Mirror forced to name Brady informant
Ashworth Security Hospital v MGN Ltd (27 June 2002, House
of Lords)
Public figure's previous disclosures
about his sex life did not entitle press to publish private medical information
Angus Deayton v The Mail on Sunday (8 June 2002, Ouseley
J)
Lord Nicholls on Reynolds - the sequel
Hugh Bonnick v Margaret Morris, Gleaner Company Ltd and
Ken Alen (17 June 2002, Privy Council)
Downing Street withdraws PCC complaint
Tony Blair v The Spectator, The Evening Standard and The
Mail on Sunday: Press Complaints Commission
The defence of justification complies with
Article 10
Elaine Chase v News Group Newspapers Ltd (29 May 2002,
Eady J)
Settlement reached during "Trial and Error" libel case
David Gregson v Channel Four Television Corporation (21 June 2002, Morland J)
Summary judgment given where malice claim 'baseless'
Dr Adoko v Robin Lewis (6 March 2002, Gray J)
Victoria Gillick wins permission to appeal
Victoria Gillick v Brook Advisory Centres
Injunction granted to restrain publication
of 'competing' text book
Psychology Press Ltd v Cara Flanagan and Nelson Thornes
Ltd (19 June 2002, Eady J)
Kate Adie brings libel claim
Kate Adie v The Sun
Independent publishing house willing to risk
libel claim to publish book about David Irving
Verso publish "Telling Lies About Hitler: The Holocaust,
History and the David Irving Trial"
In
December 1999, the Daily Mirror published verbatim extracts from the medical
records of Moors murderer Ian Brady. Brady is a patient at the Ashworth Security
Hospital and at the time was on hunger strike. In support of his own campaign
objecting to his transfer to another ward, Brady had placed information from
his medical records in the public domain. The Daily Mirror article contained
a watered down version of this material obtained from the hospital's computer
database.
Ashworth's own investigation failed to discover the source of the leak and it
therefore sought an order for the disclosure of the identity of the informant.
The newspaper had dealt through an intermediary and did not know the identity
of the original source. It was assumed to be an employee. The hospital was concerned
about the confidentiality of its medical records and had a non-disclosure clause
in its contract of employment. The treatment of patients, staff morale and the
doctor-patient relationship all depended on a trust which was undermined by
such leaks. Ashworth's intention was to discipline the person responsible, probably
by dismissal. The Daily Mirror's concern was to protect the confidentiality
of its source.
At first instance, the newspaper was ordered to disclose the identity of the
intermediary by Rougier J. He concluded that, 'it is not so much the nature
of this leak, but the fact that it happened at all, which is all-important,
for, unless stopped, that which has occurred once may well occur again.' His
decision was upheld by Lord Phillips MR, May LJ and Laws LJ in the Court of
Appeal. Among the issues there were: whether the order could be made under the
Norwich Pharmacal principle and if so whether it infringed the statutory
privilege against the disclosure of journalists' sources. This protection is
available in certain defined circumstances under the Contempt of Court Act 1981
s.10.
The law in this area has been developing over the past 30 years. A Norwich
Pharmacal order is an equitable and discretionary remedy for the disclosure
of the identity of someone who 'gets mixed up in the tortuous acts of others
so as to facilitate their wrongdoing…' They may not incur personal liability
but they do come under a duty to assist the person wronged by disclosing the
identity of the wrongdoers. (See Lord Reid in Norwich Pharmacal Co v Customs
and Excise Commissioners [1974] AC 133, 175, HL.) The principle was extended
in P v T Ltd [1997] 4 All ER 200 so that a prospective claimant could
obtain the information and documents necessary for a possible but as yet uncertain
action in tort committed against them. In another case concerning journalists'
sources, British Steel Corporation v Granada Television Ltd [1981] AC
1096, it was held that a claimant must have a real and unsatisfied claim against
the unknown wrongdoer even if s/he does not intend to pursue it or opts to pursue
a different remedy such as dismissal.
In Ashworth v MGN the conflict was again between identifying the employee
who was a 'wrongdoer' and protecting the disclosure of a journalist's source.
A balance had to be struck between the public interest in preserving the rights
of the press to protect the ID of their sources and the hospital's interest
in enforcing its private law rights to dismiss or otherwise discipline the employee.
