MediaPaL@LSE

Required reading: Tim Luckhurst on the predicament of journalism

2011-09-12T11:39:00.002Z

An excellent piece by Tim Luckhurst in the Times Higher - Black and white and dead all over? - reviews the current predicament of quality journalism. It sets the phone hacking scandal in context, and includes interesting reflections on the state of the business and the law. Its a useful corrective to what he describes as:

the glee with which the hacking scandal has been seized upon by politicians in all parties, elite liberal newspapers and several broadcasters.. [an] attitude... informed by ideology and self-interest and, sometimes, intensified by jealousy.

The Other Horse in Town: the joint committee on superinjunctions and privacy

2011-09-08T09:24:00.000Z

With the focus fixed firmly on phone hacking and the initiation of the Leveson Inquiry it has been easy to overlook the pending Parliamentary inquiry into the first of this year's hoohahs over privacy and super-injunctions. It has not yet been announced when the inquiry will begin, although it is scheduled to report by 29 February 2012.

Progress has been made, however, on the establishment, organisation and membership of the Committee. The Attorney General, Dominic Grieve, announced the intention to set up a Joint Committee to look into the matter on 23 May. The House of Lords then approved a motion establishing a Joint Committee on 27 June. The House of Commons subsequently did likewise on 14 July, at which time the Commons members were also named. The Lords then passed a futher motion appointing the Lords members on 18 July.

Hence, the 26 (!) strong membership of the Joint Committee is as follows:
Mr Ben Bradshaw (Lab)
Mr Robert Buckland (Con)
Philip Davies (Con)
George Eustice (Con)
Paul Farrelly (Lab)
Martin Horwood (LD)
Eric Joyce (Lab)
Mr Elfyn Llwyd (PC)
Penny Mordaunt (Con)
Yasmin Qureshi (Lab)
Ms Gisela Stuart (Lab)
Mr John Whittingdale (Con)
Nadhim Zahawi (Con)
Lord Boateng (Lab)
Lord Black of Brentwood (Con)
Baroness Bonham-Carter of Yarnbury (LD)
Bishop of Chester
Baroness Corston (Lab)
Lord Dobbs (Con)
Lord Gold (Con)
Lord Harries of Pentregarth (CB)
Lord Hollick (Lab)
Lord Janvrin (CB)
Lord Mawhinney (Con)
Lord Myners (Lab)
Lord Thomas of Gresford (LD)

The Committee itself is to upload its details onto the Joint Select Committee pages on the Parliament website shortly. This will happen once staffing for the committee has been arranged.

Thanks to David Foster of the House of Commons Information Office for collating the above information.

The future of investigative journalism, again

2011-08-25T19:16:00.000Z

The House of Lords Communications Committee is to undertake a fairly broad-ranging inquiry into the future of investigative journalism, and has issued a call for evidence to support this work. The areas in which it is seeking evidence are wide-ranging. The deadline for submitting written evidence is Monday 12 September 2011.

Police, Security and Photography in Public Places: passing the test?

2011-07-26T15:42:00.000Z

An interesting film reporting on an investigation into the policing of public and private space by private security firms and their reaction to photographers has been posted on YouTube. The film, entitled 'Stand Your Ground', was directed and produced by Hannah White and edited by Stuart York as part of the London Street Photography Festival.

Six photographers accompanied by videojournalists spent some time taking pictures of London buildings from public places on 21 June. All six photographers were stopped on at least one occasion by security personnel. Three encounters led to police action. The film highlights the lack of knowledge and training of security personnel, but also the fact that the police officers portrayed acted appropriately on each occasion.

The study comes in the wake of the 'I'm a Photographer not a Terrorist' campaign, which has recently published a pamphlet setting out its history and successes.

The experiences of photojournalists have not been entirely rosy of late. The Press Gazette noted recently that the media have been ordered to hand over Belfast riots footage to police, last month an MEN photgrapher was arrested (and then 'de-arrested') while taking photos of a street fight outside a court, while Roy Greenslade yesterday had the unusual story of the photographer, the police, Defra and the parakeets.

A (not entirely satisfactory) remedial order repealing sections 44-47(1) of the Terrorism Act 2000 and introducing replacement powers as a new s 47A was made by Home Secretary Teresa May in March of this year (see here for the explanatory note). Under a new s 47B, the Home Secretary was obliged to publish a Code of Practice on the use of this revised power (see section 4.5 on photography / journalism). Developments in this respect can be followed on the 'street rights' category on the British Journal of Photography news webpages.

'Allo, allo, allo...': the extent of the police trade in confidential information

2011-07-22T08:44:00.000Z

It has been reported that the police investigation into phone hacking has been extended to cover the information gleaned by the Information Commissioner's Office in the course of Operation Motorman as well as allegations that police were regularly passing communications data from mobile phones to journalists for payment. In that context, FOI research published this month by the lobby group Big Brother Watch makes illuminating reading.

The group sought information on the number of police staff who have been disciplined on account of sharing - often trading - in confidential information. A recent reported instance involving a journalist was that of Emma Smiter who was convicted of misconduct in a public office. The Guardian's Media Monkey may also have rehearsed another. The headline results of the research are startling. Between 2007 and 2010

243 Police officers and staff received criminal convictions for breaching the Data Protection Act (DPA)
98 Police officers and staff had their employment terminated for breaching the DPA
904 Police officers and staff were subjected to internal disciplinary procedures for breaching the DPA.

Either the police are assiduous in uncovering wrongdoers (which, given the trails left when searches are conducted, would not be difficult as soon as one goes looking), or the figures produced by BBW are the tip of an iceberg. Either way, this is one more avenue for the Leveson inquiry to perambulate.

Hacked Off? Petition for an independent inquiry into phone hacking scandal

2011-07-06T09:35:00.000Z

The revelations of the past few days will have stunned even those who have followed the News of the World phone hacking affair closely. A campaign calling for a full public inquiry into phone hacking and other forms of intrusion by the press has been launched. Those interested can find further details and sign a petition at http://hackinginquiry.org/. Please also forward details of this campaign.

Where Next for Privacy Law?

2011-06-25T10:43:00.002Z

Next week, the LSE hosts an Index on Censorship debate under the title of Injunctions are a necessary evil: privacy, free speech and a feral press. It’s a timely theme. What was once a niche specialism in legal practice and scholarship has burst onto the media - and hence the political - agenda, and received an almost incredible level of attention in the public sphere (even though as regards the informational privacy of the average person, it is perhaps not the most salient of those issues canvassed in the current issue of the IoC magazine). In the policy sphere, a Parliamentary joint committee is to investigate the matter further in the autumn, following on from the broader work of the Culture, Media and Sport Committee, the related ongoing joint committee inquiry into libel law, and the Radio 4 PM programme's pre-emptive Privacy Commission.

The Injunction System

The ins and outings of the 'Privacy Spring' hardly need rehearsed, but the basic rules regarding the award of injunctions somehow remain under-explained. In publication cases other than those involving libel, s12 of the Human Rights Act provides that injunctions should be granted when the claimant is more likely than not to win at full trial. The injunction itself is a shortish document that sets out the identities of those involved, sketches the information that may not be published, and explains the ramifications of breach (a contempt of court punishable by fine or imprisonment). A recent innovation is that they now also set a date for the matter to return to court.

Judgments on interim hearings are usually published, albeit with salacious details left in a confidential appendix. A few years ago, however, given the increased capacity for 'jigsaw identification' by way of internet searches (the ready association of the 'story' with the 'person(s) involved’), judges began to impose the now notorious ‘super-injunctions’. These prohibit the communication of not only the private information concerned, but also the very fact that the order exists. As the recent Neuberger report confirmed, though, this particular issue is all but yesterday's news. Recognising the importance of open justice, for the past eighteen months judges have tended instead just to anonymise the identities of the parties. Hence, we have been consuming alphabet soup.

The 'Privacy Spring'

These judicial attempts to cope with the developing technologies of the public sphere have been but one element underpinning the recent privacy fixation. Other new factors have also entered the mix.

First, we have witnessed a not-yet-concluded one-man crusade for the right to prior notice of the publication of private details. Max Mosley's pained but graceful presentation has impressed and persuaded many who have listened to his argument. How can it possibly be accepted, he presses, that an individual's most personal information can be stolen, traded and exploited for no reason other than an insensate dedication to profit.

Secondly, some ill-advised Parliamentarians have undermined court orders granted by judges with singular access to the fullest available knowledge of the factual circumstances. As Sir Stephen Sedley put it recently,

the naming of Goodwin and Giggs… disrupts the historic equilibrium between the judiciary and the legislature.

Parliament must keep its houses in order.

Thirdly, the advent of new media - for some the welcome dawning of an era of open information, but for others Panopticon and Leviathan combined - has enhanced the capacity for anonymised gossip and whistle-blowing. There is good reason to be sceptical as to whether micro-blogging platforms necessarily render the existing legal architecture obsolete in some irresistible, technology-driven shift towards radical openness.

Fourthly, newspapers have dedicated their considerable energies to fighting legal constraints on their business in their pages rather than in the courts (and woe betide he who picks a fight with those who buy ink by the barrel). As Sedley put it:

the media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit

Individual journalists may not have been directly involved in leaking the details of injunctions on Twitter, but a number of British newspapers have certainly deployed implicit allusion, innuendo and intrigue to 'push' people online to search for the gossip. That 'everyone' knew the identities of the people involved was a singular achievement not of 'new media', but rather of old-style hacks exploiting a new wheeze.

Finally, the phone-hacking scandal has exposed some of Fleet Street's guiltier secrets. The combination of Sienna Miller, Prince William, and - least appealingly, but most importantly - the extraordinary diligence of a handful of journalists, lawyers and MPs has dragged the wretched, squalid truth into the sunlight. It takes some chutzpah for newspapers to push the privacy issue at what should be their historic nadir.

New rules on privacy injunctions?

We must now decide whether anything need be done to address the perceived breakdown in the legal regime of privacy protection. Do we need a privacy law, or perhaps some revision of section 12 of the Human Rights Act? A first and not unreasonable answer is 'no'. Certainly, few would wish to upset the generality of the balance reached by the courts as to when privacy should prevail over free speech and vice-versa (which is not to say that it is impossible to quibble at the fringe). Section 12 might be refined, however, so as to emphasis the importance of free speech on matters of public interest, to avoid the judicial licensing of stories, and yet to accommodate the demands for prior notification. What follows is a proposal in four parts.

The primary move is the reinvigoration of the original Parliamentary intention to emphasise free speech at the injunction stage. One clear message of the Strasbourg judgment on Mosley's case was that damages can be an effective remedy for breach of privacy. So, if in some cases claimants are wrongly denied an injunction but instead win damages, then society can be satisfied with that (which is not to licence exploitation of privacy willy-nilly).

One way to proceed would be to make it (marginally) harder to obtain an injunction by emulating the threshold test that prevails in libel cases. The 'rule in Bonnard v Perryman' provides that injunctions are denied in libel if the defendant promises credibly to defend the case at trial. In the privacy context, a promise to demonstrate that the privacy interest either did not exist or was overridden by the public interest in the given story could be sufficient to see an injunction denied.

This approach would avoid the risks of crystal ball-gazing. As Judge Eady emphasises at almost every interim hearing, at that stage judges proceed on the basis of partial ignorance. They can only guess at the outcome of a final trial. The existence or weight of any privacy interest remains under-determined. Only at full trial is evidence tested by cross-examination. Before that time, the court is effectively asked to take the claimant's word on the prospective harm. The rights that judges then balance are simulcrum only. At first glance, this approach may not shift the outcome of many interim hearings. What it would do, however, would be to emphasis the editor's perception of the public interest and place the decision on publication firmly back in his or her hands rather than those of the judge.

