Tuesday, 3 December 2013

Deal Or No Deal: the Murdoch factor and our democratic deficit

Deal Or No Deal: the Murdoch factor and our democratic deficit | openDemocracy: "It was surprising that the astute lawyers inside News Corp - who were copied on so many of the Michel emails - did not warn him that he was in danger of undermining the validity of the quasi-judicial process, such that it might be open to judicial review if the outcome were favourable to News Corp. Smith warned Michel, immediately after Hunt was put in charge of the plurality review, against giving News Corp's opponents a chance to attack the fairness of the process." Account of the failed 2011 News-BSkyB merger 'via Blog this'

A Year after Leveson: Has British press cleaned up its act?

A Year after Leveson: Has British press cleaned up its act? – Des Freedman | Inforrm's Blog: "weaknesses of the Leveson Inquiry, which heard a vast amount of evidence about the extent of corporate lobbying and intimate relations between media executives and ministers but shied away from making any meaningful changes to media ownership rules that might make individual companies less powerful" - and even less likely in the run-up to the 2015 General Election! 'via Blog this'

Putitstin v Ukraine: ECtHR recognises claims for defamation of the dead

Case Law, Strasbourg, Putitstin v Ukraine: court recognises claims for defamation of the dead – Hugh Tomlinson QC | Inforrm's Blog: "this decision opens up the possibility that Article 8 may, in appropriate circumstances, permit a claim to be brought for “defamation of the dead”.  In this case the applicant’s father was not named and only a person with detailed knowledge of the history would have understood the article to be alleging that he had collaborated with the Gestapo.  It seems clear, however, that a serious defamatory allegation against a recently deceased person could constitute a breach of the family’s Article 8 rights. This is, potentially, a radical new development." 'via Blog this'

Tuesday, 19 November 2013

Report of the Committee on Super-Injunctions [2011] Super-Injunctions, Anonymised Injunctions and Open Justice

Lord Neuberger's super-powered legal inquiry into use and abuse of super-injunctions, which issued Practice Guidance and a Model Order, which were to be reviewed by the Master of the Rolls twelve months after they become operative in order to assess its efficacy and make any necessary revisions and thereafter reviewed regularly.'via Blog this'

Coogan v News Group Newspapers Ltd & Anor [2012] EWCA Civ 48

Coogan v News Group Newspapers Ltd & Anor [2012] EWCA Civ 48 (01 February 2012): Unusual case in which the hacker/Private Investigator for the NotW, Mulcaire, argued that he needed PSI (protection against self-incrimination) which would stop him answering Coogan's case. The judgment is given by Lord Neuberger MR, with the Lord Chief Justice agreeing (hugely prominent judges in this appeal):
"I would dismiss these appeals, as:
i) Much of the information on the voicemail messages of the claimants which have been intercepted by Mr Mulcaire is likely to have been 'commercial information or other intellectual property' within section 72(5);
ii) Although some of the information was not 'commercial information or other intellectual property', and, in Ms Phillips's case, the confidence may have been that of her clients, section 72 can be relied on against Mr Mulcaire in both cases;
iii) Para (a)(i) of the definition of 'related offence' in section 72(5) applies, and, while paras (a)(ii) and (b) do not, that does not assist Mr Mulcaire in resisting any aspect of the orders he is appealing;
iv) Section 72, as so interpreted, is not incompatible with the Convention, and in particular Article 6; so the orders requiring Mr Mulcaire to give the information ordered by Mann and Vos JJ were correct;
v) It would be inappropriate to impose any safeguards in favour of Mr Mulcaire over and above those contained in section 72(3);
vi) Vos J's order striking out references to PSI in Mr Mulcaire's Defence in the proceedings brought by Mr Coogan was correct." 'via Blog this'

Monday, 18 November 2013

Ofcom’s enforcement action against the “Jessica Pressley” service

Ofcom | Ofcom’s enforcement action against the “Jessica Pressley” service: "Ofcom has recently taken enforcement action against the “Jessica Pressley” video-on-demand service, using powers under Section 368K of the Communications Act for the first time.
The “Jessica Pressley” service, which provided free-to-view R18-equivalent pornographic content and did not have a robust paywall for its premium content, was referred to Ofcom by the Authority for Television on Demand (ATVOD), the co-regulator for video-on-demand (VOD) in the UK, in relation to breaches of ATVOD’s Rules.  ATVOD had jurisdiction over this particular site because its videos were “TV-like” and because it was based in the UK.
If a VOD service in UK jurisdiction continues to breach editorial content rules, attempts to secure compliance have failed, and if it is deemed appropriate and proportionate, Ofcom can direct the service provider to take remedial action or have its right to provide a VOD service suspended." 'via Blog this'

Independent Press Standards Organization – More of the Same?

The Independent Press Standards Organization – A Genuinely Independent Alternative to the PCC, or More of the Same? | LSE Media Policy Project: "a close analysis of each of the documents underpinning the IPSO scheme demonstrates that the claim that “all the key elements” will be delivered is false. An assessment by the Media Standards Trust, published today shows that, of the 38 Leveson recommendations applicable to a new self-regulatory body, IPSO satisfies 12, and fails 20 – more than half. For the remaining six, it is unclear on current information whether they will be satisfied.
The IPSO plans contain some significant improvements – internal complaints and compliance mechanisms within members, a whistleblowing hotline for journalists, and protection for journalists from disciplinary action if they refuse to breach the Code of Practice – but the recommendations it fails to comply with encompass many of the core components of Leveson’s vision for a new regulatory system. Of these, three stand out: independence, arbitration, and complaints" 'via Blog this'

Why video may kill self-regulation of the press

Why video may kill self-regulation of the press | Siobhain Butterworth | Law | theguardian.com: "Newspapers identified by Atvod as within the scope of the AVMS regulations that fail to notify and pay Atvod's fee (currently £2,900) could be fined up to £250,000 by Ofcom and face suspension of their video offerings.
Under the regulations, a website is an "on demand programme service" if its "principal purpose" is to offer content that is "television-like" and it competes for the same audience as TV – so there is plenty of room for argument about whether newspapers are covered at all.
The press is also likely to quarrel with Atvod's salami-slicing approach to newspaper websites in order to bring them within reach.
Ofcom and Atvod accept that where video goes with text, or is "integral and ancillary" to a website's broader offering, it may not be caught, but what is being suggested is that keeping those videos together in one place on a newspaper's website will lead to regulation.
The PCC, understandably, does not welcome Atvod's encroachment on its territory: "The remit of the PCC was expanded in 2007 to include audiovisual material appearing on newspaper and magazine websites," its director, Stephen Abell, said." 'via Blog this'

