The publication of the proposed legislation was previewed by an announcement of some of its content by Viviane Reding, the Commission Vice President who has been one of the driving forces behind it, at the annual Digital Life Design Conference in Munich on January 22. The Regulation and Directive are intended to supersede the piecemeal provisions for data protection and privacy which exist across the 27 Member States with a single, Union-wide legal framework; in the UK, this will mean overriding the Data Protection Act 1998.

The new rules, said Reding, aim to

“ensure a smoother exchange of information between member states, police and judicial authorities in the fight against terrorism and serious crime while at the same time protecting people’s fundamental rights to data protection.”

They are a response to concerns arising from the increasingly widespread use of social media and e-commerce, with all the sacrifice of personal information that the phenomenon entails. The Commission quotes a survey which found that 70% of European citizens are worried about misuse of their personal data, and the effect of the new rules seems broadly to be a re-balancing in favour of the interests and rights of the data subject over those of data controllers and processors.

Concerns about the long-term implications of giving up personal information online are particularly relevant to so-called digital natives, who have grown up sharing details of their entire lives via social networks, and a spokesman for the Commission confirmed that the rules are

“particularly aimed at young people as they are not always as aware as they could be about the consequence of putting photos and other information on social network websites, or about the various privacy settings available.”

The Regulation (and the separate Directive on protecting personal data processed for the purposes of prevention, detection, investigation or prosecution of criminal offences and related judicial activities) will be the subject of detailed commentary and analysis in the weeks and months ahead, but these are some of the main innovations, and one respect in which the law’s approach to the media remains the same:

 The right to be forgotten

Article 17 is a right to be forgotten, that is for the data subject to

“obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child”

This is perhaps the most headline-grabbing and contentious aspect of the reforms, although it is worth noting that it is, of course, a circumscribed right rather than an absolute one. Potentially alarming for data controllers is that, where they have made data public in the first place, their obligations in effacing it extend to third parties involved in processing or publishing that data.

In his detailed post for Inforrm, Paul Bernal draws attention to the often emotional reactions to this aspect of the proposals, which has been painted by some as a potential restriction on free speech, or as making provision for attempts to erase the past, and Reding herself sought to address this kind of alarmism, saying that

“[i]t is clear that the right to be forgotten cannot amount to a right of the total erasure of history. Neither must the right to be forgotten take precedence over freedom of expression or freedom of the media.”

Bernal argues that the right is really intended to address “the deletion of data that is no longer needed” and points to the existence of similar principles of data minimisation in the current law. It seems, however, that this aspect of the new rules, along with the right to object to the profiling and processing of personal data under Articles 19 and 20, will change the approach of online businesses which store data on customers, profile and target advertising at them.

No presumption of consent

There is a focus throughout the legislation on the data subject’s consent to the processing of her data, which will have to be “freely given specific, informed and explicit” under Article 3. Silence or inactivity will not suffice, and consent must be given “by a statement or by a clear affirmative action”. Article 6, which addresses the lawfulness of processing, details scenarios in which processing data without consent is acceptable, including when it is “for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller”.

The requirement to obtain consent is a major plank of the proposed reforms and should have a significant impact on the widespread practice of obtaining, and even trading in, consumers’ personal information without their being aware of it. It could, however, have a detrimental effect on the web browsing experience, resulting in all internet users spending more time dealing with data-related aspects of web-use.

Notification of data breaches

Articles 31 and 32 introduce an obligation to notify the relevant parties of personal data breaches, and they develop the personal data breach notification provisions in Article 4(3) of the e-privacy Directive 2002/58/EC. The most onerous aspect of the two articles is the obligation to notify the national supervisory authority of any personal data breach within 24 hours of it taking place, but the breach must also be communicated to the individual data subject “without undue delay”, a timescale which, according to Reding, also means 24 hours.

The Outlaw blog has commentary on this aspect of the provision, pointing out that the timing provisions will make it difficult to issue meaningful communications to customers, and that the prospect of fines for non-compliance will probably result in the sending of large numbers of reports. Data related spam is not an appetising prospect. However, Reding’s assertion that the new regulations will result in an increase of consumer trust in those they give their data to is perhaps best borne out by this aspect of the proposals.

Data Protection Officers

Article 35 obliges data processors and controllers to designate a data protection officer where processing is carried out by a public authority or body, or where it is carried out by an enterprise employing 250 persons or more, or where the activities carried out “require regular and systematic monitoring of data subjects”. This individual will have to have expert knowledge and be appointed for at least two years.

This undoubtedly will be an additional cost to businesses, and is one focus of anxiety from the commercial world. But it does not seem particularly disproportionate when compared with the requirements surrounding Health and Safety, particularly as the nature and amount of data held by businesses increases.

Fines and enforcement

Many news organisations, including the BBC, have led on the fact that companies face fines of up to 2% of turnover for breaches of the legislation. Article 79 outlines a sliding scale of administrative sanctions, starting with a written warning and increasing to 2% of turnover or 1,000000 Euros for the most serious breaches.

The majority of the technology businesses likely to be most affected by the regulations and the possible sanctions are based in the United States and would prefer the minimal controls that exist at the moment. Although Reding has said that sanctions are to be seen as a last resort, and it’s notable that their extent has been significantly reduced from a 5% maximum since an earlier draft of the proposals was leaked, they may be necessary to give teeth to the new framework.

 Media Exemptions

Commissioner Reding emphasised freedom of expression and freedom of the media in her announcement, and the Regulation does, like the Data Protection Act, contain explicit provisions relating to the media. Article 80 provides for exemptions or derogations from the Regulation’s provisions

“for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression”.

This provision is based on Article 9 of Directive 95/46/EC, which is in force  in the UK as s32 of the 1998 Act.  A margin of appreciation is left to the Member State in the implementation of Article 80, so it seems likely that the existing test applied by the courts in this jurisdiction, that the publication of personal data should be in the public interest, will persist in some form.

The ECJ held in Satakunnan Markkinapörssi and Satamedia (C-73/07, ECR 2008 p. I-9831) that the notion of journalism in Article 9 should be interpreted broadly, including all activities whose object is “the disclosure to the public of information, opinions or ideas”, irrespective of who is carrying them out (although this must not encroach unnecessarily on the fundamental right to privacy). Explicit reference to this decision in the preamble to the Regulations points to the continued existence of a broad exemption, encompassing both old and new media.

 Gervase de Wilde is a student barrister and former journalist at the Daily Telegraph

As the bills temporarily rest in Davy Jones’s Locker, we are left to consider whether the protests were a misconceived overreaction to an important step towards combating copyright theft online or an important step in the protection of the free Internet? And if this legislation was not the way to do it, how can the right balance be struck in future?

SOPA and PIPA in a nutshell

Both SOPA and PIPA were broadly similar in their scope and application. SOPA, the bill put forward by the Senate, also made it illegal to stream unauthorized copyright content. Fundamentally however, both bills sought to prevent US companies from providing funding, advertising, links or any other assistance to foreign sites that “engage in, enable, or facilitate” pirated material. They also provided for a private cause of action both for the owner of the copyright material and the Attorney General against the foreign site. It would not matter that the foreign website was not making a profit from the material; a simple link would be sufficient to fall within the scope of the legislation. Furthermore, while the individual or company could not go after a search engine for failing to remove a link to the offending site, the Attorney General could. Moreover, an individual or company could sue a credit card company which failed to cut off payment services to a pirate website on the basis that it was then facilitating the act.

The bills also allowed the Attorney General to instigate individual prosecutions against copyright thieves based abroad under the same terms of those who “engage in, enable, or facilitate”. The Justice Department could also seek a court order to shut down foreign sites that “engage in, enable, or facilitate” copyright theft. This in turn would extend to US based intermediaries: search engines, Internet service providers, payment providers, and advertisers who would all be required to take “reasonable and technologically feasible steps” to comply with these orders. In practice, this would mean anything from removing a link to blocking advertising or payment services to a website.

What was all the fuss about?

The bills were narrow in their focus but broad in their application. There are often difficulties in identifying and punishing the real perpetrators of copyright infringement or IP theft, particularly when they are based abroad. Laws already exist against web-piracy but there are further difficulties in pursuing criminal or civil actions against those individuals or companies. The US is never one to shy away from seeking extradition of offenders once they have been identified, as the 23 year old British founder of the TV Shack website recently found out. Yet these sites may exist for several years and cost copyright owners many millions of dollars while a criminal case is built up. It is with that in mind that the US decided to go after the intermediaries; the global corporations as well as the small US-based ones; the credit card companies and the online payment sights in an effort to limit the damage and reduce distribution.

