Footballer’s lovers can kiss and tell.
No confidence in transitory extra-marital relationship.
A (Garry Flitcroft) v B & C - Court of Appeal, 11 March 2002
Supermodel’s pyrrhic victory over article
disclosing treatment for drug addiction.
Naomi Campbell v MGN Limited - Mr Justice Morland, 27 March 2002
Public interest defence has no realistic prospect of
success.
Naomi Campbell v Vanessa Frisbee – Mr Justice Lightman, 14 March
2002
The Official Secrets Act 1989 is compatible
with Article 10 ECHR. David Shayler, former MI5 officer, cannot
defend criminal proceedings by claiming that his disclosures to the media
were justified.
R v Shayler - House of Lords, 21 March 2002
No implied duty of confidence on a prostitute.
Jamie Theakston v MGN Ltd - Ouseley J, 14 February 2002
No “censorship” of political speech on grounds of “taste and decency”.
Prolife Alliance v British Broadcasting Corporation - Court of Appeal, 14 March 2002
Restrictions on prisoner’s contact with the media must be justified.
Hirst v Secretary of State for the Home Department - Mr Justice Elias, 22 March 2002
Court of Appeal upholds order to disclosure documents from anonymous source.
Interbrew SA v Financial Times Ltd & Ors - Court of Appeal, 8 March 2002
The Secretary of State was entitled to conclude that an inquiry into the outbreak of foot and mouth disease should be held in private.
Obscenity law complies with Article 10 ECHR. No need to prove that web site was accessed.
R v Stephane Laurent Perrin - Court of Appeal, 22 March 2002
Court to rule on whether section 3 of the Treason and Felony Act 1848 is contrary to Article 10 ECHR.
Local newspaper’s “2 out of 3” victory in libel trial.
Payments to Gehring witness do not breach the PCC Code of Conduct.
Libel claim dismissed under the summary procedure. Not defamatory to be “morally responsible” without suggestion of reprehensible conduct.
Apology to Krishna group for advertisement libel
David Trimble wins second Amazon libel claim
Rt Hon David Trimble MP v Amazon.co.uk Ltd - Eady J, 27 March 2002
The Sun ordered to pay additional damages for deliberate infringement of copyright.
A (Garry Flitcroft) v B & C - Court of Appeal, 11 March 2002
The Court of Appeal, under the captaincy of Lord Woolf LCJ, has discharged an injunction granted by Jack J which prevented two women who had affairs with a married footballer from selling their stories to a national newspaper. Jack J had held that parties to a sexual relationship outside marriage could be bound by duties of confidence which would prevent them disclosing the facts and details of the relationship to the media. Although aspects of the relationships had been conducted in public, the fact that they were having sexual intercourse was not known. The footballer had not courted publicity or laid his life open to public scrutiny. It followed that there was no legitimate public interest in disclosure and an injunction was granted pending trial.
The Court of Appeal decided that Jack J had taken the wrong approach. Specifically, he should not have regarded the relatively transitory relationships involved as imposing similar duties of confidentiality to those which apply in permanent relationships, such as marriage. More controversially, Jack J’s approach to the public interest was felt to be too narrow. There was arguably an element of public interest in how a well-known footballer, with a position of responsibility within his club, chose to spend time off the field.
The Court also set out the following guidelines as to the correct approach to pre-publication injunctions of this type.
- The decision on whether to grant an interim injunction is a matter that falls within a judge’s discretion.
- If an injunction is not granted the claimant may be deprived of the only remedy that is of any value. However, that must be weighed against the defendant’s right to freedom of expression which must be given particular importance.
- Section 12 of the Human Rights Act 1998 makes it clear that no injunction can be granted unless the court is satisfied that the claimant is likely to succeed at trial.
- Any interference with freedom of expression must be justified because it has an effect on the ability of the press to perform its public role. This applies whether or not there is any legitimate interest in the proposed publication under scrutiny.
- There is generally no need to decide whether there exists a new tort of infringement of privacy. A claim for breach of confidence will generally be sufficient.
- In the majority of the cases, the issue of whether the claimant has a sufficient claim for confidence should be obvious. If it is not obvious, then it is likely to be outweighed by freedom of expression.
- In the context of “kiss and tell” stories, there is a conflict between one lover’s right to privacy and the other’s freedom of expression. The more stable the relationship the greater the weight that will be given to the right to privacy.
- While a public figure is entitled to have his privacy respected in appropriate circumstances, such a person must recognise that his actions will be more closely scrutinised by the media, particularly where he has courted attention relating to his private life. The public have an understandable and legitimate interest in being told information about such a person. If newspapers do not publish interesting material, there will be fewer newspapers published and this will not be in the public interest.
- The fact that a newspaper might adopt a lurid or salacious approach is irrelevant, if the claimant cannot otherwise satisfy the court that publication should be prevented. Questions of taste and presentation are for editors not judges.
