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    Monday, 26 April 2010

    Council of Europe and ELSA essay competition: freedom of speech

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

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

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

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

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

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

    The group prizes in the photo report category are:

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

    Further guidance can be garnered from the competition website.

    Thursday, 22 April 2010

    Prior notification obligations are like buses...

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

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

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

    Wednesday, 7 April 2010

    Inquiry into injunctions in libel and privacy cases

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

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

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

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

    Friday, 2 April 2010

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

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

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

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

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

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

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

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

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

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

    Thursday, 1 April 2010

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

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

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

    On question 1, time will tell.

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

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

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

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

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

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

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

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

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

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

    Singh wins appeal in British Chiropractic Association case

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

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