Companies like Google and Wikipedia were most concerned at the implications for free speech and information sharing online. However, there is the additional, related question of how effective the new provisions would really be at stopping the most blatant violators of copyright law, compared with the collateral damage inflicted on the rest of the Internet.

It is helpful to consider a hypothetical example to illustrate the potential reach of the legislation. Facebook is a site based in the US. It is directed – in part – at US users. It is therefore within the scope of the legislation. Now imagine that the user in question is based in Norway, with no US users on his friend list but whose privacy settings are such that it may be possible for those based in the US to access uploaded material on his page. The Attorney General could take direct action against him. However, the Justice Department would also be entitled to order Facebook, as a site based in the US and directed at US users, to remove links to the content on other users pages, or even remove to it completely.

For this type of regulation to work, there is necessarily a heavy degree of state monitoring and intrusion. While SOPA expressly states that there is no duty on the part of payment providers or advertisers to monitor activity, the same is conspicuously not said of search engines and does not mean that the state will be keeping close watch over the Internet.

Of course, taking action in any case is discretionary; the Justice Department may consider it disproportionate to order such action in relatively small cases. This is not a solution. Firstly, it is unsatisfactory and dangerous to rely on the common sense of state officials to save overly broad and ill defined legislation. Some of the charges brought under the Providing Material Support for Terrorism offence created by the second Bush Administration stir up some particularly uncomfortable memories of this.

Secondly, SOPA and PIPA provided for private causes of action. These would not only be available against websites hosting pirated content but also extend to payment processors and advertisers. Furthermore, the Attorney General would be able to pursue civil action against a search engine that failed to remove a link to the content. From a practical standpoint, it is easier for American-based copyright holders to pursue civil litigation against American-based corporations. The risk of such litigation is therefore high and has a detrimental effect on trade and e-commerce. Indeed, there is a real risk that in attempting to preserve one aspect of the American economy, substantial damage is caused to another.

The companies targeted by SOPA and PIPA are big and they have global reach but they are not the source of the problem. This is the lazy way to legislate.

The EU approach: Scarlet Extended SA v SABAM

The EU’s digital agenda commissioner, Neelie Kroes, is the latest to add her voice to the anti-SOPA movement. This is unsurprising. The EU staunchly protects the protection of personal data and undoubtedly would have concerns over an intrusive system of regulation such as that proposed by SOPA and PIPA. Furthermore, the EU takes the view that the proper approach to web privacy is one of balance.

Scarlet Extended SA v SABAM Case C-70/10, 24 November 2011, concerned Scarlet’s (an internet service provider) refusal to install a system for filtering electronic communications which use file-sharing software in order to prevent any file sharing which would infringe copyright. SABAM, a Belgian management company responsible for authorising the use by third parties of musical works of authors, composers and editors had reason to believe that users of Scarlet’s services were unlawfully downloading SABAM’s works through “peer to peer” file sharing. The Belgian courts granted an injunction against Scarlet, requiring it to take measures to prevent this copyright infringement from continuing. Scarlet appealed to the Brussels Court of Appeal alleging that this injunction was not in conformity with EU law because it imposed a general monitoring requirement contrary both to Directive 2000/31/EC on electronic commerce, and with fundamental rights. It was this question which was referred to the CJEU for a preliminary ruling.

In its Judgment, the CJEU held that the terms and scope of any injunctions granted by a member state to a copyright holder against a third party intermediary such as an Internet service provider is a matter for national law. Crucially, however, such injunctions must not run contrary to the limitations set out by EU law, particularly the prohibition in the electronic commerce Directive pursuant to which national authorities must not adopt measures which would amount to a monitoring requirement on the part of internet service providers. Any injunction that did this would be an infringement of the applicable fundamental rights (freedom to conduct a business, protection of personal data, freedom to receive and impart information). Further, while the right to intellectual property is also enshrined in the Fundamental Charter, it is not absolute and must therefore be balanced against other Charter rights.

The CJEU also pointed out that an injunction such as this would inevitably result in the infringement of Scarlet’s customers’ data protection rights because of the need to collect and identify the IP addresses of all its users.

Taking all of the above into consideration, the CJEU found that the proposed injunction did not strike a fair balance between the right to intellectual property and the rights of freedom to conduct business, protection of personal data, and to receive and impart information.

This is useful guidance, although it does not help the US in its quest for comprehensive copyright regulation. What is clear, however, is that if SOPA and PIPA do go ahead in the future, the EU is likely to have some serious concerns at least in relation to the data protection rights of its citizens.

Is effective protection against copyright theft possible in the Internet age?

It is trite that an author, who creates an original work, generally owns the rights to that work. It is equally trite that reproducing the work on a website or making it available for download – either free of charge or for a fee – without the permission of the author is an infringement of copyright. Interestingly, the entertainment industry – or at least the non-executive portion of it – is not universally opposed to this type of sharing. Indeed, the recently indicted “Megaupload” group had a number of Hollywood supporters.  There is also the usual debate over how much loss web piracy actually causes, although the Megaupload site alone is alleged to have caused the entertainment industry $500 million in lost revenue. It is not a controversial proposition that those who steal the ideas and works of others repeatedly and on a widespread scale, for considerable financial benefit, should face the appropriate sanctions.

At the other end of the spectrum is an individual uploading a video of him singing another artist’s song without the artist’s permission. The individual gets little to no financial benefit from this and the financial loss to the artist is negligible.  Yet, the idea is stolen all the same. That theft continues every time that video is reposted or a link to it shared. It is unlikely that criminal proceedings are going to be brought against the individual in that case. Nevertheless, SOPA and PIPA proposed to shut down access to all types of copyright theft (as long as the perpetrator was based abroad) by targeting every associated host site or intermediary, regardless of knowledge or intent.

It is not possible to devise a system of Internet regulation that comprehensively prevents and attacks copyright theft at both ends of the spectrum without heavily restricting the information available on the Internet. Any system of regulation such as that proposed by SOPA and PIPA would also necessitate a heavy degree of state monitoring of the Internet. There are not only issues of free speech but of data protection, which have not been properly thought through.

Already, there are attempts to push an alternative to SOPA and PIPA through Congress. The Online Protection and Enforcement of Digital Trade Act (“OPEN”) was proposed in the House and the Senate last week and proposes empowering the US Federal Trade Commission with the ability to enforce online piracy laws. It is essentially a watered down version of the previous two bills and, while currently enjoying the support of Internet companies has met with dissatisfaction amongst media companies which feel it is too soft on piracy laws. While still going after foreign websites “directed at US users” it does not appear to go much beyond that which is already provided for in US law.

Perhaps one question to consider is whether the existing copyright and intellectual property laws are fit for purpose in the Internet age. The Universal Copyright Convention came into force in 1952. The principles it established are sound and important but should be adapted to reflect current circumstances. Moreover, states have to protect the national interest but important lessons can be learnt and greater progress made through multilateral discussion and cooperation.

The Internet is one of civilisation’s most innovative creations and while it cannot be used as a vehicle for criminal activity protected by an immunity of “freedom”, it should not be used as a vehicle for state censorship and heavy handed restrictions on the information it holds. Quite how the balance is going to be struck is a question even Wikipedia doesn’t yet hold the answer to.

Kirsten Sjovoll is a trainee barrister at Matrix Chambers

Inforrm Resources

Our regular readers will have noticed a new feature on the home page this week – a “Resources” box in the right hand column.  We have introduced this to provide instant access to some resources which are useful to media lawyers but which some readers may find difficult to locate quickly.

The first link in this box is something which is, in fact, not available elsewhere.  It is an editable Word version of the Model Non-Disclosure Order attached to the Master of the Rolls “Practice Guidance on Interim Non-Disclosure Orders” (also in the box).

On an application for an Interim Non-Disclosure Order the proper practice is now to use the Model Order as a template and to explain to the judge any additions or deletions in the draft order which the Court is being asked to make.  At the same time the Judge’s attention should be drawn to Practice Direction 51F the “Non-Disclosure Injunctions Information Collection Pilot Scheme“.

We have also included in the Resource Box a link to the Court of Appeal Case Tracker – an under-used resource which shows the present position of all Civil Appeals pending before the Court of Appeal – including the presently proposed “constitution” of the Court for any forthcoming hearing.