At the time of the judgment the injunction was extended for a further period to allow the footballer to apply to the House of Lords for permission to appeal, but was subsequently discharged. His identity has now been disclosed as Garry Flitcroft of Blackburn Rovers.
Comment
Lord Woolf has always been a shrewd political operator and lifting Jack J's controversial injunction was always going to be the most favourably received option. Nevertheless, the judgment is open to criticism. Whether it is “obvious” that there is a valid claim for breach of confidence is a highly subjective issue that could give rise to wide variations of judicial application depending on the particular views of the judge hearing the matter. Similarly, the traditional distinction between what is in the public interest and what interests the public has been significantly blurred. It is difficult to see how Garry Flitcroft’s extra-marital romps have any relevance to his career even if it is accepted that footballers are often viewed as role models
On balance, however, it was the right decision. It is one thing to “extend” the law of breach of confidence. It is another to create a new tort of infringement of privacy, as could have been the consequence of Jack J’s decision. Whether there should be such a tort is a matter for Parliament, not the judiciary.
Links
Footballer
loses year-long fight for privacy
March 30 2002
With freedom
comes responsibilities
March 18 2002
Martin Cruddace
What price
celebrity?
March 18 2002
Andrew Caldecott Q.C.
Naomi Campbell v MGN Limited - Mr Justice Morland, 27 March 2002
Naomi Campbell obtained a pyrrhic victory in her action against The Mirror seeking damages for breach of confidentiality and for compensation under Section 13 of the Data Protection Act 1998 over articles and accompanying photographs published by MGN on 1 February and 5 February 2001.
The articles had revealed that contrary to her previous false assertions Campbell was a drug addict attending meetings of Narcotics Anonymous. The Mirror had published some details of those meetings and photographs of her leaving one such meeting in Chelsea. Miss Campbell did not pursue a claim for damages for infringement of her privacy.
The Mirror argued that if the information published was confidential, then there was a public interest in publication which outweighed any public interest of Campbell’s rights of confidentiality.
Mr Justice Morland ruled that the details of Campbell’s treatment “bore the badge” of confidentiality. They were obtained surreptitiously and assisted by covert photography. The information was obtained in circumstances in which an obligation of confidence was owed – whether obtained from a fellow member of Narcotics Anonymous or from a member of Miss Campbell’s staff or by a journalist attending a meeting or by covert photography. The judge also thought publication of the details of therapy was to Miss Campbell’s detriment – likely to discourage her attendance and participation in therapy meetings. He also ruled that significant distress was caused by publication of the details of therapy, over and above the distress she suffered by publication of the fact that she was a drug addict and had previously lied in saying that she did not have a drug problem.
The judge said he appreciated that the award of damages and costs against newspapers in respect of confidential information could have a chilling effect upon freedom of expression. He was also aware that Miss Campbell was the subject of great media interest, that she exploited her celebrity status in her business exploits and that she had discussed aspects of her private life and behaviour in the media. He also found that she had lied about her drug addiction, and had persisted with deliberate lies about that even during the court case.
However, he ruled that even with self-publicists not every aspect and detail of their private lives is “legitimate quarry” for the journalist. Whilst the public had a need to know that Miss Campbell had been misleading the public by her denials of drug addiction, and good journalism demanded that the public be told, the extent of the details published was objectionable. Whilst he accepted that there was a balance to be struck between Articles 8 and 10 of the Human Rights Act 1998 (the articles dealing respectively with respect for family life and the right to freedom of expression), clearly in this case Miss Campbell was entitled to damages.
As regards the claim under the Data Protection Act 1998, Mr Morland ruled that this part of the claim also succeeded. The Act provides for restrictions on the publication or “processing” of sensitive personal data by a data controller about a data subject. Miss Campbell was a “data subject” under the Act, and the information regarding therapy details and photographs was “personal data”. He also ruled that the data was “sensitive personal data” under the Act, relating as it did to her physical or mental health or condition. He rejected the Mirror’s submission that the Act was offensive to Article 10 of the European Convention on Human Rights. The question then was whether Miss Campbell was entitled to compensation, and MGN had fulfilled none of the requirements as a data controller under the Act.
The judge assessed damages or compensation in the sum of £2,500 (for both breach of confidence and under the Data Protection Act), concluding that whilst Miss Campbell had lied on oath and her evidence on the harm she had suffered should be treated with caution, he was satisfied that she had genuinely suffered distress and injury to feelings. He also assessed aggravated damages at £1,000 – concluding that MGN’s approach to the litigation in The Mirror was to belittle Miss Campbell’s claim, and that this was rubbing salt into her wounds. A further article in The Mirror published on 7 February 2001 had “trashed her as a person” in a highly offensive and hurtful manner.
