Law and Media Round Up – 22 February 2016 [Updated]

22 02 2016

Weekly-Roundup1This week former royal butler Paul Burrell has won a high court privacy action against PR agent Max Clifford ([2016] EWHC 294 (Ch)). Mr Burrell said he hired Mr Clifford to prevent negative press coverage but that Mr Clifford betrayed” him by passing on material to Rebekah Brooks at the News of the World.

Deputy High Court Judge, Richard Spearman QC, rejecting Mr Clifford’s evidence, finding in Mr Burrell’s favour.  However, he awarded him damages of only £5,000. The judgment provides an interesting analysis of the twists and turns of the Clifford/Burrell relationship and is worth reading in full.

Political commentary in the national media over the next 4 months is going to be dominated by Brexit.  Most national newspapers have already made up their minds.  There will now be a 4 month press campaign in which, as Roy Greenslade argues,publishers and editors clearly see themselves as playing a major part”. He says that the Eurosceptic papers “use any opportunity to carry anti-EU headlines” and will attempt to hammer home the Brexit message for the rest of the campaign.

The admirable fact checker Full Fact is fact checking the EU Referendum and has recruited legal experts from leading universities to assess whether the changes brought about by Cameron’s deal are significant and whether it will stick. Their opinions can be read here.

The conviction of Condé Nast Publications Limited for contempt of court has highlighted issues which need to be noted by journalists, argues HoldTheFrontPage.

Data Protection and Data Privacy

France is expected to adopt several provisions of the General Data Protection Regulation (GDPR) before it comes into full force in 2018. The Fieldfisher blog outlines the provisions here.

Surveillance and Information Gathering

Drones can and should be allowed to be used for newsgathering, journalism and media production, according to Dr David Goldberg of the Information Law and Policy Centre. Scare stories about 2016 being the “year of the drone” are overblown, he argues.

The report of the Joint Committee on the Draft Investigatory Powers Bill has made an important distinction between Internet Connection Records and itemised phone bills. Paul Bernal argues, however, that the government will continue to blur this distinction. Cybereagle’s Graham Smith gives his reaction to the report here.

Apple has released a letter showing that it has been ordered by the FBI to make a new version of the operating system, circumventing important security features. The issue revolves around an iPhone recovered during the investigation of the San Bernardino massacre. A debate is playing out about whether Apple should comply with or resist the FBI’s demands.

Google, WhatsApp, Facebook and Twitter have all come out in support of Apple’s stance. Google chief executive Sundar Pichai called the FBI’s request a “troubling precedent”, and said: “Forcing companies to enable hacking could compromise users’ privacy.”

The Department of Justice and the Obama administration have joined with the FBI. They argue that the request does not require Apple to create a “backdoor” to every iPhone, and that Apple will be allowed to keep possession and destroy the software created to hack into the San Bernardino shooter’s phone after it has been used. A Court Order has described Apple’s refusal to comply as a “marketing strategy”.

Privacy International points out that if the Investigatory Powers was to become a law, a telecommunications company receiving a similar order would be under gagging order and unable to release a letter like the one Apple has. Some commentators have suggested that that If Apple loses the case, authoritarian governments including China and Russia may well demand greater access to mobile data.

The case highlights the struggles Chief Information Officers (CIOs) face in balancing between individual privacy and law enforcement’s requests for information, says the Wall Street Journal.  The outcome of Apple’s case has ramifications on how sensitive data will be secured across all IT systems, hardware and software, including the secure use of public cloud services.

Statements in Open Court and Apologies

There were no statements in open court this week.

Newspapers Journalism and Regulation

The Express Newspapers have been judged the least happy place to work on Fleet Street by a Press Gazette survey. Asked to rate their place of work out of ten, the Express and Daily Star newspapers awarded an average score of five. Associated Newspapers – the publisher of the Daily Mail and Mail on Sunday – appears to be one of the best places to work, rated 7.1 out of ten.

Asked what their concerns about their place of work were, one Daily Express reporter said: “Relentless cost-cutting driving down morale and journalistic standards. Kow-towing to editorial influences. Degradation of news values. Utter devaluation of the role of a journalist with integrity and skill.”

In circulation news, The Daily Mirror appears to be losing ground against The Daily Star after the latter’s price cut. The Mirror, which costs 60p during the week, fell 12.3 per cent year on year. The 20p Daily Star rose 10.6 per cent. The Mirror’s parent company Trinity Mirror’s is planning to launch a new cut price daily newspaper.

Meanwhile Mail Online is achieving a new record average daily unique browser figures. 14.8m unique browsers visited the Mail website on the average day last month – up 12 per cent on December. Of these, 30 % were recorded in the UK.

The Telegraph Media Group  made a profit of £51m last year, according to accounts leaked to the Guardian, this was £4m down on the previous year. According to the source who leaked the accounts, the profits were achieved through firm control on costs, including on newsprint and distribution.

The Sun, despite its pro monarchy stance, has criticised Prince William for his reluctance to take part in public engagements and for his anti media stance. It accused the Prince of controlling images of his children through the “Palace spin machine”, a claim that has been echoed elsewhere.

It was a miracle that The Independent survived as long as it did, argues former Independent on Sunday Editor Peter Wilby. Furthermore, it is difficult to see how it will turn its mediocre website into a successful digital brand.

