression argument. As the PCC Code notes, there is a public interest in freedom of expression itself (although one might add that such a public interest will usually be outweighed by any significant privacy component). [One is reminded here of the decision of the Irish Supreme Court in the sources case Keena, in which what the judges considered to be the very minimal expression interest held by the journalists was nonetheless sufficient to outweigh the nugatory interest of the Tribunal claimant in receiving the information sought - hardly a great day for freedom of the press as it was supposed to be by some]

    Hence, prior publicity can be important not just for the support it might offer to a public interest argument (eg correction of specific misrepresentation or exposure of hypocrisy), but also in providing evidence as to the valuation placed on the information by the particular claimant. If past revelations suggest that the claimant generally plays fast and loose with such matters, it becomes difficult to contend that such information has now become somehow especially private in character. Other explanations for interim applications - for example, protection of commercial value - become more tenable. This was the view of Tugendhat J in Terry [2010] EWHC 119 (QB) (at [127]), and of Lord Phillips MR in Douglas v Hello! Ltd [2005] EWCA Civ 595 (at [107]). The latter explained that:
    to the extent that an individual authorises photographs taken on a private occasion to be made public, the potential for distress at the publication of other, unauthorised, photographs, taken on the same occasion, will be reduced.
    It is also a view set out in the second cumulative supplement to Tugendhat and Christie (at 150):
    if a claimant has sold stories about one or more aspects of his or her private life to the media or otherwise courted publicity about that private life, this will surely be a relevant circumstance to be taken into account in the proportionality assessment… voluntary exposure to prior publicity of a similar nature might evince a lack of concern for disclosure of intimate personal facts, thus reducing the weight to be accorded to the claimant’s rights. It might also diminish the likely damage.
    Contrast those cases in which claimants have taken steps to defend their intimate details and therefore might expect the courts to be more ready to assist them (See, for example, the efforts made by the (representative) claimants in McKennitt v Ash [2005] EWHC 3003 (QB), and Murray v Big Pictures (UK) Ltd [2007] EWHC 1908 (Ch)).

    I confess that I haven't followed the past public musings of Wayne Rooney esq, but the notion that he has just told his wife 'to get over it, as its no big deal' suggests that this argument may have been floatable here. Either that, or he likes to have sex wearing a Chelsea shirt (see (a) above).

    Wednesday, 28 July 2010

    Two tribes: Mrs Justice Sharp on media lawyers

    Great quote today from Mrs Justice Sharp when giving her decision on costs in the case of Dee v Telegraph Media Group Ltd [2010] EWHC 1939 (QB):

    It would be a rare case where both sides do not feel that the other has acted unreasonably, and unfortunately, an even rarer one, where there would not be at least a measure of truth in such a view.
    In the decision itself, the judge refused an application for indemnity costs made by the newspaper, and a cross-submission for an issue-based order (lowering the proportion of costs that the defendant would receive) made by the claimant.

    Sunday, 25 July 2010

    Harassment by publication case fails

    At the end of last week, a district judge found there was no case to answer in a case brought (presumably) under section 2 of the Protection from Harassment Act 1997 against a former lecturer in the Music Department at Kingston University. The lecturer had published and regularly updated a website under the, perhaps provocative, domain name of sirpeterscott.com (the name of the university's vice-chancellor). It evidenced a range of practices relating to his own employment dispute and other events at the University, and emphasises the 'public interest' nature of its content.

    On one level, this was just a putative instance of harassment by means of repeated publication akin to Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233. In the aftermath of that case, one commentator suggested that use of the available cause of action in such circumstances “is now becoming increasingly common” to the point where it may be seen as “a replacement for libel claims”. This point may be overblown, but there has been at least one subsequent case of this type pursued to a conclusion, albeit that there the requisite course of conduct was not demonstrated on the relevant facts (Ewing v News International Ltd and Others [2008] EWHC 1390). Certainly, here the university v-c maintained that the objection to the website was specifically the use of his name and the publication of a number of supposedly untrue allegations.

    In this case though, the proceedings were based upon the criminal law provisions of the Act, and were not brought by the University directly using the section 3 statutory tort. This is not a little surprising. Perhaps having already expended in the region of £0.5million on legal costs with regard to its dealings with the lecturer, the university sought to shift the burden.

    Given that none of the aggravating features of the Thomas case seem to be at all present, it is somewhat perplexing that the prosecution got off the ground. Section 1(3)(c) provides that any harassment will benefit from a lawful excuse if “in the particular circumstances the pursuit of the course of conduct was reasonable”. In Thomas, Lord Phillips MR stated that in general “press criticism, even if robust, does not constitute unreasonable conduct” (at [34]). He added that “before press publications are capable of constituting harassment, they must be attended by some exceptional circumstance which justifies sanctions and the restriction on the freedom of expression that they involve”, and concluded that “such circumstances will be rare” (at [35]).* There is no obvious reason why a lone blogger or web publisher should not, prima facie, benefit from the same interpretation.

    The background to this case is something of a tangled web. It is detailed on the impugned website, and discussed at some length in comments posted on a report of the proceedings in the Times Higher. It is certainly the case, as a number of the posters - including the lecturer himself - note, that there is nothing obviously abusive about the content. Reportedly, the police also took the view that "the computer sites listed do not contain content that is consistent with any harassment". On a first glance, it does seem a remarkable attempt by the university to limit the freedom of expression of the lecturer involved, and one in which the role of the prosecuting authorities require some explanation.

    * it is possible to quibble over whether this is entirely correct, ie the section 1(3) excuses do not negate the harassment (which relates to the effect on the vivtim of the course of conduct), merely excuse it.

    Thursday, 8 July 2010

    Thoughts on Lord Lester's Defamation Bill

    Lord Lester recently introduced a bill on libel reform to the House of Lords. This is to have its Second Reading on Friday. An explanatory note was made available a couple of weeks ago.

    The Bill focuses on revising the substantive law. It does little on the issue of libel procedure, and nothing on the reform of costs. Together with Alastair Mullis, I've penned a critical piece that can be found on the Inforrm blog. We hope to see a longer version of the paper (which is currently available in draft) appear in Communications Law later this year. In short, we see the Bill as the proverbial curate's egg. It is a strong and positive effort, but we hold real concerns over a number of the proposed revisions and conclude overall that it is too slanted in favour of freedom of expression.

