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.

Debate on prior notification obligations in privacy cases

Max Mosley has asked the European Court of Human Rights whether the UK government should be obliged to introduce some form of prior notification obligation in privacy cases. As noted previously, I have recently had a paper published on that theme. A shortened version of that paper can be read on the Inforrm blog. Max Mosley has now published his response to my paper. His salient argument can also be found on the Inforrm blog.

New paper: Prior Notification in Privacy Cases - A Reply to Professor Phillipson

I have a new working paper out (title as above) in the LSE Law, Society and Economy Working Paper Series. As implied by the title, it is a response to Gavin Phillipson's intelligent and persuasive discussion published in the first volume of the Journal of Media Law on the prior notification obligation for which Max Mosley is currently petitioning the European Court of Human Rights (see here, here and here on the Inforrm blog).

The paper can be downloaded here or here. An improved version will be published later this month as (2010) Journal of Media Law, 2, 49-65 [update - the JML paper is now out. For those at LSE, it can be accessed on the Ingenta database].

An abstract for the working paper is as follows:

In a recent edition of the Journal of Media Law, Professor Gavin Phillipson considered whether the United Kingdom must impose a prior notification obligation on the media in respect of stories that concern the private conduct of individuals. Such a notification requirement would allow time for the subjects of such stories to seek interim relief to prevent publication. Max Mosley has asked the European Court of Human Rights to oblige the UK to introduce such a rule. Professor Phillipson concluded that Mosley should win his case. This paper proceeds, first, by questioning the fundamental premise of the Phillipson / Mosley argument: that damages are inadequate to compensate harms done through publication of private information. Secondly, it considers the practical ramifications of the imposition of a prior notification requirement, both in terms of the ‘workability’ of a legal obligation and the impact it would have on media freedom. Thirdly, it airs the question of whether – in light of the margin of appreciation afforded to contracting states – it would be legitimate for the Strasbourg court to compel the introduction of a specific measure to assist the protection of privacy. The paper concludes that the European Court should not find the United Kingdom in breach of its obligations. Nevertheless, it closes with reflections on the desirability of prior notification, and the availability of other means to encourage the practice.