In its appeal to the House of Lords, MGN contended that:
| 1. | Ashworth
had failed to establish that the information was truly confidential; it
was already in the public domain published by Brady and not secret HELD: adopting Lord Philip's approach in the Court of Appeal that while Brady may not be able to complain about MGN's publication, the hospital had an independent interest in retaining the confidentiality of its medical records. The original source had therefore acted in breach of confidence and in breach of contract and was a wrongdoer. MGN became involved in the wrongdoing. |
| 2. | Since
Brady had published the information, MGN was not liable in law for its further
publication HELD: the wrongdoing needs to be that of the person whose identity is sought, not the person against whom proceedings are brought. MGN's legal liability was irrelevant. Also discovery cannot be sought against a mere onlooker; there had to be an 'involvement' of the third party. This involvement was a significant but not a stringent threshold requirement and acts to protect an innocent party from a disclosure order unless it is a necessary and proportionate response in all the circumstances. |
| 3. | The
exception permitting disclosure under s.10 of the Contempt of Court Act,
which permits the disclosure of a journalist's source in the 'interests
of justice', only applies where disclosure is required for intended or existing
proceedings HELD: the jurisdiction was not limited to cases where the victim intended to pursue a legal remedy against the wrongdoer. And what is in the 'interests of justice' is not to be construed narrowly (per Lord Bridge in X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1). Exercising a legal right or averting a legal wrong is insufficient. The balance is between enabling the ends of justice to be attained in the circumstances of the particular case and the importance of protecting the source. The threshold of necessity is only reached '…if disclosure is of such preponderating importance as to override the statutory privilege against disclosure'. |
| 4. | Whether,
within ECHR Article 10 jurisprudence on freedom of expression, the hospital
had established that a discovery order under s.10 was proportionate to a
legitimate aim and strictly necessary in a democratic society HELD: s.10 and Article 10 have a common purpose in protecting journalistic sources to enhance freedom of expression. To be compatible with Article 10 which is now part of UK domestic law, any disclosure order must be justified by an overriding requirement in the public interest as set out in Goodwin v UK (1966) 22 EHRR 123. The necessity for restrictions on freedom of expression must be convincingly established and limitations on the confidentiality of journalistic sources call for the courts' most careful scrutiny. Confidentiality of health data has been confirmed as a vital principle (Z v Finland (1998) 25 EHRR 371) and because the difficulty and danger of caring for Ashworth patients is increased by the disclosure of their records and future wrongdoing had to be deterred, the order to disclose was both necessary and proportionate and justified. |
| 5. | The
Norwich Pharmacal jurisdiction is an aid to litigation and only extends
to cases where proceedings are live or intended HELD: This is an exceptional jurisdiction but so long as a cause of action is established, orders can be made even if the information was not required for the purposes of bringing an action against the informant. Limits that applied in its infancy should not be allowed to stultify its use now as a valuable and mature remedy. |
Comment
The case illustrates the importance accorded to the confidentiality of
medical records. Orders compelling the disclosure of sources will always be
unusual. However, the protection given by s.10 of the Contempt of Court Act
1981 to sources has never been absolute and, Article 10 does not require it
to be. Protecting medical information is a perfectly justifiable reason for
restricting freedom of expression. Where the balance is to be struck will, as
always, depend on the facts of the case. The House of Lords is to be commended
for adopting a flexible approach to the issue.
Links
Judgment
News Reports
Mirror
reveals Brady source
Clare Dyer
28 June 2002
Angus Deayton v The Mail on Sunday
(8 June 2002, Ouseley J)
The
presenter of the BBC's 'Have I Got News for You' obtained an emergency injunction
at 5.30pm on Saturday 8 June preventing the Mail on Sunday from publishing details
of his medical history or other such information about him. Deayton had previously
featured in kiss-and-tell allegations published in the News of the World in
which a call girl disclosed that she had a sexual relationship with him and
that he had snorted cocaine. After that article was published Deayton and his
partner gave an interview to a rival Sunday newspaper about their reaction to
the News of the World article which contained information about their private
lives. The Mail on Sunday argued that Deayton had thereby compromised his right
to privacy. The judge, after a three hour hearing at his home, granted an interim
injunction. The newspaper has said that it will appeal.