The total sum awarded in damages was £3,500. Mr Justice Morland refused leave to appeal and it was subsequently reported in the press that The Mirror would be taking the case to the Court of Appeal and the House of Lords if necessary.
Comment
The case started in a blaze of glory as the first infringement of privacy claim. It ended with something of a whimper. The privacy claim was not pursued and the judge’s decision was based primarily on breach of confidence. There is nothing controversial in the courts regarding the details of medical or psychological treatment – whether formal or not - as confidential.
Probably the most interesting part was the fixing of basic damages at £2,500 and aggravated damages at £1,000. Unfortunately, the judge did not seek to explain the award beyond general observations about the extent of injury to feelings suffered by Campbell. While the purpose of damages is generally to compensate the claimant, rather than punish the newspaper, the practical consequence of awards of this level is that if there is a good story the media are unlikely to hold back out of fear of a claim.
The claim under the Data Protection Act added little or nothing to the confidence claim. Since this is a newsletter, as opposed to a book, we do not propose adding anything further on this.
Links
Full Judgment
http://www.courtservice.gov.uk/judgmentsfiles/j1096
/Naomi_Campbell_v_Mirror.htm
Legal landmark as Naomi Campbell wins privacy case
Sarah Hall and Clare Dyer
March 28 2002
Why judge backed Campbell in privacy case
Jessica Hodgson
March 27 2002
Ruling does not establish privacy law, claims lawyer
Jessica Hodgson and Julia Day
March 27 2002
Campbell's lawyer hails 'legal right to privacy'
Jessica Hodgson
March 27 2002
Campbell v Frisbee – Mr Justice Lightman, 14 March 2002
Vanessa Frisbee, former PA to Naomi Campbell, lost her appeal against summary judgment on part of the supermodel’s claim. The dispute arose from the stormy ending of Frisbee’s employment. She claimed that Campbell assaulted her following an argument about Campbell’s secret relationship with actor Joseph Fiennes. Frisbee went to see Max Clifford, the well-known publicist, and an article duly appeared in the News of the World concerning the alleged assault and Campbell’s relationship with Fiennes. Campbell sued for breach of confidence based on a lengthy confidentiality agreement that Frisbee had signed. Frisbee counterclaimed for assault.
Lightman J upheld the Deputy Master Lloyd’s decision to grant Campbell summary judgment on part of her claim. He held that Campbell’s treatment of Frisbee, even if it did amount to a repudiatory breach of contract, did not bring to an end Frisbee’s contractual duty of confidence. The general employment law rule is that a repudiatory breach of contract by the employer releases the employee from all continuing contractual obligations. Lightman J said that this rule should not apply in respect of contractual obligations of confidence. He rejected the submission on behalf of Frisbee, that there was a public interest in disclosure that arose from the fact that Campbell had put elements of her private life into the public domain and had painted a false picture of her relationship with Flavio Briatore, her then fiancé. Taking a more paternalistic view of the public interest to the Court of Appeal in A v B & C, Lightman drew the traditional distinction between what is genuinely in the public interest and what interests the public e.g. salacious material about celebrities. He distinguished A v B and Theakston v MGN Ltd on the basis that Frisbee had signed a confidentiality agreement.
No comment for professional
reasons.
Links
Full Judgment
http://www.courtservice.gov.uk/judgmentsfiles/j1080/
Naomi_Campbell_v_Frisbee.htm
Model fights off threat of
new trial
Sarah Hall
March 15 2002
Campbell wins privacy
ruling
Julia Day
March 14 2002
R v
Shayler - House of Lords, 21 March 2002
David Shayler, a former MI5 officer is being prosecuted under the Official Secrets Act 1989 (OSA) for disclosing material concerning the Security and Intelligence Services to the Mail on Sunday. In a preparatory hearing it was argued on his behalf that the disclosures he made were in the public interest because they exposed serious illegality by the services and/or were necessary to avert threat to life and limb and serious damage to property. The OSA does not contain any exception to permit disclosure in the public interest. All that the prosecution needs to prove is that a member or former member of the security services has (without authority) disclosed information that he acquired through his work.
In May 2001 Moses J held that the restriction on disclosing OSA information and the related criminal sanction were proportionate to the legitimate aim of protecting national security and necessary in a democratic society and accordingly did not constitute violations of Article 10 of the European Convention of Human Rights (the right to freedom of expression). In September, the Court of Appeal dismissed Shayler’s appeal and the House of Lords has now dismissed his further appeal.
Lord Bingham of Cornhill, giving the leading speech, recognised that restrictions on freedom of expression had to be carefully scrutinised by the courts to ensure that they were proportionate to the aim which they sought to further. However, an absolute ban against a member of the security services disclosing information was necessary in order to protect national security. It was also important to take into account the safeguards built into the OSA that allow a security officer to report unlawfulness and irregularity to superior officers and ministers with the power and duty to take effective action. An officer can also seek authorisation to disclose information to the general public and can challenge by judicial review a refusal to grant authorisation. Shayler’s stance was that there were no effective steps that could be taken through official channels to address his concerns and he had not therefore sought authorisation. Lord Bingham’s view was: "If a person who has given a binding undertaking of confidentiality seeks to be relieved, even in part, from that undertaking he must seek authorisation and, if so advised, challenge any refusal of authorisation. If that refusal is upheld in the courts it must, however reluctantly, be accepted”.