We thought it unnecessary to include a link in the Resource Box to the invaluable Bailii – which provides up to date case law from England and Wales (and around the world).  Instant access to this can be obtained by clicking the Bailii Logo on our Home Page.

Please let us know if there are any other useful and not immediately accessible media law resources which could usefully be placed in the Resource Box on our Home page.

During the first seven weeks of evidence at his inquiry, Lord Justice Leveson has visited the outer reaches of journalism and ethics. But he has to look beyond the paparazzi packs and the story-lobbing editors and make practical recommendations for “effective policy and regulation”. A tempting menu of at least 12 regulatory models has been presented. The large and difficult question is which of these is at once practical and strikes the right balance between individuals, the public, and the press.

The judge has given some indications of the kind of model he finds attractive. On Tuesday 10 January 2012 he “floated the concept” of “some sort of arbitral system for speedy resolution of privacy claims, [and] potentially small libel claims“. Such a model of press regulation could improve access to justice while helping to solve the notorious problem of excessive libel costs. Would such a system work?

An arbitrator is an independent person who makes a final and binding decision about a dispute. There is no problem with a regulatory body including an arbitration system. This could decide privacy and libel cases. The arbitrators could have the power to award compensation or require the publication of corrections. Organisations that were subject to the new regulator could be required to take part in such a scheme.

But there is a problem. Everyone has a right – both under the common law and under article 6 of the European convention on human rights – to “access to court”. This involves a right to have disputes resolved by an “independent and impartial tribunal”. Of course it is possible to agree to resolve a dispute in another way, such as arbitration. But there must be agreement. The “right to court” cannot be taken away by compulsion.

Claimants could refuse to take part. As Leveson noted, “if it’s consensual, then the very, very wealthy will simply say ‘I’m not interested’“. So members of the public would have to be given a choice as to whether to take part in a new regulator’s arbitration system and there would be a risk of “two-tier” justice: the courts for the rich and cheap arbitration for everyone else.

Two ways out of this problem have been suggested. The first is to create a “libel tribunal”. This would have to have all the basic characteristics of a court – independence, impartiality and fair procedures such as cross-examination and proper access to documents. There would be no “access to court” objection to everyone who wanted to bring a libel or privacy claim against the media being required to use such a tribunal, just as anyone bringing an unfair dismissal claim must use an employment tribunal. This is, for all practical purposes, a court and the libel tribunal would have to proceed along similar lines. But the disadvantages are obvious. It would be expensive to set up and run, and would risk becoming over-legalistic.

More interesting is a scheme all would-be complainants would be required to use, which involves only interim determination. Such a scheme, modelled on the construction industry adjudication scheme, has been championed by Alastair Brett, a former legal manager of Times Newspapers and long-time advocate of the early resolution of libel disputes (he discussed this on Inforrm last year).  This proposal would mean that those bringing claims against regulated organisations would have to submit them to adjudication by independent experts. Court proceedings would be temporarily “stayed”. Adjudicators would make swift decisions on compensation and corrections.

Under the Brett proposal, this process would be paid for by the newspapers and unsuccessful claimants would not have to pay costs. The adjudicator’s decision would not be final. If either party did not like the result they could still go to court – although construction industry experience suggests that most adjudicators’ decisions are accepted. The possibility of participation in such a system could be an important carrot to attract the media into a new, voluntary regulator. Many practical issues remain to be worked out but an “adjudicatory” system might overcome the problem of compulsion and deliver the cheaper, more effective access to justice which Leveson seems keen to achieve.

Hugh Tomlinson QC is a barrister at Matrix Chambers specialising in media law and an editor of the Inforrm blog. He is a a contributor editor of a new proposal for a Media Standards Authority, including an adjudication element, to be launched later this month.

This article was originally published in Media Guardian and is reproduced with permission and thanks.

Background

The applicant company, Standard Verlags GmbH, owns the Vienna daily newspaper Der Standard. The case concerned an article it published in April 2006 reporting on enormous speculation losses incurred by a state-backed bank, and the ensuing criminal investigation for embezzlement brought against the bank’s senior management. The article identified a member of the bank’s treasury department as Christian Rauscher, the son of a former regional government member with responsibility for finance. The article reported that in 2004 Rauscher was not dismissed but merely demoted and transferred, being relieved of his duties only after the incident of the losses had become known. But it made it clear that the losses had thus been incurred under his responsibility.

Rauscher as head of the bank’s treasury brought proceedings against the applicant company for disclosing his identity in that article. In its defence, the applicant company contended that the article had not depicted the claimant as the person responsible for the losses but rather as the “scapegoat”. The public interest in the disclosure of his name outweighed his private interests since he had held a leading position in the bank and there was also a connection with the political sphere on account of his father’s position. This argument, initially successful, was ultimately rejected by the Vienna Court of Appeal, which, whilst it agreed that there was a public interest in reporting that the claimant had been presented as someone suspected of embezzling a large sum of money, found that the lower courts had carried out the wrong balancing act. “The mere public interest” in the reporting of a crime did not by itself suffice. At the time the article was published, the investigation into the affair was still in the early stages and no proceedings had yet been brought against the claimant. The subject matter of the article in question was only the rumours of accusations against him by two senior bank officials. Therefore, at this time

there was no independent value in the disclosure of the claimant’s name that would have outweighed the legitimate interest in protecting his anonymity….The claimant’s name was clearly disclosed in order to make a connection with his father, the former regional government member responsible for finance, and by doing so create a “story” which would satisfy the public’s curiosity and appetite for the sensational to a high degree.

Rauscher was awarded EUR 5,000 compensation.

Before Strasbourg, the applicant company relied on Article 10 (freedom of expression) of the Convention, contending that it had not gone beyond its remit of responsible reporting by disclosing Mr Rauscher’s name; that being able to mention the names of those responsible it would not have been possible for the press to convey the extent to which politics and banking were intertwined.

The Court found that Article 10 had indeed been violated, and awarded the applicant company EUR 7,602.12 by way of pecuniary damage (just satisfaction, in Article 41 terms) and its costs and expenses.

The Court’s reasoning

The Court agreed with the Austrian courts that the case concerned a balancing of the applicant company’s right to freedom of expression under Article 10 against the claimant’s right to protection of his identity. It repeated the mantra that the concept of “private life” protected by Article 8 of the Convention includes aspects relating to personal identity, such as a person’s name or picture (Von Hannover v. Germany, no. 59320/00, para 50). When balancing the protection of private life against freedom of expression, one factor it has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” . However, the Court observed, significantly, (and perhaps ominously, at least for those witnesses participating in the Leveson inquiry)

the question whether or not a person, whose interests have been violated by reporting in the media, is a public figure is only one element among others to be taken into account

Where other factors of “public interest” are in play, such as the close connection of politics and banking, said the Court, there was ”little scope” under Article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest. Despite the potential for undermining the presumption of innocence principle where the person identified is subject to criminal proceedings, the Court attached particular significance to the fact that the article at issue was “not a typical example of court reporting” but focussed “mainly on the political dimension of the banking scandal at hand.”

Names, persons and personal relationships are clearly of considerable importance in this sphere. It is difficult to see how the applicant company could have reported on these issues in a meaningful manner without mentioning the names of all those involved, including the claimant

The Court therefore concluded that the domestic courts had overstepped the narrow margin of appreciation afforded to them with regard to restrictions on debates of public interest. It followed that the interference with the applicant company’s right to freedom of expression was not “necessary in a democratic society”.

Comment

So whatever tighter manacles are forged for the press by the Leveson report, if at all, the moral to be drawn from this story is that journalists may still be able to enlist the protection of Article 10 for “naming and shaming” by peppering their copy with references to broader political points, whether or not the identification of the individual itself adds anything to the debate at issue.

The Committee of Ministers of the Council of Europe (the executive arm of the Strasbourg Court’s ruling body) have in place a non-binding Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. The principles behind this recommendation are 1) that journalists must be able to “freely report and comment” on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles, but that 2) any information relating to ongoing criminal proceedings should only be disseminated through the media where this does not prejudice the presumption of innocence of the suspect, and that in all events their rights to privacy under Article 8 should be respected.

As we can see however these principles are easily circumvented in practice. Celebrities and other public figures will not find anything of comfort in Strasbourg’s jurisprudence on this particular matter; the judgment in Von Hannover in other words is an exception that proves the rule.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks

Associated Newspaper’s application to for judicial review of Lord Justice Leveson’s ruling on the admission of anonymised evidence was rejected by the Administrative Court last Friday. Inforrm has a commentary on the decision here.

