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Free Human Rights Dissertation

Essay Topic: ,

A critical analysis of the effect of Article 8 and Article 10 of the European Convention on Human Rights on newspapers in the UK with an emphasis on libel laws

Abstract

This dissertation is a critical analysis of the effect of both Article 8 and Article 10 of the European Convention of Human Rights on the media in the UK with a special emphasis on the press and libel which has absorbed most of the advances the Human Rights Act enshrined into UK law in 1998. The hypothesis of this study is that although both rights have been absorbed into the UK neither appeared into a vacuum and furthermore they have not been absorbed with the equality which the rhetoric of the judiciary would suggest. There is a ‘continental drift towards privacy’ clearly prevailing in the UK and the effects are being most sharply felt by the press who are so often at the vanguard of free speech for themselves and freedom of expression for all.

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In no area can this be demonstrated more clearly than in the area of libel which has sought to strike a balancing exercise between the two rights. The libel laws are heavily stacked towards the individual and act as an obstacle to freedom of expression. This dissertation will carry out extensive secondary case research to establish the effects of convention arguments in the courts in libel actions and attempt to divine the future direction and analyse the detailed recommendations of the Coalition Government in the Draft Defamation Bill of 2011.

Introduction

The Human Rights Act 1998, now woven into the fabric of the British legal landscape, represents a sea change in the endless dance of death between freedom of expression and the right to privacy between the state and the media, paparazzi and celebrities, journalists and editors and now even between social networking employees and employers. But just how far has the UK comeThat Britain, traditionally a country without any law of privacy[1], now has an anchor for the right to privacy and the freedom of expression in the European Convention on Human Rights can be partially attributed to a media which has, ironically, committed some of the gravest sins against privacy: for example taking pictures of the (then) retired actor Gordon Kaye in 1991 while he was recovering in hospital after sustaining severe head injuries[2]. The Court of Appeal ruled that there was no satisfactory legal remedy for what the judges admitted was a “monstrous invasion of privacy”:

“Any reasonable and fair-minded person hearing the facts which Glidewell L.J. has recited would in my judgment conclude that these defendants had wronged the plaintiff. I am therefore pleased to be persuaded that the plaintiff is able to establish, with sufficient strength to justify an interlocutory order, a cause of action against the defendants in malicious falsehood. Had he failed to establish any cause of action, we should of course have been powerless to act, however great our sympathy for the plaintiff and however strong our distaste for the defendants’ conduct. This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens.”[3]

Bingham L.J uses the settled position in Germany to contrast the tortured reasoning that the British courts have had to apply to invasions of privacy for generations. The confusion of the court in Kaye is a good example of when overlap occurs between the various actions that UK law has developed to deal with issues of privacy. The plaintiff in Kaye argued four separate ways: Libel, malicious falsehood, trespass to the person and passing off. This can be contrasted against the position in France where strong privacy laws enshrined in the constitution inhibit free speech and allowed Francois Mitterand to conceal his illegitimate daughter until she reached the age of 19[4]. On the flipside of privacy, Britain has a very self congratulatory proud tradition of extolling the merits of free speech and the freedom of the press, a freedom, as Robertson forcefully argues, which was, prior to the Human Rights Act, a hollow concept that any government could detract from at whim[5]. As a corollary, privacy could be protected indirectly through the development of laws such as trespass and official secrets while freedom of speech could be eroded indiscriminately to bolster a state that was seeking to protect its own interests. Robertson observes on this paradox:

“’Freedom of the Press’ remained a potent phrase, but the fact that it was protected by unwritten convention rather than by a constitution meant that there was no external brake to stop Parliament and the courts moving to restrict it in particular ways, as the mood and temper of the times seemed to require. Britain remained a country where ‘everything is permitted which is not specifically prohibited’ but the specific prohibitions became much more numerous, because they never had to justify themselves against the standards set by Article 10.”[6]

The final sentence of Geoffrey Robertson’s observation suggests that article 10, now widely cited in the British courts and developed by an illustrious line of European jurisprudence from Strasbourg, is now a new standard and represents a paradigm shift. Although the Human Rights Act came into force in 1998 it is 1979 which marked the turning of the intellectual tide when the European Court of Human Rights delivered a devastating judgement against the British courts’ attempts to suppress the publication of a remarkable piece of investigative journalism which exposed the harmful effects of the drug Thalidomide.[7] Although, to a greater degree than article 8[8], article 10 is qualified[9] and subject to certain restrictions there is a further section in the Human Rights Act itself which demonstrates the importance of freedom of speech and which distinguishes the right from the right to privacy:

“(4) The court must have particular regard to the importance of the Convention right to freedom of expression”.[10]

It is crucial to note that s.12(4) does not give article 10 what is called “presumptive priority”[11] over other rights, most notably privacy, despite the judicial rhetoric and that individuals cannot currently bring a free-standing cause of action based on ECHR (newspapers are private bodies) but must instead “anchor” their claim to an existing common law action, such as breach of confidence: the Human Rights principle affect has been one of absorption of convention rights into existing common law actions rather than creating a new tort of privacy[12] . This dissertation will critically assess privacy in the UK and its’ interplay with freedom of expression both before and after the passing of the Human Rights Act in the UK in 1998 through the lens of the press: are they having to yield to privacy in article 8 and has the human rights act only had a modest impactOr are they able to report fearlessly in the knowledge that article 10 will reinforce their positionThe hypothesis of this study is that the Human Rights Act has had a huge impact on the competing rights although, considering the history and the development of breach of confidence, a framework for protecting privacy at common law already existed[13] and with regard to freedom of expression there is a long line of pre Human Rights Act judicial dicta which has emphasised the importance of this right[14] although notably Robertson pours scorn on what he insists is purely rhetoric which obscures the fact there has been no generalised right of free expression since the Magna Carta[15]. In short the Human Rights Act and articles 8 and 10 did not step into a vacuum and must be analysed accordingly though it is debatable to what extent freedom of expression was protected in the UK prior to 1998. In determining how to balance the competing rights, however, the HRA has been vindicated in providing a framework although we are still a long way from a situation where the media can speak freely and in some areas, such as libel for example, the right to privacy is winning to the detriment of us all; the “chilling” effect on free speech still very much evident and there is no prospect of a thaw even with the promising Draft Defamation Bill in 2011[16].

The tortured history of privacy and free speech in the UK in chapter 1 will be analysed before examining both of the fundamental rights at stake in chapter 2. Chapter 3 will address the law of libel in the UK and secondary case research will be conducted into libel cases involving newspapers and the mediafrom 2008 to 2011. This chapter will also provide an exhaustive look at the latest case law in relation to libel including the cases of Mr.Justice Eady up to his very latest in 2011[17] as well as case studies of important libel cases including the seminal Max Mosley and the News of the World trial[18] which was Mr.Eady’s most high profile case and triggered a barrage of criticism. This chapter will conclude by determining whether the claim by Paul Dacre of the Daily Mail, that Mr.Justice Eady is responsible for eroding free speech, is true[19]. Chapter 4 looks at the position in France in order to extract any useful lessons for privacy reform in the UK while chapter 5 draws all the strands of this study together to assess the impact of the Human Rights Act, in the shape of articles 8 and 10, on privacy and free speech in the UK. The striking case of Wikileaks will also be examined in this chapter alongside the growth of the so-called “super injunction” as well as the much welcomed reforms of the coalition government[20]. Finally chapter 6 will provide recommendations for the future based on conclusions drawn from the previous five chapters. With the historic multitude of laws enhancing privacy the role of the human rights act in promoting freedom of speech is remarkably important and Robertson makes an inspired case for article 10:

“The Human Rights Act 1998…provides what previous governments, and generations of judges, have never believed politic to entrench either in statute or common law, namely a guarantee of freedom of expression, a promise that “speech” will have a presumption made in its favour by any court invited to suppress it. This covenant – which enters British law by way of the incorporation of Article 10 of the ECHR – reflects the core belief of the eighteenth century republican revolutions in France and America, adopted as an article of faith in modern Human Rights instruments, that freedom of speech is a good in itself, an essential pillar of democratic order. This is the free speech principle, which assumes that liberty is best secured by a system that protects utterances irrespective of their merit, because in a free market of ideas and opinions the good will triumph over the bad”[21].

This study will focus on the press as their struggle for free speech is a front in the battle for freedom of expression: the two are often conflated and it is the press, with its resources, who is often in the courtroom arguing for publication[22]. Thus there is no better prism through which to evaluate the impact of articles 8 and 10 of the ECHR as private individuals do not have the vast resources, since legal aid is not available, to initiate libel claims or contend with the costs of victory or defeat[23].

Chapter 1: Background and overview

A. A right to Privacy in the UK prior to 1998?

Privacy in the United Kingdom has never enjoyed the protection of statute and has remained an enigma that is referred to by convention rather than constitution[24]. Countries such as France[25], Germany[26] and America[27] have a more defined right to privacy and are often seen as providing more constitutional protection than Britain, with its’ unwritten constitution, ever has despite the levelling of the European playing field in the 21st century. The Younger Committee on Privacy met in 1972 to address this very question but the introduction of such a right was abandoned despite the committee recommending that “privacy requires additional protection”[28]. The Report followed the introduction of a Private Member’s Bill in the House of Commons that ultimately was rejected[29] and indeed there have been a few privacy Bills that have foundered in the House amid ideological ruins[30]. The influence of the report was very profound and indeed, in the words of Bradley & Ewing, was to “structure the debate for a generation”[31]. Yet it is a fallacy to say that there have been no laws that have addressed privacy to a degree. In terms of civil law: in surveillance there has been the law of trespass[32] and the regulation of interference with property[33]; in the field of private information there has been legislation to protect individual’s data[34] and also legislation for the public to have access to sensitive data held about them[35]; in the protection of trademarks, patents and copyright ideas and sensitive information are restricted from dissemination[36] as well as a whole smorgasbord of criminal laws, some ancient and obsolete[37], some common law and some statute, which have restrained newspapers[38]. The suite of laws, both criminal and civil, which enhance privacy often overlap and can influence the press although often indirectly as the anchor for a Convention Rights argument[39] which the court as a public authority under the Human Rights Act 1998 must act compatibly with[40]. The most relevant action for privacy matters in relation to the media is breach of confidence which many commentators have defined as a virtual right to privacy in all but name[41]. This equitable doctrine developed out of the case of Prince Albert v Strange[42] where the Prince had supplied various members of his family with private drawings. An employee of the prince disseminated a copy of the etchings entrusted to him to a friend. The Prince then secured an injunction against the friend and it “was held that an injunction could lie in property, trust, confidence or contract”[43]. This case is very much in keeping with the use of breach of confidence in the early half of the 20th century as a restraint on the disclosure of trade secrets[44]. Prince Albert was followed by the two cases in the 1960s that sought to clarify and define the law of breach of confidence. In Argyll v Argyll[45] confidential secrets of marriage were successfully restrained and set the benchmark for the kind of information that can be restrained even absent of a contract or a property rights violation. The classic test of breach of confidence came two years later in Coco v A N Clark (Engineers) Ltd[46] which produced the classic test, in the words of Mackenzie[47], to establish a breach of confidence: firstly that the information was of a confidential nature, secondly that it was communicated in circumstances giving rise to an obligation of confidence and finally that the information was used in an unauthorised manner[48].

This test has been gradually eroded and stripped away over the years to reveal what Mackenzie argues is a virtual right to privacy[49]. The obligation of confidence has, in particular, been relaxed from the strong bonds that were required, such as marriage[50], to mere friendship[51] sufficing to satisfy this limb of the test. In 1990 the classic case on breach of confidence arrived in the form of Attorney General v Jonathan Cape[52] which demonstrated the scope for breach of confidence to be widened to material published by the media which is in the public interest. Lord Widgery made the following observations:

“…the Attorney General has a powerful reinforcement for his argument in the developing equitable doctrine that a man shall not profit from the wrongful publication of information received by him in confidence. This doctrine, said to have its origin in Prince Albert v Strange (1849) 1 H&T.1, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence”[53].

The developments in the Crossman diaries saga and the Spycatcher[54] case in 1990 explicitly recognised that breach of confidence was a right to privacy in all but name but these reforms by the judiciary were halted by the Kaye case mentioned above, however, which firmly “refused to widen breach of confidence any further and reaffirmed the position that there was no law of privacy in UK law.”[55] A further dilution of the obligation of confidence occurred in Shelley Films Ltd v Rex Features Ltd[56] where, following Spycatcher and not Kaye, the concept of a reasonable man test was introduced thus making it easier to argue that the photographer in question who supplied a picture of Robert de Niro to a newspaper should have known that photography was explicitly forbidden. Five years later Laws J felt confident enough, albeit obiter dicta, to again reassert that breach of confidence was effectively a right to privacy in all but name and this was perceived to be the first signs of an emergence of breach of confidence as a right to privacy[57] two years before the Human Rights Act in 1998 came into force.

The most important case on breach of confidence so far has been Douglas v Hello! Ltd[58] which was an appeal against the decision to grant an interim injunction preventing Hello! from publishing more photographs of the Douglas’ wedding after a photographer breached the extensive security surrounding the event. The action was brought under breach of confidence coupled with a breach of privacy under Article 8 of ECHR. Although this case dragged on to 2004[59] and the Douglases’ ultimately prevailed on a breach of confidence, it is the original successful appeal against an interim injunction that prompted many commentators to proclaim a new right to privacy in the UK[60] with three of the judges in the case discussing the changing nature of breach of confidence. Sedley LJ observed:

“English law will recognise, and, where appropriate, protect, a right of personal privacy, grounded in the equitable doctrine of breach of confidence, which accords recognition to the fact that the law has to protect not only those whose trust has been abused but those who find themselves subject to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy”.[61]

It should be pointed that Bridge L.J’s dictum[62] which effectively restricted the privacy rights of those who actively seek publicity has been distinguished recently[63] but remains a difficult authority which those seeking to establish a breach of confidence will have to hurdle if those seeking relief have themselves wanted favourable publicity Thus the almost total abandonment of the tight controls which distinguished breach of confidence is quite evident from a test which at first required a strong bond such as marriage to impart an obligation of confidence[64], then to lesser bonds sufficing such as friendship[65], to a reasonable man test[66] and finally to Sedley LJ’s observations that this limb of the test is effectively redundant[67] as the right of privacy emerges not as something which has never been recognised before like a phoenix from the flames but rather, as Mackenzie has astutely observed, recognition of the role breach of confidence has been playing since 1849[68]. Eadie J outlines the modern position:

“Although the law of “old-fashioned breach of confidence” has been well established for many years, and derives historically from equitable principles, these have been extended in recent years under the stimulus of the Human Rights Act 1998 and the content of the Convention itself. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.”[69]

The complementary laws outlined above such as trespass and breach of copyright all serve to augment the pivotal role of breach of confidence. The Human Rights Act did not step into a vacuum but was absorbed into existing actions such as breach of confidence: and it crucially must be analysed as such.

B. Freedom of expression and UK newspapers: last chance saloon?

The reference to the press in the UK drinking “in the last chance saloon” is derived from Sir Andrew Calcutt’s Royal Commission into the Press in 1990[70] when the then National Heritage Secretary David Mellor claimed that some parts of the media had snapped the government’s patience after numerous scandals which intruded into private grief, arguing that the media’s “sacred cash cow” of free speech should be restricted as he introduced the Royal Commission to the House of Commons[71]. Ultimately of course Calcutt came out against a new law of privacy and instead laid the foundations for the Press Complaints Commission and a code of conduct through self-regulation[72] but David Mellor’s comments deserve analysis: what was he referring to when he explicitly stated that the Press should be reined inThere is a historical common law right to freedom of expression in the UK which Laws J described as being: “…as much a sinew of the common law as it is of the European Convention for the Protection of Human Rights and Fundamental Freedoms”[73]. Lord Bingham of Cornhill, an eloquent defender of free speech, produced this classic observation:

“Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments…Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred. The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one…Despite the high value placed by the common law on freedom of expression, it was not until incorporation of the European Convention into our domestic law by the Human Rights Act 1998 that this fundamental right was underpinned by statute.”[74]

Thus like privacy, freedom of expression was recognised if not eulogised long before the Human Rights Act arrived. Robertson’s criticisms of a notion of British free speech stems from successive governments introducing indirect privacy laws to curb the worst excesses of the tabloid and broadsheet press in chequebook journalism, the reporting of political scandals, undercover surveillance and entrapment[75]. There are myriad ways to hedge in what is left of free speech and the debate against the press enjoying untrammelled expression took on a life of its own in the 90s. The privacy furore in the mid 1990s reached what has been called “fever pitch”[76] after pictures of Princess Diana in 1993 working out in a gym were splashed across the front pages of the Sunday Mirror and the Mirror; a Sunday Times investigation in July 1994 uncovered two MP’s accepting cash for questions and in October 1994 the Guardian’s own investigation into allegations of sleaze in the Conservative Government led to the Guardian editor Peter Preston resigning from the PCC[77]. Throughout all of the times of crisis under both the Thatcher and Major governments the press only survived by clinging to the last vestiges of self-regulation: the Press Complaints Commission. The Commission was memorably attacked as concerned only in looking after its own: “a pact between the great and the good and the newspaper industry”[78] and Robertson further comments on the implications of a PCC ruling: “its adjudications are short and usually over simple, reflecting only on editors, who do not appear discomfited by its statements that they have breached a code of practice”[79]. The PCC produces a Code of Conduct that has, in the human rights era, been elevated by section 12 of the Human Rights Act 1998 under (4)(b) to a code with “indirect legal effect”[80] which renders its contents more important and gives some credibility to the much ridiculed notion of self-regulation. It has been observed that it now has a role to play in court cases involving the press and article 10:

“with respect to section 12(4) it may actually be the case that the press has shot itself in the foot. The section elevates the Press Complaints Commission (‘PCC’) Code of Practice to a position it has not occupied previously. This is of particular relevance in respect for private life cases where it has been held that where the Code has been flouted and no public interest claim is asserted, a claim to freedom of expression is likely to be trumped by Article 10(2)”.[81]

Under the Code of Conduct “there is a public interest in freedom of expression itself”[82]. Thus the Human Rights Act could justifiably be argued to have given some indirect teeth to the Code of Conduct, although not the PCC itself which continues to be seen as toothless[83], but the important point remains that which Lord Bingham made in Shayler; that although freedom of expression existed before the Human Rights Act it is only through human rights that it has been given a renewed emphasis albeit stopping dramatically short of a presumptive priority[84]. As will be seen in the following chapter on the European jurisprudence, there is a balancing exercise to be carried out between article 8 and article 10 which underpins the modern approach[85]. Furthermore, there are those who are extremely sceptical of the existence of free speech in Britain such as Geoffrey Robertson QC who argues passionately against Amos’ assertions that UK freedom of expression was the most highly evolved of rights in place before the Human Rights Act 1998 was passed[86]. Robertson points out that freedom of speech is too easily trampled on by the various laws that the courts have developed and highlights James v Commonwealth of Australia[87] as being reflective of the courts historical interpretation of a qualified right of free speech prior to the Human Rights Act. It was observed in that case that “free speech does not mean free speech”[88] but actually speech that is subject to the laws of, inter alia, defamation, blasphemy and sedition. It is difficult to disagree with Robertson’s viewpoint as he undertakes a look at the right from the Magna Carta up to the Human Rights Act and he points out that the only free speech right to be found in British constitutional law is in fact in the 1689 Bill of Rights but “belongs only to M.Ps and to peers, giving them absolute privilege against libel actions over allegations they make in the course of parliamentary proceedings”[89]. He concludes that:

“Although the European Convention, incorporated into British law on October 2nd, 2000 by the Human Rights Act (HRA), had been promoted by the spin doctor’s slogan “rights brought home”, article 10 (which guarantees freedom of expression) never has been at home in Britain. Although many other sections of the Convention, guaranteeing free trial and Habeus Corpeus and due process, owe their providence to English law, and…the “open justice” principle and rule against prior restraint were first formulated here, no generalised right of free expression, however common in rhetoric, entrenched itself in law.”

A free press has often been at the heart of arguments for free speech and the two have often been confused as, understandably, most cases on freedom of expression involve the press in some capacity and the two notions are inextricably woven[90]. The watchdog role of the press, lionised by newspapers for centuries as their raison d’etre[91], has been incorporated into the jurisprudence of the European Court of Human Rights as pointed out by Longmore LJ[92] and is referred to in countless judgements. The House of Lords has very recently reaffirmed the Reynolds public interest defence for journalists[93] and the protection of freedom of expression for newspapers, and by extension all of us, is gathering pace despite some worrying inroads into privacy.

Chapter 2: Article 8 and Article 10

A. Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As has been pointed out above there is a duty for the courts to act compatibly with Convention rights being as they are included under the list of public bodies under the Human Rights Act 1998: their actions would be unlawful if they did not comply with the ECHR[94]. The extension of Convention rights to private law cases was described by the court in Venables v News Group Newspapers[95] as being beyond doubt and that s.12(4), in the words of Sedley LJ in Douglas, “puts beyond question the direct applicability of at least one article of the Convention as between one private party to litigation and another—in the jargon, its horizontal effect”[96]. The content of the privacy right in article 8 is very broad and has been held to cover: “…a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”[97]. In reality this means private life in physical and psychological integrity[98] and even includesthe right to choose death[99] despite the memorable submissions of the Secretary of State in Pretty: “He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it.”[100] The court disagreed with the Secretary of State in this instance, holding that a blanket ban on assisted suicide could constitute an interference with article 8(1) but that the interference can be justified as safeguarding life and furthermore in accordance with the law[101].