Comment
It was always predictable that the courts were going to confirm
the secrecy of the secret services. They were never going to permit a
jury to determine whether a disclosure was in the public interest. Nevertheless,
there remains scope for limited judicial control over the disclosure of information
through a judicial review of a decision to refuse authorisation.
The decision does not leave much room for Shayler’s defence apart from
a perverse jury verdict, which is not unprecedented in such cases.
Links
FullJudgment
http://www.parliament.the-stationery-office.co.uk/pa/ld200102/
ldjudgmt/jd020321/shayle-1.htm
Jamie Theakston v MGN Ltd - Ouseley J, 14
February 2002
Jamie Theakston, the BBC presenter, failed in his attempt to prevent the Sunday People from disclosing details of his antics in a brothel. The newspaper claimed he romped with three prostitutes – he said that it was only one. Whatever the number, Ouseley J rejected the contention advanced on behalf of Theakston that there was an implied duty of confidence placed on a prostitute in respect of the sexual activities with a client. He observed that Theakston could have sought to negotiate a stipulation of confidentiality for an increased fee. In addition, there was an element of public interest in publishing the story. Theakston had put his personal and sexual life into the public domain, “burnishing his image as a man attractive to women and of considerable sexual prowess”. The BBC had made it clear that presenters should behave in a manner consistent with the image of the BBC and viewers were therefore entitled to know that he has visited a brothel. The fact that one of the prostitutes had apparently been seeking to blackmail Theakston was not a reason for granting an injunction.
Ouseley J did, however, grant an injunction against the use of photographs of sexual activity involving Theakston, taken without his consent. Photographs are a particularly intrusive form of invasion into personal and private life and the law of confidence can apply to prevent their publication. There was no additional element of public interest in publishing the photographs.
Comment
The
case was decided before the Court of Appeal delivered its judgment in A v B, but
falls in line with that decision (and was cited in it). Once again the judge approached
the case on the basis of breach of confidence rather than privacy. Nevertheless, the distinction between
the publication of photographs and words seems to be justifiable more on the
basis of privacy. The most
important practical lesson is that seeking an injunction and losing it is about
ten times as bad as taking the medicine.
Links
People
editor applauds kiss and tell ruling
February 15 2002
Prostitutes
had rights in Theakston case
February 14 2002
Kiss
and tell blow for Theakston
February 15 2002
Prolife Alliance v British Broadcasting Corporation - Court of Appeal, 14 March 2002
Prolife, a political party opposed to legalised abortion, had prepared a party political broadcast for the 2001 General Election. The broadcast included graphic footage of the abortion process and was rejected for transmission by the BBC and other terrestrial broadcasters on the basis that it offended the Broadcasters’ Code on taste and decency. Prolife unsuccessfully applied to the Divisional Court for permission to judicially review the BBC’s decision.
In the Court of Appeal, the issue was the extent to which the courts would interfere with a broadcaster’s decision on taste and decency. The Court was of the view that political expression, particularly at the time of a general election was a particularly important form of expression that the courts should take steps to protect. The BBC had conceded that the proposed footage was accurate and unsensationalist. It would only be in the rarest of circumstances that a party political broadcast might properly be rejected on grounds of taste and decency. This was not such a case. Furthermore, the test here was not the conventional public law test of whether the broadcasters’ views were “irrational”. Whilst their views would be respected, the weight to be attached to them would be modest at best. The court’s responsibility under Article 10 ECHR to protect political speech was more important.
Comment
The case
shows again how that the protection given to freedom of speech will vary
according to the subject matter.
Traditionally, the courts have been wary about intruding on the decisions
of broadcasters or their regulatory bodies. However, political speech at the time of
an election is of overriding importance and the Court of Appeal was not prepared
to allow political censorship based on taste and decency, when there was no
other justification for not broadcasting.
It is also apparent (although not explicit) from the judgments that the
Court of Appeal felt that the broadcasters were guilty of double standards and
discrimination against the Prolife Alliance because of its
views.
BBC found guilty of abortion censorship
March 15 2002
BBC
accused of censorship over political broadcast
March 14 2002
Hirst v Secretary of State for the Home Department
- Mr Justice Elias, 22 March 2002
Hirst was a prisoner who applied for judicial review of the prison’s decision to refuse him permission to speak to the media on issues relating to prisons and prisoners. He had been prevented from making telephone calls by being transferred to another prison where calls could only be made to recognised numbers. On his application to the Treasury Solicitor for a variation of this restriction Hirst was told that he could communicate with the media in writing. However he argued that without direct two-way communication, serving prisoners would be frequently denied the right to participate in discussions of legitimate concern to prisoners. The question for the court was whether the restriction was justified under Article 10 of the European Convention on Human Rights.
