Written evidence submitted by the Media
Lawyers Association (MLA) (PS 28)
This response is submitted on behalf of the
Media Lawyers Association (MLA), which is an association of in-house
media lawyers from newspaper, magazine, book publishers and broadcasters[9].EXECUTIVE
SUMMARY
1. The media plays a vital role in allowing
the proper functioning of a democracy by promoting the flow of
information. An editorial in a recent Index on Censorship publication[10]
(looking back at the UN Declaration of Human Rights on its 60th
anniversary, in the context of Article 19, the declaration of
the right of free expression), serves as a powerful reminder that
the Declaration was not intended to be a hostage to political
fortune or the vagaries and anxieties of a given age.
"[...] it's worth repeating some basics:
the right to free speech means nothing if it only sanctions politically
and socially acceptable views. It is the right that allows us
to defend all other rights. Without it, there can be no free exchange
of ideas, no means of challenging arbitrary abuses of power and
therefore no democracy."
2. The MLA believes that these are the touchstones
of the right of freedom of expression for all as recognised by
the English common law. It is important that the United Kingdom
continues to bear witness to and upholds these fundamental truths
and does not get tempted by what may be perceived on one level
as local difficulties to impinge on or restrict them.
3. In summary, the MLA believes that:
— the current system of press self-regulation
works in practice for most people who choose to use it;
— UK libel laws have a direct restrictive
effect on press reporting;
— excessive legal costs magnified in
defamation and privacy by the unrestricted use of Conditional
Fee Agreements (CFAs) and after-the-event (ATE) insurance have
had—and continue to have—a serious negative effect
on press freedom;
— the Contempt of Court Act 1981, and
the principles underlying it, need to be re-examined in light
of the expansion of the internet;
— judges are making a subjective law
of privacy, with little foresight or regard to the long term impact
of this and without any proper balancing against the detrimental
effects that this has upon freedom of expression and the commercial
reality of publishing; and
— in order to protect the fundamental
principle of freedom of expression, there is no role for financial
penalties for libel or invasion of privacy being exemplary rather
than compensatory.
4. We set out below our detailed comments
on the areas raised by the Culture, Media & Sport Select Committee.
THE MCCANN
CASE AND
SELF-REGULATION
5. A number of the MLA members' organisations
(for example the broadcasters) are subject to a different regulatory
regime from the newspaper publishing members and they are not
in a position to comment further on the specifics relating to
the PCC. Nonetheless, the MLA as a group strongly supports a system
of self-regulation for the print media. The MLA believes that
the PCC offers a quick, cheap, flexible and effective remedy for
the general public across a wide range of areas that it would
be entirely inappropriate to regulate by legislation (for example
intruding into grief / the covering of suicides / children / financial
journalism). We understand that there was early and on-going offers
of assistance and dialogue between the McCanns and the PCC but
that, ultimately, the McCanns chose not to complain to the PCC,
who accordingly had no basis on which to get more deeply involved.
That case does not, in our view, have any bearing on how the PCC
system of self-regulation works in practice for most people who
choose to use it. It would be wrong to seek to review a system
based upon the perceived experience of one particular case, which
appears to be unique on its facts, as it could lead to a knee-jerk
response.
THE INTERACTION
BETWEEN THE
OPERATION AND
EFFECT OF
UK LIBEL LAWS
AND PRESS
REPORTING
6. As matters stand, UK libel law operates
as an unnecessary and severe restraint upon freedom of expression.
Its operation can prohibit journalists from carrying out legitimate
inquiries. As Lord Nicholls observed in Reynolds v Times Newspapers
Ltd[11]:
"Historically the common law has set much store by the protection
of reputation [|]. There must be exceptions. At times people must
be able to speak and write freely, uninhibited by the prospect
of being sued for damages should they be mistaken or misinformed.
In the wider public interest, protection of reputation must then
give way to a higher priority."
7. UK libel law is in need of urgent reform.
It is widely recognised as being amongst the most oppressive in
the developed world[12]
and has a direct and constant limiting impact on press reporting.
