Law and Media Round Up – 21 November 2011 [Updated]

21 11 2011

The press provides an essential check on all aspects of public life,” were Lord Justice Leveson’s opening words to his Inquiry last Monday. “That is why any failure within the media affects all of us. At the heart of this Inquiry, therefore, may be one simple question: who guards the guardians?

The overall question may be simple, but the evidence-gathering exercise is certainly not – as previous attempts to unravel the phone hacking scandal have shown. The Inquiry first day also featured a statement from the Counsel to the Inquiry, Robert Jay QC, as reported by us here.

The Leveson Inquiry has embraced multimedia communication, with its useful website livestreaming all hearings live. The hearings page contains video archive and transcripts. The Inquiry also joined Twitter this week (@levesoninquiry) – it quickly gained over 400 followers, but had only tweeted once at the time of writing, announcing this week’s Witness List. Inforrm discussed Twitter’s role in the public inquiry at this link.

In the first week of formal hearings, the court heard that Glenn Mulcaire’s notebooks implicate journalists from the Sun and the Mirror, as well as 28 people from News of the World, but Neil Garnham QC representing the Metropolitan Police stated that it was wrong to infer that all 28 “corner names” were NOTW employees. Trinity Mirror later said it had no knowledge of using Glenn Mulcaire. The Daily Mail’s counsel, Jonathan Caplan, argued that the paper’s data requests outlined in the ‘What Price Privacy Now‘ report (2006) were legal. Lord Justice Leveson warned the press that he would be monitoring coverage for adverse coverage of Inquiry witnesses. The Inquiry also heard from David Sherborne, representing the Dowler family and 48 other alleged victims of intrusion by the media.

PA Media Lawyer’s Leveson reports, some of which are syndicated on Press Gazette or available to subscribers here, provides consistent coverage of Inquiry updates. All Press Gazette’s coverage of the Inquiry can be found at this link.

There is plenty of Leveson-related discussion outside the courtroom too: Lord Fowler, a former Times journalist and chairman of the Thomson Foundation, aired his concern in the House of Lords on 15 November that a campaign “to deny the importance of the Leveson inquiry” had been waged “by some in the press who say that the matter should be left to the press to sort out for itself“. David Allen Green responded to News International’s claim of a “witch huntin this blog post, arguing “it is the bleating of the caught-out playground bully“.

Meanwhile, Neville Thurlbeck, former chief reporter for NOTW, spoke out at length in an extraordinary piece for Press Gazette, declaring: “I am either a fool or an innocent man…You decide”. The comments below the line are worth a read, as is student journalist Ellen Coyne’s open letter to Thurlbeck at this link. Blogs are providing an extremely useful space for detailed discussion of media ethics, with insight from individuals such as Alastair Morgan, brother of murder victim Daniel Morgan. In this post, Morgan details why he is particularly interested in evidence from witnesses Steven Nott, Ian Hurst and Jacqui Hames.

Tom Watson MP used his blog to explain to the Society of Editors why he would not be attending their annual conference. Watson was consulting the House of Commons Speaker following Roy Greenslade’s claim on Media Matters radio that committee members had been followed by private investigators working for News of the World. Greenslade later clarified that his source said the surveillance had been undertaken in 2009 – not six months ago, as originally reported. Watson turned to his blog again later in the week, to report an odd exchange with a Times journalist, following an opinion article by the MP in his local paper.

In other media law news, the jury in the Stephen Lawrence trial has been told to not read an article by Rod Liddle in the Spectator, which has been referred to the Attorney General for contempt of court. “The judge also warned anyone, whether journalists or members of the public, they could also find themselves in contempt if they published or reproduced any part of the article,” reports PA Media Lawyer. Roy Greenslade comments on the referral here.

In another contempt case, the Attorney General is applying to initiate proceedings against Sky News – a year after it allegedly breached an injunction protecting information about the Chandlers before their release from captivity by Somali pirates. Media Guardian reports on the case here.

The Court clerk exposed for bribery in an undercover operation by the Sun newspaper has been sentenced to three years in prison for bribery and ordered to serve six years concurrently for misconduct in a public office, reports PA Media Lawyer.

The Joint Committee for Privacy and Injunctions heard from four bloggers this week: Paul Staines aka Guido Fawkes; Don’t Get Fooled Again author Richard Wilson; Holy Moly’s Jamie East; and David Allen Green, blogger at New Statesman and Jack of Kent. Wilson and Green reflect on their experiences here and here, respectively. The transcript is not yet available on the website. The Media Standards Trust submission to the committee can be found at this link.

