The new legal term, Michaelmas, starts today and runs until 21 December 2016. We will have a preview of the term’s media law cases later in the week. In this post we will round up some of the media and law developments over the past two months.
There has been one trial over the summer, that of the former News of the World journalist Mazher Mahmood, the “Fake Sheikh”. He is accused alongside his driver Alan Smith of conspiring to pervert the course of justice by tampering with evidence ahead of the trial of X Factor judge and singer Tulisa Contostavlos. His defence told the court at the Old Bailey that during a pre-trial hearing for the case, Mahmood was “steamrolled” into giving answers under cross examination. The prosecutor pointed out that “His [Mahmood’s] Tulisa operation must have been one of the first for his new employers, if not the first. He would have wanted to make his mark and bring in a big story.” A police officer said he was “surprised” at being told Tulisa Contostavlos had made anti-drugs comments during a Sun newspaper sting. The trial continues with the verdict expected this week.
There have been two high profile newspaper “stings” over the summer. The first was by the Sunday Mirror and involved the Home Affairs Select Committee Chairman, Keith Vaz MP. We had a post about the public interest considerations in this case.
There was also the Daily Telegraph’s sting on the then England football manager, Sam Allardyce. We had a post by John Jewell describing it as “the latest chapter in a new era of investigative reporting”. Brian Cathcart filleted Fraser Nelson’s self-congratulatory piece about the story in the Telegraph.
The summer also gave us “Traingate” – where Virgin Rail released footage of Jeremy Corbyn on a train to suggest that he had given an inaccurate account of the availability of seats. The ICO are investigating. We had a post about this and there was a discussion on the Hawktalk blog.
In September the Surrey police produced the “Operation Baronet Report” [pdf] – dealing with their actions in response to the illegal interception of Milly Dowler’s voicemails. It revealed that at least five officer knew that the News of the World hacked Milly Dowler’s voicemails in 2002. The report concluded that “a decision in 2002 to divert resources from the hunt for Milly to an investigation of NOTW would have been difficult to justify at that time.” But also said that “the failure to investigate remains a matter of deep regret to Surrey Police; primarily because it has added to the pain and anguish felt by the Dowler family”. Dominic Ponsford in Press Gazette said that “if Surrey Police had acted on knowledge of phone-hacking at the News of the World in 2002, the paper would probably still be in print today.”
There was news of a number libel actions. First, it was announced that [pdf] Gumail Singh Mahli, the President of London’s largest Sikh Gurdwara, has recovered £160,000 damages and costs from a Punjabi newspaper, Des Pardes Weekly which alleged he was a child abuser and paedophile. Second, it was reported that an Indian restaurant in Lancashire is to sue over a false claim on Facebook that a mouse had been found in one of its vegetable curries.
Finally, One Brick Court notes that on 8 September 2016, a right to be forgotten claim against Google UK was struck out in the case of Bonham-Smith v Google UK Ltd on the familiar ground that it does not operate the Google search engine.
Roy Greenslade has a piece entitled “Why Facebook is public enemy number one for newspapers and journalism” arguing that by luring away readers and advertisers, Facebook is narrowing the news agenda and, ultimately, jeopardising journalism as we know it
Data Protection and Data Privacy
The Panopticon Blog has a piece commenting the decision in Dr DB v General Medical Council  EWHC 2331 (QB), entitled “Witness the Fitness (to Practise): Mixed Personal Data and Section 7 DPA”.
Lorna Woods has a post on the Information Law & Policy Centre website arguing that there is a gap in the oversight regime in relation to Data Retention and the Automated Number Plate Recognition (ANPR) System.
The Datonomy Blog has a post about a decision of the Information Rights Tribunal upholding an ICO penalty imposed on TalkTalk Telecom Group Plc for its delay in issuing personal breach notifications.
Surveillance and Information Gathering
Paul Bernal’s blog has a post entitled “A better debate on surveillance?” – summarising a new paper in which he argues that the debate over surveillance is miscast in a number of ways and that, in particular, surveillance impacts on a wide range of “civil liberties”.
