It’s day one in what should prove to be a lively libel battle between two purveyors of celebrity diets.
French diet and diet book bestseller, Jean-Michel Cohen is being sued by Dr Pierre Dukan, who’s Dukan Diet has seemingly attracted a phalanx of celebrity calorie counters from Jennifer Lopez through to the Duchess of Cambridge (formerly Kate Middleton) and sister.
Their battle centres around various claims made by Cohen that upset Dukan and comments made by Cohen in an interview with a French magazine that suggested the only persons to benefit from Dukan’s diet would be those prescribing it, peddling it or making the pills.
Dukan took exception to this and is demanding EUR15,000 in libel damages (libel being a far tamer affair in France than the UK in terms damage) but with a suggestion there could be millions in lost earnings from diet-related books and other spin-offs.
In spite of their celebrity acclaim, both diets have come in for criticism by nutritionists so there may – as Cohen is vigorously advancing in his defence – be medical and other (he claims this to be ‘unanimous’) support for his views.
More from The Independent
French libel law does not expose defendants to the same level of exposure to huge damages awards and opportunistic libel tourism as English law and the English courts. The law is rooted far more in the European Convention right to freedom of expression and the long established 'droit de la presse' which was enacted back in 1881. Under French law a claimant in a libel has to show that there has been publication in France and that the publication referred to the claimant and had a defamatory meaning. On the defence side there is, as under English law, a public interest or importance element but that is measured alongisde there being a serious investigation of the facts and no trace of personal malice - so the courts look at the truth in the statement and that it was made in good faith. So it will be interesting to see how the current case plays out as there may well be (and arguably is) evidence to substantiate the truth in Cohen's comments but it may come down to whether his commenting on true facts was done in good faith or whether the intent was to get one over a rival purveyor of diets.
Sarah Oliver, writing in the Mail on Sunday, has decided the recent debate over privacy and superinjunctions make for a timely exposee on a gagging order she was forced to sign over a decade ago when dating gagger-in-chief (alongside other gagging supremos such as Hugh Tomlinson QC) Keith Schilling.
Oliver claims she got as far as her second date with Schilling before he slapped a confidentiality agreement on her while serving up a sumptuous supper of cheese on toast. Well while it might have seemed like a bit of a shocker to her at the time, to be fair to Schilling, it makes sense that he would seek to protect his and his clients’ secrecy – would be a bit embarrassing after all for a privacy lawyer to have his privacy exposed.
So Schilling might be on to a good thing here – had his various clients adopted it sooner in their careers – slap a gagging order on your date before they get a chance to tell about any kissing!
From her account, Oliver doesn’t paint a picture of a particularly sentimental Schilling but she should maybe check the gagging order she signed for if it is set out to continue in perpetuity she could find out why he got her to sign it.
Following an application by various newspapers and the BBC, a judge has ruled that the media were allowed to report on “a deprivation of liberty order” issued by Hillingdon Borough Council actually unlawfully deprived a vulnerable person of their liberty.
The Court of Protection which deals with people deemed to be ‘vulnerable’ such a those with various forms of impairment or at risk, is normally a closed affair but has seen its doors slightly open on recent occasions such as in this case where it is alleged that the council had kept an autistic man in care (and unlawfully deprived him of his liberty) through obtaining a court order when, as was claimed, it should in fact have returned him to the care of his father at home.
The judge, Mr Justice Jackson had earlier in the year allowed the media to attend the hearing and to identify the parties concerned. His further ruling means that the media can also, on this occasion, report on the facts.
While this is a step forward and certainly good in terms of allowing for scrutiny of the council’s actions in what is surely a matter of sufficient public interest – when a council may deprive someone of their liberty – it does not unconditionally open the court up and whether and the extent to which the media get to report on other cases will depend on their particular facts and interests involved.
More on the case and facts from PA/Press Gazette
After the partial lifting of the superinjunction over Fred the Shred’s affair last week, the Daily Mail published a piece in which it created a profile of the banker Fred had been bonking. Now that bonking banker (who was identified as a senior executive who had worked alongside Fred the Banker at RBS) has unleashed her (and Fred’s) counsel, Hugh Tomlinson QC to persuade the High Court to petition the Attorney General to launch contempt of court proceedings against the Daily Mail for breaching what was left of the superinjunction.
Mr Justice Tugendhat, who has barely had a chance to leave the bench in the High Court this last week it would seem, heard Tomlinson’s claim that the Daily Mail had sought to deliberately flout the injunction which, although lifted in part – to the extent the fact Fred the Shred had become Fred the Bed could be known – had not been lifted to the extent that it allowed identification of the woman or details of the affair.
Tomlinson sought to persuade Mr Justice Tugendhat that the paper had been deliberate in its actions and included sufficient material (he pointed to some 10 elements of the coverage) to allow the woman to be identified by those who might know who she is.
Jonathan Caplan QC for the Mail responded that there had been no deliberate intention.