One obvious risk is that this rule would be ‘gamed’ by canny editors. To avoid this, additional components could be 'bolted on'. Parliament could provide for sanctions for publishers who deliberately mislead the court at the interim stage. This might include punitive damages, costs penalties, or perhaps even contempt proceedings where the publisher had deliberately ‘cheated’.

There is also the criticism that by still allowing publication of intrusive stories the defrocked claimant is expected to expose themselves to further humiliation in courtroom cross-examination and reporting. Mosley's own favourite analogy is that of the unfortunate who, having already had one leg broken, has the other broken by the legal system before being asked to pay handsomely for the pleasure (damages being rarely sufficient to meet even a successful litigant's costs). It may be though, that it is the fear of litigation-induced penury and not that of further embarrassment that deters claimants from suing. To limit any financial barrier to the bringing of claims, Parliament might set out principles for a workable 'account of profits' remedy that would strip the publisher of all revenues generated by the privacy breach. This would disincentivise cheating by extracting the ill-gotten gain.

Finally, as presumptive public interest cases would be separated from merely salacious tales, Parliament might reconsider the proposal for prior notification. Musing on the theme last year, the Commons Media Committee suggested that the goal could be met by amendment of the PCC Code of Practice. This would eliminate the difficult issue of to whom the obligation should apply. Only those that subjected themselves to industry self-regulation would be covered. Therein lies the limitation of any such scheme however. It would not cover all publishers, and might encourage more proprietors to follow the example set recently by Northern & Shell - publishers of the Express and Star newspapers, OK! magazine and other print publications - and simply withdraw from industry self-regulation.

In addition, therefore, Parliament might introduce a system of fines for breach of the notice obligation. If action could be taken only by or with the consent of the Attorney General (as in the statutory contempt cases), fines would bite only where the public interest dictated. Neighbours gossiping over the privet would be safe; not so multinational media organisations exploiting privacy for profit. In addition, where meeting the prior notice obligation risked destruction of evidence or intimidation of sources the Attorney General could demur from acting.

The advantage of buying ink by the barrel: thoughts on one recent privacy injunction

2011-04-21T20:41:00.005Z

In paragraph 24 of his recent judgment in OPQ v BJM and CJM [2011] EWHC 1059 (QB), Mr Justice Eady speculated that the various newspaper groups that withdrew their opposition to the contra mundum order sought by the claimant did so having been provided with more full evidence on the likely impact of publication on the health and mental well-being of the claimant and various members of his family. He surmised that they saw the sense and justice of what was proposed.

Perhaps the judge is too generous of spirit. An alternative explanation is that the newspapers had determined instead to fight the battle on a different front. A sensible, strategic choice for them no doubt. After all, why would anyone seek to contest a matter in a court, where evidence is weighed and a balance struck in full awareness of the law and of the facts, when on the pages of your own newspaper and website you can slant a story to your own advantage, abstract from the reality, and never need fear that a contrary view will be presented (1, 2, 3). Having done its utmost to emasculate the law of libel, it seems that the Press lobby is moving on to its next major target. They're back on the case of the 'Muzzler-in-Chief'.

As always with these stories, there is more than meets the eye. Unusually in this instance, the case was shortly to move to a final determination with the award of a permanent injunction (in fact, in this case the rubber stamping of a settlement reached between the parties). More often, temporary injunctions effectively become permanent as claims are not pursued to a final hearing after publication has been pre-empted. A temporary injunction had been granted, and its operation extended by virtue of the Spycatcher principle from the blackmailing defendants to a range of newspaper organisations.

In normal circumstances, orders made by the court – whether at the interim or final stages – bind only those persons to whom they are addressed. The ‘Spycatcher principle’ ensures, however, that any person on whom notice of an interim order is served will be – in effect – bound by its terms. This situation arises indirectly. As explained by Mr Justice Gray in Jockey Club v Buffham:

the claimant in a confidence action enjoys … a windfall consisting in protection pending trial against invasion of his right of confidentiality by third parties. But the reason for the existence of that windfall is the need for the Court to be able to enforce, through the machinery of the law of contempt, the object for which the interlocutory injunction was granted and not to protect the confidential information as such([2002] EWHC 1866 (QB), at [26]).

Hence, the third party is not bound by the order itself. Rather, the rules of contempt of court operate to ensure that the third party cannot publish information covered by the injunction. To allow third-party publication to occur would frustrate the aim of the court in seeking to protect the integrity of the instant proceedings until a full trial can be convened and concluded.

Following from this, and herein lies the claimant's problem in this case, it is logical that the Spycatcher principle does not apply to final injunctions (interestingly, at [9], Eady J indicated that this position is soon to be considered by the Court of Appeal). At that point in time, there is no longer any need to preserve the status quo pending a trial. The only way that coverage of the injunction could be extended to parties other than the named defendants would be to award a final injunction contra mundum (against the whole world). This is particularly important in cases where one is moving from an interim injunction to a final order because those media organisations that have been covered by the Spycatcher principle while the case is ongoing will know (at least some of) the details and would be free to publish once the interim injunction is lifted in favour of the final remedy.

Given that the judge had concluded that the ultimate balancing exercise that involved an intense scruinty on the facts of this case came down in favour of protecting the privacy of the claimant and the interests of the family members over the right to freedom of expression of (a) the blackmailing defendants and (b) media organisations generally, AND GIVEN that the media did not contest this, it would seem that the award of the final injunction contra mundum was entirely appropriate. To do otherwise would be plainly ridiculous and unjust, and no amount of self-serving, obfuscatory verbiage from the media can change that.

That said, don't hold your breath waiting for the Press to let facts get in the way of a good rant...

Asking Turkeys to vote for Xmas?, or Reflecting on the abuse of parliamentary privilege

2011-03-11T12:18:00.000Z

The Guardian has reported the comments made yesterday in the House of Commons by a Liberal Democrat MP (col 1069) that appear to circumvent a supposed 'super-injunction' concerning Fred Goodwin (formerly of the Royal Bank of Scotland). The suggestion is that the injunction in question precludes the identification of Mr Goodwin as a 'banker', and as such, that it is entirely facile.

The details published suggest that Mr Goodwin may have been the beneficiary of one of the recent 'DFT orders' (labelled in line with their use by Mrs Justice Sharp in DFT v TFD [2010] EWHC 2335 (QB)), and not in fact a super-injunction per se. Such orders are designed to preclude 'jigsaw' identification of individuals whose privacy the courts have seen fit to protect.

John Hemming, the MP in question, has called for a debate in Parliament on the issue of super-injunctions, over-looking the fact that just such a debate was held in Westminster Hall within the last eighteen months. He also failed to acknowledge - as Afua Hirsch notes in her Guardian piece - that an inquiry instigated by Lord Neuberger - the Master of the Rolls - into the award of interim injunctions in publication cases is currently ongoing. The phrasing of his question to the Minister - "will the government have a debate or a statement on freedom of speech and whether there's one rule for the rich like Fred Goodwin and one rule for the poor?" - suggests that he may have been put up to the job by some friends in the media who have pushed this line hard. Or perhaps his concerns merely mirror those of the newspapers who regularly decry legal restrictions imposed upon them to protect the private information of individuals.

MPs can circumvent injunctions by relying on parliamentary privilege to avoid any legal repercussions. The Guardian - and others (1,2,3,4) - can no doubt pray in aid the right to report proceedings in Parliament. All very principled, but nonetheless it stinks. The MP's comments imply that judges of the High Court are somehow failing properly to value open justice and freedom of expression in their balancing of such factors against privacy concerns, and this even after the attention given to the risks in public debate. Even the barest reading of recent judgments on these points - for summaries, see Inforrm generally and most recently this piece by Charlotte Harris - would demonstrate quite how deeply considered such competing interests and values are.

As it is, such comments stand as a craven insult to public-spirited - and in many cases quite brilliant - professional judges meted out by ill-informed show-ponies. Notably, the minister responding to Hemming's question - Sir George Young MP - commented that "the matter that he has just raised... seems to impinge on the responsibility of the courts and any Minister would be cautious about commenting on that". Such abuse of parliamentary privilege must be addressed by Parliamentary authorities (someone pass the Erskine May). Otherwise, their honourables should be debating the extent of their own freedoms alongside the use of anonymising injunctions.

'Ordinary person' vs 'the Press': the unmentioned 'other' problem with libel law

2011-02-01T17:03:00.000Z

Roy Greenslade has linked to a blogpost outlining one libel claimant's experience of newspaper journalism, journalists, defendant lawyers, and the legal process: A True Story Of Daily Mail Lies by Juliet Shaw. Salutary reading for those engaged in policy development on libel reform... and only the tip of an iceberg.

PCC publishes updated version of the Editors' Codebook

2011-01-24T15:00:00.000Z

The Editors' Code of Practice Committee has published revised guidance regarding the Code against which the Press Complaints Commission benckmarks complaints. The Codebook is authored by the Secretary to the Committee, Ian Beales, and collates the guidance to be drawn from adjudicated cases and wider experience. A precis of the revisions made to the Codebook is provided on page 4 of the new version.

Ignoring domestic abuse?: SLAPPs in the UK

2011-01-20T11:38:00.004Z

An interesting piece in yesterday's Guardian focused on a letter sent recently by Carter Ruck to the Soil Association warning of potential liability under libel law if an objection to a planning application was not withdrawn. The piece quoted David Banisar of Article XIX who characterised the letter as a 'strategic lawsuit against public participation' (SLAPP).

SLAPPs were first discussed by two American professors (of law and sociology respectively), George Pring and Penelope Canan, in a series of academic papers and then a ground-breaking book. They focused on attempts by wealthy interests to prevent others from communicating with emanations of the government (relying specifically on the right to petition government for redress of grievances subclause of the First Amendment to the US Constitution). The position in the UK was surveyed by Fiona Donson (now of University College Cork) in her 2000 book Legal Intimdation.

On the back of the work of Canan and Pring, and as cited by David Banisar, many US states have introduced 'anti-SLAPP' legislation that affords the victims of SLAPPs the opportunity to counter-sue when attempts to chill such public participation occur. That introduced in California, which covers attempts to restrict both petition of government and free speech more generally, is most heavily used. Other jurisdictions have introduced similar legislation (see, for example, that in Quebec). Indeed, the libel tourism blocking statutes introduced of late in the US - at least in their more aggressive form - can be understood as just such measures.

In our initial paper examining the proposals for reform of libel law put forward by Index on Censorship and English PEN, Alastair Mullis and I suggested that rather than focus on substantive revision of the law one potentially valuable avenue for further consideration was the development of anti-SLAPP provisions in this jurisdiction (whether based on common law or by way of legislative intervention). Its fair to say that as co-authors we took, and I think still take, diverging views as to the potential workability and perhaps the desirability of the option.

One quandary for those devising anti-SLAPP legislation is the difficulty in distinguishing between bona fide actions brought to assert legal rights or defend interests and other actions that are designed to chill public participation. There are also concerns over access to justice for claimants. Understandably, media defendants tend to view such proposals as being likely to give rise to just more satellite litigation; claimant lawyers tend to consider talk of anti-SLAPP provisions as nonsensical. Nonetheless, it has been very surprising to me that this option has not been picked up by members of the libel reform campaign, especially given the repeated assertions that they are not about promoting the interests of the mainstream media. The garret-room blogger, the public-spirited scientist, and the impecunious local or specialist publisher are precisely the people who might have most to gain from the availability of anti-SLAPP options.

