Media Law Review of the Year 2011: Defamation, Contempt, Privacy and a Public Inquiry – Jude Townend

30 12 2011

Lord Justice Leveson has heard his final witness of the year; the Parliamentary recess has begun; the Royal Courts of Justice is having its Christmas break.  It’s time to look back at some of the biggest moments in the remarkable media law year that was 2011: Super Injunction spring, phone hacking summer, Leveson autumn and all the events in between.

January 2011

Inforrm noted that 2010 was the first calendar year without a defamation jury trial.

Max Mosley went to the European Court of Human Rights with his application against the United Kingdom. He contended that positive obligation under Article 8 means that there should be a legal requirement that the press notify individuals in advance if their privacy is going to be invaded.

Inforrm noted the limited press coverage of the News of the World phone hacking saga and reported developments in civil actions brought by individuals against News International. Andy Coulson resigned as Downing Street’s director of communications.

The Express and Star newspapers were expelled from the PCC after Richard Desmond refused to pay their subscription fees.

The first libel judgment of the year was given on 11 January 2011 – in Cambridge v Makin ([2011] EWHC 12 (QB)). The claimant was successful and recovered damages of £30,000.

Ten years after the publication of an article about Naomi Campbell, the European Court of Human Rights decided that the recovery of success fees from the Mirror would be “disproportionate“, in MGN v United Kingdom (Case No. 39401/04).

The Court of Appeal allowed an appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) in JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42). The Court ordered that the claimant’s anonymity should be restored.

Quote of the Month (QOTM): The Angry Mob blog on the tabloid treatment of Christopher Jefferies: “Recent events have demonstrated once again that the tabloid media have no morals, no integrity and absolutely no journalistic values between them”.

February 2011

The Metropolitan Police updated its position in the new phone hacking investigation “Operation Weeting”.

The Kyiv Post was successful in a “libel tourism” case brought by businessman Dimitry Firtash in respect of a story downloaded by 21 people in England.

The Media Standards Trust launched a new website, Churnalism.com – which enables users to compare press releases with press articles to find out how much has been cut and pasted.

Ireland awarded its highest ever award of defamation damages – €10 million in Kinsella v Kenmare Resources. The defendant appealed against this award.

The libel claim brought by His Holiness Sant Baba Jeet Singh Ji Maharaj against journalist Hardeep Singh was finally dismissed by the Court of Appeal when the claimant failed to lodge the £200,000 security for costs.

QOTM: Max Mosley, in conversation with Roy Greenslade: “I don’t see that anyone has the right to effectively put someone in the stocks, just because your sex life isn’t to an editor’s taste. That isn’t consistent with modern, secular, liberal society”.

March 2011

It emerged during that case of Lewis v Commissioner of Police, that the Press Complaints Commission (PCC) and its chairman paid £20,000 to lawyer Mark Lewis in settlement of his libel claim arising out of comments made by Baroness Buscombe.

In Northern Ireland, investigative journalist Suzanne Breen won libel damages from the National Union of Journalists over an article about her which appeared in union magazine – The Journalist.

Among the privacy cases of early 2011 was MNB v News Group Newspapers ([2011] EWHC 528 (QB)). On 9 March Mrs Justice Sharp granted a privacy injunction to restrain the publication of a range of information which tended to identify the claimant and which related to the subject matter of the action.

In ZAM v CFW Mr Justice Tugendhat granted an interim injunction to restrain the publication of defamatory allegations and also made an anonymity order.

The government published its Consultation on a Draft Defamation Bill.

It emerged there were now 15 cases brought against the website “Solicitors from Hell”.

The number of phone hacking cases before the court reached 16 and Mr Justice Vos was assigned to deal with all of them.

John Hemming used (or abused?) parliamentary privilege to disclose information covered by a High Court injunction, and drew attention to what he called a “hyper injunction”.

QOTM: Richard Peppiatt, resigning from the Daily Star with an explosive open letter to Richard Desmond: “If you can’t see that words matter, you should go back to running porn magazines. But if you do, yet still allow your editors to use inciteful over insightful language, then far from standing up for Britain, you’re a menace against all things that make it great“.