The judge held that there were two ways Article 10 could come into play: the restriction was either a part of Hirst’s sentence, or was necessary to ensure the good order and discipline of prisons. If the former, then the state had deliberately chosen to interfere with prisoners’ rights in this way, and the courts could not interfere. If the latter, the restriction had to be justified as proportionate – i.e. no more than was necessary to achieve that aim. This was the latter case, and the judge decided that if the justification was concern for what might be broadcast or published, the starting point for such a policy could not be mistrust of the press. Substantial safeguards could be put in place, such as determining the scope of the interview or monitoring the discussion and obtaining assurances from prisoner and journalist as to the contents of the publication or broadcast. The restriction on Hirst was therefore ruled unlawful.
Comment
This
decision follows on from R v Home Secretary ex p. Simms & O’Brien, a House
of Lords decision in 1999, that established that a convicted prisoner had a
basic right to communicate with the media.
The case is an interesting example on the application of the principle of
“proportionality”. The court must
focus on the reason why freedom of expression is being restricted and then ask
whether the extent of the restriction is any further than is necessary for the
purpose.
Links
Prisoner wins right to talk to media
March 23 2002
Judge throws out ban on prisoner interviews
March 22 2002
Interbrew SA v Financial Times Ltd & Ors - Court of
Appeal, 8 March 2002
This was an appeal from the order of Mr Justice Lightman (19/12/01) who had ruled that the 5 media Defendants should deliver up to Interbrew leaked documents which alleged that Interbrew were contemplating taking over South African Breweries (SAB). The documents had come into the hands of the newspapers and Reuters from an undisclosed source, and they had all published stories about the alleged takeover. Interbrew alleged that the documents were partially forged and designed to manipulate stock exchange trade in Interbrew and SAB shares. They considered that if they saw the forged documents they could work out who the source was and take action against them. They had sought the order based on the Norwich Pharmacal jurisdiction. This allows the court to compel innocent facilitators of wrongdoing to assist the wronged party. Interbrew claimed that the media organisations had facilitated wrongs (breach of confidence and manipulation of the stock market) and that they were entitled to disclosure. Mr Justice Lightman granted the order, concluding that disclosure was justified to discover the source of these wrongs. He also considered that the privilege of the press to protect its sources (as contained in Section 10 of the Contempt of Court Act) was overridden by the continuing threat of damage to the interests of Interbrew. He considered the circumstances of the case exceptional, deciding (in part) that false information had been perpetrated (and criminal offences possibly committed in so doing) which threatened the integrity of the stock market.
Whilst the Court of Appeal agreed with the judge’s decision and dismissed the appeal, it considered some of his reasoning erroneous. Detection of crime was not a relevant consideration in making a Norwich Pharmacal order – which is essentially a civil remedy. The Court of Appeal was also reluctant to decide that the information leaked was so substantially false, having heard only Interbrew’s side of the story. However it did conclude that there was a “modest” case in breach of confidence against the source which entitled Interbrew to disclosure. Detection of crime could only be a peripheral (if relevant) consideration when deciding whether it was necessary to order disclosure in a civil action such as this. What was relevant was whether Interbrew’s resort to the law was justified, and whether, taking into account the balance of their interests against freedom of expression, they were entitled to know the identity of the source and take action against them.
The Court of Appeal considered this an exercise in balancing the competing public interests of protecting a company’s commercial interests, and protecting media sources and upholding freedom of expression. The source’s purpose was a relevant consideration, and it was accepted that there was no public interest in protecting a source whose purpose was the “mischief” of manipulation of the stock market. The Court of Appeal ruled that it would not be acceptable for the media to be forced to disclose sources in circumstances where prior to publication they could not appraise for themselves whether protection of the source might be upheld. That was not the case here.
Comment
This case
demonstrates (worryingly for the media) that what Lord Scarman described as the
“constitutional” right to maintain the confidentiality of journalistic sources
is a flimsy one, laden as it is with provisos. No concrete guarantees can ever
be given as the court must always balance the public interest in upholding the
complainant’s rights by disclosing the source against the public interest in
maintaining the confidentiality of the source. Nevertheless, cases were disclosure is
ordered are very rare.
