WEB Right to be Forgotten attacked by BBC

Julian Powles makes a difficult argument well - defending the "right to be forgotten" created by an EU ruling against Google in Spain that gives EU citizens the right to ask Google (and other search engines) to effectively hide hits/results that highlight from their past they do not want seen.

He points out that this includes people whose names bring up crimes ... that they were acquitted of, but you don't get that info in the top results, just the more sensational coverage of the accusations.

There are clashing principles here, both enshrined in the European Convention on Human Rights:

• freedom of speech
• right to privacy; a private life

Why the BBC is wrong to republish ‘right to be forgotten’ links.

EU Article 8 Right to Privacy + online issues

Its not just the press that raises issues around the right to privacy, enshrined in European law:

Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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. [source: Wiki]

ISPs and sites such as Google face huge pressures to store and pass on user data to governments and law enforcement agencies, and the UK is no exception, notwithstanding our supposedly high standards of democratic freedoms. Our governments, politicians and media routinely condemn 'authoritarian' regimes for snooping on their citizens and restricting freedom of expression, but how well does the UK's reputation stand up when scrutinised?

There are many examples of powers given to police and politicians to access our individual online footprints, including on social media and email, and no likelihood of anything but ongoing pressure (not least from the right-wing press, outraged as they are by any attempt to regulate the press as an attack on democratic values) to increase this. We're seeing this in April 2013 with the Conservative Home Secretary Theresa May attempting to pass new legislation granting government and police the right to access any part of 'suspects' online history, requiring the creation of a database of simply colossal scale:

May has fought hard for the legislation, designed to fill a growing gap in the ability of the police and security services to access records of the web and social media activity of serious criminals and terrorists.
The deputy prime minister sent the original legislation – the draft communications data bill – back to the drawing board after insisting it was first scrutinised by a committee MPs and peers.
The committee's withering verdict described it as "overkill", complained it "trampled on the privacy of British citizens" and said its cost estimates were "fanciful and misleading". They did however agree that new legislation was needed to plug the gap caused by rapid changes in technology.
The revised proposals tabled by May offered significant concessions but did not include movement on access to blogs or everyone's history of their use of websites or social media, or on requiring British phone and internet companies to intercept data from overseas providers. They proved insufficient to persuade Clegg to sign up to them.
Both parties campaigned on general election promises to roll back the surveillance state ... [source: Guardian]

I'll add links to previous posts on SOPA etc later.

Legal costs of libel means its for rich only?

Click on 'read more' and you'll find a stack of links with selected excerpts to further illustrate the analysis below. Main themes here: the 2011 libel reform proposals, now the 2012 Libel Reform Bill - a response to our laws/courts being seen to be used by corporations and the rich to bully newspapers into silence on issues that they didn't want reported. When Max Mosley won his breach of privacy case against NoTW, News International ran up £1m in costs defending itself. The social worker libelled by The Sun over the Baby P case 'won', but was left with a legal bill of £300k: do libel laws only work if you're rich? Also looks at difference between libel (written) + slander/defamation (visual/speech), and the issues raised by online material, plus 'superinjunctions', eg the Trafigura case (also John Terry, Ryan Giggs, Andrew Marr...).

Another quick eg on costs (24.5.12): Carina Trimingham sued the Mail for breaches of privacy and homophobic harassment over the 65 articles they published on her, many mockingly or irrelevantly citing her (lesbian/bisexual) sexuality. She lost, and is left with a £410k bill: thats the Mail's legal costs which she has been ordered to pay. CT had an affair with MP Chris Huhne.

I think we've well enough established how unsatisfactory the PCC is as a press regulator: it offers minimal protection from intrusion or inaccuracy, and remedies of dubious status should your complaint be upheld (although it does seem to undertake substantial work to resolve complaints by acting as a complainant/press go-between, so speeding things up).

When it comes to the alternative of using the law courts, there is a clear issue: cost.