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

2010-11-11T13:22:00.001Z

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.

Lord Justice Sedley on media slant and the right to reputation

2010-10-21T09:52:00.001Z

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).

Media Futures: keynotes from the Belfast Media Festival

2010-10-15T09:58:00.001Z

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).

Brand on celebrity; Dispatches on phone-hacking

2010-10-05T16:49:00.000Z

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).

Understanding Rooney: privacy and prior publicity

2010-09-09T09:46:00.004Z

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).

Two tribes: Mrs Justice Sharp on media lawyers

2010-07-28T17:16:00.000Z

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.

Harassment by publication case fails

2010-07-25T20:47:00.001Z

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.

Thoughts on Lord Lester's Defamation Bill

2010-07-08T07:08:00.000Z

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.

Debate on prior notification obligations in privacy cases

2010-06-30T11:51:00.000Z

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.

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

2010-06-16T10:23:00.001Z

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.

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

2010-05-31T09:29:00.000Z

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.

The costs of confidence: Irish Times applies to Strasbourg

2010-05-30T11:43:00.001Z

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

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

2010-05-28T20:41:00.002Z

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!

Brave new world? Lord Lester's defamation bill

2010-05-27T09:37:00.002Z

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.

Lord Steyn on the need for libel reform

2010-05-26T20:13:00.000Z

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.

Stop whinging, get filming? abortion services ads on tv

2010-05-20T14:22:00.006Z

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?

Council of Europe and ELSA essay competition: freedom of speech

2010-04-26T19:49:00.002Z

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.

Prior notification obligations are like buses...

2010-04-22T15:14:00.005Z

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.

Inquiry into injunctions in libel and privacy cases

2010-04-07T12:17:00.004Z

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.

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

2010-04-02T16:48:00.011Z

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.

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

2010-04-01T12:34:00.017Z

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

2010-04-01T08:46:00.004Z

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.

Update on 10% success fee order - Commons difficulties

2010-03-31T09:04:00.007Z

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.

Papers published on paparazzi harassment and libel reform

2010-03-30T19:55:00.002Z

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

2010-03-30T18:16:00.009Z

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

2010-03-30T18:09:00.003Z

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

Lord Hoffman beats-up on the libel reform campaign

2010-02-05T09:29:00.007Z

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

2010-02-05T09:05:00.007Z

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.

John Terry super-injunction case

2010-02-02T20:31:00.011Z

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.

BSkyB loses appeal bid

2010-01-29T15:38:00.005Z

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

2010-01-29T15:14:00.004Z

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.

Something Rotten in the State of English Libel Law?

2010-01-28T17:15:00.003Z

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...

Lord Justice Jackson reports on costs review

2010-01-14T21:24:00.006Z

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

2010-01-14T21:09:00.005Z

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).

Single publication rule - or defence of 'non-culpable republication'?

2009-12-11T11:54:00.006Z

A Ministry of Justice consultation on defamation and the internet asks whether a single publication rule (SPR) should be introduced for online publications; whether, for this context at least, we should foreswear the Duke of Brunswick rule. Such a rule would set a limitation period running from the point of first publication (uploading), rather than from the date of each 'republication' (downloading) of a web page. The consultation paper offers three putatve reforms: straight shift to an SPR; shift to SPR with an extended limitation period (currently, 1 year); or an extension of the statutory version of the qualified privilege defence.

In responding to this consultation, we - Charlie Beckett of Polis, and Andrew Murray and Andrew Scott of the Department of Law at LSE - reject a move towards a single publication rule.

For sure we recognise the problems created for online archivist-publishers by the current multiple publication rule, as exemplified in the experiences of Times Newspapers before the domestic and international courts. However, we would be loathe to see the increased potential for injustice on the part of persons defamed that would be an unavoidable corollary of such a reform. Any reform would have to recognise that not all those who maintain online archives are as deserving of protection as Times Newspapers or other public-spirited media businesses, and that even angels sometimes sup with the devil.

Instead, we propose a new defence of 'non-culpable republication' (the epithet has already been described as "the most graceless phrase to be associated with the internet since user generated content", which we concede!).

Here is a flavour of our proposal. The defence would be available to an archivist-publisher after the elapse of one year from the point of initial publication. To avail of it, the publisher would be required to append a notice to the online article, indicating that a challenge to the accuracy of the piece had been made under the new defence.

The integrity of the archive as a representation of the historical record would be maintained, while any future reader would be left in no doubt that further investigation would be necessary before any imputation could properly be drawn from the article. The force of the alleged libel would therefore be mitigated. Moreover, the inclusion in the notice of a summary of the specific complaints brought - which we recommend - would often add to the discursive value of the original piece. It would remain open to the publisher to withdraw/amend the original piece if they took the view that there was indeed an inaccuracy that should be corrected. At the same time, the publisher would be free to choose not to append the notice, and thereby to assert the accuracy of the original piece. This would allow the publisher to deter attemtps to use the defence willy-nilly, but in such a case they would remain open to suit.

Bearing in mind the importance as we see it of the law supporting the emergence and practice of networked journalism, we also recommend that a variant of the new defence should be available to the author of online statements who loses control of same after uploading (eg where others tranpose statements made, without subsequently chedcking whether corrections/retractions have been issued).

Copies of the full response (circa 14 pages), are available here.

'You can be open or you can have government': Straw issues second FOIA veto

2009-12-10T16:17:00.004Z

It has been announced that Jack Straw as Justice Secretary has issued a second veto certificate under section 53 of the Freedom of Information Act 2000. Such a certificate entails that a public authority need not comply with an order of the Information Commissioner requiring disclosure of information under the Act.

In this instance, an application had been made for the release of minutes of meetings of a Cabinet committee on devolution from 1997. The Cabinet Office confirmed that it held the information sought, but refused to disclose it under the section 35 exemption. That provision allows the withholding of information relating to, inter alia, the formulation or development of government policy. The Information Commissioner's Office concluded in June that the public interest in maintaining the exemption did not outweigh the public interest in disclosure, and so ordered the release of the minutes.

The Information Commissioner, Christopher Graham, has issued a statement in response to today's veto of this decision. In that, he indicates a concern that "the government may routinely use the veto whenever he orders the disclosure of the minutes of Cabinet proceedings, irrespective of the subject matter or the age of the information".

For his part, Jack Straw asserted that the decision had not been taken lightly (for the full decsions, see here). This was (somehow) an exceptional case where release of the information sought may impinge upon the convention of ministerial responsibility, and hence impact upon the effective operation of Cabinet government. It is difficult to put out of mind the finding of Lord Chief Justice Widgery (hardly a thorn in the side of the Establishment!!) as long ago as 1975 (hardly an era of unrestrained open government!!) that the narration of events that had taken place in Cabinet ten years previously could hardly by that time be said to risk undermining the duty of confidence owed by ministers to the Cabinet (Attorney General v Jonathan Cape [1976] QB 752 - the Crossman Diaries case). Straw does seek to address this issue, but he is not persuasive. He also seems to suggest that because there is plenty of information equivalent to that held in the minutes already in the public domain, this stands against the further disclosure now. This is a novel, counterintuitive and - if sustained - worrying development.

The only other such veto was issued earlier this year in the case of Lamb (1,2,3,4). In that instance, the veto power was exercised following a ruling of the Information Tribunal that confirmed the view of the Commissioner. On this occasion, Straw has acted in advance even of the pending hearing due before the Tribunal in January 2010. It is an insidious power. In general, its use emphasises the ultimate subordination of the freedom of information regime to political imperatives. On this occasion, it also highlights a seeming indifference to due process. It controls the executive arm of government (in some measure), but manifestly not the Executive.

Momentum for libel reform? or electoral politics?

2009-11-30T19:50:00.007Z

Following on from the English PEN / Index on Censorship report on libel reform (and see also the critique offered by science lobby group Sense About Science), Jack Straw (the Justice Secretary) indicated last weekend that he is minded to proceed with "wholesale reform of England’s libel laws".

Meanwhile Lord Lester of Herne Hill, the Lib Dem peer and eminent human rights lawyer, has promised a libel reform bill to introduce significant changes in the spring.

The airwaves have carried a fair amount on this theme in recent days. Sense About Science outlined the problems as they see them on the Today programme last week (see here - for now - at 0737). Interestingly, this was followed on the same programme by an interview with Dominic Grieve, the Conservative Party Shadow Justice Secretary (see here at 0848). He was more sceptical of the need for libel reform, offering a lonely voice on the importance of remembering the harms to privacy and reputation wrought by (some) newspapers. Lord Lester offered a (not particularly compelling because overly time-limited) introduction to his line of thinking on the PM programme latter that day (see here). The issues were also aired on the Media Show earlier last month (see here).

Potted Shakespeare version of Flat Earth News

2009-11-30T19:37:00.003Z

Nick Davies, author of Flat Earth News, gave the NUJ Benn Journalism Lecture in Bristol last Thursday and offered a summary of the argument of his book. He covers the structural tendency towards inaccuracy, a critique of the PCC (and libel law), privacy, various tapping/hacking and data protection scandals, and more...

If you want a quick insight, you can listen here. [hat tip - Greenslade]

two plus two = ?: evidence to the phone hacking inquiries

2009-11-16T13:12:00.008Z

The PCC chair, Baroness Buscombe, has made a statement drawing attention to a discrepancy of evidence in the various phone hacking inquiries relating to activities of journalists at the News of the World. The statement notes that the purported police source of the figure of there being 'thousands' of victims of such hacking, had in fact been wrongly quoted. In fact, the source has sought to 'clarify' with/through the PCC, there were only a 'handful' of possible victims.

Baroness Buscombe proceeded to note that an allegation based on the higher figure had been made to the House of Commons Media Select Committee in the course of its inquiry, and that should the Committee have been misled this would of course be an extremely serious matter. This smacks of playground politics. The impugned allegation was made in evidence by Alan Rusbridger and Nick Davies of the Guardian, who have recently been so critical of...... the PCC.

Update:
This story has moved on during the day. Solicitor-advocate Mark Lewis of Stripes Solicitors in Manchester has inferred that Baroness Buscombe's comments related to the evidence that he proffered to the Committee, and has called for the PCC chair to resign in a letter sent to the PCC and the Select Committee chair, John Whittingdale MP. It is a withering attack. A Guardian spokesperson has commented:

"it is surprising that the PCC should have publicly questioned the evidence a solicitor gave to MPs without even doing him the courtesy of contacting him to seek his version of events",

while the PCC has issued a mea non culpa.

Anathema to democracy? the PCC on super-injunctions and more

2009-11-16T12:49:00.004Z

In what has been described as a disappointing speech, Baroness Peta Buscombe - the newish Chair of the PCC - has railed against the deployment of so-called 'super-injunctions', describing them as 'anathema to democracy' and asking 'how did it ever come to this'? (1, 2) It is an easy target, but this broad-brush critique seems to overlook two important things. First, that sometimes such injunctions are necessary to protect against the infringement of competing rights. It is the over-free, insufficiently discriminate use of super-injunctions that is the problem not their availability per se. Secondly, she overlooks the fact that it was Parliamentary intervention in the form of the Human Rights Act that has provided the weight behind arguments to persuade the courts of the need for restrictions on speech in some cases.