The courts, in respect of article 8 and the media, have adopted a two stage test for article 8 which firstly asks whether there is a reasonable expectation of privacy and if there is to balance this against a countervailing public interest in interfering with the article 8 rights[102]. On the first limb of the test, which is objective[103], it needs to be established whether the activity reported on is in the public or private domains and there are several factors to be taken into account such as absence of consent and the nature of the intrusion. In Author of a Blog v Times Newspapers Ltd[104] the blogging of the detective was clearly a public activity while by contrast in Mosley v News Group Newspapers Ltd[105]the claimant did have such an expectation given the private nature of the sexual encounters. Regarding the second limb of the test the public interest, if the first limb is engaged, must be sufficient to outweigh the interference with the article 8 rights of the claimant. Again when looking at Author of a Blog the public interest is apparent in unmasking a senior police officer as the mysterious writer of a blog which had criticised the police while in Murray v Express Newspapers[106] the public interest element was very weak in taking pictures of the children of a celebrity and the fact that an ordinary, reasonable person would consider the publication of the pictures abhorrent was significant. The public interest has an explanatory definition in the PCC Editorial Code which has, in light of s.12(4)(a) of the Human Rights Act and the elevated status if the code, been approved by the courts in their attempts to capture the public interest and if the conduct complained of is disproportionate to the aim[107]. Eady J asked a simple question to demonstrate the concept:

“The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliffSurely not. There must be some limits and, even in more serious cases, any such intrusion should be no more than is proportionate.”[108]

B. Article 10

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The content of the right to freedom of expression is also very broad and includes not only written and oral forms of communication but also videos and internet sites[109]. Thus in the context of the press online editions are clearly included under article 10 and indisputably all printed newspapers will fall easily under article 10 which has been described as “easily engaged”[110]. The next stage in the analysis is whether there has been an interference with article 10This is also easily proved and it has been held that injunctions[111], convictions under the Official Secrets Act 1989[112] and more gravely state censorship[113] all constitute an interference with article 10. As Merris points out the situation is not always so clear cut: in the case of copyright this is but a minor interference in light of the fact that a claim under copyright which does threaten publication is not an absolute bar to publication[114].

The real hurdle in article 10 is under (2): where such an interference as found in (1) must be justified under one of the extensive grounds since almost all cases so far have proceeded with recognisable laws at common law or by statute and are prescribed by law. There are two aspects of necessity which then need to be analysed: whether the interference was “necessary in a democratic society” and whether the interference is proportionate to the legitimate aim pursued. On the both it has been observed that:

“Lord Hope in Shayler held that the restriction on the disclosure of information cannot be said to be necessary in the interests of national security unless (a) relevant and sufficient reasons are given by the national authority to justify the restriction, (b) the restriction on disclosure corresponds to a pressing social need and (c) it is proportionate to the legitimate aim pursued.”

In determining proportionality the case law has developed certain general principles which the court will pay heed to: firstly s.12 of the Human Rights Act 1998 and the importance of freedom of expression as well as the PCC Code of Practice under s.12(4), secondly the importance of the freedom of the press, thirdly the public interest and finally deference to the decision maker[115].

C. The New Methodology: Von Hannover and Campbell

Von Hannover[116]

Under s.2 of the Human Rights Act 1998 courts in the UK must take into account decisions of the European courts when considering questions of convention rights. This case marked a watershed moment in striking the correct balance between article 8 and article 10 when Princess Caroline von hannover attempted to defend her right to privacy against paparazzi and tabloid intrusions. Germany was found to be in breach of the applicant’s right to privacy under the European Convention on Human Rights by denying her a remedy in their courts for intrusive pictures taken while she was shopping[117]. A key development in this case was that aspects of von hannover’s public life were held to be under the scope of article 8 as well as a limited sphere of interaction with others. Under article 8(2) the court crucially pointed out that the right to privacy is not absolute and that in having regard to the “rights of others” included the respect for the freedom of the press. The court observed:

“Although freedom of expression extended to the publication of photographs, this was an area where the protection of the rights and reputation of others took on particular importance. The present case did not concern the dissemination of ideas but of images containing very personal or even intimate information about an individual. Furthermore photographs appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution.”[118]

Thus freedom of expression is, of course, itself qualified and regard must be had to the “respect of the reputation and rights of others”[119]. In applying these tests to the current case the court observed that Princess Caroline’s role was only symbolic and not political and consequently this was not a matter to which the press could fulfil their watchdog role legitimately in contributing to a public debate[120]. The court then went on to hold that in the absence of any legitimate public concern freedom of expression would be more narrowly construed[121]. The court upheld the applicant’s right to privacy.

Campbell[122]

This case has also been remarkably influential in the debate and has been recognised judicially as marking a turning point in the application of these rights and indeed embracing a so-called “new methodology” according to Lord Steyn in In Re s (A Child)[123]. On the facts of this case the supermodel Naomi Campbell, who openly courted publicity, had volunteered false information to the newspaper, insisting that she didn’t take drugs. The newspaper then disclosed details of her addiction and obtained photos of her therapy meetings. The claimant succeeded at first instance but then the Court of Appeal overturned the decision in favour of the newspaper, ruling that publication of the photos was in the public interest. There was then an appeal to the House of Lords where their lordships by a 3-2 decision upheld her right to privacy. Lord Hoffman (dissenting) made the following observation on the unique difficulties of this case:

“The facts are unusual because the plaintiff is a public figure who had made very public false statements about a matter in respect of which even a public figure would ordinarily be entitled to privacy, namely her use of drugs. It was these falsehoods which, as was conceded, made it justifiable, for a newspaper to report the fact that she was addicted. The division of opinion is whether in doing so the newspaper went too far in publishing associated facts about her private life”.[124]

Hoffman went on to point out that the House, although divided on the law, was united on the principles to be taken from the case. A number of factors spurred the House to reason that the claimant’s right to privacy had been breached: the nature of the drug addiction meetings were akin to medical records under the Data Protection Act 1998 and so required a particularly strong justification which was lacking, persons in her position with such difficulties may encounter setbacks if their struggles with drugs are disclosed and what Lord Hope christened as a “margin of appreciation” of journalists in deciding story content had been overriden by content which infringed the claimant’s right to privacy[125]. In In Re s (A Child) the new methodology of Campbell was summarised as thus:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”[126]

Chapter 3: Libel in the UK

A. Libel and the Press: the landscape

The libel laws of the UK are so attractive to international litigants that a tourism industry has grown up around it which Parliament has now sought legislation to address[127]. But why are British libel laws so attractive to foreign companies and individualsThe simple answer is that the UK system is very heavily stacked against freedom of expression as has been very evident recently in the Trafigura affair where British newspapers and media, including the Guardian, the Independent and the BBC, were frightened off the story of Trafigura dumping illegal waste in the Cote-D’ivoire by legal threats made by the media lawyers Carter Ruck and forced to issue apologies and climb-downs[128]. Carter Ruck defends many clients’ private information and of the cases examined for the secondary research below Carter Ruck are prominent as defendants in a large number of cases[129]. Bearing in mind that Carter Ruck even threatened to gag Parliament it becomes clear that the libel laws in this country may be out of control[130] and that the Draft Defamation Bill is recognition of this.

The historical development of libel is traced by Geoffrey Robertson who asserts that the current form of libel can be traced from the Victorian Club: “The idea that large sums of money must be awarded to compensate people for words which ‘tend to lower them in the estimation of right-thinking members of society’ directly derives from an age when social, political and legal life was lived in gentlemen’s clubs in Pall Mall, an age when escutcheons could be blotted and society scandals resolved by writs and slander”[131]. Thus a system emerges which attempts to strike a balance between the right of free speech and the right of reputation with the balance leaning heavily towards the latter. From these humble beginnings the modern test of libel can be easily elicited from the dictum of Lord Atkin: “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”[132].

Libel, as distinct from slander, is actionable without damage[133] and is one of the few surviving civil torts which, under the Supreme Court Act 1981[134], still has a presumption in favour of a jury should one of the parties request it[135] although this presumption will be abolished should the Draft Defamation Bill receive royal assent[136] . It was the president of the Supreme Court, Lord Philips of Worth Matravers who observed:

“Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirableThe issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre-empt issues from going before the jury.”[137]

The consultation criticised the costs, simplification of complex legal concepts and the effect on settlements jury trials have in defamation cases[138]. Furthermore damage would have to be proved under the new draft Bill which would be an astounding departure from the past where up until now there has been a presumption that such defamatory words cause harm without the need for proof[139]. Returning to Lord Atkin’s dictum the construction of words is clearly very important in libel cases and many hearings are simply to decide precisely what words mean[140]. Subject to the claimant being identified as the object of the allegedly defamatory statement[141] and not being part of a group whose collective reputation cannot be protected[142] anyone who has been involved in the publication, from the author down to the distributor or even an Internet Service Provider[143], may be sued in libel. The Defamation Act 1996 put some of the law of libel on a statutory footing and enabled distributors who were unaware of the defamatory material to escape liability by the defence of innocent dissemination[144]. Two final but crucial points remain to be made: the multiple publication rule[145] firstly means that each “publication of a defamation gives rise to a separate cause of action”[146], being every copy of a newspaper or website hit, and secondly it is for the defendant, on a balance of probabilities, to prove one of the following defences[147]:

(a) Fair Comment: This defence actually protects what Robertson describes as “unfair comment”: an opinion, however unfair, that is honestly held on a matter of public interest. The defence only applies to comment and not to fact and is a distinction which led Eady J to err[148].

(b) Justification: If the defendant proves that the statement is true then there can be no action. The defendant need not show that the statement was in the public interest and it cannot be undone by the claimant proving malice[149]. Under the Defamation Act 1952 the defence do not have to prove the truth of each allegation[150].

(c) Absolute and qualified privilege: the Defamation Act 1996 sets out that fair and accurate reports of court proceedings and parliamentary proceedings attract absolute privilege; meaning that they comprise a complete defence regardless of any malice or truth. Qualified privilege, which can be defeated if malice is shown, attaches to all of the circumstances in schedule 1 of the 1996 Act which includes fair and accurate reports of legislatures or international organisations anywhere in the world[151].

(d) Offer of amends: S.2 of the 1996 Act contains this defence which contains three elements: a correction, an apology and compensation to the claimant. If the offer is accepted then the claimant can no longer bring an action of defamation[152] but if the offer is refused then this will form a statutory defence at the trial[153].

(e) The Reynolds duty-interest defence: This defence arose out of a case in the House of Lords[154] where their Lordships extended the defence of qualified privilege to protect the publication of material which the reporter was under a moral or social duty to publish and, as a corollary; the recipients have an interest in receiving. The House of Lords held in Reynolds that the Sunday Times could not benefit from the defence as they had acted unfairly in omitting the explanation of Albert Reynold, the ex-premier of Ireland, from their Irish edition after his resignation in 1994[155]. This defence is most relevant to the aims of this study as it strikes a balance between the protection of reputation and the freedom of expression as Lord Nicholls explains:

“My Lords, this appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation. The context is newspaper discussion of a matter of political importance. Stated in its simplest form, the newspaper’s contention is that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive.”

Lord Nicholls goes on to set out ten factors which the court must have regard to in establishing this defence which include the gravity of the allegation, the nature of the information and its’ source, the urgency of the matter as well as any steps taken to verify the information among others[156]. There have been a lot of problems with this defence, however, and these ten factors were considered to potentially be ten obstacles by the House of Lords[157] with Lord Hoffman taking the unusual step in this case of criticising Eady J, at first instance, for his interpretation of the Reynolds privilege:

“In the hands of a judge hostile to the spirit of Reynolds , they can become ten hurdles at any of which the defence may fail. That is how Eady J treated them. The defence, he said, can be sustained only after “the closest and most rigorous scrutiny” by the application of what he called “Lord Nicholls’s ten tests”.”[158]

Commentators have also remarked on the judicial hostility to Reynolds and the uncertainty it created[159]. Clayton and Tomlinson argued that this uncertainty was a violation of article 10 in itself by restricting the use of the defence although this uncertainty has been approved as being article 10 compliant by the European Court of Human Rights in Strasbourg[160]. Thus the case of Jameel and Others v Wall Street Journal Europe Spr[161] was vital in reaffirming the Reynolds defence and this was followed by the Court of Appeal in Flood v Times Newspapers Ltd[162] where Lord Neuberger went through the classic test propounded by Lord Nicholls[163]. In the case of Jameel Lord Hoffman took the opportunity to highlight the importance of responsible journalism, a concept which Eady J had described as subjective but which Lord Hoffman defined as an objective standard all could relate to. The developments in Jameel were vital in resuscitating a defence which had been reeling in the wrong hands:

“The judgments of the Lords in Jameel strongly re-affirm the importance of Reynolds privilege – or as it may more accurately become known, Reynolds public interest defence – as a cornerstone to protect the press when responsibly informing the public on matters of public interest.”[164]

(f) Malice: As pointed out above, malice can defeat the defences of fair comment in the public interest and qualified privilege as described by Lord Diplock: “The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would have otherwise been entitled.”[165] Thus malice is “dishonest or reckless writing or reporting”[166].

B. Secondary case law research into British newspapers and libel

The “chilling effect” of libel on the media has been well documented[167] and as the authors of this study noted at the time in the introduction this is a “strangely neglected“ topic which deserves research to examine what Robertson has powerfully called “the greatest inhibition upon freedom of speech”[168] in light of recent developments with the ECHR. As noted above, it has been recognised judicially that the press have a unique watchdog role in society which legitimises a democracy and embodies a central pillar of freedom of expression in a democracy[169]. The seminal studies of Barendt et al were conducted in 1997 and research carried out for this dissertation revealed that there has not been its equal in the post human rights libel environment: their study was a one-off before courts were compelled to take into account Convention arguments[170]. Now, in 2011, the environment is especially ripe to undertake some secondary case research of libel actions, especially with the “chilling” effect of libel laws being recognised by the Justice Secretary of the Coalition Government Kenneth Clark and a Draft Defamation Bill in Parliament[171]. Taking into account accusations from the press of the judiciary creating a right to privacy via the back door crystallising in 2008[172] and the case against Dr.Singh brought by the British Chiropractic Association provoking widespread criticism in May 2009[173] it is apt to examine case law in the period from January 2008[174] up until January 2011[175]. A further reason for choosing this period is that Mr.Justice Eady stepped aside as the top libel judge in the UK on 1st October 2010 for Mr.Justice Tugendhat in a move which some commentators cautiously welcomed as being a positive one for freedom of expression[176].

The research is restricted to libel actions in Britain[177] in any court up from first instance Queen’s Division to the Supreme Court[178] and either the case or the appeal is within the period stated above: furthermore, only cases resolved in this period are covered and hearings for summary judgements (except where either party succeeds or the action is struck out) are excluded as often the case will proceed to trial which will be pending at a later date. The results are presented in graphical form and the following will be analysed: whether convention arguments were relevant or not, the frequency of libel actions and the identity of the defendants, the success or failure of the action (from the perspective of the newspaper), the effect of Mr.Justice Eady[179], the defences employed and success of interim injunctions as will be the anchoring action to which the Convention Rights are parasitic. Before embarking upon this research it is wise to recount the findings of Barendt et al:

“The law of libel exercises a chilling effect…because the defences of justification, fair comment, and privilege do not adequately safeguard the interest of the media (and the public) in freedom of expression. The media may, for instance, be unsure whether they could prove the truth of the allegations in court or…they may be concerned by the cost of defending an action bought by a wealthy and persistent litigant.”[180]

(a) Overview of the case law January 2008 – March 2011: victory and defeat

Within the specified period 35[181] libel cases against newspapers reached conclusion. Below is a graph of the cases split into the identity of the defendant along with the result for the defendant.

Comment: These seven main players in the newspaper industry account for 30 of the cases with a further five including various other newspapers as the defendants[182]. Associated Newspapers include the Daily Mail, the Mail on Sunday and the Metro[183]. News Group Newspapers includes the Sun and the News of the World[184]. Express newspapers include the Daily and Sunday Express[185]. The Guardian Media Group includes the Guardian and Observer titles[186] while the Times group owns The Times and the Sunday Times[187] under the control of News International along with the Sun and the News of the World. Finally the last two are self-explanatory: the Independent News & Media Ltd owns the Independent newspaper and the Independent on Sunday[188] and the Telegraph Media Group own the Telegraph and Sunday Telegraph[189].

News International: A possible reading of these results is that in the period above News International (which includes News Group and the Time Group) have been sued for libel the most (9 times) although this is perhaps not surprising given the huge circulations of the Sun, the News of the World, the Time and the Sunday Times together.

Financial Times: One conclusion from the study of Barendt et al[190] is that the Financial Times is very risk averse and was the only newspaper where the “chilling effect” was perceived to be most powerful: “On only one newspaper did a clear indication of the inhibiting effect of libel emerge. This was the Financial Times, one of whose senior editors stated flatly that, as a matter of policy, the paper did not want to get involved in libel actions”[191]. This research confirms the findings of Barendt et al and it is notable that the one case the Financial Times got involved in (and won) was one which went to the European Court of Human Right to fight an order against disclosure of sources in the UK[192].

Tabloids and broadsheets: As for the other newspapers in the UK they seem to be willing to be subject to libel in the inescapable push for stories. There does not seem to be any neat broadsheet/tabloid divide either which perhaps strengthens arguments of a blurring of the boundaries between the two[193] although clearly a paper such as the Express, which lost 100% of the libel claims against it, is more susceptible to losing libel writs with its cocktail of entertainment stories which included writing a story that Ozzy Osbourne’s wife was working him to death[194], intruding into the private grief of Matt Lucas following the death of his ex-partner[195] and reporting that Mohammed George of Eastenders was thrown out of an Eastenders party by security[196]. By way of contrast the Guardian and the Times, both considered upper market broadsheets, have a roughly equal success and loss ratio. There may be a blurring of the boundaries between tabloids and broadsheets but there is still a boundary.

Statements in open court: A striking statistic is that of all 35 cases the press was on the losing side in 20 of them. A common way of conceding defeat is via a statement in open court before trial coupled with an offer to retract, an apology and compensation[197]. Of the cases 16 of them (46%) were conceded in this fashion. Robertson points out, however, that these statements, made under considerable pressure to settle before a potentially crippling trial, “are sometimes more akin to public relations announcements than to records of truth”[198].

Pressure on early settlement: As stated above the costs of a libel action are enormous and conceding a case is often the wisest course of action. Geoffrey Robertson observes: “In the year 2001, a contested fortnight’ defamation trial – including all the applications which would proceed it – could easily cost each side ?750,000, and the loser would have to pay 75% of the winner’s costs, on top of damages which amount to six figures”[199]. So there is obviously a pressure to settle early and this is born out by the disproportionate amount of statements in open court made to settle actions as well as the somewhat traditional means of reaching an out of court settlement just before trial to make the settlement more lucrative[200].

Chilling effect: A further conclusion which might be drawn is that libel laws are stacked against newspapers who must: bear the burden of proof in rebutting the presumption that defamatory statements are false unless proved otherwise[201] and be open to libel writs without any averments of loss or damage to the claimant[202]. The onerous burden on newspapers of proving that a statement is true is one pillar of the “chilling” effect mentioned above and inhibits proper journalism.

(b) Use of convention rights in libel cases against newspapers January 2008 – March 2011

In order to properly establish whether Convention arguments are really influencing libel laws in the UK with respect to newspapers the graph below is a breakdown of cases within the period which have been determined by convention arguments:

Comment: It is fair to say that the cases in the period above, while determined by convention arguments, are not exhaustive in that many of the other cases will have featured convention arguments as a matter of course in litigation such as Lucas[203]where an article published about the claimant’s deceased ex-partner intruded into privacy in a stark manner which prompted the early settlement by statement to the court. With a statement to open court being protected by privilege[204] however, it is exceptionally difficult to divine arguments on Convention rights. As a proportion of the overall cases these numbers are very low, 6 in a total of 35, but the effects of these decisions are more profound and more far-reaching than otherwise[205]. In these cases freedom of expression under article 10 is clearly being favoured in a minority of cases isolated to their facts while the decisions of Mosley and Murray, taken together, have provoked furious criticism that article 8 is being extended in scope[206].