Monday, 11 November 2013

BT Sport's Tim Lovejoy is poster boy for game's lost soul

BT Sport's Tim Lovejoy is poster boy for game's lost soul - Telegraph: "It also risks obscuring the bigger picture, which is that the BT deal banishes regular, live top-class football from terrestrial television, perhaps for good. A deep-seated affinity with Adrian Chiles is not necessary to recognise the inherent virtue in making football available to as many people as possible. The poor – a demographic that modern football has little time for in any case – will have to make do with whatever scraps BT sees fit to dangle before them. Football’s new beginning also feels like an end.
There is a wider issue at stake here, and it is the piecemeal commodification of our culture: a process that did not begin with BT  Sport, but by no means ends with it either. " 'via Blog this'

Tuesday, 5 November 2013

TV Licensing - devices and online, the catch-up exception

TV Licensing - Technology - devices and online: "Exception: If you only watch catch-up services online, then you don’t need a licence. For example, you don’t need one to use BBC iPlayer, or ITV player, to catch up on programmes after they have been shown on TV." 'via Blog this'

Supporting the Leveson System, a reply to Helen Anthony – Hugh Tomlinson QC

Press regulation debate: Supporting the Leveson System, a reply to Helen Anthony – Hugh Tomlinson QC | Inforrm's Blog: "Helen Anthony mentions a number of legal arguments against the Leveson system.  These are not ones which, on analysis, are likely to succeed. First, she suggests that exemplary damages and “punitive costs orders” may breach Article 10 of the European Convention. I have previously dealt with the argument that exemplary damages  are a violation of free speech.  The short answer is that under the new statutory provision such damages could only be awarded in case of “deliberate or reckless disregard of rights of an outrageous nature” and where they are necessary properly to punish the defendant. This is proportionate and reflects the position in other countries which have strong free speech protection. Exemplary damages are already available in libel cases.  Awards are very rarely made and the position is not going to change under the new provisions. The main difference with the Crime and Courts Act is to provide immunity for members of an approved self-regulator.
The second argument is that the arbitration system is incompatible with Article 6 of the Convention because it denies access to justice.  Helen Anthony correctly points out that an arbitrator provides a “final and binding decision” (subject to an appeal on a point of law).  But under the Leveson system such a decision would be provided by an independent and impartial arbitrator, applying the law of libel or privacy in the same way that a judge does in court. So there is no basis for suggesting that it would be unlawful. The difference is that, in arbitration, the procedure can be streamlined to reduce time and costs.
In relation to the press, regulated publishers would agree to accept arbitration as a condition of joining the recognised self-regulator.  This is what happens in other areas where arbitration schemes are common-place.  For example, football clubs and footballers agree to be bound by FA rules – which include compulsory arbitration.  These have been found to be compatible with Article 6 by the Courts.  In relation to claimants they would still have a choice as to whether to use the arbitration system or go to court.  The only difference would be that, if they went to court, they would not usually be able to recover their costs.  This is a restriction on access to court but one which would not be found to be unlawful because it is proportionate and justified. It promotes the proper aim of providing swift and effective access to justice.  A properly designed and operated arbitration system would provide great benefits for both the press and claimants.'via Blog this'

Enterprise and Regulatory Reform Act 2013 s.96 - Leveson amendment

Enterprise and Regulatory Reform Act 2013: "96. Royal Charters: requirements for Parliamentary approval
Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body's Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met." 'via Blog this'

Revealed: the Rupert Murdoch tape - Channel 4 News

Revealed: the Rupert Murdoch tape - Channel 4 News: "Throughout the recording, which lasts about 45 minutes, the News Corp boss repeatedly accuses the police of incompetence - of being "unbelievably slow" he says at one point. At another point, he said of the police that he didn't really trust anything they said.
But if he is contemptuous of the police, he also shows remarkable disdain for the offence they're investigating. He belittles the corrupt payments issue. And for anyone convicted over it - the message is: he'll be there for them." 'via Blog this'

The Leveson Report: implementation - Commons Library Standard Note

The Leveson Report: implementation - Commons Library Standard Note - UK Parliament: "The compromise allows for one or more independent self-regulatory bodies for the press to be established. Any such body would be recognised and overseen by a “Recognition Panel”. The Panel will be established under Royal Charter and the Charter will be protected by statute from amendment. Reaction to the settlement has been mixed. Major newspaper publishers responded by presenting an alternative Royal Charter of their own, which was considered by the Privy Council ahead of the Government’s own proposal.
On 8 October 2013 the Culture Secretary announced that the press’s own charter had not been recommended for approval by the Privy Council. The cross-party charter (in amended form) therefore went forward to the next meeting of the Privy Council on 30 October, where it received the royal seal." 'via Blog this'

Orson Welles’ War of the Worlds panic myth: The infamous radio broadcast did not cause a nationwide hysteria

Orson Welles’ War of the Worlds panic myth: The infamous radio broadcast did not cause a nationwide hysteria.: "How did the story of panicked listeners begin? Blame America’s newspapers. Radio had siphoned off advertising revenue from print during the Depression, badly damaging the newspaper industry. So the papers seized the opportunity presented by Welles’ program to discredit radio as a source of news. The newspaper industry sensationalized the panic to prove to advertisers, and regulators, that radio management was irresponsible and not to be trusted. In an editorial titled “Terror by Radio,” the New York Times reproached “radio officials” for approving the interweaving of “blood-curdling fiction” with news flashes “offered in exactly the manner that real news would have been given.” Warned Editor and Publisher, the newspaper industry’s trade journal, “The nation as a whole continues to face the danger of incomplete, misunderstood news over a medium which has yet to prove ... that it is competent to perform the news job.”" 'via Blog this'

Police and Criminal Evidence Act 1984 S.11 journalistic exceptions to searches

Police and Criminal Evidence Act 1984: "11 Meaning of “excluded material”. (1)Subject to the following provisions of this section, in this Act “excluded material” means—
(a) personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;
(b) human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence;
(c) journalistic material which a person holds in confidence and which consists— (i)of documents; or (ii)of records other than documents." This is also read into S.22(4) of the Terrorism Act 2000 - and thus is relied on by David Miranda's lawyers in the forthcoming judicial review 'via Blog this'