Links
Full Judgment
http://www.courtservice.gov.uk/judgmentsfiles/j1071/Financial_Times_v_
InterbrewSA.htm
No
names...unless the court decides otherwise
April 08 2002
Guardian
loses court appeal
March 08 2002
Persey v Secretary of State for Environment, Food and Rural Affairs - Simon Brown LJ and Scott Baker J, 15 March 2002
The Administrative Court dismissed a challenge by judicial review from farmers and other interested parties (including the news media) to the Government’s decision to hold the inquiry into the foot and mouth epidemic in private. The applicants argued that the decision was irrational and sought to bolster their case by alleging that to hold the inquiry in private was contrary to Article 10 ECHR.
The Administrative Court held that there was no presumption that such an inquiry should be held in public. The Court did not accept that Article 10 had any relevance, since it was directed to the freedom to receive information that others wished to impart. It did not impose a positive obligation on government to provide, in addition to existing means of communication, an open forum to achieve the wider dissemination of views. The Court approached the issue on the basis of the traditional principles of judicial review and concluded that the decision was one properly open to government to take and incapable of being overturned as irrational or otherwise unlawful. It was pre-eminently a political decision.
Comment
This was one appeal too many on Article 10 ECHR.
Links
Full Judgment
http://www.courtservice.gov.uk/judgmentsfiles/j1073/Persey_v_
Food_Rural_Affairs.htm
Media groups to cover foot
and mouth legal challenge
February 05 2002
R v Stephane Laurent Perrin - Court of Appeal, 22 March
2002
The Court of Appeal has upheld the conviction under section 2(1) of the Obscene Publications Act 1959 of the publisher of a web page, displaying coprophilia and men engaged in oral sex. The defendant admitted that he was legally responsible for the website. However, he submitted that his conviction was contrary to the right to freedom of expression in Article 10 ECHR. He also alleged that since the only proof of publication of certain of the web pages was to the investigating officer and he was not corrupted by what he saw, the conviction could not stand.
The Court accepted that Article 10 was “engaged” by the offence of obscenity. However, it held that the offence was justifiable under Article 10 (2). Section 2(1) of the Act and the relevant case law were sufficiently clear to satisfy the requirement that the restriction should be “prescribed by law”. The offence was for a legitimate purpose, namely the “protection of health or morals” and was proportionate. The Court felt that in this area, the domestic legislature had a considerable margin of appreciation to decide what was appropriate to protect vulnerable members of society.
There was no need to prove that the web page had been accessed. The wording of the offence was “to deprave and corrupt persons who are likely, having regard to all relevant circumstances to …. see or hear the matter”. It followed that there was no need to prove actual publication provided that the jury was satisfied that it was likely.
Finally, the Court rejected the submission that, in relation to an internet publication, it was necessary to prove that “major steps” in relation to the publication had been taken in the prosecuting jurisdiction. This was regarded as a charter for pornographers to establish themselves in countries with lax laws and operate with impunity.
Comment
A
pornographer is going to have a difficult time raising arguments based on
Article 10. The ECHR case law
suggests that pornographic expression is worthy of less protection than other
forms of speech. Some may find that
excessively paternalistic. I would
not advise anyone who wants to find out what is meant by “coprophilia” to type
it into a web search engine – well, not unless they are resistant to depravity
and corruption.
Links
Full
Judgment
http://www.courtservice.gov.uk/judgmentsfiles/j1100/R_v_Perrin.htm
Alan Rusbridger & Polly Toynbee v HM Attorney-General & Director of Public Prosecutions - Court of Appeal, 21 March 2002
Alan Rusbridger, editor of The Guardian, and Polly Toynbee brought an action for judicial review against the Attorney General. They had written to him giving notice of The Guardian’s intention to publish articles by Ms Toynbee inciting the abolition of the monarchy. Section 3 of the Treason and Felony Act 1848 makes it an offence punishable by imprisonment to declare such an intention in writing. Mr Rusbridger argued that the Act was a blatant infringement of free speech. He was entitled to know whether his proposed articles would open him up to a possible prosecution. He suggested that this was not a hypothetical issue – despite the fact that there had not apparently been a prosecution under the Act since 1883, there was evidence that governments in former British colonies were using their legal equivalent of laws such as this to persecute and jail journalists and other dissidents. The Attorney General responded giving no assurances about prosecution or the interpretation of the Act.
The Divisional Court refused permission to apply for judicial review. On appeal to the Court of Appeal Rusbridger and Toynbee also sought a declaration over the meaning of the Act or alternatively a declaration that the Act was incompatible with Article 10 of the European Convention on Human Rights.
The Court of Appeal observed that there were powerful arguments against permitting litigants to occupy the time of the court with problems that do not affect them personally. Nevertheless, there were countervailing arguments in favour of freedom of expression and, in relation to the criminal law, ensuring that the law is formulated in such a way as to make it clear what is and is not prohibited. There was room for argument that Section 3 of the Treason and Felony Act is incompatible with the Human Rights Act, and that there was a public interest in this incompatibility being declared so that remedial action could be considered by the government. The Court considered that as the matters raised have not yet been fully argued, it was not in the interests of justice to dismiss them now. The submissions made in this hearing raised points of general interest which ought to be given full consideration. The Court of Appeal did not rule on the procedural route forward for the case – whether it should go back to the Administrative Court or remain in the Court of Appeal. Submissions on this question had not been heard and were invited from the Home Secretary.