April 2011

Phone hacking gained more national press coverage, with further arrests and the number of civil cases reported to be at 24. News of the World publicly apologised for voicemail interception, while parent company News International said it would accept liability in some civil cases.

The New Statesman published details of a secretly recorded conversation with former News of the World journalist Paul McMullan boasting of his phone hacking activities in the past.

In Italy it was reported that a judge found Google Italy guilty of defamation because of the way its search engine linked the name of an Italian businessman to the word “fraud” and ordered the company to modify the operation of its Autocomplete service.

Inforrm published a list of anonymised privacy injunctions from January to March 2011. There were 11 such cases in the first 3 months of 2011, seven of which resulted in “public” (although not always “published”) judgments and two in which judgment was awaited. There were two injunctions granted against media defendants.

Newspapers began reporting privacy cases with particular zeal, in what could be described as “Super Injunction Spring“.

NMT Medical’s case against cardiologist Dr Peter Wilmshurst came to an end when NMT announced that it was ceasing operations and selling off its assets.

Emma Smiter, a former journalist turned Hertfordshire police community support officer was jailed for 12 months for leaking confidential information taken from police computers to a news agency.

Solicitors acting for retired school teacher Christopher Jefferies – traduced by the press after his arrest for the murder of Joanna Yeates – announced that he was making libel and invasion of privacy claims against six newspapers.

QOTM: News International’s public statement on phone hacking cases: “Following an extensive internal investigation and disclosures through civil legal cases, News International has decided to approach some civil litigants with an unreserved apology and an admission of liability in cases meeting specific criteria.

May 2011

BBC journalist Andrew Marr outed himself as a privacy claimant – in the Daily Mail.

Max Mosley was unsuccessful in his long running campaign to compel the English press to give advance notice of threatened invasions of privacy. On 10 May, the Fourth Section of the Court of Human Rights gave judgment in the case of Mosley v United Kingdom.

17 May was due to see the first libel trial since July 2009, a case brought by Roman Abramovich against Mirror Group Newspapers Limited, but the case settled.

The PCC upheld a complaint against the Telegraph following its undercover sting on Vince Cable in December 2010. The Commission found a series of articles contained information which had been obtained using subterfuge in breach of Clause 10 (Clandestine devices and subterfuge), with insufficient public interest to justify the approach.

Mr Justice Tugendhat discharged the anonymity provision in the non-super injunction obtained by Sir Fred Goodwin (the anonymised public judgment was MNB v News Group Newspapers [2011] EWHC 528 (QB)).

The Master of the Rolls published the much anticipated report of the Committee on Superinjunctions, which set out injunction definitions, identified the lack of clarity for media reporting Parliamentary injunction breaches, and made a number of procedural recommendations.

The Glasgow based newspaper, the Sunday Herald, published a photograph of a claimant who had the benefit of a privacy injunction in England.

Mr Justice Vos announced five phone hacking “lead cases”.

On 23 May at 2pm Mr Justice Eady handed down judgment in CTB v News Group (No.2), dismissing an application to discharge the injunction. He then heard a further application to discharge – which was dismissed at 3pm. Shortly after, John Hemming MP named the footballer covered by the injunction. At 5pm Mr Justice Tugendhat heard another application for discharge of the injunction in CTB v News Group. That application was, again, rejected [2011] EWHC 1334 (QB).

QOTM: Lord Neuberger, announcing his new injunctions report: “The law relating to Contempt of Court when it comes to reporting what is said in Parliament is astonishingly unclear. And I would not to like to pontificate about what the law is a) it does appear to be unclear and b) in due course as a judge I might be asked to rule on what it is and therefore I can’t express a view to you.”

June 2011

A libel claim brought by a social worker involved in the “Baby P” case, Sylvia Henry v News Group Newspapers, settled before reaching trial.

Mr Justice Tugendhat handed down judgment in the case of Goodwin v News Group Newspapers (No.3) ([2011] EWHC 1437 (QB)), refusing an application to permit the identification of the interested party – but allowing the identification of her job description.

The News of the World paid libel damages of £70,000 to the former Celtic goalkeeper Artur Boruc after it was hoaxed into believing he had sent sexually explicit text messages to “a mystery woman”. According to the Scotsman this was believed to be the largest libel damages settlement ever in a Scottish defamation case.

