Law and Media Review of the Legal Year: Part 1 – Michaelmas Term 2012

19 08 2013

Wordle: UntitledThe weekly law and media round up is on vacation, but here’s a review of legal cases and legal developments over the legal year*, from September 2012 (just before the beginning of the legal year proper) until the end of July 2013. The Inforrm case tables have also been brought up to date: Media Law cases; Defamation cases; and Privacy cases.

This is a broadly chronological summary, compiled from the weekly updates, and not a complete record, focusing on the UK, but if there are cases or other significant developments that have been missed from this review or the tables please email: inforrmeditorial@gmail.com. Specific dates are given for judgments and court hearings; other updates are labelled by month. For fuller summaries, see the weekly round ups.

It is split into three parts, by legal term. This is Part 1.

Michaelmas term 2012

Libel

Mr Justice Tugendhat refused to continue an injunction granted to comedian Freddie Starr by Mrs Justice Cox on 3 October 2012 “to prevent publication of what he says is a libellous allegation”.

There was a unilateral statement in open court in Whitmore v News Group Newspapers Ltd. Showbiz journalist Caroline Whitmore complained about a story in the Sun which linked her to the singer Harry Styles. She accepted undisclosed damages, an apology and payment of her legal costs from News Group Newspaper [4 Oct].

Payam Tamiz, the former Conservative council candidate for Salmestone, settled his libel case against the Evening Standard and political editor Joe Murphy, with the Evening Standard apologising and agreeing to pay damages over an article entitled ‘Tory resigns over “Thanet girls are slags” outburst’ [Oct]. In a separate action, Tamiz was granted leave in Tamiz v Google; the appeal was heard by the full Court of Appeal on 3-4 December 2012.

Judgment was handed down after the trial of preliminary issues of privilege and malice in the libel action, Qadir v Associated Newspapers Limited, heard on 26-27 July 2012 [2012] EWHC 2606 (QB) (5 October 2012).

The words complained of in libel claim brought by Elton John against The Times were found “not capable of bearing the meanings attributed to them by the claimant or any other meaning defamatory of him”, according to Mr Justice Tugendhat in John v Times Newspapers [2012] EWHC 2751 (QB) (10 October 2012).

Spiller v Joseph, a case which went to the Supreme Court in 2010 on the question of “comment” ([2010] UKSC 53), was tried by Tugendhat J sitting without a jury, who found in the Claimant’s favour but awarded only nominal damages (1p) [2012] EWHC 2958 (QB), 26 October 2012. He found one of the three claimants, Craig Joseph, to have abused the process of the Court by “attempting to deceive the court by fabricating a part of their claim for special damages”. In a later judgment on costs in Joseph v Spiller [2012] EWHC 3278 (QB), the judge ordered the claimants to pay 75 per cent of the defendants’ costs.

In McCann v Bennett, the defendant’s application for an adjournment was refused and the court ordered that the claimants’ committal application would be heard as soon as practicable but with penalty only being determined after any libel trial ([2012] EWHC 2876 (QB) (24 October 2012)).

In Boyle v MGN, the second libel jury trial of the calendar year, the jury decided in Boyle’s favour on liability: they found that he had been libelled by an article which described him as a “racist comedian” and by a claim that he had been “forced to quit” the BBC show Mock the Week. On the first allegations, he was awarded damages of £50,400 and, on the second, damages of £4,250. He is to donate the award in damages to the charity Reprieve, the BBC reported.

The online travel review website TripAdvisor, gave up its jurisdictional challenge in a case brought in a Scottish small claims court by guesthouse owner Richard Gollin [Oct].

The actor Nicolas Cage secured an apology and undisclosed damages from MailOnline following an article published on 1 September that called him a “tax evader” [Oct].

In Scotland, a man who was wrongly labelled a criminal “lifer” in council files was granted legal aid in his defamation claim. According to the Herald, it marked the first time that legal aid has been given in a defamation case, following a legislative direction in civil legal aid law in 2010.

Eady J gave judgment in the case of Ansari v Knowles [2012] EWHC 3137 (QB) (8 November 2012). The court held that the claimant’s settlement with the fourth defendant had not been a release in respect of the causes of action against the first and second defendants.

Lord McAlpine accepted a settlement with the BBC for £185,000 plus costs following false allegations made on its Newsnight programme (see below). The BBC made “an unreserved apology for a Newsnight report which led to Lord McAlpine being wrongly implicated in the alleged sexual abuse of children at north Wales care homes“.