"Freedom of expression is the lifeblood of democracy"[13].
The balance between freedom of expression and the right to reputation
has swung too far in favour of protecting reputation. It is heavily
weighted against a defendant and in favour of a claimant. A claimant
is presumed to have an unblemished reputation and the words are
presumed to be false until proven otherwise. Aspects of the current
laws in England and Wales have come under attack from the Human
Rights Committee of the United Nations in their report in July
2008 entitled "International covenant on civil and political
rights"[14].
The criticism focuses specifically on concern that UK defamation
law is discouraging critical media reporting on matters of serious
public interest, including through the "phenomenon of `libel
tourism'". More recently, in an adjournment debate at the
House of Commons on the subject of libel laws, featuring contributions
from Labour, Conservative, Liberal Democrat and UKIP MPs[15],
concerns were expressed over libel tourism, fees in defamation
cases, and the extension of defamation laws to the internet.
8. In our view, the following reforms to
our current libel laws are urgently needed.
THE INTRODUCTION
OF A
SINGLE PUBLICATION
RULE FOR
INTERNET PUBLICATIONS
9. Currently, because of the effect of an
1849 judgment[16]
there is no effective limitation period for articles retained
on electronic databases. Anyone accessing a newspaper, magazine
or television website containing archival material can cause the
republication of a defamatory article giving rise to a new cause
of action well beyond the current one year limitation period.
Reliance on the rule in the Duke of Brunswick amounts to
an unnecessary and disproportionate restraint on free speech[17].
We support the Law Commission's recommendation of a review of
the way in which the viewing of articles from an online archive
gives rise to a fresh cause of action, and causes the limitation
period to begin anew.[18]
THE REMOVAL
OF THE
AUTOMATIC RIGHT
TO A
JURY TRIAL
IN A
LIBEL ACTION
10. The Faulks Committee (1975)[19]
recommended that, as in other actions for tort, jury trials for
libel actions[20]
should be the exception rather than the rule. They concluded that
"the existence of the present almost unqualified right of
one party to force a jury trial on the other against his will
operates in many instances contrary to the interest of justice".
Jury trials in personal injury actions were abolished many years
ago. Solicitors acting for claimants often insist on their client's
right to a jury trial. The involvement of a jury dramatically
increases both the costs—including for the tax payer—and
complications of a defamation trial, due in large part to the
unpredictability of a jury's findings and also the scale of damages
it chooses to award. Under the present system, "meaning"
disputes, which are often at the heart of libel cases, can only
ultimately be determined (unless the parties agree otherwise)
by a jury. Section 69 of the Supreme Court Act 1981 should be
amended so that libel claimants do not have an automatic right
to jury trial. Giving a judge the power to resolve the meaning
of an article in the first month of a libel action could lead
to the speedy settlement of many libel actions. Alternatively,
the courts should have greater powers to "order" the
parties to a libel action to go to binding arbitration / mediation
on the meaning of an article. LIMITATIONS
SHOULD BE
IMPOSED TO
PREVENT OR
RESTRICT LARGE
CORPORATIONS AND
COMPANIES BEING
ABLE TO
SUE IN
LIBEL
11. Trading companies and corporations cannot
suffer injury to feelings; it is anomalous that under the UK law
of libel, they can sue for libel. Corporations are protected by
the law on "injurious falsehood", where they can sue
over a false and malicious statement against business, property,
or goods causing provable economic loss. They should be able to
sue only where they can prove special (ie quantifiable and actual)
damage.[21]
In 2006, the Australian government introduced the Uniform Defamation
Laws, which prevent corporations from suing for defamation unless
they have fewer than 10 employees or are classified as not-for-profit
entities. The law allows an individual associated with the firm,
such as a director, to sue for libel on the basis that the defamation
of the corporation had resulted in damage to his or her personal
reputation. Alternatives would be to introduce a law that required
companies and large corporations to try and resolve matters via
some form of mediation and/or to prove special damage.
12. There are a number of other reforms
to UK libel law that the MLA strongly advocate:
(i) The scope for libel tourism should be curtailed.
