Case Law: F v G – Anonymity Orders and Extended Restricted Reporting Orders in the Employment Tribunals – Claire Darwin

The current President of the Employment Appeal Tribunal, Underhill J, in a judgment which contains a comprehensive review of the law on the use of Restricted Reporting Orders and Anonymity Orders in the Employment Tribunal (F v G (Practice and Procedure: Reporting Restriction order) UKEAT/0042/11/DA), has anticipated the arrival of the Extended Restricted Reporting Order. This is an order which derives from either EU Law or the European Convention of Human Rights. The scope of such an order is potentially far wider than an order under the statutory regime for anonymisation in the Employment Tribunal (found at rule 49 and 50 of the Employment Tribunal Rules of Procedure), or an Anonymity Order.

Case Law: Davison v Habeeb & Ors – the liability of blog platforms in defamation cases – Gervase de Wilde

A blog offers unprecedented scope for self-publication. But can the providers of blog platforms, whose business model is to make the process as easy as possible, be held liable for their contents in English law? This question was addressed in the case of Davison v Habeeb ([2011] EWHC 3031 (QB)) handed down on 25 November 2011 by HHJ Parkes QC (sitting as a judge of the High Court). The decision was made on an application by Google Inc. to set aside an earlier order in a defamation action in which it had been named as a party. This was due to its ownership and control of  popular blog publishing tool Blogger, which had been used to publish material about the claimant, Ms Andrea Davison.

Publish and be Sued: But Where? – Aidan O’Neill QC

If private information material has been published on the Internet where can the wronged individual bring an action, and what law applies? These are the questions posed of the CJEU by the German Federal Court of Justice (the Bundesgerichtshof) and by the Tribunal de Grande Instance (Paris) in two cases – respectively eDate Advertising GmbH v. X, C-509/09 and Martinez v. Mirror Group Newspapers Limited, C-161/10 – which were heard and decided on together by the Grand Chamber of the Luxembourg Court on 25 October 2010.

Case Law: eDate Advertising and Olivier Martinez – Mark Vinall

Existing legal principles are not always easy to adapt to the world of the internet. In its recent judgment in Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X and Olivier Martinez v MGN Ltd (25 October 2011), the Grand Chamber of the Court of Justice of the European Union has laid down a radical new rule of jurisdiction over torts committed online, giving claimants the choice of suing in their home courts.

Libel, Science and GMOs: a French Criminal Case

Over the past year, the Libel Reform Campaign and Sense about Science have campaigned vigorously to “keep libel laws out of science“.   They have drawn attention to the “chilling effect” of libel actions on scientists like Peter Wilmshurst and science writers like Simon Singh.   An interesting perspective on these issues is provided by a French criminal libel judgment given by the 17th Chamber of the “Tribunal correctionnel de Paris” on 18 January 2011 in a criminal libel case brought on the complaint of one scientist against another over statements concerning research on genetically modified organisms (“GMOs”).

EU Law, Freedom of Information and Data Protection – Part 3 – Aidan O’Neill QC

This is the third part of a three part post.  In this part Aidan O’Neill considers EU secondary legislation on data protection

The Data Protection Directive 95/46/EC was passed by the EU legislature under what is now Article 16(2) TFEU. It has been supplemented by: the Data Protection (Telecommunications) Directive 97/66/EC which regulates the processing of personal data in the telecommunications sector; and by  Privacy (Electronic Communications) Directive 2002/58/EC  which prohibits, in principle, the storage of electronic data by persons other than users, without the consent of the users concerned.

EU Law, Freedom of Information and Data Protection – Part 2 – Aidan O’Neill QC

This is the second part of a three part post.  In this part Aidan O’Neill considers EU secondary legislation on access to documents.

The EU access to document regime applies only to the EU’s own institutions, bodies, offices and agencies.   Strictly it is not a freedom of information regime.  Instead as the General Court has stated:

“[T]he concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual” (Case T‑264/04 WWF European Policy Programme v. Council [2007] ECR II-911 at paragraph 76)

EU Law, Freedom of Information and Data Protection – Part 1 – Aidan O’Neill QC

Freedom of information was not one of the “four freedoms” which formed the foundations of the European project.   The freedoms which a European common market   and customs union   were intended to herald were simply: the ability freely to ship goods for trade across national boundaries;   the freedom of workers to “up sticks” and go and take jobs abroad;   the freedom of individuals and companies to offer their economic services   and, if so minded, to establish their businesses abroad and the freedom to transfer money across European borders.

Rome II and Defamation – an online symposium from the Conflict of Laws Blog

The “Rome II” Regulation (Reg. (EC) No. 864/2007) is the European Union Regulation on the law applicable to non-contractual obligations. From 11 January 2009, the Rome II Regulation created a harmonised set of rules within the European Union to govern choice of law in civil and commercial matters (subject to certain exclusions) concerning non-contractual obligations.  However, there was no consensus over the appropriate conflict rule to deal with defamation and privacy disputes.

EU Committee considers cross-jurisdictional media claims

The EU Parliament’s Committee on Legal Affairs has recently been considering the cross-jurisdictional dilemmas posed by actions for defamation and privacy.  It is working towards what is known as Rome II, which will be a series of rules regarding which court and which law will apply in disputes which involve more than one jurisdiction.  The particular dilemma concerning defamation and privacy actions arises from whether particular consideration ought to be given to the jurisdiction in which the editorial decision to publish was taken (as opposed to the jurisdiction, if different, in which the resulting damage took place).  At present, for instance, following the decision of the European Court of Justice in Shevill v Presse Alliance [1995] 2 AC 218, a London-based newspaper which was published in Sweden and which defamed or breached the privacy of a Swedish resident could be sued in that jurisdiction under Swedish law (and potentially in other EU jurisdictions where the claimant was caused damage).  It is important to bear in mind that in a number of EU jurisdictions (including Sweden and France) the publication of a libel is still a criminal offence.

For understandable reasons, European media organisations believe that the applicable law ought to be that of the jurisdiction where the editorial decision to publish was made.  This is because it would be impractical for a newspaper to consider what legal risk would occur in other jurisdictions prior to making the decision to publish.

As part of its consideration of this issue, the Committee on Legal Affairs has considered the current state of the law of defamation law in this jurisdiction.  William Bennett, a specialist barrister in such matters, presented a paper to the committee which to some extent foreshadowed Lord Hoffman’s recent speech by concluding that the law was fairly balanced in England and Wales and that recent media articles to the contrary were “somewhat one-sided”.

William Bennett’s presentation can be found here.