Law and Media Review of the Legal Year: Part 3 – Easter and Trinity terms 2013

22 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.

Easter and Trinity Terms 2013

Libel

Lawyers acting for the actress Lynda Bellingham secured a “six figure settlement” over online statements about the Claimant and her husband. The outcome followed a mediation held in London [Apr].

Lady Nora Colthurst received a public apology and damages at the High Court over defamatory allegations published on a blog in 2005. The defendent, Rachel Myers, withdrew her allegations unreservedly and apologised to Lady Colthurst “for the distress and embarrassment which this matter caused [the Claimant]” [Apr].

No judgment on the merits was given in Smith v Dha [2013] EWHC 838 (QB) (12 April 2013), a defamation case concerning a discussion on an internet forum, following the Claimant’s death. The judge found that the cause of action had abated upon the date of the death of the claimant and there was no provision within the CPR to backdate any subsequent judgment.

The Civil Justice Council (“CJC”) Working Group on Defamation costs published its Final Report [doc] on the options for costs protection in defamation and privacy proceedings.

On 22 April 2013, HHJ Moloney QC heard an application and the first day of the trial in Kim v Park. The judge struck out a defence to a libel claim under section 1 of the Defamation Act 1996 “because the defendants not only failed to file any witness statement evidence but had said they had no intention of doing so” [Apr].

On 24 April 2013 there was a trial in the case of Frost v Kemp, before HHJ Moloney QC. The case concerned a dispute between neighbours and a forged email.

On 25 April 2013, Tugendhat J handed down judgment in the case of McAlpine v Bercow [2013] EWHC 981 (QB).

On 16 May 2013, there was a hearing to determine the “meaning” of Ms Bercow’s tweets following Tugendhat J’s order for the trial of a preliminary issue on meaning ([2013] EWHC 981 (QB)). Tugendhat J ruled that Ms Bercow’s tweet made a serious defamatory allegation against Lord McAlpine ([2013] EWHC 1342 (QB)). A settlement of the claim was announced.

The Metropolitan Police agreed to pay substantial damages and costs to Leslie Austin who was wrongly pictured in “wanted” posters after the London riots in 2011 [May].

Rached Ghannouchi, the leader of the Tunisian political party Ennahda received an apology and substantial damages from the BBC [May - PDF].

A man won an undisclosed out-of-court settlement from The Sun and an apology after he was wrongly identified as the child of Fred West [May].

Actor Riz Ahmed apologised and paid damages to freelance journalist Hardeep Singh who he had accused of being a “bigot” and falsely claimed had punched him [May].

It was reported that one of the world’s richest business people, Saudi Arabia’s Prince Alwaleed bin Talal, was pursuing libel action against Forbes magazine for allegedly underestimating his fortune.

Leigh Day, acting on behalf of the GMB union, commenced legal action – including defamation claims – on behalf of GMB members allegedly blacklisted by Carillion and other construction employers, [June].

Judgment was handed down in a meaning trial in Dr Liam Fox v Boulter [2013] EWHC 1435 (QB): the Defendant and Claimant each succeeded on one meaning. Ely Place (William McCormick QC was instructed by Simon Smith of PSB on behalf of Dr Fox) has a report here, which notes that the case will now proceed towards an expected trial at the end of 2013.

On 12 June 2013, judgment was handed down in a libel and malicious falsehood dispute between the organisers of business conferences, Euromoney Institutional Investor Plc v Aviation News Ltd & Anor [2013] EWHC 1505 (QB). Tugendhat J refused permission to amend and the case was struck out.

Judgment was handed down in Dar Al Arkan Real Estate Development Com. v Al Refai & Ors [2013] EWHC 1630 (Comm) (12 June 2013), a case in the Commercial Court concerning a claim that the defendants worked together to damage the Claimants’ reputation and their business. The fourth defendants, FTI Consulting Group Limited (“FTI”), sought to strike out part of the claim and summary judgment on certain issues.