The BBC Trust ruled that Panorama had broken editorial guidelines of fairness and accuracy in its programme Primark: “On The Rack”. It held that it was ‘more likely than not’ that certain footage in the programme was not authentic.

Mr Justice Tugendhat gave judgment in the case of Cook v Telegraph Media Group [2011] EWHC 1519 (QB) – dismissing the former MP’s libel claim on the basis that the words were comment and the defence of malice failed.

The Court of Appeal gave judgment in the case of R (Gaunt) v OFCOM ([2011] EWCA Civ 692). The Court rejected the appeal brought by former Talksport radio presenter Jon Gaunt against a decision of the media regulator Ofcom which found that a live interview in which he called a councillor a “Nazi” breached the Broadcasting Code.

A legal letter sent on behalf of the Daily Mail editor, Paul Dacre, threatened action for defamation against the Angry Mob blog.

QOTM: The Ministry of Truth blog on Associated Newspaper’s letter to Angry Mob: “What we have here is, on the face of it, an extremely wealthy media organisation trying to bully a lone blogger and his hosting provider just because – two year ago [sic] – he said something about a newspaper editor that the editor has taken umbrage with. As I see it, this is just a straightforward and rather nasty case of a big media organisation trying to intimidate one of its many critics”.

July 2011

By Wednesday 6 July 2011 the phone hacking story had made the headlines in every national newspaper. On the same day as the Hacked Off Inquiry Campaign was launched the prime minister announced a public inquiry.

Two trials were heard: the first, before Mr Justice Tugendhat was the libel and malicious falsehood case of Thornton v Telegraph Media Group Limited. The second trial, before Mr Justice Nicol, was the privacy case of Ferdinand v MGN Limited.

On 26 July 2011 Mr Justice Tugendhat handed down a reserved judgment after the trial in Thornton v Telegraph Media Group ([2011] EWHC 1884 (QB)). The claimant was successful and a total award of damages for libel and malicious falsehood of £65,000 was made.

A judicial inquiry, led by Lord Justice Leveson, was announced.

The Commissioner of the Metropolitan Police, Sir Paul Stephenson, and Assistant Commissioner John Yates both resigned.

News of the World was closed down by News International.

Rupert Murdoch was attacked with a cream pie in Parliament.

WXY v Gewanter, the second privacy trial of the year, began on 11 July.

In Al Amoudi v Kifle ([2011] EWHC 2037 (QB)) HHJ Parkes QC assessed damages in a libel case in the sum of £175,000.

On the last day of term there was a Court of Appeal decision in the “cricket libel” case of Modi v Clarke ([2011] EWCA 937) in which the CA allowed the claimants’ appeal against Mr Justice Tugendhat’s finding that the words complained of were not capable of bearing a defamatory meaning.

The High Court found that the Daily Mirror and The Sun were in breach of the Contempt of Court Act 1981 (1981 Act) in relation to their reporting of the Jo Yeates murder case. There were also a number of statements in open court and apologies by newspapers as a result of libel claims brought by Mr Jefferies.

PCC Chair, Baroness Buscombe confirmed that she would not be seeking to extend her three year term in January 2012.

QOTM: Former assistant commissioner of the Metropolitan Police Andy Hayman’s response to Conservative MP Lorraine Fulbrook’s query over whether he had ever received payment from the media: “Good God! Absolutely not. I can’t believe you suggested that”.

August 2011

On 4 August 2011 a statement in open court was made in respect of a libel claim brought by Prince Nayef Bin Abdul-Aziz al-Saud against the Independent newspaper following their publication of an inflammatory statement falsely attributed to the Prince. The statement was reported, inter alia, by the BBC.

The Master of the Rolls issued new “Practice Guidance on Interim Non-Disclosure Orders“.

It was reported that the scope of the Metropolitan Police inquiry had been extended to cover “computer hacking”.

The “Hacked Off” campaign was rebranded as the “Campaign for a Good Public Inquiry into Phone Hacking”.

The Daily Mirror apologised to former Aston Villa manager Martin O’Neill and agreed to pay him libel damages concerning allegations that he had lost the confidence of the dressing room and other allegations.