"Libel tourism" is a serious problem, which needs to
be addressed. London has become the libel capital of the Western
world.[22]
Actions can be brought in the UK by individuals with little or
no apparent connection with the UK at considerable expense to
UK taxpayers, even though there has been minimal publication within
the UK.
(ii) A recent study[23]
found that, even where CFA related costs are not included in comparisons,
England and Wales was up to four times more expensive for defamation
actions than the next most costly jurisdiction (Ireland) and 140
times more costly than the other jurisdictions examined (when
excluding England, Wales and Ireland from the average).[24]
Consideration should be given to ways in which the procedure can
be simplified (for example by the increased use of written submissions
and the reduced use of oral hearings) reduce overall costs (as
well as adjustments to the CFA regime, considered elsewhere in
this submission).[25]
(iii) The incorporation of the Reynolds
principles into statute. We welcome moves by the Parliamentary
under Secretary of State, Ministry of Justice, to consider putting
the Reynolds defence on a statutory footing. Journalists
and news organisations need greater levels of certainty and clarity
within which they can confidently make statements they reasonably
believe to be true on matters of public concern. There is a case
for also considering moves in UK law toward a stronger public
figure/public interest defence as in New York and other US jurisdictions
(and even according to the case law of the European Court of Human
Rights, which recognises that public figures may be subject to
more and stronger criticism than private individuals).
(iv) A review of the (rarely used) summary procedure
should be implemented (the use of which has been restricted in
practice by the right to jury trial).
(v) We welcome the Government's forthcoming consultation
paper on seditious libel and criminal defamation and, as a matter
of principle, support the abolition of these outdated offences.
(vi) A review of the justification for the burden
of proof being on a defendant in a libel trial—often cited
as one of the major incentives to "forum shop" in the
UK.
THE IMPACT
OF CONDITIONAL
FEE AGREEMENTS
ON PRESS
FREEDOM
13. Costs should be about fairness and justice.
Conditional Fee Agreements (CFAs) or "no-win, no-fee"
agreements were introduced as an alternative to civil legal aid
to make justice accessible to the less well off. They were supposed
to involve solicitors assessing the risk involved in litigation
and being compensated for that risk by the use of a success fee
or uplift on base costs. Their use in publication proceedings
is invidious however. In practice CFAs in publication proceedings
are rarely about assessing risk but simply permit lawyers (primarily
claimant lawyers) operating under them to double their fees if
they are successful (the uplift or success fee) and reclaim what
may be a huge after-the-event (ATE) insurance premiums, even though
it will never have been paid, from a losing defendant. Their use
by celebrities and the wealthy is not about access to justice
or fairness but about threat and blackmail. It is not just the
small regional publications who daren't contest a complaint funded
under a CFA for fear of the costs consequences, even though damages
may be relatively low, this chilling effect pervades through to
the heart of the publishing industry. The combined effect of CFAs,
success fees and ATE insurance premiums in defamation and privacy
cases undeniably has a direct and chilling effect on freedom of
expression.
14. In Callery v Gray (Nos 1 and 2) [26]Lord
Bingham recognised that CFAs "was obviously open to abuse
in a number of ways". He listed three possible abuses, two
of which are "excessive base costs" of claimant lawyers
and "uplifts" bearing no relation to the risk in taking
on an action. Lord Justice Brooke in Adam Musa King v Telegraph
Group Limited[27],
identified the inequity of CFAs in publication proceedings as
follows: "it cannot be just to submit a defendant in these
cases, where their right to freedom of expression is at stake,
to a costs regime where the costs they will have to pay if they
lose are neither reasonable nor proportionate and they have no
reasonable prospect of recovering their reasonable and proportionate
costs if they win". Mr Justice Eady, in a libel case in 2005,
recognised the practical impact which conditional fee agreements
have on press freedom when he said, "[|] there must be a
significant temptation to media defendants to pay up something,
to be rid of litigation for purely commercial reasons and without
regard to the true merits of any pleaded defence. This is the
so-called "chilling effect" or "ransom factor"
inherent in the conditional fee system [|]"[28].