The publishers of the Daily Mail agreed to pay damages of £125,000 to the “psychic to the stars”, Sally Morgan, in respect of an article which alleged that she had cheated an audience in Dublin by using an earpiece. The trial of the action had been due to commence on 10 June 2013 but a settlement was announced in a Statement in Open Court [pdf] read to Mr Justice Tugendhat on 20 June 2013.

On 18 June 2013, Maurice Kay LJ refused permission to appeal in the case of Makudi v Triesman.

In Kearns v Kemp, a typist in Milton Keynes is being sued by Kirby Kearns, who runs a media production company based in Qatar, for remarks she made on Twitter. On 15 March 2013 Mrs. Kemp was the subject of an “unless order” to pay £824.20 in costs. The “unless” provision was stayed by Nicol J and the Defendant was given leave to appeal by Tugendhat J. The appeal was due to be heard on 24 July.

Previously the Defendant had offered to withdraw the appeal with no order as to costs as a fundraising campaign had lead to the costs order being paid. This offer was refused by the Claimant, who then wrote to the Court raising further issues. As the result of that letter, Tugendhat J directed that a hearing on meaning, and whether the claim was an abuse of process, take place. C has obtained leave to serve out on Twitter. Twitter has applied to set this order aside. The hearing of Twitter’s application will be listed together with the abuse/meaning application for the first week of October.

The publishers of the Daily Mail agreed to pay damages of £110,000 to Britam Defence, a risk management consultancy. A Statement in Open Court was read on 26 June 2013.

On 25 June 2013, Birss J granted an interim injunction in the case of Volkswagen v Garcia and others [2013] EWHC 1832, to restrain publication of certain parts of an academic paper about a weakness in an algorithm used in car immobilisers.

There was a Statement in Open Court [pdf] in the case of Cokes v Yachting World. The defendant had made an offer 0f amends and agreed to pay substantial libel damages to a catamaran owner wrongly accused of being a convicted cocaine smuggler [July].

On 4 July 2013, Simon J handed down judgment in the case of Hunt v Times Newspapers[2013] EWHC 1868 (QB) [pdf] (heard 29 and 30 April, 1-3, 7-10, 13, 16 and 17 May 2013). The judge found for the defendant newspaper on part of the justification defence and on the Reynolds defence and the claim was dismissed.

The president of a teaching union, the Association of Teachers and Lecturers, is pursuing a defamation claim against The Sunday Times over an article reporting claims that he was involved in an underhand deal at his school [July].

On Friday 19 July 2013, the Court of Appeal considered a renewed application for permission to appeal in the case of Miller v Associated Newspapers. Permission to appeal to the CA was granted by Longmore LJ.

On 25 July, judgment was handed down in Gary Flood v Times Newspapers Ltd [2013] EWHC 2182 (QB) in the latest stage of the long running libel case. Tugendhat J accepted the meaning of the article pleaded by detective Sergeant Gary Flood.

On 26 July, judgment was handed down in McGrath v Independent Print Ltd, concerning an article reporting an earlier libel case involving the claimant. Mrs Justice Nicola Davies accepted the defendants’ submissions and found “that the article, as a whole, is not defamatory of the claimant”. The claim was struck out and judgment given for the defendant (McGrath v Independent Print Ltd [2013] EWHC 2202 (QB)).

Judgment was handed down in Waterson v Lloyd on 26 July 2013 [2013] EWHC 2201 (QB) (Nicola Davies, J). The defendant’s application summary judgment was granted and the claimant’s application for summary judgment was dismissed.

Owen Morris, former boyfriend of Brooke Magnanti (who wrote under the pen name Belle de Jour) accepted substantial libel damages from the Sunday Times [SIOC - 29 July].

On 30 July, judgment was handed down in Mama Group Ltd and Lovebox Festivals Ltd v Daniel Sinclair and Alexandra Joseph [2013] EWHC 2374 (QB). Mr Justice Dingemans rejected an application by the defendants, Daniel Sinclair and Alexandra Joseph, for the case to be struck out as an abuse of process.