Newspapers Journalism and Regulation
On 23 August 2016, the Press Recognition Panel deferred its decision on the application for recognition by IMPRESS as a result of objections made by the News Media Association and Associated Newspapers. Roy Greenslade had a post about this decision. Hacked Off complained that the press industry was trying to intimidate the PRP.
IMPRESS now has 40 member publications with a combined readership of 2 million. It has been consulting on a new draft standards code for the press [pdf]. The Transparency Project has published its response to this consultation.
A forthcoming book entitled “Is Print Dying … and how to avoid it” edited by Ray Snoddy, Richard Tait, Neil Fowler and John Mair. Roy Greenslade has a blog based on his chapter in the book.
The SubScribe blog has an analysis entitled “The Press and immigration: reporting the news or fanning the flames of hatred?” This is commended by Roy Greenslade who describes it as a terrific analysis but asks “what is to be done?”
The non-Leveson compliant press self-regulator, IPSO, it now two years old. Its chair, Sir Alan Moses, wrongly claimed that it had forced 18 front page corrections. This claim was rebutted by the campaigning group Hacked Off which has published a new pamphlet about IPSO entitled “No More Excuses” [pdf].
The Daily Telegraph has had the highest number of complaints upheld by IPSO over the past two years (9), with the Times and Daily Express next equal (7). There was a report on this in the Press Gazette.
Recent IPSO complaints decisions include
- Muslim Council of Britain v MailOnline, Clause 1 complaint not upheld.
- HRH The Duchess of Cambridge and HRH Prince George of Cambridge v OK!, Clause 2 complaint upheld. There was a report in the Press Gazette.
- InFacts v Daily Express. Clause 1 complaint not upheld. There was a report in the Press Gazette.
- Various Complaints v Daily Star, Clauses 1 and 9 complaint not upheld. There was a report in the Press Gazette.
Last week in the Courts
On 28 September 2016, Whipple J continued an injunction in the case of Middleton v Persons Unknown  EWHC 2354 (QB). There was a 5RB case report and a discussion of the case on the RightsInfo site. There was also a report in the Press Gazette
On 30 September 2016, Lewison LJ dismissed an application for a stay of execution in the case of David v Hosaney.
12 October 2016, 6.30pm to 8.00pm “The Right to be Forgotten – should it be a right and does it work?” The City University.
Media Law in Other Jurisdictions
Two recent defamation decisions provide important insights into the attitudes that Courts will adopt when required to make decisions regarding the costs consequences of a defendant who enjoys partial success at trial and an offer of settlement made prior to trial.
The Grand Bahama Human Rights Association (GBRHA) has pledged to aid the legal team of attorney Maria Daxon to ‘end criminal libel’ in the Bahamas.
An Ontario court has recently awarded a plaintiff Can$9,000 in damages for breach of privacy after the defendant disclosed the fact that the plaintiff had admitted herself to a mental health facility.
Former former NBC News war correspondent Arthur Kent, who unsuccessfully ran for office in Canada in 2008, and won his libel lawsuit against the Canadian newspaper company Postmedia in June, has spoken to iMedia ethics about why he spent eight years fighting the lawsuit.
Bill Whacott, a nurse and Christian activist, is being sued by gay rights activist Christopher Hudspeth and former Liberal Deputy Premier George Smitherman for mental distress on behalf of Toronto’s entire gay community and for libel against various Liberal leaders including Prime Minister Justin Trudeau, after Whacott handed out leaflets at Toronto’s Pride.
A law student from Denmark is being sued by his lecturer after he made a private complaint about the quality of teaching.
The Supreme Court has agreed to examine whether companies can file criminal defamation cases against individuals alleging loss of reputation.
Irish investigative journalist Gemma O’Doherty has launched a defamation action against her former employer, Independent News & Media (INM), after the Sunday Independent carried claims that she had been misleading and selective in how she edited a documentary about a missing child.
