Law and Media Review of the Legal Year: Part 2 – Hilary Term 2013

21 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 2. Part 1 can be found here. Part 3 to follow.

Hilary term 2013

Libel

It was reported that Rutland County Council was contemplating a defamation action against three independent councillors, relying on the Localism Act 2011 and advice provided by solicitors Bevan Brittan [pdf]. However, after a Council meeting, it was decided that the “option of taking legal action for defamation is not being pursued at this time” [Jan].

On Sunday 13 January 2013, the Sunday Times published an apology to Ryanair, for wrongly accusing the airline of 1,201 breaches of safety rules and of pressuring its pilots to fly whilst ill.

Following Lance Armstrong’s television confession to Oprah Winfrey, the Sunday Times said it was confident of getting back the £1m it paid out in Armstrong’s libel action against the title, including £300,000 it paid towards his costs in an out-of-court settlement in 2006 [Jan].

In Northern Ireland, Sinn Fein was said to be considering appealing the jury’s verdict in a libel case in which it was ordered to pay £80,000 in damages to Declan Gormley, former non-executive director of Northern Ireland Water [Jan].

On 17 January 2013 there was a statement in open court in the case of Grimaldi v Times Newspapers Limited. Prince Albert of Monaco accepted an apology and substantial damages from the Sunday Times over allegations that he had entered a sham marriage with Charlene Wittstock.

On 16 January 2013, West Ham manager Sam Allardyce accepted substantial damages from Steve Kean, a former manager of Blackburn Rovers, over a false allegation by Kean recorded in an online video, that Allardyce was sacked from his previous post at the football club because he was a crook.

On 22 January 2013 the Court of Appeal gave judgment in the case of KC v MGN (No.2), [2013] EWCA Civ 3), on the issue of costs.

There was a statement in open court in the case of Campbell v Telegraph Media. The Daily Telegraph apologised and paid “substantial” libel damages to Naomi Campbell over an article that wrongly claimed she organised an elephant polo tournament in India [Feb].

Former banker Irfan Qadir was awarded substantial damages at the conclusion of his long-running libel action against Associated Newspapers, publisher of the Mail on Sunday, following the publication of two defamatory articles in May and June 2011. The newspaper also apologised in Court in respect of the article.

Sylvia Henry, the social worker who successfully sued The Sun for defamation, could recover some or potentially all of her costs which went over the approved budget for the proceedings, held the Court of Appeal (Henry v News Group Newspapers Ltd [2013] EWCA Civ 19 (28 January 2013)).

On 1 February 2013, Mr Justice Tugendhat gave judgment in the case of Makudi v Baron Triesman ([2013] EWHC 142 (QB)). He dismissed a libel claim brought by a Thai football official on the basis that there was a defence of qualified privilege and no case on malice fit to go to a jury.

In a judgment handed down on 4 February 2013 ([2013] EWHC 145 (QB)) Eady J awarded the former Conservative Party treasurer, Peter Cruddas, defamation damages of £45,000 in respect of 9 blogs and 12 tweets by published by lobbyist Mark Adams.

Eady J gave judgment in the case of Auladin v Shaikh ([2013] EWHC 157 (QB) 5 Feburary 2013). The judge found that the words were not defamatory of the claimant and therefore granted summary judgment to the claimant.

On 6 February 2013 Eady J handed down judgment in Duke v The University of Salford [2013] EWHC 196 (QB) (6 February 2013). The judge struck out a claim brought by the University of Salford against a lecturer concerning articles on his website.

The Court of Appeal handed down a judgment in the case of Tamiz v Google ([2013] EWCA Civ 68) which dismissed the appeal by Payam Tamiz against last year’s decision which set aside his claim against Google on Jameel grounds, but disagreed with Eady J’s conclusion that Google was not a publisher at common law and had an unassailable defence under section 1 of the Defamation Act 1996.

On 12 February 2013 there was a statement in open court in the case of Matthias v Fenland District Council. The District Council apologised and agreed to pay substantial damages to two women who ran a taxi firm in March.

On 13 February 2013 there was a damages only trial by judge alone, Eady J, in the case of Al-Amoudi v Kifle. A previous action between the same parties was dealt with by HHJ Parkes QC in July 2011 ([2011] EWHC 2037 (QB)). Damages of £180,000 were awarded by Eady J [2013] EWHC 293 (QB) (13 February 2013) [PDF].

Jessie Wallace, an actor in the BBC soap Eastenders, accepted undisclosed libel damages over a claim in Reveal Magazine that she snubbed co-star Letitia Dean out of jealousy [Mar].

On 26 February 2013 there was a Statement in Open Court in Andrew v Bassini. Tugendhat J was told that the defendant did not accept that the words he had used bore the meaning claimed, but had agreed to “set the record straight and apologise” to the Claimant.