    Wednesday, 30 June 2010

    Debate on prior notification obligations in privacy cases

    Max Mosley has asked the European Court of Human Rights whether the UK government should be obliged to introduce some form of prior notification obligation in privacy cases. As noted previously, I have recently had a paper published on that theme. A shortened version of that paper can be read on the Inforrm blog. Max Mosley has now published his response to my paper. His salient argument can also be found on the Inforrm blog.

    Wednesday, 16 June 2010

    New paper: Prior Notification in Privacy Cases - A Reply to Professor Phillipson

    I have a new working paper out (title as above) in the LSE Law, Society and Economy Working Paper Series. As implied by the title, it is a response to Gavin Phillipson's intelligent and persuasive discussion published in the first volume of the Journal of Media Law on the prior notification obligation for which Max Mosley is currently petitioning the European Court of Human Rights (see here, here and here on the Inforrm blog).

    The paper can be downloaded here or here. An improved version will be published later this month as (2010) Journal of Media Law, 2, 49-65 [update - the JML paper is now out. For those at LSE, it can be accessed on the Ingenta database].

    An abstract for the working paper is as follows:

    In a recent edition of the Journal of Media Law, Professor Gavin Phillipson considered whether the United Kingdom must impose a prior notification obligation on the media in respect of stories that concern the private conduct of individuals. Such a notification requirement would allow time for the subjects of such stories to seek interim relief to prevent publication. Max Mosley has asked the European Court of Human Rights to oblige the UK to introduce such a rule. Professor Phillipson concluded that Mosley should win his case. This paper proceeds, first, by questioning the fundamental premise of the Phillipson / Mosley argument: that damages are inadequate to compensate harms done through publication of private information. Secondly, it considers the practical ramifications of the imposition of a prior notification requirement, both in terms of the ‘workability’ of a legal obligation and the impact it would have on media freedom. Thirdly, it airs the question of whether – in light of the margin of appreciation afforded to contracting states – it would be legitimate for the Strasbourg court to compel the introduction of a specific measure to assist the protection of privacy. The paper concludes that the European Court should not find the United Kingdom in breach of its obligations. Nevertheless, it closes with reflections on the desirability of prior notification, and the availability of other means to encourage the practice.

    Monday, 31 May 2010

    'Twelve good men and true' sitting on a wall: juries in libel

    The issue of whether libel trials require juries has become a key focus for debate in the context of reform.  In his final report on the costs of civil litigation, Lord Justice Jackson mooted the possibility of this change. In our paper on reform options, Alastair Mullis and I explicitly cited this possibility as a potentially desirable 'cost-saving process change'. In its report, the Libel Reform Working Group found that views were mixed on the desirability of removing juries altogether, but suggested that the determination of meaning might somehow be expedited (at [91]-[100]).

    On the flip-side, there are obviously risks in allotting the role regarding the determination of meaning to a sole judge. As has been illustrated of late, parties will not always get the meanings they want. Moreover, very few cases ever reach the full trial and so the savings in cost will usually be negligible (although the perception that costs will be lower might see more cases reach the trial stage). For some, there is also a point of principle at stake: the 'constitutional' right to have a jury determine meaning.

    In this context, Inforrm has a very interesting blogpost this morning regarding an as yet unreported preliminary ruling in Fiddes v Channel Four. It seems Mr Justice Tugendhat may have preempted the reform debate on grounds, inter alia, of the importance of freedom of expression.

    Sunday, 30 May 2010

    The costs of confidence: Irish Times applies to Strasbourg

    The Irish Times has applied to the European Court of Human Rights with regard to the adverse costs order that it sustained following the decision of the Irish Supreme Court in Keena.

    Update: see this from Eoin at Cearta.ie

    Friday, 28 May 2010

    Who's got the one-track mind? the libel claimant's story

    In years to come - if it isn't happening already - political science students will be studying the libel reform campaign, its personalities, methods and outcomes from divers theoretical perspectives. For now, its all still a whirl. Its to be hoped that what comes out of the vortex will be fair, procedurally sound, less costly all round, and sustainable. The singular success of the libel reform movement has been to focus attention and to ensure that many heads address the complex issues. Its singular failure would come to pass if we trip into rushed and piecemeal reform. We've almost made that mistake once (1,2). Beware the (online) free speech nympholeptics!

    Today there was a small but important event; another reminder to everyone that this is not a battle between the good and the evil, the honorable and the avaricious, liberals and 'illiberals' (the last was when Carter-Ruck won a libel case... for a scientist... on a CFA). A claimant's story got told - and told fairly and well.

    Read it for yourself here, and when you're done try this for a further insight (this time into the experience of being at the eye of a media storm).

    ... and hat's off to the Guardian!

    Thursday, 27 May 2010

    Brave new world? Lord Lester's defamation bill

    Lord Lester's much-trailed (1, 2) Defamation Bill has been published today having received its first reading in the House of Lords yesterday (no date yet for a 2nd reading). It is available here. There is - already! - a searching commentary on the Inforrm blog. In light of the Coalition's commitment to a review of the law, the Bill should provide a useful vehicle for further political consideration.

    Wednesday, 26 May 2010

    Lord Steyn on the need for libel reform

    This evening Lord Steyn delivered the Annual Boydell Lecture at the Inner Temple Hall. He took as his theme, 'Defamation and Privacy: momentum for substantive and procedural change?' and offered a somewhat distinct perspective to that propounded by Lord Hoffmann earlier this year. Here are some extracts from the transcript (which (a) hasn't been checked against delivery, and (b) can be obtained from me if it isn't available elsewhere):

    It is (I believe) a fact that very often British newspapers, when sued in libel, give up and settle when one would not expect them to do so... Libel law is tilted against the media.

    Some libel specialists question that libel tourism is a significant problem. In my respectful view the concerns of the Lord Chief Justice [given in a speech to the Society of Editors on 16 November 2009] are well-founded. A combination of the multiple publication rule, and the even a small number of internet readers of the United Kingdom, has created the risk of a cause of action here, and opened the door to libel tourism.