Comment
The Court’s observation that “there were there were powerful arguments
against permitting litigants to occupy the time of the court with problems that
do not affect them personally” is somewhat inconsistent with the decision
to allow the case to be fully argued. It raises an interesting point as
to when a person can legitimately ask the court to declare an Act of Parliament
to be inconsistent with the Convention. The ECHR case law requires proof
of “victim” status. In Norris v Ireland, legislation criminalising
homosexuality was regarded as sufficient to allow the applicant to claim that
his rights had been violated, even though he had never been prosecuted.
It would be ludicrous to suppose that Rusbridger would ever be prosecuted for
advocating the abolition of the monarchy. On the substantive issue, there
are clearly strong grounds for arguing that the 1848 Act is contrary to Article
10.
Links
Judges
back treason act challenge
March 22 2002
Guardian
renews legal challenge over 'outdated' treason law
February 18 2002
Shaun Field, Michael Gough & Andrew Darkoh v Local Sunday Newspapers Ltd & Stewart Lister - Mr Justice Gray, 6 March 2002
Bedfordshire on Sunday successfully defended a libel action brought by two of three Council officers who had complained about allegations that they were guilty of incompetence in the administration of a local election. The allegations centred on a press release issued by Lister, a Conservative officer, extracts of which were published by the newspaper. The release claimed “maladministration” on the part of the Council following the discovery of 86 uncounted postal votes following the victory by a Tory candidate by 9 votes.
The case was tried by Mr Justice Gray without a jury because of the extent and nature of documentation generated by the case. The judge found that the allegations were substantially justified against two of the officers, Darkoh and Gough. As to Field, he found that the position was different as he had been accused of political bias. The judge awarded him £20,000 from the newspaper and £7,500 from Lister. He ordered Gough and Darkoh to pay 80% of the Council’s costs, estimated at over £1 million.
Comment
This libel trial is illustrative of the trend to have cases determined by
judges as opposed to juries. The reported costs are once again frighteningly
disproportionate. If this local newspaper had not been insured it probably
would have been unable to contest the case.
PCC Complaint: A Reader v Daily Mail, Mail on
Sunday, News of the World, Sunday People and Sunday Mirror, 25 January 2002
The PCC investigated claims that five newspapers breached Clause 16 (Payment for articles) by offering payments to witnesses before the end of the trial of schoolteacher Amy Gehring. Gehring was acquitted of indecency with several of her pupils. This is the first time since the prosecution of singer, Gary Glitter, that the Code has been tested in this area.
The PCC held that there had been no breach of Clause 16, and that the newspapers had followed the Code when making the approaches. In particular, every possible step was taken to ensure that any financial dealings had no influence on the witnesses’ evidence. The witnesses were all approached after giving evidence, and were contacted through their parents.
The PCC emphasised that transparency is the key to the Code. The payments were not disclosed to the prosecution and defence as the witnesses were approached after they had given evidence. However, this requirement was satisfied as the court was made aware of the offers prior to the verdict, when the witnesses were recalled to answer questions about the newspapers’ approaches.
The material was in the public interest. It concerned the government’s policy of seeking teachers from abroad as a result of the UK shortage, and the dangers of this. The public had an interest in knowing the full story, and the witnesses had first hand accounts of what had happened, some of which had not come to light in the trial.
There was an overriding need for offers of payment to be made. Had they not been made, the information would not have been made public. The parents of the witnesses had brought up the subject of payments, suggesting that they should be compensated for discussing their involvement with Gehring. The PCC was also pleased to note that none of the newspapers had offered money on the condition that the defendant was convicted.
Comment
There is a clear tension between the flexible approach of the PCC and the
Lord Chancellor’s proposals for a blanket ban on payment to witnesses.
Far be it from us to curry favour with the Lord Chancellor, but it does seem
that where a witness has been paid for a media story, this can taint his evidence
in the minds of the jury, regardless of the circumstances of payment.
Would Gehring and Glitter have been acquitted if the witnesses were not paid?
That question can never be answered, hence the inevitable lingering doubt.
Links
MP
calls for ban on press approaches to witnesses
Julia Day
March 21
2002
Justice
at risk
February 25 2002
Move
to outlaw witness payments
Clare
Dyer, legal correspondent
February 05 2002
Tabloids offered cash for
stories of sex with teacher, say boys
Owen Bowcott
January 30 2002
Victoria Mandeville Gillick v Brook Advisory Centres & Dr Margaret Jones - Mr Justice Gray, 12 March 2002
Victoria Gillick’s libel action against Brook Advisory Centres, a family planning charity, for publishing a fact sheet was dismissed under the summary procedure in section 8 of the Defamation Act 1996. Gray J ruled that her claim had ‘no realistic prospect of success'.