Mr Justice Tugendhat has reserved his decision on whether to refer the matter to the Attorney General to bring contempt proceedings.
So what’s the issue?
Well its all down to the extent of the identification and the intent of the paper. As opposed to strict liability contempt under the Contempt of Court Act, for common law contempt to arise, there has to have been intent on the part of the Mail to interfere with the administration of justice – i.e. breach or disregard the injunction.
So Tugendhat will have to assess whether the Mail was intending to disregard what was left of the injunction or whether it was – as it would suggest – merely running a profile piece that did not intend to disrespect the court order…mmm
Mediabeak thinks the paper was probably sailing very close to the wind on this one so Tugendhat might conclude that although there might not be public interest in the profile of Fred’s bonking buddy, there similarly might not be public interest in wasting tax payers money on pursuing the paper for contempt when if miss bonking banker was that exercised over her profile being outed she could always bring a privacy action! – ok so the injunction bit hasn’t worked too well but that does not preclude her from seeking damages for having her privacy invaded. That would seem a more equitable approach – given she was working for RBS and that had to be bailed out by taxpayers money it would be perverse if more taxpayers money had to be spent on legal action relating to her bonking when she should have been banking.
Meanwhile, it does not take too much in the way of resourcing to ascertain the name or names in the frame with at least one website offering a shortlist while others proudly unmask the pixellated face that appeared in the Daily Mail piece.
It was only a question of time before the law's if not the country's worst kept 'secret' was outed and Ryan Giggs was exposed as the anonymous claimant 'CTB' behind another 'super'injunction.
Whether MP John Hemming had been put up to his stunt in Parliament today or whether he did it out of altruism or self interest is broadly irrelevant, the fact is that he was able to drop in Giggs' name under privlege and do so in response to the fact that tens of thousands of people had tweeted the name while a significant number of the public (including as he himself admitted this morning, David Cameron) knew who was that elusive philandering footballer.
So as the media revelled in the fact they could name Giggs (some being braver than others to be first to repeat the name in the context of their Parliamentary reporting), we saw politicians selectively disapproving of Hemming's naming while back at the High Court the injunction itself was upheld.
So is the law in a mess or are judges and the courts merely making the best out of a bad lot of law and an even worse lot of litigants?
Judges have for several years been highlighting the deficiencies of the law they have been asked to apply, specifically with relation to privacy. The higher principles of European law are not adequately translated into domestic law to provide for a workable privacy law in the UK. With the spectre of CFAs and Superinjunctions thrown into the mix the administration of justice and 'balance' required in applying the European laws has become skewed and deep pocketed litigants and cash rich media have respectively abused their positions to the detriment of the true public interest which ultimately is meant to provide the test for the legitimacy of both story and injunction.
The inception of the PCC was in itself a compromise to keep less desirable legistlation at bay and the subsequent revisiting of privacy law by successive Parliaments has seen a fudging or avoidance of the issues. In relation to privacy - and in absence of a set of higher constitutional principles/laws (such as the US First Amendment) - the law and society have not reconciled the increasingly fine dividing line between the truly private in a human rights sense and the conveniently private in a commercial sense. The sliding scale is in essence simple - the more you put yourself and your private life out there the more it becomes commoditised and as such has less recall on privacy laws and should more appropriately be played out in the civil law sphere of breach of contract or confidentiality.
If one looks at the Douglas v Hello case it is clear that the right to publish pictures of a private event had already been sold to OK! - so its perverse to claim privacy in a commericalised event. Similarly in the celebrated case of Campbell v Mirror, the essence of the story, namely that Campbell had been exposed as having a drug dependency problem while having held herself out as not being a drug user, was rightfully exposed by the story that ultimately cost over a £million for the Mirror even though the original privacy award in the High Court had been ca £3,500. So the lawyers got rich on technicalities and process but in deciding to publish the story Piers Morgan had not told any untruths or lied but had merely exposed Campbell's misleading stance on drugs by using a picture that while corroborating the story was deemed to somehow be invasive of privacy because narcotics anonymous was a private setting...Fast forward to the disgruntled Max Mosley, Fred the Bed and Ryan Giggs and what we have are not poor harassed individuals being picked on by the press but successful, well known individuals who have all been engaged in activities that they claim are private but are at odds with the public image they seek to convey of being upstanding morally clean individuals.
We had the pathetic and undignified hash of a news item on BBC's Neswnight tonight with John Prescott lathering up his soapbox against Hemming and the press - who had the affair Prescott? (yes, Prezza is still smarting at his own outing)- while Gavin Esler unusually didn't seem to have a sensible control of his news agenda by launching on Hemming (Newsnight as so many other programmes and front pages would not have their headline without him) and then deviating to the enduring debate over the usefulnees or not of the PCC.