In Campbell v MGN Ltd[29],
Lord Hoffmann identified a further abuse which he referred to
as the "blackmail effect" of CFAs in publication proceedings.
See too Justice Secretary, Jack Straw's, remarks to the Labour
Party Conference 21 September 2008.[30]
15. The way the system operates in practice
is that it is effectively left up to costs judges, retrospectively,
to try and control costs. This is far too late. The role of costs
judges is not to control costs, as they have admitted themselves.[31]
Judges who hear cases should take responsibility for controlling
the costs pro-actively, by imposing, as and when appropriate,
pre-emptive costs orders, fixed costs and cost capping. To leave
these matters until a case has ended [or settled] has a significant
chilling effect on the willingness and ability of the media to
fight cases.
16. The MLA acknowledges the contribution
that CFAs have made to access to justice in other areas such as
road traffic accident cases and personal injury. However, we believe
that they need fundamental reform in the area of publication proceedings.
In order that the impact of CFAs on press freedom is limited to
being no more than is necessary in order to achieve access to
justice we would submit that the following changes should be considered
as a priority:
— successful claimants should not be
entitled, as of right, to recover success fees/uplifts and ATE
insurance premiums from losing defendants in Article 10 cases
(they will still recover regular costs and, as applicable, damages);
— prospective cost capping should be
made mandatory in all Article 10 cases; and
— lawyers should only be permitted
to seek the recovery of legal costs which they certify are both
"reasonable" and "proportionate".
THE OBSERVANCE
AND ENFORCEMENT
OF CONTEMPT
OF COURT
LAWS WITH
RESPECT TO
PRESS REPORTING
OF INVESTIGATIONS
AND TRIALS,
PARTICULARLY GIVEN
THE EXPANSION
OF THE
INTERNET
17. We believe there is a strong case for
a review of the Contempt of Court Act 1981, particularly in so
far as it relates to archived material. The impact of the law
of contempt in the UK goes way beyond pure freedom of speech issues—its
ultimate purpose is to preserve the integrity of the system of
the administration of justice as a whole.[32]
The concept of strict liability contempt (ie regardless of intent)
was introduced in the UK by the Contempt of Court Act 1981, which
applies to all publications which create "a substantial risk"
that the course of justice will be "seriously prejudiced".
The very small number of prosecutions for breaches of the Act
is a testament to how the mainstream media in this country obeys
and respects the contempt laws.
18. However, things have changed greatly since
1981, not least with the advent of the electronic age, new technology
and the world wide web, which have made reporting a truly global
affair, reaching into the corner of every country in the world.
Most if not all media organisations have publically available
archives of all their past publications. These are generally not
"displayed" on the face of the newspaper website as
available and contemporaneous material, but lie passively in the
newspaper's electronic archive until they are accessed, which
needs a positive act of searching by a third party.
19. In September 2001, Lord Osborne delivered
the opinion (no 2) of the High Court of Judiciary in Scotland
in the case of William Frederick Ian Beggs. [33]He
was being prosecuted for murder and assault. An attempt was made
to commit various newspapers for contempt on the basis that their
online archives contained "accessible" material which
was "seriously prejudicial" to the accused. The judge
ruled, inter alia, that there was no contravention of the strict
liability rule because the test in section 2(2) was not breached.[34]
20. In December 2002, the Law Commission
published its Scoping Study No.2, which was primarily concerned
with defamation and the internet. While the Commission concluded
(Part Five) that this was not a priority for law reform and that
the risks to publishers were overstated, it felt that "much
of the prejudicial effect of such material" could be removed
by an appropriate judicial direction to try the case on the evidence.
21. The current state of uncertainty as
regards the impact of the law of contempt on archives therefore
needs to be clarified. In so far as archived material is concerned,
a practice of giving jurors robust standard instructions at the
outset of a trial—(eg not to discuss the case with others,
to disregard any media reports about the case; and not to be tempted
to be amateur detectives and go searching for their own material
on the internet, to make their decision based only on the evidence
they hear in court) should be adopted. In Queensland and New South
Wales, Australia, it has been made a criminal offence for jurors
to conduct investigations about the defendant including by means
of the internet.