The Home Secretary’s defence in the Miranda judicial review

The Home Secretary’s defence in the Miranda judicial review | Head of Legal: "The government argues that any interference was proportionate to those aims in view of the lack of alternatives to the use of Schedule 7, the urgency and gravity of the situation and the narrow time window the police had in which to act. A key plank of its argument is that this is not a case involving an attempt to identify journalists’ sources, unlike the Sanoma Uitgevers case relied on by the claimants. While in such cases the European Court of Human Rights gives strong protection to those sources, in this type of case, which simply involves the normal application of security provisions in a way that happens to impact upon someone working with journalists, no special protection is given. In particular, the case law makes clear that no prior judicial or independent scrutiny is required before documents are detained." 'via Blog this'

Monday, 4 November 2013

TSE & Anor v News Group Newspapers Ltd [2011] EWHC 1308 (QB)

TSE & Anor v News Group Newspapers Ltd [2011] EWHC 1308 (QB) (23 May 2011): "It is now clear the test is whether the Claimant had a reasonable expectation of privacy in relation to the information in question. See McKennitt v Ash [2008] QB 73 per Buxton LJ (with whom Latham and Longmore LJJ agreed, at para 11, further cited in Murray at para 27). The question is objective. As Lord Hope put it in Campbell v MGN Ltd [2004] 2 AC 457: "The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant.." In Murray v Express Newspapers Ltd [2009] Ch 481 the Court of Appeal stated: "The question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.." [para 36]" 'via Blog this'

Superinjunctions, gagging orders and injunctions: the full list

Superinjunctions, gagging orders and injunctions: the full list | Siobhain Butterworth & Maya Wolfe-Robinson | Law | theguardian.com: "Disclosure in the public interest is one of two main defences to privacy actions (the other is that the information is already in the public domain). Where, as in Ferdinand's case and Max Mosley's, a privacy case goes to trial, the public interest defence is usually argued vociferously. We might ask then, out of interest, how often did editors put forward a public interest defence in the spate of privacy injunctions that produced so much sound and fury only a short while ago?" 'via Blog this'

Google Still Taking a Beating Over Max Mosley S&M Party Search Results

Google Still Taking a Beating Over Max Mosley S&M Party Search Results - Search Engine Watch (#SEW): "Google said in a French court this week that it had removed hundreds of pages for Mosley and stands ready to remove others he identifies, but that the law does not support his demand for the creation of "an unprecedented new Internet censorship tool," according to Bloomberg." 'via Blog this'

Saturday, 2 November 2013

Leveson Report: Cross Party Royal Charter

Leveson Report: Cross Party Royal Charter - Publications - GOV.UK: "Following further discussions on independent press self-regulation based on the Leveson Report, this final version of the Royal Charter has been agreed by all three political leaders and will now be taken forward.
Amendments made since the 11 October 2013 publication are explained in the accompanying Explanatory Note" 'via Blog this'

Thursday, 31 October 2013

Playing for Time: The Politics of the Press Regulation Debate

Playing for Time: The Politics of the Press Regulation Debate | LSE Media Policy Project: "The Recognition Panel set up by the Royal Charter can issue a de facto verdict on whether the system has succeeded or failed from, at the earliest, a year and three months after the Charter has become effective. A change in the final draft means that, for these purposes, the Charter only becomes effective once the last member of the Recognition Panel has been appointed. That suggests an obvious tactic of giving the go-slow signal to those tasked with setting up the Panel. We believe that is what has happened. The Department for Culture, Media and Sport’s draft schedule is aiming for June 2014, which means a report from the Recognition Panel in autumn 2015." 'via Blog this'

Tuesday, 29 October 2013

Public Nuisance and Outraging Public Decency - Law Commission

Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency - Law Commission: An excellent primer on how to improve the common law offences: "The related common law offence of outraging public decency involves indecent actions or displays that may cause offence to members of the public. We are considering the fault elements of both offences, and the relationship of public nuisance to statutory environmental and public order offences." 'via Blog this'

Monday, 28 October 2013

Leaked memos reveal GCHQ efforts to keep mass surveillance secret

Leaked memos reveal GCHQ efforts to keep mass surveillance secret The Guardian: "The papers also reveal:
• GCHQ lobbied furiously to keep secret the fact that telecoms firms had gone "well beyond" what they were legally required to do to help intelligence agencies' mass interception of communications, both in the UK and overseas.
• GCHQ feared a legal challenge under the right to privacy in the Human Rights Act if evidence of its surveillance methods became admissible in court.
• GCHQ assisted the Home Office in lining up sympathetic people to help with "press handling", including the Liberal Democrat peer and former intelligence services commissioner Lord Carlile, who this week criticised the Guardian for its coverage of mass surveillance by GCHQ and America's National Security Agency."
You might argue that of course the Guardian would identify Lord Carlile. 'via Blog this'

Leaked memos reveal GCHQ efforts to keep mass surveillance secret

Leaked memos reveal GCHQ efforts to keep mass surveillance secret The Guardian: "The papers also reveal:
• GCHQ lobbied furiously to keep secret the fact that telecoms firms had gone "well beyond" what they were legally required to do to help intelligence agencies' mass interception of communications, both in the UK and overseas.
• GCHQ feared a legal challenge under the right to privacy in the Human Rights Act if evidence of its surveillance methods became admissible in court.
• GCHQ assisted the Home Office in lining up sympathetic people to help with "press handling", including the Liberal Democrat peer and former intelligence services commissioner Lord Carlile, who this week criticised the Guardian for its coverage of mass surveillance by GCHQ and America's National Security Agency."
You might argue that of course the Guardian would identify Lord Carlile. 'via Blog this'

Why the Daily Mirror lost the 1959 Liberace v. Cassandra libel trial

Roy Greenslade: Why the Daily Mirror lost the Liberace libel trial | Media | theguardian.com: "Fifty years ago one of the most extraordinary libel trials of all time took place in Britain. The flamboyant American entertainer Liberace had sued the Daily Mirror columnist William Connor (who wrote under the byline Cassandra) for implying that he was homosexual." 'via Blog this'

Finnish broadcasting company professionals await court ruling

Finnish broadcasting company professionals await court ruling | HUMANERIGHTSEUROPE: "December 2007, Ristamäki and Korvola were charged with defamation by a public prosecutor and K.U. claimed compensation for defamation in the same proceedings. The applicants contested the charge and the claim on the grounds that all of the information in the programme had been correct.
However, they were convicted of defamation in May 2008 and ordered to pay K.U. EUR 1,800 in compensation and EUR 1,500 in costs. After one unsuccessful appeal the Finnish Supreme Court refused the applicants leave for a second appeal in December 2009.
Relying on Article 10 (freedom of expression) of the European Convention on Human Rights, Ristamäki and Mr Korvola complain about the Finnish courts’ judgments against them.
The European Court of Human Rights will announce its decision in the case Ristamäki and Korvola v. Finland (no. 66456/09) on Tuesday 29 October." 'via Blog this'