On 28 February 2013 the Court of Appeal delivered judgment in Waterson v Lloyd [2013] EWCA Civ 136, a claim brought by the former Conservative MP for Eastbourne, Nigel Waterson, against his Liberal Democrat rival, Stephen Lloyd. By a majority, the Court of Appeal held that publications by a political candidate criticising his opponent’s ‘scandalous’ parliamentary expenses claims were statements of comment, rather than statements of fact.

In the case of Tesla Motors v BBC ([2013] EWCA Civ 152) the Court of Appeal refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme.

On 8 March 2013, the Court of Appeal dismissed Citation PLC’s appeal against the strike out of its claim as a Jameel abuse. The Court of Appeal agreed with Tugendhat J that “the game” was “not worth the candle“. It was not proportionate to permit the action to proceed to trial.

Judgment was handed down in Iqbal v Dean Manson Solicitors & Ors (No 2) [2013] EWCA Civ 149 (05 March 2013). The appeal was dismissed.

The Guardian columnist George Monbiot agreed to do three years’ work for charities – £25,000 worth – following his tweets about Lord McAlpine [Mar].

Judgment was handed down in WXY v Gewanter & Ors ([2013] EWHC 589). Damages were assessed in the sum of £24,950 for the Claimant, (£5,000 as aggravated damages) for her claim of breach of confidence, misuse of private information and harassment, a year after judgment was entered against the Third Defendant by Slade J (WXY v Gewanter & Ors [2012] EWHC 496).

In Thompson v James, Tugendhat J held the defendents’ defence of justification and dismissed a defamation claim brought by Thompson, who runs the “Carmarthenshire Planning Problems” blog, against Carmarthenshire County Council and its chief executive. Additionally, Tugendhat J did not find that the counter claim brought by the first defendant Mark James was an abuse of process and found that three of the five posts complained of bore defamatory meanings. The defence of honest comment was successful for the other two posts. Thompson was ordered to pay £25,000 damages, £5,000 of which represented aggravated damages ([2013] EWHC 515 (QB) (15 March 2013) / [2013] EWHC 585 (QB) (15 March 2013)).

The Independent newspaper apologised and paid “substantial” damages to Ljubomir Jurkovic a Croatian actor whose picture was wrongly used to illustrate a report about the death of a Nazi war criminal in Germany [Mar].

Judgment was handed down in Rothschild v Associated Newspapers Limited [2013] EWCA Civ 197 (19 March 2013). The appeal against Mr Justice Tugendhat’s rejection of his libel claim against Associated Newspapers was dismissed. The Appellant was ordered to pay the Respondent £50,000 in costs.

Privacy / harassment

Ned Rocknroll, who is married to the actor Kate Winslet, obtained an injunction preventing The Sun from publishing photographs from 2010 that he said were private [Jan]. Later in the month, Mr Justice Briggs handed down judgment, finding that the claimant was more likely than not to succeed at trial in vindicating his Article 8 rights as against the defendant’s Article 10 rights Rocknroll v NGN ([2013] EWHC 24 (Ch)).

Judgment was handed down in Ambrosiadou v Coward [2013] EWHC 58 (QB) (25 January 2013, with approval of an order to settle the litigation between the parties, subject to certain conditions. Mr Coward agreed to submit to a permanent injunction and to pay £50,000 in damages to settle the privacy proceedings brought against him by his former wife.

News International announced that its Compensation Scheme for victims of mobile phone interception would close in April 2013 [Feb].

The Duchess of York and 16 others settled their phone hacking claims at the High Court [Feb].

Carina Trimingham withdrew her appeal in her harassment and privacy claim against the publisher of the Daily Mail.

On 25 February 2013, Silber J gave judgment in the harassment case of The wife and children of Omar Othman v The English National Resistance & ors [2013] All ER (D) Ex Tempore.

Judgment for the Claimant in WXY v Gewanter was given on 6 March 2012 in her claim against Mr Burby, for injunctive relief restraining him from publishing or disclosing her private or confidential information and from harassing her and for damages for breach of confidence, misuse of private information and harassment.

The latest statistics on privacy injunctions were published [PDF]. Cases were not specified, but for the period July to December 2012, there were three proceedings where the High Court “considered an application for a new interim injunction prohibiting the publication of private or confidential information”. All three injunctions were granted (two were “on-notice”).

Siobhain McDonagh MP accepted damages and a public apology from The Sun at the High Court on Monday, for “serious misuse of her private information“ [Mar].

Other media legal developments

The European Parliament published its draft report [PDF] on the reform of data protection rules [Jan].