Mosley v News Group Newspapers Ltd[207] : This case was one of Judge Eady’s most high profile cases and ended in a judgement which held that the balance between freedom of expression and privacy lay in the protection of Mr.Mosley’s privacy where a newspaper story made allegations about his sex life[208]. He held that between consenting adults on private property sexual behaviour, however bizarre and unconventional, could attract a reasonable expectation of privacy[209]. The methods used to capture the alleged sordid activities were done by secret film which Eady said engaged the claimant’s article 8 rights: “The clandestine recording of sexual activity on private property engaged the rights protected by art.8 of the Convention, and serious reasons had to exist before interferences with it could be justified”[210]. Eady then made reference to the “ultimate balancing test” propounded by Sedley LJ in Douglas v Hello[211] and observed that: “The judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public interest supposedly being served by it.”[212] The public interest argument put forward by the newspaper was destroyed by the factual dispute over whether there was any Nazi theme at all. Ultimately Justice Eady was unconvinced by the public interest defence put forward and ruled in favour of the claimant. He was sensitive to point out that, despite ruling that article 8 prevailed in this case, “It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.”[213] There are some though who would strongly disagree and point that this decision, taken together with Murray below, is tantamount to a privacy shift towards the protection of the individual in extending the scope of article 8.[214]
Murray v Express Newspapers Plc[215]: This case was concerned with the child of J.K Rowling who appealed against the earlier decision in 2007 to strike out his claim for libel where photographs had been taken of him in a public place and published a national magazine. The judge at first instance, Patten J, had been reluctant to rule that extending article 8 rights to the case at hand would be “on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy”[216]. However Sir Anthony Clarke M.R, along with Laws L.J and Thomas L.J, took the case into that area and went as far as to observe: “[A] child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.”[217] Thus commentators have decried the notion that a breach of privacy can occur in a public place and have observed that the extension of this rule to adults is perhaps only a matter of time given the ambiguity surrounding the fracture between Von Hannover and Campbell with the former giving an expansive interpretation to a reasonable expectation of privacy and the latter qualifying against it certain criteria[218].
Times Newspapers Ltd v United Kingdom[219]: This case was a judgement by the European Court of Human Rights who were asked to rule, in the words of Mora, “…whether the UK’s common law rule that a new cause of action in libel accrues each and every time that a defamatory article remains available on the internet constitutes an unjustifiable and disproportionate restriction on the right to freedom of expression guaranteed by art.10 of the European Convention on Human Rights (ECHR).[220] Thus the central issue was freedom of expression and whether articles retained on a large archive could be susceptible to separate libel actions even after the lapse of many years and even if a libel action had already been brought in respect of the same article in print form. This rule (internet publication) dictates that each time an article is downloaded a fresh cause in libel proceedings accrued. The Court ultimately rejected the complaint, refusing to consider what T had expressly alleged was a “chilling effect” on freedom of expression caused by this unduly onerous rule: “They argued that the internet publication rule breached art.10, pointing out that as a result of the rule newspapers which maintained internet archives were exposed to ceaseless liability for re-publication of the defamatory material. The defendants argued that this would inevitably have a chilling effect on the willingness of newspapers to provide internet archives and would thus limit their freedom of expression.”[221] A crumb of comfort from this case is that the judgement was argued closely to its facts and if an action were to be raised in the future regarding an article from the past stored on an archive which was unknown to the newspaper or archivers then this may well be disproportionate to the complainer’s article 10 rights[222].
Author of a Blog v Times Newspapers Ltd[223]: This case concerned a serving detective constable (the blogger) who wished his identity to be restrained from publication in the Times who had, by investigations, deduced his identity. He faced disciplinary action from the police and was keen to hold onto his anonymity but the Queen’s Bench ultimately held that firstly he had no reasonable expectation of privacy as blogging was a public activity and secondly the sources used by the newspaper did not have the necessary “quality of confidence”[224]. Thus the unmasking of “Night Jack”, as the blogger was known, did not even engage his article 8 rights although it is important again to note that this judgement is tied closely to the facts and the unusual fact that the blogger was a prominent member in the police force was the catalyst for a high degree of public interest: “Reports of the death of anonymous blogging may, however, have been exaggerated.”[225]
Financial Times Ltd v United Kingdom[226]: This case brought by the FT in the European Court of Human Rights concerned a high court order obtained by I, an international drinks company, that certain newspapers would disclose the identity of a source which had leaked the details of a takeover bid in which I would purchase a brewer, SAB. The newspapers appealed but were dismissed by the Court of Appeal and then refused leave to go to the House of Lords and ultimately came to the ECHR to argue that their article 10 rights had been breached by the order compelling them to disclose the identity of anonymous sources. The court went through the article 10 analysis, holding that despite the order did not actively restrain F the potential it had to do so interfered with F’s article 10 rights. On the question on whether the interference was justified under article 10(2) the court emphasised the watchdog role which journalism has in the UK and that disclosure of such sources might inhibit the public interest in exposing wrongdoing and corruption and the court held that: “Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with art.10 unless it is justified by an overriding requirement in the public interest.”[227] The European Court here did have regard to the “chilling” aspects which it had declined to do in Times Newspapers Ltd v United Kingdom[228].
In re Guardian News and Media Ltd and others[229]: This case, in the Supreme Court of the United Kingdom, involved, much like the blogging case above, the publication by a newspaper of a story about an individual whose identity was protected: he was a suspected terrorist and the subject of an anonymity order made by the House of Lords. As was stated: “More particularly, the court is being asked, on the one hand, to give effect to the right of the press to freedom of expression and, on the other, to ensure that the press respect M’s private and family life.”[230] Ultimately the court held that balancing the two rights favoured article 10 and a necessary interference with the claimant’s article 8 rights for, inter alia, the reason that the disclosure of the name would contribute to a “debate of general interest”[231].

Comment: In the period examined, from January 2008 – March 2011, it is clear to see just how much the European Convention on Human Rights, and in particular articles 10 and 8, have permeated the fabric of UK libel law. From a free speech perspective in the UK domestic courts it is clear that the right to privacy is favouring individuals and both Mosley and Murray are incontestable evidence for a broadening of the scope of article 8 potentially into the public sphere for all[232]. The two domestic case s which favoured article 10 over article 8 are tied closely to their facts and it is submitted that their scope is limited: anonymous publishers who are not in such prominent positions nor are discovered by purely public means will enjoy the protection of article 8 in due course[233] and whether the anonymity orders ruling applies to control orders was not discussed by the Supreme Court[234]. Regarding the European Court of Human Rights the message is mixed: in Times Newspapers Ltd v United Kingdom the court chose not to examine the “chilling effect” that the internet publication rule would have on freedom of expression and accordingly dismissed the complaint while in Financial Times Ltd v United Kingdom[235] the “chilling effect” was considered in an order which forced the disclosure of anonymous sources and judgement found in favour of the FT. The domestic courts are clearly favouring privacy and crucially so too is the jurisprudence from Strasbourg:

“It is indisputable that, over the last five or six years, the English courts have been applying the law in a way that has provided ever increasing protection for individuals’ rights to privacy. One only needs to contrast the decisions in Mosley and Murray with the Court of Appeal’s decision in A v B in 2002 to appreciate the extent of the shift in the law that has occurred. However, as Mr Dacre acknowledged in his testimony to the Select Committee,the real cause of this creep towards this “Continental” level of protection for privacy, has been the ever increasing level of protection that the ECtHR is affording to art.8 rights. Far from being an unsanctioned judicial crusade against the press (as Mr Dacre might have us believe), English judges have simply been developing English privacy law in step with the Strasbourg court, as, of course, they are bound to do under the HRA.”[236]

I will christen this shadowing of European jurisprudence, enshrined in s.2(1) of the Human Rights Act 1998, a ‘continental drift towards privacy’ whichBritain, as a signatory to the Convention, can only be swept along with.

(c) Judge Eady January 2008 – March 2011 on all media cases

Eady J has had to shoulder a lot of criticism as the judge previously in charge of the High Court’s libel actions[237]. A question which arises is whether this criticism is justified and whether it is right to single out one judge, as Paul Dacre did, and say that he is introducing a privacy law by the “back door”This research has looked at all of Eady J’s judgements on the media, whether in the UK or not, during the specified period above.

Comment: It is perhaps convenient to single out Eady J’s significant judgements which have been averse to journalists[238] or the scientific community[239] but on reflection of the cases he has handled in the last three years it is evident that it is a fallacy to generalise in saying that he is against the media or single-handedly responsible for judicial activism[240], conspiring to bring a law of privacy in through the back door although it is correct to say two key decisions were devastating to free speech:

Statements: In 32 cases the striking statistic is that 20 were conceded by statement in open court, unreported[241] and in light of Robertson’s comments to the effect that these are more like “public relations exercises” coupled with the privilege which attaches to them, it is difficult to say the real reasons why they were settled. The concession of these cases would at the very least indicate that the laws of libel do not operate in favour of the media and at the most that many were resigned to losing under Justice Eady.
Favourable to press: The most notable case in which the freedom of the press was protected by Eady J was Author of a Blog v Times Newspapers Ltd[242] , a case which protected the article 10 rights of journalists above the article 8 rights of an anonymous blogger by allowing them to publish the identity of the blogger. Given the unusual facts however, with “night jack” being a prominent detective and his identity being of a strong public interest, it has been argued that this decision does not advance the article 10 cause much but is instead an example of applying the iniquitous law meticulously[243]. Other favourable judgements are not remarkable: extending absolute privilege to the reporting of previous court events[244], refusing to grant an interim injunction where neither the interests of justice nor urgency required it[245], striking out a claim where the claimant in a libel action had no reputation to protect[246] and making use of the new offer to make amends procedure under the Defamation Act 1996 s.2 to reduce the compensation a publisher had to pay[247].
Unfavourable judgements: The Mosley case and the Singh case are inescapable in providing an analysis of Mr.Eady’s decision-making in the specified period but it is also inescapable to acknowledge that his legal career as a judge does not turn on two cases. The real scope of the Mosley decision alone, since Singh was overturned on appeal[248], will be known when Mosley is heard before the European Court of Human Rights and challenges the UK privacy laws as affording too little protection to individuals. A defence of prior notification may emerge as will be discussed later but that will be the decision of the European Court and not Justice Eadie. That Eadie was just applying the iniquitous law in the fashion of a legal positivist is a convincing argument and discredits Paul Dacre’s accusations to an extent:

“Lord Falconer, the former Lord Chancellor and one of the architects of the Human Rights Act 1998 (“HRA”), has said that Eady J.: “[I]s unquestionably applying the law as it comes from Parliament, as interpreted by the senior courts, the Court of Appeal and the House of Lords.” This is a view shared by four of the country’s most eminent media law Queen’s Counsel and a number of other senior media lawyers and commentators”.[249]

This argument has some force but the Court of Appeal in Singh certainly didn’t think that Eady J had mechanically applied the law and neither did Lord Hoffman in Jameel[250]. He had erred, in the opinion of Lord Judge in Singh, in two respects: firstly he conflated opinion with fact and secondly treated the former as something which needed to be proved by the defamer and thus placed an impossible burden upon him and by so doing extended libel laws irrationally:

“The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth”.[251]

Chapter 4: France and privacy

A. Declaration of the Rights of Man and the tort of privacy

France’s privacy laws have a heritage which has grown to be formidable despite the blood spilled in the 1789 revolution and the enshrinement of free speech in the Declaration on the Rights of Man and the Citizen:

“No-one is to be disquieted because of his opinions …Free communication of ideas and opinions is one of the most precious rights of man”[252]

These bold proclamations did not stop France developing a law of privacy which, as Delany and Murphy point out, is traditionally seen as being at the opposite end of the spectrum from the UK which has no precise tort of privacy[253]. It soon emerged that France would not tolerate invasions of privacy on a scale that to a lesser extent Britain, and to a much larger extent America, would[254] with “causes of action to protect privacy rights”[255] common since the 19th Century. In terms of the modern position the law of 1970 amended both the Civil and Criminal codes with article 9 of the Civil Code being the cornerstone of a tort of privacy which states in no uncertain terms[256] that “Everyone has the right to respect for his private life.” A crucial distinction is made in France, as Helen Trouille points out, between a person’s private life and the more intimate aspects of a person’s private life with only the latter attracting the most severe sanctions such as the potential seizure of printing presses[257]. There is a certain sphere of protection for individuals which the law keeps sacrosanct[258] and the image of the individual is considered to be their own[259] and even an extension of property[260]. Trouille interestingly points out that Bill Clinton might well have been saved from the Kenneth Starr treatment had America a similar system of protecting privacy. The criminal code was also amended by the Act of 1970 and now provides under Chapter VI and Offences Against Personality:

“A penalty of one year’s imprisonment and a fine of ˆ45,000 is incurred for any wilful violation of the intimacy of the private life of other persons by resorting to any means of:

1° intercepting, recording or transmitting words uttered in confidential or private circumstances, without the consent of their speaker;

2° taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned.

Where the offences referred to by the present article were performed in the sight and with the knowledge of the persons concerned without their objection, although they were in a position to do so, their consent is presumed.”[261]

The inquisitorial procedure of France applies these laws strictly although as Troille observes there a certain element of discretion in the search for the truth[262]. The press are indeed mentioned throughout the criminal civil code in relation to a number of offences with the qualification that the law will punish only those responsible: in bringing certain recordings or documents to the knowledge of third parties[263], misuse of people’s images without their express consent[264], messages bearing a pornographic or violent nature which violates “human dignity” where the message may have been viewed by a child[265], incitement of endangering minors[266] and even incitement to rise up in arms against the state[267]. On top of all these laws is the adoption of the European Convention on Human Rights articles 8 and 10 upon ratification of the Convention in 1974[268] which, much unlike the UK courts their sudden conversion to adopting the balancing approach, have undergone a slow dance of death in which the right to privacy has been gradually eroded until in 2001 the Cour de Cassation found, in a case involving the publication of an image without consent, that the strict application of the image right and the absolutist approach were no longer appropriate in the 21st century where freedom of expression is recognised and the watchdog role of the press in a democracy is beyond dispute:

“this judgment probably marks the last stage in the transformation process which the right over one’s image has been undergoing for several years … and which is resulting in the gradual replacement of the absolutist concept of the right over one’s image by a more balanced approach, more commensurate with the need to keep citizens informed”.[269]

B. France and the UK: a comparison in Human Rights

It has been commented that Britain and France, traditionally so alienated towards each other regarding privacy, are currently evolving towards a common set of principles under the shadow of the ECHR[270]. In France, as noted above, the absolutist approach has been incrementally eroded to reveal a judiciary which has started to use language similar to the European Court of Human Rights in Strasbourg. In a famous case[271] brought by the current president of France, Nicholas Sarkozy, article 9 was invoked in alleging that the newspaper le matin had breached his privacy in publishing a whole series of reports of his apparent marital problems. Incredibly the court at first instance found there was no breach of privacy as there was a legitimate interest in the stories for the people of France. Some of the articles did breach the privacy laws but the difficult question the court faced was how to reconcile the absolutist privacy laws with a President who had clearly put himself in the public eye[272]. The judge in this case acknowledged the influence of Strasbourg jurisprudence on the decision:

“The judge, in assessing the invasion of privacy in that case, noted that the European Court of Human Rights requires a balancing of the privacy rights of the individual with the right to freedom of expression by determining whether the information in question contributes to a debate of public interest, or whether it solely concerns the private life of the individual in question”[273].

The balancing requirement has been transposed into UK law[274] who, in a miracle of adoption given that the Human Rights Act 1998 only came into force 13 years ago, now conduct the very exercise that France is starting to embrace in 30 years after they ratified the Convention. The omission of article 8 from the French cases on ECHR applicable law is striking however and it has been noted that they have not sought to distinguish it from Article 9 of the Civil Code although in truth the differences between the two are marginal. Delany and Murphy argue that it is in the concept of public interest where the UK and France differ markedly, with France being more closely aligned to Strasbourg than the UK: “The general right of the public to be informed is subject to the legitimacy of the information in question”[275].

They further comment that while the concept of reasonable expectation of privacy is used as a threshold test in the UK with caveats including what the person was actually doing etc it is used more expansively in Strasbourg. Whether Franceand the UKare evolving towards a point of common principle may depend upon the extent to which France, like the UKhas done in a continental drift towards privacy[276], will allow itself to be swept up in the full implications of von hannover[277]. Recent developments in France, which have included successfully taking Google to court over mistaken data gathering in order to establish Street View with a fine of 100,000 Euros[278] and introducing a tough new law on privacy in the digital age[279] only confirm that Britain and France remain polar opposites and that, as Berlins comments, although “the door has been left ajar for the French media to start behaving like their British counterparts,” [280] the more likely reality is that the door will be closed soon enough.

Chapter 5: The effect of Articles 8 and 10 and the future

A. Has the Human Rights Act changed the media law landscape?

Articles 8 and 10 of the ECHR, by virtue of the Human Rights Act 1998, which incorporated all of the articles of the ECHR into UK law, have undoubtedly changed the media law landscape. The question is, to what extentBy section 6 of the Act UK courts are, as we have seen, obliged to take into account Convention Rights as public bodies and furthermore obliged to take into account the jurisprudence of Strasbourg under section 2 whenever a question of Convention Rights arises in a UK court. This permeation of the courts by these articles has reinvigorated the right to privacy, unwritten and supplemented by a grotesque menagerie of laws both civil and criminal[281], and the right to freedom of expression, held up by centuries of rhetoric but little substance[282], although to varying and dramatic effects. With respect to libel law and the media the secondary case research conducted in chapter 3 revealed that there is a continental drift towards privacy[283] which, if left unchecked, will rein in what advances of freedom of expression[284] the courts have enabled in the 13 years since 1998. The cases looked at in 2008 – 2011 which advanced freedom of expression were confined to their facts[285] and, with respect, limited in their outlook while the cases on privacy and most notably Murray, could potentially broaden the scope of privacy to all individuals in public life even if taking an innocuous walk down the street. There is undoubtedly confusion over the application of these Convention rights which does not help when assessing their impact as the fracture between Campbell and von hannover demonstrates[286]. Bearing in mind that the law of breach of confidence has evolved into a right of privacy in all but name[287] then it is clear that the impact of articles 10 and 8 can only be analysed with this in mind.

It is the contention of this study that the impact of the two rights has been imbalanced: the continental drift towards privacy has taken the UK with it while leaving unchanged those aspects of UK libel law which render the system so stacked against individuals and curtail freedom of expression: such as the multiple publication rule and the burden of proof being on the defence to prove the truth of the claim. Both of these aspects have been challenged in Strasbourg and both have been dismissed[288] even under the shadow of the Human Rights Act. The influence of Justice Eady has been a factor in moving the goalposts towards privacy, most notably in Singh, but although he has not been applying law like a legal positivist, neither can it truly be said that he has been imposing his own moral judgements upon cases: it is the system which predominantly produces the iniquitous results not the judges. Furthermore, the absence of legal aid is surely an issue under article 6 in providing those involved in libel trials with an “equality of arms”[289] but this has also has been held to be ECHR compliant in McVicar. The British law of libel is a powerful restraint on the press and still exerts a chilling grip in 2011. From the case research conducted 46% of cases settled in 2008-2011 were conceded by statement to open court and under obvious pressure to settle early and avoid not only the crippling costs but also the onerous burden of proof. It wasn’t for nothing that the US Supreme Court recognised long ago that the UK system of libel was incompatible with the first amendment to the US constitution due to the placing of burden on the defender whereas in America the onus is on the defamed party to prove the falsity of the statement[290]

B. The Draft Defamation Bill 2011

Kenneth Clarke’s assertions upon the unveiling of this Bill, that the libel laws of the UK were damaging free debate, have been much welcomed by those seeking reform: “In recent years, though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate and investigative journalism.”[291] Eight key proposals outline the draft bill which include the end of the presumption in favour of jury trials in libel cases[292], abolition of the presumption that a defamatory statement causes harm[293], attempts to limit libel tourism by giving the courts broad discretion to decide whether the courts of England and Wales are the most appropriate jurisdiction[294], abolition of the multiple publication rule and replacement with a single publication rule[295] as well as introducing new defences: “truth” will replace justification, “honest opinion” will replace fair comment and “responsible publication of a matter in the public interest” will codify the rule in Reynolds[296].

It is important to acknowledge that these proposals are exactly that at this stage and one needs only to reflect upon another cornerstone of the freedom of expression, the Freedom of Information Bill, being sabotaged by the Labour Government in their final draft by inserting the notoriously vague “formulation of government policy” to prevent real access and produce what the great liberal journalist Hugo Young described as “one catch-all annihilation of freedom of information”[297] Despite this the proposals have been attacked as not going far enough in reforming libel laws with one notable omission being a limitation on powerful corporate entities’ ability to sue individuals[298]. This is really another side of article 6 and the equality of arms debate, inspired by Mcdonalds suing two environmentalists in the 1990s[299].

C. The future: Max Mosley and prior notification

Max Mosley, emboldened by his triumph over the News of the World, has lodged a petition with the European Court of Human Rights at Strasbourg to challenge UK law regarding the lodging of interim injunctions. He argues that in the absence of a system of “prior notification”, there is no opportunity for those in the potentially defamatory story to restrain publication and thus this is a breach of his article 8 rights[300] under which the state is under a positive obligation to safeguard the private lives of its’ citizens. The proposed system would allow the individual at the heart of the story a grace period in which to reflect upon whether an interim injunction should be sought and if the story is deemed not to be permissible then publication should be restrained until trial[301]. The applicability of this is obvious to Mosley who ultimately had to resign from his position following the story which played on his father’s fascist roots and exploited them with some creative guesswork[302]. But would this justify a system which militates against the rule against prior restrain in UK law[303]The Mosley case is certainly extreme but does not justify such a curtailment in freedom of expression and surely such a system would be immediately upon to a counterattack based upon article 10The Supreme Court of America has said:

“Any system of prior restraint on expression comes to this court bearing a heavy presumption against its constitutional validity. The only effective restraint upon executive policy and power in the areas of national defence and international affairs may be an enlightened citizenry – informed and critical public opinion which alone can here protect the values of democratic government. For without an informed and free press there cannot be an enlightened people”.