Starsuckers’ director Chris Atkins has made a new film for the Guardian about access to justice and the use of Conditional Fee Agreements (CFAs). On his blog, Atkins has published a letter to Lord McNally asking him not to “severely restrict” CFA/No Win No Fee arrangements. Atkins reported on Twitter over the weekend that an “irked party” had been in contact about the new film. After “brief” consultation with his lawyers, his response took Arkell vs Pressdram form.

Finally, the Solicitors From Hell website is no more, as Inforrm reported here. Tugendhat J ordered the closure of the website in the Law Society’s representative action against the site. There are articles about the decision in the Lawyer and the Daily Telegraph. We have had previous posts on the cases of Robins v Kordowski [2011] EWHC 981 (QB)) (seehere), Awdry, Bailey and Douglas v Kordowksi, Farrall v Kordowksi [2010] EWHC 2436 (QB) (see here), Phillips v Kordowski and Mazzola v Kordowski.

Statements in Open Court and Apologies

On 15 November 2011 there were four statements in open court read in Court 15 before Mrs Justice Sharp. Two of them concerned Cheryl Cole’s brother, Garry Tweedy, who had been wrongly accused by Heat magazine and the Daily Star of having a criminal record (on the basis of a false Facebook profile). There many reports of these statements, including Press Gazette, the Guardian and Tabloid Watch.

Journalism and the PCC

The Society of Editors and Newspaper Society bid to prevent “lifelong anonymity to teachers accused of committing criminal offences against children at their schools” has failed, reports PA Media Lawyer. The Education Act 2011 has now received Royal Assent.

A Media Society event at Westminster University asked whether television regulation could improve the press. Inforrm reported on the debate here.

Tabloid Watch reports on a media mix up over the identity of the Matt Willis involved in a High Court case involving a management contract dispute with the artist Tricky. He is not a former member of Busted.

Guido Fawkes reports a clarification/addition by the PCC chair Lord Hunt to an interview with the Guardian’s Roy Greenslade, in regards to comments about regulating blogs – including Guido’s.

FleetStreetBlues brought a new media monitoring site to our attention, News Transparency – FSB dubs it a “TripAdvisor” for journalism.

The Observer reports on a journalist’s failure to persuade the police to investigate racial abuse made over Twitter.

Richard Caseby, managing editor of the Sun, raised concerns about tabloid payments at the Society of Editors conference. The issue was dismissed by the Justice Secretary, Kenneth Clarke, who was not convinced a public interest defence is necessary to protect journalists who disobey the Bribery Act by paying for stories, Press Gazette reports.

In the Courts

The trial in the case of El-Naschie v Macmillan continued before Mrs Justice Sharp on 14, 16, 17 and 18 November 2011. The trial continues.

As already mentioned, on 15 November 2011, Mr Justice Tugendhat entered default judgment against the operator of the “Solicitors from Hell” website and ordered the site to be removed from the interest (Law Society v Kordowski). His reasons will be given at a later date.

On Wednesday, 16 November 2011 Mr Justice Tugendhat heard an application in the case of BWN v MWB – this is believed to be the same case in which Mrs Justice Sharp gave a public judgment on 13 April 2011 and, we understand, another on 20 April 2011.

The hearing of the applications in Levy v Coomber before HHJ Moloney QC concluded on 16 November 2011, with judgment being reserved.

On 16 November 2011, Mr Justice Eady gave judgment in the case of Al-Baho v Meerza [2011] EWHC (QB).

On 18 November 2011, the fifth Case Management Conference took place in the Voicemail Interception Litigation before Mr Justice Vos.  News Group were unsuccessful in their applications to dispense with the “generic issues” and to strike out the claims for exemplary damages.

[Updates]   Two reserved judgments were given on 18 November 2011.  The first, was in the case of Ting Lan Hong v Persons Unknown [2011] EWHC 2995 (QB) – on which we have already commented.

The second was in the case of Pena v Tameside Hospital NHS Foundation Trust ([2011] EWHC 3027 (QB)) in which Eady J struck out a claim for libel by a consultant surgeon based on two emails send by another consultant.

Events

21 November, 17:30, Reuters Memorial Lecture, Baroness Onora O’Neill: ‘The Rights of Journalism and the Needs of Audiences‘, St Anne’s College, Oxford

24 November 2011, 18.30, “Social Movements in the Age of the Internet” Professor Manuel Castells, LSE

23 November, 18:00, Is the ‘fit and proper person’ test in broadcasting inadequate? With Steven Barnett, Perry Keller, Ashley Roughton, Ian Walden. City University London

30 November, 18:30, Charlie Beckett, ‘Wikileaks: News in the Networked Era‘, LSE

Media Law in Other Jurisdictions

On 16 November 2011 in Szanto v Melville [2011] VSC 574 the defendant at a libel trial in the Victoria Supreme Court successfully relied on the defence of qualified privilege. The claim arose out of a letter by the defendant to the plaintiff, which had been copied to solicitors for three parties in related dispute. The defence of “triviality” was rejected.