Yes the PCC given its current powers or not is ultimately impotent in pre-publication constraints relating to privacy (it relies on brokering deals which it does increasingly well but it has not censure, power or force which is why if a claimiant wants to secure a gag they go to law). Rather than keep whipping the PCC the government could - as David Cameron has hinted at today - give the PCC some more legal powers to do its work but unless or until this is done then those with money will seek to use legal process to cover their tracks.
What we have is a situation whereby there are fundamental human rights - as expressed through the European Convention - that have not been adeqately translated into or reflected in UK (or English - as we were reminded by the Sunday Herald's front page, Scots law has its own rules and jurisdiction)law. The result has been that those who wish to cover up their dodgy private lives have peversely sought to use privacy laws to keep their behaviours secret. The bigger the secret and the deeper the pocket the more 'super' the injunction.
As has been questioned again today IF Giggs didn't want to hurt or upset his family, the same family he parades about under the guise of being a family man, then the way to ensure that would be NOT to have an affair - it seems ridiculous to blame the media for upsetting the family you have let down and cheated on - the media didn't do the letting down and cheating, it merely reported on this. The question arises as to who (those being reported on or the media itself) and in what context are they accountable to the public - there can be little sympathy for politicians and footballers who draw support and success from the public but then seek to suppress news of their actions that could cause the same public to judge them for those actions.
What privacy law needs to achieve is a balance of when to open and close the door and who ultimately holds the key when it comes to the private lives of those who profit from publicity.
With the discredited superinjunctions collapsing around the courtrooms, the similarly discredited superinjunction user Sir “Fred the Bed” Goodwin (you have to credit The Sun with some top headlines) has had his veil of secrecy lifted to reveal he was trying to cover up the fact he had been bonking a fellow banker -
- Fred is no stranger to seeking superinjunctions for spurious reasons - as Mediabeak previously reported – Goodwin had also tried to injunct the media and others from referring to him as a ‘banker’.
Mr Justice Tugendhat had lifted part of the gag last week but only to the extent that it could be disclosed that Fred had bed a banker but not go as far as naming who she was. This led to a rally of calls for more disclosure on the grounds that Fred’s bedding may have caused him to take his eye of the bank - the Royal Bank of Scotland – as it spectacularly crashed as one of the biggest failures of the banking crisis. In clarifying his order Mr Justice Tugendhat made it clear that while the identity of who Fred bedded and their relationship would remain protected by the injunction, the revised order would not prevent ‘any sort’ of inquiry by a regulatory body such as the Financial Services Authority (FSA) and anyone suggesting so “would be wholly mistaken”.
John (Lord) Prescott (former Deputy PM under Labour) has been granted the right to proceed with his judicial review action regarding the actions of the Metropolitan police in relation to their phone hacking inquiries.
Prescott joins a number of others, including former top cop Brian Paddick, who have been demanding a judicial review of how the police had looked into the News of the World phone hacking claims. A particular grievance being that the police had failed to inform and confirm to victims of phone hacking such as Prescott that their phones had in fact been hacked. According to representations made before the court, police had denied that Prescott (along with Brian Paddick, MP Chris Bryant and journalist Brendan Montague), had been the subject of the Glen Mulcaire’s murky investigations even though they had evidence to show he had them on his list of ‘projects’ to pursue.
Delivering his reserved judgment in the High Court today, Mr Justice Foskett overturned a previous decision by Mr Justice Mitting who had ruled that the legal challenge was ‘unarguable’. Foskett was persuaded that Prescott, Paddick and Bryant had an ‘arguable case’ (he was ‘not truly persuaded’ that Montague’s claim fell into that category but was allowing it nevertheless) that in not disclosing what they knew, the police had breached their human rights to privacy. He was not persuaded by James Lewis QC who had argued for the police that judicial review should be refused on the grounds that the phone hacking inquiry had been reopened.
Mediabeak would not be persuaded by this either as the fact that the actions or inactions of police in the earlier inquiry are not cured or mitigated by the mere fact that the inquiry has now been reopened. As acknowledged by Mr Justice Foskett it is the new evidence that has come to light as a result of the reopened investigations that supports the claims by Prescott and others that their rights had been infringed by the failure of police to inform them about the fact they’d been hacked.
More from Sky News and Vanity Fair
In other hack attack news
As the Guardian reports, someone familiar with the dark arts allegedly practiced by some newsrooms, investigative journalist Dennis Rice, has joined the waiting list of those lodging claims against the NoW. Rice claims that the NoW had Glenn Mulcaire add him to the list of those being intercepted in a hope he could sneak leads and scoops he was filing during the 2006 World Cup. It is alleged that the NoW was trying to further hack its way into rival tabloid’s news lists to pinch stories. As the Guardian points out, if this gets an airing in court it could see the gloves come off between the various papers over which ones have been trying to steal scoops.