Unfortunately Britain doesn’t have a constitution but effectively created this rule in the Duke of Wellington’ famous phrase “publish and be damned”[304] but have long recognised an exception in the form of an interim injunction in an action for breach of confidence which is now under the Human Rights Act: “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”[305] If Mosley were to win in Strasbourg, and this is quite unlikely, then one of Britain’s most telling contributions to free speech, taken up and adopted in America to an honourable extent, would be irrevocably lost and the freedom of speech tradition further undermined.

Chapter 6: Recommendations

A. The recommendations of Kenneth Clarke

All of the recommendations contained in the Draft Defamation Bill are welcome and no single clause should be dropped during the consultation. Of particular importance is the requirement to demonstrate harm which single-handedly dispatches of a rule which produced a ridiculous distinction between slander and libel where only the latter, where the statement complained of is in writing or in some permanent form, could sue even though they have suffered no financial loss while the former would have to be proved in monetary terms[306]. The extension of this to libel will prevent many needless actions and free up the courts. Another noteworthy advance is the abolition of the presumption for jury trials (though the judge will still retain a discretion) in libel cases which somewhat destroys Dicey’s age old adage that a jury trial is the guarantor of free speech[307]. Codifying the defences of fair comment, justification and the Reynolds defence is also welcome to avoid confusion given that the Times itself tried to challenge Reynolds’ itself in Strasbourg[308] and give a statutory footing to journalist’s often underused defences.

B. Reforming self-regulation

The Press Complaints Commission is widely recognised to be without teeth[309] in enforcing disputes against newspapers and self-regulation, although the better option than a law of privacy, needs to be reformed in light of it receiving several thousand complaints per year but only adjudicating on a select number[310] and even then only able to request corrections with no question of costs, expenses or compensation. The PCC is still seen as being in bed with the very journalists it purports, weakly, to hold to account. Although the PCC code has been given indirect legal effect by s.12(4) of the Human Rights Act, the regulation of the press should either go to OFCOM, whose objectivity would improve, or remain in the PCC albeit within a more independent framework that has the power to monitor compliance and enforce compensation: a quasi-judicial body. As such a body they would be, under s.6, compelled to take into account convention arguments as well under Article 8 and Article 10.

C. Article 6 and the equality of arms: legal aid and costs

It is perhaps stating the obvious that libel law is seen as a rich man’s preserve with the top QC’s costing around ?400 an hour and cases being well in excess of ?750,000 for each side regardless of victory or defeat. The level of legal fees deters all but wealthiest or principled and can only serve as a curb on free speech. As can be seen from the secondary research, 46% of cases against the press were conceded by statement to open court which demonstrates the inability of newspapers to fight for what they believe in. The inhibitive costs will be reduced by the presumption in favour of a jury trial being abolished but more could be done to provide access to justice: legal aid. If legal aid, perhaps unlikely in the current economic climate, were to be extended to certain individuals and organisations then perhaps the bankrupting of individuals and the closure of small businesses, such as happened to Living Marxism in 1999 when faced with a ?350,000 libel compensation[311], would be avoided and the principle behind article 6 would be reinforced. To prevent vexatious litigants from abusing this process there could be a simple test to establish the merits of the claim prior to the award of any legal aid. The complexities of the law are also contributing and any measures which reduce the amount of pre-trial hearings to deduce the minute meanings of words would be welcomed.

D. Switching the burden of proof

One matter which is not addressed at all in the Draft Bill is the burden of proof which rests on the defender. Quite simply this burden should be switched to the American system where it is up to the defamed person to prove the falsity of the alleged statement. By placing a burden on the defendant to prove what they are saying puts an onerous exercise of calling witnesses (which increases costs) onto the party which is least able to verify the exact truth of the matter: the knowledge of the statement is surely within the exclusive and undisputed mind of the claimant and accordingly the burden of proof should reflect this.

E. Lessons from France

France maintains an interesting distinction between two spheres of privacy which British libel law could learn a lot from. The inner sphere, intimate relations, attracts heavy punishment when breached and would cover many of the stories which developed the law so far including Mosley and which have been the subject of vociferous criticism. If the media knew that such intimate parts of a person’s life were out of bounds then perhaps the investigative journalism on real issues of public interest would return and the watchdog role of journalism would be further legitimised instead of being undermined by prurient sex scandals. Either way, a definition of what is private and what is not is vital after the decision of Murray and private inroads into public space.

Conclusion

In conclusion the effect that both Article 8 and Article 10 have had on the British legal landscape and the media has been profound but not as much as some would argue. Neither right stepped into a vacuum and it can be argued that the law of breach of confidence was already a right of privacy in all but name long before Britain adopted Convention Rights in the Human Rights Act 1998. Freedom of speech, on the other hand, was a powerful rhetorical tool which has had too much style and too little substance to be considered to be dominant even before the Human Rights Act came along. However, rather than redress this historical imbalance which has curiously been created by the lack of a constitution and a dizzying array of laws that encroach upon privacy, the HRA has swept Britain along with a continental drift towards privacy which has seen the private sphere enter the public and the role of investigative journalism undermined by the iniquitous libel laws which refuse to move on from a Victorian era when reputations were guarded fiercely. No one judge has undermined the system: it is the system itself which, when the Defamation Act of 2012 hopefully passes, will hopefully take a step towards true equality between Article 10 and Article 8 and compliant with Article 6 in reducing the horrendous costs and providing legal aid. Neither right deserves to be in the ascendant but the rhetoric up to now has been misleading us all: privacy is on the march across Europe and Britain must for now march in step. The press have committed the gravest sins of all but are also at the vanguard of free speech and have enriched the UK. It should always be remembered that one of the greatest moments in the history of investigative journalism, the Times investigation of thalidomide which won compensation through the law for endless victims for the parents and families of babies born with deformities after taking the drug, was obtained through “chequebook journalism”[312].

BIBLIOGRAPHY

I. Books



Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide;

Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York

Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide

Bromley, Michael & Stephenson (eds) (1998) Sex, Lies and Democracy: the press and the public Longman

Clayton and Tomlinson (200) The Law of Human Rights Oxford University Press

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Fowler, Andrew (2011) The Most Dangerous Man in the World Melbourne University Press: Melbourne

Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

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Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101

Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763

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Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6

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III. Websites Visited


Associated Newspapers home page: available from http://www.associatednewspapers.com/ accessed on 5th April 2011
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Express Newspapers home page: available from http://www.express.co.uk/home accessed on 5th April 2011[1] http://www.gmgplc.co.uk/ accessed on 7th April 2011
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IV. Cases Cited


A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

Abramovich v Gruppo Editoriale L’Espresso SPA unreported 18th March 2010

Argyll v Argyll [1967] 1 QB 349

Ash v Mckennit [2008] Q.B. 73

Attorney General v Jonathan Cape [1976] 1 QB 752 [Crossman Diaries]

Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109

Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22

Bari v BBC unreported 16th July 2009

Baturina v Times Newspapers [2011] EWCA Civ 308

Berezovky v Forbe Inc (No.2) [2001] EMLR 48, CA

Bowman v MGN Ltd [2010] EWHC 895 (QB)

British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

Buxton v MGN Ltd unreported 10th December 2009,

Campbell v MGN Ltd [2004] UKHL 22

Coco v A N Clark (Engineers) Ltd[1969] RPC 31

Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB)

Curran v Scottish Daily Record and Sunday Mail Ltd[2010] CSOH 44,

Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div) at p.1001

Douglas v Hello! (no.9) [2004] EWHC 63 (Ch)

Duke of Brunswick v Harmer (1849) 14 Q.B. 185 (QB)

Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB)

Entick v Carrington (1765) 19 St Tr 1030

Ewing v News International Ltd [2008] EWHC 1390 (QB)

Farage v Times Newspapers unreported 11th June 2008

Financial Times Ltd v United Kingdom (821/03) (2010) 50 E.H.R.R. 46

Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21 at p.1172

Gascoigne v News Group Newspapers Ltd unreported 7th May 2010

George v Express Newspapers unreported 19th July 2010

Godfrey v Demon Internet [1999] EMLR 542

George v MGN Ltd unreported 14th May 2010,

31.Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804

Hewitt v Express Newspapers unreported 22nd July 2010

33.Horrocks v Lowe [1975] AC 135 at 150

34.Hudson v Associated Newspapers Ltd unreported 4th March 2009

35.Hulton v Jones [1910] AC 20

36.Imutran Ltd v Uncaged Campaigns Ltd [2001] E.C.D.R. 16

37.In re Guardian News and Media Ltd and others [2010] 2 A.C. 697

38.Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) [2010] EWHC 2819 (QB),

39.Jeynes v News Magazines Ltd [2008] EWCA Civ 130

James v Commonwealth of Australia [1936] A.C. 578

Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

Jones v Telegraph Media Group Ltd unreported 23rd June 2009,

Kaye v Robertson [1991] F.S.R. 62

Lait v Evening Standard Ltd [2010] EWHC 3239 (QB)

Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB)

Lucas v Express Newspapers unreported 25th May 2010

Margolis v Independent News & Media Ltd unreported 21st May 2010

Marshall v Express Newspapers unreported 29th January 2009

Martin v Channel Four Television Corp [2009] EWHC 2788 (QB)

McGill v 365 Media Group Plc unreported 31st July 2008

McVicar v United Kingdom (46311/99) (2002) 35 E.H.R.R. 22

Mottley v IPC Media Ltd unreported 7th October 2008

Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)

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Murat v Associated Newspapers Ltd unreported 16th July 2008,

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Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006.

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Osbourne v Express Newspapers Unreported 5th June 2008

Perry v UK (2004) 39 EHRR 76

Pretty v UK (2002) 35 EHRR 1

Prince Albert v Strange (1849) 1 Mac & G 25

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67.Regina (Prolife Alliance) v British Broadcasting Corporation [2004] 1 A.C. 185

68.Regina v Shayler [2003] 1 A.C. 247 at p.266

69.Regina v Advertising Standards Authority Ltd Ex p.Vernons Organisation [1992] 1 W.L.R. 1289

70.Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

71.Re s (A Child) [2004] UKHL 47 at para 23

72.Sim v Stretch [1936] 2 All ER 1237 at 1240

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Shaffer v Associated Newspapers Ltd Unreported 13th February 2008

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Stephens v Avery [1988] Ch 449

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Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009,

Venables v News Group Newspapers [2001] Fam 430

Von Hannover v Germany [2004] E.M.L.R. 21

X and Y v. Netherlands (1985) 8 E.H.R.R. 235

Zola v BBC unreported 12th May 2009

Zuma v Guardian News & Media Ltd unreported 30th July 2009, ,

V. Legislation

Human Rights Act 1998

Declaration of the Rights of Man and of the Citizen

Bill of Rights

Regulation of Investigatory Powers Act 2000

Data Protection Act 1998

Freedom of Information Act 2000

Obscene Publications Act 1959 and 1964

Official Secrets Act 1911 & 1989

Public Order Act 1986

European Convention on Human Rights

VI. Other materials

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Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) Retrieved 2011.4.1 and available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats

Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

English translation of the Civil Code of France]: http://195.83.177.9/upl/pdf/code_22.pdf

ARTICLE 226-1 (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

BBC News 21st March 2011 ‘ France fines Google over Street View Data Blunder’ retrieved on 2nd April 2011 and accessed at: http://www.bbc.co.uk/news/technology-12809076

Berlins, Marcel (2008) ‘Publicity-mad Sarkozy leads fight for privacy’ in Guardian online accessed 9th April 2011 and available from: http://www.guardian.co.uk/world/2008/feb/04/france.comment

Plunkett, John (2011) ‘Government unveils libel law reforms’ from Guardian online retrieved 28th March 2011 and available from: http://www.guardian.co.uk/media/2011/mar/15/libel-law-reforms

Rozenberg, Joshua (2011) ‘The Libel Reforms are a Step in the Right Direction: But do they go far enough?’ Guardian online retrieved on 1st April 2011 and available from: http://www.guardian.co.uk/law/2011/mar/15/libel-reforms-step-campaigners-satisfied

APPENDIX A:

Every libel action involving a newspaper between January 2008 and March 2011. The analysis of cases was obtained from www.westlaw.co.uk

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1. Jeynes v News Magazines Ltd Court of Appeal (Civil Division) reported on 31 January 2008, [2008] EWCA Civ 130;

Case Analysis

An issue of “love it!” magazine had featured on its front cover a photograph of J together with the words “BB’s Lisa ‘The Geezer’ – My fake boobs fell out on date with James Hewitt!”. That was a trailer for an article within the magazine concerning J’s account of her date. A newspaper later carried an advertisement for the magazine showing its front cover. J issued a libel action against N, who were the publishers of the magazine and newspaper respectively. She contended that the words on the front cover bore the natural and ordinary, alternatively the inferential, meaning that she was either a man posing as a woman, or that she was a transgendered or transsexual person who had been born a man but had become a woman.(Unsuccessful appeal against claim being struck out at first instance).

Judge: Sir Anthony Clarke, M.R.; Tuckey, L.J.; Jacob, L.J.

Counsel: For the appellant: Adrian Davies, S Hastie. For the respondents: Andrew Caldecott QC, Alexandra Marzec.

Solicitor: For the appellant: Osmond & Osmond. For the respondents: Farrer & Co.

2. Shaffer v Associated Newspapers Ltd Unreported Queen’s Bench Division

13 February 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the administration of the estate of the claimant’s brother.

Abstract: A statement in open court was made in a libel action brought by the claimant (S) against the defendant newspaper publisher (N). N had published an article wrongly alleging that S had thwarted his late brother’s testamentary wishes resulting in his nieces being improperly deprived of their inheritance. In fact, S had acted at all times on legal advice and in accordance with the provisions of his late brother’s will and had administered the estate properly. N acknowledged that the allegations were untrue and agreed to withdraw publicly the false allegations and apologise to S for the hurt and distress caused by the publication.

Judge: Eady, J.

Counsel: For the claimant: Hanna Basha. For the defendant: Nick Braithwaite.

3. Mosley v News Group Newspapers Ltd [Convention rights arguments]

Queen’s Bench Division [application for interim injunction] 09 April 2008

[2008] EWHC 687 (QB);

Case Analysis

Application refused Video footage of a known figure engaging in sexual activities with prostitutes had entered the public domain and therefore, although the material was intrusive and demeaning and there was no legitimate interest in its further publication, an injunction prohibiting its further publication on a newspaper website was not appropriate and would serve no practical purpose. [reasonable expectation of privacy]

Judge: Eady, J.

Counsel: For the applicant: James Price QC, David Sherborne. For the respondent: Gavin Millar QC, Anthony Hudson.

Solicitor: For the applicant: Steeles Law. For the respondent: Farrer & Co.

4. Curistan v Times Newspapers Ltd Court of Appeal (Civil Division) [appeal]

30 April 2008

Case Analysis

Summary: In the circumstances passages in a newspaper article, which were a fair and accurate report of proceedings in Parliament, were protected by qualified privilege and did not lose that privilege by reason of the comments added by the newspaper to those passages. The meaning that the newspaper had to defend was the meaning to be attached to those portions of the article that were additional to those protected by privilege, and that meaning was that there were grounds to suspect that the allegations made were true rather than that they were true. [appeal refused –

The appellant (C) appealed against a decision ( [2007] EWHC 926 (QB), [2008] 1 W.L.R. 126 ) on a trial of preliminary issues that passages in an allegedly defamatory article in the newspaper published by the respondent (T) were protected by qualified privilege, and T cross-appealed against the judge’s finding on the article’s defamatory meaning

Judge: Lord Philips, L.C.J.; Laws, L.J.; Arden, L.J.

Counsel: For the appellant: Richard Parkes QC, Matthew Nicklin. For the respondent: Victoria Sharp QC, Alexandra Marzec.

Solicitor: For the appellant: Schillings. For the respondent: In-house solicitor.

5. Murray v Express Newspapers Plc [Convention right argument] [appeal] Also known as: Murray v Big Pictures (UK) Ltd Court of Appeal (Civil Division)

07 May 2008 [2008] EWCA Civ 446; [2009] Ch. 481; [2008] 3 W.L.R. 1360;

Case Analysis

Summary: Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child’s behalf.

Abstract: The appellant (M), acting through his parents, appealed against the striking out ( [2007] EWHC 1908 (Ch), [2007] E.C.D.R. 20 ) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art.8 . M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that even if the decision in Von Hannover v Germany (59320/00) [2004] E.M.L.R. 21 had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 , he was bound to follow Campbell in preference. The issue was whether the judge was right so to have concluded.

Appeal allowed. (1) In deciding whether there had been an infringement of art.8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which, and the purposes for which, the information reached the hands of the publisher. If there was found to be a reasonable expectation of privacy, then the second question was how the balance should be struck as between the claimant’s right to privacy and the publisher’s right to publish. At that stage, the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant, Campbell followed and Von Hannover considered. (2) It was at least arguable that M had a reasonable expectation of privacy. The fact that he was a child had greater significance than had been attributed to it by the judge. Although the Press Complaints Commission had ruled that the mere publication of a child’s image could not breach its Editors’ Code of Practice when taken in a public place and unaccompanied by private details that might embarrass the child, everything depended on the circumstances. It was at least arguable that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him, and the same was true of M, especially since the photograph would not have been taken or published had he not been the son of a well-known author. In reaching his decision, the judge had relied on the decision in Hosking v Runting [2005] 1 N.Z.L.R. 1 for a significant part of his reasoning. However, that decision was not a sufficient reason to hold that M could not show a reasonable expectation of privacy at trial, Hosking considered. (3) There may well be circumstances, even after Hannover , in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case. It was not possible to draw a distinction between activities that were part of a person’s private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer’s to buy milk. Moreover, it was not necessarily the case that such routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances. Subject to the facts of the case, the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf. The judge had therefore been wrong to strike out M’s claim. M had an arguable case and his parents were to be permitted to take the claim to trial on his behalf.

Judge: Sir Anthony Clarke, M.R.; Laws, L.J.; Thomas, L.J.

Counsel: For the appellant: Richard Spearman QC, Godwin Busuttil. For the respondent: Mark Warby QC, Jonathan Barnes.

Solicitor: For the appellant: Schillings. For the respondent: Solomon Taylor & Shaw.

6. Osbourne v Express Newspapers Unreported Queen’s Bench Division

05 June 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article concerning a musician.

Abstract: A statement in open court was made in a libel action brought by the claimant musician (O) against the defendant newspaper publishers (E). O had hosted a prestigious music awards ceremony with his wife and two children. The following day, E published an article falsely alleging that O had thrown the ceremony into chaos after he suffered a health scare. The article falsely reported that as a result of his health scare, O had to be ferried around the ceremony in an electric buggy. The article was republished on E’s website, where it was also falsely claimed that O and his wife sat on thrones when they were not speaking as O insisted on having a place to sit in case he got tired. In fact, O was fit and well at the time of the awards and none of the allegations were true. E accepted that the allegations were untrue and ought never to have been published. E agreed to set the record straight publicly, retract the libels and undertake never to republish the libels. E agreed to publish an apology and pay O substantial undisclosed damages and his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Kate Wilson.

Solicitor: For the claimant: Schillings

7. Farage v Times Newspapers unreported Queen’s Bench Division

11 June 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant politician (F) against the defendant newspapers (T). T had published an article wrongly alleging that F had employed his son (Y) to work as his assistant, paying him out of taxpayers’ money whilst Y was in full-time education. T accepted that there was in fact no foundation to the allegation and agreed to publish an apology in the Sunday Times. T undertook not to repeat the allegation and agreed to pay F damages and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Andrew Stephenson. For the defendant: Gillian Phillips.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

8. Murat v Associated Newspapers Ltd Queen’s Bench Division

16 July 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a number of articles regarding the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimants (R) a businessman, (M) a translator and (S) an IT consultant against the defendant publishers. The defendants had published numerous articles in their respective newspapers and websites covering the Madeleine McCann story, wrongly alleging that R, M and S all played a part in the abduction. In relation to R, the defendants wrongly suggested in numerous articles that not only had R abducted Madeleine, but that he had lied to the police, had obstructed their investigation and had paedophilic tendencies. The defendants wrongly alleged that M had been cast out of her church, that she had lied to the police about her whereabouts when Madeleine was abducted and that she was part of a paedophile ring. It was also alleged in some of the papers that S, along with R, had been involved in the abduction of Madeleine, that S had convictions for sex offences and was interested in child pornography. In fact, R had helped the police with their investigations by becoming a volunteer translator, M was never suspected or accused of any involvement with the abduction of Madeleine McCann and S was not guilty of any sexual misconduct and had no criminal convictions. The defendants accepted that none of the claimants had played any part whatsoever in Madeleine’s abduction, and that the allegations made were wholly false. They withdrew the statements from the newspapers’ websites. The defendants apologised for the false defamatory allegations published, agreed to publish apologies and paid substantial damages to the claimants as well as covering their legal costs.