Comment
This is a further illustration of the lengths that the courts will go
to prevent the publication of medical records. Deayton clearly compromised his
own privacy by giving an interview in response to the News of the World article.
However, whatever was said did not waive his right to protect the confidentiality
of medical records. The other practical point is that an injunction is the best
way of oiling the wheels of gossip. Just about everyone in media circles appears
to know what that the Mail on Sunday wishes to publish, just as they knew that
Garry Flitcroft was the footballer in A v B well before Lord Woolf allowed the
great unwashed into the secret..
Links
News Reports
Mail
appeals against Deayton gag
Patrick Barkham
01 July 2002
TV
host wins gagging order against new sex claims
Sarah Hall and Matt Wells
10 June 2002
Comment
Sex,
privacy and press freedom
Anthony Scrivener
11 June 2002
Hugh Bonnick v Margaret Morris, Gleaner Co Ltd and Ken Alen (17 June 2002, Privy Council) A short business article in Jamaica's Sunday Gleaner led to this Privy Council decision on common law qualified privilege and how best to apply the standard of responsible journalism set out in Reynolds v Times Newspapers Ltd in a practical and flexible way.
In protecting responsible journalism when reporting matters of public concern, the Reynolds privilege strikes a balance between freedom of expression and the reputations of individuals. Lord Nicholls left the ambit of the defence open but identified ten criteria that the courts should consider when determining the underlying test of 'whether the public was entitled to know'. These included the seriousness of the allegation, whether it was a matter of public concern and the steps taken to verify the story.
Here the question for their Lordships was: when the context of the defamatory words permits a range of meanings, should the law apply an objective standard to the journalist's conduct by reference to the single meaning the law attributes to the offending words? Or should account be taken of how reasonable it was for the journalist or editor to have read the words in an alternative and non-defamatory sense?
The story of the article was straightforward. Hugh Bonnick, the former managing director of a government owned company with a monopoly in basic foods, sued the paper over its report that he had been dismissed from his post following a dispute over payments with a Belgian milk powder supplier. By implication, but importantly not expressly, the article linked alleged irregularities in the Belgian exporter's contract to Bonnick's dismissal. The journalist got her story from an anonymous source and spoke to Bonnick but did not know whose account was correct and left the readers to make up their own minds. She omitted to include Bonnick's denial of any connection between his dismissal and the contractual issues.
Bonnick won his libel claim at first instance but lost in the Jamaican Court of Appeal. He now appealed to the Privy Council. On the meaning of the words, the Privy Council accepted that when read in context, the separate statements about irregularities and dismissal would impute a connection which would convey to a reasonable reader the defamatory imputation that the termination of Bonnick's services resulted from the contractual irregularities. Further, because they were statements of fact, the defence of fair comment was not available.
The real issue was therefore the Sunday Gleaner's defence of qualified privilege. The Privy Council determined first of all, that the first instance judgment was given before the decision in Reynolds and the court could not have been expected to approach the issue in the way that the common law had subsequently developed. Secondly, Reynolds was declared consistent with s.22 of the Constitution of Jamaica as it was with Article 10 of the European Convention on Human Rights.
If the paper had stated expressly that Bonnick was sacked over his handling of the contract, a defence of qualified privilege would not have succeeded. This was because the paper had no factual foundation for the reason for Bonnick's dismissal and failed to publish his own explanation; that he had refused to resign when an incoming minister wanted to appoint someone else as managing director and insisted on being dismissed so he would be paid compensation. For the failure to check and leaving out Bonnick's version of events, the article fell short of the standards expected of a responsible journalist.
However, the article did not make such an express statement. The defamatory imputation was a matter of implication and there was scope for different readers to reach different conclusions as to whether or not the article contained such an implication. The inherent imprecision of language means that words and phrases depend on context for their meaning and the issue is whether such variations should be taken into account when applying the objective standard of responsible journalism.
Defamation law adopts the (artificial) 'single meaning' rule when determining meaning. It is the only fair and workable way of deciding whether particular words are defamatory. But this is a wrong principle for deciding whether a journalist or newspaper has acted responsibly. The question here is one of conduct and not meaning.
