Tesla Motors Ltd and another v British Broadcasting Corporation  EWCA Civ 152 – read judgment
The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.
The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review. The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience. Continue reading
Verlagsruppe News Gmbh and Bobi v Austria (Application no. 59631/09) HEJUD  ECHR 2012 (04 December 2012)
Hard on the heels of the Facebook case, here is another legal dust up over the media’s sharp interest in any story involving allegations of inappropriate sexual relations, particularly in the Catholic church.
Following a police investigation into internet downloads, the principal of a Roman Catholic seminary in Austria became the target of unwelcome interest from the tabloid press, including the second applicant, who published a series of articles and photographs alleging that Mr Küchl was engaging in homosexual relations with the seminarians. One article identified the seminarian principal, whose face was clearly identifiable from the accompanying photograph. The article was entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.” Continue reading
Paul Chambers v DPP  EWHC 2157 - Read judgment
The famous ‘Twitter joke’ conviction of Paul Chambers has been overturned on appeal, bringing welcome clarity to what is and what is not an offence of this type. On discovering a week before he was due to take a flight that the airport was closed due to adverse weather conditions, he tweeted that “I am blowing the airport sky high!!” unless the situation was resolved by the time of his flight. He was convicted of sending a message of a “menacing character”, but has had the conviction quashed on appeal, on the basis that, as it was a joke, it was not of a menacing character.
“I had decided to resort to terrorism”
Mr Chambers was intending to fly out of Robin Hood Airport on 15 January 2010 to meet a romantic partner he met on Twitter. On 6 January, via Twitter, he became aware that severe weather was causing problems at the airport, and engaged in a conversation on Twitter where he made the following comments:
“…I was thinking that if it does [close due to adverse weather] then I had
decided to resort to terrorism”
As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.
The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:
- Create a test of “serious harm” for statements to be considered defamatory.
- Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
- Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
- Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.
Mcgrath v Dawkins, Amazon and others  EWHC B3 (QB) -read judgment
In an interesting ruling on a strike-out action against a libel claim, a High Court judge has delineated the scope for defamation in blog posts and discussion threads where the audience is small and the libel limited.
The claimant, C, is the author of a book entitled “The Attempted Murder of God: Hidden Science You Really Need To Know”. Published at the same time on the same general topic, but taking the opposite side, was “The Grand Design: New Answers to the Ultimate Questions of Life” by the very well-known scientist Professor Stephen Hawking and Leonard Mlodinow. Both books were available for purchase through the Amazon UK website run by the third defendant.
Amazon includes an online public-access facility, through which any member of the public may publish their own review of a book for sale on the site, and others may post comments on that review, or on previous comments, so creating a “thread” which may be read by any internet user worldwide. Since Prof. Hawking’s book was likely to attract far more interest among readers than C’s, he decided to raise the profile of his own work. In September 2010 he posted a purported review of the Hawking book, signed by “Scrooby”, which began by giving the details of his own book, and then went on to claim that this book “answered all doubts raised in [Hawking's] book” and was an “antidote to this misguided book”. As the judgment continues Continue reading
Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ - indicates the difficulty of the task for the legal system.
Flood v Times: how does this affect calls for libel reform?
On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.
Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor  EWHC 2705 (QB) (24 October 2011) – Read judgment.
Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL) should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.
It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.
Ferdinand v Mgn Ltd (Rev 2)  EWHC 2454 (QB) – Read judgment
In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.
The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant. It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.
Her Majesty’s Attorney-General Claimant – and – (1) MGN Limited Defendants (2) News Group Newspapers Limited – Read judgment
The High Court has found that the Daily Mirror and The Sun were in breach of the Contempt of Court Act 1981 (1981 Act) in relation to their reporting of the Jo Yeates murder case. The court was strongly critical of the “vilification” of a man who was arrested but quickly released without charge.
The proceedings were in relation to Christopher Jefferies, a school teacher who was arrested early on in the investigation. The court fined the Daily Mirror £50,000 and The Sun £18,000.
The latest issue of the Index on Censorship magazine is entitled “Privacy is Dead! Long live privacy” and includes an interview with Mr Justice Eady, conducted by the veteran legal commentator Joshua Rozenberg entitled “Balancing Acts“.
This is a rare example of an interview with a serving judge. It was conducted on 11 April 2011 – before heat was turned up in the “Superinjunction Spring”. Despite the worst efforts of the “Sunday Times” – of which more in a moment – the interview contains few surprises for those who have taken the trouble to read Mr Justice Eady’s judgments (and lectures) on the subject of privacy.
In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.
That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?
John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
Lord Neuberger has published his long-awaited report on super-injunctions. His committee was set up in April 2010 in order to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions“.
In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
When does being not guilty make you innocent? This question arose coincidentally in two rulings, just over a month of each other, from the highest courts of the UK and South Africa respectively.
The Citizen and others v McBride concerned libel proceedings which had been brought against a former member of the armed wing of the ANC. McBride had been convicted of murder and sentenced to death in 1986 after killing three women in a bomb attack. Nine years later he was granted an amnesty by the SA Truth and Reconciliation Commission. The question before the Constitutional Court was whether a person convicted of murder, but granted amnesty under the Reconciliation Act, can later be called a “criminal” and a “murderer” in comment opposing his appointment to a public position.
I promised an analysis piece in my post on the Mosley judgment but there has been such an outpouring of comment and opinion on the case that a more useful exercise is to provide some sort of guide through the maze of material already out there.
This rather toothless ruling has, needless to say, received enthusiastic acclaim by the mainstream media, smarting with indignation over Twitter’s coup de théâtre re superinjunctions. See the Guardian coverage and the Express’s aptly named article Max Mosley Loses Privacy Case Amid Super-injunction Chaos. The Daily Mail of course goes straight to the Naughty Step with its triumphalist and inaccurate headline Victory for freedom of speech: European court rejects Mosley’s bid to impose new constraints on Press. First, it wasn’t the European Court (more commonly known as the ECJ). It was the European Court of Human Rights. Second, the rather mealy-mouthed judgment is hardly a ringing endorsement for freedom of speech; as Hugh Tomlinson points out, the press won the battle but the judgment confirms that it has lost the “privacy war”:
The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved .