Law and Media Round Up 27 June 2010

27 06 2010

In this regular feature we draw attention to the last week’s law and media news and next week’s upcoming events. If readers have any news or events which they would like to draw attention to please add them by way of comments on this post. We are particularly interested in forthcoming events.

News

The libel event of the week was the last minute settlement of the case of Fiddes v Channel Four on Monday 21 June 2010. We had a post on this later that day. Outside court Julian Bellamy of Channel 4 said he was “completely delighted” that the company was not paying Fiddes any damages, his legal costs – which are estimated at £1.3 million – or issuing any apologies”.

The claimant’s advisers presented things slightly differently. MLaw partner Chris Hutchings said:

“Our claimant dropped these proceedings because Channel 4 accepts that he didn’t betray the Jackson family by selling stories.  He has never ever wanted money out of the case, all he has ever wanted was to prove he didn’t sell stories.”

The press originally reported the case as a Channel 4 “victory”.  For example, the Press Gazette initially reported the case under the headline “C4 left £1.7m out of pocket despite libel win”.   Later in the day, that was amended to “C4 left £1.7m out of pocket after Michael Jackson libel case dropped”.  In short, the case appears to have been disposed of on the basis of a “drop hands” deal.  The Guardian highlighted Channel 4’s description of the action as a “spurious libel action

The claimant’s solicitors and counsel were reported to be on Conditional Fee Agreements.  On the basis of the figures mentioned in the media reports they will now have to write off £1.5 million – which will require a lot of success fees to make up.  According to the John Heath Insurers blog that Channel 4’s professional indemnity insurers supported its defence of the case. In other words, the losers in this case are lawyers and insurance companies.

Solicitor Mark Lewis has issued libel proceedings against Baroness Buscombe, the PCC and the Metropolitan Police over statements which they made concerning his evidence to the House of Commons Culture, Media and Sport Committee.  The claim is discussed on Roy Greenslade’s blog and by the Press Gazette.  There is a post about the case by Jack of Kent entitled “The Stunning Mark Lewis Libel Claim” which includes the full Particulars of Claim.  It is interesting to note that the PCC wrote to the Committee to correct the record saying that

Your report says that the Chairman of the PCC issued a statement in November 2009 which may have suggested that Gordon Taylor’s lawyer, Mr Lewis, misled the Committee. This is not the case, as the PCC made publicly clear at the time. Baroness Buscombe has never suggested – and does not believe – that Mr Lewis misled the Select Committee and her statement, which made no reference to Mr Lewis, was not intended as a criticism of him or the evidence which he gave to the Select Committee. Baroness Buscombe regrets that her statement may have been misunderstood and that this has been of concern to Mr Lewis. Baroness Buscombe and the Commission therefore wish to make the position entirely clear.

There appears to be something of a backlash against Lord Lester’s Defamation Bill.  Writing in the Guardian Siobhan Butterworth argues that the bill “should be more radical”  Her concern is that the bill has much to offer the media defendant, but could give traditional media privileges over bloggers and NGOs.  Roy Greenslade joins in the criticism on his blog and in an article in his London Evening Standard column, under the heading “Will these libel reforms help press freedom?”  He sums up his argument as follows:

“while I applaud what Lester has done and is trying to do, I wonder whether — even if he were to see the bulk of his Bill enacted — it will change matters enough to make a difference to press freedom. In this instance, I genuinely hope I am wrong and he is right”

Both Ms Butterworth and Mr Greenslade repeat the criticism of Lord Lester’s Bill that it fails to “reverse” the burden of proof.   As part of the Inforrm contribution to this debate we have suggested that the arguments for this proposal are not compelling.

It is reported that the following libel actions have been commenced:

In the Courts

On 23 and 24 June 2010, the Court of Appeal (Ward, Thomas and Richards LJJ) heard the defendants’ appeal against the decision of Tugendhat J in Clift v Slough BC ([2009] EWHC 1150 (QB)).  The Respondent’s Appeal Skeleton is here.  At the conclusion of the hearing it was announced that judgment would be reserved until October.

Judgment in British Broadcasting Corporation -v- Sugar was given on 23 June 2010.  The appeal was dismissed.  It was held that irrespective of whether the information is held for multiple purposes, provided that one of the purposes included a genuine journalistic purpose, the information was exempt from the application of the duties embodied in FOIA. There is a post about the case on the Panopticon blog.