Acting with professional skill and care is the price journalists pay for their freedom of expression and the court must have regard to the practical realities when determining the standard of conduct. Their Lordships considered that it would be unnecessary and undesirable to introduce the rigidity and legalism of judging such conduct against a 'single meaning' of the words. Journalists should not be penalised for making a wrong decision on a question of meaning when different interpretations are available. Non-defamatory meanings may properly be taken into account when considering whether Reynolds privilege is available as a defence.
But their Lordships also gave a health warning. 'This should not be pressed too far. Where questions of defamation may arise ambiguity is best avoided as much as possible. It should not be a screen behind which a journalist is 'willing to wound, and yet afraid to strike'. In the normal course a responsible journalist can be expected to perceive the meaning an ordinary, reasonable reader is likely to give to his article…. The more obvious the defamatory meaning, and the more serious the defamation, the less weight a court will attach to other possible meanings when considering the conduct to be expected of a responsible journalist.
In Bonnick's case the Privy Council held:
- the affairs of the company and its management were matters of public concern because it was government owned and its import business affected everyone's cost of living. The public were entitled to be informed;
- irregular conduct was a matter of legitimate public interest, as was the departure of Hugh Bonnick as Managing Director and his comments were printed. The paper did not associate itself with any particular version of events and the overall tone of the article was restrained;
- the defamatory imputation was not so glaringly obvious that a journalist would realise how an ordinary reasonable reader would interpret the words and in any event the imputation was not high on a scale of gravity;
- the failure to make further enquiries or include Bonnick's version of events was unfortunate but had to be evaluated against the overall background.
In This was a borderline case where,
on balance, qualified privilege was available to the defendant.
Comment
A logical application of the Reynolds principles provided that it is applied
rigorously and not used as a shield for sloppy wording.
Tony Blair v The Spectator, The Evening Standard and
The Mail on Sunday: Press Complaints Commission
The
Prime Minister has withdrawn his complaint to the Press Complaints Commissions
(PCC) about accusations that he tried to exploit the death of the Queen Mother
to enhance his own role during the lying in state. According to the PCC, Downing
Street withdrew the complaint as the three publications involved accepted that
the accusations were not true. However, The Mail on Sunday and The
Spectator continue to maintain that the Prime Minister's staff had tried
to enhance Mr Blair's role during a conversation with Black Rod, the organiser.
In his letter to the PCC, Mr Campbell, the Prime Minister's director of communications,
warned that the matter would be referred back to the PCC should any accusations
that the Prime Minister was involved be repeated.
Comment
This was a foolhardy complaint. No matter what spin is sought to be put
on the withdrawal, it is clearly a humiliating climb down.
Elaine Chase v News Group Newspapers Ltd (29 May 2002, Eady J)
In
these interim applications, a paediatric community sister was granted permission
to use certain documents from the NHS in her libel action against the Sun and
succeeded in striking out part of the Sun's justification defence.
In June 2000, the paper claimed that the sister was suspected of overdosing
18 terminally ill children with painkillers. Comparisons were made with the
serial killer nurse Beverley Allitt who was convicted in 1993. The Sun's articles
also alleged that the sister had been suspended from work and was being investigated
by her NHS Trust and the police. She was said to have acted in a brutal, callous
and cold-hearted way towards the children in her care and their parents.
The nursing sister succeeded in striking out significant material from two of
the Sun's Lucas-Box meanings (the meanings that the defence is prepared to justify
which are usually lesser meanings than the claimant has pleaded). The first
was that there were reasonable grounds for suspecting the sister of involvement
in hastening the deaths of child patients and secondly that she was capable
of treating her child patients in a brutal, cold-hearted and uncompassionate
manner. Eady J held that the particulars were incapable of supporting the first
meaning because the particulars did not refer to the claimant's conduct, were
based in part on hearsay and post dated publication of the article. On the second
meaning the judge struck out the word 'capable' on the basis that the defendant
had to bite the bullet. Elaine Chase was plainly accused of actual brutality
without equivocation and that was the allegation the paper had to defend if
it could.