The Guardian reported extensively on the NI settlements, and reproduced statements in open court here. Nineteen individuals “did not wish to make a statement or have details of their settlement made public,” but “the settlements are likely to have cost the News of the World publisher a total of more than £1m,” the newspaper reported.

PA Media Lawyer reports there are 10 cases, including Charlotte Church’s, which have not yet been formally settled and will be tried on February 13. On Inforrm, Brian Cathcart argued

“it took courage for these people to sue, and collectively they made the difference between News International escaping scot free and what we have now: substantial police investigations, a couple of dozen arrests, and the historic and far-reaching Leveson Inquiry“.

The Observer’s Peter Preston took a look at the wider picture, pointing out

“the nature of this miserable affair, in short, goes deeper than Leveson. It involves punishment, not prescription. It deals in law that already exists, not fresh rules for a refurbished game.”

David Allen Green has been vigorously pursuing the question of a hacked email account at the Times, and his post on the matter was cross-posted on Inforrm here. Green has published a timeline of events concerning the unmasking of the NightJack blogger by the Times, on his personal blog here.

HoldtheFrontPage reports that Keith Hart, a reporter at the Dartford Messenger successfully challenged a Section 39 court order at Maidstone Crown Court which would have prevented the naming of a mother in a child cruelty case.

Tim Turner’s 2040 Info Law blog has a fascinating post about the ICO’s decision not to prosecute newspapers which employed the private investigator Steve Whittamore. Turner has attempted to obtain information relating to the decision – without much success.

Inforrm published the answers to its annual quiz, and announced that there was a clear winner with an impressive 100% of correct answers – Mr Benjamin Pell.

Statements in Open Court and Apologies

News Group Newspapers apologised to Paul Gascoigne for a story in the Sun in July 2010 that wrongly alleged that he groped a shop assistant.”The allegation was published in good faith but it was nevertheless false,” Gascgoine’s counsel Richard Pitkethly told the High Court. “Mr Gascoigne did not grope the shop assistant as alleged in the article, or at all, and the defendant now accepts this.” Ben Beabey, solicitor for NGN, apologised for any distress and embarrassment caused. Reports can be found on PA Media Lawyer and the Guardian.

As noted above, there were 18 statements in open court, regarding settlements with News Group Newspapers in the phone hacking litigation. These included: Chris Bryant (MP); Sadie Frost; HJK; Gavin Henson; Ben Jackson; Jude Law; Denis MacShane; Ciara Parkes; Guy Pelly; John Prescott; Tom Rowland; Christopher Shipman; and Joan Smith.

Journalism and the PCC

There are no adjudicated PCC rulings to report, but several “resolved” cases including: Miss Catherine Lemon v Western Daily Press (Clause 1, 20/01/2012); A woman v The People (Clauses 3, 6, 9, 19/01/2012); A woman v Daily Mail (Clauses 3, 6, 9, 19/01/2012); Mr Alan Shannon v Ayr Advertiser (Clause 1, 19/01/2012); Mr Alan Shannon v Sunday Mail (Clause 1, 19/01/2012); Dr Esther Hobson v The Star (Sheffield) (Clause 1, 19/01/2012); A woman v Merthyr Express (Clause 1, 6 19/01/2012); Dr Stephen Marsh-Smith v Trout & Salmon (Clause 1, 19/01/2012); Adam Corlett v Daily Mail (Clause 1, 19/01/2012); Sir Suart Bell MP v Daily Mail (Clause 1, 19/01/2012); The Rt Hon Alex Salmond MSP v Daily Record Daily Record (Clause 1, 19/01/2012); Mrs Tracy Woodward v Daily Mail (Clause 1, 17/01/2012); Ms Cheryl Cole v The People (Clause 1, 16/01/2012).

Tabloid Watch has questioned a Daily Express headline, claiming ‘Daft EU want all plastic shopping bags made illegal’. “It appears that, not for the first time, the Express has, in a front page headline, attributed a point of view to the EU which it hasn’t expressed, simply because it fits the paper’s agenda to do so,” remarks TW.

Research & resources

Morrison & Foerster’s Socially Aware Blog has a useful run-down of key moments in the history of social media law, from 1984 to the present day.

Nick Cohen’s new polemical book, ‘You Can’t Read This Book: Censorship in an Age of Freedom‘ was published by 4th Estate on 19 January 2012. An extract concerning defamation and libel had already appeared in the Observer last Sunday, but the book’s remit is far wider, with exploration of religious fanaticism as well as recent developments in privacy law. It also provides a detailed history of the Satanic Verses affair in 1988, which was back in the news last week, with reports that Salman Rushdie has cancelled his appearance at the Jaipur Literary Festival, after receiving intelligence that he may be the target of assassination.

The LSE based thinktank Polis has published a new report, ‘Is Comment Free? Ethical, editorial and political problems of moderating online news’ by Sanna Trygg, a visiting research fellow, that compares the moderation of news in Sweden and the UK. Download the full report here.

In the Courts

On 18 January 2012, HHJ Parkes QC gave judgment in the case of WXY v Gewanter (on an appeal from Master Eyre, after a private hearing). On the same day, Mr Justice Tugendhat reserved judgment in the case of Lord Ballyedmond & anr v Trimble

On Thursday 19 January 2012 Mr Justice Vos heard the pre-trial review in the phone hacking litigation. A number of settlements were announced and 18 statements in open court were read. Mr Justice Vos also granted an application for specific disclosure by the Claimants and gave judgment.  On the same date HHJ Parkes reserved judgment in the case of Woodrow v Johansson

On 20 January 2012, the Administrative Court handed down judgment in the R (Associated Newspapers) v Lord Justice Leveson ([2012] EWHC 57 (Admin)). The application for judicial review of the Inquiry’s ruling on anonymity was dismissed. We had a comment on the case.  On the same date HHJ Parkes QC heard a “Norwich Pharmacal” application in the case of Patel v Unite.

The Sunday Times abandoned its application for judicial review of decision requiring it to disclose emails relating to Chris Huhne MP to the police which was due to be heard in the Administrative Court. There was a report of this in the Guardian.

Events

25 -29 January 2012. Centre for Investigative Journalism annual film week. Series of investigative films, followed by a Q&A session with the filmmakers. On Saturday 28 January, after the screening of The Whistleblower, there will be a networking party with opportunity to talk to the filmmakers and other journalists. City University London.

7 February 2012, The Media Society ‘The Phone Hacking Scandal: Journalism at the crossroads“

8 February 2012, UCL/Bindmans Annual Debate ‘Freedom of the Press versus Privacy Rights: Time for Parliament to draw the line?

29 February 2012, 9am-2pm. ‘Justice Wide Open’. Half-day seminar on legal knowledge in a digital age, with speakers including Geoffrey Robertson QC, Hugh Tomlinson QC, Heather Brooke, Mike Dodd and Adam Wagner. Free to attend, but participants must register here. City University London.

Media Law in Other Jurisdictions

On Wednesday 18 January websites in the US and other parts of the world – including Wikipedia – took part in a blackout in opposition to forthcoming US legislation, known as PIPA (The PROTECT IP Act) and SOPA (The Stop Online Piracy Act). The Berkman Center for Internet & Society has a useful round up of related commentary here.

A court in Illinois has ruled that the US-based technology blog, TechnoBuffalo, does not qualifiy for state shield law and must disclose its source’s identity. “The decision against the consumer electronics blog TechnoBuffalo comes just one month after a federal district court in Oregon made a similar ruling regarding a Montana blogger, finding that she did not qualify as a journalist under Oregon’s reporter’s shield law” reports RCFP.

In Canada, the Quebec Court of Appeal has upheld a defamation judgment that awarded over Can$250,000 damages to a school teacher. Parents Hagop Artinian and Kathryn Rosenstein were found to have defamed their son’s former teacher Mary Kanavaros in 2010, for comments made to the media. The Montreal Gazette has a report here.

In July 2011, the editor of newspaper El Universo and three executives received prison sentences and were ordered to pay $40 million for defaming the president of Ecuador Rafael Corre, as reported here by the Committee to Protect Journalists. Now, the case is due for appeal and CPJ has published another commentary, which argues “the ramifications are enormous for free expression in Ecuador: The verdict, if upheld by the high court, could bankrupt the newspaper, put its managers in jail, and send a chill quashing dissent for years to come“.