Tony Bennett, a retired solicitor, was given a suspended prison sentence after he alleged that child Madeline McCann’s parents caused their daughter’s disappearance (McCann & Anor v Bennett [2013] EWHC 283 (QB) (21 February 2013) / (Sentencing Remarks) [2013] EWHC 332 (QB) (21 February 2013)).

In Heafield v Times Newspaper Ltd [2013] UKEAT (17 January 2013), the Employment Appeal Tribunal (EAT) found that the use of bad language about the Pope did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.

Eady J presided over his final case as a High Court Judge. He retired on 24 March 2013 after nearly 16 years on the High Court bench.

Complaints to police involving Facebook and Twitter led to 650 people being charged during 2012, according to statistics released by 29 police forces in England and Wales.

Detective Chief Inspector April Casburn was convicted of misconduct in a public office by a jury at Southwark Crown Court after she admitted telephoning the News of the World on 11 September 2010, shortly after the phone hacking inquiry was re-opening. She was the first person to have been prosecuted under Operation Elveden, the investigation into improper police behaviour. She was sentenced to prison for 15 months.

A tenth person was fined for naming a rape victim in the Ched Evans case. The 24-old woman from Chester was told to pay more than £1,600 in fines, costs and compensation [BBC].

The Australian radio DJs involved in the prank call to the hospital treating the Duchess of Cambridge will not face charges in connection with the death of a nurse who answered their call, the CPS decided [Feb].

An investigation was launched by the Attorney General after photographs claiming to show Jon Venables, convicted for the murder of James Bulger in 1993, were allegedly posted on the internet. He subsequently decided to begin contempt proceedings against individuals ‘who have been identified as having posted online photographs purporting to be of Jon Venables or Robert Thompson’ [Mar].

In Clackmannanshire, Scotland, a second schoolboy was charged under the Communications Act 2003, over an online Facebook page. Another 14-year-old boy was also charged last month.

A Sky News journalist who allegedly hacked into the e-mail accounts of the couple involved in the ‘canoe man’ story will not be prosecuted, the Crown Prosecution Service decided – as it would not be in the public interest [Mar].

The CPS made an announcement about Operation Weeting, the Metropolitan Police’s investigation into phone hacking. It has concluded that in relation to eight of 13 suspects there was “sufficient evidence for there to be a realistic prospect of conviction in relation to one or more offences”. In relation to three of the remaining suspects, it concluded that there was “insufficient evidence for there to be a realistic prospect of conviction“ [Feb].

Two former police officers, an ex-prison officer and another public official admitted selling information to the Sun. These were the first accused to plead guilty in relation to the investigation into alleged illegal payments by journalists [Mar].

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

In the media

The Sunday Times editor, John Witherow was appointed acting editor of The Times during an “interim period of continued consultation over the Undertakings” (given in 1981, when Rupert Murdoch bought the Times and Sunday Times titles).

The BBC published redacted transcripts and appendices to The Pollard Report, following the Newsnight/Savile investigation. Tim Davie, acting director general, said that redactions were “driven by external legal advice.

Email correspondence between the Sunday Times journalist Isabel Oakeshott and Vicky Pryce was made public. A jury had rejected Pryce’s defence of “marital coercion” and found her guilty of taking her ex-husband’s speeding points 10 years ago [Mar].

Media regulation/policy developments

The Information Commissioner published his response to the Leveson Report. He agreed with the large majority of recommendations including the recommendations about tougher sentencing for data protection offences [Jan].

The EU High Level Group on Media Pluralism and Freedom published its report “A free and pluralistic media to sustain European democracy”.

The Independent, the Guardian and the Financial Times broke ranks with the other editors and called for a new press approach to the Leveson recommendations. It was suggested that “Leveson amendments” could be added to either the Crime and Courts Bill or the the Enterprise and Regulatory Reform Bill.

All three main political parties finally reached agreement on a Royal Charter [PDF] with accompanying statute. Provisions relating to costs and exemplary damages were inserted into the Crime and Courts Bill and an amendment was made to the Enterprise and Regulatory Reform Bill to protect the Royal Charter against being changed by the Privy Council without Parliamentary approval. The campaign group Hacked Off supported the draft Charter, while the Newspaper Society firmly opposed it.

Ofcom awarded the licence to run the local TV service in London on digital terrestrial TV to the London Evening Standard’s London Live [Feb].

In Scotland, the Expert Group on Leveson established by the First Minister, Alex Salmond, recommended a statutory recognition body, a regulator with jurisdiction over all publishers in Scotland and a “failsafe”.

In Parliament

Members of the House of Lords debated the Leveson report on the culture, practices and ethics of the press on Friday (11 January) [transcript].

