Required reading: Tim Luckhurst on the predicament of journalism

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

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

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?

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

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

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?

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

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

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

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

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

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

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

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

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

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

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

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

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

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.