Judgment in Khader v Aziz, was given on 23 June 2010.  The appeal was dismissed.  The Court, in passing, made some trenchant observations about the length of the appellant’s Skeleton Argument.  The President of the Queen’s Bench Division said

“There are, in my judgment, two warnings to be sounded in relation to the still increasing tendency to overburden the court and other parties with skeleton arguments which are not skeleton, and with volumes of unnecessary documents and authorities. First, judges should be more prepared than they perhaps have been in the past to use the powers available to them to disallow the cost of the preparation and use of excessive written material, whatever the outcome of the case. Second, practitioners should be well aware that the court will not for ever tolerate the time and cost of both excessive written submission and oral argument of commensurate length. The court should not habitually tolerate both and clients should not be expected to pay for both. Speaking for myself, I greatly value properly constructed and concise oral submissions. But the time might soon arrive when I should regard it as my public duty to curtail oral submissions severely, if I have already been served up with written submissions which contain in detail everything which is reasonably capable of being said in support of the parties’ contentions. If practitioners want to kill oral advocacy, the preparation and presentation to the court of excessively long written submissions (under the guise of skeleton arguments) is the way to go about it. They should not set about killing oral advocacy unintentionally.

We understand that the claimant has decided not to appeal against Mr Justice Tugendhat’s controversial and pathbreaking decision in Thornton v Telegraph Media Group (the subject of a post here).

From the Blogs

Dr Eoin O’Dell has an article in the Irish Times has an article on the topic “Defamation Actions which can chill or stifle scientific debate?”, taking up the familiar themes from the Simon Singh and Peter Wilmshurst cases.  The theme is taken up in a post on his Cearta.ie blog.  The post includes a video of a “Libel Chill” event held on 27 May 2010.

Charlie Beckett’s has an interesting blog post about the Chris Huhne tabloid exposé, “Twitter, India Knight and Chris Huhne: the end of discretion?”

Media Law in Other Jurisdictions

The SCC’s most recent decision, Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, is discussed on the “The Court” blog.  It is suggested that

“The most worrisome aspect of the decision is the minimization of the open court principle to the detriment of civil society. Civil society groups such as the media and academic community rely on access to information rights in order to provide commentary for public consumption. If a mere police investigation report can be analogized to high level government matters that should be protected by exemptions to disclosure, then there is latitude for other government agencies to shield their reports in a similar matter”.

An article in the “First Amendment Law Review” by French academic Regis Bismuth entitled “Standards of Conduct for Journalists under Europe’s First Amendment” (First Amendment Law Review, Vol. 8, No. 2, pp. 283-314, 2010) sets out to provide a comprehensive analysis of the Article 10 case law relating to journalists.  The article is available from SSRN.

There is an interesting Strasbourg “Statement of Facts and Issues” in a United Kingdom media law case, JS v United Kingdom (16 June 2010).  The case is from Northern Ireland and concerns the disclosure to the media of information about the prosecution of a child.   The first question is

“Was there an inference with the applicant’s right to respect for his private life as guaranteed by Article 8 of the Convention arising from either (i) the provision of apparently confidential information to the media and the publication of that information in the Belfast Telegraph on 20 October 2008 and the News Letter on 21 October 2008 or (ii) the information provided to the media by the Public Prosecution Service and Northern Ireland Office?”

The Statement goes on to ask whether, if there was such an interference, it was justified under Article 8(2).

US Law and Media News

Once again, this will be the subject of a separate post.

Events

On Thursday 1 July 2010 at 7.30pm at Goldman Sachs 20 Fleet Street, EC4A 2QQ there is an event organised by Young Norwood Lawyers, with the title “I’m a Celebrity, Get me some privacy“.  Speakers include occasional Inforrm guest blogger Amber Melville-Brown, William McCormick QC, Mark Moody, Lorraine Tighe and Joshua Rozenberg.

Next Week in the Courts

Judgment will be given in the case of Fiddes v Channel Four, on Tuesday 29 June 2010. The appeal was heard 10 June 2010 by the Master of the Rolls, Maurice Kay and Sedley LJJ and was the subject of a post on this blog.

Reserved Judgments

The following reserved judgments in media and related cases remain outstanding:

Imerman v Tchenguiz (and linked appeals), heard 10 to 11 May 2010 (Master of the Rolls, Moses and Munby LJJ)

Flood v Times Newspapers Limited, heard 25 and 26 May 2010 (Master of the Rolls and Moore-Bick and Moses LJJ)

Ambrosiadou v Coward, heard 21 and 22 June 2010 (Eady J)

Clift v Slough BC heard 23 and 24 June 2010 (Ward, Thomas and Richards LJJ).


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