The end of super-injunctions?

It looks to me as though social networking sites will sound the death knell for super-injunctions.  The rationale behind such legal moves is questionable anyway - does Article 10 recognising press freedom outweigh Article 8 which guarantees an individual's right ro privacy?  Eventually the courts would have made a decisive ruling, but the sheer number of challenges on Twittter, Facebook, and sundry blogs is such that the judges will, in future, be wasting their time granting injunctions - they don't buy privacy, merely an increasingly short amount of time.  It's one thing to pursue an individual for contempt of a court ruling, but can you pursue thousands of individuals?  It's Spartacus all over again

I won't repeat the names of those that have been granted super-injunctions - I don't yet feel brave enough to do that, and to be frank, the details of their peccadiloes doesn't much interest me - but anyone who wants to know simply needs 5 minutes and an internet connection.  Having now heard the names I wonder what all of the fuss is about.  If someone is in the public eye are they really daft enough to believe that martital infidelity or using prostitutes can be kept secret?  Anyone who does believe that deserves to be 'outed' on the grounds of rank stupudity!

In any event, the law has never been set in stone, and it has always changed with the passing of time and changes in social mores - what we're seeing now are changes driven by the digital age, and there are sure to be more yet to come.

What a difference three weeks can make

Back at the turn of the year, we woke up to the news of an arrest in the Jo Yeates murder investigation.  What was shocking was the way in which the normal rules of crime reporting were ignored, with the suspect's name being revealed within minutes of the arreat taking place.

http://colinboagsblog.blogspot.com/2011/01/evil-eyes.html

That suspect was released without charge, but with his life scarred forever by the experience.  Today police have arrested a 32-year old man on suspicion of murder, but what a difference this time around.  They seem to have had the impertinence to do it without his name being leaked to Sky News - how very dare they!  The Sky reporter has just said - with more than a hint of annoyance - that the police are telling the press nothing other than that an arrest has taken place.  Good.

Who knows whether this suspect will eventually be charged, but if he isn't, then he at least has the chance to pick up his life without the world and it's wife knowing that he was once arrested.  If he, or anyone else, is eventually charged with Ms Yeates murder then that's time enough for us to be told their name.  It might not suit the 24-hour news schedules but it's a welcome return to some sort of decency in reporting standards.

Hacked off with the whole affair

It was Groucho Marx who said  'I don't care to belong to any club that will have me as a member'.  How would he have felt about the new club where you get elected without applying, and where there is no membership fee - in fact, if you're lucky, you're the one on the receiving end of a load of dosh.  The membership of this exclusive club is as secret as that of the Bilderberg, although from time to time names leak out.  Yesterday, the actor Steve Coogan was revealed as a member, joining the likes of Sienna Miller, Andy Gray, football agent Sky Andrew, Max Clifford, and Gordon Taylor of the PFA, with others, amongst them Paul Gascoigne and John Prescott, rumoured to be possible future members.

I refer, of course to the Glenn Mulcaire / News Corporation club, where it is alleged that celebrities' phones were hacked into.  According to the Guardian, it now seems that the private detective, Mulcaire, has submitted a statement to the High Court confirming that the suspended News of the World Assistant Editor, Ian Edmondson, asked him to do the hacking, and alleging that several other NotW executives knew about this.  He doesn't, apparently, name names, but if true this would blow a hole in the paper's defence that this was a one-off done by a rogue reporter, the former Royal Editor, Clive Goodman.

As mentioned before http://colinboagsblog.blogspot.com/2010/12/film-stars-tabloid-and-skullduggery.html the scariest aspect of the whole affair seems to have been Scotland Yard's inept failure to act upon paperwork that it seized in 2006.   Yesterday, campaigning Labour MP and keen blogger, Tom Watson, asked the Attorney General, Dominic Grieve, whether he was happy that the CPS is giving the government the right advice in this matter.  With the straightest of bats the AG said that it was the police's role to investigate.  It seems that the Met's Assistant Commissioner, John Yates, who has previously said that there was no need for any further investigation of the affair, has now written to the Director of Public Prosecution saying that all the evidence now should be re-evaluated, and the CPS asked for its view.

The political aspect to this is that David Cameron's Director of Communications, was the NotW's editor at the time that all this is alleged to have taken place, although he has consistently and strenuously denied that he knew anything about it.

This is like pulling teeth: slow and painful, but it needs to be done.  It finally looks as though more of the story will come out, and who knows, the club might be revealed to have more new members, and some of the existing ones might find themselves even richer!  As they say, this one will run and run! 

Evil eyes?

I remember my mother saying to me, as she looked at the iconic picture of Myra Hindley, 'You can tell she's evil, look at her eyes." 



Let me tell you that if you focus in on anyone's eyes, as one of the Red Tops did with those of Joanna Yeates' landlord's in Saturday's paper, you can make them look seriously dodgy.  Touch up the picture to make the eyes even darker and the job's done - bang to rights readers.  Well actually, no, it means nothing at all.

Having done just enough Media Law to be dangerous, I'm gobsmacked at the coverage of the Joanna Yeates case, and it's been bad enough for Dominic Grieve, the coalition government's Attorney General to issue a warning (not much of a warning actually: being warned by Mr Grieve seems to be on a par with being savaged by a lamb).