Lord McAlpine libel row with Sally Bercow formally settled in high court

Lord McAlpine libel row with Sally Bercow formally settled in high court | UK news | theguardian.com: "McAlpine's lawyer, Andrew Reid, said: "Today has seen closure of a piece of litigation which has now become the leading case in terms of internet responsibility.
"Our client had never wanted the situation to get to this stage. It was always his intention to avoid litigation if at all possible, just as it was always Mrs Bercow's intention, until today, not to provide an apology satisfactory to our client. It is to be hoped that lessons will be learned: This litigation could so easily have been avoided if common sense had prevailed over political positioning. In January of this year, Lord McAlpine made a 'without prejudice' offer to Mrs Bercow to settle at a substantially lower sum than his leading counsel, Sir Edward Garnier QC, advised that he was likely to obtain if the matter went to full trial.
"He made the offer in an attempt to avoid the detrimental effect of litigation on his health, but sadly, Mrs Bercow was not prepared at the relevant time to avail herself of this reasonable offer."" 'via Blog this'

Sunday, 20 October 2013

Tiger Woods could sue American golf analyst Brandel Chamblee after 'cheating' slur

Tiger Woods could sue American golf analyst Brandel Chamblee after 'cheating' slur - Telegraph: Possible action for libel in US?
"The world No 1’s agent, Mark Steinberg, has revealed the fury in the Woods camp at the claims of Brandel Chamblee, the former PGA Tour winner, on a high-profile magazine’s website.
“There’s nothing you can call a golfer worse than a cheater,” Steinberg told ESPN. “This is the most deplorable thing I have seen. I’m not one for hyperbole, but this is absolutely disgusting. Calling him a cheater? I’ll be shocked, stunned if something is not done about this. Something has to be done. There are things that just don’t go without response. It’s atrocious.... [we] have to give thought to legal action.”
Chamblee’s main contract is with the Golf Channel, who have close ties with the PGA Tour, and it is understood a complaint as already been made to that station as well as Golf.com who carried the offending article.
Chamblee claimed yesterday that he did not directly call Woods a “cheat”, but the implication in his article was clear." 'via Blog this'

Wednesday, 16 October 2013

Cyberleagle: Who will sort out the Delfi mess?

Cyberleagle: Who will sort out the Delfi mess?: "In view of the Court’s emphasis on the professional and commercial character of the Delfi site, it seems unlikely that its logic would necessarily apply to comments on, say, a blog.  However many amateur or semi-amateur blogs do take advertising and the Court’s reasoning could apply to those, at least if they reach a certain size, reach or popularity.
The court went on to factor in anonymity, observing that it was Delfi’s decision to allow anonymous comments by non-registered users, and that by doing so “it must be considered to have assumed a certain responsibility for these comments”. " 'via Blog this'

Cyberleagle: Who will sort out the Delfi mess?

Cyberleagle: Who will sort out the Delfi mess?: "The Court’s approach to the responsibilities of internet publishers appears to challenge the principles underpinning the intermediary liability provisions of the EU ECommerce Directive.  The Court declined to question the Estonian courts’ narrow interpretation of the ECommerce Directive, even though it was in almost all respects at odds with subsequent EU Court of Justice decisions cited to the Court.
The result is a mess of epic proportions, which it is to be hoped the Grand Chamber will have the opportunity to sort out if an appeal reference is made.  Failing that a pending reference to the CJEU in a Cyprus case, Papasavvas, may enable the EU Court of Justice to weigh in.  " 'via Blog this'

Is this the end for Britain as a centre for libel tourism?

Is this the end for Britain as a centre for libel tourism? | Media | The Guardian: "In one case, Pavel Karpov, a retired Russian policeman, had been suing Bill Browder, a naturalised British businessman, for claiming that Karpov had a role in the death of the anti-corruption campaigner Sergei Magnitsky. In the other, a Serbian entrepreneur called Stanko Subotic was pursuing several Balkan publications over allegations that he was involved in organised crime. Both cases have now been dismissed, however, on the grounds that the plaintiffs have no real reputation in England to defend." 'via Blog this'

Tuesday, 15 October 2013

Trafigura: anatomy of a super-injunction

Trafigura: anatomy of a super-injunction | Media | theguardian.com: "This PDF document is the 'super-injunction' which Trafigura and Carter-Ruck used to gag the Guardian (and "persons unknown") on September 11. It was granted in private by Mr Justice Maddison, who was until last year a Crown Court judge in Manchester. It is being published for the first time in order to allow a wider public to see how these gagging orders are constructed and shielded from public view." 'via Blog this'

The Section 5 Defamation Act Regulations: A complex red herring – Ashley Hurst

The Section 5 Defamation Act Regulations: A complex red herring – Ashley Hurst | Inforrm's Blog: "I have previously discussed on this blog (here and here) the interrelationship between Section 5 and the other defences available to website operators and the position remains the same. Many website operators will still be able to rely on the defences provided by Section 1 of the Defamation Act 1996 (“Section 1″), Regulation 19 of the E-Commerce Regulations 2002 (“Regulation 19″) and the traditional defences to libel such as truth and honest comment.
Both Section 1 and Regulation 19 impose legal thresholds (as opposed to tick-box checklists) before the website operator loses the defence. There will be cases where a claimant’s notice of complaint has ticked all the boxes for the purpose of Section 5 but does not demonstrate a legal course of action in libel (for example because the serious harm threshold is not met).  Conversely, there will be cases where a website operator is on notice of “unlawful” material for the purposes of Regulation 19 but where the Claimant has not ticked all the boxes for the purposes of Section 5" 'via Blog this'

Anonymous posters and the new Defamation Act: the draft regulations – Graham Smith

Anonymous posters and the new Defamation Act: the draft regulations – Graham Smith | Inforrm's Blog: "The procedure under the draft regulations is so bureaucratic – not easily recognisable as the “quick, clear and practical” process promised in Commons Committee in June 2012 – that it is possible that website operators will ignore it and rely on other available defences.
Even then, however, Section 5 may have a side effect.  A valid complainant’s notice is much more likely than an informal defamation complaint to fix a hosting intermediary with knowledge of unlawfulness for the purpose of the ECommerce Directive defence.  So even if the Section 5 procedure is ignored, a website operator may have more incentive than previously to take a down an anonymous post on receipt of a valid Section 5 notice.
The new intermediary defence under Section 10 will also be significant, whereby a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher." 'via Blog this'