Judge: Eady, J.

Solicitor: For the claimant: Simons Muirhead & Burton. For the defendants: Reynolds Porter Chamberlain LLP.

9. Ewing v News International Ltd Queen’s Bench Division 22 July 2008

[2008] EWHC 1390 (QB);

Case Analysis:

Vexatious litigant and s.42(3) of the Supreme court act 1981] Application refused. (1) The test under s.42(3) should be exercised with due care and caution or carefully and sparingly Becker v Teale [1971] 1 W.L.R. 1475 and Attorney General v Jones (Marcus David) [1990] 1 W.L.R. 859 applied. An applicant had to show that there were reasonable grounds for bringing a claim and, when considering whether there were reasonable grounds, the court normally had to consider whether or not that claim had a real prospect of success.

10. Tesco Stores Ltd v Guardian News & Media Ltd Queen’s Bench Division

29 July 2008 [2009] E.M.L.R. 5; (2008) 105(34) L.S.G. 24; (2008) 152(34) S.J.L.B. 29

Case Analysis:

Summary: It was not possible for a claimant indefinitely to elect neither to accept nor to reject an offer of amends made in defamation proceedings. To do so would undermine the statutory regime under the Defamation Act 1996 and make a nonsense of Parliament’s intention in introducing the offer of amends defence.

Abstract: The court was required to determine whether the claimant supermarket chain (T) was entitled neither to accept nor to reject an offer of amends proffered by the respondent newspaper (G) following G’s publication of defamatory statements. G had published allegations that T had engaged in a scheme designed to avoid corporation tax, and T instigated a libel action against G and a claim for malicious falsehood. G admitted the falsehood of its principal allegation, namely that the particular scheme in question did not involve the avoidance of corporation tax. G also admitted that the meanings pleaded by T were defamatory. G published a retraction of its principal allegation, stating that T had not been involved in the avoidance of corporation tax but rather an avoidance of stamp duty land tax. G served its defence 21 minutes after making an offer of amends pursuant to the Defamation Act 1996 s.2. T neither accepted nor rejected that offer. The issue for determination was whether T should be compelled to elect either to accept or to reject the offer of amends, and whether its malicious falsehood claim should be stayed as serving no useful purpose. G submitted that there was no head of damages recoverable in malicious falsehood that T could not recover in the defamation claim and that the malicious falsehood claim was only extant for tactical reasons. T argued that, even if it accepted the offer of amends and obtained an apology and damages under the statutory scheme, it could go on and obtain a decision on the malicious falsehood issue so as to have the court’s finding in relation to malice.

Judgment accordingly. (1) The philosophy underlying Parliament’s introduction of the offer of amends regime contained in the Defamation Act 1996 was to enable parties in defamation proceedings, or even prior to the issue of proceedings, to achieve a relatively speedy and inexpensive disposal of a complaint of injury of reputation where the defendant was prepared to acknowledge that it had published defamatory allegations that were essentially inaccurate. It would make a nonsense of that underlying policy if it were possible for a claimant to go ahead with proving malice whilst keeping an offer of amends available until the conclusion, or throughout the duration, of the trial, Express Newspapers Plc v News (UK) Ltd [1990] 1 W.L.R. 1320 applied. T had to accept the offer of amends or else take on the risk of overcoming the statutory defence by proving malice at trial. Furthermore, there was no legitimate reason why T should be allowed to pursue a claim for malicious falsehood. It would not afford any substantive remedy in respect of reputation, and any damages to which T might be entitled as a result of G’s publications could be recovered in defamation, Burstein v Times Newspapers Ltd [2001] 1 W.L.R. 579, Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 W.L.R. 3469 and Warren v Random House Group Ltd [2008] EWCA Civ 834, [2009] Q.B. 600 considered. Accordingly, the malicious falsehood claim would be stayed. (2) Finally, G would be allowed to amend its pleadings to include a proposal that T had been avoiding stamp duty land tax as opposed to corporation tax, Birchwood Homes Ltd v Robertson [2003] EWHC 293 (QB) considered.

Judge: Eady, J.

Counsel: For the claimant: A Page QC, J Rushbrooke. For the defendant: A Caldecott QC, C Evans.

11. John v Guardian News and Media Ltd Queen’s Bench Division

12 December 2008 [2008] EWHC 3066 (QB); Official Transcript

Case Analysis

Summary: In context, the words complained of in a libel action were not capable of bearing the meaning attached to them by the claimant. No reasonable reader of the publication would have understood the words complained of as containing serious allegations about the claimant and his charitable donations.

Abstract: The applicant media corporation (G) applied to strike out a libel claim brought against it by the respondent musician (J). G had published what purported to be an extract of J’s diary in a supplemental newspaper magazine called the “Weekend”. The extract included statements of purported fact and opinion that were attributed to J. In particular, the extract referred to an annual ball that was hosted by J for the purpose of raising money for a charity (C). The article stated that once the costs of hosting the event had been deducted from the proceeds, any remaining money was given to C. J issued a libel claim against G on the basis that (i) by their natural and ordinary meaning, the words complained of suggested that J was insincere about his commitment to C’s aims and objectives; (ii) by way of innuendo the same words also suggested that he dishonestly or falsely claimed that all money raised during the event went to C, when only the balance of money raised at the event, subtracting the costs of hosting the event, was made available to C. G submitted that no reasonable reader would have sensibly thought that the words complained of meant that the money raised by the ball was used to cover the costs of the event and that, thereafter, only a small proportion of the remaining money was made available for charitable objectives.

Appeal allowed. The designation of the supplement, in which the words complained of were contained, assisted in understanding the extent to which the words could be understood to be factual or not. On the basis that the “Weekend” supplement was not part of the news section of the paper, the words complained of would not have been understood by a reasonable reader as containing a serious allegation of fact. If such an allegation was being made, a reasonable reader would have expected it to have been made without humour and to have been written explicitly in the part of the newspaper devoted to news. Unless a reader was exceptionally suspicious or naive, he would be bound to understand that the words complained of were not to be understood as a factual statement as to how the money raised at the ball was spent. Thus, the words complained of were not capable of bearing the meanings attributed to them by J and consequently, his claim fell to be struck out. Furthermore, J’s associated plea of malice fell to be struck out since it was dependent on the court endorsing J’s view of the meaning behind the words complained of.

Judge: Tugendhat, J.

Counsel: For the claimant: William McCormick. For the defendant: Gavin Millar QC, Anthony Hudson.

Solicitor: For the claimant: Carter Ruck. For the defendant: Isobel Griffiths.

12. Osbourne v News Group Newspapers Ltd Queen’s Bench Division

15 January 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (O), a successful music manager, promoter and television presenter, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website wrongly suggesting that the claimant had put her musician husband’s life at risk by working him too hard at the cost of his health. N also falsely suggested her motivation for doing so was to fund her exorbitant spending. The allegations were entirely without foundation. N apologised for publishing the false and defamatory allegations and offered to publish an apology. N also agreed to pay O substantial damages and her legal costs. Leave to withdraw the record was requested.

13. Marshall v Express Newspapers Queen’s Bench Division 29 January 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), an 18 year old student, against the defendant newspaper publisher (N). N had published articles falsely alleging that the day after the conviction of a man (B) for the murder of an 11 year old boy, M had publicly praised him in a television interview as a hero. The articles also wrongly alleged that M was B’s girlfriend, was a member of a criminal gang and that she had declared a pledge of loyalty to the gang following B’s conviction. In fact M did not make any public statement following B’s conviction, did not regard him as a hero and had not made such a claim or sought publicity for it in the aftermath of B’s conviction for such an appalling murder. M was not nor had ever been a member of a criminal gang and had never been B’s girlfriend. N agreed to pay M a substantial sum in damages which she intended to donate to the Rhys Jones Memorial Trust. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Helen Morris. For the defendant: Kate Wilson.

14. Raulynaitis v News Group Newspapers Ltd Queen’s Bench Division

26 February 2009 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (R) against the defendant newspaper publishers (N). N had published an article in its newspaper and to its website wrongly alleging that R had ordered passengers off of his bus in order for him to pray. The article suggested that R was arrogant, unprofessional and contemptuous of the passengers. The article further alleged that the passengers later refused to re-board the bus as they spotted a rucksack and feared R was a fanatic. In fact, R had prayed on the bus during his statutory break and no passenger was inconvenienced. N accepted the allegations were false and published an apology. N paid R a sum in damages and covered his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Stephen Loughrey. For the defendant: Patrick Callaghan.

Solicitor: For the claimant: Carter-Ruck.

15.Hudson v Associated Newspapers Ltd Queen’s Bench Division

04 March 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication and broadcast of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (H) against the defendant newspaper publishers and broadcaster (N). N had published articles in their newspapers, on their websites and broadcast items that made various allegations relating to the 16th birthday party of H’s daughter at her home. The overall impression was that H allegedly had failed to exercise proper parental supervision over the party. In fact, all the allegations were false. There was no basis to accuse H of failing to exercise proper supervision. N apologised for publishing the false allegations and had published apologies in their respective newspapers or on their websites. N also agreed to pay H substantial damages and her legal costs. Leave to withdraw the record was requested.

Judge: Sir Charles Gray

16. Times Newspapers Ltd v United Kingdom (3002/03) Times Newspapers Ltd v United Kingdom (23676/03) European Court of Human Rights 10 March 2009 [2009] E.M.L.R. 14; Times, March 11, 2009;

Case Analysis:

Summary: Where a newspaper had published, in its print publication, an allegedly defamatory article which, during the libel action, was available to readers on the newspaper’s website, it was not a disproportionate interference with the right to freedom of expression to require that the newspaper publish an appropriate qualification to the internet version of the article. [convention arguments]

[multiple publication rule – each new reproduction was a fresh libel]

17. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division

16 June 2009 [2009] EWHC 1358 (QB); [2009] E.M.L.R. 22; (2009) 106(26) L.S.G. 18; (2009) 159 N.L.J. 924; (2009) 153(24) S.J.L.B. 33;

Case Analysis:

The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity. [convention arguments]

18. Jones v Telegraph Media Group Ltd Queen’s Bench Division

23 June 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (J) against the defendant newspaper publisher (T). J was the United Kingdom’s most senior intelligence expert on weapons of mass destruction in the period leading up to the Iraq war. T had published an article in its newspaper and on its website which falsely alleged that J had leaked information to the media before the Iraq war. In fact, J had been singled out by the Chairman of the House of Commons Select Committee investigating leaks in Whitehall as someone who did not, and would not, leak information. T accepted that the allegation was untrue and published an apology to J as well as agreeing to pay damages and J’s legal costs.

Judge: Eady, J.

Counsel: For the claimant: Luke Staiano.

Solicitor: For the claimant: Carter-Ruck.

19. Zuma v Guardian News & Media Ltd Queen’s Bench Division

30 July 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (Z) against the defendant newspaper publisher (G). Z was the President of South Africa. G had published an article in an edition of its newspaper and on its website which falsely alleged that Z was guilty of various crimes. Z issued libel proceedings and G subsequently published an apology accepting that Z was acquitted of one of the offences and the others were dropped by the South African National Prosecuting Authority. Z did not consider that the apology adequately dealt with his complaint. The apology was said to be published far less prominently in the newspaper and on the website than the article complained of. Additionally, the apology was initially unavailable online when a search was made using Z’s name. G then made an offer of amends. In light of the fact that G was willing to pay very substantial damages to Z and it had publically apologised to Z, Z considered his reputation in the matter had been entirely vindicated and he was prepared not to proceed any further in his action against G. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Jenny Afia.

Solicitor: For the claimant: Schillings.

20 .Ecclestone v Telegraph Media Group Ltd Queen’s Bench Division

06 November 2009 [2009] EWHC 2779 (QB);

Case Analysis:

Summary: An item in a newspaper diary column, which quoted the claimant as saying that she was not a vegetarian and “did not have much time for people like the McCartneys and Annie Lennox”, was not capable of bearing the defamatory meaning that she contended it did. The ordinary reasonable reader would see the words as nothing more than the expression of a permissible view.

Abstract: The applicant newspaper publisher (T) applied for a ruling that the words complained of by the respondent fashion designer (E) in her libel action were not capable of being defamatory. T published an item in a diary column about E, in which she was quoted as having said, “I am not a veggie and I don’t have much time for people like the McCartneys and Annie Lennox.” She denied saying that, and claimed that in their natural and ordinary or inferential meaning the words meant and were understood to mean that she was disrespectful and dismissive of the McCartneys and Annie Lennox to the point of being willing to disparage them publicly for promoting vegetarianism. T submitted that the real focus of E’s complaint, the phrase “haven’t much time for”, was commonly used and a perfectly acceptable way of expressing a difference of opinion or preference. If the opinion of the speaker was acceptable the phrase did not necessarily impute a dislike or disparagement of a person holding a contrary view. T submitted that even if the phrase connoted such an imputation, that in itself would not make the item defamatory. [action struck out]

21. Financial Times Ltd v United Kingdom (821/03) European Court of Human Rights 15 December 2009 [2010] E.M.L.R. 21; (2010) 50 E.H.R.R. 46; 28 B.H.R.C. 616; Times, December 16, 2009

Case Analysis:

Summary: An order requiring that certain newspapers disclose to a brewing company documents that could lead to the identification of journalistic sources who had leaked information about a takeover bid violated the European Convention on Human Rights 1950 art.10. The public interest in the protection of journalistic sources was not outweighed by the company’s arguments that the institution of proceedings against the sources would eliminate the threat of damage by any future dissemination of confidential information and would compensate it for past breaches of confidence.

[convention arguments] success of article 10 here

22. Guardian News & Media Ltd, Re Also known as: HM Treasury v Youssef

al-Ghabra v HM Treasury Ahmed v HM Treasury Supreme Court

27 January 2010 [2010] UKSC 1; [2010] 2 A.C. 697; [2010] 2 W.L.R. 325; [2010] 2 All E.R. 799; [2010] E.M.L.R. 15; [2010] H.R.L.R. 14; [2010] U.K.H.R.R. 181; (2010) 107(6) L.S.G. 18; (2010) 154(4) S.J.L.B. 29; [2010] N.P.C. 8; Times, January 28, 2010;

Case Analysis:

In the circumstances, there was a powerful general public interest in identifying M which justified curtailment of his art 8 rights. M’s argument really amounted to saying that the press should be prevented from printing what was true for fear that some of those reading the reports might misinterpret them and act inappropriately. [Convention arguments]

23. Ali v Associated Newspapers Ltd Queen’s Bench Division

27 January 2010 [2010] EWHC 100 (QB);

Case Analysis:

Summary: Summary judgment was granted to a defendant newspaper publisher in a claim for libel on the basis of justification.

Abstract: The applicant newspaper publisher (N) sought summary judgment on a libel claim brought by the respondent (X). X was a civil servant employed by the Treasury. N published the fact that X had been suspended from his employment following the posting of remarks on his personal blog. Passages from X’s blog were published by N. X pleaded that the publications had the defamatory meaning that X was a hardline Islamic extremist who supported the killing of British and American soldiers in Iraq by fellow Muslims as justified. N submitted that X’s claim was bound to fail as X’s observations on his blog advocated a form of jihad which could only be understood as justifying the killing of British and American troops in Iraq. N argued that a jury would be perverse not to hold that the blogs in question justified the inference against X. X submitted that he should be permitted to adduce evidence of his background and other blogs to demonstrate that he was not hardline or extremist.

Application granted. It was necessary to have in mind the role of a jury not only in coming to conclusions of primary fact but also in drawing any appropriate inferences, Bataille v Newland [2002] EWHC 1692 (QB) applied. On reflection, N’s submissions were correct on the very unusual facts in the instant case. X had taken the position that the killing of American and British troops in Iraq would be justified by his interpretation of jihad. As it was a matter of construing plain language in its overall context, it would be perverse to take a contrary view. In those circumstances the claim could legitimately be categorised as bound to fail. Nothing would be gained by investigating X’s other blogs or his background. Such an exercise could not change or qualify the plain meaning of the blog in question.

Judge: Eady, J.

24. Curran v Scottish Daily Record and Sunday Mail Ltd Court of Session (Outer House) 26 March 2010 [2010] CSOH 44; 2010 S.L.T. 377; 2010 G.W.D. 11-191; Official Transcript

Case Analysis:

Summary: A newspaper article did not amount to defamation where, having regard to its timing and context, its contents could be characterised as fair retort, and qualified privilege therefore attached.

Abstract: A member of the Scottish Parliament (C) sought damages from a newspaper company (D) in respect of alleged defamatory comments contained within articles based on interviews with another member of the Scottish Parliament (S) who had previously belonged to the same political party as C. C and other MSPs had released a press statement immediately following S’s success in a defamation action against a newspaper group, stating that S had lied during the court case. The articles complained of were published three days later, and referred to C as a “scab” or a “political scab” and included her photograph with the word superimposed upon it. D moved for dismissal, submitting that (1) criticism by one MSP of another did not amount to defamation because of the permitted latitude in criticising those who hold public office and the article had to be read as a whole, the test being whether the words used in it tended to lower the pursuer in the estimation of right thinking members of society generally; (2) in any event, the comments made in the article were protected by qualified privilege in the form of fair retort to the attack made upon S by C and her colleagues.

25. Dee v Telegraph Media Group Ltd Queen’s Bench Division

28 April 2010 [2010] EWHC 924 (QB); [2010] E.M.L.R. 20; (2010) 160 N.L.J. 653; Official Transcript

Case Analysis:

Summary: It was arguable that a professional sportsman could be libelled by suggestions that he lacked skill or was incompetent. However, on the facts of the instant case a newspaper article which highlighted a professional tennis player’s 54 consecutive defeats on the international tennis circuit was not defamatory as the publisher could rely on the defence of justification and/or fair comment.

Any application for summary judgment in a libel case is difficult – because any seriously disputed issues of fact or meaning have to be left to the jury – nevertheless, the case is a remarkable one and it is not surprising that an application was made.

26. Gascoigne v News Group Newspapers Ltd Queen’s Bench Division 07 May 2010 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (G) against the defendant newspaper publisher (N). N had published an article that reported on the reaction of G’s ex-husband, an ex-England footballer, to an interview given by G in relation to her autobiography. The article falsely alleged that G had lied in both her book and the interview about her ex-husband forcing himself upon her sexually and acting violently towards her. In fact, the allegations were entirely untrue. N apologised and agreed to pay G damages along with her legal costs.

Judge: Tugendhat, J.

Counsel: For the claimant: Roderick Chisholm-Batten. For the defendant: Patrick Callaghan.

27. Margolis v Independent News & Media Ltd Queen’s Bench Division 21 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a headline which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), a writer and feminist, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website that was written by M, however the headline inserted by N falsely alleged that M had been a prostitute or had otherwise been involved in the sex industry. The allegations were completely untrue. N published an apology in the newspaper and online. N agreed to pay M damages along with legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Victoria Shore

28. Lucas v Express Newspapers Queen’s Bench Division 25 May 2010

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (L) against the defendant newspaper publisher (E). E had published articles in its newspaper concerning L’s state of being following the death of his ex-partner. E did not provide L with any warning that it intended to publish the articles, or any indication of their contents. The statements were false and caused L considerable upset and distress. E accepted that the articles constituted an unlawful intrusion into L’s grief and suffering and that the statements therein were false and should not have been published. E retracted the allegations, agreed not to republish the articles and apologised to L. E also agreed to pay L substantial damages and his legal costs.

Judge: Tugendhat, J.

Counsel: For the claimant: John Kelly.

Solicitor: For the claimant: Schillings.

29. Thornton v Telegraph Media Group Ltd Queen’s Bench Division

16 June 2010 [2010] EWHC 1414 (QB); [2010] E.M.L.R. 25;

Case Analysis

Summary: In the context of defamation, the position of professional writers could be compared to the position of professional sportsmen in Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB), [2010] E.M.L.R. 20; writers were free to direct different products to different readerships or markets. As long as the true position was made clear by the writer to the prospective reading public, the standards to which a writer wrote were simply a matter of choice of one product over another and therefore to impute to a writer that they wrote to one standard rather than another could not of itself be defamatory.