I was sitting in a hotel in Norfolk when Sky News announced that police had  arrested a 65-year old man on suspicion of murder.  Being a naive type I imagined that the case was now 'active' under the Contempt of Court Acit 1981, and that the press would therefore have to be careful what they said.  Five minutes later Sky named the man as Chris Jeffries, and the tidal wave of rumour and innuendo started to roll.  What followed has been so disgusting that I cannot imagine that, should Jeffries (now released on bail) ever be charged, he could get a fair trial - where would twelve people be found who hadn't read the weekend's papers or watched television?

Today's Sunday Times, in its full 'thinking man's Sun' style,  is just one example of reporting that is nothing short of scurrilous.  It tells us that police were 'familiar with the property where Yeates had lived'.  Setting the scene as Clifton, described by Betjeman as the 'handsomest suburb in Europe', it goes on to tell of one of Jeffries' former colleagues (a teacher at £27,000-a-year Clifton College, and therefore a toff who is to be disliked) who abused a child in one of the flats.  It then stretches its innuendo almost beyond belief by saying that another resident is a cousin of a woman whose best friend was murdered 36 years ago, and that Jeffries was a teacher at Clifton College at the time.  

I have no idea of whether Chris Jeffries has ever even had as much as a parking ticket in the past - if he had then I'm sure that we would have been told by now - but he has had his reputation thoroughly besmirched in recent days, and he isn't the only one.  Yeates' boyfriend had to suffer a bit of the 'nudge nudge, wink wink' stuff himself and he was moved to issue a statement criticising the 'character assassination' of his landlord.  

The whole coverage of this tragic case stinks from beginning to end.  Did we really need to see the pictures of the grieving parents being taken to the scene where the body was found - you know, I'd managed to work out for myself that they would be distraught, and I didn't need some sleazy television news team to confirm that for me.

Am I cut out to be a journalist?  I think I am, but certainly not one of the pond life journos or editors responsible for the shabby coverage of the Joanna Yeates case.  Let's hope that Chris Jeffries has the will to sue some of the press, and that Dominic Grieve has the balls to start actions for Contempt against all news organisations that have transgressed.  Joanna Yeates is a tragic victim, but she isn't the only one in this whole sorry saga.

Happy New Year!

Judge Judge and Lamb Bhuna

Imagine if you can: you're sitting in court, minding your own business, thankful that you actually did learn your shorthand, when the craving for a Lamb Bhuna comes over you.  You can't leave the enthralling case that has, seemingly, been going on for an eternity, because your editor wants every snippet of fair, accurate and contemporaneous news that he can get, but your craving for a 'Ruby' is getting stronger.  Now it's easy, tweeting 'Lamb bhuna, pulao rice, a chapati and a tarka dhal: I'll collect it at 8pm', won't get you into trouble, because tweeting in court is alright for now.



Journalists following the Julian Assange bail hearing asked whether they could tweet, and the advice given was at first contradictory.  In the Westminster magistrates' court it was OK, but at the High Court it wasn't.  Now, however, the Lord Chief Justice of England and Wales, Lord Justice Judge (I kind you not, Major Major eat your heart out), has given the green light.  His ruling is:

"A consultation relating to the use of live, text-based communications will be conducted shortly. Those who will be consulted include the Judiciary, the Secretary of State for Justice, the Attorney General, the Director of Public Prosecutions, the Bar Council and the Law Society, the Press Complaints Commission, the Society of Editors in addition to interested members of the public via the Judiciary website.
Pending the outcome of the consultation, this interim guidance should be considered by courts, litigants, their legal representatives and the media if and when any application is made to the court to permit the use of live, text-based communications. If any difficulties arise in respect of the use of such communications, or the outcome of the consultation becomes known, it may become necessary to issue a formal Practice Direction.."

In other words, it's OK for now and we'll let you know if that changes.  In court Judge Judge said, "The use of an unobtrusive, hand-held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is unlikely to interfere with the proper administration of justice."

Result! Now, where's that Lamb Bhuna?

Film stars, a tabloid and skullduggery - this has it all

It's taking its time but it looks as though the News of the World (NoW) phone hacking scandal might just be coming to a head.  The Guardian, which has been relentless in reporting the developing story, now claims that a document has been lodged with the high court that suggests that the phone hacking was more than just the work of one or two 'rogue' reporters - it refers to this as 'explosive new evidence'. 



What is most worrying about this is that the document, produced by lawyers for actors Sienna Miller and Jude Law, cites extracts from paperwork that the Metropolitian Police seized from the NoW's private investigator Glenn Mulcaire back in 2006.  This is potentially a huge media story, but the most disquieting aspect seems to be that Scotland Yard simply sat on its hands rather than do something about a huge cache of potential evidence.  The Yard had previously agreed with the CPS that it would tell all of the 'potential victims' that they were targets of phone hacking.  They don't appear to have done this and at best this seems to be incompetence.



There are now around 20 public figures who have said that they are considering suing the NoW for breach of privacy, including the former deputy prime minister, John Prescott.  As Private Eye would say, this one will run and run!  This could just be heading to become one of the biggest media stories for many, many years.  