In March 2014, during the phone hacking trial of Andy Coulson, Rebekah Brooks and others, GQ magazine published an article headlined “The Court Without A King”. The trial Judge described the article as “prima facie contempt”, and nearly 100,000 copies of the magazine were withdrawn.

Last week in the Courts

There was an unsuccessful application to set aside judgment in Barron MP & Anor v Vines, heard by Sir David Eady on 16 February 2016.  Inforrm had a post on the decision.

On 17 February 2016, Dingemans J dealt with costs issues in the case of Lokhova v Longmuir. The defendant was awarded 60% of its overall costs, with two specific reductions. No costs were awarded for the adjourned hearing date, as both parties were to blame for the failure to cooperate leading up to the adjournment. Further, only two-thirds of the costs for the skeleton arguments were awarded, as their length had exceeded the guidelines.  The judge suggested that there should be a Practice Direction on costs in libel proceedings, with costs budgets being exchanged at an early stage.

As already mentioned, on 19 February 2016, judgment was handed down in the case of Burrell v Clifford [2016] EWHC 294 (Ch).

On the same day Sir David Eady handed down judgment in Wasserman v Freilich. He struck out a defence which contended that “dishonesty” was an opinion and ordered indemnity costs. [Update]  The judgment has now been added on Bailii [2016] EWHC 312 (QB).

Events

2 March 2016, 11 KBW Information Law Conference 2016, Royal College of Surgeons, 35-43 Lincoln’s Inn Fields, London WC2A 3PE

2 March 2016 Oxford Media Convention, Said Business School, University of Oxford, Park End Street, Oxford OX1 1 HP.

8 March 2016 Seminar on Surveillance and Human Rights, Senate House, Information Law & Policy Centre.

16 March 2016 Seminar: Openness in Britain 2016 – Where are we now?, Institute of Advanced Legal Studies, Information Law & Policy Centre.

Please let us know if there are any events you would like to be included on this list by email: inforrmeditorial@gmail.com.

Media Law in Other Jurisdictions

Antigua & Barbuda

The country’s Defamation Act of 2015 is being positioned to serve as a model for the rest of the English-speaking Caribbean. The changes introduced by the Act include abolishing criminal libel and getting rid of the distinction between slander and libel.

Australia

Sports scientist Stephen Dank has come under fire after telling a Sydney court that he instructed an NRL player who later died of cancer that injecting peptides was safe. Dank is currently suing Nationwide News, publisher of Sydney tabloid The Daily Telegraph, over a 2013 front-page article which questioned whether NRL player Jon Mannah’s death from Hodgkin’s lymphoma was accelerated by the use of peptides.

The players were assured by Dank that the supplements were “completely legal’ a witness has testified. Dank has confirmed that he offered Mannah peptides but denied contributing to his death, saying he “consulted with oncologists” about the effects. He has also testified that Mannah refused to take part in the peptide programme.

In other Australian news, a defamation claim against journalist Sharri Markson by an MP aims to test when criticism of Israel can be equated with antisemitism, according to a solicitor running the case.

Cambodia

Ung Huot, former Prime Minister of Cambodia, has won his defamation case. Huot, who is now Chairman of MEC Co. Ltd sued Chin Meng you for defaming the company and Huot himself. The court ordered Meng to pay 20 million riel in compensation as well as 2 million riel to the state.

Ghana

Nii Kpakpo Samoa-Addo, the lawyer of a High Court judge, is suing for defamation. He is accusing a publication of implying he was an incompetent and unethical lawyer by suggesting he was being reprimanded for misconduct.

Malaysia

Former Malaysian leader Mahathir Mohamad is under investigation for defaming Mohamad Apandi Ali, the attorney-general. In his blog he criticised Ali for failing to bring corruption charges against the Prime Minister and accused him of having “no credibility”.

Northern Ireland

Jonny Depp has resolved a defamation case out of court. He was set to take action in Belfast after false allegations were made about his spending levels. The outcome involved an apology being issued by the Belfast Telegraph about unfounded allegations relating to “grossly exaggerated expenditure”, he said.

India

The Hoot covers recent events related to Indian press freedom, arguing that recent events show India’s democracy to be deteriorating.

South Africa

A South African high court has ruled that a civil litigant’s Facebook messages, which were obtained by the hacking of his account, were nevertheless admissible as evidence in a case against him.

United States

District court judge Russell Vaclaw has declared constitutional the 2014 state law designed to protect citizens from retaliatory lawsuits for challenging public officials.  The Judge issued the decision by dismissing the defamation lawsuit brought by a former District Attorney against five citizens for sponsoring a petition for a local grand jury investigation of her conduct in office.

New York Times writer Eric Lichtblau did not defame a New Jersey attorney by implying that his father was a Nazi war criminal, a federal judge has ruled. The dispute arose out of the publishing of “The Nazis Next Door: How America Became a Safe Haven for Hitler’s Men,” in which Lichtblau explores former Nazis immigrated to the US after World War II.

Research and Resources

 Next Week in the Courts

On 22 February 2016, Ouseley J will hear an application  in the case of Ibru v News Group Newspapers.

On 23 February 2016 there will be an assessment of damages in the UKIP libel cases of Barron v Vines, which will be heard by Sir Michael Tugendhat, Sitting as a High Court Judge.

Judgments

The following reserved judgment in a media law cases is outstanding:

Monks v National Westminster Bank plc heard 28 and 29 January 2016 (Sir David Eady).

This Round Up was compiled by Tessa Evans, a journalist and researcher. She tweets@tessadevans


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