Peter Cruddas, former co-treasurer of the Conservative Party, accepted a substantial donation to charity in settlement of a libel action over the Independent’s claim that he was willing to accept an illegal donation to party funds, which referenced allegations published in the Sunday Times (also subject to a libel claim – see forthcoming Review Part 3 – Trinity term. Judgment was in the Claimant’s favour).

Tugendhat J held that the meaning attributed to the words complained of in Fox v Boulter were capable of bearing a defamatory meaning. He gave the defendant permission to amend the particulars of claim to include a claim for an innuendo meaning [2012] EWHC 3183 (QB) (13 November 2012, hearing 8 November 2012).

Bean J dismissed the claim in Mengi v Hermitage [2012] EWHC 3445 (QB) (30 November 2012), finding for the Defendant on both justification and qualified privilege. The case was brought by Reginald Mengi, a Tanzanian businessman and philanthropist with ownership interests in the Tanzanian media.

A hearing in Andrew James Enforcement v ITV on 30 November determined that the words complained of by the claimant – a debt collection company which featured in a consumer affairs programme, The Ferret, on ITV – were capable of bearing a defamatory meaning.

On 12 December 2012, the Court of Appeal (Arden and Lloyd-Jones LJJ and Tugendhat J) handed down judgment in Cammish v Hughes ([2012] EWCA Civ 1655). The Court of Appeal allowed the appeal and directed the summary dismissal of proceedings.

A High Court jury in Northern Ireland found that Sinn Fein defamed Declan Gormley, a former director of NI Water in respect of two press releases it issued in support of his sacking from the board. The jury found that statements were defamatory and that the defendants were guilty of malice [Dec].

Privacy / harassment

St James’s Palace confirmed that legal action against French Closer magazine for breach of privacy had commenced, following publication of photographs showing the Duchess of Cambridge sunbathing topless [Sep].

It was announced that Prince Harry would not be making any complaint to the PCC about the Sun’s publication of nude photographs of him [Sep].

40 new phone hacking civil claims were launched against News International in the High Court [Sep].

The Ministry of Justice published its latest statistics on privacy injunctions – with the number of applications up from 4 in 5 months to 9 over a 6 month period, January – June 2012 [Sep].

In a judgment in the phone hacking litigation, handed down on 5 October 2012 [2012] EWHC 2692 (Ch), Mr Justice Vos ruled that further database searches for generic disclosure at News Group Newspapers were not justified.

Richard Horton, the police detective who was outed as the author of an anonymous blog about his police work settled his claim of breach of confidentiality, misuse of private information and deceit against The Times and accepted £42,500 in compensation plus legal costs [Oct].

In APW v PWA, Tugenhat J refused an interim injunction on the grounds that there was no threat of repetition [2012] EWHC 3151 (QB) (8 November 2012).

It was announced that phone hacking claims were being brought by four individuals against Mirror Group Newspapers in claims involving the Sunday Mirror and The People – the first voicemail litigation not involving News International. The Claimants include Sven-Goran Eriksson, Shobna Gulati, Abbie Gibson and Garry Flitcroft [Nov].

Mr Justice Tugendhat rejected a breach of confidence claim brought by Peter Abbey in November 2011 against journalist Andrew Gilligan and Associated Newspapers (Abbey v Gilligan & Ors [2012] EWHC 3217 (QB) 20 November 2012).

Former News of the World editor Andy Coulson won his appeal against a High Court ruling that News Group Newspapers (NGN) did not have to pay his legal costs arising from the phone hacking litigation (Andrew Coulson v News Group Newspapers Limited [2012] EWCA Civ 1547) 28 November 2012.

On 11 December 2012 judgment was handed down in the privacy case Price v Powell & Ors [2012] EWHC 3527 (QB). The judge dismissed the application by the fourth defendant to strike out the claim as an abuse of process.

In December, 22 claimants in the News of the World phone hacking litigation accepted damages in settlement of their cases. Other cases were considered likely to settle by January, with a substantial” number of claims going forward. In October 2012 it was reported that there were 167 claims on the register.

Kenneth Parker J granted a final injunction in the harassment case of Maisto v Kyrgiannakis [2012] EWHC 4084 (QB) and made a provisional award of damages for £15,000 [28 November].

Other media legal developments

The Upper Tribunal gave judgment in Evans v IC and Others (Seven Government Departments) [2012] UKUT 313 (AAC) 18 September 2012, which allowed the publication of Prince Charles’ correspondence with government ministers, following Freedom of Information requests made by Guardian reporter Rob Evans. The Attorney General, Dominic Grieve, then vetoed the release [16 Oct].

