2011 Media Law Round-Up
This year has been an extraordinary one for media lawyers, when the balance between privacy rights and freedom of expression has swung wildly from one side to the other. First the furore over so-called “super-injunctions”, when celebrities were vilified for exercising their privacy rights. The sovereignty of parliament and the courts clashed as public figures who had obtained privacy injunctions were named and shamed by parliamentarians protected by the cloak of privilege. Twitter users named celebrities who had “gagging” orders, leading the Lord Chief Justice Lord Judge to warn that modern technology was “out of control” and the Culture Secretary Jeremy Hunt to say the situation was “bordering on farce”. The Attorney General warned that people who use Twitter to breach privacy injunctions could face legal action for contempt of court.
But then the phone-hacking scandal turned public opinion on its head. No-one said any more that privacy did not matter or that freedom of expression should be an unfettered right. There was a line that had been crossed. The Murdoch empire appeared to be crumbling when the News of the World published its last edition in July. The Leveson Inquiry was set up and its remit extends far beyond phone-hacking; the whole of Fleet Street and Wapping is now under scrutiny. Meanwhile, along the corridor from the parliamentary committees focussed on privacy and phone-hacking, legislators are working on reforms to the law of defamation and the funding of civil justice. There has never been a more challenging or interesting time to be a media lawyer, or, indeed, a journalist.
The year kicked off with a partial win for Mirror Group Newspapers in the European Court of Human Rights. Naomi Campbell had long since won her claim for breach of privacy against MGN and was awarded her costs – but she was represented on a “no win, no fee” agreement or CFA. The ECHR found that the requirement that an unsuccessful defendant should pay a success fee on the claimant’s costs constituted an interference with the paper’s Article 10 rights to freedom of expression. The ruling added fuel to the campaign to abolish the recoverability of success fees in media CFA cases.
The Court of Appeal Judgment in the case of JIH v Newsgroup Newspapers set the trend for privacy injunctions to become the subject of intense scrutiny in 2011. The Court of Appeal granted anonymity to well-known sportsman JIH, finding that, although an order for anonymity was a derogation from the principle of open justice, the public interest was better served by the media being able to report on the detail of the case, which it could not do if the claimant was named.
Former private investigator Glenn Mulcaire was ordered by Vos J in the phone-hacking cases brought by Andy Gray and Steve Coogan to reveal who ordered him to hack phones.
The Justice Secretary Kenneth Clarke unveiled a draft Defamation Bill to reform the law of defamation in England and Wales. The aims of the draft Bill were said to be the introduction of a new “public interest” defence; (to replace the common law Reynolds defence), a requirement for claimants to demonstrate “substantial harm” before they can sue, reducing so called “libel tourism” and preventing repeat claims for libel being brought every time a publication is accessed on the internet.
The High Court ordered that various phone-hacking claims against Newsgroup Newspapers Limited and Glenn Mulcaire would proceed by way of a trial “test cases”.
Andrew Marr revealed he had taken out a privacy injunction in 2008.
The European Court of Human Rights rejected Max Mosley’s application for a ruling that, in order to give effect to Article 8, the media should be required to notify a subject before the publication of an article disclosing private information. Mr Mosley had won his claim against the News of the World in 2008 and was awarded £60,000 in damages. He argued in the ECHR that privacy, once lost could not be regained. The ECHR took the view that a mandatory requirement of notification was a step too far.
Lord Stoneham on behalf of Lord Oakeshott asked a question in Parliament in which he identified Sir Fred Goodwin as the beneficiary of an anonymous injunction. The revelation led Mr Justice Tugendhat to vary the injunction so as to name Sir Fred but not the lady with whom he had a relationship.
In April, widespread speculation on Twitter and a report in a Scottish newspaper led to the identification of a “married footballer” who had been granted an injunction covering England and Wales. The English court refused to vary the terms of the injunction following the coverage so as to name the claimant, saying the court should not buckle every time one of its orders meets widespread disobedience or defiance, and that if the claimant were to be named he would be engulfed in a “cruel and destructive media frenzy”. The whole story entered the realms of farce when even the Prime Minister made clear that he and everyone else knew who the player was. Meanwhile, in the House of Commons Liberal Democrat MP John Hemming named the footballer leading to a rebuke from the Speaker, but by then it was of course far too late.
A committee chaired by Master of the Rolls Lord Neuberger published its report relating to super-injunctions, anonymity and open justice. The report gives mainly procedural guidance about the way in which the court should deal with applications for injunctions. The committee noted that the number of “super-injunctions” was in fact very small. Carter-Ruck Partner Alasdair Pepper was a member of Lord Neuberger’s committee.
This month saw the outcry against so-called “super injunctions” reach its peak.
The Court of Appeal led by Lord Neuberger declined to grant an injunction to Christopher Hutcheson, the father-in-law of Gordon Ramsey so as to restrain publication of the fact that he has for many years kept a secret second family.
The Legal Aid, Sentencing and Punishment of Offenders Bill was published, prompting a campaign led by the legal profession opposing the proposed cuts in legal aid and prompting concerns about the proposals to abolish the recoverability of success fees in CFA cases.
Sienna Miller and Andy Gray accepted damages in settlement of their phone-hacking claims against the News of the World.
“Super-Injunctions” ceased to be news as phone-hacking hijacked the headlines.
At the beginning of the month The Guardian reported that the News of the World hacked the phone of missing school-girl Milly Dowler and deleted her voice-mail messages giving false hope to her parents that she might still be alive. Three days later James Murdoch announced the News of the World would close. David Cameron announced that there would be a public inquiry into the scandal and Rupert Murdoch was forced to withdraw his bid for BSkyB. Rupert Murdoch and his son James were grilled by the Commons Culture, Media and Sport Select Committee led by Tom Watson MP about their knowledge of phone-hacking at the News of the World. For many, the highlight was Wendi Murdoch’s defence of her husband after he was attacked with a custard pie, a moment which turned the accused into a victim. James Murdoch was later accused of misleading the Committee over the extent of his knowledge about the now notorious “for Neville email”.
Commissioner of the Met Sir Paul Stephenson resigned over criticism for hiring former News of the World executive Neil Wallis.
A quiet month in legal terms but the riots disrupt the summer holiday plans of politicians.
Footballer Rio Ferdinand lost his privacy case against the Mirror Group over the publication of a “kiss and tell” story about an affair; the court was influenced by the fact that Ferdinand in his autobiography had declared himself a reformed man who had given up his “cheating” past and by the fact that the revelations could be said to call into question his fitness to be England captain.
The report of the Joint Committee on the Draft Defamation Bill was published, accepting most of the proposals in the draft Bill and recommending that the defence of qualified privilege be extended to cover fair and accurate reports of academic and scientific conferences and peer- reviewed articles. A Bill is expected to follow in next year’s Queen’s Speech.
Written submissions were made to the Parliamentary Joint Committee on Privacy and Injunctions. This Committee of both Houses of Parliament is hearing oral evidence and is expected to report in February 2012, well before the conclusion of the Leveson Inquiry.
Lord Justice Leveson’s Inquiry into phone-hacking begins. The remit of the Inquiry extends to the culture, practices and ethics of the UK media. The Metropolitan police reveal that the number of victims of phone-hacking is estimated to be nearly 6,000.
James Murdoch appears again in front of the Culture Media and Sport Select Committee for a fresh round of questions about the extent of his knowledge of the hacking.
The Leveson Inquiry is told that Milly Dowler’s phone messages were in fact most likely to have been deleted automatically (contrary to the claims by the Guardian newspaper in July that the News of the World journalists had deleted them).
Happy New Year.