Mr Justice Tugendhat again

The definition of 'defamatory' is a crucial one for journalists and back in June Mr Justice Tugendhat tweaked the long-standing one.

The case was between Dr Sarah Thornton and the Telegraph Media Group, and involved her book, "Seven Days in the Art World".  A review in the Telegraph alleged that Dr Thornton had engaged in what is known as 'copy approval', giving her interviewees the chance to read what she proposed to write in advance of publication.  This is a practice that is generally frowned upon in a journalistic context (I do that in my Racing Post Guides but only for reasons of accuracy).  In addition, Thornton claimed that the review, by Lynn Barber, suggested that she had dishonestly claimed to have interviewed Barber as part of the research for the book.

  Dr Sarah Thornton        


After a lot of to'ing and fro'ing, on 26 September 2009 the Telegraph issued the following apology:

In her review of 'Seven Days in the Art World' by Sarah Thornton (Nov 1, 2008) Lynn Barber took issue with Dr Thornton’s assertion that she (Ms Barber) was among the 250 people who had been interviewed for the book, either face to face or by telephone. 

In fact, Ms Barber did have a pre-arranged telephone interview with Dr Thornton two years earlier which lasted over 30 minutes.

We and Ms Barber therefore now accept that it would be wrong to suggest that Dr Thornton made a false or dishonest claim to have interviewed Ms Barber and apologise to Dr Thornton for any distress caused by any contrary impression the review may have given.

In addition, the review commented on Dr Thornton’s use of a practice known as “reflexive ethnography” which Ms Barber equated to “copy approval”.

Dr Thornton points out that she did not give interviewees the right to alter any material she had written about them and that she always maintained complete editorial control of the final product and used the feedback provided by her subjects entirely as she saw fit. 

However, that was far from the end of the matter.  There were appeals, and finally, in June of this year Mr Justice Tugendhat dismissed Dr Thornton's libel claim.  The crux of the matter is that defamation claims must meet a seriousness threshold before they are actionable, and that they must affect the 'actions' of right-thinking people, not just their thoughts or opinions of the claimant.  Furthermore, he distinguished between personal defamation, and business defamation.  The judge found that the claim of 'copy approval' didn't meet the standard of seriousness required to be a personal libel. 

As far as business defamation was concerned, the Telegraph argued that, while copy approval was wrong in journalism, it was acceptable in the context of books.  Mr Justice Tugendhat ruled that if a writer can use different standards for different readers and markets, then it's not defamatory to say that a writer is writing to one standard rather than another.

The result is a revised definition of 'defamtory': 'the publication of which [the claimant] complains may be defamatory to him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so'.  The key word is 'attitude' which replaces 'estimation', because he said that makes it clear that it's the actions of people rather than their opinions that matter. 

That might not be the end of this matter as his ruling will quite possibly be challenged somewhere along the road.  On one level this is akin to angels dancing on a pinhead, but on another it's a victory for the press in that it raises the bar for those who might want to sue for libel.

More from OPPD....

Back in November I blogged about the case of the unnamed Premiership footballer, referred to in the High Court only as JIH, but known to us as OPPD (over-paid prima donna). 
http://colinboagsblog.blogspot.com/2010/11/not-so-super-injunctions.html

  Mr Justice Tugendhat

Mr Justice Tugendhat ruled that we could be told the identity of OPPD, but we couldn't be told what he had done that made the tabloids so interested in him.  The rationale was that although OPPD had a right to his privacy, there was already so much speculation about his identity that his prospects of achieving 'the attainment of justice' would not be damaged if his name was revealed.  The judge gave OPPD 14 days to appeal against his ruling.

OPPD through his lawyers did appeal, on the grounds that the comprehensive media reporting of the hearings was such that, if his name was revealed, people would guess the nature of his allegations against him.  However, the good judge simply booted that ball out of the park, dismissing the nature of the reporting as 'lacking all detail'.  This time he gave OPPD 24 hours in which to consider appealing, and after 22 of them, he did.  That means there will be a delay of up to eight weeks before the latest appeal is heard - I have no idea who OPPD is, but he's clearly good at putting his foot on the ball and slowing the game down!

More to follow no doubt in Janaury!

PCC gets its knickers in a twist

Following last week's session about codes of conduct and the various regulatory bodies, right on cue the Press Complaints Commission (PCC) has obligingly shot itself in the foot.  It, and its Chair, Lady Buscombe, have had to formally apologise to lawyer Mark Lewis, and pay him an undisclosed sum in damages.


This is yet another case linked to the phone-hacking scandal that has engulfed the News of the World (see 'Private eye piracy', 18/11/2010), and involves documents seized by the Met when it raided Private Eye Glenn Mulcaire's offices.  It all goes back to last September when Mark Lewis gave evidence to a Commons' Select Committee.  In that evidence he said that a detective had told him that there were 'something like 6,000 people' who had had their messages intercepted or their phones hacked.  This is in stark contrast to the official line which is that there were only eight victims, including Lewis's client, Gordon Taylor of the Professional Footballers' Association.  The PCC had endorsed that version of events.