Before looking at a case which shows how legal justice may be increasingly out of reach of all but the rich (thus a return to the way things were before the 1792 Fox's Libel Act (adding juries) and Libel Act of 1843 (creating a public interest defence?), bear in mind that this works both ways: the superinjunctions [see this blog + BBC] we've seen are an expression of the ability of the rich and powerful to silence our democratic press/media. Indeed, we even get 'libel tourism': the rich and powerful (not least corporations seeking to prevent negative coverage of their actions) from outside the UK using UK law courts to get court orders which legally restrict reporting on them not just in the UK but beyond too. Libel laws are not beyond question: yes, they theoretically offer some protection from media intrusion and distortion, BUT corporations can take out cases knowing that many papers will simply agree to their demands (often, in effect, to cease publishing the truth) to avoid the huge legal expenses of a court case. At a time when most newspapers have been savagely reducing their workforces, even a successful legal defence of a libel complaint can cost the equivalent of several full-time journalists!

Here then is a case (as reported by Roy Greenslade) of a social worker who won her libel case against The Sun - and has been left with a £300k bill, after the damages award has been factored in (added emphasis is mine).

Social worker Sylvia Henry won a libel action against The Sun, which made false allegations about her over the Baby P case, but she now faces the possibility of being almost £300,000 out of pocket.
That's the amount of shortfall in the legal costs she is able to claim from the paper's publisher, News Group Newspapers (NGN).
The senior costs judge, Master Hurst, ruled that lawyers acting for Henry could not claim any more than the previous court-approved amount from NGN, a division of News International.
He made the ruling despite the fact that Henry would have a "very good case" to justify the extra costs in a detailed assessment.
In June last year, The Sun agreed to pay Henry compensation and apologised unreservedly to her for publishing false allegations about her role in the Baby P tragedy.
Henry, a social worker in the London borough of Haringey for 23 years, was accused by The Sun of being "grossly negligent" in her handling of the case.
Baby P, Peter Connelly, was a 17-month old boy who died after suffering more than 50 injuries over an eight-month period. His mother, her boyfriend and another relative were convicted of causing or allowing the death of the child.
But Haringey children's services came in for criticism for failing to protect Peter, and The Sun ran a campaign alleging that the department was partly to blame for his death.

As part of that campaign, published over four months from November 2008, Henry was accused by the paper of being "grossly negligent" in her handling of Baby P's case.

Her solicitor, Daniel Taylor, told the high court that the newspaper alleged she had shown no remorse for these failings and was "shameless and had ducked responsibility for Peter's death".

The false allegations were said to have been published in about 80 articles.

Ben Beabey, the solicitor for NGN, told the court in that hearing: "The Sun fully accepts that the claimant played no part and bears no responsibility for the circumstances surrounding the death of Peter Connelly and that she did her best for him. The Sun apologises to Ms Henry."
Following that hearing, the London legal firm that acted for Henry, Taylor Hampton, have been seeking costs from NGN.
It exceeded the previous agreed amounts, it said, because of the way the defence was conducted.
Master Hurst said NGN has "mounted a vigorous and lengthy defence which was amended four times. They served 10 lists of documents.
"I do not suggest that the defendant was not entitled to act as it did, but it cannot now try to pass off this constantly changing scenario as being no more than a minor inconvenience to the claimant."
But the costs judge said that Henry's lawyers had "largely ignored the provisions of the practice direction" in relation to the budgeting of costs.
He suggested that Henry's lawyers should have raised the matter of the extra costs earlier in the litigation and he therefore ruled in NGN's favour.
Daniel Taylor said they were "naturally disappointed with the decision" but thought it "very significant" that the judge gave permission for an appeal without any request for one.
The case will be seen as significant because Master Hurst's judgment is the first such ruling in relation to a defamation costs budgeting pilot following reforms proposed by Lord Justice Jackson.
Sources: Legal Futures (1) and (2)

Notice there's no mention of the PCC here. Just as importantly, if you were on a typical social worker wage of <£20k a year, and read this, what would YOU do if YOUR name was attacked in this way? How could you get any justice if you cannot afford such a bill? (Again, do note that this logic also works in reverse: newspapers, especially local/regional, frequently cave in to frankly cheeky complaints from corporations rather than face the crippling costs of defending the principle of freedom of speech; of freedom to publish in a democracy.)

Lets define a couple of terms here:

In common law jurisdictions, slander refers to a malicious, false,^{[2][not specific enough to verify]} and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images.^[3] Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. "Unlike [with] libel, truth is not a defense for invasion of privacy."^{[4][not verified in body]}

The common law origins of defamation lie in the torts of "slander" (harmful statement in a transitory form, especially speech), each of which gives a common law right of action.

"Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication.^[8] The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.

Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures.^[9] The law of libel originated in the 17th century in England. With the growth of publication came the growth of libel and development of the tort of libel.

I've left all the Wiki-notes in to highlight the curious lack of precision in such a major concept, but basically:
SLANDER/DEFAMATION = malicious or false SPOKEN statements
LIBEL = malicious or false WRITTEN statements (or still images)

THE MOSLEY CASE
In the case of Max Mosley [see this article + Gdn section], whose S&M/bondage practices were splashed across newspapers by NoTW, he has successfully sued for breach of privacy under the European Convention on Human Rights BUT lost his libel case. See http://en.wikipedia.org/wiki/Mosley_v_News_Group_Newspapers. Mosley's victory was hollow - he was awarded only £60k damages!!! - but then again the legal costs of News International topped £1m.
The Mosley case (the story ran in 2008, his law suits were swift with early judgements in 2009 but more cases potentially to be launched; Mosley continues to campaign for much tighter restrictions on the media) is a key one for 'wider social issues', not least the conflicting right to privacy and right to free expression. Mosley had asked that the courts enforce a right for anyone subject of a newspaper article to be informed prior to publication - but, having been given the rather small £60k damages for breach of his right to privacy under article 8 of the European Convention on Human Rights (ECHR), the judge dismissed this idea as in conflict with another ECHR article, 10, on freedom of expression:

"The government's judgment is that the imposition of such a positive duty would be likely to have - and would undoubtedly risk - a serious chilling effect on the freedom of the media and the freedom of the public to express themselves," Eadie told the court.

... For the Guardian, Lord Lester QC argued that the legal duty sought by Mosley was not required by article 8 of the human rights convention - the right to privacy - and was inconsistent with the right to freedom of expression in article 10. The availability of injunctions and the right to sue for damages after the event amounted to an effective domestic remedy, he claimed.

"In practice," said Lester, "injunctive relief is usually available and will in itself be an effective remedy." These arguments have found favour with the court today.

What seems to have tipped the balance in favour of the media was the court's conclusion that any requirement to pre-notify an individual would have been subject to a public interest exception. A newspaper could opt not to notify the person concerned if it believed it could defend its decision subsequently on the basis of the public interest, the court said.

A reasonable belief in a public-interest defence would have to be sufficient to justify non-notification, the court said, even if it was found later that no such public interest arose. Otherwise, there would be a chilling effect on freedom of expression.

This was on the European Court of Human Rights' May 2011 ruling (written by legal expert Joshua Rozenberg).
See all Roy Greenslade articles linked to the Mosley case: http://www.guardian.co.uk/media/greenslade+mosley
Michael White: 'This case exemplified the fact that - with some honourable exceptions - serious investigative journalism is in retreat':

Newspapers are entitled to make mistakes in a free society - and make amends when they do, which many find harder. But this one, like the McCann and Robert Murat settlements in recent weeks, is hard to justify on the media side. So our side may have been weakened for no good reason.
But things will be OK as long as a robust public interest defence remains effective, the so-called Reynolds defence mounted by the Sunday Times against a libel suit from the former Irish Taoiseach, a case where the paper was able to show it had given Reynolds time to reply before publication.
What the NoW's dirty tale of S&M sex sessions failed to show was legitimate public interest as opposed to lots of the public being interested in the Formula 1's chief's strange private obsession.
...
The sad truth is that serious investigative journalism - tabloid, broadsheet and radio/TV kinds - are all in retreat with honourable exceptions, including those which Guardian readers read from time to time.
Why? Because they're difficult and expensive, they run up against powerful interests with hot-shot legal teams. Much easier and cheaper to print more rubbish about celebrities.
A pity poorer people than Max Mosley who get defamed can't get redress as he did.

Some more brief points/resources:

Several excerpts below on the March 2011 announcement of proposals to reform libel law; this led to a Libel Reform Bill being included in the May 2012 Queen's Speech (when proposed new laws to be voted on by Parliament are announced). There also sections on superinjunctions and Tweed's 2012 book.