A transcript of the speech is available on the PCC website.

Inadvertent harakiri?: PCC report on allegations of hacking and tapping

2009-11-09T10:40:00.010Z

The Press Complaints Commission (PCC) has published its report into the allegations published in the Guardian in July regarding purported instances of criminal newsgathering methods at the News of the World beyond those that saw Clive Goodman and Glen Mulcaire convicted. The inquiry undertaken by the PCC focused specifically on two issues only:

- whether there was evidence that the PCC had been misled when conducting its earlier inquiry

- whether there was any evidence that malpractices were ongoing at the NoW.

The PCC found no new evidence speaking to either point. Moreover, it asserted that the sources relied on by the Guardian were anonymous and untestable.

The response of the commentariat has been swift. Alan Rusbridger, editor of the Guardian, interviewed on the Today programme on Radio 4 denounced the PCC [on the link this is listed at 0850, although it was in fact aired earlier]. He indicated that while he was an ardent supporter of self-regulation, the PCC was not properly performing this function. He commented:

"this report is worse than pointless, its actually rather dangerous for the Press... if you have a self-regulation system that is finding nothing out, and has no teeth, and all the work is being done by external people [lawyers, the police and MPs] its dangerous for self-regulation... I believe in self-regulation, but this is not a regulator at work. The PCC does very valuable work in mediation but regulators have the power to do investigations, they have the power to ask people in... [Q: if you cannot aske the PCC to do this job, who should do it?] well, that's why its so dangerous. The regulator behaving this uselessly I suspect that MPs will start to say that this is not regulation I hope the governance review [currently being undertaken by the PCC] takes this onboard. The PCC has to be better funded so that it has some investigatory mechanism, and so that it doesn't write reports as weak and as lightweight as this... the Press is in a very weak position today because its own regulator, its self-regulation, has proved so weak."

Rusbridger also offered an extended editorial in the newspaper. The report and inquiry have been criticised by lawyers as "contradictory and self-serving", by MPs on the Culture Committee as a "whitewash", and by the Guardian as "complacent" (1). Nick Davies, the author of the earlier Guardian articles, has set out in a detailed critique, the "more important questions" with which the PCC has failed to engage.

So what will be the upshot for self-regulation? Is it too much to hope that if the King is dying, we may find ourselves with a new, more fit successor?

Give it back!: Lords debate proposed rules on criminal memoirs

2009-10-31T08:13:00.008Z

On Thursday, the House of Lords concluded its report stage debates on the Coroners and Justice Bill (a-v; hansard transcript). This comprises a smorgasbord of reform, with many measures affecting the media in more or less significant ways. Much attention was focused on the Government's plan to allow the recovery of monies made by convicted criminals through the media exploitation of their stories.

The proposal, which the Government accepts will apply in only a very small number of instances, was criticised as 'gesture politics', and its compliance with Convention rights questioned. Ultimately, the amendment was defeated on a vote, and the measure remains part of the Bill.

Also during the report stage on the Bill, Baroness Miller (col1302 et seq) moved a further amendment that would have limited the power of the police to retain photographs taken of unarrested or uncharged protestors, photographers and others in public places. The measure would have applied to both police Forward Intelligences Teams (FIT) and other evidence gathering exercises. The amendment was withdrawn.

[Photo 1 seemed appropriate, but is in fact the cover photo for a recent novel; Photo 2 - (c) Marc Vallee]

Commons debate on super-injunctions

2009-10-23T08:50:00.005Z

The House of Commons held an adjournment debate on the matter of libel law and super-injunctions on 21 October. It was introduced by Liberal Democrat MP Evan Harris. A transcript and film can be accessed here.

The earlier debate to which some MPs refer was focused on 'libel tourism' and took place in December.

Anatomised injunction: Guardian publishes Trafigura order with notes

2009-10-21T08:31:00.004Z

The Guardian has published the order which was at the heart of the recent 'super-injunction' story, along with notes explaining various of its components. It also has a range of pages dedicated to offering its take on the matter.

The Lord Chief Justice, Lord Judge, has also commented on the use of super-injunctions, noting that their use should be sparing, but that there is a continuing justification for them in some circumstances. This is obviously correct. Despite the wails of band-wagonners, sometimes disclosure of the fact that an interim hearing has occurred and that an injunction has been imposed would allow observers to put two and two together so as to guess at the nature of the injuncted information. Disclosure of the fact of the injunction would defeat the purpose for which it had been imposed. That's not to say the courts should perpetuate their use willy-nilly.

Opening Justice: new guidance on reporting restrictions

2009-10-13T07:35:00.003Z

The Judicial Studies Board has published new guidelines on the imposition of reporting restrictions by the criminal courts. The guidelines are an attempt to reconcile the principle of open justice with the imperative of securing the fair administration of justice. They were written in large part by barrister Guy Vassall-Adams of Doughty Street Chambers in collaboration with the Lord Chief Justice, Lord Judge, and representatives of the Society of Editors, the Newspaper Society, Times Newspapers Ltd, Trinity Mirror plc, the Press Association and Reuters.

The new guidelines are very welcome. Media companies had been increasingly concerned that judges were often imposing unwarranted restrictions on their freedom to report court proceedings in ignorance of the limits of the powers available to them. It will be interesting to see how far the new guidelines stem the flow of legal challenges to restrictions imposed.

The truth will out, and how...

2009-10-12T19:08:00.003Z

Opinion will be divided on the extent of the loss to the listening public caused by the untimely death of Stephen Gately (all condolences to his friends and family of course), but comments in a few newspapers have highlighted a fairly typical tabloid ploy:

... Accordingly, Gately didn't come out of his own free will. In 1999, the Sun approached him with a story sold to them by a former Boyzone security guard, alleging the singer was gay. After two weeks of talks between the tabloid, Boyzone's management, their record label and PR, the Sun ran with a different exclusive: "Boyzone Stephen: I'm gay and in love". "Three weeks ago, Boyzone's Stephen Gately asked the Sun to help him come out," claimed the paper's editorial, imaginatively. [Alexis Petridis in the Guardian]

Report on privacy and the public interest

2009-07-20T14:18:00.003Z

The Oxford University based Reuters Institute for the Study of Journalism has published a report written by Stephen Whittle and Glenda Cooper on the theme on Privacy, Probity and the Public Interest.

Its an interesting enough read, and its key findings offer a useful precis of the state of the debate at present. Ultimately, the authors recommend that media investigations should be proportionate to what is being investigated and clearly targeted. They conclude that journalists should hold or deploy:
- a clear sense of what the public interest justification might be
- some justifying evidence to take an investigation
forward so that it is not a ‘fishing expedition’
- the minimum amount of deception
- very clear rules about when secret recording takes place
- a clear set of authorisations from within the editorial line management
chain;
- a robust rationale for what is eventually put into the public domain
and how.

BBC research on taste and standards

2009-07-20T13:29:00.008Z

The BBC has published the report of research conducted over the last year into public attitudes to morality, values and behaviour in UK broadcasting. One strand of the underpinning work was undertaken by Prof. Sonia Livingstone of the LSE Media Department.

The report detailed sixteen key findings, including the following:
- standards of morality, values and behaviour in the media in particular are
not a top-of-mind issue for the majority of the public.
- the BBC overall performs well in the audience's perceptions of standards
of morality, values and behaviour, compared; the audience also has higher expectations of the BBC.
- in general terms, the public do not want increased censorship or
regulation
- a significant proportion of the audience have various
concerns about standards of morality, values and behaviour in the media
as a whole, including newspapers, magazines, broadcasting and online
content.
- there is little public consensus or agreement about what constitutes
offence
- context in which potentially offensive content is placed is of
paramount importance to audiences
- sexual content on television and radio was a matter of relatively low
concern for audiences.

Inevitably, press coverage of the publication of the report focused on specific issues, including swearing and the 'Sachsgate' angle (1,2, 3)
* Commentoon sourced at: Women's eNews

Nick 'Harry Potter' Davies triumphs over the dark arts

2009-07-09T08:25:00.004Z

The Guardian yesterday broke a tremendous follow-up to the Operation Motorman and Goodman hacking and blagging scandals with the disclosure of previously unseen data arising from one of the earlier investigations. There is much comment on the Guardian webpages (1,2, 3), and elsewhere. Cravenly (?), at the time of writing neither TimesOnline, nor the Sun was carrying the story (at least on their first pages). SkyNews did have it. Does this say anything about the relative interest in 'proper' news of the three Murdoch platforms?

This year's black?: celebrities, the paparazzi and the fashion for harassment orders

2009-05-20T10:40:00.003Z

Earlier this month, lawyers acting for Amy Winehouse confirmed that she has been awarded a court order to prevent the paparazzi from following and photographing her. She is not the first celebrity to take this route in recent months. Both Sienna Miller and Lily Allen have likewise received the protection of the courts. This development amounts to the opening of a new legal front in the battle between the media and public figures keen to preserve their privacy. At a time when press standards and regulatory structures are subject to Parliamentary scrutiny, it begs the question of where the Press Complaints Commission has been in all of this.

For many people, the spectacle of the massed horde of photographers jostling on street corners waiting to descend on some willowy blonde – the ‘media scrum’ - has become the leitmotif of media malpractice. It is the snarling mask of the metaphorical ‘feral beast’ lambasted pointedly by Tony Blair during his last speech as Prime Minister. Type the name of any female celebrity in the search box on YouTube and you’ll likely be faced with scenes of truly oppressive, ‘stalkerazzi’ behaviour. Matters have been exacerbated by the ubiquity of high-specification digital cameras that allow all-comers to join the fray. Keira Knightly has complained, repeatedly and bitterly, that the paparazzi exercise “a very predatory force”. Kate Middleton’s experiences surrounding her twenty-fifth birthday resulted in a select committee investigation.

Courts too have expressed a visceral distaste for the manner in which media organisations sometimes acquire their content. In Von Hannover v Germany, for example, the European Court of Human Rights lamented that “photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion… or even of persecution”. It may have been this perception that prompted the court to deliver what some see as an over-generous ruling to Princess Caroline.

The court orders obtained by Winehouse, Miller and Allen are based upon the Protection from Harassment Act 1997, legislation ostensibly introduced to counteract ‘stranger stalking’. The Act criminalises engagement in a ‘course of conduct that amounts to harassment’. It also allows victims to sue for damages and other remedies in the hope of preventing recurrence. Thus, it sits alongside the emerging privacy law that has been used to great effect by Max Mosley, Naomi Campbell and others. Where the tort of misuse of private information is focused on harms caused by publication, however, this use of the anti-harassment act is concerned more with the distress caused by more physical intrusions.

It was always expected that the very general terms of the harassment law might be used against the more outrageous elements of the press pack. Princess Diana was said to have welcomed the prospect before her untimely, and in this sense ironic, death. The Act has been used to deter violent spouses, jilted lovers, and animal rights protestors, but – strangely - never the paparazzi. Until now.

This begs the obvious question of ‘why not’. One explanation is that the alternative regulatory solution offered by the PCC has been largely effective. Since the late 1990s, the Commission has adjudicated on around fifty complaints based on Clause 4 of the Editors’ Code of Practice that deals with harassment. It has also helped resolve a further eighty similar complaints. It enjoins newspaper and magazine editors not to use material acquired by staff or freelancers in circumstances where the subject has been harassed. Further, the PCC has instituted a pre-emptive system of ‘desist notices’, which it issues to editors at the request of press-embattled individuals in the hope that they will ‘call off the dogs’. The PCC is rightly proud of these aspects of its performance, and cites its commendable successes in protecting personalities such as Natasha Kaplinsky.