Judgment was handed down in Cruddas v Calvert & Ors [2013] EWHC 2298 (QB) (31 July 2013, hearing dates: 2-12 July 2013). Tugendhat J found for the Claimant on his claims of libel and malicious falsehood. The Claimant was awarded £180,000 in damages for libel. The newspaper has confirmed that it will take the case to the Court of Appeal. Developments at earlier stages of the case were reported here and here on Inforrm.

A claim brought by former Conservative council candidate Payam Tamiz against Guardian News & Media for defamation was struck out on 31 July 2013 [2013] EWHC 2339 (QB).

Two former employees of Greater Manchester Police accepted libel damages from Telegraph Media Group over a claim that they benefited from having had sexual relationships with former Chief Constable Michael Todd [Aug].

Privacy / harassment

On Friday 19 April 2013 there was a further case management conference in the phone hacking litigation (the 15th), before Vos J. The court heard that 149 of 167 actions originally on the register had now been settled, with eight further claims seeking to be added. Among the newly announced settlements were claims brought by Neil and Christine Hamilton, John Leslie and the estate of Jade Goody.

Mary-Ellen Field, Elle Macpherson’s former adviser, discontinued her phone-hacking claim against News Group Newspapers.

On 20 May 2013 the Court of Appeal handed down judgment in the case of AAA v Associated Newspapers ([2013] EWCA Civ 554). The appeal was dismissed, the Court of Appeal upholding the finding of Nicola Davies J that disclosures in the Daily Mail of the fact that a child’s father was a prominent politician did not infringe the child’s rights of privacy.

On 21 May 2013, Cobb J gave judgment in the case of Z v News Group Newspapers and others ([2013] EWHC 1371 (Fam)). Cobb J had imposed a temporary blanket reporting restriction during the hearing of a benefits fraud trial, in light of the possibility of the jury being asked to examine detailed medical evidence about the children. However, he ruled that if the defendant was convicted of any of the charges, only very limited restrictions should apply.

The law firm Russells Solicitors apologised for leaking JK Rowling’s identity as the author of the novel The Cuckoo’s Calling. The author has since accepted a substantial donation to charity [SIOC - 31 July].

On 17 July 2013 Tugendhat J gave a short ex tempore oral judgment in NNN v Ryan. The application to discharge the injunction was dismissed and directions were given.

In a ruling in the phone hacking litigation ([2013] EWHC 2119 (Ch)), the new managing judge, Mann J held that Norwich Pharmacal disclosure could be ordered against the Metropolitan Police despite the fact that they did not “participate” in the original wrongdoing.

Other media legal developments

Sentencing remarks were given in R -v- News Group Newspapers Limited. NGN pleaded guilty to one offence under section 52B(1)(a)and(2) of the Crime and Disorder Act 1998 relating to the reporting of Andrew Partington’s case following a preliminary hearing at the Oldham magistrates’ court. The judge concluded that the appropriate penalty in this case is a fine of £3,350.00 together with a victim surcharge of £120.00 and prosecution costs of £500.00 [Apr].

Two men who were in breach of the injunction preventing the identification of James Bulger’s killers, John Venables and Robert Thompson, and therefore in contempt of court, were given a suspended sentence of nine months imprisonment [Apr].

Mrs Justice Sharp was appointed to the Court of Appeal. The promotions to the Court of Appeal also included Mr Justice Vos (the judge who is currently managing the phone hacking litigation in the Chancery Division) and Mr Justice Fulford (the judge who has been presiding in the trials arising out of Operation Weeting and Operation Eleveden).

It was announced that Keir Starmer is to step down as Director of Public Prosecutions at the end of his five-year term of office in October.

The Home Secretary Theresa May announced the creation of the Daniel Morgan Independent Panel, which will seek to answer questions about the murder of the private investigator Daniel Morgan in 1987 [May - PDF].

A former police sergeant who attempted to sell a story about Katie Price and Peter Andre’s daughter to the News of the World was imprisoned for 10 months. He was the fourth police officer jailed after prosecutions under the Metropolitan Police’s Operation Elveden [May].