The judge also gave the sister access to an affidavit sworn by her NHS Trust
for purposes other than this action which expressly stated there were no reasonable
grounds for suspecting her of hastening the death of any child. Furthermore,
with the proviso that confidential material identifying a child patient was
safeguarded, Eady J also allowed the claimant to use notes disclosed by the
defendant to pursue a potential future action against the BBC and/or complaints
to the BSC or her local MP.
An interesting aside which did not feature in the judge's decisions was a carefully
argued submission that the English law of defamation unduly inhibits journalistic
freedom. In particular that the defence of justification has to be given a more
liberal interpretation that allows for a degree of exaggeration. Eady J was
clear that the compatibility of English law with the European Convention on
Human Rights was to be judged by the full range of defences available to those
sued for defamation (and in this case that included a defence of qualified privilege).
The law of justification was not to be treated in isolation and contorted in
the name of press freedom in order to help the editor out of his chosen quicksand.
The requirement for the Sun to prove the allegations made in the article, on
the balance of probabilities, was a justified restriction on its freedom of
expression under Article 10(2).
Comment
The case shows that the media have probably pushed Article 10 as far as
it will go widening the scope of recognised defences. Last month the Court of
Appeal reasserted the repetition rule (Mark v Associated Newspapers Ltd) and
the ECHR rejected an application to reverse the burden of proof (McVicar v UK).
Now Eady J has upheld the traditional principles governing a justification defence
based on "reasonable grounds to suspect". The real battleground in the future
is likely to be the practical application of the Reynolds principles. If a newspaper
has not acted sufficiently reasonably to fall within the Reynolds defence it
should not expect much help from the court in respect of justification.
Links
Judgment
David Gregson v Channel Four Television Corporation (21 June 2002,
Morland J)
The
claim concerned a broadcast of "Trial and Error", which concluded that there
had been a miscarriage of justice due to errors in the police investigation
of a case involving a man who was then convicted of murdering his wife. The
claimant was one of the police officers involved, and the implication - to those
that are aware of the background to the case - was that he could be suspected
of fabricating evidence in order to ensure the conviction against the husband.
In a statement in open court - made following a settlement after the trial had
commenced - it was accepted by the claimant that Channel 4 and programme makers
had honestly believed that there had been a miscarriage of justice. In turn,
Channel 4 and programme makers expressed that there had been no intention to
present the claimant as corrupt or dishonest, and that any such presentation
of the claimant would be unfounded. The claimant withdrew his criticisms of
the programme makers feeling that his professional reputation had been exonerated.
There was no suggestion that Channel 4 had paid any damages or costs.
Comment
Unless one party has completely climbed down, it is never an ideal solution
for either party when a case settles midway through a trial with both sides
being left with large legal bills.
Back to top
Dr Adoko v Robin Lewis (6 March 2002, Gray J)
Robin
Lewis, partner at law firm Bindman and Partners, succeeded in an application
for summary judgment in a defamation claim brought against him by Dr Adoko.
Dr Adoko, a former solicitor, had prior to this claim brought multiple proceedings
against the Law Society for various complaints. In each of those proceedings
Robin Lewis had been instructed. Dr Adoko subsequently published a book entitled
'The Most Corrupt British Judges' in which he accused Mr Lewis of a vast array
of allegations of corruption. He also published the book on a website hosted
by Freeserve. Robin Lewis, through his firm, wrote to Freeserve warning them
that the material was defamatory and could expose them to a claim from Mr Lewis
in defamation if not removed. In the letter Mr Lewis said Dr Adoko's allegations
were absurd. Dr Adoko, by means unknown, obtained a copy of the letter to Freeserve
and brought libel proceedings against Lewis, claiming that the allegation of
"absurdity" suggested that he had lied, was fraudulent and intended to deceive
readers. Mr Lewis defended the claim on the basis that the letter was protected
by qualified privilege. Dr Adoko alleged that Lewis was motivated by malice.
The judge found that this was a classic case of qualified privilege - where
a person sought in good faith redress for a grievance that he had suffered,
by communicating the grievance to the person with power to grant redress. Dr
Adoko's submissions on malice - one of which was that Lewis was malicious in
breaching Article 10 of the European Convention of Human Rights by seeking to
have the material removed from the website - were rejected by the judge as baseless.
Comment
This case is a good illustration that the summary disposal regime is most
useful when the publication is clearly protected by qualified privilege, the
only issue is malice and the malice claim is weak.