QOTM: Christopher Jefferies’ solicitor, Louis Charalambous : “I have been contacted by many journalists who work for broadsheets and broadcasters who remain furious at the coverage of Jefferies’s arrest. They remember their training: on arrest be spare and factual with the details to avoid prejudicing the course of justice. Perhaps someone should pin a banner with those words up in the newsroom of the tabloids before the next witch-hunt?”

September 2011

Lord Justice Leveson heard applications for Core Participant status.

The owner and operator of the “Solicitors from Hell” website, defendant in numerous libel cases, issued proceedings for slander against Law Society chief executive Des Hudson.

On 7 September 2011 the use of Twitter was permitted for the first time in a Court in Northern Ireland.

A new, 26 member, Joint Committee on Privacy and Injunctions was established.

The Metropolitan Police applied for orders under PACE requiring the Guardian to disclose its sources for various phone hacking stories. The application was later abandoned.

Former News of the World editor Andy Coulson issued High Court Proceedings in London against News Group Newspapers claiming that they were obliged to continue paying his legal fees.

Judgment was handed down in the case of Ferdinand v Mirror Group Newspapers ([2011] EWHC 2454 (QB)). In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brought by England footballer Rio Ferdinand against the Sunday Mirror.

A number of privacy groups wrote to European ministers, urging them to rethink data retention plans.

QOTM: Kelvin Mackenzie on finding out his phone may have been hacked: “…oddly I felt quite threatened by this invasion and understood more clearly why celebrities — no matter if they were A or Z listers — felt they had been violated“.

October 2011

The Leveson Inquiry held its first “seminars” before a distinguished “media audience”.

A Statement in Open Court was read on behalf of Kelly Hoppen – the fifth phone hacking case to conclude by judgment or settlement. At the case management conference, the court heard that there were now a total of 60 active cases – issued before the 3 October 2011 “cut off date” for participation in the trial at the end of January 2012.

The Daily Mail accidentally published the wrong verdict of the Amanda Knox appeal hearing in Perugia – with fabricated detail.

In Scotland a parliamentary bill designed to “tackle sectarian hatred and other offensive and threatening behaviour” was proposed.

The Law Society issued proceedings against the “Solicitors from Hell” website seeking an injunction to prevent its further publication. The claim is in libel, harassment and data protection.

News Group Newspapers parted company with their long-standing solicitors, Farrer & Co who were replaced by Olswang.

The Joint Committee on the Draft Defamation Bill published its first report.

Lord Justice Leveson rejected calls by Associated Newspapers, Trinity Mirror and Guardian News & Media, for additional Inquiry assessor/s from tabloid and regional newspaper backgrounds.

The attorney general launched contempt of court proceedings against the Daily Mail and Daily Mirror over the papers’ coverage of Levi Bellfield’s conviction for Milly Dowler’s abduction and murder.

Flood v Times Newspapers, was heard in the Supreme Court on Monday and Tuesday 17 and 18 October 2011.

The Supreme Court of Canada Crookes v. Newton, 2011 SCC 47 held that, in Canada, creating a hyperlink to defamatory material does not constitute a re-publication of the libel.

The Daily Mail apologised to Carole Caplin.

Ofcom found that the ITV1 show ‘This Morning’ breached the broadcasting code when a guest – the actor and television presenter Amanda Holden – promoted the ‘Quality Solicitors’ group of law firms and its marketing arrangement with WH Smith.

WikiLeaks announced it would “temporarily suspend publishing” whilst securing its “economic survival”.

The European Court of Justice ruled that Oliver Martinez, a French actor, can bring a privacy legal action in France over an article which appeared on a British paper’s website, the Sunday Mirror.

QOTM: Baroness Buscombe, in one of her last outings as chair of the PCC: “There should be some form of back stop power, vested in another body and, given that body needs sufficient powers to demand compliance, it will, regrettably have to be one regulated by the state”.

November 2011

Charlie Hebdo, a French satirical weekly publication, once again produced a cartoon of the Prophet Mohammed image in a special supplement distributed with the newspaper Liberation. Charlie Hebdo’s office was fire bombed when it first published the image last Wednesday, with the caption “100 lashes if you don’t die of laughter“.