Monday, 14 October 2013

Belpietro v. Italy, Newspaper Editor Criminally Liable for Senator’s Op-Ed, But Prison Sentence Violated Article 10

Case Law, Strasbourg: Belpietro v. Italy, Newspaper Editor Criminally Liable for Senator’s Op-Ed, But Prison Sentence Violated Article 10 – Ronan Ó Fathaigh and Dirk Voorhoof | Inforrm's Blog: "Nine years ago, in its landmark Cumpănă and Mazăre v. Romania judgment, a unanimous Grand Chamber laid down a rare absolute rule that prison sentences for defamation are never justified under Article 10 where the defamatory statements concern a matter of public interest. This rule against prison sentences included pardoned, suspended, or conditional sentences, effectively removing from European legislatures and courts the ability to impose such sentences.
Last week, the Second Section of the Court correctly applied Cumpănă and Mazăre, holding in Belpietro v. Italy (in French only) that a suspended four-month prison sentence given to a newspaper editor for criminal defamation violated Article 10. Somewhat more controversially, however, the Court also held that in principle, imposing criminal liability on a newspaper editor for publishing a defamatory article written by an Italian senator raised no issue under Article 10." 'via Blog this'

The Privy Council and the Royal Charters: how does it all work?

The Privy Council and the Royal Charters: how does it all work? | Inforrm's Blog: "Privy Council is a body set up under the “Royal Prerogative”. It is not bound by any rules of procedure. Indeed, it appears that there are no rules, for example, as to its quorum (although this is conventionally treated as being three, with four members usually in attendance) along with the Queen.
The Privy Council is not a deliberative body. Its meetings are short and formal – lasting only for a few minutes with everyone remaining standing.  Discussion or deliberation does not take place.
By convention, the “Queen in Council” always follows the advice of her ministers.
In other words, the Privy Council is, in substance (although not in form) a sub-committee of the Cabinet. It executes the orders of Ministers.
The best and most comprehensive recent treatment of the subject can be found in Patrick O’Connor QC’s 2009 JUSTICE paper (linked)" 'via Blog this'

The Perils of “Revenge Porn” – Alex Cochrane

The Perils of “Revenge Porn” – Alex Cochrane | Inforrm's Blog: "A bill is currently being passed through California’s Senate to specifically address the revenge porn online phenomenon. The proposed legislation will make it a criminal offence to post photographs or videos of someone in a state of full or partial undress without their permission. It will be no defence to say that the subject had originally consented to being photographed or filmed.
Prosecutors would have to prove that there had been intent to cause serious emotional distress and that the victim has indeed suffered serious emotional distress. There is, prima facie, a reasonable expectation of privacy in the case of intimate photographs and one can expect there to be a number of prosecutions in this area if acts of revenge porn continue to proliferate. Moreover, the proposed penalties are severe: a first offender could expect up to six months in prison and/or a $1,000 fine.
California is the hosting capital of the social media behemoths, including Facebook and Twitter." 'via Blog this'

Defamation Trials, Summary Determinations and Assessments: 2012-13

Defamation Trials, Summary Determinations and Assessments: 2012 to 2013 | Inforrm's Blog: "This post records the “final determinations” of libel cases by High Court judges in the legal year: October 2012 – July 2013. It shows a slight increase in the number of trials over the previous year (from 5 to 7).  Defendants continue have a better success rate than claimants (2012/13 – 56%; 2011/12 – 67%, 2011/12 – 59%).
This post updates Inforrm’s previous posts dealing of defamation cases, which tracked “Defamation Trials, Summary Determinations and Assessments” in  2011-2012, 2011; 2010 and 2005-2009.  This is, of course, not a complete picture as there may be some hearings we have missed and the list does not include settlements, withdrawals or statements in open court.  As the Ministry of Justice’s Impact Assessment on the Defamation Bill noted, “Data are not collated centrally on the outcomes of defamation claims issued in court. In many cases the costs and damages paid in cases are kept private“." 'via Blog this'

Blackstone’s Guide to the Defamation Act 2013

New Publication: Blackstone’s Guide to the Defamation Act 2013 | Inforrm's Blog: "A new guide to the Defamation Act 2013, written by barristers from media chambers 5RB, was published on 19 September by Oxford University Press.  Blackstone’s Guide to the Defamation Act is edited by James Price QC and Felicity McMahon and provides a section by section analysis of the Act.
The Defamation Act 2013 received Royal Assent on 25 April 2013 and is expected to come into force later this year. It makes a number of changes to the law of defamation, including repealing the common law defences known as justification, fair comment and Reynolds privilege and replacing them with statutory versions. Measures to address so-called ‘libel tourism’, deal with anonymous publication online and protect peer-reviewed statements in academic or scientific journals are also included." 'via Blog this'

Costs protection in defamation and privacy claims: Government consultation

News: Costs protection in defamation and privacy claims: Government consultation | Inforrm's Blog: "The proposed new rules would apply to proceedings for defamation, malicious falsehood, breach of confidence involving publication to the general public, misuse of private information or harassment where the defendant is a person who publishes a newspaper, magazine or website containing news or information about or comment on current affairs.
It is proposed that a party to such proceedings (whether a claimant or defendant) would have to make an application for a “costs protection” order and that such an order could be made where the court is satisfied that
"(a) the party applying for such an order would suffer severe financial hardship if an order containing that provision were not made and that party were ordered to pay another party’s costs of the proceedings; and
(b) it is in the interests of justice to make such an order”." 'via Blog this'

Sunday, 13 October 2013

Journalist Held for Libeling TV Presenter

The Chosun Ilbo (English Edition): Daily News from Korea - Journalist Held for Libeling TV Presenter: "Seoul Central Prosecutor's Office on Thursday sought an arrest warrant for a journalist on charges of spreading false rumors that KBS TV presenter Hwang Soo-kyung is close to divorcing her husband.
The journalist, identified as Park, is accused of libel by posting comments on KakaoTalk and other social media that Hwang and her husband, a prosecutor in Jeonju, North Jeolla Province, are on the point of divorce.
The couple in a statement said the rumors are "malicious and false" and turned to prosecutors to trace the person responsible for spreading them.
The ensuing investigation led them to Park. But he refused to divulge his sources. Prosecutors sought an arrest warrant citing intent to "disseminate malicious rumors."" 'via Blog this'