One criticism of the PCC’s role, however, is that it can’t secure damages (although its Director maintains that ex gratia payments are often made in resolution of complaints). Another more chastening critique is that desist notices don’t always work. Sienna Miller’s experiences in 2008 are instructive. After a warning was circulated to editors by the PCC, the actress was still moved to sue when the Daily Star published photographs depicting her in a distressed state: the result of a paparazzi hounding. Moreover, the harassment she faced didn’t stop and she was forced back to court to deploy the 1997 Act. Both cases were settled.

To its credit, the PCC has recognised and sought to explain its limitations. It agrees that its capacity is limited, but explains this by reference to the fact that much of the content acquired by photographers is sold to overseas publishers over which it has no influence. It wouldn’t accept that sometimes British newspapers and magazines may simply choose to ignore its requests.

Now that it has been proved a reality, the risk of actions based upon the 1997 Act will exercise a constraining influence on photographers and newspaper editors. Its use in fact may prove to be limited to occasions on which either no publication has yet occurred and the prospective publishers are unknown, or where the publishers are based overseas. There is no reason in law, however, why a harassment action should not - assuming the requirements of the Act are satisfied – also be brought in other circumstances. Indeed, should those suffering from harassment have limited faith in the ability of the PCC to curtail harassment or deliver an adequate remedy, then the statute-based legal route could become the preferred one. In the main, though, we might expect that privacy laws and regulators, like houses, will lean on one another.

'Tis the season... to be clamouring for libel reform

2008-12-18T10:46:00.002Z

Much has been happening on the defamation/libel reform front in recent days...

First, Elton John's case against the Guardian collapsed after a ruling on meaning by Mr Justice Tugendhat 'clarified' the approach to be adopted towards irony/satire (this is discussed in more depth elsewhere by the excellent Daithi).

Secondly, Nicolas Sarkozy has been calling for reform of French defamation law, and speifically its decriminalisation.

Thirdly, English PEN and Index on Censorship have launched an inquiry into the state of UK libel law (to some extent emulating that recently announced by the Commons Select Ctte chaired by John Whittingdale MP).

Finally, the House of Commons (Westminster Hall) yesterday held a very interesting adjournment debate on the state of libel law at the behest of Denis McShane MP. Two focuses for attention were particularly noteworthy: the call for a small-claims court style determination of libel actions, and derision of the 'libel tourism' trade with reference to developments in the US Congress and New York state. Both of these are interesting from the LSE perspective. In the former regard, research into the ramifications of the Article 8 recognition of reputation rights that I am currently working on may highlight an unexpected jurisprudential basis (or at least added political impetus) for such a shift. In the latter respect, together with Polis, the Law Department is to host a stakeholders' policy workshop on just this theme in the New Year.

A Sting in the Political Advertising Tale?

2008-12-11T21:17:00.001Z

More on a pet pre-occupation... many thanks to Russ Taylor of OfcomWatch and Oxford Uni for highlighting a very interesting development in Strasbourg today where a Norwegian ban on political advertising has been overturned by the court (TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY). Its an analogous case to the recent ADI litigation in the UK that ended up unsuccessful in the House of Lords. I haven't had time to read the judgment in full, but it seems that the court was unimpressed by the argument that the ban was necessary to avoid subversion of the public sphere by wealthy interests. Rather they seem to have seen it - perspicaciously - as precluding voice opportunities for marginalised groups.

Rays of light from the Dark Lord of Mordor: Dacre on privacy and more

2008-11-13T10:12:00.005Z

Paul Dacre, editor-in-chief of Associated Newspapers, has entered the fray on the judge-made law of privacy, criticising the 'inexorable' and 'insidious' imposition of new law on the British Press. Speaking at the Society of Editors conference, he warned that the new law was "allowing the corrupt and the crooked to sleep easily in their beds" while also undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

Dacre had two key criticisms. First, the substantive contention that the law was based upon "amoral judgements". The amoral component was deemed to be the closeting of 'unconventional', perhaps depraved - certainly commercialised - sexual practices and/or of adulterous relationships behind the screen of personal privacy (protected by Article 8 ECHR). Dacre was concerned that the law appears to make no moral distinction "between marriage and those who would destroy it, between victim and victimiser, between right and wrong".

There are two points at which these comments might bite. On one hand, the law has to determine when a privacy interest is invoked. Dacre might argue that a commercial relationship with a prostitute does not engage privacy interests, and/or that any confidences purportedly entered under the 'contract' should not be enforced. Currently, the law does not agree with this approach. On the other hand, the law leaves room for the exposure of errant behaviour in circumstances where the interest in privacy is outweighed by some public interest in the matter. Here adultery committed by John Doe may remain private, whereas adultery committed by John Prescott might not. There is scope for debate, of course, on the question of quite when this public interest arises. Dacre complained that in both areas, the law is developing in an undesirable manner: that it "seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards".

Dacre's second criticism concerned the allocation of most media law cases to one judge: Mr Justice David Eady. He complained that "while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door". Media law, he complains has in effect become 'Eady's law' when it should reflect "the collective wisdom of many different judges over the ages".

There is a lot in this point, accepting that judgments at first instance will always be open to appeal to higher courts. When a large proportion of cases at first instance are decided by one and the same judge - whomever that might be - it becomes increasingly likely that any worldview, predilection or leaning on the part of that individual will influence the decisions made on arguments put. For Dacre, Judge Eady's perspective is marred by "an animus against the popular press and the right of people to freedom of expression". In the privacy and other media law contexts, there is plenty of room for 'political' decision-making where incommensurable social values come into conflict (1). This leaves open entirely the question of whether the actual raft of decisions that Judge Eady has delivered are correct or appropriate.

So how far does all this matter? For Dacre, hugely. He sees the obvious and direct correlation between content and sales figures, and warns at length that if stories cannot be told about the misdeeds of "the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy" then the Press cannot be a sustainable commercial enterprise. In short, we need the Press and the Press needs to be free to tell these stories. He cites eminent judges in support of this view. It is a powerful warning.

There has been plenty of (valuable and other) commentary, complaint and (attempted) rebuttal (1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13).

There is obviously the risk that Dacre's comments will be rejected on the simplistic 'you would say that wouldn't you' basis. He is open to the critique that he simply doesn't like what the law prescribes. Perhaps unfortunately, Dacre's speech came close to personalising the issue with its direct references to the purported failings of Judge David Eady. He described the judge as "arrogant", and as possessing a "dessicated" and "highly relativist" moral sense. On this, Dacre implicitly gets his defence in first. He would contend that the personalised story is much more appealing than the "ponderous, prolix and achingly dull". Who wouldn't agree - and on this ground, for this post, apologies!

This is an important speech. It raises questions over (a) the allocation of cases in the High Court, and (b) the appropriateness of asking judges alone to determine how the framework within which journalists operate should be fashioned. The irony of course, is that after decades of warding off legislative oversight, newspaper executives seem now to be making a plea for Parliamentary intervention.

Aside
The speech also touched briefly on freedom of information, open justice, data protection restrictions on journalists' investigations, and conditional fee arrangements (CFAs) and their impact on newspapers' willingness to fight actions and perhaps to publish (here he cited a recent case lost by the Mail on Sunday in which Associated’s costs bill was £520,000 costs in a case that awarded damages of just £5,000 in a dispute over a simple matter of fact - Dacre also indicated that the ministry of Justice is set to unveil proposals to reform CFAs, including capping lawyers’ fees).

Referee or Cheerleader?: Newspaper Society calls for suspension of local websites PVT

2008-11-07T13:36:00.002Z

The Newspaper Society (NS) has called for the BBC Trust to suspend its public value test of the BBC's plans to develop its locally-oriented websites that might compete with local/regional newspapers (and there online offerings). Indeed, in a development of its campaign against the proposals, the NS is pursuing the matters through its solicitors.

The complaint has a number of components. These include, first, that Ofcom's market impact assessment may be based upon inadequate market definition; secondly, that the conduct of the review process has been flawed, and finally that Sir Michael Lyons, the Chair of the BBC Trust, has predecided the issue - that he is acting more as cheerleader for than scrutineer of the BBC proposals. This follows recent comments made by Lyons to the effect that much of the country was poorly served by the regional press (leaving the way clear for a valuable new service from the BBC).

Roy Greenslade has been active in commenting on the BBC's plans and the attendant dispute, and his posts provide valuable background and comment (1,2,3,4). Jeremy Hunt MP offered some thoughts on this theme when speaking at a Polis session recently at the LSE (comment; transcript).

Avoiding Offence: Caroline Thomson on Brand-Ross at the LSE

2008-11-07T09:07:00.002Z

Caroline Thomson, the Chief Operating Officer of the BBC, spoke at the LSE this week in the wake of the Brand-Ross debacle. Evidently, Ross and Brand were doing what they do, egging each other on in a manner familiar to all (former) school-boys (and -girls? - sorry, can't vouch for this as I attended a single-sex Grammar) before stepping across some line in the sand of propriety. Thomson accepted that this had happened, and that the editorial regime had proved inadequate.

On another level, the whole saga speaks to the question of what is the proper ambit of public service broadcasting. Indeed, it was pushed into the spotlight by sections of the Press keen to propagate their own answers to that question. Such matters continue to command the attention of Ofcom and of the DCMS. I'm with Peter Fincham when he warns that the BBC must maintain a role in the entertainment sphere, not least because it is through such 'diverting' programming and associated commentary that we gain and review most poignantly a collective understanding of who we are. Worthy pronouncments on this or that social issue or moral question rarely make the visceral connection easily achieved through the ministrations of Mr Hanky the Christmas Poo and others. Quite whether the BBC need pay its leading entertainers the reputed millions, however, is an open (moral, political and - in the light of the economic travails of the broadcasting sector - commercial) question. The same question might reasonably be asked of the remuneration received by the 100 BBC executives paid more than the Prime Minister (BBC Question Time last evening), accepting that the time served on the PM's pauper salary of £190k per annum then grants access to Gringotts vault (1,2,3).

A transcript of Thomson's speech at the Polis event and an interesting trailing comment from Charlie Beckett can be found on the Polis site.

There's no business like...: tv, broadcasters and competition

2008-11-05T12:32:00.000Z

There is a fair amount in the Press today on two stories re the business side of media law. First, BSkyB and Virgin have reached a rapprochement following their dispute over payment for and carriage of each others channels (1,2). Last week, another arm of this multi-pronged dispute reached a conclusion when the Competition Appeal Tribunal (CAT) ruled that any plurality concerns arising from the Sky-ITV share acquisition would in any event have been resolved by the remedy of requiring Sky to reduce its shareholding to 7.5%. In September, the CAT reached its conclusions on the central questions in that case. So that's that then - well no, Sky is said still to be considering a further appeal (1).

Secondly, the BBC has come in for further criticism - from 'competitors' giving evidence to the Commons inquiry - on account of the impact of its commercial practices (1). The BBC Trust was also criticised. Plans for BBC locally-oriented websites are currently subject to a public value test being conducted by the BBC Trust.

Outgoing DPP on religious hatred law

2008-11-04T22:32:00.000Z

Ken MacDonald - the outgoing Director of Public Prosecutions - has offered some interesting reflections on the Racial and Religious Hatred Act 2006 in an interview with Joshua Rozenberg. Paraphrasing, he seems to consider it little more than window dressing.