Speaking to the Society of Editors late last year, Lady Buscombe defended the PCC's endorsement of the official line, and went further, claiming that she had received 'new evidence' from Sotland Yard saying that the detective had been misquoted.  She also said that she would send the new evidence to the Chair of the Select Committee, adding that 'Any suggestion that a parliamentary enquiry has been misled is, of course, an extremely serious matter'



Lewis sued the PCC and Lady Buscombe on the basis that her speech clearly implied that he had lied in his evidence to the Select Committee.    

The Baroness and the PCC have now made a formal statement at the high court sying that it was never their intention to imply that Mark Lewis had misled the Select Committee.  The Baroness's original statement, and the apology, can be found on the PCC website:

http://www.pcc.org.uk/news/index.html?article=NjA0OQ==

Lord Prescott, that's 'Two Jags' as was, is suing the police for breaching his human rights after they initially declined to hand over details relating to him found in the Mulcaire documents seizure.  His name was on some of those documents and he is claiming damages over the Met's failure to inform him of that fact.  No fan of the PCC, he was quick to turn the knife:



'Today's humiliating apology by Lady Buscombe and the PCC exposes the sham of self-regulation for newspapers. The Chair of a body that is supposed to enforce newspaper accuracy has had to apologise to the high court and settle a libel action prompted by here own misleading comments. 

'The public has rightly lost all confidence in the PCC and I see no other option for Lady Buscombe but to resign her position immediately.' 

As of today, Tory peer Lady Buscombe is still in her £150k p.a. job, but who knows what tomorrow might bring, as there are sure to be further voices raised in support of Prescott's call for her to go?

Private eye privacy?

The private eye at the centre of the phone-hacking scandal must reveal who his client was.   A High Court judge yesterday ruled that Glenn Mulcaire could not refuse to reveal the name, even if doing so would incriminate him.

Mulcaire, who has 'previous' for invading people's privacy - he was jailed in 2007 for intercepting voicemail messages - has fallen foul of Section 72 of the Senior Courts Act which says that certain commercial information has to be given, irrespective of the risk of self-incrimination.  Mulcaire will be asked questions such as: "Did Ian Edmondson (the news editor of the News of the World)  ask him to investigate Max Clifford's assistant?"  A range of people and organisations, including News International, and the former NotW employee, Andy Coulson (now the Prime Minister's media adviser) have strenuously denied that the NotW asked Mulcaire to tap phones.

At the same time the judge ordered the Metropolitian Police to disclose paperwork seized when it raided Mulcaire's home in 2005: it is thought that some of that paperwork refers to Clifford's assistant, Nicola Phillips.  When Clifford sued the NotW last year for breach of privacy, Scotland Yard was told to disclose paperwork that might identify the senior journalist who ordered Mulcaire to do the voicemail hacking.  However, Clifford settled out of court after the NotW paid him £1M - withdrawing the action removed the need for the paperwork to be disclosed.

The judgement also affects a raft of legal actions being brought by Mulcaire's alleged victims, including John Prescott, the former Met Assistant Commissioner Brian Paddick, Sienna Miller, and Andy Gray.

It isn't known whether Mulcaire will seek leave to appeal against the judgement, so we may not be that much closer to getting towards the bottom of this affair.  As they say, this one will run and run.      

Copyrighting the Haka?

New Zealand (NZ) rugby is a weird world all of its own.  Follow it for any period of time and your jaw will drop in disbelief at the way that its coaches and administrators can, in a seemingly effortless way, get up themselves given any opportunity!  Following on from last week's session on copyright, I spotted an article which asserts that the New Zealand Rugby Union (NZRU) is trying to reach agreement with the Ngato Toa - a Maori tribe - which is trying to trademark the Ka Mate haka.

Ka mate! Ka mate! Ka ora! Ka ora!
Ka mate! Ka mate! Ka ora! Ka ora!
Tenei te tangata puhuru huru
Nana nei i tiki mai, Whakawhiti te ra
A upane! ka upane!
A upane! ka upane!
Whiti te ra! Hi!!

Which roughly means...

I die! I die! I live! I live!
I die! I die! I live! I live!
This is the hairy man
Who has caused the sun to shine again
The Sun shines!!

For the benefit of those who inhabit the real world, a few words on the haka.  It's the wardance done by the All Blacks before international rugby matches: they pull funny faces, dance on the spot and, so I am told, issue a challenge to the opposition.  It's the subject of much debate in rugby right now, with other nations questioning why the All Blacks are allowed to fire themselves up in this way while the opposition have to stand there watching and getting cold.  On the current All Black tour the crowds are, in my opinion rightfully, singing over, and in some cases booing, the haka.  It hakas off the New Zealanders no end, but hey ho that's no bad thing!  To continue with the lecture, there are different versions of the haka, including an unsavoury one which involves a throat-slitting gesture, but the one currently favoured is the Ka Mate, supposedly written by the legendary Te Rauparaha (pictured below), leader of the Ngato Toa back in the 1700's.  Still with me?