International Day to End Impunity was on 23 November 2011. Index on Censorship published a number of stories about journalists, writers or free expression advocates who was killed in the line of duty.

Outside Parliament, former NOTW chief reporter Neville Thurlbeck revealed the existence of his personal dossier of evidence that he claims News International ignored in 2009. He told the BBC he had been “like a magnet for the iron filings of suspicion” for past two years but vowed to clear his name.

Formal witness hearings in the Leveson Inquiry commenced.

The jury in the Stephen Lawrence trial were told to not read an article by Rod Liddle in the Spectator, which was referred to the Attorney General for contempt of court.

In another contempt case, the Attorney General applied 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.

Guido Fawkes released a preview of Alastair Campbell’s evidence to the Leveson Inquiry, stating that he had acquired it by “legal means”. He later removed it from his site and the document sharing website, Scribd.

Mr Justice Tugendhat granted an injunction permanently closing down the Solicitors From Hell website.

The trial in the case of El-Naschie v Macmillan before Mrs Justice Sharp concluded.

QOTM: Northern and Shell’s editorial director, Paul Ashford, on why the Express and Star newspapers withdrew from the PCC in 2010: “As far as we were concerned we were being regulated by what appeared to us to be a private club … it was difficult to draw a line between commercial attacks and working together on a regulatory body.

December 2011

Katie Price agreed to pay undisclosed libel damages to her ex-husband, Peter Andre, over claims that he was unfaithful to her.

It was revealed that former Labour Home Secretary David Blunkett accepted a “substantial” settlement for interception of his voicemails in a “secret deal” with News International in May 2011.

A federal court in Oregon has ruled that blogger Crystal Cox could not use journalist shield laws to protect her sources in a defamation case.

Former Cabinet minister Tessa Jowell accepted £200,000 in damages in her phone hacking civil case against NoW, with £100,000 going to charity.

Only journalists and “legal commentators” will have automatic permission to tweet from court, stated new guidelines issued by the Lord Chief Justice.

The PCC upheld a complaint against the Daily Mail over its “inaccurate and misleading” report of the Amanda Knox appeal verdict.

The libel case Berezovsky v Terluk finally came to an end in the Court of Appeal on 15 December 2011 ([2011] EWCA Civ 1534), with £150,000 libel damages upheld on appeal.

The Scottish Parliament has approved the Offensive Behaviour at Football and Threatening Communications (Scotland) Act in a final vote at Stage 3, despite concerns about its implications for freedom of speech.

Imogen Thomas made a statement in open court in the case of CTB v NGN, which said the claimant footballer had accepted there was no basis to accuse her of blackmail.

The preliminary Article 32 hearing of the US soldier accused of leaking military documents to Wikileaks, Bradley Manning, began.

QOTM: David Barr, introducing academic witnesses at Leveson [PDF]: “We’re going to be adopting a different format today from that which we’ve followed thus far. I believe the term is called hot-tubbing.” Leveson, LJ: “Don’t laugh, it is. That’s in Australia though. It doesn’t have to be called that here.”

What to watch out for in 2012

  • Lord Justice Leveson’s report – scheduled to be published in September 2012.
  • Joint committee on privacy and injunctions report.
  • House of Lords Communications committee report on investigative journalism.
  • The progress of the draft defamation bill.
  • Developments in the police investigations Weeting, Elveden and Tuleta.
  • Civil actions involving phone hacking claims against News International – a trial is due to begin in February 2012.

What have we missed? Comment below, or tweet @jtownend.

This review was compiled for Inforrm by Judith Townend, a freelance journalist and PhD researcher examining legal restraints on the media.


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30 12 2011
What will 2012 bring for media law? | Media law and ethics

[...] rounded up the year in media over on Inforrm, month by month. Its notable features included frenzied coverage of “super injunctions”, the [...]

9 01 2012
Inforrm blog: Law and Media Round Up – 9 January 2012 | Media law and ethics

[...] until Wednesday but there is still plenty to report. Over the winter break Inforrm offered you a review of 2011 and the media law quiz of the year. Entries to the latter will be accepted until 13 [...]

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