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A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday.
The Institute of Advanced Legal Studies (IALS), in collaboration with the Guardian, has published the results of a research initiative into protecting journalists’ sources and whistleblowers in the current technological and legal environment. Investigative journalists, media lawyers, NGO representatives and researchers were invited to discuss issues faced in safeguarding anonymous sources. The report: ‘Protecting Sources and Whistleblowers in a Digital Age’ is available online here.
The participants discussed technological advances which facilitate the interception and monitoring of communications, along with legislative and policy changes which, IALS believes, have substantially weakened protections for sources. Continue reading →
This blog has covered a number of claims for damages arising out of the misuse of private information. The Mirror Group phone hacking case is one example (see my post here and the appeal decision here), and the fall-out from the hapless Home Office official who put private information about asylum-seekers on the Internet, being another – (Gideon Barth’s post on TLT here). See also below for related posts.
But this post is to give a bit of context, via the wider and scarier cyber crime which is going on all around us. It threatens the livelihoods of individuals and businesses the globe over – and has given and will undoubtedly give rise to complex spin-off litigation.
So let’s just start with the other week. On 21 October 2016, it seems nearly half the Internet was hit by a massive DDoS attack affecting a company, Dyn, which provides internet services infrastructure for a host of websites. Twitter, Reddit, Netflix, WIRED, Spotify and the New York Times were affected. DDoS, for cyber virgins, is Distributed Denial of Service, i.e. an overloading of servers via a flood of malicious requests, in this case from tens of millions of IP addresses. No firm culprits so far, but a botnet called Mirai seems to be in the frame. It is thought that non-secure items like cars, fridges and cameras connected to the Internet (the Internet of Things) may be the conscripted foot soldiers in such attacks.
And now to the sorts of cases which have hit the headlines in this country to date.
This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie.
Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.
C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.
Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.
The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.
In the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others [2016] EWCOP21 – read judgment
The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.
I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another [2015] EWCOP 80). Continue reading →
DL v SL [2015] EWHC 2621 (Fam) 27 July 2015 (Mostyn J) – read judgment
This was a simple, if contentious, divorce case in which the judge took the opportunity to make a point about balancing the principle of open judgment – allowing media coverage of cases – against the privacy of the parties involved. Whilst he was ready to acknowledge that publicity ensures not only the probity of the judge but the veracity of the witnesses, and that such publicity served promote understanding and debate about the legal process, in some cases privacy should trump the rights of the press.
There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right. Continue reading →
Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?
It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.
Gulati v. MGN Ltd [2015] EWHC 1482 (Ch), Mann J – judgment here
For some years in the early and mid 2000s, a routine form of news-gathering in the Mirror Group was phone hacking – listening to voicemails left for celebrities by their friends, and then dishing up revelations in their papers. And this judgment amounts to a comprehensive pay-back time for the years of distress and upset sustained by those celebrities, as the ins and outs of their private lives were played out for the Mirror Group’s profit. The damages awarded well exceeded those previously payable, as justified in the tour de force of a judgment by Mann J.
Warning – the judgment, compelling though it is, runs to 712 paragraphs. It concerns the assessment of damages in eight cases. The Mirror Group belatedly admitted liability and apologised, not before denying any wrongdoing to the Leveson inquiry. Other claims rest in the wings pending this trial. But with awards between £72,500 and £260,250, the bar has been set high by Mann J.
The claimants (with one exception) were the classic subjects of tabloid columns, namely EastEnders and Corrie stars (or those unfortunate to be married to them), the sometime air hostess girlfriend of Rio Ferdinand, Jude Law’s former wife, Sadie Frost, and, inevitably, Gazza. Seven sued because the hacking led to repeated articles about them. The eighth, Alan Yentob, Creative Director of the BBC, was hacked because of the information derived from the famous people who had left voicemails for him.
A healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment
The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.
This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second Continue reading →
On yesterday’s Newsnight (from 7 minutes 20 seconds in), Britain’s foremost legal commentator Joshua Rozenberg revealed that he resigned as the Telegraph’s legal editor in 2007 after the news desk sexed up a human rights story with false information.
The story is still on the Telegraph’s website here. It was a report of the 2007 House of Lords decision in Secretary of State for Defence v Al-Skeini & Ors [2007] UKHL, a case about whether the Human Rights Act applied to actions of the British Army in Iraq. The House of Lords ruled that the Act did apply in British detention facilities, but that it did not apply in the streets of occupied Basra. There is an excellent summary of the case by Rozenberg here.
JX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, 17 February 2015 – read judgment
Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.
For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties.
Updated x 2 | At the risk of sounding like a broken record, The Sun has got it badly wrong on human rights. Again. On 24 August 2014 Craig Woodhouse reported that “Euro judges go against UK in 3 out of 5 cases” (£). This is false and seriously misleading.
I explored this issue in detail back in 2012 when the Daily Mail as well as others claimed that the UK loses 3 out of 4 cases. Since that debacle, the European Court of Human Rights has produced some very clear documents on the statistics page of its website.
According to page 8 of this document, there have been 22,065 applications against UK 1959-2013. That means that 22,065 people or so have brought cases against the UK. Of those cases, there have been 297 resulting in a violation.
I am no statistician but 297 as a percentage of 22,065 is not “3 out of 5”. It is in fact 1.35%. Less than 2 in 100.
The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.
Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.
G (Adult), Re [2014] (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment
Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act.
Background to the application
The court was concerned with a 94 year old woman, a British African Caribbean who lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK. She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments. Continue reading →
A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland)[2014] UKSC 25 – read judgment
This appeal related to whether the Scottish Courts took the correct approach to prohibit the publication of a name or other matter in connection with court proceedings under section 11 of the Contempt of Court Act 1981, and whether the court’s discretion was properly exercised in this case. The Supreme Court unanimously dismissed the appeal by the BBC.
The following report is based on the Supreme Court’s Press Summary. References in square brackets are to paragraphs in the judgment.
Background
A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years’ imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. He appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill-treatment (contrary to Articles 2 and 3 of the European Convention on Human Rights should he be deported. A’s identity was withheld in the proceedings from 2001 onwards [5]-[9]. Continue reading →
R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant) [2014] UKSC 17 – read judgment
This was an appeal from a ruling by the Administrative Court that it was procedurally unfair, and therefore unlawful, for BSkyB to have had a disclosure order made against it without full access to the evidence on which the police’s case was based and the opportunity to comment on or challenge that evidence. The following report is based partly on the Supreme Court’s press summary (references in square brackets are to paragraphs in the judgment):
Factual background
Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security. In 2008 he was an “embedded” journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time. Continue reading →
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A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday.
On yesterday’s 
Guardian News and Media Ltd -v- AB CD – 
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