THE BALANCE
BETWEEN PRESS
FREEDOM AND
PERSONAL PRIVACY
22. The UK courts have developed a law of
privacy out of the ancient law of confidentiality by recognising
the effect of Article 8 of the European Convention on Human Rights
(ECHR). It has reached the point where the tort is now "better
encapsulated as misuse of private information"[35].
There is a fundamental tension between the rights to freedom of
expression as set out in Article 10 of the ECHR, and the privacy
rights articulated by Article 8. The MLA believe that the balance
between freedom of expression and personal privacy has swung too
far in favour of personal privacy.[36]
This has been achieved through a series of judicial decisions,
without any apparent sanction from government, or parliament or
any wider public debate. Lord Hoffmann in Jameel v Wall Street
Journal, gave a clear warning of this:
"Until very recently, the law of defamation
was weighted in favour of claimants and the law of privacy weighted
against them. True but trivial intrusions into private life were
safe. Reports of investigations by the newspaper into matters
of public concern which could be construed as reflecting badly
on public figures domestic or foreign were risky. The House attempted
to redress the balance in favour of privacy in Campbell v MGN
Ltd [2004] 2 AC 457 and in favour of greater freedom for the
press to publish stories of genuine public interest in Reynolds
v Times Newspapers Ltd [2001] 2 AC 127."
23. Ironically, it was Lord Justice Hoffmann,
as he then was, in 1994[37]
who highlighted the dangers of an over restrictive law of privacy:
"But a freedom which is restricted to what judges think to
be responsible or in the public interest is no freedom. Freedom
means the right to publish things which government and judges,
however well motivated, think should not be published".
24. The Human Rights Act 1998 (HRA) required
that a fair balance be struck between Article 8 of the ECHR (the
right to respect for privacy) and Article 10 (the right to freedom
of expression). The right of free speech should only be interfered
with where there is a "pressing social need". However,
in recent years, UK privacy case law has skewed that balance in
favour of Article 8. It is unrealistic to see this simply in terms
of tabloid style "kiss and tell" stories. It causes
considerable practical and commercial difficulties, for example,
for book publishers in publishing diaries, biographies and autobiographies
and also for photojournalists legitimately working in public places.
25. There are genuine fears that the current
approach of the courts to privacy injunctions could be detrimental
to proper investigative journalism. These concerns were voiced
most recently by Sir Charles Gray, a recently retired High Court
Judge with considerable experience of both libel and privacy.[38]
He said he had serious misgivings that the sort of expose of criminal
or fraudulent conduct, which was a regular feature of national
newspapers a few years ago, had ceased and that there was a real
risk that somebody who was corrupt could use the law of privacy
to trump a proper Article 10 defence of freedom of expression.
26. For example, in Cream Holdings Limited
and Others v Banerjee and Others [2004] UKHL 44, a case that
was about corrupt conduct, the Claimant attempted to restrain
the publication by its former accountant Ms Banerjee and the Liverpool
Echo of certain financial irregularities by the company. Cream
claimed that Banerjee, as an ex-employee, was in breach of her
duty of confidence and sought and obtained an injunction to restrain
the newspapers from publishing any further confidential information
given to it by her. The Defendants relied upon the public interest
in the disclosure of financial irregularities. The newspapers
were forced to take the case all the way to the House of Lords,
who ultimately allowed their appeal, the newspapers having lost
both at first instance and before the Court of Appeal. Sedley
LJ in the Court of Appeal (minority) said that the facts that
the Liverpool Echo wished to publish, were "incontestably
a matter of serious interest"; the House of Lords also found
these matters were of serious public interest. Without the financial
assistance and resources of Trinity Mirror Group, this case would
not have been taken to the Lords. A local paper, with such a story
today, but without the backing of a major group would probably
just abandon such a case—either at first instance or after
the Court of Appeal. It cannot be right that a newspaper, or anyone
else wanting to exercise Article 10 rights, should have to spend
the time or money going to the House of Lords to do that over
a story which involved the disclosure of illegal activity.
