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    Wednesday, 28 July 2010

    Two tribes: Mrs Justice Sharp on media lawyers

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

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

    Sunday, 25 July 2010

    Harassment by publication case fails

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

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

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

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

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

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

    Thursday, 8 July 2010

    Thoughts on Lord Lester's Defamation Bill

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

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