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The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution. Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case. This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties.
The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).
I posted last week on the interesting and morally complex case in which a judge in the Court of Protection ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.
The Daily Telegraph and Daily Mail have picked up on this story. The Mail’s Richard Hartley-Parkinson appears to have based his article solely on the Telegraph’s, in light of this paragraph:
Mr Justice Mostyn said the case threw up issues ‘legally, intellectually and morally’ because sex is ‘one of the most basic human functions’ according to the Daily Telegraph.
The Court of Appeal yesterday handed down judgment in the case of JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42). In allowing the appeal against the order of Tugendhat J ([2010] EWHC 2818 (QB)) the Court ordered that the claimant’s anonymity should be restored.
Although the Court stressed that each decision is fact sensitive, this approach seems likely to be followed in most types of privacy injunction cases. This eagerly awaited decision adds to the growing body of case law concerning reporting restrictions where an injunction has been granted to restrain publication of information about a claimant’s private life.
The European Court of Human Rights has ruled that the UK’s controversial no-win-no-fee costs system violated the Daily Mirror’s freedom of expression rights after it was forced to pay model Naomi Campbell’s legal fees after a 2004 House of Lords judgment.
The European Court attacked the present costs system, and in particular success fees, using the findings of the recent review by Lord Justice Jackson, which the government intends to mostly implement. It held that the costs system often amounted to the “blackmail” of defendants, and has had an unjustified chilling effect on the press.
The head of Sky News has argued in a new Guardian article that justice must be televised as allowing TV cameras in court would help restore public faith in criminal proceedings.
Sky news has been campaigning for TV cameras to be allowed in court for the past year. John Ryley argues that the upcoming prosecutions of 5 men accused of abusing the parliamentary expenses system should be televised as the judge in the case has said the matter is “of intense public interest”. Televising proceedings would help restore the loss of confidence in parliament and politics and ensure that judges who are seen are “out of touch” and “liberal” need not escape the spotlight.
Adakini Ntuli v Howard Donald [2010] EWCA Civ 1276 – Read judgment
Take That’s Howard Donald has failed to maintain an injunction against the press reporting details of his relationship with a former girlfriend. He had originally sought the injunction after receiving a text from the woman saying: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”
‘Superinjunctions’ have received a great deal of press coverage recently, not least because they are usually granted in cases involving celebrities’ private lives. They are injunctions, usually in privacy or breach of confidence cases, which prevent not only the publication of certain matters, but even the publication of the existence of legal proceedings. These cases are of particular interest because of the competing ECHR rights in play: Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression.
British Broadcasting Corporation v Harpercollins Publishers Ltd & Anor [2010] EWHC 2424 (Ch) – Read judgment
As has been widely reported, the BBC has failed in its attempts to obtain an injunction preventing the driver Ben Collins from revealing in an autobiography that he was The Stig in Top Gear. On 4 October 2010 Mr Justice Morgan handed down his reasoned judgment in the case, which has been summarised on the Inforrm blog.
The judgment itself contains few surprises. Morgan J held that Collins himself was not a party to any contracts with the BBC, the contracts in question having been agreed between the Corporation and a company established to service Collins’ business interests (para.20). It followed that the BBC had no claim in contract law against him personally for an alleged breach of a confidentiality clause. However, Collins was still bound by an equitable duty of confidentiality that prevented him from revealing The Stig’s identity (para. 20). Morgan J considered that this duty would still have applied at the date of the trial if this information had continued to be confidential (para. 50). However, as a result of numerous press reports (para. 52):
Updated | Recent weeks have seen some interesting developments in the debate over freedom of expression of the press.
Last week saw a decision of Grand Chamber of the European Court of Human Rights in Sanoma Uitgevers B.V. v. the Netherlands. The case related to the protection of journalistic sources, and has been described as a “victory for press freedom”.
The court held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. The Dutch prosecutors in the case, which had ordered the production of a CD-ROM containing potentially incriminating photographs of participants in an illegal race, had therefore breached Article 10 (freedom of expression).
Dink v. Turkey (applications no. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09) – This summary is based on the European Court of Human Rights press release.
In the case of Dink v. Turkey the European Court of Human Rights concluded that the authorities failed in their duty to protect the life and freedom of expression of the journalist Firat (Hrant) Dink, a prominent member of the Armenian minority in Turkey who was murdered in 2007.