Anyway, the Ngato Toa reckon this haka is theirs, so they're trying to trademark it - I kid you not!  They tried to trademark the whole thing, but when that looked doomed to fail, they opted for key sections of the dance.  There have been ongoing negotiations between the NZRU and the Ngato Toa, involving the Intellectual Property Office in NZ.  We know this because the NZ equivalent of our FOI Act, the Official Information Act, has been used to disclose the correspondence.

Over the years the tribe has tried and failed to trademark the haka, but in 2009 the Crown acknowledged Te Rauparaha as the author of Ka Mate, and this set the ball rolling once again.

It's all about money, of course.  The Rugby World Cup (RWC) takes place in NZ next year and already merchandise - tea towels, t-shirts and so on - are appearing with pictures of the haka on them.  The tribe says it wants to end inappropriate use of the images of the haka - no Ka Mate pants then I suppose - but the suspicion is that what it really wants is dosh.

Even if the tribe and the NZRU strike a deal, that might not be the end of the matter, as others want a slice of the action.  The tourism merchadise group, ProKiwi, seem set to launch a bid to have the images and words of the Ka Mate haka available for them to use - so there's hope that there might yet be Ka Mate pants out there!

The IPO lawyers working for the NZRU are arguing that the haka is in the public domain, and that anyone should be able to use the images and words freely, without fear of being sued.

At one level this is all knockabout stuff, but the Maori might just have a different view: not content with having our land and killing our ancestors, these people now want to hi-jack our culture in order to make a fast buck.  I'll keep you posted on the Ka Mate haka saga, and how the hairy man is doing on making the sun shine again.

 

When 'super injunctions' are about more than mere sexual peccadillos

I was up early this morning, and as is my way, I turned on Sky News - their ticker service in bright yellow immediately tells me whether anything major has happened overnight.  The screen was full of the news that Paul and Rachel Chandler had been released from their captivity at the hands of Somail pirates.  I turned over to the Beeb and...nothing but Burma.  It was clear then that something odd was going on, and we now know what it was.  Just last weekend I'd remarked to a friend that it had all gone very quiet about the Chandlers and we wondered why that was.



Some months ago the couple's family sought, and got, a super injunction prohibiting the media from reporting developments on the basis that such coverage might well prolong their captivity.  As the Beeb 'The Editors' blog says, 'The injunction was designed to protect the safety of the Chandlers and prevented us from referring to its very existence'. 

The injunction set out two conditions that had to be met before the media could report the couple's freedom: they must have left the badlands that are Somalia, and they must be in the care of Foreign Office officials.

The Beeb and some others observed the injunction, Sky and some others didn't.  We now have war of righteous words taking place on the internet.  The Beeb has the moral high ground, and arguably is astride its high horse - whereas Sky reports the injunction, but makes no mention of its terms.  Without seeing the wording of the injunction it's impossible to know whether Sky and other s are, as the BBC blog suggests, in contempt of court: the Beeb blog adopts a 'holier than thou' tone when it says 'There is no public interest in breaking the law simply to report a scoop'. 

The Chandlers got away safe and sound, so the risk that Sky and others took in apparently breaking the injuction (if indeed they did  break its terms) didn't rebound on them.  They got their scoop and no doubt audience figures went up accordingly.  However, had things gone awry, the organisations concerned might just have had blood on their hands.

I suspect that a news organisation outside of the UK ignored the injunction and broke the story, and once that had happened Sky and the rest probably made the judgement that, if the news was out there, they might as well run the story.

It's going to be interesting to see what the real facts of this matter are, and whether any further action is taken - I would assume that the Sky lawyers were all over this before a word or an image was broadcast.

Not-so-super injunctions

Mr Justice Tugendhat, now the most senior judge in the world of privacy cases, has once again flexed his judicial muscles, and it might be the beginning of the end for 'super injunctions'.  His latest ruling, in the case of JIH v News Group Newspapers, takes a bit of understanding.  A 'Premier League footballer', who for the purposes of this blog will be referred to as OPPD (over-paid prima donna), managed to get an interim injunction from another judge back in August, preventing the newspaper group from publishing some information that that he sought to keep private.  This was granted on the basis that revealing OPPD's identity was likely to damage his interests or frustrate the administration of justice.  Subsequent to this, OPPD and the newspaper agreed a consent order which seemed to be the end of the matter, as it allowed an injunction and anonymity.  However, this is where the plot thickens!



The supposed formality of getting this ratified by the court didn't go according to plan, as Mr Justice Tugendhat refused to rubber-stamp it without the parties turning up for a hearing.  At that hearing both parties made submissions, but instead of waving it through, the judge reserved judgement.  After pondering on it, the decision was revealed on Guy Fawkes Day, and the upshot was that he declined to make the order requiring that OPPD's identity shouldn't be revealed - one in the eye for Mr Justice Nicol, OPPD and the newspaper!

For the layman the judgement is hard to follow, but in essence it is that the identity of OPPD can be published, but we can't be told what he is alleged to have done. The rationale for making his judgement seems to be that people will speculate on these matters, either in the pub or on the internet, and the court can't stop that happening.  Therefore, the 'general principle of open justice' in this case allows the reporting of the name of the claimant, as it was not proven to the judge's satisfaction that 'the attainment of justice' would be damaged if the player's name was revealed.