You spin me right round? new proposals on openness in family courts

2008-10-30T10:24:00.001Z

It seems that new proposals are soon to be announced with regard to increasing openness in the family courts (1). This has been an issue for debate for some years, with the Government shelving previous plans to increase transparency following a consultation in 2007. Last week, Sir Mark Potter (President of the Family Division of the High Court) signalled his support for greater openness in a very interesting interview with The Times.

Picture source.

'What did we tell ya'?: journalism based on FoI requests

2008-10-03T14:35:00.002Z

The Campaign for Freedom of Information has published a report summarising the use by journalists of the FoI regime across 2006 and 2007. Specifically, it offers a precis of each story in which FoI requests - made by journalists themselves or by third parties - played a role.

The CFOI hopes to highlight the enormous range of information being released under the FoI regime, and hence the substantial contribution that it makes to public accountability of government. It has previously published an equivalent report covering 2005.

[Logo drawn from www.cfoi.org.uk]

Respect for Contempt?: keeping speech free and trials fair

2008-09-24T10:26:00.002Z

Following the failure of the jury to reach verdicts on some of the charges in the airlines liquid bomb plot there has been much media comment on the rights and wrongs of the outcome. This is interesting because, of course, the prosecution is still considering whether to pursue the case before a reconstituted jury. Thus, for the time being the matter remains 'active' for the purposes of the Contempt of Court Act 1981, and hence putatively sub judice.

In light of the media publicity, and the seemingly sanguine response of the Attorney General's Department, there has been an exchange of views between leading lawyers and the current Attorney General - Baroness Scotland - in the letters pages of The Times. Alun Jones QC asked "has the law of contempt ceased to apply to the media?... The times have gone when the Attorney-General enforced the law of contempt effectively. If she does not do so, what is the point of it?".

In response, Baroness Scotland explained that "the law on contempt involves a delicate balance between two vital public interests — on the one hand freedom of speech and of expression, and on the other hand the right of an accused person to a fair trial. Not every public comment about a particular case, however outspoken, will seriously interfere with the rights of the accused... Journalists and commentators should be in no doubt that I will continue to enforce the law on contempt fairly and robustly".

The upshot for journalists and editors is that the law and practice engenders something of a grey area in which the legality of stories - or perhaps the susceptibility to prosecution - is indeterminate.

From our perspective, its a timely re-emergence of a long-standing debate. Next month, the LSE Law Department - together with the BBC College of Journalism and Polis - is to host a public panel debate on the theme. The evening's discussion will be chaired by Maxine Mawhinney of BBC News 24, who was herself embroiled in the problems created for journalists by the current law during the breaking of the Suffolk Strangler story. Broadly speaking, Joshua Rozenburg (Legal Affairs editor at the Telegraph) and Mark Haslam (partner at BCL Burton Copeland who represented Steve Wright in the Suffolk murders case) will speak in favour of media caution, while Jonathan Kotler (US Attorney, and Professor at the USC Annenburg School of Journalism) and Nick Davies (Guardian, and author of Flat Earth News) will question the utility of the current regulatory regime.

We are preparing a set of background papers in support of this and a second event. These cover the current law in England and Wales, equivalent regulation in comparable jurisdictions, the state of the social-scientific evidence on the impact of media publicity on the fairness of trials, and an options paper. We're looking into how best to make this material more widely available.

Libel-tourism: impending collapse of another operation?

2008-09-16T16:25:00.000Z

There was a very interesting opinion piece published on the NY Times site on Sunday reflecting on the libel-tourism phenomenon which sees US-based celebrities and others sue in UK/Irish courts for purported defamation only 'incidentally' perpetrated here. The Independent had a piece on the phenomemon last month.

The gander has been gotten up in the US, and was reflected in the UN Human Rights Committee statement published a few weeks ago. Following the Rachel Ehrenfeld case, the NY State legislature was looking to introduce a blocking statute. It seems that there is now a federal bill as well that may be passed before the end of next month.

Contested territory: Ofcom and BBC Trust elaborate on regulatory boundaries

2008-09-12T08:51:00.001Z

Ofcom has published an addition to its March 2007 memorandum of understanding with the BBC Trust as to which regulator will review which supposed content code infractions (1). The position has been that the Trust deals with all matters relating accuracy or impartiality, while Ofcom reviews allegations of inclusion of offensive and harmful material.

The new 'addition' is intended to cover situations in which a single programme gives rise to an issue both of offence and/or harm, and accuracy. This clarifies that Ofcom will enjoy jurisdiction where three conditions are satisfied, even if the allegation involves accuracy. Otherwise matters remain the sole preserve of the Trust. These conditions are:
- It is not an issue arising from News/news headlines or Current Affairs content as defined in the Memorandum of Understanding; and
- It arises from deceptive or misleading content; and
- It arises from (a) an explicit on-air invitation to the audience to participate in a vote or competition and harm or offence to members of the public is, or is likely to be, caused or (b) an on-air invitation to the audience/members of the public to act in a manner likely to result in material harm and/or offence (for example, actions likely to result in detrimental life changing consequences such as injury to health or financial well being).

Unwitting exclusions: Rowntree study on poverty reporting in the media

2008-09-12T08:26:00.000Z

The Joseph Rowntree Foundation has published a study into the reporting of 'poverty' across media in the UK. Its an interesting read, and makes points that will be familiar to those of a 'Chomskyite' perspective (ie that the mainstream media systematically under-reports some matters of importance to society) - see medialens for elaboration on this viewpoint.

The relatively unsurprising key findings of the study include:
- Coverage of poverty is peripheral in mainstream UK media. The causes of poverty and the consequences of poverty were rarely explored.
- Non-news broadcasts rarely mentioned poverty, although they often featured those experiencing deprivation. Coverage tended to focus on extreme cases, highlighting the inherent ‘failings’ of undeserving people. Some documentaries explored the inequities of poverty and complex circumstances of those experiencing it, but reached limited audiences.
- In news media, poverty in the developing world received as much coverage as poverty in the UK, but was reported differently. Depictions of extreme poverty outside the UK correspond with and may influence how the public perceive and define poverty.
- The campaigning sector contributes to keeping UK poverty in the news and is valued by media professionals as a source of comment and a means to access people experiencing poverty. Campaigners recognise that they could be more proactive in generating and promoting coverage of under-reported aspects of poverty.
- Audiences tend to interpret representations of poverty and its causes in accordance with their beliefs and understandings. A key limitation of media coverage is the tendency to marginalise accounts which confront negative public attitudes.
- The researchers conclude that if media coverage could challenge misperceptions of poverty in the UK, it could prove an effective means of generating public support for anti-poverty initiatives.

There are also a couple of lovely quotes from focus group participants and others - for example:

"Journalists don’t slam the door in the face of the poor. They just don’t go knocking. It's not just the journalistic process: poor people don’t make their voices heard so their stories don’t get reported." (Editor, regional newspaper)

"I read the News of the World but I don’t believe a single word that is in it. Not even the times of the TV programmes." (White female, urban Scotland).

Death knell for kiss and tell?

2008-07-28T20:13:00.004Z

Here are a couple of links to pieces I've had published on the Mosley case:

Telegraph and Independent on Sunday pieces

And a few more on interesting excerpts from the expanding raft of commentary:

- Suggesting a chilling effect on investigative journalism

- Discussing the detriment or otherwise to the papers' bottom line

- Arguing that the case will make no difference to newspaper behaviour

- Carey and others on the 'public interest'

- Next up: defamation action

Pass the Alka-seltzer...

2008-01-17T16:01:00.000Z

MediaPaL has been suffering from a prolonged - but fortunately merely metaphorical - holiday hangover, for which apologies are many. That said, the cranial mists are clearing and we will be back firing on all cylinders shortly. In the meantime, I'll be adding brief notes on and links to the most important recent media law/policy developments over the next few days.

Damned if you do... the travails of source protection

2007-12-05T01:21:00.000Z

A story I had missed in the Observer a couple of weekends ago highlights well the quandary facing journalists / authors who wish to protect their sources. Its another Irish case, and involves the refusal of the author of a book on the widespread abuse of drugs in Irish society to disclose the identity of interviewees ranging through nuns, pilots, lawyers, business people, to - importantly - a Government Minister.

The author in question, Justine Delaney Wilson, insists that she had recorded various of the interviews on which the book was based including that with the Minister. On legal advice, however, she destroyed the tapes. This is standard practice to avoid the risks of forced documentary disclosure under legal discovery powers, as it allows the journalist to retain such information only in their head.

With heads pushed resoundingly into the sand, many and various luminaries - including the Justice Minister - have condemned Delaney Wilson and challenged the authenticity of her work. Her inability to produce the evidence is treated as confirmation that it never existed, and is taken to undermine her account. This stance is almost laughable for its complacency and obvious discrepancy with lived experience.

Although it looks like she will not face legal sanction, the percussive criticism she has endured has - ironically - served to focus attention on the question of her credibility as a journalist. Her experience highlights the dilemma faced by journalists who aspire to the ethical route of protecting confidences. Either they must elect to suffer personal punishment (legal or otherwise), or risk damage to individual informants, journalists' relations with sources generally, and social understanding of important issues.

Or maybe she's just a self-promoting charlatan...

Nought but her Chanel No 5?: Kidman sues for harm to commercial interests

2007-12-03T23:54:00.000Z

The MediaGuardian carried an interesting story on Friday focused on a suit brought by Nicole Kidman against the Daily Telegraph. The newspaper reported that a Jo Malone perfume, and not that advertised for Chanel by Kidman, is in fact the actress' favourite. The piece had also suggested that Chanel was unhappy at the apparent undermining of its brand.

Its an interesting case because, while Kidman is clearly interested in defending her future access to lucrative contracts, a jury would be asked whether the - presumably false - suggestion that Kidman prefers the second perfume can be considered defamatory (her lawyers considered that it was 'grossly' so). It might reasonably be asked in what way the suggestion lowers the estimation of her in the minds of right-thinking members of the community. Might she ask the jury to infer from the newspaper piece some supposed slur on her honesty? Is this just a warning shot, or are we in for a second Kidman courtroom moment following her recent testimony in an Australian libel action brought by a paparazzo? Doth she protect so much in order to avoid liability for breach of contractual obligations?

Alteratively, it might be possible to envisage an action in passing-off for false association with the second product... (?) This approach would clearly - and preferably - bring us unquestionably into commercial territory (although there is no link between the newspaper and the other provider). Not that defamation actions can't also protect business / commercial reputations...

Why Can't the British Media Report the EU Accurately?

2007-12-03T22:22:00.000Z

In a discussion at the LSE this evening, Anthony Gooch (of the European Commission), Charles Grant, Derek Scott (of Open Europe), and John Kampfner (of the New Statesman) waxed entertainingly on this perennial debate. Of particular note for the purposes of this blog, was a divergence of opinion between two of the protagonists on the question of Press regulation.

Grant was concerned at the unwillingness of the PCC to insist on corrections of factual misinformation plied on European matters in newspapers. He had earlier highlighted seven lies fabricated by Euro-sceptic newspapers. Its not difficult to understand the Commission's reticence. By adjudicating on complaints over accuracy in politically-charged reporting and commentary (where one man's 'fact' is another's 'interpretation', and yet another's 'kernal of truth' amidst the bunkum), it would be exposing itself to critical retaliation one way or the other.