Abstract: The applicant newspaper (X) applied for summary judgment of an action for libel commenced by the respondent book author (T). Whilst researching her book, T had conducted several interviews. X had published an unfavourable review of the book, in which it stated among other things that T had given her interviewees the right to read what she proposed to say about them and alter it, which was known by journalists as “copy approval” and very much disapproved of. T considered X’s statement to have a defamatory meaning. She maintained in her particulars of claim that the statement also suggested a second defamatory meaning, namely that she had shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer. The court was required to determine, for the purposes of both CPR r.24.2 and CPR PD 53 4.1(2) whether T had a real prospect of establishing that the relevant words were defamatory of her. X submitted that in order to be actionable as business defamation and defeat defences of justification and fair comment, words had to do more than injure a claimant in the way of their office, profession or trade. X contended that as copy approval was not illegal or contrary to any professional code, the allegation did not amount to business libel because it was not serious enough to pass the required threshold of seriousness. T argued that the allegation was business or professional libel because it undermined her integrity as a professional writer and that to impute incompetence in a claimant’s profession was sufficient to constitute defamation. (summary judgement granted for paper)

30. Flood v Times Newspapers Ltd Court of Appeal (Civil Division)

13 July 2010 [2010] EWCA Civ 804; [2011] 1 W.L.R. 153; [2010] E.M.L.R. 26; [2010] H.R.L.R. 30; Times, July 27, 2010;

Case Analysis:

Summary: The inquiry involved in deciding whether the Reynolds defence applied to a defamatory statement was a matter of judgment which raised a question of law to which there was only one right answer. It was not an exercise of discretion, and could therefore be a matter for an appellate court. [appeal allowed against newspaper]

31. George v Express Newspapers Queen’s Bench Division 19 July 2010

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant actor and DJ (G) against the defendant publisher (E). E had published an article in one of its newspapers that falsely suggested that G had been drunk and intent on causing trouble at a party and that, as a result, he had been removed from the party by security guards. In fact, the allegations were entirely false. E accepted that the allegations were untrue and should not have been published. It apologised for the damage to G’s reputation and for the distress and embarrassment which the publication caused. E agreed to pay G damages and his legal costs. Leave to withdraw the record was requested.

Judge: Tugendhat, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Kate Wilson.

32. Hewitt v Express Newspapers Queen’s Bench Division 22 July 201 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimant trustees (T) of a charity against the defendant newspaper publisher (E). E had published an article on its website about a terrorist attempt to blow up an aeroplane. The article falsely suggested that the Palestinian Relief and Development Fund, commonly known as Interpal, a charity registered in the United Kingdom of which T were trustees, was Hamas supporting, notwithstanding that Hamas was deemed a terrorist organisation under UK anti-terrorism legislation, and thereby wrongly suggested that T aided terrorism. E apologised for publishing the false and defamatory allegations and accepted that they should never have been published. E agreed to pay T substantial damages and their legal costs.

Judge: Eady, J.

Counsel: For the claimants: Luke Staiano.

Solicitor: For the claimants: Carter-Ruck.

33. Ronaldo v Telegraph Media Group Ltd Queen’s Bench Division

27 October 2010 [2010] EWHC 2710 (QB);

Case Analysis:

Summary: Whilst it was an abuse of process for defamation proceedings to be pursued that were not serving the legitimate purpose of protecting the claimant’s reputation, the claimant’s vindication in the settlement of his claim against one publisher did not mean that his continuing claim against a second publisher was an abuse.

Abstract: The applicant newspaper publisher (T) applied for a libel action by the respondent footballer (R) to be stayed as an abuse of the process of the court. R was claiming that an article published by T falsely stated he had drunk lots of champagne and danced at a nightclub shortly after an ankle operation, thereby suggesting he was unprofessional and reckless. In the meantime, another newspaper publisher (M) which had published a similar article had reached a settlement with R. In a statement in open court, it was said that M accepted the allegations it had published were untrue, R had been paid substantial damages and he considered himself to be fully vindicated. T submitted that following the vindication of R in his action against M, his instant claim no longer served the legitimate purpose of protecting his reputation.

Judge: Sharp, J.

Counsel: For the claimant: James Price QC, Adam Speker. For the defendant: David Price.

Solicitor: For the claimant: Schillings. For the defendant: David Price.

34. Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) Queen’s Bench Division 08 November 2010 [2010] EWHC 2819 (QB);

Case Analysis:

Subject: Defamation Other related subjects: Media and entertainment; Civil procedure

Keywords: Libel; Newspapers; Nightclubs; Statements of case

Summary: Libel proceedings against a local newspaper publisher were struck out on the basis that the claimant’s fifth attempt to draft a statement of case was still deficient for the purposes of CPR r.3.4(2)(a) and (b).

Abstract: The applicant nightclub owner (X) applied to set aside an order staying libel proceedings brought against the respondent newspaper publisher (Y) and Y cross-applied to strike out the claim. X owned a nightclub that had had its alcohol licence revoked by the relevant local authority after the police discovered evidence of illegal activities on the premises. Y had published a series of articles that referred to the nightclub’s closure and the surrounding circumstances. X commenced libel proceedings against Y. The principle meaning complained of was that words used in the articles suggested that X had been involved in criminal activity. X’s statement of claim was deficient in a number of regards. A master determined that X had failed to provide necessary details to support his claim pursuant to CPR r.3.4(2)(a) and, so far as he was seeking general damages, the action was worth no more than a nominal amount, if anything at all. Consequently, the master determined that the case, as formulated, infringed r.3.4(2)(b). X’s final draft statement of case was his fifth attempt to comply with the CPR.

Application refused, cross-application granted. The master was entitled to form the view that X’s statement of case was deficient and contrary to r.3.4(2)(a) and (b). His claim for damages bore no relation whatever, either to the law or reality. The master was entitled to conclude that the action was in fact worth no more than a nominal amount if anything at all. X’s claim was without merit and his calculations of loss entirely imaginary. Even if X were given another opportunity to put his claim in proper form, and if he limited his claim to general damages, it would, on its merits, have no real prospect of success (see paras 32 -34 of judgment).

Judge: Tugendhat, J.

Counsel: For the applicant: In person. For the respondent: Richard Munden.

Solicitor: For the respondent: Reynolds Porter Chamberlain.

35. Lait v Evening Standard Ltd Queen’s Bench Division 09 December 2010

[2010] EWHC 3239 (QB);

Case Analysis:

Summary: A former member of Parliament was not entitled to summary judgment on her claim alleging defamation by a newspaper in respect of an article which bore the meaning that she had milked the Parliamentary expenses system and that her criticism of a proposed reform to the expenses regime was apt, rightly, to provoke public anger. The newspaper’s defence of fair comment was bound to succeed. [judgement for newspaper – references to pilot scheme?]

Judge: Eady, J.

Counsel: For the claimant: Richard Rampton QC, Ian Helme. For the defendant: Mark Warby QC, Victoria Jolliffe.

Solicitor: For the claimant: Carter-Ruck. For the defendant: Taylor Wessing LLP.

APPENDIX B

Every Libel Case Mr Justice Eady was involved in between February 2008 and March 2011.The analysis of cases was obtained from www.westlaw.co.uk

1. Shaffer v Associated Newspapers Ltd Queen’s Bench Division 13 February 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the administration of the estate of the claimant’s brother.

Abstract: A statement in open court was made in a libel action brought by the claimant (S) against the defendant newspaper publisher (N). N had published an article wrongly alleging that S had thwarted his late brother’s testamentary wishes resulting in his nieces being improperly deprived of their inheritance. In fact, S had acted at all times on legal advice and in accordance with the provisions of his late brother’s will and had administered the estate properly. N acknowledged that the allegations were untrue and agreed to withdraw publicly the false allegations and apologise to S for the hurt and distress caused by the publication.

Judge: Eady, J.

Counsel: For the claimant: Hanna Basha. For the defendant: Nick Braithwaite.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

2. Smith v World Entertainment News Network Ltd Queen’s Bench Division

22 February 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article about the claimant actor.

Abstract: A statement in open court was made in a libel action brought by the claimant actor (S) against the defendant news network (W). W had published an article which falsely claimed that S had declared in an interview that Nazi dictator Adolf Hitler was a good person. The allegation was false and without any foundation. In fact, S believed that Hitler was a vile and heinous man. W agreed to apologise for the distress and embarrassment caused by the allegations, which it acknowledged were false. W also agreed to pay an amount of damages to S for the libel. S intended to donate the award of damages to charity. W agreed to pay S’s legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Rachel Atkins. For the defendant: Marvin Simons.

Solicitor: For the claimant: Schillings. For the defendant: Seddons.

3 .Osbourne v Express Newspapers Queen’s Bench Division 05 June 2008

Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article concerning a musician.

Abstract: A statement in open court was made in a libel action brought by the claimant musician (O) against the defendant newspaper publishers (E). O had hosted a prestigious music awards ceremony with his wife and two children. The following day, E published an article falsely alleging that O had thrown the ceremony into chaos after he suffered a health scare. The article falsely reported that as a result of his health scare, O had to be ferried around the ceremony in an electric buggy. The article was republished on E’s website, where it was also falsely claimed that O and his wife sat on thrones when they were not speaking as O insisted on having a place to sit in case he got tired. In fact, O was fit and well at the time of the awards and none of the allegations were true. E accepted that the allegations were untrue and ought never to have been published. E agreed to set the record straight publicly, retract the libels and undertake never to republish the libels. E agreed to publish an apology and pay O substantial undisclosed damages and his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Kate Wilson.

Solicitor: For the claimant: Schillings.

4. Farage v Times Newspapers Queen’s Bench Division 11 June 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant politician (F) against the defendant newspapers (T). T had published an article wrongly alleging that F had employed his son (Y) to work as his assistant, paying him out of taxpayers’ money whilst Y was in full-time education. T accepted that there was in fact no foundation to the allegation and agreed to publish an apology in the Sunday Times. T undertook not to repeat the allegation and agreed to pay F damages and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Andrew Stephenson. For the defendant: Gillian Phillips.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

5. Murat v Associated Newspapers Ltd Queen’s Bench Division 16 July 2008

Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a number of articles regarding the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimants (R) a businessman, (M) a translator and (S) an IT consultant against the defendant publishers. The defendants had published numerous articles in their respective newspapers and websites covering the Madeleine McCann story, wrongly alleging that R, M and S all played a part in the abduction. In relation to R, the defendants wrongly suggested in numerous articles that not only had R abducted Madeleine, but that he had lied to the police, had obstructed their investigation and had paedophilic tendencies. The defendants wrongly alleged that M had been cast out of her church, that she had lied to the police about her whereabouts when Madeleine was abducted and that she was part of a paedophile ring. It was also alleged in some of the papers that S, along with R, had been involved in the abduction of Madeleine, that S had convictions for sex offences and was interested in child pornography. In fact, R had helped the police with their investigations by becoming a volunteer translator, M was never suspected or accused of any involvement with the abduction of Madeleine McCann and S was not guilty of any sexual misconduct and had no criminal convictions. The defendants accepted that none of the claimants had played any part whatsoever in Madeleine’s abduction, and that the allegations made were wholly false. They withdrew the statements from the newspapers’ websites. The defendants apologised for the false defamatory allegations published, agreed to publish apologies and paid substantial damages to the claimants as well as covering their legal costs.

Judge: Eady, J.

Solicitor: For the claimant: Simons Muirhead & Burton. For the defendants: Reynolds Porter Chamberlain LLP.

6. Mosley v News Group Newspapers Ltd Queen’s Bench Division, 24 July 2008

[2008] EWHC 1777 (QB); [2008] E.M.L.R. 20; (2008) 158 N.L.J. 1112; Times, July 30, 2008;

Case Analysis

Summary: There was a reasonable expectation of privacy in relation to sexual activities, albeit unconventional, carried on between consenting adults on private property. The exposure by a national newspaper of sado-masochistic and some sexual activities and role play between the claimant and other consenting adult participants could not be justified on grounds of public interest and had been in breach of confidence and the claimant’s rights under the European Convention on Human Rights 1950 art.8 .

Abstract: The claimant (M) sought damages from the defendant newspaper publisher (N) for breach of confidence and the unauthorised disclosure of personal information which infringed his rights of privacy as protected by the European Convention on Human Rights 1950 art.8 . M was the President of the FIA. One of N’s newspapers had published an article under the heading “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” , accompanied by a number of captioned images, which concerned an event attended by M and five women involving sado-masochistic and some sexual activities and role play. The same information and images were published on N’s website, which contained video footage relating to the same event. The articles alleged that the sessions had a Nazi theme and mocked the way that Holocaust victims had been treated in concentration camps. A “follow up” article was published a week later, headed “EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS”, which consisted of a purported interview with one of the women (E) who had been present at the event in question and had filmed what took place clandestinely with a hidden camera supplied by N. M contended that the content of the published material was inherently private in nature and that there had also been a pre-existing relationship of confidentiality between the participants as they had all known each other for some time and had taken part in their activities on the understanding that they would be private and that none of them would reveal what had taken place. M alleged that E had breached that trust. N contended that M had no reasonable expectation of privacy in relation to the information or images concerning the event, or alternatively that M’s right to privacy under art.8 of the Convention was outweighed by a greater public interest in the disclosure, such that its right to freedom of expression under art.10 of the Convention should, in the circumstances, be allowed to prevail. N submitted that, because of M’s role as president of the FIA, the public had a right to know about the nature of the sexual activities that he indulged in. M denied that the event had had any Nazi theme or anything to do with concentration camps.

Judgment for claimant. (1) The law now afforded protection to information in respect of which there was a reasonable expectation of privacy, even in circumstances where there was no pre-existing relationship giving rise of itself to an enforceable duty of confidence, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 considered. M had a reasonable expectation of privacy in relation to sexual activities, albeit unconventional, carried on between consenting adults on private property. The clandestine recording of sexual activity on private property engaged the rights protected by art.8 of the Convention, and serious reasons had to exist before interferences with it could be justified, Dudgeon v United Kingdom (A/45) (1982) 4 E.H.R.R. 149 considered. It had to be determined whether the degree of intrusion into a claimant’s privacy was proportionate to the public interest supposedly served by it, Douglas v Hello! Ltd (No.1) [2001] Q.B. 967 applied. Moreover, E had owed a duty of confidence to M and the other participants. Those who participated in sexual or personal relationships might be expected not to reveal private conversations or activities. It was highly questionable whether, in modern society, the concept that “there is no confidence in iniquity” could be applied to sexual activity, fetishist or otherwise, conducted between consenting adults in private. E had, therefore, committed a breach of confidence as well as a violation of the art.8 rights of all those involved. (2) There was no evidence that the event attended by M and the other participants was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes, and nor had it been so in fact. There was no genuine basis at all for the suggestion that the participants had mocked the victims of the Holocaust. Whilst there had been bondage, beating and domination typical of sado-masochistic behaviour, there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of video extracts on the website, all of which had been done on a massive scale. Although such behaviour was viewed by some people with distaste and moral disapproval, in the light of modern rights-based jurisprudence that had not provided any justification for the intrusion on the personal privacy of M. (3) It was necessary to afford an adequate financial remedy for the purpose of acknowledging the infringement and compensating, to some extent, for the injury to feelings, the embarrassment and the distress caused. However, it was not right to extend the application of exemplary or punitive damages into the field of the right to privacy or to include an additional element specifically directed towards deterrence. That was not a legitimate exercise in awarding compensatory damages. No amount of damages could fully compensate M for the damage done to him and what could be achieved by a monetary award in the circumstances was limited. Any award had to be proportionate and avoid the appearance of arbitrariness. The right award, taking those considerations into account, was one of ?60,000.

Judge: Eady, J.

Counsel: For the claimant: James Price QC, David Sherborne. For the defendant: Mark Warby QC, Anthony Hudson.

Solicitor: For the claimant: Steeles. For the defendant: Farrer & Co.

7. McGill v 365 Media Group Plc Queen’s Bench Division 31 July 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant football agent (C) against the defendant publisher (D). D had published a story on its transfer gossip website alleging that C had invited a Celtic player to visit Villa Park to watch Aston Villa play, the implication of which was that C, in breach of the rules of football’s regulatory bodies, was trying to induce the player to break his contract and join Aston Villa without the permission of Celtic, thus making C guilty of “tapping up”. In fact, C had advised the player to sign his current contract and stay at Celtic. D also alleged that C had set up deals that took other Celtic players to the Midlands. D accepted that all of the allegations made were totally without foundation and should not have been published. D published an apology and withdrawal on its website, paid C substantial damages and covered his legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Paul Hackney.

Solicitor: For the claimant: Geldards LLP (Derby).

8. Mottley v IPC Media Ltd Queen’s Bench Division 07 October 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article that referred to the claimant member of the Barbados Parliament.

Abstract: A statement in open court was made in a libel action brought by the claimant member of the Barbados Parliament (M) against the defendant publisher (P). P had published an article in one of its magazines in which reference was made to a Barbadian calypso song that suggested M had assaulted another woman. In fact, M had never assaulted anyone in the manner described in the article or at all. Further, the suggestion of assault in the song was based on a totally unfounded rumour. P apologised for publishing the article and agreed to cover M’s legal costs as well as paying a substantial sum in damages. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: David Price (Solicitor Advocate). For the defendant: Paul Fox.

9. Murat (Robert) v British Sky Broadcasting Ltd Queen’s Bench Division 14 November 2008 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article that referred to the claimant.

Abstract: A statement in open court was made in an action for libel brought by the claimant (M) against the defendant publishers (B). B had published an article to its website covering the Madeleine McCann story together with a video entitled “It reminded me of Soham”. Both the video and the article falsely alleged that there were strong grounds to believe that M, who was resident in the area when Madeleine disappeared, was guilty of abducting her. The article and video went further and likened M’s behaviour, in the days after Madeleine’s disappearance, to that of a notorious child murderer. They also falsely suggested that M deliberately tried to mislead journalists by pretending to be acting in an official capacity for the police. In fact, M was heavily involved in the search for Madeleine after her disappearance and was recruited by the police to act in an official capacity as an interpreter. B acknowledged that the allegations made were entirely false and that M played no part in the abduction of Madeleine. B also acknowledged that M did not behave like a child murderer nor did he try to mislead or lie to journalists. B agreed to publish an apology on its website for a period of 12 months and to pay substantial damages to M as well as covering his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Louis Charalambous. For the defendant: Victoria Shore.

Solicitor: For the claimant: Simons Muirhead & Burton.

10. Crossley v Newsquest (Midlands South) Ltd Queen’s Bench Division

11 December 2008 [2008] EWHC 3054 (QB);

Case Analysis:

Summary: Absolute privilege under the Defamation Act 1996 s.14 extended to the reporting of previous court hearings, insofar as it was reasonably necessary to give context to a contemporaneous report of a court hearing.

Abstract: The appellants (C) appealed against a decision of a master to strike out their libel claim against the respondent newspaper publisher (N). Three days after a final county court hearing about a nuisance action brought against C by their neighbours, N had published an article about the hearing. The article also referred to court hearings that had taken place a few months previously. The nuisance action related to the effectiveness of a sewage system discharging sewage from C’s property. A photograph appeared in the article accompanied by a caption. C alleged that the caption contained an emotive phrase which was not an accurate representation of the findings of the county court judge. The master concluded that C’s claim was bound to fail because N could rely on the defences of privilege and that C’s plea of malice could not be supported. He also found that no reasonable jury could come to a finding other than the words were substantially true and the plea of justification was bound to succeed. Appeal dismissed. (1) The master was correct in concluding that absolute privilege would attach to parts of the article reporting on the county court hearing as that reporting would constitute a contemporaneous report of court proceedings for the purposes of the Defamation Act 1996 s.14 and there was little doubt that a report published three days after a court hearing would be so classified. Absolute privilege would also extend to the reporting of the earlier hearings at least insofar as it was reasonably necessary to give context to what took place at the county court hearing and to enable readers to understand the contemporaneous report of the court hearing. In other words, that coverage should be construed as forming an integral part of the contemporaneous report. The offending caption to the photograph would also be treated as part of the attempt to report, fairly and accurately, the outcome of the trial and would, therefore, attract qualified privilege. (2) The master was also correct in concluding that there was no realistic prospect of C establishing malice and there was nothing to support a plea of malice in the criticisms which were made of N’s phraseology. In particular, the caption to the photograph should be read in the context of the article as a whole; it was not appropriate to interpret headlines or captions as though they stood on their own, Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65 applied. (3) N was also entitled to rely on the defence of fair comment and there was no reason to suppose that the opinions expressed by the commentator in the article were not honestly held by him, Tse Wai Chun Paul v Cheng [2001] E.M.L.R. 31 considered. (4) The conclusions reached by the master on privilege, malice and fair comment were such as to entitle N to the relief sought. It was therefore strictly not necessary for him to go on to address the matter of justification. However, he was entitled to reach the conclusion that the plea of justification was bound to succeed. (5) The master was also entitled to reach the conclusion that the libel proceedings were an obvious attempt to re-litigate issues which had already been determined in earlier hearings and therefore constituted an abuse of process, Johnson v Gore Wood & Co (No.1) [2002] 2 A.C. 1 and Hunter v Chief Constable of the West Midlands [1982] A.C. 529 considered. (6) The master was also right to refuse C’s application to amend to add causes of action founded upon privacy and confidentiality as the hearing had taken place in open court and anything said in open court could be reported, R. v Arundel Justices Ex p. Westminster Press [1986] 1 W.L.R. 676 considered.

Judge: Eady, J.

Counsel: For the appellants: In Person. For the respondent: Alexandra Marzec.

Solicitor: For the respondent: Farrer & Co.

11. Mardas v New York Times Co, Mardas v International Herald Tribune SAS

Queen’s Bench Division 17 December 2008 [2008] EWHC 3135 (QB); [2009] E.M.L.R. 8;

Case Analysis

Summary: A judge had erred in striking out a claim for libel as an abuse of process. He had wrongly made findings of fact which should have been left to trial after full disclosure had occurred.