27. There is currently a serious problem
with the judicial interpretation of section 12 (4) of the HRA,
which requires judges to take account of the PCC's Code of Practice.
When the HRA was crafted, this provision was intended to be a
buttress to press freedom. But, notwithstanding that section 12
was included in the HRA after a considerable amount of parliamentary
scrutiny and debate, the courts seem to pay scant notice of it
and pay little, if any, attention to the PCC's case law, for example
with regard to whether public figures such as celebrities, politicians,
sportspeople or businesspeople, who have previously been attention
seeking, in effect have sacrificed some or all of their right
to privacy. The requirement of Section 12 of the HRA has become
progressively hollowed out as judges make their own interpretations.[39]
Not only is this potentially highly damaging to self-regulation,
it ignores the vastly greater experience of the PCC in tackling
privacy cases—an experience which long pre-dates the passage
of the Human Rights Act.[40]
28. The commercial impact of an approach
that is too restrictive must not be ignored. As Lord Woolf stated,
in A v B and C.[41]
"The courts must not ignore the fact that if
newspapers do not publish information which the public are interested
in, then there will be fewer newspapers published, which will
not be in the public interest."
This was also remarked upon by Baroness Hale
in Campbell[42]:
"One reason why freedom of the press is
so important is that we need newspapers to sell in order to ensure
that we still have newspapers at all. It may be said that newspapers
should be allowed considerable latitude in the intrusions into
private grief so that they can maintain circulation and the rest
of us can continue to enjoy the variety of newspapers and other
mass media which are available in this country."
Likewise, there is a very real risk, for example,
that book publishers, hemmed in on one front by the enormous costs
of fighting libel actions and on the other by the restrictive
approach being taken by the courts to private matters, will have
to become so risk averse as to excise vast swathes of legitimate
areas of public information before daring to publish anything,
or may even decide not to publish at all.
29. The courts have increasingly given priority
to the rights protected by Article 8 at the expense of Article
10 rights. This imbalance applies irrespective of whether what
is published is true or untrue. The only "defence" available
to the media is whether what was published is in the "public
interest", which is not a test required by Article 10. Determining
what is in the public interest or is a "higher priority"
to the protection of someone's reputation or privacy has become
entirely dependent on the subjective views of a High Court judge.[43]
We say that this is not a matter that should be left up to the
subjective determination of the judiciary. The MLA accordingly
endorses the advice from Antony White QC, (attached as Appendix
2 to News International's submission to the Select Committee)
to the effect that a media defendant should be able to advance
a defence in a privacy case that it "reasonably believed
that it was acting in the public interest" when it published
what it did. This would introduce a statute based test as to what
is in the public interest, one which parallels the public interest
test Parliament introduced as part of the Data Protection Act's
protection for journalism.
WHETHER FINANCIAL
PENALTIES FOR
LIBEL OR
INVASION OF
PRIVACY, APPLIED
EITHER BY
THE COURTS
OR BY
A SELF-REGULATORY
BODY, MIGHT
BE EXEMPLARY
RATHER THAN
COMPENSATORY
30. There is no role for damages or financial
penalties (for either libel or invasion of privacy) being exemplary
rather than compensatory. Any restrictions on the rights provided
by Article 10 must be narrowly construed, "convincingly established",
and must be no more than that which is necessary and proportionate.
When considering restrictions the courts must take into account
the public interest in the free press and the potential "chilling
effect" of restrictions. Last year, Mr Justice Eady ruled
that:
"Exemplary damages are not admissible in
a claim for infringement of privacy, since there is no existing
authority (whether statutory or at common law) to justify such
an extension and, indeed, it would fail the test of necessity
and proportionality".[44]
31. As regards libel, the Neill Committee
recommended in 1991,[45]
the abolition of exemplary damages in the field of defamation.