The implications of this case are that it will, in future, be much harder to justify anonymity, as the ruling makes clear that a test of 'strict necessity' will be applied.  It also makes it harder for parties to agree consent orders, as judges will be required to test them properly rather than simply nodding them through.

So who is OPPD?  The judge gave 14 days for him to appeal against the ruling, so we may, just may, know who he is on Friday 19 November.

Secret squirrel

Last week's Media Law session was on the subjects of Confidentiality and Privacy.  The three main areas covered were:

- State secrets as covered by the Official Secrets Act
- Commercial secrets which are covered by Common Law Confidentiality
- Privacy as covered by the Human Rights Act, Section 8.



For us as journalists the main danger in the Official Secrets Act (OSA), other than trying to buy a manual off a squaddie in Aldershot pubs, was inadvertently getting premises covered by the OSA into 'wallpaper' shots, or revealing too much about the location of armed forces personnel in newspaper or radio reports.

Commercial secrets also seem to be pretty straighforward: we all have a right to keep secrets as long as it isn't against the public interest so to do, and we also have the right to expect confidences to be kept by people such as our doctor, lawyer, family members or employees.  As journalists the danger seems to be getting dragged into a 'Third Party breach of confidence' when we hear something that really should have been kept secret.   In such instances, the quality of the information is key - tittle tattle isn't covered by this.  Also important are the circumstances in which the confidence was given - e.g. in a doctor's consultation - and the test is what our old friend 'the reasonable person' would think.  The other criteria are lack of permission to pass on the information, and the likelihood of detriment being caused.  Overall, it does seem like common sense stuff.

Privacy seems to be the most interesting of the areas covered, and the Independent recently revealed that the number of attempts to get gagging orders by 'celebrities' has increased by more than 50% in the past year - this seems like an area that's bucking the recessionary trend!  Wayne Rooney's name featured large in their article but I'm totally bored by his exploits so I think I'll simply ignore him.  However, whilst I wasn't surprised to hear that Tiger Woods had resorted to law, I hadn't realised that Ryder Cup captain Colin Montgomerie had recently won a super injunction to prevent a tabloid revealing aspects of his private life - the danger in such actions is that people like me now wonder what it is that I'm not being allowed to hear!

Apparently, privacy cases from high-profile individuals made up 21 per cent of total privacy cases in 2010, compared with just 7 per cent in 2009, and overall, the use of privacy arguments in UK court cases has soared by 54 per cent in the past year, fuelled largely by a surge in claims against public-sector organisations, says Sweet & Maxwell, the legal publishers.

The Independent went on to say that the number of reported court cases where a privacy argument was used is up from 28 in 2009 to 43 in the past year, and that lawyers believe that because these figures are based on published cases, the true number is even higher.

Jonathan Cooper, a leading barrister on privacy matters, said: "Privacy rights cannot be used to undermine free speech, and vice versa. Where there is a public interest in interfering with privacy rights, the media must be entitled to publish.  There is a real fear that emergency injunctions are becoming increasingly common, whereby a judge can grant an interim injunction at very short notice without a full and proper hearing."

The 'Indie' then listed just some of the 2009 gagging injunctions, including Madonna winning a sizeable amount from one of the Sunday papers over the publication of her wedding photos, Tiger Woods trying to limit the damage to his already sullied reputation, John Terry's daft attempt to stop the publication of articles alleging an affair with Vanessa Perroncel (see my earlier blog on that topic), and what is says are at least three footballers trying to prevent revelations about their priivate lives.

And then there was the supermodel Naomi Campbell who claimed her former employee Vanessa Frisbee had breached her privacy and confidence by selling information to a newspaper about her romantic life, and other 'celebrities' such as Sienna Miller, Lily Allen and Amy Winehouse who have started to use harassment injunctions to protect them from being hounded by photo agencies and paparazzi photographers.

It's for the lawyers and judges to decide what is a contravention of the law on these matters, but as a layman the old phrase ' them that lives by the sword, dies by the sword' seems to have some validity in these instances.  If a person doesn't seek to use the press to publicise their private life for financial reward then they should be entitled to have their privacy respected unless it's genuinely in the public interest for revelations to be made.  However, if a 'celeb' ruthlessly exploits their private life to earn money or further their reputation - wedding photos in 'Hello', exclusives to their chosen tabloid, and so on - then from this layman's perspective I'd let the papers publish and be damned.  If what they print is defamatory then they'll rightly get sued, but if it has substance, then maybe their previous exploitation of the press should remove an individual's right to privacy.  Too sensible to happen I'm afraid!

Qualified Privilege

Last week's Media Law lecture was fascinating.  The defence of Qualified Privilege is one that journalists, especially investigative reporters, fall back upon, and the notes on the website ( http://journalism.winchester.ac.uk/?page=228 ), the BBC College of Journalism ( http://www.bbc.co.uk/journalism/law/reynolds-defence/the-impact-of-the-case.shtml ), and in Mc Nae's are sufficiently good for it to be a waste to simply repeat them here.