Next week in the courts

On Monday 23 January 2012 Mr Justice Tugendhat (sitting without a jury) will hear the first libel trial of the year, Rothschild v Associated Newspapers. The trial is listed for 5 days. There was an interim judgment on 21 December 2011 which explains the issues and the background to the case ([2011] EWHC 3462 (QB)).

On Tuesday 24 January 2012 HHJ Parkes QC will hear applications in the cases of Singh v Singh (a 10 day judge alone trial is listed for later this term) and Carroll v Milne.

Next week in Parliament

Monday 23 January 2012, 2.15pm: Joint Committee on Privacy and Injunctions. Witness(es): Sly Bailey, chief executive, Trinity Mirror, Marcus Partington, group legal director, Trinity Mirror Richard Wallace, editor, Daily Mirror (at 2:15); Martin Clarke, Publisher, Mail Online Edward Roussel, Digital Editor, Telegraph Media Group Philip Webster, editor, Times Online (at 3:15pm). Location: The Boothroyd Room, Portcullis House.

Next week at Leveson

Monday 23 January, 10:00 – 16:30: John Battle (ITN) Jim Gray (C4 News) Lord Patten (BBC) Mark Thompson (BBC). To be taken as read – BBC: Greg Dyke, Nicholas Eldred
Robert Peston, Nicholas Robinson, Richard Watson. ITN: Tom Bradby, Maggie Carver, Gary Gibbon, John Hardie, David Mannion. SKY: Matthew Hibbert.

Tuesday 23 January, 10:00 – 16:30: Inayat Bunglawala (Engage), Fiona Fox (Science Media Centre), Heather Harvey (Eaves Housing for Women), Jonathan Heawood (PEN), Anna Van Heeswijk (Object), Jacqui Hunt (Equality Now), John Kampfner (Index on Censorship), Marai Larasi (End Violence against Women), Gary O’Shea (News International), Ryan Parry (Trinity Mirror) and Stephen Waring (News International).

Wednesday 24 January, 10:00 – 13:00: David Allen Green (Jack of Kent)
Mazher Mahmood (tbc). 2pm: Directions Hearing for Module 2.

Thursday 25 January, 10:00 – 16:30: Richard Allan (Facebook) David-John Collins (Google), Christopher Graham (ICO), Jonathan Grun (PA), Daphne Keller (Google), Camilla Wright (Popbitch).

Judgments

The following reserved judgments after public hearings remain outstanding:

WXY v Gewanter, heard 11-15, 18-19 July 2011 (Slade J)

Flood v Times Newspapers, heard 17 and 18 October 2011 (Supreme Court)

Cambridge v Makin, heard 3 November 2011 (Hughes, Black and Tomlinson LJJ)

McGrath v Dawkins and another, heard 10 and 11 November 2011 (HHJ Moloney QC).

Levy v. Coomber heard 9 and 16 November 2011 (HHJ Moloney QC).

Phillips v NGN, heard 28 and 29 November 2011 (Judge LCJ, Neuberger MR, Kay V-P)

El-Naschie v Macmillan, heard 11, 14, 16 to 18, 21, 22, 25, 28-30 November, 1 -2 December 2011 (Sharp J)

Hunt v Times Newspapers, heard 19 December 2011 (Eady J)

Lord Ballyedmond & anr v Trimble, heard 18 January 2012 (Tugendhat J)

Woodrow v Johansson, heard 19 January 2012 (HHJ Parkes QC)

Also on Inforrm last week

• US Media Law in 2012 – the year ahead. Gervase de Wilde looks at what the year might hold for privacy, data protection, and freedom of expression.
• A Leveson question for Paul Dacre. Professor George Brock has a query about the Daily Mail’s reporting of Sir Fred Goodwin’s anonymised injunction.
• Terrorist suspect BBC interview can be shown, rules High Court. Karwan Eskerie reports on the recent case of R (on the application of the BBC) v Secretary of State for Justice ([2011] EWHC 13 (Admin)).
• Opinion: “Leveson: reasons to be wary of press promises”. Brian Cathcart suggests that “however much we might wish to believe the editors, and indeed however sincere they may be, we would be foolish to trust them.”

This week’s Round Up 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.

The media law landscape in 2012 is completely different from that which we contemplated at the date of our launch.  At the start of 2010 the issues were all about libel reform and the issue continued to dominate debates for the rest of the year.  In the first half of 2011 we had “Super-Injunction spring”.   Then there was phone hacking.

We had consistently reported phone hacking developments since January 2010. This was covered in our weekly round ups and some specific posts (see for example, Henry Fox’s February 2010 post “Case Law: Gray and Coogan v News Group and Mulcaire, phone hacking disclosure order“). The situation changed dramatically after the Milly Dowler phone hacking revelations – on 5 July 2011 (the subsequent debate about “deletions” has sometimes obscured the admitted fact of hacking of the missing schoolgirl’s voicemails).

The Hacked Off campaign was launched on 8 July 2011 – and demonstrated itself the most successful campaign in political history as the inquiry was announced by the Prime Minister the same day.   The “News of the World” had its last issue the next Sunday.  The following week the appointment of Lord Justice Leveson was announced.  This story – and in particular the evidence to the Inquiry – has dominated the media and law news (and the blog) ever since.  We have rounded up the evidence given to the Inquiry in Weeks 1 and 2,  Weeks 3 and 4,  Week 5, Week 6 and Week 7.

The number of libel cases continues to decline (see our post on defamation trials in 2011) and there have been no media privacy injunctions since the Leveson Inquiry began its work.  The hottest topic for 2012 seems likely to be “media regulation”.  We had a series of posts by Hugh Tomlinson QC dealing with the various options “Media Regulation: A Radical New Proposal, Part 1, Part 2 and Part 3” – along with contributions from, among others, “adjudication advocate” Alastair Brett (see “A sabre-toothed PCC for complaints and libel actions” and  “No presents this Christmas for the Press!”).

We would like to thank all our readers and contributors over the past 2 years.   Our intention continues to be to serve as a “forum” for debating issues and we would encourage readers to offer contributions on any issue concerning media responsibility, media law and the other topics which we have been writing about. Contact us at inforrmeditorial@gmail.com

Our top ten posts of the past two years were as follows:

Harassment and injunctions: Cheryl Cole – Natalie Peck

Case Law: ETK v News Group Newspapers “Privacy Injunctions and Children” – Edward Craven

“The cases of Vanessa Perroncel and John Terry – a curious legal affair” – Dominic Crossley

The MP and the “Super-Injunction” – rumour, myth and distortion (again)

News: Hemming MP’s “super injunction victim” named as sex abuse fabricator

Wayne Rooney’s Private Life and the Public Interest [Updated]

Anonymity, “Take That” and Reporting Privacy Injunctions

Opinion: “Supreme Court of Canada Recognizes Limited Right to Access Government Documents” Paul Schabas and Ryder Gilliland

US Freedom of Expression and Media Law Roundup 7 July 2010

Privacy law: the super-injunction is dead

Monday 16 January 2012, when Trinity Mirror employees took to the stand, began as Robert Jay QC, counsel to the inquiry, read out a letter sent by Reed Smith LLP on behalf of the Rt Hon. Gordon Brown MP.  The letter responded to evidence given on Monday 9 January 2012 when Kelvin Mackenzie, former editor of the Sun, said the then prime minister had called Rupert Murdoch and “roared at [him] for 20 minutes” during the Labour Party conference in 2009. Murdoch allegedly told McKenzie that Brown had said: “You are trying to destroy me and my party. I will destroy you and your company”.  The letter said

“This story is completely untrue. It is important that it does not become accepted as a fact…Mr Brown has a clear recollection of the calls he had with Mr Murdoch when he was prime minister. He had no such conversation with Mr Murdoch at any time during the conference. The account is not an accurate reflection of events. Mr MacKenzie’s hearsay statement was not tested as to its credibility or reliability in the Inquiry, yet the press reported it and that evidence substantially as fact.”

Leveson LJ said Mr Brown had “been right” to send the letter, as he is not a core participant and unable to ‘make comment to provide balance during the course of the Inquiry”.

The morning hearing began with evidence from Richard Wallace, editor of the Daily Mirror. He told the inquiry that the paper’s defamatory coverage of Chris Jefferies, following the murder of his tenant Joanna Yeates, was a “black mark” on his editing record. The Mirror was one of eight papers to pay damages to Jefferies last year, and was also fined £50,000 for contempt of court over the coverage. The paper is currently appealing the decision. Wallace added: “I think Mr Jefferies’ name will be imprinted on my brain forever more”.