Saturday, 12 October 2013

Guardian was 'entirely correct' to publish NSA stories, says Vince Cable

Guardian was 'entirely correct' to publish NSA stories, says Vince Cable | Media | theguardian.com: "In an interview on the Today programme on BBC Radio 4, Cable said that "arguably" Britain did not have proper oversight of the domestic intelligence service MI5, overseas agency MI6 and eavesdropping centre GCHQ.
Cable confirmed a report in the Guardian that the deputy prime minister's aides are to start conversations in Whitehall about improving the legal oversight of the intelligence agencies in light of Snowden's revelations. These suggest that powerful new technologies appear to have outstripped the current system of legislative and political oversight.
The business secretary said: "I think the Guardian has done a very considerable public service … The conclusion which Nick Clegg came to, and set out this morning, is that we do need to have proper political oversight of the intelligence services and arguably we haven't until now. What they [the Guardian] did was, as journalists, entirely correct and right. Mr Snowden is a different kettle of fish."" 'via Blog this'

Wednesday, 9 October 2013

Gresham Lecture on Leveson: Prof. George Brock

"The heart ofLeveson is privacy versus free expression, and it is important to remember that this is a clash of rights. You cannot solve a clash of rights. You cannot settle it definitively. You can only manage it, and the search is for the best balance.
As a background to Leveson, there were two important decisions in the recent past which are part of the story. There was the Data Protection Act in 1998, which controlled how information could be retrieved from databases. There were no prison penalties for journalists, there was a public interest defence, and the Act set up the office of something called the Information Commissioner. 
Before that, strictly on the privacy track, there had been in Inquiry in 1990 by a distinguished lawyer called Sir David Calcutt. He was very scathing about the self-regulation system for the press, considering it not in order. He gave them a short number of years to improve things, held a second, brief re-visiting Inquiry in 1992, reported back in 1993 and said there should be a privacy law – this just is not good enough, you are going to have to do much better. One way or another, by combination of the fact that this was the John Major Government in the midst of European crises (and a good many others), and the fact that there was very powerful lobbying by the press groups, Calcutt’s proposals were derailed. 
They were brought back in some form in the Human Rights Act, which incorporated the European Convention of Human Rights into British law in 1998. However, that created a privacy law by simply saying there is a right to the freedom of expression and there is a right to privacy. It made those two flat statements and then left the judges in the courts to sort out everything after that. It did not work perfectly.
Please note that both of these laws, the Data Protection Act and the Human Rights Act, have public interest tests of sorts built into them. Public interest tests come in various forms. They are essentially grounds on which an apparent breach of the law may be justified. They are a way of testing ends against means."

Maria Miller's statement on press regulation

Maria Miller's statement on press regulation - full text | Media | theguardian.com: "all involved in the process now consider a royal charter, to oversee this regulatory body, to be the correct way forward. Six months ago this seemed impossible.
What we are now talking about are differences of opinions in how a royal charter should be constructed.
The committee of the privy council is unable to recommend the press' proposal for a royal charter be granted. Whilst there are areas where it is acceptable, it is unable to comply with some fundamental Leveson principles and government policy, such as independence and access to arbitration. A copy of this recommendation letter has been placed in the library of both houses.
In the light of this, we will be taking forward the cross-party charter which was debated in this house.
I can therefore tell all members of this house that the cross-party charter will be on the agenda at a specially convened meeting of the privy council on 30 October.
In the interim, we must finish making our charter workable, so it will meaningfully deliver independent and effective self-regulation." 'via Blog this'

Leveson in front of Lords Committee Evidence Session

Thursday, 3 October 2013

Ed Miliband letter to Lord Rothermere, proprietor of Daily Mail & General Trust

Labour Press — Ed Miliband letter to Lord Rothermere: "I was told by one of my relatives late yesterday evening that a reporter from the Mail on Sunday had found her way into the event uninvited. I also discovered that, once there, she approached members of my family seeking comments on the controversy over the Daily Mail’s description of my late father as someone who “hated Britain”.
My wider family, who are not in public life, feel understandably appalled and shocked that this can have happened.
The Editor of the Mail on Sunday has since confirmed to my office that a journalist from his newspaper did indeed attend the memorial uninvited with the intention of seeking information for publication this weekend." 'via Blog this'

"The surrender of privacy: is the state to blame?" Sussex: 23 Oct 18:30-19:30

Events : News and events : Law : University of Sussex: "The surrender of privacy: is the state to blame?
Wednesday 23 October 18:30 until 19:30 Chowen lecture theatre, Brighton and Sussex Medical School
Speaker: The Lord Carlile of Berriew CBE, QC
The Issues in Criminal Justice series is returning this term with Lord Carlile as our guest speaker. His practice is focused upon serious crime, local government and public law. He specialises in the civil and criminal aspects of major commercial fraud cases, and has appeared in many leading criminal cases receiving his CBE in the 2012 New Year Honours for services to national security.
This is an open public lecture and everyone is welcome to attend, but we do ask that you book your place as numbers are limited." 'via Blog this'

Tuesday, 1 October 2013

Ken Auletta: Can the Guardian Take Its Aggressive Investigations Global? : The New Yorker

Ken Auletta: Can the Guardian Take Its Aggressive Investigations Global? : The New Yorker: The Guardian broke the stories of phone hacking by Murdoch's journalists, Wikileaks and Edward Snowden. This is a lengthy set of interviews that analyzes how investigative journalism works.
"With stories of such complexity, a newspaper often delays publication while it meets with government officials, who try to persuade editors of the harm that would come from publication. The Guardian did seek comment from government officials about the revelations. But Greenwald, outraged by the content of the material, pushed to publish quickly. “I was getting really frustrated,” he told me. “I was putting a lot of pressure on them and insinuating that I was going to go publish elsewhere.” He helped produce five stories that ran on five consecutive days in June. “I wanted people in Washington to have fear in their hearts over how this journalism was going to be done, over the unpredictability of it,” he said. “Of the fact that we were going to be completely unrestrained by the unwritten rules of American journalism." 'via Blog this'

Monday, 23 September 2013

Senate panel approves measure to narrow definition of a journalist

Senate panel approves measure to narrow definition of a journalist   - NY Daily News: "The original bill would have extended protections to a "covered person" who investigates events and obtains material to disseminate news and information to the public. Sen. Chuck Schumer, D-N.Y., a chief proponent of the medial shield legislation, worked with Sens. Dianne Feinstein, D-Calif., and Dick Durbin, D-Ill., as well as representatives from news organizations, on a compromise.
The protections would apply to "covered journalist," defined as an employee, independent contractor or agent of an entity that disseminates news or information. The individual would have to have been employed for one year within the last 20 or three months within the last five years. It would apply to student journalists or someone with a considerable amount of freelance work in the last five years. A federal judge also would have the discretion to declare an individual a "covered journalist," who would be granted the privileges of the law.
The compromise also says that information is only privileged if it is disseminated by a news medium, described as "newspaper, nonfiction book, wire service, news agency, news website, mobile application or other news or information service (whether distributed digitally or otherwise); news program, magazine or other periodical, whether in print, electronic or other format; or thorough television or radio broadcast ... or motion picture for public showing." While the definition covers traditional and online media, it draws the line at posts on Twitter, blogs or social media from non-journalists.The overall bill would protect reporters and news media organizations from being required to reveal the identities of confidential sources, but it does not grant an absolute privilege to journalists." 'via Blog this'