    Re Reynolds: The idea was that over time a valuable corpus of case law would be built up. But the defence failed. Optimism about the practical utility of Reynolds privilege unfortunately proved misplaced. The great majority of Reynolds defences failed at first instance... As a matter of precedent Jameel did not amount to the much needed critical re-examination of Reynolds. Unfortunately as matters stand, the Reynolds privilege will continue to complicate the task of journalists and editors who wish to explore matters of public interest and it will continue to erode freedom of expression

    Yet, re the 2009 Canadian Supreme Court judgments of Grant v Torstar and Quan v Cusson which many have seen as vindications of the Reynolds approach: luminous judgments... which in effect change the existing rules... The Supreme Court recognized the importance of a robust media in protecting freedom of expression

    Re the recent Singh case: Fortunately there is now, among the senior judiciary, in other respects considerable momentum for substantive improvement of libel law. An enormous advance is the case of Dr Singh It is not for the courts in cases involving scientific controversy to disentangle fact from opinion. To introduce the chilling impact of litigation in this area is absurd

    Commending the 2008 book Defamation and Freedom of Speech by Dario Milo: The author puts forward a number of important arguments which require serious consideration... he challenges the common law presumption that defamatory statements must be presumed to be false... makes a strong case that a plaintiff should have to establish a lack of care for public speech defamation... argues that the victim of a slur on matters of public concern must prove that he suffered actual damage to his reputation... A practical point to which I want to direct attention in this book is Milo‘s observations about the appropriate fault element for secondary distributors such as internet providers and booksellers. He argues powerfully that the standard should be gross negligence... these ideas ought to be considered in an open minded way in order to render our defamation law fit for purposes... I see no reason why Milo‘s analysis cannot be adopted

    I do not think the developments I have discussed can be left to the organic development of the law. Legislation will be necessary.

    On practical aspects of libel and privacy law: My understanding is that a high level inquiry will deal with this subject. I hope the result will be that super injunctions will never, or virtually never, be granted... [and] it seems to me important to examine also the question whether in the area of libel the use of specialist judges is necessary... One accepts that in certain fields there is an advantage in using specialist judges... [but] why are specialist judges required in libel cases? The types of issues involved in libel case can quite appropriately and conveniently be tried by any Queen‘s Bench judges. Nothing in recent experience of libel cases demonstrates a clear advantage in using specialist judges.

    Thursday, 20 May 2010

    Stop whinging, get filming? abortion services ads on tv

    It has been announced that next Monday, Channel 4 is to carry an advertisement for abortion services paid for by Marie Stopes International (although not in N.Ireland). The advert will then be screened a number of further times throughout June. The advert evades the general restriction on such advertising imposed by the Broadcast Committee of Advertising Practice by dint of the non-profit status of its sponsor.

    Anti-abortion groups are said to be outraged and plan to challenge the legality of the decision (1,2,3).

    An alternative for the ProLife Alliance, the Society for the Protection of the Unborn Child, or others might be to produce their own adverts and present them for airing to the broadcasters.

    Any such advertisements would likely be faced with swift rejection on the basis of the ban on the broadcast of 'political' advertising that is now reflected in ss.319 and 321 of the Communications Act. The groups would then be free, however, to test a possible 'loop-hole' in the legislative restrictions previously identified by Lord Scott.

    Such an approach has been tried - and failed - before of course (most recently by the Animal Defenders International). The ProLife Alliance went so far as to register as a political party and to stand a sufficient number of candidates in Wales in the general election of 2001 to warrant a party election broadcast. They were denied the opportunity to broadcast the film as originally produced by a collective decision of UK broadcasters based not on objections to political advertising, but rather on the offensive material restriction. Neverheless, the subsequent majority decision of the House of Lords when the group sought judicial review demonstrated that we enjoy only a simulacrum right to freedom of political speech in the UK.

    When ADI sought a section 4 declaration of incompatibility regarding the ban on political advertising from the House of Lords, the court unanimously refused. The law lords considered that the restriction on freedom of speech was justified by the perceived need to prevent wealthy groups from dominating the public sphere (this conclusion was questionable on a number of bases). Having accepted the Government's (palpably untenable) line that there was no way in which a less restrictive mechanism could be devised, they said the restriction was necessary and not disproportionate. The Strasbourg court has repeatedly disagreed (see cearta.ie for the latest installments).

    Interestingly though, in part responding to elements of Strasbourg rulings, in ADI Lord Scott insisted that the House of Lords should not:

    be taken to be franking sections 319 and 321 against any possible attack made on article 10 grounds. The width of the statutory prohibition is remarkable... a good deal of commercial advertising is likely to be objectionable to the principles of some section of the viewing public. For example, the broadcasting of an advertisement encouraging people to patronise some particular zoo or circus would be likely to offend ADI and its supporters; the broadcasting of an advertisement encouraging people to eat burgers of various sorts would be likely to offend organisations that disagree with the manner in which beef cattle are reared or slaughtered or both; the broadcasting of advertisements encouraging people to buy a turkey for Christmas dinner would be likely to offend organisations who want the intensive rearing of poultry banned; and so on. Why should these organisations not counter the broadcasting of advertisements that offend their principles with the broadcasting of their own advertisements promoting their principles? It was not suggested that the purpose of ADI's "My Mate's a Primate" campaign was to counter the broadcasting of advertisements promoting any zoo or zoos in which primates are kept in cages but if that had been the case the arguments justifying the statutory prohibition might have been difficult...I conclude, therefore, that there may be respects in which sections 319 and 321 are incompatible with article 10 (at [41]-[42]).

    Any takers?

    Monday, 26 April 2010

    Council of Europe and ELSA essay competition: freedom of speech

    In cooperation with ELSA (the European Law Students Association), the Council of Europe has launched two competitions to mark the 60th anniversary of the European Convention on Human Rights. The competitions are open to law students across Europe.

    Under the slogan 'Our Rights, Our Freedoms', the competition is designed to appraise the achievements and shortcomings of the Convention and of its monitoring organ the European Court of Human Rights. The subject of the essay competition is:

    What is the role of freedom of speech in a democratic society and where are its limits?