A cross-party group of leading House of Lords backbenchers moved ‘Leveson amendments’ to be taken at the Report Stage of the Defamation Bill on Tuesday 5 February 2013. Peers voted in favour of these amendments that would introduce a low-cost arbitration service, by 272 votes to 141, a majority of 131.

The cross-party amendments to the Defamation Bill in the House of Lords drew the ire of Lord Lester and libel reform campaigners. Lord Fowler tabled a further amendment to the bill “which would delete the provision requiring the court to take into account whether a defendant first sought advice from a recognised regulator before publication” and Lord Puttnam agreed to support the removal of this part of the amendment at its third reading.

In the event, it was agreed that the amendments would be removed, and as a result of the Leveson agreement (see above) the Defamation Bill was released from David Cameron’s block on further consideration and went into the “ping-pong” stage.

Speeches etc.

  • Text and video from Baroness Onora O’Neill’s speech at UCL, 28 November 2011 – “Media Freedoms & Media Standards”

Other jurisdictions

Australia: In the case of Google Inc v ACCC ([2013] HCA 1) the High Court of Australia held that Google was not liable for engaging in misleading or deceptive conduct as a result of the production of sponsored links.

In the defamation case Rana v Google Australia Pty Ltd ([2013] FCA 60) (7 February 2013), the Federal Court decided that Google Australia has no ability to control or manage the Google search engine [Feb].

Canada: In the case of James v. Black Press Group Ltd (2012 BCSC 1969) the Supreme Court of British Columbia awarded libel damages of Can$35,000 to a person who was mistakenly identified as a sex offender on a website. The defence of responsible publication was rejected.

In the case of Foulidis v. Baker, (2012 ONSC 7295) the Ontario Superior Court of Justice dismissed a libel action brought against a candidate in a local election over a letter written to the local councillors and mayor. The defence of qualified privilege was made out and some of the words were fair comment.

In the case of Whitehead v. Sarachman (2012 ONSC 6641) Ontario Superior Court of Justice Divisional Court allowed the defendant’s appeal against a libel verdict in favour of the plaintiff and ordered a re-trial on the basis that the trial judge failed correctly to state the law on qualified privilege.

On 6 February 2013, in Manson v. John Doe, 2013 ONSC 628 the Ontario Court of Justice awarded damages of Can$200,000 against an anonymous blogger.

Hawaii: Rock stars Steven Tyler and Mick Fleetwood persuaded a Hawaii Senate committee to approve a bill to protect celebrities from intrusive paparazzi. The ‘Steven Tyler Act’ would allow celebrities the right to collect general, special and punitive damages for taking unwanted photographs [Feb].

Ireland: On 14 February 2013, a Irish High Court jury awarded defamation damages of €150,000 to billionaire businessman Denis O’Brien in a claim against the Irish Daily Mail. The jury rejected the defence of honest opinion, finding that the article was not based on fact and was not in the public interest.

Singapore: A new Personal Data Protection Act (PDPA) came into force on 2 January [Out-Law.com].

South Africa: The South Gauteng High Court issued a ruling preventing a South African Facebook user’s friend posting about his personal life on Facebook, after she defamed him on the site (H v W (12/10142) [2013] ZAGPJHC 1 (30 January 2013)).

Sweden (ECtHR): In the freedom of expression / copyright case of Fredrik Neij and Peter Sunde Kolmisoppi (The Pirate Bay) v. Sweden, Appl. nr. 40397/12, the Court rejected the applicants’ appeal against their conviction [Feb].

Turkey: The ECtHR held that a Turkish court’s decision to ban the publication of a number of newspapers for periods ranging from 15 days to a month was a breach of the right to freedom of expression under Article 10 (Güdenoğlu and Others v. Turkey; Applications nos. 42599/08, 30873/09, 38775/09, 38778/09, 40899/09, 40905/09, 43404/09, 44024/09, 44025/09, 47858/09, 53653/09, 5431/10 and 8571/10, 29 January 2013).

United States: In Texas, a jury awarded a couple who were accused anonymously on the internet of being sexual deviants, molesters, and drug dealers defamation damages in the total sum of US13 million [Feb].

A federal judge dismissed a libel claim against ESPN over its coverage of allegations against the claimant’s husband, a former basketball coach at Syracuse University. The judge found that the six statements the Claimant objected to were privileged as “fair and true” reports of judicial proceedings [Feb].

In March, the Clark County Nevada District Court has found in favour of the Plaintiff in a case against ‘IsAnyoneUp’ site founder, Hunter Moore, over statements made about James McGibney, the CEO of Bullyville.com. The Plaintiff was awarded $250,000 in damages [Judgment - PDF].

Part 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 2 – Hilary Term 2013 […]

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