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.

'Twelve good men and true' sitting on a wall: juries in libel

The issue of whether libel trials require juries has become a key focus for debate in the context of reform.  In his final report on the costs of civil litigation, Lord Justice Jackson mooted the possibility of this change. In our paper on reform options, Alastair Mullis and I explicitly cited this possibility as a potentially desirable 'cost-saving process change'. In its report, the Libel Reform Working Group found that views were mixed on the desirability of removing juries altogether, but suggested that the determination of meaning might somehow be expedited (at [91]-[100]).

On the flip-side, there are obviously risks in allotting the role regarding the determination of meaning to a sole judge. As has been illustrated of late, parties will not always get the meanings they want. Moreover, very few cases ever reach the full trial and so the savings in cost will usually be negligible (although the perception that costs will be lower might see more cases reach the trial stage). For some, there is also a point of principle at stake: the 'constitutional' right to have a jury determine meaning.

In this context, Inforrm has a very interesting blogpost this morning regarding an as yet unreported preliminary ruling in Fiddes v Channel Four. It seems Mr Justice Tugendhat may have preempted the reform debate on grounds, inter alia, of the importance of freedom of expression.

The costs of confidence: Irish Times applies to Strasbourg

The Irish Times has applied to the European Court of Human Rights with regard to the adverse costs order that it sustained following the decision of the Irish Supreme Court in Keena.

Update: see this from Eoin at Cearta.ie

Who's got the one-track mind? the libel claimant's story

In years to come - if it isn't happening already - political science students will be studying the libel reform campaign, its personalities, methods and outcomes from divers theoretical perspectives. For now, its all still a whirl. Its to be hoped that what comes out of the vortex will be fair, procedurally sound, less costly all round, and sustainable. The singular success of the libel reform movement has been to focus attention and to ensure that many heads address the complex issues. Its singular failure would come to pass if we trip into rushed and piecemeal reform. We've almost made that mistake once (1,2). Beware the (online) free speech nympholeptics!

Today there was a small but important event; another reminder to everyone that this is not a battle between the good and the evil, the honorable and the avaricious, liberals and 'illiberals' (the last was when Carter-Ruck won a libel case... for a scientist... on a CFA). A claimant's story got told - and told fairly and well.

Read it for yourself here, and when you're done try this for a further insight (this time into the experience of being at the eye of a media storm).

... and hat's off to the Guardian!

Brave new world? Lord Lester's defamation bill

Lord Lester's much-trailed (1, 2) Defamation Bill has been published today having received its first reading in the House of Lords yesterday (no date yet for a 2nd reading). It is available here. There is - already! - a searching commentary on the Inforrm blog. In light of the Coalition's commitment to a review of the law, the Bill should provide a useful vehicle for further political consideration.

Lord Steyn on the need for libel reform

This evening Lord Steyn delivered the Annual Boydell Lecture at the Inner Temple Hall. He took as his theme, 'Defamation and Privacy: momentum for substantive and procedural change?' and offered a somewhat distinct perspective to that propounded by Lord Hoffmann earlier this year. Here are some extracts from the transcript (which (a) hasn't been checked against delivery, and (b) can be obtained from me if it isn't available elsewhere):

It is (I believe) a fact that very often British newspapers, when sued in libel, give up and settle when one would not expect them to do so... Libel law is tilted against the media.

Some libel specialists question that libel tourism is a significant problem. In my respectful view the concerns of the Lord Chief Justice [given in a speech to the Society of Editors on 16 November 2009] are well-founded. A combination of the multiple publication rule, and the even a small number of internet readers of the United Kingdom, has created the risk of a cause of action here, and opened the door to libel tourism.

Re Reynolds: The idea was that over time a valuable corpus of case law would be built up. But the defence failed. Optimism about the practical utility of Reynolds privilege unfortunately proved misplaced. The great majority of Reynolds defences failed at first instance... As a matter of precedent Jameel did not amount to the much needed critical re-examination of Reynolds. Unfortunately as matters stand, the Reynolds privilege will continue to complicate the task of journalists and editors who wish to explore matters of public interest and it will continue to erode freedom of expression

Yet, re the 2009 Canadian Supreme Court judgments of Grant v Torstar and Quan v Cusson which many have seen as vindications of the Reynolds approach: luminous judgments... which in effect change the existing rules... The Supreme Court recognized the importance of a robust media in protecting freedom of expression

Re the recent Singh case: Fortunately there is now, among the senior judiciary, in other respects considerable momentum for substantive improvement of libel law. An enormous advance is the case of Dr Singh It is not for the courts in cases involving scientific controversy to disentangle fact from opinion. To introduce the chilling impact of litigation in this area is absurd

Commending the 2008 book Defamation and Freedom of Speech by Dario Milo: The author puts forward a number of important arguments which require serious consideration... he challenges the common law presumption that defamatory statements must be presumed to be false... makes a strong case that a plaintiff should have to establish a lack of care for public speech defamation... argues that the victim of a slur on matters of public concern must prove that he suffered actual damage to his reputation... A practical point to which I want to direct attention in this book is Milo‘s observations about the appropriate fault element for secondary distributors such as internet providers and booksellers. He argues powerfully that the standard should be gross negligence... these ideas ought to be considered in an open minded way in order to render our defamation law fit for purposes... I see no reason why Milo‘s analysis cannot be adopted

I do not think the developments I have discussed can be left to the organic development of the law. Legislation will be necessary.

On practical aspects of libel and privacy law: My understanding is that a high level inquiry will deal with this subject. I hope the result will be that super injunctions will never, or virtually never, be granted... [and] it seems to me important to examine also the question whether in the area of libel the use of specialist judges is necessary... One accepts that in certain fields there is an advantage in using specialist judges... [but] why are specialist judges required in libel cases? The types of issues involved in libel case can quite appropriately and conveniently be tried by any Queen‘s Bench judges. Nothing in recent experience of libel cases demonstrates a clear advantage in using specialist judges.