Access to Information as a Human Right in the Case Law of the ECtHR

ingentaconnect Access to Information as a Human Right in the Case Law of the Eur...: "The author examines whether the right to obtain information held by state or city authorities is considered to be a human right guaranteed by the European Convention on Human Rights (ECHR, or 'the Convention'). The research question is studied by analysing the practice of the European Court of Human Rights (ECtHR, or 'the Court'). According to ECtHR case law, the right to obtain information may be based on Article 2 of the ECHR (guaranteeing the right to life), on Article 6 (guaranteeing fair trial), on Article 8 (guaranteeing the right to private and family life), and, finally, on Article 10 (guaranteeing freedom of expression). However, there is no general right to obtain information from public authorities and access official documents. The ECHR is still able to bring added value to many access-to-information cases. It brings the scrutiny and supervision of the ECtHR into play, and the Convention and the Court that interprets it set the minimum standard for publicity of information."

'via Blog this'

Wednesday, 18 September 2013

Net neutrality or not neutrality? The proposed regulation

Net neutrality or not neutrality? The proposed regulation on a European single market for electronic communications - Lexology: "In an effort to avoid the creation of a two-tier internet (i.e. a high-level quality tier and a degraded quality tier), the EC has included in its proposal a requirement that the provision of specialized services does not impair “in a recurring or continuous manner the general quality of internet access services.” However, such a safeguard appears to be rather loose. At what point is impairment considered to be recurring or continuous? And how is general quality of internet access defined in the first place?
In addition, the EC proposes to entrust to national regulatory authorities (NRAs) the responsibility of monitoring the situation in the various EU Member States and ensuring the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology and that are not impaired by specialized services. Provided certain conditions are fulfilled, NRAs will also be empowered to impose minimum quality of service requirements on ISPs." 'via Blog this'

Leveson has been 'disastrous' says Guardian legal chief

Leveson has been 'disastrous' says Guardian legal chief | Press Gazette: "She also said that the use of Royal Charters – two rival versions of which have been submitted to the Queen’s Privy Council by politicians and the newspaper industry – was “medieval”. The Privy Council, a body made up of Government ministers, is currently examining the industry charter, with the version agreed by the three main political parties due to be considered later in the autumn if the former is not ratified. Phillips dismissed the use of the arcane body as a “medieval” tool that had been “used by monarchs to circumvent parliament”.
Phillips was particularly concerned by the provision in the parliament-backed Royal Charter for the establishment of a free arbitration service to decide damages claims against publishers. Echoing concerns previously expressed by many local and regional news groups, she said: “We are creating a charter for people with dodgy claims. People will be tempted to go and try and get some money.”
Phillips also said the danger of state intervention in the press had been highlighted by Miranda’s detention at Heathrow Airport for nine hours under the Terrorism Act." 'via Blog this'

Sunday, 15 September 2013

Medium Law

The future of the Internet is a non-trivial issue,11 in fact it is central to the future of productivity in most industries. It is an enabling technology, which means that the exchange of information on this open platform promises (and delivers) real efficiencies in the economy and society generally, as it helps collaboration and improvement.12 It is also socially enabling – whatever your view – for all the reasons encompassed in the expression ‘Web 2.0’ or ‘the participative web’.13 That is, it has become a virtual playground, classroom, laboratory and at its most basic – chatroom. The rise in the number of people using email, Facebook, MySpace, Wikipedia, Skype, Instant Messaging and other applications has extended so far into mass participation that it has truly affected society and the economy in all its facets. Children, in particular, are now ‘born digital’ in many locales in developed society,14 and their access to the consumer Internet is an essential part of their development, as Pew Internet surveys and others increasingly show. Moreover, small businesses and solo home-based workers depend on this tool as a vital part of their participation in the economy.15 The promise of virtual worlds and massive online collaboration (not just the Web, but online gaming, Wikipedia-type knowledge sharing and transfer and other avatar environments including over-hyped but fascinating poster child of digital life, SecondLife) is to extend this pervasive impact of online environments even further in the coming decade.

The Internet matters far more than television or radio or the simple telephone, whatever technology debunkers may continue to claim. Of course it is true that many collaborators and innovators use very powerful Internet connections at school, university and in office environments. However, much of their out-of-work collaboration, and creativity and innovation, take place using consumer Internet connections via desktop computers, laptops, netbooks and smart 3G mobile phones. Therefore, the question of what happens to their ‘domestic’ Internet connection is vital. Yes, it should be faster, but should this speed increase be entirely to guarantee the existing ISPs’ phone quality and video service? How much of the increase should be ‘open’ to all Internet traffic, and how much a toll lane for reserved high-speed signals? Note that this open question is posed in terms of proportion, not absolutes. I state immediately that I do not believe in social or economic justifications either for barring any proprietary high-speed traffic at all, or for strict versions of net neutrality that would not allow any traffic prioritization. It appears to me that there is too much at stake to either expect government to supplant the market in providing higher-speed connections or for the market to continue to deliver openness without the most basic of policy and regulatory backstops to ensure some growth.

Thursday, 12 September 2013


"44.  In the instant case the Court observes that the applicants wished to receive television programmes in Arabic and Farsi from their native country or region. That information included, for instance, political and social news that could be of particular interest to the applicants as immigrants from Iraq. Moreover, while such news might be the most important information protected by Article 10, the freedom to receive information does not extend only to reports of events of public concern, but covers in principle also cultural expressions as well as pure entertainment. The importance of the latter types of information should not be underestimated, especially for an immigrant family with three children, who may wish to maintain contact with the culture and language of their country of origin. The right at issue was therefore of particular importance to the applicants.
45.  It should be stressed that it has not been claimed that the applicants had any other means of receiving these or similar programmes at the time of the impugned decision than through the use of the satellite installation in question, nor that their satellite dish could be installed in a different location. They might have been able to obtain some news through foreign newspapers and radio programmes, but these sources of information only cover parts of what is available via television broadcasts and cannot in any way be equated with the latter. Moreover, it has not been shown that the landlord later installed broadband and internet access or other alternative means which gave the tenants in the building the possibility to receive these television programmes."

