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    Friday, 5 February 2010

    Lord Hoffman beats-up on the libel reform campaign

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

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

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

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

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

    Has the worm turned? tabloid understandings of privacy law

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

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

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

    Tuesday, 2 February 2010

    John Terry super-injunction case

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

    A few interesting points from the judgment:

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

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

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