Although the Court of Appeal in 1995[46]
awarded a sum in exemplary damages there remain serious question
marks as to whether an award of exemplary damages could still
properly be made in a libel case. It is difficult to see the logic
behind the court being of the view that they are not available
in a privacy action but that they are still available in a defamation
action.
32. The MLA submits therefore that there
is no role for exemplary damages in either a privacy action or
a defamation action. Nor do we believe is it appropriate for the
system of self-regulation administered by the PCC to have powers
to award damages of any sort. Once financial penalties are introduced,
the system would inevitably become more legalistic with the need
for appropriate legal and technical procedures to ensure fairness
to the parties. Indeed, the Culture, Media and Sport Select Committee
accepted in the conclusions to its last inquiry into this area
less than two years ago, the introduction of financial penalties
would "risk changing the nature of the organisation and might
need statutory backing to make the power enforceable".
January 2009
9 Set up to promote and protect, through co-operation,
monitoring and lobbying, freedom of expression and the right of
everyone to receive and impart information, opinions and ideas. Back
10
Jo Glanville, Editor of Index on Censorship, "Extremism.
Speak No Evil", Index on Censorship Vol 37, No 3, 2008 Back
11
Reynolds v. Times Newspapers Limited [1999] 3 W.L.R. 1010 Back
12
See the European and other comparisons in paragraph 12 below. Back
13
R v Secretary of State ex parte Simms [2000] AC 115 at 126 E,
per Lord Steyn Back
14
UN Human Rights Committee, 93rd Session, 30 July 2008 CCPR/C/GBR/CO/6-http://www.unhcr.org/refworld/category,COI,HRC,,GBR,48a9411a2,0.html Back
15
http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm081217/halltext/81217h0001.htm08121766000001 Back
16
Duke of Brunswick v Harmer-the Duke sent out his manservant
to buy a back issue of a newspaper which he had overlooked some
17 years previously. By selling a back copy of the newspaper,
the court held there was a second publication of the defamatory
article. This enabled the Duke to sue for libel 17 years after
the article had first appeared. Back
17
Times Newspapers are challenging the rule as an interference with
free speech under Article 10 ECHR in Loutchansky v UK. Back
18
Defamation and the Internet: A Preliminary Investigation, Law
Commission December 2002 Back
19
The Faulks Committee on Defamation (1975) (Cmnd. 5909). Back
20
As currently provided for by s. 69 of the Supreme Court Act 1981. Back
21
As was recommended by The Faulks Committee on Defamation (1975),
para 342 Back
22
See for example (i) the case involving the American researcher,
Dr Rachel Ehrenfeld, who was sued in London by a Saudi Arabian
businessman, which has led to the New York state legislature passing
legislation to protect writers working there from defamation judgments
from countries without the same freedom of speech rights as New
York; and (ii) Mardas v New York Times Company & Anor
[2008] EWHC 3135 (QB), 17 December 2008, where Eady J allowed
a claim by a Greek national against two US newspapers to proceed
in the High Court. One newspaper admitted there had been only
177 print-edition publications and four online hits in this country,
and the other claimed it had 27 online hits but had not published
the article in the UK in hardcopy. Back
23
October 2008, "A Comparative Study of Costs in Defamation
Proceedings Across Europe" by Programme in Comparative Media
Law and Policy, Centre for Socio-Legal Studies, University of
Oxford. Back
24
Jurisdictions examined by the study were: Belgium, Bulgaria, Cyprus,
England and Wales, France, Germany, Ireland, Italy, Luxembourg,
Malta, Romania, Spain and Sweden. Back
25
The MLA is setting up a working group to examine possible ways
of simplifying publication proceedings. Back
26
Callery v Gray (nos 1 and 2) [2002] UKHL 28 Back
27
[2004] EWCA (Civ) 613, paragraph 90 Back
28
Eady J in Turcu v News Group Newspapers Ltd [2005]
EWHC 799 (QB), delivered on 4 May 2005 Back
29
Naomi Campbell v MGN Limited [2005] UKHL 61-Naomi Campbell
sued MGN for breach of confidence and was awarded £3,500
damages and her costs. She entered into a CFA for the purpose
of her appeal to the House of Lords. Her costs of that two-day
appeal to the House of Lords were £594,470 including a success
fee of £279,981.35. Back
30
"I am concerned about another element of legal services-`No
win, no fee' arrangements. It's claimed they have provided greater
access to justice, but the behaviour of some lawyers in ramping
up their fees in these cases is nothing short of scandalous. So
I am going to address this and consider whether to cap more tightly
the level of success fees that lawyers can charge." Back
31
In the Response of the Cost judges of the Supreme Court office
to the consultation paper: "Conditional Fee Agreements in
Publication Proceedings" they stated, inter alia,-"It
has never been the function of costs judges to control costs by
means of a detailed assessment. By the time the case comes to
be assessed the work has been done long ago and, provided the
costs are proportionate, the test to be applied is one of reasonableness.