However, the area where alarm bells rang for me was an aspect of the Jameel case.  In that case The Wall Street Journal had reported that a Saudi company, Abdul Latif Jameel, was being monitored by the Saudi authorities at the request of the US.  The company complained that the article implied that it was involved in funding terrorism.  The paper couldn't prove its allegation so it fell back upon the Reynolds Defence that what it had done was in the public interest. Initially, Jameel won the case on the grounds that the phrase 'responsible journalism' was a subjective one, but on appeal the decision was reversed, with Lord Hoffman saying that he wasn't sure what 'subjective' meant in this context other than that it was being used as a term of disapproval....'the standard of responsible journalism is as objective and no more vague than standards such as 'reasonable care' which are regularly used in other branches of law ... so the standard of responsible journalism is made more specific by the Code of Practice which has been adopted by the newspapers and ratified by the Press Complaints Commission.'



What rang the alarm bells was that this could be seen by journalists as an invitation to try to use this to justify anything that they fancy writing, whereas the test will remain whether the public interest is truly being served.  The Jameel case, although hugely significant, doesn't remove the need for publication to genuinely be in the public interest - trying to use this as a defence after defaming a footballer or a pop star because the revelations about their private life were supposedly in the public interest would be highly unlikely to succeed - Jameel is to be used as a precedent for defnding serious matters, not frivolous ones.

What is an apology, and what is it worth?

Last Thursday Chris made a throwaway remark about how much newspapers hate having to apologise.  It didn't make much of an impression on me at the time, but it came back to me when I read the somewhat grudging and bizarre apologies by the Mail On Sunday and the News of the World to a woman called Vanessa Perroncel.  



I hate football - I actually believe it to be a malign influence on society, but enough for now of my prejudices - so although I was aware of the publicity involving John Terry, Wayne Bridges and Ms Perroncel, I took little interest in it.  Overpaid, over-sexed, and not very bright footballing prima donna behaves stupidly is on a par with 'dog bites man' in my book, so I deliberately ignored the whole kerfuffle.  However, in contrast to so many professional footballers, Ms Perroncel clearly isn't anyone's fool, and it's to her eternal credit that she pursued the rags in question and wrested an apology from them.

The wording of the apologies is very strange.  In essence both papers said: '...we published some personal information about Vanessa Perroncel concerning an alleged affair with the footballer John Terry. We have since been informed she would have preferred this to remain private and it was untrue in any case. We apologise to Miss Perroncel for any distress caused.'

Firstly, who wouldn't want details of their personal life kept private?  OK, Katie Price / Jordan and a few other nincompoops who take the papers' and magazines' money, but they are surely the exception to the rule?  But then the papers in question add the bit about it being 'untrue in any case'!  These apologies were hidden away so that many readers would probably have missed them, but if they had they'd possibly still be baffled by the newspapers' apologies: were they for exposing details of Ms Perroncel's private life, or for printing untruths?

Listening to Ms Perroncel on Radio 4 this morning she was clear that the problem was caused by John Terry's original attempt to get a 'super injuction' rather than simply fronting things out - she described it as a 'big mistake'.  Listen to her, she's a bright woman standing up for herself brilliantly (in her second language too!) - it's fascinating and you can hear it about 2h 22m into the Today programme.  The journalists and editors involved must be very proud of themselves - let's hope that it cost their papers dearly and maybe cost a few of them their jobs too.

In Max Mosley's libel case, Mr Justice Eady said: "It is not for the state or for the media to ex-pose sexual conduct that does not involve any significant breach of the criminal law. That is so whether the motive for such intrusion is merely prurience or a moral crusade. It is not for journalists to undermine human rights … merely on grounds of taste or moral disapproval."  Add to that the fact that what was published has actually now been revealed to a greater or lesser extent as a work of fiction, and some real questions about the freedom of the press are raised.

The Life and libel

Today's session with Ian Anderson on Defamation and Libel took me back twelve years to the 19-day libel action brought by horse-racing trainer Lynda Ramsden and her husband Jack, and former Champion Jockey Kieren Fallon against the much-lamented Sporting Life newspaper.  In an article published in May of 1995,  after the horse, Top Cees, won the valuable Chester Cup handicap, a comment column written by Alastair Down was entitled 'Contempt for the punter'.  In it he alleged that in a previous run, at Newmarket three weeks earlier, the Ramsdens and Fallon had been 'cheating' and that the horse hadn't been allowed to do as well at it might have done, presumably to protect its handicap mark for a later day.



Former trainer Lynda Ramsden

In this particular case it was unusual in that it touched on an area that I know a little bit about - I'd interviewed Jack Ramsden on several occasions, and had spoken less frequently to Alastair Down.  I had no doubt that Down was sincere in his view, but I was equally sure that it was a crazy thing to have written, and I was always of the view that the Ramsdens and Fallon would succeed in their action, and so it proved.

Jack Ramsden liked their horses to be ridden from off the pace, finishing with a flourish: that way if they were good enough they'd win, but not by too far, and if they weren't good enough then they didn't win.  The Ramsden horses were predominantly handicappers and only a fool would let them win by miles, or race prominently and fade late on.  Both of those approaches lead to the horses handicap mark (which determines the weight that it will carry in future races) going up sharply, and would therefore detract from its chance of winning again.  There is absolutely nothing wrong with running horses that way - in fact, I'd argue that to do anything else is daft.