He said an off-the-record police source had told the paper they were sure they had “got their man” when Jefferies was arrested. He said information was “at the front and centre of my thoughts” when making editorial decisions at the time, and had “greatly coloured” his judgement.

He answered questions on the evidence given by actress Sienna Miller last year, He said it was a mistake to use a single source for a story which misleadingly portrayed her as being drunk a charity event. Wallace said he could not recall the source of a story revealing a relationship between Ulrika Johnson and Sven Goran Erikson. He added that there “might well have been phone-hacking at the Mirror, although not to his knowledge. (The second witness statement of Richard Wallace can be found here).

The editor of the Sunday Mirror, Tina Weaver, rebutted claims made by the BBC’s Newsnight programme in 2011 that hacking took place at her paper. She discussed a story on the private life of footballer Rio Ferdinand published in the Sunday Mirror last year. She discussed a case brought against the paper by Rio Ferdinand for misuse of private information ([2011] EWHC 2454 (QB)), which the footballer lost on the grounds of public interest. She added that a “series of injunctions rained down on us like confetti about a year ago” and the public interest and what interests the public often overlap. (The second witness statement of Tina Weaver can be found here).

Andrew Penman, the Mirror’s investigations editor, was questioned on prior notification. He told the inquiry that compulsory notification could alert “crooks and fraudsters” to his journalistic work.

The afternoon hearing featured the editor of the People, Lloyd Embley. He told the inquiry that he saw two to five sets of pictures a week that are not published “simply on the grounds of intrusion”. He as said he had turned down pictures of the Duchess of Cambridge n after palace sources expressed concern that she was being stalked by the press. He was asked about a 2011 story claiming Charlotte Church had proposed to a boyfriend in a karaoke bar. The People published an apology in the paper in November 2011. The singer is currently seeking damages for defamation. (The second witness statement of Lloyd Embley can be found here).

Sly Bailey, CEO of Trinity Mirror said there had not been a detailed investigation into phone-hacking at TMG as there was “no evidence” to suggest it had taken place in the company and had taken a “forward-thinking approach”.  She was questioned over the Chris Atkins documentary Starsuckers, which showed the filmmaker offering celebrity stories he had fabricated to newspapers, and replied she “took comfort” from the fact her journalists had not paid for or published the information.  Bailey told Leveson LJ that she agreed with the “three pillar” model of regulation emerging from the inquiry, referring to elements of compliance, standards and arbitration.

Written statement from Vincent Moss (political editor, Sunday Mirror), Kevin O’Sullivan (TV critic, Sunday Mirror) Vijay Vaghela (group finance director, Trinity Mirror) and Paul Vickers (group legal director, Trinity Mirror) were taken as read.

On Tuesday 17 January 2011, the morning hearing began with Ian Hislop, editor of Private Eye. He told the inquiry he does not believe in a regulated press and said papers should obey the law and be accountable to the public.

He admitted it was “embarrassing” that Richard Desmond’s publications were the only other papers not in the PCC and said he would “reconsider” joining regulation if it were significantly changed. He said Private Eye published “two pages a week attacking individuals and newspapers” and he would not expect to get a “fair hearing” from fellow editors. He made it clear Private Eye worked in line with the PCC code, and the principles and ethics of journalism should be “self evident”.  Hislop said press coverage of the inquiry had been selective, and journalists had not reported “critical” information about their publications.

Tom Mockridge, chief executive of News International, told Leveson LJ that state intervention “diminishes a free press” and did not accept a distinction between direct regulation and independent regulation. He described self-regulation in New Zealand and Australia as effective, adding many international journalists are “jealous” of the competition and choice of media within the UK.

He said: “Everything might not be perfect, but if we look at the great array of the newspaper stories published in this country in last decade there’s only a minute fraction that are of interest to this inquiry”. (The second witness statement of Tom Mockridge can be found here).

Rupert Pennant-Rea, chairman of Times Newspapers Limited, called the Times and Sunday Times coverage of the phone-hacking scandal “comprehensive, objective and fearless” and said a board of trustees could form an effective part of regulation.

Susan Panuccio, finance director at News International, took to the stand briefly. She said a “couple” of payments made by her titles had been the in range of £30,000 to £40,000, but there had been a general reduction in cash payments since summer 2011.

James Harding, editor of the Times, said he was he was uncomfortable with the idea of statutory regulation having a “chilling effect” on press freedom. He said a statutory backdrop for independent regulation would either be “meaningless” or equivocal to state regulation.

The Times published a leader article on the inquiry on Tuesday morning. The piece said the paper was an “an implacable opponent of government oversight — direct or indirect — of the press”.

The editor said he wished the Times had reported the hacking of Milly Dowler’s phone sooner, but he wanted to “get to grips” with the story before publishing any material. He said the Murdochs “never raised a finger” to stop stories being printed but admitted: “The reality is that both the police and News International poured cold water on the story”.

The afternoon hearing began with evidence from John Witherow, editor of the Sunday Times. He cited a report by Reporters Without Borders, which showed 21 of the top 25 countries with a free press were self-regulated, and offered “tougher” self-regulation as an option. Witherow said he was concerned about an unregulated media “based offshore” circumventing regulation.  Witherow was asked about blagging at the Sunday Times, and admitted a party working on behalf of the paper had impersonated Gordon Brown on the phone to obtain information his mortgage. He said the story had been in the public interest.

The inquiry turned its attention to the Guardian, and heard evidence from Guardian readers’ editor Chris Elliott.  He said the Guardian received 26,700 emailed complaints and queries in 2011, and three to four corrections and clarifications are printed in the paper six days a week. He said the corrections and “Open door” column demonstrated a “culture of discussing journalism and what goes wrong” at the paper.

Last to the stand was Guardian editor Alan Rusbridger. He told the inquiry he could not think of an example under his editorship where the paper had set out to expose someone’s private life. His witness statement said:

“It is a matter of fact that the Guardian and The Observer carry little by way of celebrity ’private life’ journalism beyond interviews where celebrities may choose to disclose private material about themselves or coverage of what is already publicly known”.

Rusbridger said the use of subterfuge “was a serious matter” that would only be justified in exceptional cases. He was asked about his decision to resign from the PCC code committee and said its investigation into phone hacking was “worse than a whitewash”. He added: “The blunt truth of our industry is we’ve been under-regulated and over-legislated”. (The supplementary statement of Alan Rusbridger can be found here).

Written statements from Pia Sarma (editorial legal director, Times Newspapers Limited), Andrew Miller (chief executive officer, Guardian Media Group), Darren Singer (chief financial officer, Guaridian Media Group), James Robinson (former media correspondent, Guardian), Gillian Phillips (editorial legal director, Guardian News and Media), John Mulholland (editor, Observer), Dame Elizabeth Forgan (chair, Scott Trust) and Phil Boardman (company secretary, Guardian Media Group) were taken as read.

On Wednesday 18 January 2011 the inquiry heard from magazine editors for the first time. The morning hearing began with Lucie Cave, editor of Heat, Rosie Nixon, co-editor of Hello! and Lisa Byrne, editor of OK!, giving evidence.

The three editors were jointly questioned. They surprisingly agreed that private lives were not “open season” even if a celebrity has previously agreed to be in a magazine. Nixon went further, and told the inquiry she would not publish information about a celebrity if they claimed it was untrue and “trusting relationships” were key to the running of her magazine.

Cave was asked about a PCC complaint made by Katie Price after Heat published a sticker set including a picture of her son with a caption attached, which she claimed mocked his disability. Cave was not editor at the time but said: “Everyone is mortified by that incident”.

Byrne was asked by inquiry counsel about an apology offered to Sienna Miller by OK!, over interviews with the actress claiming to be “exclusive” but in fact taken from other sources.

On corrections, Cave said Heat had only received eight complaints in 14 years. Byrne revealed that OK! only had a “handful” of readers’ complaints and published approximately two apologies a year. Nixon said she was not aware any complaints under her editorship.

Leveson LJ suggested that a register of celebrities could be an option, ensuring the privacy of publicity-shy figures. Byrne said it could be overused while Nixon said it could be “useful for future reference”.

The inquiry then heard from four regional and nations editors. John McLellan, editor of the Scotsman, Spencer Feeney, editor of the South Wales Evening Post, Jonathan Russell, editor of the Glasgow Herald and Mike Gilson, editor of the Belfast Telegraph.

