News
After Super-injunction spring we seem to have entered a quiet summer. A small trickle of uncontentious privacy injunctions has not troubled the legal correspondents of the tabloid press. In libel, the jury trials disappear, one after the other. This week there are two “judge alone” trials – in libel and privacy – which are mentioned below.
We note one interesting piece of new information about “super-injunctions”. As a result of a question asked in the Northern Ireland Assembly it has been revealed that four “super-injunctions” have been granted in Northern Ireland since 2007. It is not clear when the last of these was granted or what the subject matter was.
The highest level of activity continues to be in the field of “phone hacking” – dealt with in our post yesterday – this week there was a fifth arrest, two more hearings and yet another “new leaf” turned over by “News International”. It seems likely that the activity will continue over the summer, with more arrests and civil claims anticipated.
The saga of the Paul Dacre libel threat continues (and continues to be ignored by the other newspapers). The Angry Mob blog has a post entitled “Abuse and Defamation, Part 2” dealing with the continuing legal threats and the difficult position of his webhost. The “Press Not Sorry” blog has links to all the recent blog posts on the subject.
Libel action by newspaper editors and proprietors is in the news, with the Press Gazette reporting that Alexander Lebedev is considering legal action against The Guardian after alleging that comments attributed to him in an article last week were based on an off-the-record conversation. It is not entirely clear how a libel action can be based on these facts but we await further developments.
This week’s “Media law mop up” is entitled “Privacy debate; Hari interviews; and BBC regulation”
Statements in Open Court and Apologies
We are not aware of any Statements in Open Court this week.
Journalism and the PCC
The Angry Mob blog has a post about an individual, calling himself ‘Christian1985‘ who edits Wikipedia entries relating to the Daily Mail and Paul Dacre and who has received a lot of criticism for constantly (and dubiously) editing the Daily Mail Wikipedia page – criticism he brushes off by claiming that he is merely defending the page from ‘bias’ and ‘smears’.
The Greenslade Blog draws attention to three interesting cases on the PCC’s latest list of “resolved” complaints – concerning a picture of Pippa Middleton, an inaccurate story about footballer Aaron Lennon and a clarification and apology to the family of a former “News of the World” journalist, Ray Chapman by the “Observer” and to the Electoral Reform Society by the “Daily Mail”.
In the Courts
On Monday 27 June 2011 Vos J heard the adjourned disclosure application in the phone interception litigation. On Friday 1 July 2011 he dealt with the third Case Management Conference in the same litigation.
On Tuesday 28 June 2011 there were pre-trial applications in the libel/malicious falsehood case of Thornton v Telegraph Media Group (a case due for trial, commencing on Monday 4 July 2011). The parties agreed that the matter should be tried by judge alone (we had a post about the Court of Appeal decision, which is now available on Bailii, [2011] EWCA Civ 748).
On Tuesday 28 June 2011, Mr Justice Eady gave a judgment concerning the conduct of the trial in the privacy case of Ferdinand v Mirror Group.
On Friday 1 July 2011, Mr Justice Eady gave judgment in the case of Ashcroft v Foley ([2011] EWHC 1710 (QB)) on an application by the defendant to amend the plea of justification (struck out on an earlier occasion).
Media Law in Other Jurisdictions
In Besser v Kermode [2011] NSWCA 174(30 June 2011) the Court of Appeal in New South Wales dismissed an appeal by the defendant publisher, holding that the defence of contextual truth had to must defeat the whole defamatory matter and that contextual imputations pleaded must be in addition to those “of which the plaintiff complains”. The defendant could not plead back any of the plaintiff’s imputations as a contextual imputation to establish a defence of contextual truth.
There McCallum J in the Supreme Court of New South Wales delivered four judgments in the last week. First, in William Robert Ell v Katie Milne [2011] NSWSC 645(27 June 2011) she refused orders striking out parts of the defence of contextual truth but ordered the provision of particulars. In Kermode v Fairfax Media Publications Pty Ltd (No. 2) [2011] NSWSC 646 (27 June 2011) she directed the defendant to answer interrogatories directed to the information held by them at the time of publication. In Born Brands Pty Limited & Ors v Nine Network Australia Pty Ltd & Ors [2011] NSWSC 642 (27 June 2011) the same judge held that each of the imputations relied upon by the plaintiffs could go to the jury but ordered the plaintiffs to provide further and better particulars of malice. Finally, in Matthew Jonathan Hyndes v Nationwide News Pty Limited [2011] NSWSC 633 (24 June 2011) she struck out a defence of truth but gave leave to the defendant to file an amended defence.
In Hocken v Morris [2011] QDC 115 the Queensland District Court awarded damages of A$75,000 (including A$25,000 aggravated damages) in respect of the publication of a large number of posters reading “You will be brought to justice Michael Hocken” put up by the defendant in the area where he and the plaintiff both lived.
In Canada in Martinek v. Dojc, 2011 ONSC 3795 the Ontario Superior Court of Justice ordered a re-trial in a libel case based on the publication of alleged defamatory emails to members of a Yahoo group.
In Bains v. 1420546 Ontario Inc., 2011 ONSC 3686 the Ontario Superior Court of justice entered default judgment for damages for defamation arising from the publication of a defamatory article about the plaintiffs printed Nagara Weekly, a Punjabi newspaper distributed in the Greater Toronto Area. The allegation was of treasonous activity in India. Damages of Can$75,000 were awarded, including punitive damages of Can$25,000.
The “Daily Telegraph” reports that a French court has dismissed a libel claim brought by the daughter of the Uzbekistan President, Islam Karimov. The claim concerned a statement by a French news website that she was a “dictator’s daughter”.
Events and Broadcasts
No events have been reported to us this week.
Academic
There is a new article entitled The Limits of Tort Privacy, by Neil M. Richards, forthcoming in Journal of Telecommunications and High Technology Law. The author argues that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. He contends that the tort of privacy, especially the disclosure tort, has from its inception been in conflict with First Amendment values. Privacy in the age of information and social media requires new strategies and new legal tools.
Next Week in the Courts
Two trials will commence on Monday 4 July 2011. First, before Mr Justice Tugendhat there is the libel and malicious falsehood case of Thornton v Telegraph Media Group Limited.
Second, before Mr Justice Nicol, in Court 12, is the privacy case of Ferdinand v MGN Limited. This is a rare example of a misuse of private information coming to trial in the English courts (it appears to be only the third such case since the decision of the House of Lords in Campbell).
On Tuesday 5 and Wednesday 6 July 2011 the Divisional Court will hear the application of the Attorney General to commit two newspaper groups for contempt as a result of their reporting of the Chris Jeffries case at the end of 2010. We discussed this coverage in a blog post at the time.
Reserved Judgments
The following reserved judgments after public hearings remain outstanding:
El Diwany v Ministry of Justice & the Police, Norway, heard 16 March 2011 (Sharp J).
Hutcheson (formerly known as “KGM”) v News Group Newspapers, heard 24 May 2011 (Master of the Rolls, Etherton and Gross LJJ).
Modi v Clarke, heard 22 June 2011 (Master of the Rolls, Thomas and Moses LJJ).
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