Gillick claimed that she was libelled by a fact sheet published by BAC that stated that there was a 23% rise in teenage pregnancies in the 1980s, attributable in part to her unsuccessful legal action in the 1980s, which challenged the lawfulness of a Department of Health circular. The circular advised professionals giving advice on birth control not to contact the parents of those whom they were advising, even if they were under 16.
She claimed that BAC accused her of being "morally responsible" for a rise in teenage pregnancies. BAC denied that the wording of the leaflet conveyed the meaning she alleged and that they were not defamatory.
Gray J held that although the wording of the fact sheet was capable of meaning that a rise in the conception rate amongst teenage girls in the 1980s had been caused or contributed to by legal proceedings brought by Gillick at that time, the meaning was not defamatory of her because it did not impute any culpability or blameworthiness to her in bringing those proceedings. He said that even if the words of the fact sheet imputed "moral responsibility" for the rise to Gillick, that imputation would not of itself cause people to think any the worse of her because there was no suggestion “that there was anything reprehensible or mischievous about her bringing the action”.
No
comment for professional reasons.
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International Society For Krishna Consciousness & Dhanajay Das v House Of Fraser (Stores) Ltd - Mr Justice Gray, 1 March 2002
ISKC, a Hindu Religious Society, and Das, one of its members, brought defamation proceedings as a result of a House of Fraser advertisement which appeared in store windows and magazines in March 2001. The advertisement showed a photograph of Das and other society members parading in the street, and implied that the Society was a religious sect, and its members “easily-led nutcases”.
House of Fraser apologised in stores and the press for the allegations, which were unfounded and had caused distress and damage to the Society and Das’s reputations. They also agreed to pay damages and legal costs.
Rt
Hon David Trimble MP v Amazon.co.uk Ltd - Eady J, 27 March 2002
David Trimble (First Minister of Northern Ireland) brought defamation proceedings against Amazon, the online book retailer, which had sold hard copy editions of “The Committee: Political assassination in Northern Ireland” by Sean McPhilemy. The book and reviews published on the Amazon website contained allegations that Trimble was a member of a secret organisation plotting assassinations of Catholics and Republicans in Northern Ireland – “The Committee”. It also alleged that he had abused his political position by hiding the activities of The Committee. Following a complaint by Trimble Amazon withdrew the book from sale and removed the reviews from the website, but did not apologise. Trimble brought defamation proceedings which were settled in November 2000. These proceedings were brought after Trimble discovered in January 2001 that Amazon was again selling the book and posting reviews repeating the allegations. Amazon claimed this was due to an administrative error, and apologised, paying damages and undertaking never to sell the book in the future. The book was again withdrawn from sale and the reviews removed from the website.
Links
Trimble
wins libel action against Amazon
March 27 2002
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Nottinghamshire Healthcare National Health Service Trust v News Group Newspapers Ltd - Mr Justice Pumfrey, 14 March 2002
Nottinghamshire Healthcare NHS Trust successfully sued the Sun newspaper for unauthorised use of a photograph of Laith Alani, a convicted killer detained at Rampton Hospital. The photograph was taken at Rampton hospital and formed part of Alani's medical notes. An anonymous sender had sent the photograph to the Sun’s district reporter, who had written a number of stories about the hospital in the past.
It was accepted that the NHS Trust was entitled to the copyright subsisting in the photograph. The sole issue was the amount of damages and in particular, the circumstances in which an award of additional damages under section 97 of the Copyright, Designs and Patents Act 1988 should be made. The Trust argued that, having regard to the flagrancy of the infringement and the circumstances surrounding it, the sum awarded by way of additional damages could and should include a substantial punitive or exemplary element.
Mr Justice Pumfrey was of the view that where a photograph had no economic value to the owner (and consequently the measure of ordinary damages under s.96 would be low), as in the present case, additional damages under s.97 might be appropriate. S.97(2) “identifies two factors in particular as matters to which the court must have attention in considering whether to award additional damages, the flagrancy of the infringement and the benefit to the defendant”. The provisions of s.97(2) were appropriate to provide for a measure of damages suitable in cases of deliberate infringement. It was clear that s.97(2) called for two separate awards of damages.
In
fixing ordinary compensatory damages under s.96, he took into account the fact
that the photograph was immediately topical, was an apt illustration to the
story and was prominent and clear. Damages of £450 were awarded on the basis
that it was the fee that would be negotiated between a willing copyright owner
and the newspaper.
In fixing damages under s.97(2), he awarded an uplift
bringing the total award of damages to £10,000, which had regard to flagrancy;
including the fact that the photograph was obviously stolen and that the
reporter must have realised that it came from the hospital and that the
newspaper had no authority to use it.