When asked about corrections, Russell said there was a “vast difference” between factual inaccuracies and stories people “don’t like”. Gilson said that the practice of “same place, same prominence” was disproportionate. Feeney said all corrections at South Wales Evening Post went on page three, but he had printed a front-page apology on one occasion. McLellan said: “I think we have to accept that the greatest transgressions have to be rectified in a suitable and proportionate manner”.

He also told the inquiry: “For us to limit who we can and can’t talk to would be counter to everything we are about”, when asked about relationships with politicians.

He also wanted a “guarantee” that Scotland would have a voice in new regulation, and was in favour of a single body to make sure Scottish papers would not have to deal with two sets of rules in the future. Feeney said regulation should apply to all publications in the same way to make sure the regional press was not seen as a “second division”. He said local press was in a “fragile financial state” and said the PCC should not be replaced with something “vastly more expensive”.

The afternoon hearing saw Maria McGeoghan, editor of the Manchester Evening News, Peter Charlton, editor of the Yorkshire Post, Nigel Pickover, editor of the Ipswich Evening Star and Noel Doran, editor of the Irish News, take to the stand.

Charlton told the inquiry “honesty fairness and balance are the principles which guide the majority of regional papers”. Doran added: “No one has come to me and said they have ethically a problem with a story we were undertaking”. McGeoghan said the Manchester Evening News insisted on “treating people with courtesy and decency”. Pickover told the inquiry that all journalists at the Evening Star carried a pocket-sized copy of the PCC code.

The editors gave examples specific to their newspapers. Pickover told the inquiry about tabloid interest in the 2006 Ipswich serial killings. He said national newspapers and television crews arrived in “great numbers” and were “desperate to beat each other to the latest angles”. Doran said the Irish News had been sued over restaurant review and ordered to pay damages of £25,000. The case was later appealed and overturned but the paper was left with extensive legal fees.

Charlton described the “annoyance and shock” felt in the regional press following the phone-hacking revelations. Doran said it was “clearly a problem for the image and the reputation of journalism”.

McGeoghan added: “I think there has been a backlash. I’ve lost count now of the number of times I’ve been asked how you hack a phone or what the going rate for paying off a policeman is and it’s not funny anymore”.

The editors praised the Press Complaints Commission in dealing with regional press. McGeoghan called the body “very effective”, Pickover said the PCC needed to “beef things up” but that any change “shouldn’t throw out the good things” and Doran called it an “exemplary body”.

All eight regional editors said they had not come across phone hacking at their publications. Doran told the inquiry he had heard about hacking on “anecdotal basis” in Belfast, but not at his paper.

Written statements from Peter McCall (company secretary, The Scotsman Publications), Paul Connolly (group managing editor, Independent News & Media NI) and Tim Blott (regional managing director, Herald & Times) were taken as read.

There was no hearing at the Leveson Inquiry on Thursday 19 January 2012 but the ethics of the press were still fresh in everyone’s minds as several high profile phone hacking cases against News International were settled in the High Court.  The 18 claimants received more that £645,000 altogether, not including payments to footballer Ashley Cole, Christopher Shipman, son of Harold Shipman, and former MP Claire Ward which were kept private. The actor Jude Law, one of the claimants, released a statement after the hearing. He received £130,000 damages plus legal costs.

The damages awarded went to Ciara Parkes, former PR representative to Law and Sienna Miller (£35,000), Ben Jackson, assistant to Law (£40,000), Sadie Frost, previously married to Law (£50,000), lawyer Graham Shear (£25,000), Lord Prescott (£40,000), rugby player Gavin Henson (£40,000), Guy Pelly, a friend of Prince William (£40,000), Chris Bryant MP (£30,000), HJK, an anonymous individual who appeared before the Leveson Inquiry last year (£60,000 damages), Steve Coogan’s former partner Lisa Gower (£30,000), Prescott’s former assistant Joan Hammell, (£40,000), Denis MacShane MP (£32,500), writer Tom Rowland (£25,000), and journalist Joan Smith (£27,500).

On Friday 20 January 2011, Associated Newspapers were refused an application to prevent journalists giving anonymous evidence to the Leveson Inquiry. The judgment was handed down by Lord Justice Toulson ([2012] EWHC 57 (Admin)).  Toulson LJ said Leveson LJ would scrutinise carefully what witnesses say about personal and professional circumstances when considering individual applications for anonymity, and not hearing such evidence would leave the chairman “open to the criticism of not having heard the full story”.  There was an Inforrm case comment published yesterday. Legal representatives for Associated Newspapers, publishers of the Daily Mail, were not present as the judgment was handed down. Cathryn McGahey, acting for the inquiry, asked for a limited time of appeal on the ruling.

This round up was compiled for Inforrm by Natalie Peck, web reporter for Hacked Off and PhD researcher examining privacy law and public figures. She is @nataliepeck on Twitter.

Background

At a preliminary hearing on 26 October 2011 the Chairman said that a number of people had expressed an interest in providing evidence to the Inquiry but only under conditions of anonymity.  Submissions were heard on the issue an on 9 November the Chairman handed down a four page document headed “Ruling on Anonymous Witnesses” [pdf]  The Inquiry subsequently circulated draft Protocol on anonymity applications.  Following further submissions on behalf of Associated Newspapers, the Chairman gave a further Ruling on Anonymous Evidence [pdf] and circulated a finalised Protocol regarding Applications for Anonymity [pdf].  It should be noted that, under paragraph 9 of the Protocol

“Where any person gives anonymous evidence about a particular media company, or title, except for the News of the World, then the Inquiry will usually expect that the identity of the company or title will be redacted and will not be referred to in evidence“.

Lord Justice Toulson (with whom Sweeney and Sharp JJ agreed) summarised the effect of the Chairman’s rulings on anonymity as follows:

“He has made a positive decision in principle to receive anonymous evidence from journalists who wish to conceal their identity because of fear of career blight, but that is a general ruling. When he comes to deal with individual applications for anonymity, he will scrutinise carefully what the witness says about his personal and professional circumstances and how far he thinks that the evidence will advance the purposes of the Inquiry“. [32]

Associated Newspapers contended that allowing employees or former employees of press organisations to give evidence against those organisations anonymously would be unfair and so would contravene the principles of natural justice.  In addition, it was contended there was a lack of openness and a breach of Convention rights [33] to [34].

It was argued that the Chairman had failed to give any or adequate attention to the reputational or “class libel” risk to the claimant and other newspaper organisations. It was said that career blight could not be a sufficient reason for exposing the media organisations to the risk of anonymous class libel [38].

Judgment

Lord Justice Toulson said that the starting point for considering the Chairman’s duty of fairness was the purpose of the Inquiry. It is also important to understand in outline the situation which gave rise to the ruling [41].  Journalists had approached the Inquiry wishing to give evidence anonymously.

The Chairman had to address the issue of how he should respond in general to such requests.  It was held that this issue gave rise to the following questions [44]:

 1.   Was there a credible basis for thinking that there were witnesses who had relevant evidence to give but who would not do so unless they had a prospect of anonymity because of real fear of career blight?

 2.  If so, was it likely to be better for the purposes of the Inquiry, i.e. in the public interest, to admit such evidence (subject to relevance), with its obvious and unavoidable limitations, than not to have it?

 3.  If so, would its admission be likely to cause such prejudice to the claimant, and other newspaper organisations, that it would be unfair to admit it notwithstanding the detrimental effect from the viewpoint of the purposes of the Inquiry and from the viewpoint of other interested parties?”

Question 1 was a question of fact and Question 2 involved an evaluation of what would be best in the interests of the Inquiry.   On those questions Associated Newspapers had to show that the Chairman’s answers were Wednesbury unreasonable.   They could not do so.  He was plainly entitled to reach the conclusions he did ([49] and [50]).

As to Question 3, it was for the court to decide whether it would be unjust, “but in doing so the court must recognise that the Chairman is in a far better position to assess and balance the degree of prejudice which may be caused to different parties” [47]

It was accepted that there was a risk of prejudice to Associated Newspapers and other newspaper organisations.  However,

“it is of the greatest importance that the Inquiry should be, and seen by the public to be, as thorough and balanced as is practically possible. If the Chairman is prohibited from admitting the evidence of journalists wanting to give evidence anonymously, there will be a gap in the Inquiry’s work, although the material (or similar material) is already in a real sense in the public domain” [53].