Meanwhile, Jude Law is set to follow Sienna Miller into court and possibly beat her £100k damages award after his counsel, Hugh Tomlinson QC (who is being kept very busy with his client list these past weeks!) claimed that it was a very senior executive at NoW who had sanctioned the hacking of Law (something which the NoW vigorously deny). Comments made by Mr Justice Vos in the High Court suggest that when it comes to exemplary damages, if a story that’s related to hacking makes a paper big bucks or has been given the nod by someone very senior then the bigger the buck and/or the more senior the nod, the higher the damages are likely to be.
It’s time for a serious shake-up of the UK’s ageing IP laws such as the 1988 Copyright, Designs and Patents Act or 1994 Trade Mark Act to bring the law in the UK into line with today’s digital era and keep the economy competitive by promoting innovation.
The publication of Digital Opportunity follows a six-month independent review of IP and Growth, led by Professor Ian Hargreaves. He was tasked to consider how the national and international IP system can best work to promote innovation and growth.
The review puts forward 10 recommendations that include:
> the UK should have a "Digital Copyright Exchange": a digital market place where licences in copyright content can be readily bought and sold, a sort of online copyright shop;
> the Government should legislate to permit access to orphan works, where the owner cannot be traced. For example some copyrighted works remain locked away because their authors either aren’t known or can’t be traced to give permission for use. In the worst cases, where one owner cannot be located - just one out of hundreds contained in a film or TV programme - they can effectively hold the interests of others to ransom as it becomes a criminal offence to exploit that work commercially.
> updating what it is lawful to copy. This includes copying for private purposes (such as shifting music from a laptop to an mp3 player) and copying which does not conflict with the core aims of copyright – for example, digital copying of medical and other journals for computerised analysis in research. For example an academic working on malaria cannot draw on previous research through data mining because they cannot get permission to copy the datasets they need to mine;
> Limits to copyright. Government should firmly resist over-regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators. Government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving. The UK should also promote at EU level an exception to support text and data analytics. The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies. This would be designed to allow uses enabled by technology of works in ways which do not directly trade on the underlying creative and expressive purpose of the work. The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract;
> the Government’s IP policy decisions need to be more closely based on economic evidence and should pay more attention to the impact on non-rights holders and consumers;
> changes to the Intellectual Property Office’s (IPO) powers to enable it to help the IP framework adapt to future economic and technological change.
Launching his report today Professor Hargreaves said:
"In recent years, the UK has failed to make the changes needed to modernise copyright law, for which we will pay an increasing economic price as we make our way into the third decade of the commercial internet. My recommendations set out how the IP framework can promote innovation and economic growth in the UK economy...
"The recommendations of the review are designed to enhance the economic potential of the UK's creative industries and to ensure that the emergence of high technology businesses, especially smaller businesses, in other sectors is not impeded by our IP laws."
The report suggests that overhauling the IP and copyright laws could translate into a boost to the economy by as much as £7.9bn
And as predicted (by Mediabeak and others) after Sienna Miller’s payout last week, the floodgates have opened up early this week and quick to get in there was Ulrika Jonsson who has unleashed Charlotte Harris from law firm Mischon de Reya to go after the News of the World for her slice of compensation. Harris will be busy as she’s also reported to be lining up a similar privacy action for James Hewitt (whose name first entered the frame for being romantically linked to Princess Diana.
Meanwhile actor Hugh Grant has seemingly not yet decided to pursue a claim after police showed him evidence of him having been potentially hacked. That aside Grant had his say (or rant) in a BBC interview where he backed superinjunctions and the fact people’s personal peccadilloes should be allowed to be protected – he would know of course – Grant is still smarting at the press some 15+ years on from having been caught with his pants in a compromising position with a Los Angeles hooker.
He is also no fan of the Press Complaints Commission which he said was ‘toothless’ and the ‘laughing stock of the world’ – the PCC was swift to hit back and point out Grant had not used their services since 1996 (why would he if he thought they were useless).
High Grant’s tirade against the tabloid press was repeated on BBC’s Five Live radio programme debate on the future of journalism and attracted a response from the now ‘TV’s Piers Morgan’ who was previously editor of The Mirror – it wasn’t too far into the programme when Mediabeak, following Morgan on Twitter, read Morgan’s post:
“Hugh Grant is now banned, in perpetuity, from @PiersTonight and Life Stories. And anything else I ever do. Tedious little man.”
Does Mr Justice Eady’s ruling that so upset Imogen Thomas (The Sun kept a distance and silent) spell an end to the Kiss’n’Tell and what does it tell us about the new privacy law?
His judgment is a salient reminder that the raft of cases and superinjunctions and football shagging (gagging) orders seen of late are not there to serve the interests of philandering sports stars or others seeking to protect their misdemeanours, nor are they there to feed media frenzy or unduly restict freedom of expression, they are - or as Mediabeak would qualify - have come about as a result of the application of legal principles that do not provide absolutes but instead provide principles that are engaged and become part of a balancing act depending on the individual circumstances of a case. In short, those who have kissed run the risk of the telling, those who have not kissed attract more protection agains fabricated tellings.