    The theme for the photography competition is the impact of the Strasbourg human rights protection system on the everyday lives of Europeans.

    There are three individual prizes in the essay category and three group prizes in the photo report category. In the essay category, the prizes are:

    1st prize: 3,000 €
    2nd prize: 2,000 €
    3rd prize: 1,000 €

    The group prizes in the photo report category are:

    1st prize: 5,000 €
    2nd prize: 3,000 €
    3rd prize: 2,000 €

    Further guidance can be garnered from the competition website.

    Thursday, 22 April 2010

    Prior notification obligations are like buses...

    An interesting decision was handed down by the High Court today with regard to the process by which interim injunctions are awarded in privacy cases. It was delivered by Mr Justice Eady (TUV v Person or Persons Unknown [2010] EWHC 853 (QB)) and concerns the extent to which a claimant seeking an injunction is bound to notify third party media organisations of pending applications for interim relief so that they might present legal argument to the court.

    Mr Justice Eady noted that it would not be "appropriate to adopt a blanket approach or apply a rule of thumb" (para 23), and that "a sensible balance of competing rights would generally be achieved by requiring them only to serve those whom they have reason to believe will have an interest in the story. They should not be required to speculate or guess, but if there are solid grounds in the light of the available evidence to think that a particular media group has shown an interest in the material, it is right that they should be notified "(para 24). Hence, the law "should only impose an obligation to notify those who are already believed to have shown some interest in publishing" (para 26).

    The issue mirrors the case brought by Max Mosley to Strasbourg (accepting that in his scenario the court is not exercising any power to award or not award an injunction, rather it is not being allowed an opportunity to do so by the choice of the media organisation - see the Inforrm blog for links to the intervention arguments proffered to the court by a number of media bodies and others), and obviously picks up similar issues to the Irish case Meegan decided recently under the new Defamation Act there - see the Irish Times and Inforrm.

    Wednesday, 7 April 2010

    Inquiry into injunctions in libel and privacy cases

    The Master of the Rolls, Lord Neuberger, has announced the launch of an inquiry into the award of interim injunctions in publication cases. The news release can be found here.

    The inquiry is to focus on both "the issues around the use of injunctions which bind the press", and "so-called ‘super-injunctions’". It is to be undertaken by a highly impressive panel. Much attention has been paid in the press to the latter of these heads. For me, the former is by far the more important, or rather the super-injunctions issue is only one of a range of important matters falling under the broader theme.

    Obviously, the issue being taken to the Strasbourg court regarding prior notification in privacy cases may be one theme. Another was highlighted in the John Terry case: the award of injunctions against particular, as yet unidentifed, but identifable 'persons unknown' which - when coupled with the Spycatcher principle that extends the effective reach of injunctions via contempt of court - can prevent the media from commenting indefinitely without first allowing them the opportunity to gainsay the award. A third, and perhaps the most important, is what to do about the imbalance between the thresholds in privacy vis-a vis defamation actions. Should we equalise up to, or down from the rule in Bonnard v Perryman? If neither, should it be for judges or for claimants to determine whether an action is really about reputation or about privacy (and hence that one standard or the other should apply).

    For me, many of the problems in this area were caused by the drafting of section 12 HRA. This refers to the need to recognise the importance of the Convention right to freedom of expression. By citing the Convention right, and not merely referring, say, to the importance of a free press in a democratic society, the provision encourages the import of arguments based on hypothetical rights into the interim-stage consideration (Article 10, of course, comprises not only Article 10(1), but also Article 10(2)). The court is not at that stage able to determine the existence or relevance of the 'rights' in play. Thus, judges take what might ultimately be determinative decisions affecting actual rights on the basis of next to no pleading of evidence. In the past, judges at the interim stage would do their utmost to avoid relying on the substance of the case when deciding on whether to award injunctions, explicitly on the basis that they could not second-guess what might be presented to them in the full trial. If only it were still so.

    Friday, 2 April 2010

    Bad Smell all round? the murky world of cheque-book journalism


    Its been much reported in the last few days that the police officer who had been charged with assaulting a woman at the G20 protests last April has been acquitted. A primary witness - Nicola Fisher, the woman who suffered the beating - refused attend the court to provide evidence. She was said to be depressed and concerned that the defence would focus on her lifestyle and background.

    One aspect of the 'background' that would certainly have been picked up by the defence was the fact that Ms Fisher had sought representation by Max Clifford and had reportedly received a very substantial sum in return for an exclusive interview with a national newspaper. On April 16 last year, the Sun carried a spoiler decrying the fact (perhaps they lost out in the bidding) that she had received a reported £50k. They complained that she had turned "a serious inquiry into a circus" by "touting her story to make a pot of gold". Sure enough, the next day the Daily Star carried an exclusive interview with the woman under the headline 'THUG COP GOT HIS KICKS FROM HITTING A GIRL'. It has since been reported that Fisher received 'only' £26k. By the time the interview was published, the police officer had been suspended and on any viewing of the evidence it must have been obvious that criminal proceedings might well ensue.

    The importance of all this does not rest in interrogation of the motives of the unfortunate Ms Fisher. Rather, it resides in the fact that the episode suggests that at least one, perhaps more than one, national newspaper remains perfectly willing to pay prospective witnesses in criminal proceedings.

    The payment of witnesses poses particular risks to the administration of justice. The fear is that they may result in miscarriages of justice, whether to the benefit or detriment of the accused person. This outcome might arise by different means. On one hand, an agreement may directly influence the testimony offered to the court by way of omission or embellishment of evidence by the witness involved. On the other hand, a jury that becomes aware of an agreement may discount the evidence provided should it feel that the relationship with the media party has undermined the credibility of the witness. A third possibility is that witnesses, having been paid in advance of proceedings decide that they cannot face giving evidence because of the vitriol that might come their way.