In Elfarnawani v. International Olympic Committee, 2011 ONSC 6784 the claimant brought an action for defamation against a decision of the defendant to declare him personae non grata within the Olympic Movement and to recommend that the members of the Olympic family not grant him any accreditation or have any dealings with him. The court held that the tort had not taken place in Ontario and it had no jurisdiction over the claim.

In Farallon Mining Ltd. v. Arnold, 2011 BCSC 1532 Silverman J in the Supreme Court of British Columbia assessed damages in a defamation case in respect of anonymous postings on a website, the most serious of which was one referring to the plaintiff as a “bunch of crooks”. General damages were assessed in the sum of Can$40,000. The judge refused to make an award of punitive damages.

In Pierce v. Canjex Publishing Ltd., 2011 BCSC 1503 the same court made an order that the respondent should disclose to the petitioner internet protocol addresses, names and any other identifier information of the author associated with www.stockwatch.com and registered user account “halcrow”.

In Ireland, singer Johnny McEvoy and manager Darren Farrell have been awarded €80,000 and €100,000 damages respectively, “after finding they were defamed by a concert promoter and promotions company“, reports the Irish Times.

Wayne O’Donoghue, convicted of manslaughter in 2005, has settled his libel case against the Sunday Newspapers Ltd and Independent Newspapers Ltd. The Herald and the Sunday World both acknowledged “there was no evidence that the semen found on schoolboy Robert Holohan’s body was that of Wayne O’Donoghuereports Herald.ie. He did not receive damages, but the publishers paid a contribution to his legal costs.

Sweden’s Uppsala University will host the third Annual Peter Forsskal Seminar in the Forsskal Room, on 23 November. Peter Forsskal, who wrote ‘Thoughts on Civil Liberties’ in 1759, has been described as an early freedom of information campaigner. His influential pamphlet was published in English for the first time in 2009. More about the project – and its relevance for contemporary media analysis – on Meeja Law.

Next week in the courts and the Leveson Inquiry

The Leveson inquiry will hear evidence from 18 witnesses – set out in a provisional list.

The trial in El-Naschie v Macmillan continues before Mrs Justice Sharp in Court 12.  We hope to have a post on its progress later in the week.

We are not aware of any other media cases listed for next week.

Judgments

The following reserved judgments after public hearings remain outstanding:

WXY v Gewanter, heard 11-15, 18-19 July 2011 (Slade J)

Morrison v Buckinghamshire CC, heard 20 to 21 July (HHJ Parkes QC)

Miller v Associated Newspapers, heard 13 October and 11 November 2011 (Tugendhat J)

Flood v Times Newspapers, heard 17 and 18 October 2011 (Supreme Court)

Cambridge v Makin, heard 3 November 2011 (Hughes, Black and Tomlinson LJJ)

Berzevoksy v Terluk, heard 1, 2 and 3 November 2011 (The Chancellor, Laws and Rafferty LJJ).

McGrath v Dawkins and another, heard 10 and 11 November 2011 (HHJ Moloney QC).

Levy v. Coomber heard 9 and 16 November 2011 (HHJ Moloney QC).

Also on Inforrm last week

Opinion – Whose data? Our data!!! Paul Bernal, lecturer at UEA law school, examines our right to personal data and the ICO’s recent actions.

Freedom of expression: Indian media organisations condemn £12 million defamation damages award to retired judge. Inforrm questions the compatibility of law of defamation in India with the right to freedom of expression.

News: Leveson Week 1 – openings by the press, NUJ and victims. Laura Sandwell reports on the Inquiry’s first sessions.

Case Law: Ting Lan Hong v Persons Unknown – Hugh Grant, a baby and the paparazzi. Commentary on the recent harassment injunction.

US Freedom of Expression and Media Law Round Up: 16 November 2011. Gervase de Wilde provides an extensive overview of recent defamation, privacy and other media-related cases in the US.

News: “News of the the World” fined and ordered to pay damages to Max Mosley in France. Inforrm’s report on the recent privacy and libel action across the channel.

This week’s Round Up was compiled for Inforrm by Judith Townend, a freelance journalist and PhD researcher examining legal restraints on the media, who runs the Meeja Law blog. She is @jtownend on Twitter.


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21 11 2011
What would the Man on the Clapham Omnibus make of digital media law? | Media law and ethics

[…] Please share your own observations in the comments below. In other media law news, you can find this week’s round up of law and regulation developments over at Inforrm. […]

28 11 2011
Internet Law

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[…]Law and Media Round Up – 21 November 2011 [Updated] « Inforrm's Blog[…]…

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