I'll start updating this post with anybody cases or changes...
Independent and Evening Standard lose appeal over libel case https://www.theguardian.com/media/2019/jun/12/independent-and-evening-standard-lose-appeal-over-libel-case?CMP=Share_AndroidApp_Blogger
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| Read Guardian article here. |
"Whatcha gonna do, brother? Whatcha gonna do when Hulkamania runs wild on you?"
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).
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.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.)
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)
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.
This was on the European Court of Human Rights' May 2011 ruling (written by legal expert Joshua Rozenberg)."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.
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.
'Hyper-injunction' stops you talking to MP
Voters are being barred from speaking to their MPs under a new generation of gagging orders known as hyper-injunctions, the House of Commons has been told.
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| This month, John Hemming used parliamentary privilege to disclose that Sir Fred Goodwin, above, had taken out a super-injunction |
Politicians criticised the injunctions as an "affront to democracy" after John Hemming, a Liberal Democrat MP, disclosed details of one on the floor of the Commons last week.
His comments are protected by parliamentary privilege, which means he cannot face court proceedings for revealing the injunction's existence. This month, Mr Hemming also used parliamentary privilege to disclose that Sir Fred Goodwin, the former chief executive of the Royal Bank of Scotland, had taken out a super-injunction.The hyper-injunction goes a step further. Mr Hemming told the Commons that the order, which was obtained at the High Court in 2006, prevents an individual from saying that paint used in water tanks on passenger ships could break down and release potentially toxic chemicals.It specifically bars the person from discussing the case with "members of Parliament, journalists and lawyers", along with the US coastguard and any ship owners, and also forbids any speculation linking chemicals in the paint with the illness of any individuals.It says: "The defendant must not communicate to the third parties any speculation that the illness of any individual (including without limitation the collapse of H) was, has been or will be brought out by the chemical composition or the chemicals present in the coating of the potable water tanks."
According to Mr Hemming, the individual was given a two-week suspended sentence after talking to a lawyer about whether he would take up the case on a no-win, no-fee basis. Mr Hemming said: "What we have, therefore, is passenger vessels trundling around the world with potentially toxic substances being released into the tanks. One of those who worked on the tanks collapsed as a result.
"From a health and safety point of view, we want to think that the water we are drinking is safe and that it will not cause health problems. The difficulty in this case is that we do not know.
"What we do know is that corporations used the massive force of the law to gag an individual and truss him up so much that he could not really challenge the process." There are growing concerns that super-injunctions are being used by corporations and wealthy individuals to suppress information.
Niri Shan, the head of media law at the legal firm Taylor Wessing, said: "I have never seen a super-injunction that bans someone from speaking to an MP. One of the fundamental rights that you have as a citizen is that you should be able to speak to your MP, particularly if it relates to matters of public concern.
"This is the development of privacy law through the courts as opposed to Parliament legislating on it. It is deeply concerning, and undermines freedom of speech." In 2009 Paul Farrelly, a Labour MP, took similar steps to Mr Hemming to disclose the existence of a super-injunction obtained by the oil firm Trafigura, which banned reporting of toxic waste being dumped in the Ivory Coast.
There have been several super-injunctions obtained by well known figures in recent months.
Last month, a sportsman known to have cheated on his partner with two women won an appeal to remain anonymous when the judge said the fact he had conducted a previous affair would make it easier for people to work out the nature of the allegations.
