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.

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.

BSkyB loses appeal bid

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

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?

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

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

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).