The policy underlying this is that a successful party should be
able to recover all the costs expended reasonably. Where, as a
result of robust case management, or costs capping orders, the
activities of the parties have been curtailed, the costs judge
will reflect the court's orders in deciding what is reasonable
and proportionate." Back
32
See, for example Lord Diplock in AG v Times Newspapers Limited
[1974] 3 All ER 54 Back
33
http://www.scotcourts.gov.uk/opinions/osb1910.html Back
34
Lord Osborne, at para 24, "[|] the availability of the material
as part of an archive, as opposed to part of a current publication,
renders it less likely that it may come to the attention of a
juror than would be the case if it formed part of a contemporaneous
publication" Back
35
HRH The Prince of Wales v Associated Newspapers Limited
[2006] EWCA Civ 1776 Back
36
So that it has protected for example an adulterous football manager
and prevented a cuckolded spouse from speaking out (CC v AB
[2006] EWHC 3083 (QB)) and allowed a Canadian folk singer to prevent
the publication of material that had already previously been published
(McKennitt v Ash [2005] EWHC 3003 (QB); [2006] EMLR 178). Back
37
R v Central Independent Television PLC (1994) Fam 192 Back
38
BBC Radio 4, Unreliable Evidence, 14.07.2009, chaired by Clive
Anderson. Sir Charles Gray's experience of publication proceedings
comes both from his days as a barrister and his time as a judge. Back
39
As to the extent of this see, for example, the comments of Mark
Thomson, a Partner at Carter Ruck in the British Journalism Review,
September 2006 "Originally it was thought that section 12
of the HRA would protect the media. It is ironic that, in fact,
section 12 has not had the intended effect. It is now clear that
article 10 does not have priority over article 8; they have presumptive
equality. The media codes now appear centre stage in any legal
claim for invasion of privacy, and breach of the privacy codes
may well persuade a court to find in the complainant's favour.
At the very least, the codes do provide a minimum benchmark for
journalism provided by working journalists." Back
40
While the "zonal" argument [that talking about a particular
zone of one's private life opens up the whole area to scrutiny]
can be pushed too far, it would seem that if a person talks of
a particular area of his private life (eg the Claimant's drug-taking
in A v B, C and D, [2005] EWCH 1651, where Eady J refused
an injunction on essentially zonal grounds), he can hardly have
a reasonable expectation of privacy if others wish to disclose
conduct of a similar kind in similar detail. Back
41
[2003] QB 195 (aka Flitcroft v MGN Limited) Back
42
[2004] UKHL 22 Back
43
As Mr. Justice Eady decreed in his judgment on the Max Mosley
case: "It is not for journalists to undermine human rights,
or for judges to refuse to enforce them, merely on grounds of
taste or moral disapproval". Mosley v News Group Newspapers
Ltd [2008] EWHC 1777 (QB) Back
44
Mosley v News Group Newspapers Limited [2008] EWHC 1777
(QB) Back
45
1991, Report on Practice and Procedure in Defamation, Supreme
Court Procedure Committee, chaired by Neill L.J., Report on Practice
and Procedure in Defamation. Back
46
John v MGN Ltd [1996] 2 All ER 35 Back
| 