In having upheld the claimaint – CTB’s right to privacy and allowed it to trump the competing free speech rights of, on the one part Imogen Thomas and on the other The Sun (and by application other media), Eady was clearly not convinced by the public interest merits of CTB being exposed by what would be the resulting headlines.
His judgment went beyond the mere facts and provides a useful statement of the new privacy law as perceived by the judiciary and as it is therefore being applied. A clear message being delivered is that if the public and politicians don’t like the law then don’t snipe at the judges or judgments and sort out the legislation (something politicians in successive governments have been at pains to dodge doing).
SO WHAT IS THE NEW PRIVACY LAW?
The starting point lies in the European Convention of Human Rights which creates the conflict between the competing rights of privacy and those of free speech.
Article 8 ECHR provides:
(1)Everyone has the right to respect for his private and family life, his home and his correspondence.
(2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10 ECHR provides:
(1)Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2)The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary
What ECHR means:
PRIVACY – there is a right to privacy and that right shall not be interfered with by a public authority – the law does not specify that the right shall not be interfered with by the media – and where a public authority does seek to interfere with the right to privacy it can only do so ‘in accordance with the law’ AND to the extent such interference is ‘necessary’ (for the reasons set out in Art.8)
FREEDOM OF EXPRESSION – there is a right to freedom of expression that includes being able to receive as well as impart information (as the media does) – and that right shall not be interfered with by a public authority (which is as in this case usually a judge/the courts). Art.10 however qualifies the right saying that its exercise is still subject to ‘restrictions or penalties as are prescribed by law’ – in other words if the exercise of the free expression damages someone else’s right e.g. privacy or defamation or contempt of court – the person exercising their right in a damaging way will still be subject to and caught by legal penalties. However the exercise/enforcement of such legal penalties have – under Art.10(2) – to be shown to be ‘necessary’.
The UK Human Rights Act 1998
This came into force in 2000 and provides that public authorities must not act in a manner that is incompatible with ECHR rights – in other words, public authorities e.g. the courts have to take into account ECHR when ruling on matters – such as whether to grant or extend a privacy injunction.
The application of the law (through cases) in the UK
Mr Justice Eady pointed to the string of cases reaching back to the widely publicised battle between supermodel Naomi Campbell and The Mirror over pictures and a story about her drug taking, the case of Re S (concerning a child in care proceedings) that set out the ‘new methdology’ to apply in privacy cases, through to Hello magazine’s spoiler of Michael Douglas and Catherine Zeta Jones’ wedding pictures that the couple had exclusively syndicated to OK! Magazine, through to folk singer Loreena McKennit’s spat with former employee Niema Ash over private information contained in a book Ash intended to publish, through to Prince Charles embarrassment over leaked diary extracts published in the Mail on Sunday, and culminating in Max Mosley’s mission to prior restraint all private revelations.
In relation to kiss’n’tell revelations and football shagging orders there is a two stage test (as applied by Mr Justice Eady):
1: Is the nature of the subject matter in relation to the person claiming their privacy has been invaded such that there is a reasonable expectation of privacy? and do any additional rights under traditional legal principles such as the law of confidence apply?
2: To the extent that a reasonable expectation of privacy arises – and the rights under Article 8 ECHR are engaged – are there any competing rights that arise – such as the right to free expression under Article 10 ECHR?
The competing rights then have to be balanced against each other and – as provided for under ECHR and as reflected in media regulation and case law – be distilled through public interest considerations. That is to say is there a legitimate public interest and are the interests of the public served by the revelations etc being allowed – e.g. would lifting a gagging order serve a higher public purpose such as preventing crime or the public being misled?
The European Court case of Von Hannover v. Germany pointed the way in this regard. That case concerned the publication of photographs of Princess Caroline of Monaco (aka Von Hannover) and family that showed family members engaged in private activities such as riding horses and bicycles and challenged whether just because the public may be interested in the family because of its royal status and wealth etc did that mean the media could argue there was a public interest in a human rights sense? – the court, among other things, ruled that the publication of photographs of people (whether royalty or not) in a private setting was ,in absence of grounds giving rise to a legitimate public interest, a violation of the Article 8 rights to privacy.
In relation to his decision in CTB v Thomas (and of course The Sun), Mr Justice Eady was quick and clear to conclude that: “As in so many “kiss and tell” cases, it seems to me that the answer, at stage two, is not far to seek. Indeed it was not even argued that publication would serve the public interest.”
So it’s a question of balance and in that sense does take the law of privacy from being a universal test to being a very subjective (on the facts) balancing act of the wider objective principles of the laws that apply.
The ‘new methodology’ test set out in the Re S case set out that:
* No one ECHR Article (be it 8 or 10 or any other) has any or automatic precedence over another.