    Despite many instances giving rise to concerns, the policy response to this potential detriment to the administration of justice has been limited. It is a widely-held view that while existing rules on contempt might apply to the behaviour, this will be only in the most unusual of circumstances. Nevertheless, no alternative legal solution has been forthcoming. Instead, despite undertaking repeated consultation exercises and promising legislation, the Government has sought to rely upon regulatory options offered by the Press Complaints Commission (and to lesser extent by Ofcom and the BBC Trust).

    The weakness of the law in discouraging witness payments was brought sharply into focus in 1996 by the controversy surrounding the trial and subsequent appeal of the serial murderer Rosemary West. It was discovered that as many as nineteen witnesses had negotiated arrangements with the media. Following her conviction, one of the grounds of appeal relied upon by West was that the possible tainting of evidence offered by a number of witnesses left the guilty verdict unsafe. The appalling vision was that of the possible exculpation of the perpetrator of the most heinous crimes as a direct result of media behaviour. Ultimately, the Court of Appeal concluded in the West case that the offers and actual payments to witnesses that had been identified did not undermine the verdicts. It suggested, however, that in some circumstances the payment or promise of payment to witnesses could put justice at risk.

    Between 1996 and 2003, there were various select committee interventions and governmental consultations and promises. The law was not revised however. Instead, the Government chose to rely upon "tougher media self-regulation". Baroness Scotland explained that the Government’s aim was to change and create a culture that would permeate across the newspaper sector, and that the PCC was best placed to effect such change. Having "hear[d] very clearly" from the Commission that it was willing "to discharge [its] duty" and "to change [its] rules and... code of conduct to reflect the sort of proper balance that we thought needed to be there", the Government was content to forego legislation [Culture, Media and Sport Committee [2002-03] Fifth Report: Privacy and Media Intrusion. HC 458-II, Q767]. She maintained, however, that should the Commission fail "to stamp it out both culturally and particularly so we have no more cases of this sort, then... we would have had to legislate" [Q763]. Presumably, the valency of this threat is a continuing one.

    Clause 15 of the PCC Code deals with this area of concern. Paragraph (i) installs an absolute rule of non-payment where proceedings are 'active' (as per the Contempt of Court Act 1981). Paragraph (ii) installs a presumptive rule of non-payment that applies where criminal proceedings are "likely and forseeable". Paragraph (iii) requires disclosure of any payment made before proceedings become active. Paragraphs (ii) and (iii) are subject to the free-standing public interest clause in the Code. In the case described above, it would seem that rules (ii) and (iii) applied but that no breach of the Code had occurred as the public interest clause could probably be invoked (although when might it not be given that we are talking about criminal events?), and the prosecution and defence were well aware of the fact that payment had been made. For its part, the PCC has always been remarkably sanguine (complacent?) about this issue, tending to cite the four or five very high profile instances as though they have been the only occurences of concern in decades.

    It can be reasonably suggested however, that a miscarriage of justice has occurred in this case, and that the payment made to the witness had some bearing on that outcome. This is only one instance, and its not a hugely significant crime (although the involvement of the police does ratchet it up somewhat). Nevertheless, it does seem fair to query whether the wished-for change in the culture of Fleet Street on payments to witnesses has in fact materialised, and in those circumstances whether the Government should look again at the appropriateness of self-regulation in this context.

    Thursday, 1 April 2010

    Comment on the Singh case: all's well that ends well?

    As noted below, Dr Simon Singh was this morning successful in his appeal against the findings on meaning of Mr Justice Eady. In a brief judgment - as befits the narrowness of the issues - Lord Judge CJ, Lord Justice Sedley, and Lord Neuberger MR ruled that Mr Justice Eady had erred in his approach to the issues at hand (paras 19 and 33). They cited Orwell and Milton in depicting "a pass to which we ought not to come" (para 23). It is heady stuff, and a welcome rebuttal - echoing Reynolds, Simms, and many other seminal cases - to those who allege that the British courts do not adequately countenance the centrality of freedom of speech to the democratic polity.

    Three questions now remain: (1) is this the end of this particular story (will the case go back to the High Court; will the BCA appeal on to the Supreme Court?); (2) in light of the judgment, is there still a need for further reform of defences in this area, or of libel law more broadly, and (3) was the Court of Appeal right (which might well bear on the second of the sub-queries in (1) above)?

    On question 1, time will tell.

    On question 2, the views of the campaigners for libel reform is that there is still need for further reform. As stated elsewhere, I'd tend to agree on this general proposition while not concurring that changes are necessary specifically in terms of the introduction of a new statutory public interest defence.

    On question 3, I think the weight of considered opinion (as far as I've been able to discern it) is that the court was indeed correct (the more blinkered adherents of the reformist movement will no doubt think it scandalous that the question could even be raised). However, here are some preliminary - and perhaps unsettling -thoughts.

    The court identified two key questions in the case. The first was whether the view presented in Dr Singh's article (set out in para 6) on the scientific validity of the impugned treatments should be treated as a statement of fact, or as a statement of opinion / a value-judgment. Dr Singh had been somewhat categorical in his presentation of his view on this, saying there was "not a jot of evidence" supporting the efficacy of the treatments concerned. The second issue concerned the meaning of the phrase "[the BCA] happily promotes bogus treatments", and whether it amounted to a statement of fact or of opinion. Mr Justice Eady had concluded that this amounted to the "plainest allegation of dishonesty and indeed... accuses [the BCA] of thoroughly disreputable conduct" (cited in para 7).

    In their judgment, the Court of Appeal adopted the dictum of Judge Easterbrook (US - famously, he of the 'law of the horse') in asserting that "scientific controversies must be settled by the methods of science rather than by the methods of litigation... more papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us" (para 34). This must be correct. The upshot re the first issue was that the statement imputing that the treatments in question were 'bogus' was a statement of opinion, albeit an emphatic one.

    With regard to the second issue, the meaning of the statement in question hence became something like: "the BCA happily promotes treatments that on my evaluation of the evidence are bogus". The Court of Appeal asserted that its finding on the first issue had the result that the second issue falls away (para 18); that "once [the first statement] is properly characterised as a value judgment, the word 'happily', even if synonymous with 'knowingly', loses its sting" (para 30). The court also doubted that "the judge was justified in any event in attributing to the word any significance beyond, say, 'blithely'"; they certainly did not agree that an imputation of dishonesty was in play.