Dink was a Turkish journalist of Armenian origin, and the publication director and editor-in-chief of Agos, a Turkish-Armenian weekly newspaper.
What does Wayne Rooney’s alleged philandering have to do with human rights? In itself, not very much. But a recent spate of exposés in and of the press has exposed more than a footballer’s indiscretions.
The starting point from a human rights perspective is the fragile relationship between two articles of the European Convention on Human Rights; namely, the right to privacy and the right to freedom of expression. Article 8 provides that everyone has the “right to respect for his private and family life, his home and his correspondence.” This right is qualified, in the sense that it is possible for a state authority to breach privacy rights if it is (amongst other things) necessary in a democratic society.
Flood v Times Newspapers Ltd [2010] EWCA Civ 804 (13 July 2010) – Read judgment
A Detective Sergeant in the Metropolitan Police accused of taking bribes has won his battle against the Times to prevent the newspaper relying on the Reynolds defence, which allows allegations to be reported even the it they turn out to be wrong, in the interest of media freedom.
In June 2006 the newspaper had published an article entitled “Detective accused of taking bribes from Russian exiles”, leading the detective to sue in libel The Court of Appeal reversed the decision of Mr Justice Tugendhat in the High Court which had said the Times could rely on Reynolds privilege. The Inforrm Blog has provided an excellent analysis of the judgment. The post sums up the facts as follows:
Gaunt v OFCOM [2010] EWHC 1756 (QB) (13 July 2010) – Read judgment
The High Court has ruled that OFCOM did not breach a DJ’s freedom of expression rights by finding that he contravened the Broadcasting Code after calling a guest a “Nazi” during an interview on talkSPORT. The decision by the regulator led to the DJ’s sacking.
Jon Gaunt applied for judicial review of the decision by OFCOM that he had breached rules 2.1 and 2.3 of the Broadcasting Code. Liberty supported his claim. He argued that OFCOM’s decision amounted to a disproportionate interference with his freedom of expression and an infringement of his rights under Article 10 of the European Convention on Human Rights.
HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor [2010] EWHC 1294 (QB) (17 May 2010) – Read judgment
The High Court has effectively thrown out a libel action against a journalist who claimed in an article that a Sikh holy man was a “cult leader”. The judge’s reasoning was that the disputed points of religious principle were not questions which a secular court could properly decide. In refusing to rule on such cases, are the courts taking an increasingly anti-religious view, and are they now in breach of the human right to religious freedom?
The decision was reported in mid-May, but Mr Justice Eady’s judgment was made publically available yesterday. It highlights controversial issues of whether religious believes are getting a fair hearing in the English courts, and whether “secular” judges are qualified to decide points of religious principle.
The recent announcement of the review of libel and privacy law by a high-profile panel has led to a flurry of conjecture, comment and proposals. The new Government has pledged to reform the law of libel, but what shape will the reforms take?
The committee, which was announced last month, is being led by Lord Neuberger, the head of the Court of Appeal, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial “super injunctions”.
The new Coalition Government have pledged to “reform libel laws to protect freedom of speech“. Cases involving libel, defamation and super-injunctions have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).
Sarah Ferguson, the Duchess of York, is in trouble for offering to sell her influence for cash. She proposed to sell access to her ex-husband Prince Andrew, a “trade envoy”, for £500,000 to an undercover reporter from the News of the World. The circumstances of the sting raise interesting issues in respect of the right to privacy under the Human Rights Act.
Article 8 of the European Convention on Human Rights provides that “Everyone has the right to respect for his private and family life, his home and his correspondence“. The right is not absolute, and can be breached by a public authority “in accordance with the law and is necessary in a democratic society”, that is, if the breach is in the public interest. Only public authorities need to keep within these rules.
The Inforrm Blog has posted an interesting analysis of the issue, concluding that
it seems to us that there is a proper justification for the publication of the story. What the Duchess was offering was “access to a public official”, for a payment which appears to be wholly disproportionate to the “monetary value” of the service offered… The fact that neither the Duchess nor the businessman had any specific wrongdoing in mind does not matter. The whole transaction was “tainted” and its exposure was, we suggest, justified for that reason. Continue reading →
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OPQ v BJM [2011] EWHC 1059 (QB – Read judgment
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