* Where there is conflict between Articles – as in the current case, Article 8 (privacy) and Article 10 (freedom of expression), an ‘intense focus’ is required in the particular circumstances of the case upon the comparative importance of the specific rights being claimed.
* The court has to take into account the justification that has been put forward for interfering or restricting each right (as provided for in e.g. Article 8(2) or 10(2) of the ECHR).
* The proportionality test of the response and need to apply the law.
In the CTB case Mr Justice Eady concluded that (in respect of the application of privacy law): “one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech.”
So while the legal principles remain the same no two cases and their circumstance will be the same.
Rounding in on the kiss’n’tell exposure as the facts suggested in the CTB case, Mr Justice Eady summed up what has been both the approach and ruling in recent cases namely: “It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another’s right to publish what has been described in the House of Lords as “tittle-tattle” about the activities of footballers’ wives and girlfriends”.
This mirrors the decisions in Max Mosley’s privacy crusade both in the domestic courts and even in comment from the European Court (although the latter did not uphold the claim) that such “tittle-tattle” allegations will not attract the same level of protection in relation to ECHR Article 10 rights as those of a more robust (public interest evidencing) journalistic stories might.
UK law does not have a bill of rights or similar constitutional guarantees that specifically set out a right to free speech (such as the US First Amendment) or a right to privacy or personality rights (as in other jurisdictions e.g. France or Germany). The legal protection derives from the provisions of ECHR as given legal effect through the UK Human Rights Act and reflected in regulatory codes (such as the PCC or Ofcom code). The application of that legal protection and the upholding of rights finally devolves to the courts that have to apply the balancing act in relation to specific circumstances.
What is clear – from the law and the judgments as highlighted by Eady – is that neither Article 10 or Article 8 rights have any supremacy or prevailing features. They provide the weights to put on either side of the notional scales of justice and these scales need to be calibrated by the courts through their application of the law in relation to the facts and distilled through the ‘new methodology test’ AND public interest.
Mediabeak thinks this topic and issues are finally reaching the level of debate required to make real progress for both the law and the litigants. Is it fair to deride the judges for being left to carry out the balancing act made necessary by the laws? – no. Is it right to malign the media for being as commercial as their subject matter? – no. If society wants more certain and prescriptive protection and rules relating to privacy then there needs to be engagement and debate that helps shape revised regulation or laws that provide for this. It’s too easy to have a go at lawyers or journalists for not getting the result or providing the story that may be subjectively desired because of the uncertain crossfire of competing interests and interpretations at play.
What is clear is that in relation to both Article 10 and Article 8 rights there is a sliding scale of expectations, behaviours and public interest components that increase or decrease the potency and legal appreciation of these rights depending on the particular circumstances. It’s all relative.
The Press Complaints Commission (PCC) has published its annual review for 2010 and showcased the good work and results it has achieved over the past year. The full report and statistics are available on its dedicated microsite and positioned under the banner 'Perspectives' whereby it seeks to showcase its workings through those who have experienced them (such as BBC presenter Clare Balding).
Headlines it presented are:
•made around 1700 rulings on complaints framed under the Editors' Code of Practice;
•acted to prevent media harassment 100 times;
•made proactive contact with those at the centre of media storms 25 times;
•settled over 540 complaints amicably;
•is an expert at handling privacy cases, issuing over 550 privacy rulings;
•can deal with pre-publication concerns in a way that helps individuals, but without compromising freedom of expression;
•conducted 60 training seminars for journalists, using recent cases to raise standards across the industry.
This is all good stuff and evidences the fact that as a regulator the PCC is proactively seeking to play its part but, not through its fault, it is still limited in its potency as its powers are limited and what it cannot consensually negotiate it has no power to enforce. It can censure through publishing its ruling - which it did in 18 cases in 2010 but it cannot issue orders to prevent publication or hand down fines for having published objectionable material.
The harsh but fair reality is that those wishing to prevent publication or seek redress, the courts are still the forum through which to pursue their rights. That having been said in cases involving the highly topical issue of privacy (in respect of which the PCC mediated or ruled in 557 last year), where there is a need to interpret and balance competing rights, seeking compromise through a brokered deal between PCC and the press may be a more attractive, accessible and less costly option than instigating legal proceedings.
Mr Justice Eady has today refused to set aside the gagging order (privacy injunction) preventing busty Big Brother contestant Imogen Thomas and The Sun from revealing the identity of the Premier League footballer Thomas had claimed to have had an affair with.
The judge was clearly not impressed or convinced by Thomas’ tales and used the judgment as a platform for clarifying the judicial application of privacy law and – worryingly for the wannabes and tabloids that feed from it – the future of the ‘Kiss and Tell’. Mediabeak will examine Eady’s espousing on privacy and kiss’n’tell deathknell in a separate post (to spare those more interested in Thomas’ tittle tattle than the legals).
