Law and Media Roundup 23 May 2010

23 05 2010

In this regular feature we draw attention to the last week’s law and media news and next week’s upcoming events. If readers have any news or events which they would like to draw attention to please add them by way of comments on this post. We are particularly interested in forthcoming events.

News

A “review” of the law of libel features in the full “Coalition Agreement” – without any detail being added to the statement in the original four page version (see our post here).  According to the leaked Queen’s Speech, the “Great Repeals Bill” or “Freedom Bill” will include the following:

“the scrapping of universal DNA databases and the placing of restrictions on internet records while the use of CCTV cameras will be reviewed, the ContactPoint children’s database will be shut down. Libel laws will be reviewed while limits on peaceful protest will be removed.”

The PCC has released its Annual Review for 2009, revealing it received it received 37,000 “contacts in writing” during 2009, up from the 4,700 complaints received the previous year. However about 25,000 of these contacts concerned Jan Moir’s article about the death of former Boyzone singer Stephen Gately.  The “key statistics” include the following:

  • The PCC investigated 1134 complaints, 738 of which raised a possible breach of the Code.
  • Of these 609 were settled “to the satisfaction of the complaint”
  • The PCC ruled that there had been breaches of the Code in 129 cases but in 111 remedial action by the publication was considered sufficient so that there were “public censure” by the PCC in only 18 cases.
  • The PCC says it dealt with substantive complaints in an average of 18.4 working days (set against its target of 35 days);

There is also a dedicated web page for the review – including a podcast.  We will have a substantive analysis of this review in a later post.

 

The John Terry privacy case continues to be discussed.  We have posted about it before, here and here.  This week Roy Greenslade drew attention on his blog to the fact that Vanessa Perroncel, the woman accused of having an affair with John Terry, now denies having had a sexual relationship with him. This denial was in the course of an interview with Kathryn Knight for “Grazia” magazine. This denial, some 4 months after all the original publicity has draw some surprised comment.  Mr Greenslade draws attention to the following point:

“During the Knight interview there is a telling – if mysterious – moment at the mention of Terry’s name. According to Knight, Perroncel’s “publicity agent whips out a box file and asks Vanessa to peruse a closely typed piece of paper within it to ‘remind’ her of her position.”   This person, said by the Daily Mailto be a Max Clifford employee, sat in on the conversation”.

 

In a later post Roy Greenslade returns to the question of whether Ms Perroncel has consistently denied the affair, concluding that “the Grazia interview, conducted in mid-May, is part of a consistent patten of denials”.

There appears to be a growing “public backlash” over the Daily Mail’s story about Lord Triesman (the subject of an earlier post).  In the Observer Peter Preston describes it as an “own goal for the cause of press freedom” and Andrew Anthony asks “Whose interests are being served by this squalid tale of entrapment?”.  Martin Moore suggests that the Mail is suffering “another public backlash”. A similar point is made by the Media Blog. However, “Spiked” has a piece supporting the publication, entitled “In defence of the right to tittle tattle”.  Tim Black has little sympathy for Lord Triesman

“Public figures, especially the petty moralisers at the FA, have for too long made private conduct a matter of public importance, a policy to which womanising John Terry, now the ex-England captain as a result of his philandering, can readily testify”

 

The decision by Mr Justice Eady to stay the claim bySant Baba Jeet Singh Ji Maharaj against journalist Hardeep Singh is discussed in the Independent by its religious affairs correspondent.  Writing in the Guardian Simon Singh welcomes the decision.  He suggests that this case and that of David Osler (see our post here) provide a “a timely reminder. Ken Clarke must honour that pledge to reform libel law”.  A similar point is made about the Osler case by blogger “Jack of Kent.”  Neither explain how any of the proposed libel reforms could prevent people from bringing bad cases.

 

 

“Girl with a one track mind” blogger Zoe Margolis has won “substantial damages” from the Independent on Sunday after it referred to her as a “hooker” in a headline.  The settlement is reported in the Press Gazette and on her blog.

Australian Federal Court judge Steven Rares gave a speech on the subject of “The Jury in Defamation Trials”.  He strongly favours the use of juries in such cases, agreeing with Lord Devlin’s viewthat, when a man is on trial for his liberty,

predictability is quite unimportant. What then is wanted is a decision on the merits that will after the event satisfy the public that justice as the ordinary man understands it has been done. Likewise, when a man’s honour or reputation is at stake, he is more concerned to have a judgment that fits his merits

From the Blogs

 

The Pew Centre’s blog “Journalism.org” reports that “The UK Elections Consume the Blogosphere” – with 61% of news links on blogs relating to the election, ten time more than the next most popular.

The Concurring Opinions blog has an interesting piece by Daniel Solove on the question of whether confidentiality contracts are enforceable in the US – he refers to his 2009 paper on the subject in the Columbia Law Review which reached the sensible conclusion that

the First Amendment should apply to civil liability when government power shapes the content of public discourse, but not when government power merely serves as a backstop to private ordering.”

The Certea.ie blog draws attention to an article by Angela Daly on The Internet, and Rationales for Free Expression

 

Channel 4’s planned broadcast of an advertisement for abortion services by Marie Stopes International is discussed on the Media Pal@LSE blog.