On 22 May 2013, the Divisional Court discharged the anonymity order in favour of convicted murdered, David McGreavy (R (M) v Parole Board [2013] EWHC 1360). The Court declined an invitation to issue guidance as to the procedure appropriate to applications for anonymity orders in the Administrative Court but nevertheless emphasised the problems of making such orders at the last moment and by consent.

A coroner criticised the “sensational and salacious” press coverage of teacher Lucy Meadows, who killed herself in March, and called for the Government to implement the recommendations of the Leveson Report [May].

Director of Public Prosecutions (DPP) Keir Starmer issued final guidelines to the Crown Prosecution Service (CPS) on prosecutions involving social media communications. He will be succeeded by Alison Saunders, Chief Crown Prosecutor at London CPS.

In Scotland, a consultation launched by the Scottish Civil Justice Council contains plans to ensure the media receives advance notice of reporting restriction applications in the Court of Session [July].

The Court of Appeal, Criminal Division, dismissed appeals by five former News of the World employees against a preliminary ruling that interception of read voicemails constitutes an offence under RIPA. The appellants’ anonymity was removed and the appeal route to the Supreme Court was closed off. All five now face trial on 9 September 2013 [July].

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 Guardian revealed details of the US National Security Agency’s extensive communication surveillance programme, via the whistleblower Edward Snowden who has since been granted asylum in Russia for one year.

A Guardian exclusive report alleges that an undercover police officer co-authored the famous “McLibel” leaflet in the late 1980s, which led to the longest running civil trial in English history.

The press turned its attention to Soca and allegations that “blue-chip” firms were also involved in hacking and blagging.

Media policy/regulation developments

A group of UK newspaper publishers, supported by the Newspaper Society, launched their own version of a Royal Charter [PDF], claiming that the Government’s draft, which received cross-party support in March, did not provide adequate independence from politicans and contained “unworkable” recommendations.

This was submitted to Privy Council Office and the government’s proposals, which received cross-party support, has been delayed.

The PressBoF Charter was opposed by the NUJ and by a number of prominent victims of phone hacking. In addition, the Labour and Liberal Democrat members of the Culture Media and Sport Comittee wrote to the privy council and the culture secretary, Maria Miller, to say they rejected the Pressbof royal charter.

Newspaper industry plans were announced for the creation of a new self-regulatory body, IPSO. Guardian Media Group has said it will not join it as it stands [July].

In Parliament

The Defamation Bill received Royal Assent and is now the Defamation Act 2013, three years after the publication of Lord Lester’s original Defamation Bill.

Amendments to the Crime and Courts Bill clarifying the definition of a “relevant publisherreceived cross-party agreement. The amendments further define publishers’ exemption from the self-regulation scheme and the associated costs and exemplary damages incentives.

Speeches etc.

  • Harriet Harmon, Charles Wheeler speech, on media ownership reform [Part 1 and 2]
  • Keir Starmer, Speech: Prosecutorial Discretion and the Rule of Law [PDF], 16 July 2013, Bingham Centre for the Rule of Law.

Other jurisdictions

Australia: On 5 April 2013, judgment was given in Sands v State of South Australia ([2013] SASC 44). Derick John Sands, a photographer, lost his claim for defamation, as well as other claims including a breach of confidence and a breach of his right to privacy.

The Conservative Party’s Australian election strategist, Lynton Crosby brought defamation proceedings against a Labour politician in the Federal Court in Australia over an alleged defamatory tweet [May].

In the case of Maher v Nationwide News Pty ([2013] WASC 254), Kenneth Martin J in the Supreme Court of Western Australia struck out 5 of the 6 pleaded imputations in a defamation action brought against the “Australian” newspaper. There was also a judgment on meaning by the same judge in the case of Findlay v Grimmer (No.2) [2013] WASC 247.

Canada: In Ontario, the Court of Appeal dismissed the appeal of former Conservative cabinet minister Helen Geurgis against the striking out of her action for defamation, conspiracy and negligence against the Prime Minister, Stephen Harper (Guergis v. Novak, 2013 ONCA 449).