That said, of course, an insistence on accuracy comprises Clause 1 of the Editors' Code, and the PCC regularly applauds its own supposed capacity to secure the printing of corrections with 'due prominence' (its an aside, but - somewhat tendentiously - the PCC measures this by reference to the page on which corrections are published rather than column inches devoted). Perhaps fortuitously, the obligation to act is obviated by the absence of any directly affected party. The PCC refuses to respond to 'third party complaints' (108 such complaints were 'not investigated' on this basis between April and September of this year), and the European Commission refuses to act as a putative affected party.

In keeping with his position, however, Kampfner considered the very idea of greater regulation of the Press to be 'dangerous and counter-productive'. He suggested that the Government would like nothing better than to increase constraints on the media. In support of his point, he cited the restrictiveness of Official Secrets legislation - on which the New Statesman is currenly fighting a case - notwithstanding the very great distance between requiring correction of erroneous material and mandated secrecy.

On the substance of the debate, Kampfner made the most convincing points. He emphasised his view that the lived experience of everyday people - based on foreign holidays, better food, the rise of Chelsea FC on the back of foreign imports, and Ryanair - would likely contribute much more to any emergent sense of the European demos than newspaper contribution to often contrived 'debate'. He also stated a profound preference for the 'feral beasts' decried by Tony Blair over any connivance to ignore corruption and to fail to challenge those exercising power (using the supposed strawman of US journalistic capitulation to authority) .

Copyright: term of protection and fair use

2007-11-30T19:34:00.000Z

Victor Keegan offered a - somewhat slanted - discussion of the appropriate term of copyright protection in the Guardian yesterday, highlighting the tension between corporate protection of value and wider social creativity sides of the argument. Its a nice read.

Also - loosely - related to copyright (but more particularly related to my new-found ability to embed YouTube clips), is this entertaining video on tampering with digital imagery

Publicity is the very soul of justice: John Battle (ITN) at the LSE

2007-11-30T18:58:00.000Z

Earlier this week, John Battle - Head of Compliance at ITN - spoke at the LSE on the theme of the courts, the media and open justice in 21st Century Britain. He has been vocal on this theme elsewhere in recent months. In an engaging discussion, he highlighted the impact of the 2005 Protocol on publicity and the criminal justice system on the reporting of the courts in England and Wales, and asserted that the change was perhaps the most significant in this area in his lifetime. It is hard to disagree; the Protocol has allowed broadcasters to publish evidence footage, and newspapers to publish stills, that formerly would have been simply unavailable. The upshot is that the general public is more immediately and poignantly informed of the matters presented to the courts.

Examples of the sorts of materials available under the protocol can be seen in the following YouTube videos which aggregate material from the news and current affairs coverage of the Jean Charles de Menezes. Evidently, its a far cry from the old-style journalist-outside-court retelling of legal events, and as a result the news reporting of court proceedings has risen significantly...

Battle's presentation deliberately left a number of important questions hanging: what motivated the DPP in opening mass-mediated access to the courts in this way? why have defence teams been so content to permit such access to go ahead? what objection now can there be to sensible, measured court coverage? why has the Ministry of Justice not moved more quickly on the question of broadcast coverage of trials after the recent pilot recordings of Court of Appeal proceedings (it is mooted that proceedings of the new Supreme Court will be televised)? what now is the role for the general law of contempt of court arising from media publication?

Strasbourg activism sees reputation identified as privacy right

2007-11-26T22:34:00.000Z

The Strasbourg court has delivered two judgments in the last month or so focused on national defamation laws, and in particular on the question as to whether there exists a 'right to reputation' protected under Article 8 ECHR. On both occasions, in Lindon v France and Pfeifer v Austria, the court concluded that reputation is so protected.

For some, this is a welcome conclusion for the rebalancing that it implies must be undertaken as between freedom of expression and reputation in cases such as Reynolds or Jameel. For others, it is based upon a basic misunderstanding of the origins and purpose of Article 8. I'm hoping to speak more to this dichotomy in the next weeks. Meanwhile, Jonathan Coad of Swan Turton has comment pieces on both cases (1,2).

The Future of Broadcasting: public service in a digital age

2007-11-26T19:59:00.000Z

Last Wednesday, Ed Richards of Ofcom spoke at LSE on the above topic - there's useful summary of the discussion and context on Charlie Beckett's blog.

Gossip? Moi?: Independent piece on the Faustian pact

2007-11-26T18:56:00.000Z

Henry Deedes has a suitably gossipy piece in the Independent today on relations between celebrities / public figures and journalists. Its a suitably tantalising foray over ground covered at greater length (but perhaps not as much depth?) by Jessica Callan in recent times.

You say tomato...: rights allocation on either side of The Pond

2007-11-26T18:23:00.000Z

Two stories on content rights agreements on the MediaGuardian site today are worthy of juxtaposition.

On one hand, the BBC has reached an agreement with Pact (the Producers Alliance for Cinema and Television) regarding the allocation of rights as between the corporation and producers of interactive new media content in future contracts. Under the agreement, producers will retain ownership of their content ideas. There's little detail avialable at present, but according to the Guardian the basic aim is to emphasise and reward creativity. The agreement shifts the sector's business model from old style agency/cost plus to one based on IP generation, and should help generate a real secondary market in interactive content. Pact negotiates terms of trade with all public service broadcasters in the UK. Last June, it entered agreements with the BBC, ITV and C4 on the exploitation of media content across the full range of platforms.

On the other hand, the strike by writers in the US continues although new talks have been mooted for today. The talks will be aimed at reaching an accord on the fair level of payments for the use of writers' work on new media platforms such as the internet and mobile phones, as well as on derivative products such as DVDs. For evidence of actors' dumb (?) solidarity, see these on YouTube. Also, see these for general background on the dispute (1,2,3,4), and this on what it means for us (!).

Californication?: Chilli Peppers sue series producers

2007-11-21T18:33:00.000Z

I learnt first from the Sun (which loves to find stories relating to this show as it allows lurid copy - apparently its a bit steamy...) , and latterly from the Telegraph, Digital Spy, the NME, and the BBC that the Red Hot Chilli Peppers are to sue the producers (among others) of the David Duchovny series Californication on account of its apparent 'borrowing' of the title from the band's song / album. The show airs on Channel 5 in the UK.

The band claim that the album was the signature piece of their discography. Good as it was, for me you can't beat Blood Sugar Sex Magik...

New targets and old: more on the advertising to kids debate

2007-11-20T11:20:00.000Z

Consumer group Which? has renewed its critique of the current approach to restricting junk food advertising to kids (1,2). It has conducted further research to demonstrate that the existing rules do not prevent children from seeing a large number of adverts for foods high in fat salt and sugar. This latest round of comment seems very much an exercise in keeping the issue in the public imagination: we been here before.

Meanwhile, in a new development - again based on a research report - alcohol advertising has returned to the agenda as a potential next target for restriction. This is notwithstanding a relatively recent - ie 2005 - change in the rules governing alcohol advertising. The research, which was the fruit of a joint Ofcom and Advertising Standards Authority effort, found that drink suppliers have shifted advertising spend away from tv since 2005 (-26.2%), that children and young adults are being exposed to fewer alcohol advertisements on tv in consequence, that there has been a significant decline in the proportion of young people saying that they feel alcohol adverts are aimed at them, but that many young people do feel advertisements make drinks look appealing and would encourage people to drink. It has been reported that Gordon Brown is to meet with the head of the industry lobbyist the Portman Group to discuss indutry attitudes.

By way of a coda, in the Sunday Telegraph Juliette Garside reflected industry perspectives and explained that restrictions on advertising flowing from concerns re children's welfare could have disastrous consequences for advertising income.

None shall pass?: libel tourism challenged in the US

2007-11-20T10:20:00.000Z

Last week, the Guardian noted that a challenge was being brought in the New York state court of appeals by author Rachel Ehrenfeld against a defamation judgment delivered by the UK courts. A consolidated amicus brief has been entered by all the major UK newspaper groups. The case was being described as the most important First Amendment litigation for 50 years. For a great survey of the background, see this from cearta.ie.

Ehrenfeld is seeking declarations that under US law Mahfouz could not prevail in a claim of libel against her, and that Mr Justice Eady's judgment is unenforceable there. The case could have an impact on the resurgent phenomenon of 'libel tourism'.

Babies crying: where's the news in that?

2007-11-20T08:24:00.000Z

Since the climactic events of the summer (1,2), there has been a continuing trickle of allegations of fakery against the BBC. Most of these are mundane, but one levelled last week is more important (1,2). In a report on the first birth of quintuplets in Britain for five years, the BBC added audio of the babies crying to a video released by the hospital which had no such track. The babies in fact were depicted with respirators in their mouths. Other broadcasters ran the footage without embellishment, and the hospital cried foul.

The BBC has issued a mea culpa of sorts: "we received the film without sound and although we don't believe viewers were materially misled, we should not have added sound to the pictures". Its hardly Goebbels-style misrepresentation, but immediately the event raises the question of what other 'improvements' the BBC has made to news items over time.

A Last Hurrah?: Christian group seeks BBC blasphemy prosecution

2007-11-20T07:29:00.000Z

The Guardian is reporting today that the group Christian Voice is hoping to bring an action for blasphemous libel before the High Court against Mark Thompson - the director general of the BBC - and Jonathan Thoday, producer of the award-winning Jerry Springer: The Opera musical. This would be the first such case since the famous Gay News case of 1977 (Whitehouse v Lemon [1979] 2 WLR 281).

The group considers that the screening of the musical by the BBC in January 2005 was blasphemous, for example because in it Jesus says he is 'a little bit gay' and is depicted as a 'perv in a nappy', Mary rants at Jesus for abandoning her by dying on the cross, Jesus is told by Satan to 'f*** off', God emerges as an old fool who needs therapy, and Jerry Springer becomes an alternative saviour. Per Lord Scarman in Gay News, blasphemy is "any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established".

In its May 2005 response to complaints regarding Jerry Springer: the Opera, Ofcom concluded that while "a large number of people were deeply offended by the transmission... the show was an important work and commentary on modern television". The regulator had received 8860 complaints, of which a large proportion (just under half) were the product of a large scale internet campaign. It also received 210 comments in favour of the broadcast.

Rights-organisation Liberty is acting as an intervener in the case. It contends that "blasphemy laws should be shelved in dusty archives, not used as a tool to bring mischievous prosecutions against the Arts", and that "thirty years have passed since the last blasphemy prosecution, making the law ripe for repeal". It plans to argue that argue that the law violates Article 10 ECHR and that blasphemy should be decriminalised because of its lack of legal certainty.

This law has long been considered problematic. In 2003, a Lords Committee recommended the abolition of the offence. In a 1986 report, the Law Commission highlighted the breadth of the law (the difficulty of assessing whether particular comments fall within it), the narrowness of the law (the application only to Anglican Christian beliefs), and the irrelevance of the speaker's intent as key concerns. It is noteworthy that both Gay News and this case are founded upon private prosecutions. Of course, the existence of the offence informed the debate surrounding the introduction of the Racial and Religious Hatred Act 2006, which created offences involving stirring up hatred against persons on religious grounds.

Changing perspectives: political advertising on disability

2007-11-17T12:15:00.000Z

In the early part of this week, a number of newspapers carried the story that the disability charity Leonard Cheshire is to launch an advertising campaign using new Aardman Animations characters (1,2,3,4). The campaign, Creature Discomforts, has been launched online (although its server was down last time I checked - in the meantime you can meet the six characters here) and hoarding and television advertisements are purportedly to follow.