    It is on this second finding - almost presumed by the Court of Appeal - that I hold misgivings. It is also this point - the supposed imputation of dishonesty - that is the essential basis of the BCA's complaint (at least, so much can be inferred from their press release following the ruling this morning). Dr Singh's article was intended strongly to present his view on the legitimacy of the treatments concerned; precisely to persuade the readers of the piece of the validity of his views (and his views are indeed very persuasive). They are also given credibility by the fact that their author is Dr Simon Singh, an esteemed public scientist. Having read the piece, we are not agnostic regarding the treatments concerned; we are not indifferent to their prescription. We would of course presume that the BCA knew at least as much about the scientific research in this area as Dr Singh.

    It is in this frame of mind, then, that we read the second contested statement. The sting of the allegation is not obviously drawn. 'Happily' does not easily collapse into 'blithely'. The appreciation that Dr Singh's assertion - indeed that any assertions on a matter of scientific controversy - can only ever be a value-judgment supported by reasons is almost beside the point. The imputation regarding the claimant's state of mind (knowing, dishonest, whatever) is not a matter of scientific controversy.

    On this reading, Dr Singh's article would have been entirely defensible if it had:
    1) merely stated a view on the scientific legitimacy of the treatments and noted that the BCA promotes them (leaving the reader to infer the next step)
    2) stated a view on the scientific legitimacy of the treatments, noted that the BCA promotes them, and asserted that 'I, Dr Simon Singh, think this is outrageous',
    BUT - because of what it implies - the article is possibly not defensible given that it:
    3) stated a view on the scientific legitimacy of the treatments, and noted that the BCA 'happily' promotes them.

    The distinction between (1) and (3) is the single word, 'happily': is that enough to make the difference? I confess to being somewhat uncomfortable with the distinction between (2) and (3). It rests upon the author saying what he thinks, and the author saying what the other person thinks. There may be an out: I may be wrong, but I think in ECHR jurisprudence the latter is considered a statement of fact but one which - because it is essentially unprovable - is treated as though it were a statement of opinion (? - this was the basis on which I was expecting Singh to win).

    It may be that liability is appropriate in these circumstances (although in the circumstances of this case, I'd be perfectly happy for these musings to be ignored). Even if it were so, Dr Singh and members of the broader libel reform campaign are surely correct to express their amazement that it takes two years and hundred of thousands of pounds to get to this point.

    Singh wins appeal in British Chiropractic Association case

    Simon Singh has won his appeal in a unanimous judgment of the Court of Appeal. Judgment is not yet available. Hence, its not yet clear what the broader ramifications of the ruling may be.

    Update: the ruling in British Chiropractic Association v Singh [2010] EWCA Civ 350 is now available on the bailii site.

    Wednesday, 31 March 2010

    Update on 10% success fee order - Commons difficulties

    The statutory instrument designed to implement the move to a 10% success fee recovery cap for CFA-funded libel cases, has hit a further snag. This time the difficulties have arisen in the House of Commons (see previous post re House of Lords and JR). A committee of MPs - including four Labour, three Conservative, and two Lib-Dem members - has voted 9-5 to require the matter to be considered on the floor of the House (details have been reported on the subscription news-source, Media Lawyer, but I can't find further info on the parliament.uk site - sorry! Update: but thankfully, Inforrm is better informed - see here).

    The measure may well clear its Parliamentary hurdles in the 'wash-up' before Parliament is prorogued for the election - the Government is said to be looking to find time for this to take place - but it is to the credit of both Houses that they have highlighted the weaknesses in this specific proposal.

    Libel-reformists have been expressing outrage on Twitter, and in particular are badgering Tom Watson MP (one of the Labour members). They would do well to read the evidence presented to the Lords Merits Committee on the inadequacy of the consultation and evidence relied upon by the MoJ (available here).

    Everyone recognises the need to address the costs problem in libel actions, but this specific solution is liable to create its own difficulties. It won't significantly affect the chilling effect of threatened actions on impecunious defendants, while it will deny access to justice for all but (i) claimants with the most clear-cut of cases (which tend to be settled immediately once raised), and (ii) wealthy litigants. Indeed, the utility of CFAs for defendants as well as claimants has been highlighted in a number of recent cases involving scientists facing libel suits.

    The proposed order is the proverbial 'bad law', based on political expediency and not any solid evidence base. As has been argued elsewhere, libel reform (the need for which is indeed pressing) must not be piecemeal and un(der)-principled.

    Tuesday, 30 March 2010

    Papers published on paparazzi harassment and libel reform

    I've had a couple of research papers published in the last months that may be of interest to some. If that's the case, please let me know and I'll be happy to forward...

    Scott (2009) Flash Flood or Slow Burn? Celebrities, Photographers and the Protection from Harassment Act. Media & Arts Law Review, 14(4), 397-424


    • Abstract: In recent months, a number of female celebrities have been awarded court orders under the Protection from Harassment Act 1997 to constrain the excessive behaviour of the paparazzi. This is a novel, but unsurprising, use of the statute. Indeed, what has been most startling in this development is the fact that the statutory cause of action has never formerly been deployed in this way in the United Kingdom. The aim of this paper is to assess why this has been the case. In doing so, it reflects upon opposing perspectives on the interaction between celebrities and the media; details the origins of the 1997 Act, its requirements, and their application to the newsgathering context; reviews the jurisprudential forebears to the recent actions that suggested that the Act could be deployed in a newsgathering context come the appropriate case, and considers the operation, strengths, and putative weaknesses of alternative regulatory options (in particular, that offered in this respect by the Press Complaints Commission). The paper concludes by highlighting a combination of factors that may explain why the Act has been used only now, by musing on the ramifications for celebrities and the paparazzi, and by reflecting on the likely future interplay between the legal and regulatory avenues oriented towards combating the problem of harassment by photographers and other journalists.

    Mullis and Scott (2010) Something rotten in the state of English libel law? A rejoinder to the clamour for reform of defamation'. Communications Law , 14(6), 173-183

    • I've commented on this paper on MediaPaL previously. It has since had a fair, if often critical, run in the broader media and policy circles.