Germany: A German privacy watchdog, the Office of the Data Protection Commissioner (ULD), has been unsuccessful in its attempt to prevent Facebook requiring users to register on the site with their real names.

The Federal Court of Justice ordered Google to remove defamatory entries from its “auto-complete” function [May].

France: The partner of the French President, Valerie Trierweiler, won a privacy claim against the authors and the publisher of the book La Frondeuse (“The Rebellious One”). On 5 June 2013, the 17th Civil Chamber of the Tribunal de Grande Instance de Paris ordered the authors and publishers to pay the sum of €10,000. The magazine Point de Vue was also ordered to pay €3,000 in damages. Ms Trierweiler’s spokesman said the damages would be donated to charity.

Hong Kong: In Oriental Press Group Ltd & Others v Fevaworks Solutions Ltd& Others [2013] HKCFA 47, 4 July 2013, the Hong Kong Court of Final Appeal held that an internet forum provider is not like a notice board owner and not a first or main publisher, but qualifies as a subordinate publisher entitled to rely on the defence of innocent dissemination.

Ireland: Eoin McKeogh, who was falsely branded as a thief on YouTube, Google, Facebook and a number of websites in 2011, secured a interlocutory injunction to permanently remove defamatory material from the internet. Judgment [PDF] was given on 16 May 2013 in the High Court in Ireland.

Luxemburg [ECtHR]: In the case of Saint Paul Luxembourg SA v Luxembourg (Case No 26419/10), decided on 18 April 2013, the Fifth Section of the Court of Human Rights considered the protection of journalists against coercive court orders and held that a warrant to search a newspaper office was, in the circumstances, a violation of Article 8 and, because it was in wide terms which potentially included information about sources, it was also a violation of Article 10.

New Zealand: On 19 March 2013, Courtney J delivered judgment in the case of Wishart v Murray [2013] NZHC 540 refusing to strike out a libel action in a claim relating to Tweets and posting on Facebook. The judge found prima facie liability for third party comments posted on a Facebook page moderated by the defendant.

In a judgment handed down on 4 June 2013, Flannagan v. Sperling [pdf] (DC Waitakere), a court has ordered a blogger to indefinitely remove more than a hundred posts and comments attacking the reputation of a lawyer, and not to write about her again.

The defamation claim brought journalist Jon Stephenson against the Chief of the Defence Force, Lieutenant General Rhys Jones, ended with the jury unable to reach a verdict [July].

South Africa: It was reported that President Zuma had brought 14 large defamation claims totalling about R60m against the media since 2006 [May]. He then withdrew all outstanding claims.

The following reserved judgments after public hearings remain outstanding:

Hodgins v Squire Sanders (UK) LLP, 28 June 2013 (Sharp J)

Shathri v Guardian News and Media, 4 July 2013 (Nicola Davies J).

Karpov v Browder & ors, 24-25 July 2013 (Simon J)

Upcoming events

16 September 2013, Can we trust our news? Arizona State University and Dublin City University in conjunction with the New America Foundation. The Helix, Dublin City University.

17 September 2013, IBC Legal’s Protecting the Media 2013, London.

26-27 September 2013, Jersey Law Via the Internet 2013, Radisson Blu Hotel, Jersey

26 October 2013, 10am-7pm, The internet and the law, NUJ New Media Industrial Council and the Media Reform Coalition at Goldsmiths, University of London.

8-9 April 2014, “1984: Freedom and Censorship in the Media – Where Are We Now?“, Centre for Research in Media and Cultural Studies at the University of Sunderland

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

2013/14

Michaelmas: Wednesday, 1st October to Friday, 19th December
Hilary: Monday, 13th January to Wednesday, 16th April
Easter: Tuesday, 29th April to Friday, 23rd May*
Trinity: Tuesday, 3rd June to Thursday, 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 3 – Easter and Trinity Terms 2013 […]

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