This is interesting because were the campaign aimed at changing the way in which those with disabilities are viewed in society it should presumably be barred from broadcast platforms as a 'political' advert. Alternatively, it may just be intended to highlight difficulties facing the handicapped, by holding an only slightly distorted mirror up to society. Is there a difference; would there be a point to the campaign if not to change perspectives? Are we seeing a shift in the acceptability of such messaging?

Of course, some years ago an accommodation was reached by the broadcasters and charities which provided that so long as the charities kept their messages factual they would be permissible. So, they can for example represent starving African children in an attempt to raise donations but can't suggest that Western policies - or those of local governments - have any bearing on the predicament faced. That is, objectionably, if charities could cast their missives in the form of commercial advertisements - pay us for a guilt-free conscience - everything was fine from the regulatory perspective.

Incidentally, the challenge launched by animal welfare group Animal Defenders International to the rights-compliance of the s.319/321 ban on political advertising is due to be heard by a House of Lords panel comprising Lord Bingham, Baroness Hale, Lord Carswell, Lord Brown and Lord Neuberger on 17-18 December. The group is seeking a section 4 HRA declaration of incompatibility with the Convention right to freedom of expression.

EC Framework Review Proposals Published

2007-11-14T08:37:00.000Z

The EC has published the new proposals for a revised Framework Directive which sets out the framework for European Telecommunications regulation and would replace the 2002 Framework. Lots of detail to go through here, but there is apparently no major strategic shift in the proposals.

Of note: no EC retreat following Ed Richards robust objection to the proposed single telecoms authority for Europe. Commissioner Reding sets out some detail of the proposed 'European Telecom Market Authority', making it clear that the Commission position is that the proposed authority will work alongside the existing national regulators. I will ask him more about this at a public event at LSE next week.

Now the proposals go into the co-decision procedure: they will be debated by the European Council and Parliament and we can expect to see some vigorous lobbying from national regulators.

Canadian court develops media public interest defence to defamation action

2007-11-13T23:53:00.000Z

The Court of Appeal for Ontario today extended to domestic media organisations the protection of the qualified privilege / media public interest defence to defamation action developed in the UK in Reynolds and Jameel.

The background to the case, Danno Cusson v Quan and Others (2007) ONCA 771, is fairly well-known. The plaintiff, a policeman, had been lauded as a hero after volunteering in the rescue effort after the 9/11 attacks in New York. Subsequently, the defendants published a number of articles suggesting that in fact the plaintiff had misrepresented himself to the New York police as being a member of the Royal Canadian Mounted Police; that he might have compromised rescue operations by misrepresenting himself and his dog as being properly trained for K-9 rescue efforts; that he had been asked to leave Ground Zero by the New York police, and that he faced police disciplinary charges for his conduct. The trial judge had ruled that the qualified privilege defence was not available for most of the allegations published.

In the Court of Appeal, Sharpe J.A. explained that the Canadian law regarding the availability of the qualified privilege defence to the media was "in a state of flux and evolution" although it was thought to be "considerably limited by a series of decisions from the Supreme Court of Canada and from this court dating from the 1950s, 60s and 70s". That said, he then highlighted a "significant line of more recent authority" that justified the view that the defence was available to the media on appropriate occasions. The issue then was simply put: "should the law of qualified privilege remain frozen in its 1950s, 60s and 70s state, or should it evolve to afford the media greater latitude when reporting on matters of public interest"? One might suggest that the writing was on the wall once the question had been phrased in this way.

After reviewing the Canadian lines of authority, Sharpe J.A. drew upon parallels in UK, Australian, New Zealand, US, and South African case law. He reflected that "while evolution of the law of defamation has produced a variety of solutions in different jurisdictions, the evolution away from the common law’s traditional bias in favour of the protection of reputation is strikingly uniform. The courts of [other jurisdictions] have all concluded that the traditional common law standard unduly burdens freedom of expression and have all made appropriate modifications to achieve a more appropriate balance between protecting reputation on the one hand and the public’s right to know on the other". Relying on section 2 of the Charter of Rights and Freedoms, Sharpe J.A. saw no difficulty in overruling the prior Supreme Court jurisprudence.

Having asserted that "the inhibiting effect of traditional defamation law is incompatible with the climate of free and robust debate to which a democratic society aspires", Sharpe J.A. nevertheless expressed reservation at introducing a malice test to accompany an expanded QP defence. He worried that "malice is notoriously difficult to prove and the adoption of a malice standard would, as a practical matter, make recovery for most plaintiffs a remote possibility". He envisaged a "dramatic and unwarranted shift in the law that would unduly minimize the protection of the important value of individual reputation" were this approach to be pursued.

In his mind, the new 'public interest responsible journalism defence' was a new jurisprudential creature (akin to that perceived by some of their Lordships in Jameel), and one that does not include a stand-alone malice test as would the traditional defence. Rather the responsible journalism test was deemed to have subsumed the malice question altogether, both in the UK and in Canada. Intending to adopt what he considered to be the UK approach, the appeal judge rejected the specific categorical approach of Australia and New Zealand that restricts the defence to political speech (this would "introduce a potentially troublesome distinction between various types of expression that would unnecessarily complicate the law").

Many thanks to Andrew Kidd of the current LLM class at LSE who highlighted the case, having acted as junior counsel for one of the parties.

The Future of Impartiality: Is the Public Service Ethos Doomed?

2007-11-12T23:57:00.000Z

A podcast of the above Polis event, held at the LSE last week and involving Evan Davis, Emily Bell, Richard North and Roger Bolton, is available here. There is also a good overview with some interesting comment on Charlie Beckett's blog.

Can you keep a secret?: survey on international shield laws

2007-11-12T21:59:00.000Z

Human rights group Privacy International has published the findings of a global survey of laws protecting journalists' sources. The survey demonstrates that 'shield laws' designed to allow journalists to maintain the confidentiality of sources have been adopted in around 100 jurisdictions worldwide. Interestingly, it highlights the US, Canada, the Netherlands and Ireland as noteworthy for their failure to introduce specific legal protections.

The survey notes the potential difficulties faced by journalists in the face of the regular deployment of search warrants on media offices and journalists' homes, the use of legal and illegal surveillance, the adoption of data retention laws allowing authorities easy access to journalists communications data, and national security claims.

The survey also offers a useful breakdown of key aspects of national laws, and an overview of international provisions and statements relevant to the area, before focusing on individual regions. Its a very helpful resource.

[BTW, the cartoon by Cambon is from the World Association of Newspapers site]

The Pushmepullyou: the intractable problem with the PCC?

2007-11-09T11:54:00.000Z

Jonathan Coad of Swan Turton has renewed his longstanding critique of the Press Complaints Commission with a note drawing together a number of recent developments. He cites Heather Mills' recently launched campaign for accuracy in journalism, comments from Greenslade, evidence given by Christopher Meyer to the Culture, Media and Sport Ctte of the House of Commons, and evidence from the Commission's enforcement decisions to challenge the independence of the authority.

Coad asserts that the PCC is obviously inadequate for its supposed role given its "systemic press bias". He concludes that it should be "allowed (sic!) to fulfil its real role as a lobby group for ensuring press freedom" while "a new independent press complaints body should deal with the complaints of the general public so that justice is not only done when complaints are made, but is seen to be done". The PCC might feel free to ignore this lone voice, in favour of purported assurances on its future from government. Except, its not a lone voice...

'The New Republic'?: Cass Sunstein to speak at LSE

2007-11-02T15:52:00.000Z

Its been confirmed that Cass Sunstein, Professor of Law at the University of Chicago and author of the seminal work Republic.com among much else, is to speak at LSE on 6 December. The book highlighted the potential threat to democracy arising in the risk that the Internet might prompt the (further) segmentation of society into self-reinforcing, balkanised sub-cultural groups that engaged less with unfamiliar people and ideas to the collective detriment.

Sunstein has recently published an updated version of his 2001 text, taking account of the widespread critique and valorisation of his earlier take and recent technological developments such as blogs. Further details to follow...

Missing the big picture?: the misdirection of the AVMS

2007-10-29T22:04:00.000Z

Russ at OfcomWatch has highlighted an interesting article in The Times that passed me by last week. The piece is focused on the new Audio-Visual Media Services Directive (AVMS - the latest revision to the Television Without Frontiers Directive - the common position on which, incidentally, the EC Commission concurred with a couple of weeks ago). In short, it queries the rationale for content regulation in the digital age and suggests that a preferable approach would be to 'equalise down' approaches to linear (traditional pushed tv) and non-linear (ostensibly Internet tv delivered on demand) rather than extending the regulatory purview to new media.

The piece is more eloquent than allowed above. The author, Graham Smith of law firm Bird and Bird (they of the cleverly simple - or simply clever - homepage address http://www.twobirds.com/), asks rhetorically: "does internet video herald the death of broadcast content regulation as an increasingly irrelevant anachronism?".

Smith does not remain neutral on the question for long: "broadcast content regulation is an anomalous relic of the old days of spectrum scarcity. If convergence is thought to demand platform neutrality in content regulation, it does not automatically follow that it should be achieved by extending the remit of Ofcom. On the contrary, it can be achieved by rolling back broadcast regulation and subjecting the freed-up content only to the general law. If that is not palatable, the answer is not to extend broadcast regulation into areas in which it has no business. It is to refrain from seeking full platform neutrality in content regulation". Support is drawn from the most important, and least commented, pearl of wisdom in Tony Blair's feral beast speech regarding the unsustainability of divergent approaches to media regulation as determined by (converged) technology.

For his part, Russ offers the additional thought that the impact of the new regulation will be minimal, in particular due to the jurisdictional opportnities open to web-based publishers.

Inch by inch...: BSkyB offer voting remedy on ITV merger

2007-10-29T19:27:00.000Z

It has been reported over the weekend that BSkyB has offered to forego the full voting rights attendant on the 17.9% share in ITV that it has acquired (1). The Competition Commission has previously suggested that some remedy must be found to offset the impact on competition that it has perceived. The proposal was contained in a letter dated 12 October. A remedies hearing was scheduled to take place last week.

BSkyB is keen to ensure that there is no presumption in favour of any of the possible remedies mooted in the provisional report. It is proposing to dispose of such measure of voting rights that is currently deemed to facilitate its influence by placing them in a voting trust with a respected institutional trustee. The company calculates that on the Commission's figures this could be achieved by alienating as little as 2.3% of the shares, and has generously proposed to nominate 3% (leaving 14.9% under its control, which it considers to be clearly insufficient to allow material influence). This is attractive because, as a structural solution, it would require no monitoring by the OFT.

Clearly, this simple voting remedy is designed specifically to remove the only basis for a finding of material influence, viz by dint of the purported ability to block special shareholders' resolutions (which requires 25% of voting shares). It is a clever, and difficult to gainsay, strategy. The company has realised that on the Commission's own figures even a relatively small reduction in its voting power would allow the ITV board to proceed irrespective of BSkyB opposition. Minded of the Commission's obligation to act proportionately, it is offering a quick fix. To my mind, the Commission would have to rejigg its complaint if it is to reject such a proposal. It will be interesting to see the response.

Predictably, not everyone agrees: Virgin Media are still advocating (baldly) a complete sell-off.

In addition to its proposal which is without prejudice, BSkyB has also promised further evidence to contest the Commission's preliminary findings both that a relevant merger situation has been created, and that such a situation will lead to competition problems on the all-TV market.

A non-confidential version of BSkyB's letter, along with the responses received by the Commission from other interested parties, are available on the inquiry webpage.