    Politically motivated (?) 10% CFA success fee order gets rocky ride

    In January, the Ministry of Justice opened a consultation on the imposition of a 10% cap on the recoverable success fee for CFA-funded libel claims. This consultation closed some 4 weeks later. It culminated, with what might be considered impressive rapidity, in the presentation to Parliament in early March of a statutory instrument (the Conditional Fee Agreements (Amendment) Order 2010, made under section 58(4) of the Courts and Legal Services Act 1990) designed to put the policy change into effect.

    Interestingly, two weeks ago the House of Lords Merits of Statutory Instruments Committee drew 'the special attention of the House' to the measure, noting, "we regret that insufficient time has been allowed to produce a solution based on more robust evidence or on which there is broad agreement, and that might seem more likely to achieve the policy objective without the potential side effects". The Committee was worried about the haste with which the measure had been concocted, and noted that several other options on the table had been for some reason discounted.

    The Committee received a number of persuasive contributions questioning the legitimacy of the order - included in an appendix to their report - from such figures as Nicholas Green QC (Chairman of the Bar Council), Carter Ruck Solicitors, the Law Society, Professor Richard Moorhead of Cardiff University (who has conducted an important scoping review of CFAs in the defamation and other contexts for the MoJ), and Which? (welcoming the change).

    The Carter Ruck submission noted the "widespread concern within the legal profession that the proposed reduction in success fees would seriously reduce - if not eliminate altogether - the rights of ordinary individuals without substantial means to obtain access to justice in defamationa nd privacy cases". Professor Moorhead concurred: "I am aware of no objective evidence base from which the Government could draw its calculations for the 10% fee beyond that provided by those lobbying for one side or the other in the debate... without persuasive evidence to support it the basic economics of conditional fee agreements would suggest that at a level of 10% uplift would prevent all but the most meritorious cases from proceeding on a conditional fee. For rich litigants, this presents no problem, for poorer litigants this presents a major impediment to access to justice".

    In light of all these representations, a motion of regret was subsequently raised by Lord Martin (the former Speaker of the House of Commons), requiring the Order to be debated on the floor of the House of Lords. This was duly done last week, with the result that Lord Martin withdrew his motion. The debate was very noteworthy, however, for the contributions offered by Lords Martin, Woolf, Scott and Pannick.

    By way of aside, a lawyers' group has threatened to seek judicial review of the government's decision to introduce the new 10% cap on the basis, inter alia, that insufficient time was allowed for consultation, and that the government failed properly to take account of the impact on access to justice

    The most excellent Inforrm Blog

    Normally, new blogs of note just get posted up on the blogroll. That launched recently by Inforrm, however, is worthy of a more substantial trail. Its truly insightful, clear, and authoritative on matters concerning media law. Recent postings have focused on libel, privacy, harassment, freedom of expression and more. It will become essential reading - for me, it already is.

    Find it here

    Friday, 5 February 2010

    Lord Hoffman beats-up on the libel reform campaign


    In a speech made earlier this week, Lord Hoffman questioned at length and in persuasive depth a number of the bases of the current libel reform campaign. In doing so he echoed much of the critique offered in the report published recently by Alastair Mullis and myself. Or rather, he was somewhat more brutal.

    I haven't yet been able to find the speech online, although for LSE students a transcript is available on the LL295, LL4H2 and LL407 Moodle pages (others are welcome to contact me for a copy). Interestingly, you will find no coverage of the speech - or the Mullis-Scott report - in the mainstream newspapers who have been campaigning for reform, or on the pages of Index on Censorship, English PEN or the Libel Reform Campaign pages. So what has happened to the much-vaunted commitment to openness and democratic debate?

    The speech itself deconstructed the 'libel tourism' complaint, and in particular exposed the Ehrenfeld bandwagon. Ultimately, Lord Hoffman concluded that the complaint is essentially American in nature, and is borne of the over-weened value accorded - uniquely - to freedom of speech relative to other social values in that jurisdiction. He quoted a Canadian judge to emphasise the cost of the American approach: "an individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy". He was corruscating on the trend for US states to introduce libel blocking statutes. He was bemused by elements of the Index on Censorship / English PEN report. Notably, he drew a comparison between the sums that newspapers are willing to pay their sources for salacious stories - note the purported 250k pound price tag on Vanessa Perroncel's side of the JT affair - with the proposed cap on libel damages of a mere 10k. Its an important rejoinder to the one-sided media campaign on reform, and demands to be read by the assorted lovies who have added their undiscriminating ballast to that movement.

    That all said, for me, Lord Hoffman went a bit too far on the libel tourism issue. As highlighted in the Index / PEN report, there certainly is a chilling effect of English libel law on speech elsewhere - they cite noted instances from Eastern Europe for example - that does need to be addressed. Like them, we would be particularly concerned where this chill falls upon relatively impecunious defendants (human rights NGOs; local media in developing countries etc). It is uncertain quite how significant this problem is in fact (that is, once one moves past the easy rhetoric and bombast). Lord Hoffman asked for more data on this point.

    In our report, Alastair Mullis and I suggested that addressing the costs issue would go some way to alleviating the problem, and we note that the Government is seized of this issue. We doubt that in the more worrying cases that only addressing costs would quell the chilling effect completely. Hence, we suggested that it may be reasonable to introduce the opportunity for defendants to counter-sue in cases where the motivation of the claimant was manifestly just to silence critical comment.

    Has the worm turned? tabloid understandings of privacy law

    Yesterday offered two very interesting demonstrations of the changed perceptions of the strictures of privacy law in the wake of the withdrawal of the John Terry superinjunction (at least as interpreted by tabloid newspapers).

    First, you may recall that over Christmas the Sun carried a story about a premier league football manager who had visited a masseuse/brothel. At that point they felt unable to name the person in question. Yesterday, explicitly because they no longer considered themselves "banned from revealing the culprit's identity by creeping privacy laws based on the Human Rights Act", they named Avram Grant the person in question. Today they have some video and photos of the inside of the property in question (although notably not of events on the day in question that would by any interpretation leave them in the proverbial).