Victoria Gillick v Brook Advisory Centres
Victoria Gillick has been granted permission to appeal against an earlier decision in favour of Brook Advisory Centres by Gray J (see March newsletter). The appeal will tackle the important issue of the extent to which a judge can determine whether a publication is defamatory within the summary disposal regime. Generally, a judge can only determine whether the publication is capable of being defamatory. Whether it is defamatory is generally for the jury.
Back to topPsychology Press Ltd v Cara Flanagan and Nelson Thornes Ltd (19 June 2002, Eady J)
Psychology
Press applied for an interim injunction against Nelson Thornes to prevent the
printing editing or publishing of an AS level psychology textbook entitled 'Psychology
AS - the Complete Companion' which Nelson Thornes was due to publish later this
year. Cara Flanagan and Psychology Press had in August 1999 published a textbook
entitled 'Psychology for AS Level'. Under a clause of the publishing agreement
Cara Flanagan had agreed not to publish any work that "might interfere or injure
the sale of the Psychology Press textbook. Cara Flanagan subsequently agreed
with Nelson Thornes to publish 'Psychology AS - the Complete Companion' and
Psychology Press wanted to prevent publication going ahead. The application
for an interim injunction was made in circumstances where the trial of the main
action would be able to happen within a short period - between 8 July 2002 and
the end of the summer legal term.
Psychology Press claimed against Nelson Thornes under the tort of inducement
to breach of contract. It claimed to have a seriously arguable case that Nelson
Thornes was aware of the terms of the contract and that Cara Flanagan would
be breaching it by publishing the Nelson Thornes textbook. Psychology Press
argued further that damages would not be an adequate remedy as any damage to
the sales of its book caused by the publication of a rival would be difficult
to quantify. Also difficult to quantify would be the damage to sales of the
next edition of its book (which ironically Cara Flanagan was due to participate
in) due for publication in 2003.
Nelson Thornes argued that the application should be viewed in light of the
Human Rights Act so as to recognise the public interest in freedom of expression.
Under the Human Rights Act any restriction on a right to freedom of expression
has to be justified. It also argued that there was a further public interest
in allowing a new product onto the market, and that with work proceeding on
the publication of the book the balance of convenience lay with allowing it
to be published.
The judge, having seen a draft of the Nelson Thornes book and considered the
evidence, thought there was a powerfully arguable case that their book was intended
to compete with Psychology Press book. He accepted that there would be difficulty
in assessing the damage that would be caused were the rival book to be published.
In any event he considered the balance of convenience (or justice) lay in preventing
publication. In the circumstances of this case all the issues could be finally
determined after the trial, which was due to come on imminently. The status
quo would be maintained by the book remaining not published until the trial.
As regards the freedom of expression argument, he found that there was a countervailing
public interest in maintaining the "sanctity" of contractual terms, provided
any such provisions are reasonable and proportionate.
The case involves an interesting balance between freedom of expression - in this case maintaining diversity and competition in the educational publishing marketplace - and what is described as the "sanctity" of contract. If the case proceeds to trial - probably unlikely - it will be interesting to see how the trial judge strikes the balance.
Links
Judgment
Back to top
Kate Adie v The Sun Following an article in The Sun entitled "Sack Kate Adie - fury at security boob", the BBC foreign correspondent is bringing a libel claim for more than £50,000 in damages.
Back to top
Verso publish "Telling Lies About Hitler: The Holocaust, History and the David Irving Trial" Verso, an independent publishing house, has stepped in and published the book by Richard J. Evans, professor of modern history at Cambridge University. This follows the stepping down of several other publishers in the wake of threats to sue by David Irving, despite his previous failed attempt against Penguin Books. Verso's spokesman, Gavin Everrall, rather than fearing a claim by Irving says "I hope he does…the free publicity will save our marketing department a fortune." The book is now on sale.
Comment
It is unfortunate that a man who has been branded by a High Court judge as an apologist for Hitler who distorted history for political purposes, has been able to use the threat of a libel claim to deter publishers. Congratulations to Verso for having the b*ll*cks to take him on.
Links
News Reports
Publish and be praised
Nick Cohen
16 June 2002