PCC, PressBof's secrecy and defence of self-regulation

http://fullrunner.com/05/2011/magazines/defenders-of-self-regulation-rusbridger-v-dacre-black/ 12.6.11 Peter Kirwan

Self-regulation: Rusbridger v. Dacre/Black

By Peter Kirwan | Published: Thursday 12 May 2011

The first thing you’ll notice when you read the annual report of the Press Board of Finance is that it looks like a restaurant menu, from somewhere like the Savoy Grill in pre-Gordon Ramsay days.
The second notable thing is the anachronistic language, which reads like a cross between a press statement from Buckingham Palace and a letter to shareholders written by the CEO of a British company in the 1950s.
Like the contents of a time capsule, the Press Board’s annual report is shockingly odd, alarmingly antique. It’s a reminder that the modernizing corporatism of the Blair-Brown years didn’t quite reach into every nook and cranny of public life.
Little known and even less well understood, The Press Board of Finance (or PressBof as it styles itself) is the shadowy club of newspaper and magazine executives that finances the Press Complaints Commission by levying fees on publishers.
But there’s more to PressBof than the £2m of membership fees it collects annually. This, after all, is the cabal — self-regulating and apparently self-perpetuating — that writes the rules enforced by the Press Complaints Commission.

PCC rulings: privacy, racism, history, superinjunctions

I've collated articles on certain themes/topics/cases with these; if time permits I'll add summaries and commentary (and will be updating/adding to these as I go)
PCC Recent Rulings
Giggs Superinjunctions and PCC
Green Slade Privacy and the Media
Old Pcc Rulings
PCC - Racism Cases

PCC and OfCom to be reviewed

http://www.guardian.co.uk/media/2011/jun/09/jeremy-hunt-ken-clarke-privacy-committee
Jeremy Hunt and Ken Clarke set out remit for privacy committee

MPs and peers given broad remit to recommend legal changes or guidance to judges, as well as look at role of Twitter

• • Share 
  • 
  • 

• Dan Sabbagh
• guardian.co.uk, Thursday 9 June 2011 12.45 BST
• Article history

The Commons privacy committee was set up at the height of the furore over Ryan Giggs's alleged affair. Photograph: Michael Regan/Getty Images

The culture secretary, Jeremy Hunt, and the justice secretary, Ken Clarke, have asked parliament to examine whether the law and the courts have established an appropriate balance between the rights to privacy and freedom of expression in the wake of the celebrity injunction crisis.
The two ministers have agreed on terms of reference for the committee of MPs and peers – and want parliament to see how "issues relating to determining the balance between privacy and freedom of expression" could "best be decided".
That gives the committee a broad remit to make recommendations as to whether the law could be altered or whether new guidance could be given to judges to change the way they have been interpreting the Human Rights Act which incorporates the European Convention on Human Rights into UK law.
David Cameron asked that the parliamentary committee be set up last month, at the height of the Ryan Giggs furore – in which the footballer tried and ultimately failed to prevent himself being publicly linked to Imogen Thomas, the former Big Brother contestant with whom he allegedly had an extra-marital relationship.
Parliament will also examine the role of Twitter – which was used widely to circulate Giggs's name in defiance of court orders – and whether it is appropriate for MPs to use parliamentary privilege to name individuals such as the Manchester United footballer to help get their names into the public domain.
The Press Complaints Commission will also come under scrutiny, as regards its role in "privacy matters", to see whether it has been at all effective in this area. Baroness Buscombe, who chairs the PCC, has claimed it would have stopped the Sun from publishing the original Giggs story without the need to go to law.
The exact membership of the committee is currently being hammered out by the whips' offices of the three main parties – and the body is expected to begin its inquiry later this month. Those expecting to become members have indicated they expect to call a wide range of witnesses including Paul Dacre and other newspaper editors, executives from Twitter and Google, as well as senior judges.

The full terms of reference

To consider the operation of the current law in relation to privacy and the use of anonymity injunctions and superinjunctions and to advise the government on any improvements that should be made.
In particular, to consider:
• How the current law, both statutory and common, has operated in practice.
• How issues relating to determining the balance between privacy and freedom of expression, including particularly determining whether there is a public interest in material concerning peoples private and family life, could best be decided.
• Issues relating to the enforcement of anonymity injunctions and superinjunctions, including in relation to publication on the internet, parliamentary privilege and the rule of law.
• The role of the press and issues relating to press complaints and self-regulation in the context of privacy matters, including the role of the Press Complaints Commission and Ofcom.