    Grant's wife indicated that they were not interested in bringing an action. Perhaps they should. If the Grants do not, then perhaps Eidur Gudjohnsen will. The Sun went on yesterday to name him as a further lover of Vanessa Perroncel. Ultimately, the current rash of expose behaviour is bound to lead, sooner or later, to further court consideration of what Article 8 requires. In the meantime, it seems that the tabloids are hoping to exploit the ambivalence in Mr Justice Tugendhat's nuanced discussion last week.

    Tuesday, 2 February 2010

    John Terry super-injunction case


    In the wake of the John Terry adultery super-injunction case its time to don one's grubby anorak - however fleetingly - rub hands, and self-immerse in the down and dirty world of... technical law. The transcript of Mr Justice Tugendhat's ruling on the case is available here. There has also been plenty of comment on the super-injunction theme generally (1,2,3,4).

    A few interesting points from the judgment:

    a) Tugendhat explicitly warned the media (see paras 11, 69, 129, 150) not to go further than the judgment allowed in presenting details of the story beyond the basic fact of the relationship. The absence of any threat to publish photographs or sensitive details was important.
    In light of what has come after, was this just the judge whispering in a storm of his own making? How does this plea for restraint sit against the reported auction for Vanessa Perroncel's side of the story (itself just the latest instance of the fine tradition of British cheque-book journalism). Newspapers would be wise to note the judge's closing sentiments:
    the judgment, by placing information in the public domain, does not undermine any remedy in damages Terry (or any one else) may ultimately be found to have against any publisher in respect of matters that may be published about the events to which this judgment relates.

    (b) Very interestingly, Mr Justice Tugendhat appears to be 'equalising up' the threshold test for the award of an interim injunction from the Cream Holdings standard for confidence cases to the higher Bonnard v Perryman standard for defamation cases on the basis that Terry's motivation was primarily protection of the commercial value of his reputation. Even though the formal cause of action said different, because the nub of the case was reputational it was treated in line with libel actions. Given the specific facts of this case, damages would be an adequate remedy at full trial and hence, publish and be damned.

    (c) The case can be seen as just an application of pre-existing principles given the relative weight of the interests at stake, OR a new departure rolling back from what - for some - had become an over-weened concern for Article 8 interests at the expense of freedom of the press. Pay your money, and take your choice.

    Friday, 29 January 2010

    BSkyB loses appeal bid

    Last week, BSkyB lost in its appeal to overturn the ruling of the Competition Appeal Tribunal with regard to its obligation to divest a portion of its stake in ITV. A transcript of the ruling can be found here.

    Lords Committee recommends part-privatisation of BBC Worldwide

    The House of Lords Communications Committee chaired by Lord Fowler has published an interesting report on the future of the UK film and television industries on Monday. Entitled The British Film and Television Industries - Decline or Opportunity?, the report is concise, informative and insightful on the history of both sectors, and future possibilities.

    The report makes recommendations in respect of tax relief and credit for the film industry, facilitating private investment, the future of the UK Film Council, camcording in cinemas, and the terms of trade between PSB channels and the independent production sector. The headline recommendation, however, concerned the support for the part prvatisation of BBC Worldwide (the commercial arm of the BBC) as a means to ensure the fullest exploitation of BBC content and brand opportunities.

    Thursday, 28 January 2010

    Something Rotten in the State of English Libel Law?

    Together with Alastair Mullis of the Norwich Law School, UEA, I've recently written a brief report on libel law entitled Something Rotten in the State of English Libel Law? A Rejoinder to the Clamour of Reform of Defamation.

    The report aims to orient the current debate on reform towards areas where change may prove constructive. There's an associated press release that summarises the report: Incoherent libel reform risks 'death of libel' researchers warn. The report itself can be found here.

    A central criticism is that newspapers - in the UK and the US - have so far allowed their vested interests - consciously or otherwise - to skew the public debate as aired in their pages. We're hopeful that they'll now play ball, and give the report a fair platform (it does after all present a balanced view and recommends further examination of areas in which, if action was ultimately taken, media concerns might be salved). We're not so naive as to hold our breaths while waiting...

    Thursday, 14 January 2010

    Lord Justice Jackson reports on costs review

    Lord Justice Jackson has published a series of recommendations for reform of costs and civil process rules following a lengthy review of civil litigation costs. Mr Justice Ross Cranston, a visiting Professor in the LSE Law Dept, acted as one of a number of assessors on the review.

    The package of reforms is intended to secure access to justice and reduce litigation costs. For example, it suggests that success fees and ATE insurance premiums should no longer be recoverable in conditional fee agreement (CFA) cases; that the general level of damages should be increased by 10% so as to offset the increase risk borne by claimants; a change in cost allocation rules as between the winners and losers in civil actions (claimants would not have to carry the defendant's costs if they lost, whereas defendants would have to carry the claimant's costs if they lost); allowing contingency fee agreements (which would permit lawyers to take up to 25% of damage awards), and establishing a costs council to review basic costs levels on an annual basis. The report also mooted whether there should be an end to jury trials in libel cases.

    Clearly, this all speaks directly to the much-expressed concerns regarding the 'chilling effect' of libel law on journalism in the UK and beyond. Costs have been the key factor in the campaign for libel reform pursued by a number of newspapers and free speech NGOs. Lord Justice Jackson's report makes specific recommendations with respect to libel proceedings (see Ch 32).

    There is a lot here to digest. There has to be a fear, however, that the uncertainty that would be created by changes such as those on costs allocation would be likely to militate against some potential claimants taking the risk of launching actions (1). It may also be that few lawyers would happily assume the risk of bringing actions where clients are relatively impecunious.

    Policy exchange publishes report on BBC / PSB

    The right-leaning think tank Policy Exchange has published a report on the future of PSB / the BBC, gaining much media-coverage (1,2,3,4). The essential theme is that the BBC should pull back from areas of its current range of content delivery so as to leave space for commercial providers. Wider recommendations include the privatisation of Channel 4, the sharing of the licence fee, the dissolution of the BBC Trust to be replaced by a generic PSB regulator, and the lifting of mandatory PSB obligations from other PSB providers (ITV, and Ch 5).

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