The jury watched Top Cees' Newmarket race on more than 100 occasions, and it was no  surprise when the plaintiffs won their case, costing the 'Life' £195,000 in damages, although with costs their bill was probably over £700,000 - a tidy sum at 1998 prices.

The paper's defences were justification (that the allegation was true) and fair comment, and neither had, in my view at the time, the slightest chance of succeeding.   Fallon, whose career has been dogged by controversy, went on to become Champion Jockey, and Lynda Ramsden retired from training shortly after the trial, although Jack now sits on the board of Chester racecourse where Top Cees had his biggest success.  The Sporting Life was merged with The Racing Post just three months after the libel trial and disappeared off the shelves.  Top Cees was injured in the 2000 running of the Chester Cup but survived and was retired.

It took almost three years for the case to come to court, it cost an arm and a leg, and it put a number of people through dreadful stress - was it worth it?  For the plaintiffs it was because they had been libelled and needed to clear their names, but the cost to the paper was enormous and entirely avoidable.

Ryanair your favourite airline?

It's not the favourite of Robert Tyler, who was so hacked off with the way that he was treated that he set up http://www.ihateryanair.co.uk/ where he lambasted the budget airline in the most strident terms.  Finally, it all got too much for Ryanair and its combative boss, Michael O'Leary (pictured below), and they complained to Nominet, the organisation that manages all web addresses in the UK. 



The upshot was that the site was closed, not because it was disaparaging about Ryanair, but because it had links to other sites selling travel insurance and currency exchange, and had earned the princely sum of £322 from those activities.  The site was ordered to be handed over to Ryanair because it took unfair advantage of the company's name, which is part of its trade mark.  The judgement from Nominet must have been greeted with mixed feelings in Dublin, and it seems to epitomise a pyhrric victory: the company now has managed to close the .co.uk site, but in the process many, many more people now know of Mr Tyler's activities.  In addition, whilst the .co.uk site has gone, everything has simply moved across to http://www.ihateryanair.org/
minus the paid links.  Furthermore, Nominet's judgement is that 'criticism websites are essential in a democratic society', and that 'in a free and open society internet users should generally be able to post comments on their recent experiences or on current events, as long as such postings do not fall foul of the law' - in other words, if a company lets you down, feel free to tell the world about it in factual terms, and as long as you stop short of defamation, or make money through using that company's name, you'll be OK. (In fact, had it been a .com site, the fact that £322 was earned probably wouldn't have resulted in the site being closed, because the rules are different there).

Tyler is not a man who pulls his punches, and in bemoaning the fact that he had lost on a 'technicality' he said  'Never fear, we have already moved the site to it’s new home on www.ihateryanair.org and will continue to provide you with all the latest on how this pathetic excuse for an airline will attempt to extract cash from you through sneaky hidden charges, fly you to places that are not where you actually want to go and leave you stranded when the cr*p hits the fan,"!  Remind me never to get on the wrong side of Robert Tyler.

This judgement is a vindication of an individual's right to use the internet to disseminate information and facts about issues and complaints to the widest possible audience.  It also clarifies what can and can't be done - whilst Nominet's judgements aren't part of the legal system, this one sets a precedent that will give guidance to other website owners.   

As is so often the case in libel actions in the courts, one wonders whether, with the benefit of hindsight, Ryanair might not have done better to let this particular sleeping dog lie?  Tyler's site was largely preaching to the converted up until now, but chunky stories in all of the broadsheets have given him a wider and much more credible forum.

Changed a lot since the Jethro Tull days....

Excellent session with Ian Anderson on Media Law on Thursday.  However, I do wish he'd occasionally stand on one leg, play the flute and wipe away the snot with his sleeve - maybe he's just not keen to re-live his Jethro Tull days? 



I liked the format of his session which was heavily practical, based on the case of the two men who robbed the post office and shot the dog.  The first thing I realised was that writing news is different from the sort of features and match reports I do.  Listening to the third years I could immediately recognise that news reporting is a skill that needs to be learned - I've started to listen to radio news in a different way over the past few days.

I made the point at the start of the course that I reckon avoiding libelling someone is largely a matter of common sense, and I now also believe that the same probably applies to avoiding prejudicing a trial.  The key point of the session was how to recognise risk, and avoid blundering over the fine line.  Producing pieces referring to the robbery, but as if they were at different stages of the investigation / charging process, was fascinating, and the main lesson for me was to understand just how close to the wind we could sail without coming unstuck.

The main points that stuck were understanding when a case became legally 'active (when the police make an arrest, issue an arrest warrant, magistrates issue a summons, or when charges are made), and the seven things that can be reported pre-trial:

- names, ages, addresses, occupation
- charges
- name of court and magistrates
- names of lawyers present
- date and place to when / where adjourned
- bail arrangements
- whether Legal Aid was granted

Also, understanding the requirements of reporting in court: Fair, Accurate, Contemporaneous and no sound or image recording of events.

It was good to be pointed to the excellent BBC College of Journalism site - I can see it getting some hammer in the coming weeks and months.