The Daily Mail and Daily Mirror, found guilty of contempt of court in June for articles published after Levi Bellfield’s conviction for the abduction and murder of schoolgirl Milly Dowler, were each fined £10,000. The judgment on penalties, released on 22 October, can be found here.

The Scottish Judiciary said it was to conduct a “fundamental review” of the current policy on the use of television cameras in court, twenty years after a note allowed broadcasting authorities to apply for permission to televise proceedings in the Court of Session and High Court of Justiciary [Oct].

In a breach of contract case, which included consideration of the claimant’s rights of freedom of expression and belief, Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) 16 November 2012, Mr Justice Briggs ruled that Trafford Housing Trust had wrongly found Smith guilty of gross misconduct, before demoting him and reducing his salary by 40 per cent, following his Facebook comments about gay marriage.

The Crown Prosecution Service (CPS) decided not to charge Daniel Thomas for posting a homophobic message on Twitter about the swimmer Tom Daley [Sep].

A teenager from Lancashire was imprisoned for sick and grossly offensive jokes on his Facebook page about the missing 5 year old April Jones and Madeleine McCann; in the same week, Azhar Ahmed was sentenced to 240 hours of community service for posting an offensive update to his Facebook page about British soldiers in Afghanistan, following the death of six British soldiers. Both were convicted under s127 of the Communications Act 2003 [Oct].

Lists of arrests and charges in the Operations relating to media activity (Weeting, Elveden, Tuleta, Rubicon) are recorded at Press Gazette here and on Martin Hickman’s Phone Hacking blog.

In the media

The Jimmy Savile scandal dominated news headlines, with focus on the BBC’s decision to drop its Newsnight film. In November, the director general George Entwistle resigned after 54 full days in post.

Prior to his resignation, the BBC issued an unreserved apology for its Newsnight report (see above) and the Bureau of Investigative Journalism, a named contributor to the Newsnight programme, published a statement from its trustees here.

Sally Bercow was to be represented by Carter Ruck in a libel claim brought by Lord McAlpine, it was revealed [Dec - see Review Part 2 for update].

The former owner of the Daily Telegraph Conrad Black was back from serving 37 months in a US prison for fraud and obstruction of justice, and “here to sell books“, as he told Sky News’ Adam Boulton. He made his feelings about Jeremy Paxman very clear, twice and continued to assert his innocence.

The nurse who answered a prank call from an Australian radio station at the hospital where the Duchess of Cambridge was staying died in a suspected suicide; this tragic news dominated news headlines.

James Harding resigned as editor of the Times, announcing that it had been “made clear” to him “that News Corporation would like to appoint a new editor of The Times“.

Media regulation / policy developments

A group called the Free Speech Network launched a pamphlet ‘Responsibility Without Power’ [PDF], campaigning against a statutory backstop to press regulation, which it sees as “undermining the basic principle of a free press and internet“.

The National Union of Journalists came under fire in the press and online for its stance on media regulation – in favour of statutory underpinning. The union published a statement on its website elaborating its position.

‘L-Day’ arrived and saw the release of 1,987 pages and over one million words in the Leveson report with recommendations for a new system of media regulation, underpinned by statute. The Hacked Off campaign welcomed the report and supported its recommendations.

National newspaper editors said they would adopt the broad proposals of the Leveson Inquiry, but not the call for statutory underpinning.

In Parliament

The Defamation Bill reached Report stage and had its third reading in the House of Commons [12 Sep], before moving to the House of Lords.

Following a cabinet re-shuffle, the former Secretary of State for Justice, Kenneth Clarke, became a minister without portfolio. The Rt Hon Chris Grayling MP became Secretary of State for Justice; Helen Grant was made Parliamentary Under Secretary of State (jointly with the Department for Culture, Media and Sport) and The Rt Hon Maria Miller MP was named Secretary of State for Culture, Media and Sport. The Rt Hon Dominic Grieve QC MP kept his position as Attorney General, but there was a new appointment for Solicitor General, Oliver Heald MP.

Media regulation and standards was debated in the House of Lords, with the motion “that this House takes note of the relationship between media standards and media regulation”. In Baroness Onora O’Neill’s opinion, the public debate lacked “a clear view of the sorts of issues that will be at stake when Lord Justice Leveson reports” [Nov].

In December, the Joint Committee on Human Rights (JCHR) published its Report on the Defamation Bill, ahead of the Bill’s Committee stage in the House of Lords on 17 December.