Gordon Coulton, a hotelier who sued the Sunday World after they described him as a “Scrooge” after his hotel went into administration, has been awarded £50,000 in damages.
The Caribbean Court of Justice (CCJ) has ruled that damages for defamation claims must reflect the law, practice and traditions of the state in which the injury occurred, after a defamation case in concerning an article and two caricatures published in the Kaieteur News in 2000.
Jamaican banker Donovan Crawford has filed a $230m defamation against Harvard and two other Universities over reports which formed part of two studies conducted by two of the institutions, and which were publicised by all three.
The Star editor has said that massive libel awards need to be reviewed after the High Court awarded Justice Alnasir Visram Sh26 million in a libel suit against the Standard. An article in the Standard also said
“Recent decisions on defamation suits against the media and the huge awards bring to question what should be the proper balance between media freedom and protection of individual’s reputation in a constitutional democracy.”
Journalist John H.T. Stewart has requested has requested that the Civil Law Court in Monrovia deny every count contained in the US$275,000 libel suit filed against him in July by the Chairman of the Elections Commission (NEC), Jerome Korkoya.
The Committee to Protect Journalists (CPJ) said that Maldivian President Abdulla Yameen Abdul Gayoom should veto a criminal defamation law the parliament passed yesterday, as it “threatens to stifle criticism and investigative reporting.” However, the President went on to ratify the bill passed by Parliament, despite widespread public outcry.
The government has told journalists that the first reading of new legislation leading towards the revision of criminal libel law will take place on October 10.
Former Conservative Party leader Colin Craig was found by a jury to have defamed Taxpayers’ Union executive director Jordan Williams, the defamation award was $1.27 million.
A report has been published summarising the recommendations to the Department of Finance on reform of defamation laws in Northern Ireland.
The former publishers of the News of the World have failed in their attempt to overturn the £200,000 defamation victory secured by the Scottish politician Tommy Sheridan a decade ago. The paper’s owner, News Group, wanted the verdict “struck down” following Mr Sheridan’s conviction in 2010 for perjury and subsequent imprisonment.
The father of Ahmed Mohamed, the Muslim teenager arrested in Texas last year when he brought a homemade clock to school, has launched a defamation lawsuit against several conservative media figures and organisations.
Courtney Love’s attempts to dismiss a defamation lawsuit were thwarted when a judge ruled that she was less popular than Marlon Brando and her case lacked First Amendment implications.
A lawyer for Melania Trump said that he had informed several news organisations, including The Daily Mail, that they could face legal action for publishing articles that Ms. Trump contended were defamatory. The “false and tremendously damaging” rumours about her that were published by these organisations, included a claim she was a sex worker in the 1990s. Melanie Trump has instructed Harbottle and Lewis in legal proceedings against the Daily Mail.
A defamation case currently before the Supreme Court could potentially be used as the vehicle to, in the words of Donald Trump, “[O]pen up our libel laws.”
The California Supreme Court agreed to review Yelp’s objection to a decision ordering it to strip the Internet of comments posted about a San Francisco law firm.
In an article in ProPublica Richard Tofel argues that “Trump is more hostile to the legal and constitutional rights of the press than any major presidential candidate of the last two centuries.”
Next Week in the Courts
On 4 and 5 October 2016, there is an application in the case of Bode v Mundell,
On 5 October 2016, there will be an application in the case of Lokhova v Longmuir
There is an application in the case of HCN v Chelsea & Westminster NHS Trust on 6 October 2016
The following reserved judgments in media law cases are outstanding:
CG v Facebook Ireland Limited, heard 4 and 5 April 2016 (Morgan LCJ, Gillen and Weatherup LJJ)(Northern Ireland Court of Appeal).
Begg v BBC, heard 27 to 30 June, 1 July 2016 (Haddon-Cave J)
This week’s round up was compiled by Georgia Tomlinson who is a researcher.