 

US Law and Media News

In FTC v. Trudeau, No. 10-1383, slip op. (7th Cir. May 20, 2010) the Seventh Circuit Court of Appeals overturned a summary contempt citation and sentence imposed by U.S. District Judge Robert Gettleman after his court e-mail account was inundated with messages after infomercial pitchman Kevin Trudeau urged his supporters to e-mail the judge.  The case is discussed on the Citizen Media Law Project Blog.

Media Cases from Other Jurisdictions

 

In Fierravanti-Wells v Channel Seven Sydney Pty Ltd [2010] NSWDC 77 the court considered an application by the defendant in defamation proceedings to strike out imputations pleaded by the plaintiff.  Some imputations were struck out, the plaintiff was given leave to replead others

The case of Palace Films Pty Ltd & Ors v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 415 concerned a claim for breach of confidence and defamation.  Thedefendants successfully objected to the pleading of the words “wrote and published or caus ed to be written and published”.  Commenting on the use of such words in Gatley, the judge said

With respect to the learned authors of that text, I think that is an unfortunate formulation, particularly in the use of the conjunction “and/or”. Separately, the chapter in Gatley headed “Particulars of Claim” in the 11th edition notes at [28.10] that it is usual to describe in the particulars of claim the mode of publication. The examples offered are “wrote and caused to be published” and “spoke and published”. For my part, I think the repetition of the words “and published” in the particulars is unnecessary. [19]

The judge went on to suggest that the pleading should be subjected to the discipline of articulating (a discipline which could, perhaps, be usefully adopted in English libel cases):

(a) each communication of defamatory matter (that is, each publication) sued on as a separate cause of action;

(b) as to each such cause of action, and as to each defendant to that cause of action, a statement of the facts, matters and circumstances on the basis of which it is contended that he or she published the defamatory matter complained of (where that is not otherwise obvious);

(c) as to any republication sued on as a separate cause of action, a separate paragraph alleging that the original publication was republished and pleading the words of the alleged republication in terms …

(d) as to each defendant to each separate cause of action for republication, the facts, matters and circumstances on the basis of which it is contended that he or she is liable for the republication …;

(e) any republication relied upon only as damage flowing from the original publication, with an appropriate pleading of causation … together with a statement of the facts, matters and circumstances on the basis of which it is contended that the original publication caused the republication, where appropriate (citations omitted).

In the Canadian case of Boehmke v. Grant et al, 2010 BCSC 682 the claim concerned alleged defamatory statements made by a police officer to the plaintiff’s employer stemming from her perceived lack of cooperation with the police in the course of an investigation into vandalism. At the time of the incident, the plaintiff was employed in the Nelson Court Registry as a clerk and a Justice of the Peace.  The judge held that the major thrust of the conversation involving the defendants was in relation to the plaintiff’s perceived shortcomings as they related to the information she was providing the Nelson police on a matter wholly unrelated to her employment within Court Services and that, as a result, the communication was not protected by qualified privilege.  The judge held that, in any event, the police officer was motivated by malice.  Damages of Can$9,000 (£5,872) were awarded.

 

There is a high profile libel trial proceeding in Sydney at the moment. The case ofAntoine Bechara v Paul Bonaccorso concerns a businessman who made serious allegations to police about a developer, Antoine Bechara.  Mr Bechara sued for defamation.  The trial is reported by the Sydney Morning Herald here, here and here and is continuing

 

Events

At 6pm on 26 May 2010 Lord Steyn is giving the 3rd Annual Boydell Lecture with the title “Litigation Tourism: Defamation and Privacy. The event begins at 6.00pm and is at Inner Temple Hall.  There is no charge but pre-booking is required.

Next Week in the Courts

On 25 or 26 May 2010, the case of Flood v Times Newspapers Limited (on appeal from [2009] EWHC 2375 (QB)) will be heard by the Master of the Rolls and Lords Justices Moore-Bick and Moses

Judgment in the case of Brady v Norman, will be given by Mr Justice Eady on 26 May 2010 (the case was heard on 13 May 2010)

Reserved Judgments

The following reserved judgments in media cases remain outstanding:

Imerman v Tchenguiz (and linked appeals), heard 10 to 11 May 2010 (Master of the Rolls, Moses and Munby LJJ)

Underhill v Corser heard 10 to 13 May 2010 (Tugendhat J)

Ajinomoto Sweeteners Europe SAS v Asda Stores Limited, heard 11 to 12 May 2010 (Sedley and Rimer LJJ and Sir Scott Baker)

The British Broadcasting Corporation -v- Sugar, heard 17 May 2010 (Master of the Rolls, Moses and Munby LJJ)

Khader v Aziz and Davenport Lyons, heard 19 May 2010 (Sir Anthony May P, Carnwath and Moore-Bick  LJJ)

Litigation Tourism: Defamation and PrivacyLitigation Tourism: Defamation and Privacy
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26 05 2010
“Libel must be rebalanced in the scales of justice” – the proposed Libel Reform Bill « Inforrm's Blog

[...] – but there are also important arguments to the contrary which need to be considered.  In a post earlier this week we mentioned a speech by Australian Federal Court judge Steven Rares gave a speech on the subject [...]

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