Speeches etc.

  • Lord Neuberger, Bailii lecture, 20 November 2012: ‘No Judgment, No Justice’ [PDF]; write up on UKHR blog
  • In a widely reported speech at the Communications Law Centre University of Technology, Sydney, Lord Justice Leveson spoke about privacy and the internet, suggesting that “while established legal norms are in many respects capable of application to the internet, it is likely that new ones and new laws will need to be developed
  • Lord Justice Leveson’s second public lecture in Australia addressed the challenges for “news-gathering in a time of change” at the Centre for Advanced Journalism at the University of Melbourne. The text is available here

Other jurisdictions

Australia: In Cornes v The Ten Group Pty, the South Australia Court of Appeal dismissed the defendant’s appeal against a damages award of Aus$85,000 in a case in which it was argued that the words complained of were a joke [Sep].

In the case of Harbour Radio v Trad [2012] HCA 44 the High Court of Australia allowed the defendant’s appeal, holding that most of the broadcast complained of was protected by “reply to attack” qualified privilege.

In the case of Trkulja v Google Inc the Supreme Court of Victoria (Beach J and jury) decided that Google was liable in damages to the plaintiff for continuing to publish a photograph of him with various criminals [Nov].

Germany: Bettina Wulff, the wife of the former President, sued Google over its automated search terms, which she said were false rumours [Sep].

France: A French court granted an injunction prohibiting further publication of the Duchess of Cambridge photographs in France [Sep].

Ireland: X Factor judge Louis Walsh settled a defamation action against News Group Newspapers in Ireland, receiving an apology and 500,000 euros in damages over a false story in the Sun newspaper that he sexually assaulted a man in a Dublin nightclub [Nov].

The High Court granted orders to an Irish-based oil exploration company allowing it to seek the identity of people who allegedly posted defamatory material on internet message boards.

Netherlands (ECtHR): The Dutch secret service breached the rights of two Dutch journalists to protect their sources, when it tapped their telephones and demanded the return of leaked documents, the European Court of Human Rights ruled. The Dutch government was ordered to pay the applicants 60,000 euros, plus interest, in costs and expenses in Telegraaf Media Nederland Landelijke Media BV and Others v The Netherlands, Application no. 39315/06, Third Chamber Court, Strasbourg (22 November 2012).

South Africa: In the case of Buthelezi v BDFM Publishers (Pty) Ltd and Others [2012] ZAGPJHC 164, the South Gauteng High Court dismissed a defamation action by Prince Mangosuthu Buthelezi [Sep]. The claimant appealed.

Print Media South Africa v Minister of Home Affairs ([2012] ZACC 22 28 September 2012) considered the constitutionality of aspects of the Films and Publications Act, 1996 (the Act) following its amendment in 2009, in an important freedom of expression judgment. As Daris Milo explained here, “publishers need no longer be concerned about submitting material that might constitute sexual conduct for pre-publication examination and classification: they may now publish and be damned“.

Switzerland: The disgraced former Tour de France winner Floyd Landis was found liable to pay current and former International Cycling Union (“UCI”) presidents Pat McQuaid and Hein Verbruggen 10,000 Swiss francs (£6,630) each, after being found guilty of defamation by a Swiss court [Sep].

United States: In New York, a judge ordered that Twitter must hand over the tweets of an Occupy Wall Street protester to prosecutors [Sep].

In Seaton v. TripAdvisor, LLC, 2012 U.S. Dist. LEXIS 118584 (E.D. Tenn. August 22, 2012), the district court found that 2011 Trip Advisor “Dirtiest Hotels” ranking constituted hyperbolic opinion and rhetorical exaggeration and was therefore not actionable under Tennessee defamation law.

The Utah Supreme Court approved a rule “that will allow journalists to tweet, live stream and blog from the courtroom for the first time in the state’s history“ [Nov].

Parts 2 and 3 to follow.

Recently on Inforrm…

*Term dates:

2012/13

Michaelmas: Tuesday, 1st October – Friday, 20th December
Hilary: Friday, 11th January – Wednesday, 27th March
Easter: Tuesday, 9th April – Friday, 24th May
Trinity: Tuesday, 4th June – Wednesday, 31st July

The end of legal year review 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. Please send suggestions, tips and event listings for inclusion in future round ups to jt.townend@gmail.com.


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28 08 2013
Law and Media Review of the Legal Year 2012/13 | Media law and ethics

[…] Part 1 – Michaelmas Term 2012 […]

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