The Sun just keeps getting it wrong on human rights

Sun Wrong AgainWith the May 2015 General Election looming, the battle for the future of human rights in the UK is hotting up. The Prime Minister has just sacked his long-standing Attorney General apparently because he disagreed with a mooted Tory manifesto policy which would, he rightly suggested, breach the UK’s international law obligations.

Meanwhile, over on what used to be Fleet Street,we can expect plenty of human rights misinformation and misrepresentation, as per usual. The Sun, a longterm offender, has been at it again with two recent articles. I thought it would be useful to respond in a bit of detail as they contain a number of common misrepresentations. And because they are behind a paywall, the usual army of Twitter fact checkers are left somewhat powerless.

New Year, new tort of misuse of private information

google-sign-9Vidal Hall and Ors v Google Inc [2014] EWHC 13 (QB) – read judgment

A group of UK Google users called ‘Safari Users Against Google’s Secret Tracking’ have claimed that the tracking and collation of information about of their internet usage by Google amounts to misuse of personal information, and a breach of the Data Protection Act 1998The Judge confirmed that misuse of personal information was a distinct tort. He also held that the English courts had jurisdiction to try the claims. 

Mr Justice Tugendhat’s decision was on the basis that (1) there was a distinct tort of the misuse of private information (2) there was a serious issue to be tried on the merits in respect of the claims for misuse and for breach of the DPA; (3) the claims were made in tort and damage had been sustained in the jurisdiction and (4) England was clearly therefore the most appropriate forum for the trial.

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UK may need law against secret filming and photography after European Court ruling – James Michael

A-photographer-with-a-cam-006Söderman v. Sweden – (application no. 5786/08) – Read judgment

The European Court of Human Rights has decided that it is a violation of the right to privacy if a country does not have a law prohibiting surreptitious photography of people. The ruling has serious implications for paparazzi, and would have been useful to Princess Diana.  A ready-made bill exists in the form of a draft published by the Law Commission for England and Wales in 1981.

On 12 November the Grand Chamber of the European Court of Human Rights ruled that Sweden’s lack of a legal ban on invading personal privacy by surreptitious photographs violated the right to privacy. The case involved a camera hidden in the bathroom by the stepfather of a fourteen-year old girl. (Söderman v. Sweden,application no. 5786/08).

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When is an advert “political” for the purposes of a ban under the Communications Act?

20090327_radio_microphone_18R (on the application of London Christian Radio Ltd & Christian Communications Partnerships) v Radio Advertising Clearance Centre (Respondent) & Secretary of State for Culture, Media and Sport (Interested Party) [2013] EWCA Civ 1495 – read judgment

The ban on Christian Radio’s proposed advert seeking data on the “marginalisation of Christians” in the workplace was lawful and did not constitute an interference with free speech, the Court of Appeal has ruled. When determining whether a radio or television advertisement was “political” fur the purposes of Section 321(2)(b) of the Communications Act 2003 the court should consider the text objectively; the motives of the advertiser were irrelevant.

This was an appeal against a ruling by Silber J ([2013] EWHC 1043 (Admin)) that a proposed radio advertisement was directed towards a political end, and therefore fell foul of the prohibition on political advertising which meant that it could not be given clearance for broadcast (see my previous post on this decision). Continue reading

Court of Appeal broadcasters must learn the Supreme Court lessons

Stefan Rousseau/PA Wire

Stefan Rousseau/PA Wire

TV cameras are recording Court of Appeal hearings from today. The BBC, ITN, Sky News and the Press Association are cooperating on the project, and have hired an in-court video-journalist who will recommend the most interesting cases.

This is great news. Let in the light. The more that the public can see what is going on in their courts, the better. The courts are a bewildering place for the uninitiated and especially for those who cannot afford to pay someone to explain what is going on. This is still a relatively small advance – only appeals will be broadcast, not trials, so the public is unlikely to see any cross examination of witnesses. But hopefully it will be enough to increase public understanding of and interest in the courts.

But a word of warning. This initiative will only succeed if it is implemented in the right way. And, there are important lessons here from the Supreme Court’s ongoing broadcasting experiment.

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Rihanna wins against Topshop but does she have a right to her image? – Emily Goodhand

Rihanna--010Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor [2013] EWHC 2310 (Ch) – Read judgment

The ruling in the Rihanna/Topshop case marks a significant trend, both in case law and society, towards equating image with commodity. Increasingly, celebrities and sports personalities earn large sums of money from sponsorship and advertising deals because companies recognise that their image sells products. So how can so-called image rights be protected?

The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.

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Can Google be sued for the content of blogs on its platform?

google-sign-9Tamiz v Google Inc [2013] EWCA Civ 68 - read judgment

The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.

This interesting case suggests there may be an opening for liability of Google  for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction. Continue reading