Back to the facts and its appears Thomas had met the footballer in question – who legal papers refer to simply as ‘CTB’ – on three occasions in September, November and December last year (although she claims she had a six month ‘affair’ with him). It is not clear what exactly took place at these previous meetings but fast forward to April this year and Thomas got in contact with CTB again and apparently – though this has been denied on her behalf by her latest legal counsel David Price QC – sought to elicit money from CTB and/or tell/sell her ‘story’.
CTB agreed to a couple of meetings at which it appears Thomas didn’t get the £50k or £100k it had been suggested she was after but did get a signed football shirt and a couple of match tickets.
By this stage CTB had worked out that – suggestions of blackmail aside – he could be the subject of a kiss’n’tell/sell set up. Although Thomas has denied collaboration with the papers (The Sun and apparently Mail on Sunday and Sunday Mirror) arranging to meet him under pretext of ‘needing money’ or to get a signed shirt does provide the press with a wonderful photo opportunity.
So the suggestion is there (though as stated it has been denied on her behalf) that having failed to get more than a football shirt for not telling about any ‘kiss’ (or more) there may have been, the next option for Thomas to try would be to sell the story to the eagerly awaiting tabloids – something discussed in and that appears to have been factored into Mr Justice Eady’s reasoning and decision.
In deciding to continue the injunction the Judge balanced the competing rights to privacy and those of Thomas’ (and the papers) right to free expression. He considered that whatever the nature of CTB and Thomas’ previous meetings, these had been private and not something done or discussed in public. He also considered that the right to privacy extended to CTB’s family and as such, in the circumstances, CTB did have a protectable right to a reasonable expectation of privacy.
In relation to Thomas’ and The Sun (+ other papers) rights to freedom of expression, Eady considered that such right is designed to protect the public from being seriously misled and being informed of information in which they have a legitimate public interest. In making it clear that all that interests the public may not necessarily or demonstrably be in their real or legitimate interest, Eady concluded that the ‘kiss’n’tell’ that Thomas and/or The Sun would be able to freely express if the injunction were lifted would not help achieve some legitimate social interest (as the underlying human rights laws and cases have intended and described).
He therefore ruled today that the gag over Thomas and the press remains until such time as a trial of the issues may reveal more facts and/or the case can be fully assessed in light of those facts.
How the gag and the law work
As happened in this case, a claimant – CTB – can seek an injunction from the courts to prevent publication of material that they consider would be harmful – invade their privacy or defame them etc – under the UK Human Rights Act, Section 12 provides that where a court is being asked to grant any relief (i.e. an injunction) that could, if granted, affect (restrict) the European convention right to free speech then:
Under Section 12(3) – no such injunction should be granted unless the court is satisfied that the claimant (CTB) would be likely to establish that publication of the story would be similarly banned when the case came to a full trial.
Under Section 12(4) – with specific reference to what appears to the court to be ‘journalistic, literary or artistic’ material, (it was certainly journalistic in the tabloid sense and arguably one could suggest that Thomas’ version of events would count as a literary work - fictional if not factual) the extent to which:
(i)the material has, or is about to, become available to the public; or
(ii)it is, or would be, in the public interest for the material to be published;
Clearly in this case with The Sun poised to publish the material was very much ready to be made available to the public BUT as Mr Justice Eady decided, it could not be regarded as material that would be in the public interest to be published.
How the law and the gag don't work
The injunction applies to publication in or controlled from England and Wales so publications in other jurisdictions are not covered by this. We've seen the furore over the potential of Twitter to make a mockery of the much maligned superinjunction in the past week and this case is no different - aside from the speculation across cyberspace, it did not take long for a foreign publication and Twitter to identify the footballer. Were Mediabeak to publish a link to the readily traceable sites in question then that (as Mediabeak is currently in England) would in line with the judgments in Jameel and other cases, be in breach of the injunction. So to the extent that an injunction can gag in England and Wales it does not extend to those tweeting or uploading posts in or onto foreign sites. Indeed as more often happens in such cases, the gag itself draws reporting interest and the attendant publicity of the fact there is a gag then spills across geographical borders to freeflow on the internet.
In today's exploitative and parasitical world what may judicially be regarded as a legitimate expectation of privacy translates into a reasonable liklihood of exposure.
If you don't want anyone to tell then the safest bet is not to kiss. If footballers and reality TV 'stars' don't want to play their private lives by the book then they can't come complaining to court or as Thomas has done today, complain about court and expect judges to create the laws around your behaviours. As Mr Justice Eady reminded, the judges are not making the law, they are applying it.
It’s the beginning of the big backlash for News International which is having to set aside £millions to compensate those its papers hacked off.
Sienna Miller’s payout was not as massive as some had speculated but at £100,000 its testimony to the fact that privacy invasion through dodgy practices doesn’t come cheap. The payout also sets the bar higher than even Max Mosley’s record privacy award of £60,000 against the same paper. With well over 20 celebrities waiting in the wings of High Court, it could be open season for claimants.
Considering Miller’s main aim had been to get an admission from the NoW what it had hacked into, the sum of £100,000 provides a pricey sum as precedent for those following her into the courtroom. Will we see a sliding scale of settlement according to the depth and intrusiveness? – possibly though it would be tough to quantify as there may not have been any lasting damage.
The question does arise as to whether there could be two causes of action for claimants such as Miller – one for the phone hacking and another for the stories the paper may have gone on to print based on the information it hacked?
In practice it is likely that where there is hacking as well as a story both would be wrapped up and reflected in settlement though it would not necessarily have to. Watch this space – hacking into Murdoch’s calls to or about Mulcaire would have provided some interesting dialogue!
In what can best be described as an unusual set of circumstances legally, the High Court has given permission to the Crown Prosecution Service to bring contempt proceedings against The Sun and Daily Mirror over their coverage of the hunt for the killer of Jo Yeates who was found murdered in Bristol on Christmas Day last year.
The papers had both splashed on the arrest of Yeates’ landlord, Christopher Jeffries with reports that went beyond the mere fact of his arrest. With front pages headlined: “Jo suspect is peeping tom” and “The strange Mr Jeffries” appearing without Jeffries even being charged, the papers as well as wider media were already skating on thinning ice as far as contempt of court laws are concerned.
The Attorney General, Dominic Grieve, had already voiced his concern over the way the investigation was being reported and prompted calls for pre-trial anonymity for suspects. The focus of reporting of the hunt for the killer shifted from splashing on suspects to the police investigation itself with broadcaster ITV being banned from a police press conference after it ran a report that criticised the police’s investigation.
Jeffries was released without charge and finally cleared in March after being left hanging on bail for over nine weeks – which was odd given that one of Yeates’ neighbours, Vincent Tabak was charged with murder in January.
Not surprisingly Jeffries is suing for libel and invasion of privacy with actions being brought against not just The Sun and Daily Mirror but also Daily Mail, Daily Express, Daily Star and others. He has instructed Louis Charalambous of Simons, Muirhead & Burton – the same lawyer who secured a £600,000 libel win for media manufactured McCann suspect Robert Murat.
Contempt of court
Why might the Sun and Mirror be in contempt? – the law provides for two layers of contempt of court:
Common law contempt – which applies in relation to the administration of justice in general and does not need to attach to specific or currently ‘active’ proceedings. Here, the intent of the publisher is relevant.
Statutory contempt - under the 1981 Contempt of Court Act which provides for ‘strict liability’ contempt – the intent of the publisher being irrelevant in relation to their liability.
There is also contempt in the face of court – this arises where there has been bad behaviour or disobedience in the actual court or court precincts or been reported to a judge in relation to proceedings.
In relation to the conduct of the Sun and Mirror:
Section 1 of the Contempt Act provides -
“In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”
Section 2 qualifies this by stating there has to be:
Publication (speech, writing, broadcast or other communication e.g. Tweeting)
That creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
The proceedings in question have to be ‘active’ – as defined in Schedule 1 – the fact there was an investigation and someone (Jeffries) had been arrested rendered the proceedings active in relation to the Yeates murder.
What this week’s High Court decision means
The Attorney General instructed counsel to represent before Lord Justice Moses as to why he felt that the Crown Prosecution Service (CPS) should be permitted to bring contempt proceedings.
The basis for this was argued by Andrew Caldecott QC as being that the nature of the papers’ reporting of Jeffries was such that had he been tried in connection with Yeates’ murder, it would have posed a ‘substantial risk of serious prejudice’ (within the meaning of the Contempt Act) and that would have been in relation to ‘active’ proceedings.
Why Mediabeak thinks this action is unusual and if pursued could test the reach of contempt and the strict liability test
Certainly Jeffries was ‘monstered’ by the papers and had he been the one to be charged and tried the public perception of him would be such as to prejudice the perception of him BUT as it transpired it is Vincent Tabak who will stand trial later this year and he is the subject of the legal proceedings.
The question therefore arises as to whether the reporting by the Sun and Mirror does actually give rise to a ‘substantial risk of serious prejudice’ in relation to ‘the course of justice in the proceedings’.
The monstering of Jeffries will not affect the trial of Tabak so the CPS would have to demonstrate that what the papers published last December will reach through to later this year in their damaging effect and that effect would not just have to be a risk but a ‘substantial’ risk of ‘serious’ prejudice.
What could prove interesting and test contempt law would be if it were argued that the interpretation of ‘proceedings’ in relation to the Contempt Act does not merely fix to the trial but attaches to the whole process from time at which proceedings are ‘active’ until judgment and sentence are delivered. In line with this interpretation it could be argued that there was at an earlier stage in the proceedings a substantial risk of serious prejudice in relation to a potential suspect and that therefore related to ‘the course of justice in the proceedings’ – albeit an earlier part of the course!