Abstract: The appellant (M) appealed against a decision to strike out his claim for libel made against the defendant foreign newspapers (N and H) as an abuse of process. N and H had published an article which referred to M concerning events which had taken place approximately 40 years earlier. M had claimed that the article had been published in the jurisdiction of England and Wales and he issued libel proceedings. However, the parties disputed the extent and forms of publication that had allegedly occurred. N and H applied for the proceedings to be struck out. The judge found that M stood no real prospect of establishing that there had been a hard copy publication by H. In allowing the applications, he considered the costs, resources and time that would be involved in the claims going to trial, that the article concerned matters that had happened 40 years ago and found that there had been publication to, at the most, two hundred people. M submitted that it would only rarely be appropriate to strike out an action as an abuse because a claimant’s reputation had suffered only minimal damage or there had been no real and substantial tort within the jurisdiction. M further contended that the judge had been too ready to make findings of fact on contested evidence and to conclude that there had been no real or substantial tort.

Appeals allowed. It was inappropriate for a finding of fact to be made about the scale of publication on the basis of incomplete evidence. The finding of fact was a matter which should have been left to trial. Furthermore, even if there had been publication to the number of people N alleged, there was no basis for concluding that there was no real and substantial tort. M wished to have the benefit of full disclosure and such further information as might be appropriate to disprove H’s contention that the article had not been published anywhere in printed form. The court could not refuse that opportunity. The number of times the internet article had been looked at via H’s website also could not be resolved until at least disclosure had taken place. Investigating the scale of publication further could be very expensive. If that had to be carried out and yielded no evidence of a wider readership that N and H currently admitted, it might be that M would have to bear the cost of such investigations which would almost certainly exceed any sum awarded in damages. However, that was a risk that M would have to take. The allegations made could not be dismissed as trivial. Moreover, even if defamatory allegations related to events of long ago, that could not be a ground in itself for refusing access to justice, Polanski v Conde Nast Publications Ltd [2005] UKHL 10, [2005] 1 W.L.R. 637 considered. It was desirable that some sensible accommodation should be reached so as to avoid a time-consuming and expensive trial but that was for the parties to deal with, Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260, [2008] 1 W.L.R. 748 considered. The circumstances could not be characterised as an abuse of process.

Judge: Eady, J.

12. Osbourne v News Group Newspapers Ltd Queen’s Bench Division

15 January 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (O), a successful music manager, promoter and television presenter, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website wrongly suggesting that the claimant had put her musician husband’s life at risk by working him too hard at the cost of his health. N also falsely suggested her motivation for doing so was to fund her exorbitant spending. The allegations were entirely without foundation. N apologised for publishing the false and defamatory allegations and offered to publish an apology. N also agreed to pay O substantial damages and her legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly.

13. Marshall v Express Newspapers Queen’s Bench Division 29 January 2009

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), an 18 year old student, against the defendant newspaper publisher (N). N had published articles falsely alleging that the day after the conviction of a man (B) for the murder of an 11 year old boy, M had publicly praised him in a television interview as a hero. The articles also wrongly alleged that M was B’s girlfriend, was a member of a criminal gang and that she had declared a pledge of loyalty to the gang following B’s conviction. In fact M did not make any public statement following B’s conviction, did not regard him as a hero and had not made such a claim or sought publicity for it in the aftermath of B’s conviction for such an appalling murder. M was not nor had ever been a member of a criminal gang and had never been B’s girlfriend. N agreed to pay M a substantial sum in damages which she intended to donate to the Rhys Jones Memorial Trust. Permission to withdraw the record was requested.

Judge: Eady, J.

14. Raulynaitis v News Group Newspapers Ltd Queen’s Bench Division

26 February 2009 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (R) against the defendant newspaper publishers (N). N had published an article in its newspaper and to its website wrongly alleging that R had ordered passengers off of his bus in order for him to pray. The article suggested that R was arrogant, unprofessional and contemptuous of the passengers. The article further alleged that the passengers later refused to re-board the bus as they spotted a rucksack and feared R was a fanatic. In fact, R had prayed on the bus during his statutory break and no passenger was inconvenienced. N accepted the allegations were false and published an apology. N paid R a sum in damages and covered his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Stephen Loughrey. For the defendant: Patrick Callaghan.

Solicitor: For the claimant: Carter-Ruck.

15. Zola v BBC Queen’s Bench Division 12 May 2009 Unreported

Case Analysis

Summary: A joint statement in open court was made in proceedings for defamation following a radio broadcast that referred to the claimants.

Abstract: A joint statement in open court was made in a libel action brought by the claimant West Ham United Football Club manager (Z) and coach (C) against the defendant BBC. The BBC had broadcast a radio breakfast show that featured a contribution from a sports journalist (H). H wrongly alleged that Z and C had attended an interview for management positions at an alternative football club, which would have constituted a breach of their contracts of employment and, in the case of Z, breach of FA Premier League rules. In fact, the allegations were completely untrue. The BBC apologised for the false allegations and agreed to pay Z and C damages and their legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the applicants: James Quatermaine.

16. Jones v Telegraph Media Group Ltd Queen’s Bench Division 23 June 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (J) against the defendant newspaper publisher (T). J was the United Kingdom’s most senior intelligence expert on weapons of mass destruction in the period leading up to the Iraq war. T had published an article in its newspaper and on its website which falsely alleged that J had leaked information to the media before the Iraq war. In fact, J had been singled out by the Chairman of the House of Commons Select Committee investigating leaks in Whitehall as someone who did not, and would not, leak information. T accepted that the allegation was untrue and published an apology to J as well as agreeing to pay damages and J’s legal costs.

Judge: Eady, J.

Counsel: For the claimant: Luke Staiano.

17. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division

16 June 2009

Case Analysis

Summary: The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity.

18. Bari v BBC Queen’s Bench Division 16 July 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the broadcast of a programme which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (B) against the defendant BBC. The BBC had broadcast a programme in which a panellist alleged that the leadership of a Muslim organisation, of which B was leader and chief spokesperson, had failed to condemn the kidnapping and killing of British soldiers and thereby implicitly condoned such acts. The panellist further alleged that B believed the kidnapping and killing of British soldiers to be a good and Islamic thing. In fact, B did not condone the kidnapping and killing of British soldiers and did not believe this would be a good or Islamic thing to do, and in 2007 B had said publicly that the killing of British troops in Iraq was unacceptable. The BBC apologised for the false allegations. It also agreed to pay B substantial damages, which he would donate to a charity, and his legal costs.

Judge: Eady, J.

19. Zuma v Guardian News & Media Ltd Queen’s Bench Division 30 July 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (Z) against the defendant newspaper publisher (G). Z was the President of South Africa. G had published an article in an edition of its newspaper and on its website which falsely alleged that Z was guilty of various crimes. Z issued libel proceedings and G subsequently published an apology accepting that Z was acquitted of one of the offences and the others were dropped by the South African National Prosecuting Authority. Z did not consider that the apology adequately dealt with his complaint. The apology was said to be published far less prominently in the newspaper and on the website than the article complained of. Additionally, the apology was initially unavailable online when a search was made using Z’s name. G then made an offer of amends. In light of the fact that G was willing to pay very substantial damages to Z and it had publically apologised to Z, Z considered his reputation in the matter had been entirely vindicated and he was prepared not to proceed any further in his action against G. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Jenny Afia.

Solicitor: For the claimant: Schillings.

20. Andre v MGN Ltd Queen’s Bench Division 31 July 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (P) against the defendant newspaper publisher (M). M had published an article in an edition of its newspaper and on its website which alleged that P had made inappropriate advances towards a woman in a night club whilst he was still together with his wife. In fact, as M accepted, the allegations were untrue. All that happened was that P was introduced to the woman and a photograph was taken of them together. P spoke to the woman very briefly. M apologised for the hurt and damage suffered by P as a result of the publication of the article. M agreed to pay a substantial sum by way of damages, together with P’s legal costs, and agreed not to repeat the allegations. Leave to withdraw the record was requested.

Judge: Eady, J.

21. Karim v Newsquest Media Group Ltd Queen’s Bench Division 27 October 2009

Case Analysis

Summary: A website article summarising a hearing in the Solicitors Disciplinary Tribunal was absolutely privileged, being a fair, accurate and contemporaneous report of legal proceedings. The Electronic Commerce (EC Directive) Regulations 2002 reg.19 also provided a defence in relation to comments published on the site from site users because N had no actual knowledge of unlawful activity and had removed the article and comments as soon as complaint was made.

Judge: Eady, J.

Counsel: For the applicant: Mr Vassall-Adams. For the respondent: No appearance or representation.

22. Martin v Channel Four Television Corp Queen’s Bench Division 06 November 2009

Case Analysis

Summary: The court had no jurisdiction to grant an interim injunction prior to the issue of proceedings to prevent the broadcast of a television documentary where the application was neither urgent nor in the interests of justice. The application could not be described as urgent where the broadcasters had already agreed not to show the documentary.

23. Williams v MGN Ltd Queen’s Bench Division 02 December 2009

Case Analysis

Subject: Defamation Other related subjects: Media and entertainment; Torts

Keywords: Abuse of process; Defamatory meaning; Libel; Newspapers; Reputation

Summary: Where the claimant in a libel action had a background of serious criminal convictions, he had no reputation capable of protection and his claim had to be struck out under CPR r.3.4(2)(b) as an abuse of the court’s process as it was clear that no real or substantial tort had been committed.

24. Buxton v MGN Ltd Queen’s Bench Division 10 December 2009

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant property developer (B) against the defendant publisher (M). M had published an article in its newspaper and on its website that suggested that B had viciously attacked a female model (X) to such an extent that injuries to her face were so severe that her career as a model was almost certainly over. In fact, the allegations were entirely false. M apologised for publishing the false and defamatory allegations and accepted that B had neither attacked X nor caused any injuries to her face. M agreed not to republish the allegations, and agreed to pay B substantial damages and to pay his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Mark Thomson. For the defendant: Lindsay Hodgkinson.

Solicitor: For the claimant: Atkins Thomson. For the defendant: Reynolds Porter Chamberlain.

25. Ali v Associated Newspapers Ltd Queen’s Bench Division 27 January 2010

Case Analysis

Summary: Summary judgment was granted to a defendant newspaper publisher in a claim for libel on the basis of justification.

Abstract: The applicant newspaper publisher (N) sought summary judgment on a libel claim brought by the respondent (X). X was a civil servant employed by the Treasury. N published the fact that X had been suspended from his employment following the posting of remarks on his personal blog. Passages from X’s blog were published by N. X pleaded that the publications had the defamatory meaning that X was a hardline Islamic extremist who supported the killing of British and American soldiers in Iraq by fellow Muslims as justified. N submitted that X’s claim was bound to fail as X’s observations on his blog advocated a form of jihad which could only be understood as justifying the killing of British and American troops in Iraq. N argued that a jury would be perverse not to hold that the blogs in question justified the inference against X. X submitted that he should be permitted to adduce evidence of his background and other blogs to demonstrate that he was not hardline or extremist.

Application granted. It was necessary to have in mind the role of a jury not only in coming to conclusions of primary fact but also in drawing any appropriate inferences, Bataille v Newland [2002] EWHC 1692 (QB) applied. On reflection, N’s submissions were correct on the very unusual facts in the instant case. X had taken the position that the killing of American and British troops in Iraq would be justified by his interpretation of jihad. As it was a matter of construing plain language in its overall context, it would be perverse to take a contrary view. In those circumstances the claim could legitimately be categorised as bound to fail. Nothing would be gained by investigating X’s other blogs or his background. Such an exercise could not change or qualify the plain meaning of the blog in question.

Judge: Eady, J.

Counsel: For the applicant: David Hirst. For the respondent: David Glen.

Solicitor: For the applicant: Farooq Bajwa & Co. For the respondent: Reynolds Porter Chamberlain LLP.

26. Berezovsky v Russian Television and Radio Broadcasting Co Also known as: Terluk v Berezovsky Queen’s Bench Division 10 March 2010

Case Analysis

Summary: The court awarded damages for defamation to a Russian businessman and politician who had been accused, in a television programme broadcast by a state-owned Russian television company, of involvement in the murder of the former Russian security agent, Alexander Litvinenko.

27. Abramovich v Gruppo Editoriale L’Espresso SPA Queen’s Bench Division

18 March 2010 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant businessman (R) against the defendant newspaper publisher (G). G had published in its newspaper and on its website false allegations about R that he had suffered a heavy loss in a poker game and had been forced to hand over a luxury yacht to cover his gambling debt. The article also falsely alleged that R’s gambling had caused problems in his relationship with his partner. G accepted that the allegations were wholly unfounded and untrue and apologised to R for the distress and embarrassment caused to him. G agreed to publish a correction and pay R substantial damages, which he intended to donate to charity, and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Sarah Toolan.

Solicitor: For the claimant: Schillings. For the defendant: Davenport Lyons

28. Bowman v MGN Ltd Queen’s Bench Division 26 April 2010 [2010] EWHC 895 (QB);

Case Analysis

Summary: Following the publication on a newspaper’s website of an article wrongly claiming that the claimant was romantically involved with an actress, the court assessed compensation for the defamation in the sum of ?4,250 having regard to the newspaper’s early apology, quick removal of the offending article and early use of the offer to amends procedure in the Defamation Act 1996 s.2.

Abstract: The court was required to determine the amount of compensation to be paid to the claimant actor (B) in respect of distress caused to him by a defamatory article published by the defendant (M). M had published an article on its website about B, suggesting that he had been romantically involved with an actress. B complained that the article was untrue and that he was in a serious relationship with another person. The article was removed from M’s website almost immediately, having remained on there for some 27 hours. M published an apology soon after. Prior to the issue of proceedings, M made an unqualified offer of amends pursuant to the Defamation Act 1996 s.2 to s.4, which B accepted.
Compensation assessed. When determining appropriate compensation the courts had adopted a two-stage process: first, to determine the figure which would have been awarded after trial and, second, to decide to what extent that figure should be discounted to give effect to any mitigation, Duncan & Neill on Defamation, 3rd edn (LexisNexis, 2009) para.19.12, Nail v News Group Newspapers Ltd [2004] EWCA Civ 1708, [2005] 1 All E.R. 1040 and Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 W.L.R. 3469 applied. There was no evidence about the number of readers who would have understood the article in a defamatory sense, but it was reasonable to assume that the scale of publication would be much lower than in the case of a natural and ordinary defamatory meaning published in a national newspaper, so it would be right to take a conservative approach. It was of fundamental importance that the article had been removed as soon as B’s complaint was received, and that it amounted to no more than a bit of celebrity gossip. As libel cases went, it was at the less serious end of the scale. The hurt that could be caused by a false allegation of adultery, however, should not be discounted, and there was no doubt that B had taken the suggestion seriously and incurred embarrassment and some genuine distress. Yet the libel was short-lived and the court had seen no hard evidence that his reputation had actually suffered. Choosing the right bracket or figure for compensation was largely a matter of impression and personal evaluation, although it was legitimate to take into account personal injury awards for pain, suffering and loss of amenity. Bearing in mind the temporary nature of M’s allegations and their impact, even on B, who was rather sensitive, it did not equate even closely to physical pain or long-term loss of amenity. An appropriate starting figure would be ?8,500. That then had to be discounted to recognise the deflationary or mitigating effect of M’s conduct, in particular its early resort to the offer of amends procedure. That would have signalled to B that he had effectively “won” from that moment onwards and his stress and anxiety should have been correspondingly reduced, Nail applied. Thus, because of the early apology, the willingness to remove the offending words immediately, and the very prompt reliance on the offer of amends regime, B’s award should be reduced by 50 per cent to ?4,250.

Judge: Eady, J.

Counsel: For the claimant: David Sherborne. For the defendant: Alexandra Marzec.

Solicitor: For the claimant: Schillings. For the defendant: In-house solicitor.

29. George v MGN Ltd Queen’s Bench Division 14 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (G) against the defendant newspaper publisher, newspaper editor and assistant editor (M). M had published articles in their newspapers and on their websites that falsely suggested that G had harassed and stalked a nurse; had become obsessed with a TV presenter and said that he loved her; had become obsessed with another TV presenter and threatened to pester and harass her; and had illegally attempted to obtain drugs from a hospital. In fact, the allegations were entirely false. M apologised for publishing the false allegations and agreed to withdraw them. M also agreed to pay G substantial damages and to pay his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Gordon Bishop. For the defendant: Emily Barber.

30. Margolis v Independent News & Media Ltd Queen’s Bench Division 21 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a headline which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), a writer and feminist, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website that was written by M, however the headline inserted by N falsely alleged that M had been a prostitute or had otherwise been involved in the sex industry. The allegations were completely untrue. N published an apology in the newspaper and online. N agreed to pay M damages along with legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Victoria Shore

31. Hewitt v Express Newspapers Queen’s Bench Division 22 July 2010 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimant trustees (T) of a charity against the defendant newspaper publisher (E). E had published an article on its website about a terrorist attempt to blow up an aeroplane. The article falsely suggested that the Palestinian Relief and Development Fund, commonly known as Interpal, a charity registered in the United Kingdom of which T were trustees, was Hamas supporting, notwithstanding that Hamas was deemed a terrorist organisation under UK anti-terrorism legislation, and thereby wrongly suggested that T aided terrorism. E apologised for publishing the false and defamatory allegations and accepted that they should never have been published. E agreed to pay T substantial damages and their legal costs.

Judge: Eady, J.

32. Lait v Evening Standard Ltd Queen’s Bench Division 09 December 2010

[2010] EWHC 3239 (QB);

Case Analysis:

Summary: A former member of Parliament was not entitled to summary judgment on her claim alleging defamation by a newspaper in respect of an article which bore the meaning that she had milked the Parliamentary expenses system and that her criticism of a proposed reform to the expenses regime was apt, rightly, to provoke public anger. The newspaper’s defence of fair comment was bound to succeed.

APPENDIX C

Libel claims determined by convention arguments.The analysis of cases was obtained from www.westlaw.co.uk


1. Mosley v News Group Newspapers Ltd [Convention rights arguments] Queen’s Bench Division [application for interim injunction] 09 April 2008

[2008] EWHC 687 (QB);

Case Analysis

Application refused Video footage of a known figure engaging in sexual activities with prostitutes had entered the public domain and therefore, although the material was intrusive and demeaning and there was no legitimate interest in its further publication, an injunction prohibiting its further publication on a newspaper website was not appropriate and would serve no practical purpose. [reasonable expectation of privacy]

Judge: Eady, J.

Counsel: For the applicant: James Price QC, David Sherborne. For the respondent: Gavin Millar QC, Anthony Hudson.

Solicitor: For the applicant: Steeles Law. For the respondent: Farrer & Co.

2. Murray v Express Newspapers Plc Also known as: Murray v Big Pictures (UK) Ltd Court of Appeal (Civil Division) 07 May 2008 [2008] EWCA Civ 446; [2009] Ch. 481; [2008] 3 W.L.R. 1360; [2008] E.C.D.R. 12; [2008] E.M.L.R. 12; [2008] 2 F.L.R. 599; [2008] 3 F.C.R. 661; [2008] H.R.L.R. 33; [2008] U.K.H.R.R. 736; [2008] Fam. Law 732; (2008) 105(20) L.S.G. 23; (2008) 158 N.L.J. 706; (2008) 152(19) S.J.L.B. 31;

Case Analysis

Summary: Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child’s behalf.

Abstract: The appellant (M), acting through his parents, appealed against the striking out ( [2007] EWHC 1908 (Ch), [2007] E.C.D.R. 20 ) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art.8 . M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that even if the decision in Von Hannover v Germany (59320/00) [2004] E.M.L.R. 21 had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 , he was bound to follow Campbell in preference. The issue was whether the judge was right so to have concluded.

Appeal allowed.

3. Times Newspapers Ltd v United Kingdom (3002/03) Times Newspapers Ltd v United Kingdom (23676/03) European Court of Human Rights 10 March 2009[2009] E.M.L.R. 14; Times, March 11, 2009;

Case Analysis

Summary: Where a newspaper had published, in its print publication, an allegedly defamatory article which, during the libel action, was available to readers on the newspaper’s website, it was not a disproportionate interference with the right to freedom of expression to require that the newspaper publish an appropriate qualification to the internet version of the article. [convention arguments]

[multiple publication rule – each new reproduction was a fresh libel]

4. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division 16 June 2009 [2009] EWHC 1358 (QB); [2009] E.M.L.R. 22; (2009) 106(26) L.S.G. 18; (2009) 159 N.L.J. 924; (2009) 153(24) S.J.L.B. 33;

Case Analysis

The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity. [convention arguments]

5. Financial Times Ltd v United Kingdom (821/03) European Court of Human Rights 15 December 2009 [2010] E.M.L.R. 21; (2010) 50 E.H.R.R. 46; 28 B.H.R.C. 616; Times, December 16, 2009

Case Analysis

Summary: An order requiring that certain newspapers disclose to a brewing company documents that could lead to the identification of journalistic sources who had leaked information about a takeover bid violated the European Convention on Human Rights 1950 art.10. The public interest in the protection of journalistic sources was not outweighed by the company’s arguments that the institution of proceedings against the sources would eliminate the threat of damage by any future dissemination of confidential information and would compensate it for past breaches of confidence.