The Judge went on to point out that the Inquiry is not the same as criminal or disciplinary proceeding.  More generally,

“In determining where fairness lies in a public inquiry, there is always a balance to be struck. I am not persuaded that there is in principle something wrong in allowing a witness to give evidence anonymously through fear of career blight, rather than fear of something worse. Fear for a person’s future livelihood can be a powerful gag”. [55]

He recognised that the ruling might cause damage to newspaper proprietors but

“It is also important to recognise that the evidence in question will be part of a much wider tapestry and that it is open to the claimant and others to present balancing non-anonymous evidence” [56].

Comment

The decision of the Administrative Court is unsurprising.  Decisions of this kind are matters for “case management” by the Inquiry Chairman after balancing all the interests involved and are extremely difficult to challenge.  More generally, there is a strong argument that without anonymity, journalists whose livelihoods depend on newspaper companies would be unwilling to speak freely.

A number of commentators have questioned the motivation of newspapers complaining about anonymous evidence. In his post “The Daily Mail, Leveson and Anonymous Witnesses: Fourt kinds of Hypocrisy” Brian Cathcart suggested

“The Mail complaining about anonymity is like a pornographer complaining about decency. It should be laughed out of court. But it is worse than that, because it is also intimidation. Who can doubt that the Mail’s real motivation here is to deter people who fear the paper’s huge power to destroy reputations from telling Leveson what they know?”

Whatever Associated Newspapers’ motivation, it is plain the press does not always show a high degree of concern about fairness and reputational damage resulting uncheckable anonymous allegations in their own stories.   It is to be hoped that the same degree of sensitivity will be shown, in future, to those who are the subject matter of press attention.

Associated Newspapers were not happy with the result and indicated that they were considering an appeal.  In a statement they said that

‘It is our view that the decision of the Leveson Inquiry to admit anonymous evidence is unfair to all newspapers as it allows unsubstantiated allegations to be made without it being clear which papers they refer to and without it being possible for such allegations to be challenged or investigated.

‘While we welcome the fact that the Divisional Court acknowledges that anonymous evidence gives rise to a risk of prejudice to newspaper organisations, we are disappointed by the decision and are considering an appeal.’

Not only did the Times seek to expose the blogger, they even went to the High Court to defend an attempt by the blogger to protect his anonymity. In a detailed witness statement of 56 paragraphs and with 56 pages of exhibits, the journalist purported to show how by using considerable investigative skill and amazing detective work he was able to use minute details over several blogposts to piece together the identity of the blogger. Anyone reading this remarkable witness statement gets a sense that the journalist not only deserved his scoop, he also probably deserved a Pulitzer.

This witness statement (which I possess, but will not publish as it contains personal information about the blogger and his family) was impressive enough to change the course of the court case. As the case report states clearly at paragraph 3:

“It was asserted in the Claimant’s skeleton [argument - the summary of the claim] for the hearing of 28 May that his identity had been disclosed to The Times in breach of confidence. By the time the matter came before me, on the other hand, Mr Tomlinson [the blogger's barrister] was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster, the relevant journalist, was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the Internet“.

The concession by the blogger’s barrister was in my view determinative of the case. If there was no breach of confidence — or no wrongful act of any kind in obtaining the information — then there was really no inherent privacy which the blogger to assert. There was no need therefore for the judge Sir David Eady to see whether the interference with the privacy right was proportionate or lawful; there was no privacy right to begin with. And, as Eady said, blogging is essentially a public activity.

However, witness statements and exhibits do not come about easily. There is considerable input by lawyers. The decision to fight the case would also not have been made by the journalist in question, but by his senior managers. High Court litigation is uncertain and expensive. The decision to fight the case would not have been made lightly. And key to the advice given to senior managers and the decision they made would have been that witness statement. It would have been their decision to put this evidence before a High Court judge, and not that of the journalist.

The decision looked like it paid off. They won, and the Times duly ran the exclusive. Times columnists assured us ponderously that something rather splendid had been done in the public interest. And, in the meantime, the blogger pulled his blog and faced disciplinary action from his employer. The loss of the blog was particularly unfortunate, as it robbed the public of a brilliant insight into the daily lives of police officers written by perhaps the best writer the blogging medium has ever produced.

In my view, there was always something not quite right about what the Times did. The explanation offered smacked to me of being retrospectively compiled and reverse engineered, as if someone had solved a maze by starting at the centre and then worked outwards. I do not know if this was or was not the case. Soon it was clear that these doubts were shared. Just as “everyone” in Fleet Street knew that there was something not quite right about Johann Hari’s journalism or the tabloids’ use of mobile telephony, it was widely held that something about the exposure of NightJack did not stack up.

But even when it became known that the journalist in question had been disciplined as an undergraduate for hacking into his university computer network (but was still hired by News International anyway), that could not take anything away from the evidence sworn and put before the High Court. The managers and lawyers at Times Newspapers Limited has confidently assured the High Court that their young reporter had single-handedly pulled a journalistic feat comparable to what took over a hundred commenters at Jack of Kent to do for “David Rose”.

And so nothing happened, until last week.

Lord Justice Leveson’s inquiry team sent out questionnaires to all the newspapers. One of the standard questions was about computer hacking. This clearly caused a bit of an issue for the Times. Over four witness statements the Times admitted the following facts: that there had been a computer hacking incident in 2009 by a male reporter; the computer hacking was in the form of unauthorised access to an email account; a disciplinary process had been commenced after concerns from the newsroom; the reporter admitted the unauthorised access during that disciplinary process; it was held that there was no public interest in the attempted hacking; the incident was held to be “professional misconduct” and the reporter was disciplined; and the reporter is no longer with the business having been dismissed on an unrelated matter.

What was most striking about all this was the date: 2009. Was it possible that the computer hacking was in respect of the exposure of NightJack? This would be a serious matter, for not only would it raise issues under the Computer Misuse Act, it may be that there had been perjury in the case at the High Court. Had computer hacking been admitted to the court then there would have been little doubt that it would have affected the outcome of the case.

So a careful process was commenced. I blogged here yesterday putting together what the witness statements told us whist Paul Waugh at Politics Home made connections between the new evidence and the NightJack case, about which he had previously written. Tom Watson MP, the blogger Old Holborn, and others, asked questions on Twitter. But what was missing was a firm connection: there was no direct link between the new evidence and the NightJack case. It may not have been the same journalist, and it may not have had anything to do with a published story. I sent an email query to the Times (it remains unanswered).

And then, last night, the Guardian stated that the 2009 incident was in respect of NightJack. So, instead of answering a formal email request or properly disclosing it to the Leveson inquiry, a “source” leaked it to David Leigh of the Guardian. This was an odd move, not least because the journalist in question now writes regularly for the Guardian on media matters. (Yes, that irony is indeed correct: the Guardian uses a media correspondent with a record of computer hacking.)

One cannot be certain that the Guardian is correct without further evidence or an open admission. But if it is right, then this opens up some extremely serious questions for the Times. At some point in 2009 the internal managers and lawyers at the Times became aware that the High Court had proceeded on a flawed basis in dealing with the NightJack injunction. This information may have come out before the court hearing or afterwards. They would also have become aware that a major exclusive had been based at least in part on computer hacking. If the Guardian revelation is sound, then it would appear that the Times needs to explain who knew what and when, and why nothing has been done about it until Lord Justice Leveson’s questionnaire.

In all this, one should not blame the journalist too much (and you may notice he has not been named in this post other than in the quotation from the case report). He did what one suspects many young and ambitious journalists would do if they could get away with it. The real failure here would appear to be — as with Hari at the Independent — one made by managers at the Times, and perhaps those who advise them. If the Times did throw its financial and legal might behind a story which they knew to be based on computer hacking and did not inform the court — or found out later, and still told no one about it — then that, in my view, would be a scandal perhaps comparable to the tabloids’ abuse of phone hacking.

David Allen Green is legal correspondent of the New Statesman and writer of the Jack of Kent blog

This post originally appeared on David Allen Green’s “New Statesman” blog and is reproduced with permission and thanks

[Update]  On 19 January 2012, after the revelations in the “Guardian” and this post by David Allen Green, the “Times” published a report under the headline “The Times and the Nightjack Case” in which it stated “The Times published a report exposing the identity of an anonymous police blogger after a journalist at the newspaper had hacked into his e-mail account”.

Following this admission, David Allen Green has a post on the “New Statesman” blog entitled “Why the hacking of NightJack matters“.  He concludes

“Overall, the hacking of NightJack matters not only because it tells us something about dark journalistic practices but that such practices are rarely willingly or openly acknowledged when they occur, even at flagship titles like the Times. Computer hacking was used, a person’s privacy was invaded, a court was not told, but the Times published anyway“.

We commend the whole post to our readers.