[convention arguments] success of article 10 here

[1] Reed & Murdoch A Guide to Human Rights Law in Scotland Tottel: Edinburgh (2008); Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide; Lustgarten et al (1997) Libel and the Media Oxford University Press: Oxford

[2] Kaye v Robertson [1991] F.S.R. 62

[3] Kaye v Robertson [1991] F.S.R. 62 at page 68 per Bingham L.J.

[4] Article 9 of the Civil code in France simply says: “Everyone has the right to privacy”.

[5] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 1

[6] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction xii

[7] Sunday Times v United Kingdom (A/30) European Court of Human Rights, 26 April 1979

[8] Article 8(2) provides: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[9] Article 10(2) provides: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

[10] Human Rights Act s.12(4)

[11] Douglas v. Hello! Ltd [2001] 2 W.L.R. 992 at para. 135, per Sedley L.J. and para. 150, per Keene L.J.

[12] Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the

Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6 pp 824-849

[13] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[14] Imutran Ltd v Uncaged Campaigns Ltd [2001] E.C.D.R. 16 per Sir Andrew Morritt VC at p.198

[15] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide p.2

[16] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[17] Baturina v Times Newspapers [2011] EWCA Civ 308

[18] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[19] Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats Retrieved 2011.4.1

[20] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf

[21] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction xii

[22] Ibid

[23] Ibid p.76

[24] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide

Turpin & Tomkins (2009) British Government and the Constitution (6th ed) Cambridge: Cambridge, New York , Melbourne , Madrid

[25] Article 11 of the Declaration of the Rights of Man and of the Citizen

[26] Professor Markesinis (1990) The German Law of Torts 2nd ed

[27] Bill of Rights 1st, 3rd, 4th amendments

[28] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.513

[29] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[30] HL Deb 06 June 1973 vol 343 cc104-78

[31] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.513

[32] Entick v Carrington (1765) 19 St Tr 1030

[33] Regulation of Investigatory Powers Act 2000 Parts I and II

[34] Data Protection Act 1998

[35] Freedom of Information Act 2000

[36] Intellectual property law

[37] Such as the common law offence of sedition: See Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.3

[38] Examples include the Obscene Publications Act 1959 and 1964, Official Secrets Act 1911 & 1989, the Public Order Act 1986 and trespass as demonstrated by Entick v Carrington

[39] Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the

Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6 pp 824-849

[40] S.6(3)

[41] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[42] (1849) 1 Mac & G 25

[43] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.533

[44] Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide p.389

[45] [1967] 1 QB 349

[46] [1969] RPC 31

[47] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 99

[48] Ibid p. 99

[49] Ibid

[50] Argyll v Argyll [1967] 1 QB 349

[51] Stephens v Avery [1988] Ch 449

[52] [1976] 1 QB 752 [Crossman Diaries]

[53] Attorney General v Jonathan Cape [1976] 1 QB 752 at p.769-770

[54] Where the Government unsuccessfully attempted to restrain the memoirs of a retired secret service agent: Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109

[55] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 99

[56] [1994] EMPLR 134

[57] Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at p.807 and see Loon, Wee (1996) ‘The Emergence of a right to privacy within the law of confidence?” in European Intellectual Property Review vol.18(5) at p.312

[58] (no.1) [2001] Q.B. 967 (CA (Civ Div)

[59] Douglas v Hello! (no.9) [2004] EWHC 63 (Ch)

[60] Kearns, Paul (2001) ‘Privacy and the Human Rights Act 1998’ in New Law Journal vol.151 p.377, Carey, Peter (2001) ‘Hello to Privacy?’ in Entertainment Law Review vol.12(4) pp120-123, Grundberg, Peter (2001) ‘The “new” Right to Privacy’ in Intellectual Property Lawyer vol 9 (Feb) pp12-13

[61] Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div) at p.1001

[62] “It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of the invasion of their privacy by publicity that shows them in an unfavourable light”. [1977] 1 W.L.R. 760 Per Bridge L.J at p.765

[63] Ash v Mckennit [2008] Q.B. 73

[64] Argyll v Argyll [1967] 1 QB 349

[65] Stephens v Avery [1988] Ch 449

[66] Shelley Films Ltd v Rex Features Ltd [1994] EMPLR 134

[67] Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div)

[68] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 p.100

[69] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.686 per Eadie J

[70] (1990) Cm 1102

[71] O’Malley, Tom & Soley, Clive (2000) Regulating the Press Pluto Press: London

[72] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[73] Regina v Advertising Standards Authority Ltd Ex p.Vernons Organisation [1992] 1 W.L.R. 1289 per Laws J at p.1292

[74] Regina v Shayler [2003] 1 A.C. 247 at p.266

[75] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[76] Leigh, David & Vulliamy, Ed (1997) Sleaze: Corruption in Tory Britain Fourth Estate

[77] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[78] Bromley, Michael & Stephenson (eds) (1998) Sex, Lies and Democracy: the press and the public Longman

[79] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.709

[80] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.547

[81] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[82] Press Complaints Commission (January 2011) Editors Code of Conduct public interests s.2 accessed on 1st April 2011 and available from: http://www.pcc.org.uk/cop/practice.html

[83] Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB) per Justice Eady at para 69

[84] Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[85] A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

[86] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[87] [1936] A.C. 578

[88] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.3

[89] ibid p.2

[90] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[91] Moore, Roy.L & Murray, Michael.D (2007) Media Law and Ethics Taylor & Francis Group: New York

[92] R. (On the application of Telegraph Group plc) vs Sherwood [2001] 1 W.L.R. 1983 per Longmore LJ at p.1986

[93] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

[94] Human Rights Act 1998 s.6(1)

[95] [2001] Fam 430

[96] Douglas v Hello! (no.1) [2001] Q.B. 967 at para 133 per Sedley LJ

[97] Perry v UK (2004) 39 EHRR 76

[98] X and Y v. Netherlands (1985) 8 E.H.R.R. 235

[99] Pretty v UK (2002) 35 EHRR 1

[100] Ibid at p.14

[101] Article 8(2) of the ECHR

[102] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22 and see Murray v Express Newspapers

Plc [2008] EWCA Civ 446

[103] Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 W.L.R. 934

[104] [2009] E.M.L.R. 22

[105] [2008] EWHC 687 (QB)

[106] Plc [2008] EWCA Civ 446

[107] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at para 110 per Eadie J

[108] Ibid at para 111

[109] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[110] Ibid

[111] Sunday Times v United Kingdom (A/30) European Court of Human Rights, 26 April 1979

[112] R. v. Shayler [2002] 2 W.L.R. 754.

[113] Regina (Prolife Alliance) v British Broadcasting Corporation [2004] 1 A.C. 185

[114] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[115] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[116] Von Hannover v Germany [2004] E.M.L.R. 21

[117] Rudolf, Beate (2006) ‘Council of Europe: Von hannover v Germany’ in International Journal of Constitutional Law

[118] [2004] E.M.L.R. 21 at p.381

[119] Article 10(2)

[120] Rudolf, Beate (2006) ‘Council of Europe: Von hannover v Germany’ in International Journal of Constitutional Law

[121] Rudolf (2006) argues this is simply a matter of less weight.

[122] Campbell v MGN Ltd [2004] UKHL 22

[123] [2004] UKHL 47 at para 23

[124] Campbell v MGN Ltd [2004] UKHL 22 per Lord Hoffman at para 36

[125] Ibid per Lord Hope at para 112

[126] [2004] UKHL 47 per Lord Steyn at para 17

[127] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf clause 7

[128] Press standards, privacy and libel: second report of session 2009 Volume 2 By Great Britain: Parliament: House of Commons: Culture, Media and Sport Committee

[129] Farage v Times Newspapers unreported 11th June 2008, Raulynaitis v News Group Newspapers Ltd 26th February 2009, Jones v Telegraph Media Group Ltd 23rd June 2009, Hewitt v Express Newspapers unreported 22nd July 2010 , Lait v Evening Standard Ltd unreported 9th December 2010

[130] Fowler, Andrew (2011) The Most Dangerous Man in the World Melbourne University Press: Melbourne

[131] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.74

[132] Sim v Stretch [1936] 2 All ER 1237 at 1240

[133] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.563

[134] S.69

[135] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.562

[136] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf clause 8

[137] Ibid page 36

[138] Ibid

[139] Ibid clause 1

[140] Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB)

[141] Hulton v Jones [1910] AC 20

[142] For example “all lawyers” or “all politicians” and not “the lawyers from matrix chambers”.

[143] Godfrey v Demon Internet [1999] EMLR 542

[144] S.1 of the 1996 Act

[145] Duke of Brunswick v Harmer (1849) 14 Q.B. 185 (QB)

[146] Dunlop, Rory (2006) ‘Article 10, the Reynolds test and the rule in the Duke of Brunswick’s case – the decision in Times Newspapers Ltd v United Kingdom’ in European Human Rights Law Review 3, 327-339

[147] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York p.9

[148] British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

[149] Barendt & Hitchens (2000) Media Law: Cases and Materials Pearson Longman: worldwide

[150] S.5

[151] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.564

[152] Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide p.375

[153] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.74

[154] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[155] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[156] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 per Lord Nicholls at p.205

[157] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

[158] Ibid at para 57 per Lord Hoffman

[159] R. Clayton and H. Tomlinson, The Law of Human Rights (Oxford University Press, 2000), para.15.249.

[160] Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[161] [2006] UKHL 44

[162] [2010] EWCA Civ 804

[163] Ibid at paras 67 – 76

[164] Joyce, Andrew (2006) ‘The Reynolds Public Interest Defence’ The IT Law Community accessed on 1st April 2011 and available from: http://www.scl.org/site.aspx?i=ed920

[165] Horrocks v Lowe [1975] AC 135 at 150

[166] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.110

[167] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York

[168] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.72

[169] R. (On the application of Telegraph Group plc) vs Sherwood [2001] 1 W.L.R. 1983 per Longmore LJ at p.1986

[170] Human Rights Act 1998 s.6

[171] Bentham, Martin (2011) ‘Ken Clarke unveils libel law reform to strengthen free speech’ in London Evening Standard online edition accessed on 1st April 2011 and available from: http://www.thisislondon.co.uk/standard/article-23932236-ken-clarke-unveils-libel-law-reform-to-strengthen-free-speech.do

[172] Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) Retrieved 2011.4.1 and available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats

[173] [2009] EWHC 1101 (QB)

[174] Jeynes v News Magazines Ltd [2008] EWCA Civ 130

[175] Lait v Evening Standard Ltd [2010] EWHC 3239 (QB)

[176] Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

[177] Against either British publishers or newspapers directly.

[178] Includes both reported and unreported cases.

[179] It is perhaps too early to analyse the impact Mr.Justice Tugendhat has had as the top libel judge given that he was appointed on 1st October 2010.

[180] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York p.190

[181] See Appendix A for a full breakdown of all the cases within this period.

[182] Jeynes v News Magazines Ltd [2008] EWCA Civ 130, Curran v Scottish Daily Record and Sunday Mail Ltd

[2010] CSOH 44, Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) [2010] EWHC 2819 (QB), Lait v Evening Standard Ltd [2010] EWHC 3239 (QB) Ewing v News International Ltd [2008] EWHC 1390 (QB)

[183] http://www.associatednewspapers.com/ accessed on 5th April 2011

[184] http://www.newsinternational.co.uk/ accessed on 5th April 2011

[185] http://www.express.co.uk/home accessed on 5th April 2011[under the ownership of Northern & Shell]

[186] http://www.gmgplc.co.uk/ accessed on 7th April 2011

[187] http://www.newsinternational.co.uk/ accessed on 8th April 2011

[188] http://www.inmplc.com/ accessed on 5th April 2011

[189] http://www.telegraph.co.uk/ accessed on 4th April 2011

[190] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York .64

[191] Ibid

[192] Financial Times Ltd v United Kingdom (821/03) (2010) 50 E.H.R.R. 46

[193] Franklin, Bob (1999) Social Policy, the Media and Misrepresentation Routledge: London and New York

[194] Osbourne v Express Newspapers Unreported 5th June 2008

[195] Lucas v Express Newspapers unreported 25th May 2010

[196] George v Express Newspapers unreported 19th July 2010

[197] Shaffer v Associated Newspapers Ltd Unreported 13th February 2008, Osbourne v Express Newspapers Unreported 5th June 2008 , Farage v Times Newspapers unreported 11th June 2008, Murat v Associated Newspapers Ltd unreported 16th July 2008, Tesco Stores Ltd v Guardian News &Media Ltd [2009] E.M.L.R. 5; Osbourne v News Group Newspapers Ltd unreported 12th January 2009, Marshall v Express Newspapers unreported 29th January 2009, Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009, Hudson v Associated Newspapers Ltd unreported 4th March 2009, Jones v Telegraph Media Group Ltd unreported 23rd June 2009, Zuma v Guardian News & Media Ltd unreported 30th July 2009, Gascoigne v News Group Newspapers Ltd unreported 7th May 2010 Margolis v Independent News & Media Ltd unreported 21st May 2010, Lucas v Express Newspapers unreported 25th May 2010, George v Express Newspapers unreported 19th July 2010, Hewitt v Express Newspapers unreported 22nd July 2010

[198] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 100

[199] Ibid p.76

[200] Ashley Cole is a recent example of this in relation to his extra-marital infidelities: see Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

[201] Berezovky v Forbe Inc (No.2) [2001] EMLR 48, CA

[202] Draft Defamation Bill clause: 1 “Libel is currently actionable without proof of actual damage” accessed on 14th March 2011 and available from: http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf

[203] Lucas v Express Newspapers unreported 25th May 2010

[204] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 99

[205] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), Murray v Express Newspapers Plc [2008] EWCA Civ 446, Times Newspapers Ltd v United Kingdom (3002/03) [2009] E.M.L.R. 14, Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22, Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21, In re Guardian News and Media Ltd and others [2010] 2 A.C. 697

[206] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-89

[207] [2008] EWHC 687 (QB)

[208] “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS”

[209] See chapter 2

[210] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.681

[211] Douglas v Hello! Ltd (No.1) [2001] Q.B. 967 at para 137

[212] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.681

[213] Ibid at p.737

[214] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-79

[215] [2008] EWCA Civ 446

[216] Murray v Express Newspapers Plc [2008] EWCA analysis of case

[217] Ibid para 57 per Sir Anthony Clarke MR

[218] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.86

[219] (3002/03) [2009] E.M.L.R. 14

[220] Mora, David Paul (2009) ‘The compatibility with art.10 ECHR of the continued publication of a libel on the Internet: Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom’ in Entertainment Law Review vol. 20(6) pp 226-228 at 226

[221] Times Newspapers Ltd v United Kingdom (3002/03) [2009] E.M.L.R. 14 at p.259

[222] Mora, David Paul (2009) ‘The compatibility with art.10 ECHR of the continued publication of a libel on the Internet: Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom’ in Entertainment Law Review vol. 20(6) pp 226-228 at 228

[223] [2009] E.M.L.R. 22

[224] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22 at p.412 per Eady J.

[225] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[226] (821/03) [2010] E.M.L.R. 21

[227] Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21 at p.1172

[228] (3002/03) [2009] E.M.L.R. 14

[229] [2010] 2 A.C. 697

[230] In re Guardian News and Media Ltd and others [2010] 2 A.C. 697 para 43 per Lord Rodger

[231] Ibid para 75 per Lord Rodger

[232] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-79

[233] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[234] In re Guardian News and Media Ltd and others [2010] 2 A.C. 697 para 78

[235] (821/03) [2010] E.M.L.R. 21

[236] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[237] As of October 2010 the mantle has been taken by Tugendhat J see Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

[238] Mosley v News Group Newspapers Ltd [2008] EWHC 687

[239] British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

[240] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[241] Shaffer v Associated Newspapers Ltd Unreported 13 February 2008, Smith v World Entertainment News Network Ltd unreported 22nd February 2008, Osbourne v Express Newspapers unreported 5th June 2008 [cont next page]

Farage v Times Newspapers unreported 11th June 2008, Murat v Associated Newspapers Ltd unreported 16th July 2008, McGill v 365 Media Group Plc unreported 31st July 2008, Mottley v IPC Media Ltd unreported 7th October 2008

Murat (Robert) v British Sky Broadcasting Ltd unreported 14th November 2008, Osbourne v News Group Newspapers Ltd unreported 15th January 2009, Marshall v Express Newspapers unreported 29th January 2009

Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009, Zola v BBC unreported 12th May 2009

Jones v Telegraph Media Group Ltd unreported 23rd June 2009, Bari v BBC unreported 16th July 2009

Zuma v Guardian News & Media Ltd unreported 30th July 2009, Andre v MGN Ltd unreported 31st July 2009

Buxton v MGN Ltd unreported 10th December 2009, Abramovich v Gruppo Editoriale L’Espresso SPA unreported 18th March 2010, George v MGN Ltd unreported 14th May 2010, Margolis v Independent News & Media Ltd unreported 21st May 2010, Hewitt v Express Newspapers unreported 22nd July 2010

[242] [2009] E.M.L.R. 22

[243] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[244] Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB)

[245] Martin v Channel Four Television Corp [2009] EWHC 2788 (QB);

[246] Williams v MGN Ltd [2009] EWHC 3150 (QB)

[247] Bowman v MGN Ltd [2010] EWHC 895 (QB)

[248] British Chiropractic Association v Singh [2011] 1 W.L.R. 133

[249] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[250] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44 per Lord Hoffman at para 57 ; chapter 3A

[251] British Chiropractic Association v Singh [2011] 1 W.L.R. 133 para 23

[252] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 5

[253] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 568

[254] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) pp 199-208

[255] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 575

[256] (Act no 70-643 of 17 July 1970)

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order” retrieved on 3rd April 2011 and available from [English translation of the Civil Code of France]: http://195.83.177.9/upl/pdf/code_22.pdf

[257] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 202

[258] “la sphere secrete ou l’individu aura le droit d’etre laisse tranquille”

[259] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 pp 575

[260] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 204

[261] “ARTICLE 226-1 (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

[262] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 203

[263] ARTICLE 226-2 retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

[264] Ibid ARTICLE 226-8

[265] Ibid ARTICLE 227-24

[266] Ibid ARTICLE 227-28

[267] Ibid ARTICLE 412-8

[268] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 pp 568 – 582

[269] Bigot, Dalloz (2002) quoted from Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[270] Ibid

[271] Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006.

[272] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[272] Ibid

[273] Ibid p.578

[274] A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

[275] Ibid p.578

[276] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[277] Von Hannover v Germany [2004] E.M.L.R. 21

[278] BBC News 21st March 2011 ‘ France fines Google over Street View Data Blunder’ retrieved on 2nd April 2011 and accessed at: http://www.bbc.co.uk/news/technology-12809076

[279] Cousin & Sordet (2009) ‘France: Radical Thoughts on how to Enhance Right to Privacy’ in Privacy Laws & Business International Newsletter vol.101 pp 6-7

[280] Berlins, Marcel (2008) ‘Publicity-mad Sarkozy leads fight for privacy’ in Guardian online accessed 9th April 2011 and available from: http://www.guardian.co.uk/world/2008/feb/04/france.comment

[281] See chapter 2

[282] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 2

[283] Murray v Express Newspapers Plc [2008] EWCA; Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[284] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[285] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22

[286] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[287] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[288] McVicar v United Kingdom (46311/99) (2002) 35 E.H.R.R. 22 and Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[289] Merrills, J.G (1993) The Development of International Law by the European Court of Human Rights Manchester Univerity Press: Manchester at p.185

[290] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 2

[291] Plunkett, John (2011) ‘Government unveils libel law reforms’ from Guardian online retrieved 28th March 2011 and available from: http://www.guardian.co.uk/media/2011/mar/15/libel-law-reforms

[292] Clause 8 of the Draft Defamation Bill

[293] Clause 1 Ibid

[294] Clause 7 Ibid

[295] Clause 6 Ibid

[296] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[297] Young, Hugo (2003) Supping with the Devils Atlantic Books: London

[298] Rozenberg, Joshua (2011) ‘The Libel Reforms are a Step in the Right Direction: But do they go far enough?’ Guardian online retrieved on 1st April 2011 and available from: http://www.guardian.co.uk/law/2011/mar/15/libel-reforms-step-campaigners-satisfied

[299] Ibid

[300] Phillipson, Gavin (2009) ‘Max Mosley Goes to Strasbourg: Article 8, claimant notification and interim injunctions’

[301] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

[302] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[303] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.19

[304] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.19

[305] S.12(3)

[306] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.87

[307] A.V.Dicey (1888) An Introduction to the Study of the Law of the Constitution (10th ed) Macmillan p246

[308] Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[309] Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB) per Justice Eady at para 69

[310] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.682

[311] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.76

[312] Knightley, Phillip (1997) ‘The thalidomide Scandal: Where we went Wrong’ in Pilger, John (ed) Tell Me No Lies Jonathan Cape: London

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