Monday, 9 September 2013

A Defence of Responsible Tweeting…?

A Defence of Responsible Tweeting… | Paul Bernal's Blog: "At a detailed level, the question I am asking is whether there should be a specific form of defence against defamation available for tweeters – a ‘defence of responsible tweeting’ – when tweeters have behaved ‘responsibly’ in terms that make sense for twitter, rather than for conventional journalism. As Alex Andreou asked in the New Statesman at the time, ‘Can every Twitter user be expected to fact check Newsnight?’" 'via Blog this'

Thursday, 29 August 2013

Law and Media Review of the Legal Year

Law and Media Review of the Legal Year: Part 3 – Easter and Trinity terms 2013 | Inforrm's Blog: "review of legal cases and legal developments over the legal year*, from September 2012 (just before the beginning of the legal year proper) until the end of July 2013. The Inforrm case tables have also been brought up to date: Media Law cases; Defamation cases; and Privacy cases. This is a broadly chronological summary, compiled from the weekly updates, and not a complete record, focusing on the UK"
More detail than you will ever need! 'via Blog this'

Law and Media Review of the Legal Year 2012/13

Law and Media Review of the Legal Year 2012/13 | Media law and ethics: "A review of legal cases and legal developments over the legal year, from September 2012 (just before the beginning of the legal year proper) until the end of July 2013 can be found on the Inforrm blog. The Inforrm case tables have also been brought up to date: Media Law cases; Defamation cases; and Privacy cases." 'via Blog this'

Tuesday, 30 July 2013

Turkish domestic judges wear political glasses: Turkish ECtHR judge

EUROPE - Turkish judges wear political glasses: Euro court judge: "Turkish judges wear "ideological glasses," as a majority of them believe that protecting the state is their fundamental job, according to Işıl Karakaş, a Turkish judge working at the European Court of Human Rights (ECHR).
“I don’t know any such examples in European countries. How could a judge’s job be protecting the state? A French judge and a Turkish judge understand the public order differently. Our judges see their job as protection of the state,” said Karakaş, explaining what "ideological glasses" means.
She stated that Turkish judges stopped punishing the word “Mr. Öcalan” only after the ECHR found Turkey guilty on several occasions for such decisions. Calling the outlawed Kurdistan Workers’ Party (PKK) jailed leader Abdullah Öcalan as “Mr. Öcalan” was seen as a crime on the grounds that it was “praising the criminal,” in several cases in Turkey." 'via Blog this'

Monday, 22 July 2013

Tulisa 'entrapped by Sun on Sunday' - letter to CMS Select Committee

Tulisa 'entrapped by Sun on Sunday' | Media | guardian.co.uk: "The manager of singer and TV celebrity Tulisa Contostavlos has written to the chairman of the culture and media select committee to complain about a Sun on Sunday sting operation on his client.
Jonathan Shalit's letter to Tory MP John Whittingdale expresses his "grave concern" about the article published on 2 June and the journalistic methods used to obtain it, arguing that it amounted to entrapment.
The front page story, headlined "Tulisa's cocaine deal shame", was billed as a "world exclusive" and written by the former News of the World investigations editor, Mazher Mahmood." 'via Blog this'

Wednesday, 3 July 2013

Social Media Prosecution Guidelines updated

Social Media Prosecution Guidelines: "The final guidelines are broadly similar to those published for consultation, although changes made following feedback to the consultation include:
Greater detail about communications targeting specific individuals, particularly making it clear that this category relates to communications that constitute harassment or stalking
Clarification that where a communication might constitute a credible threat of violence or harassment or stalking, prosecutors should consider whether the offence is racially or religiously aggravated or whether there is aggravation related to disability, sexual orientation or transgender identity and pay particular regard to the increase in sentence provisions
In cases where communications might be considered grossly offensive, indecent, obscene or false that meet the high threshold for prosecution, guidelines have been amended to make clear that prosecutors should particularly consider whether there is a hate crime element to the communication, when assessing impact on  victim
Clarification of the wording of the public interest factors to be considered for prosecution under S.1 Malicious Communications 1988 or S.127 Communications Act 2003" 'via Blog this'

Tuesday, 11 June 2013

How the most English of poems inspired a Scot to champion European Human Rights

How the most English of poems inspired a Scot to champion European Human Rights | UK Human Rights Blog: "The Convention was a legally enforceable treaty that created an international court to police the maintenance of basic human rights. For, as Nuremberg proved and recorded these rights were fragile and vulnerable.
Of course the rights listed in the Convention were crudely hewn. It would take, and will take years of cases at the court to define and refine the interaction between human rights and the state.
As Maxwell Fyfe recognised: "The difficulty of course is that human lawyers are not the creators but only the interpreters or codifiers of these fundamental human rights. Opinions differ widely as to their precise definitions"
The Convention has fed 60 years of public debate about conflicting and emergent rights, many of which would have astonished the authors. And that is what they had intended.
It can be argued that the Convention was made in Gray’s Inn as Shawcross, Lauterpacht and Maxwell Fyfe were all barristers there. The Human Rights Lawyers association is holding a celebration of the signing of the Convention later this month." 'via Blog this'

The role of lawyers in public life - ECHR

The role of lawyers in public life - Speeches - Inside Government - GOV.UK: "In the period between the Congress at The Hague, and the first meeting of the Assembly of the Council of Europe, David Maxwell Fyfe was involved in drafting the Convention, with the assistance of academic lawyers from Oxford and Cambridge University. That first draft covered what Maxwell Fyfe described as the “basic decencies of life” - security for life and limb, freedom from arbitrary arrest, freedom from slavery and compulsory labour, freedom of religion, freedom of association, freedom of marriage, the sanctity of the family, equality before the law, and freedom from arbitrary deprivation of property.
By August 1950, the Assembly agreed the draft Convention. The Times reported an important aspect of the new Convention: that it was not to be a collection of mere aspirations and platitudes. It was to be matter of real, enforceable, law. The Times report says: “The committee’s insistence on the convention was based on the fact that it stated human rights not as vague generalities, but in terms that could be enforced by a court of law.”" 'via Blog this'

Thursday, 6 June 2013

The Constitution of the Public Sphere: the post-Leveson Landscape (W G Hart Legal Workshop 2013)

IALS Events / Institute of Advanced Legal Studies: "24 June 2013 - 25 June 2013
Directors:  Dr Eoin Carolan, University College Dublin and Dr Andrew Scott, London School of Economics. 
Plenary speakers: Geoffrey Robinson QC; Philip Coppel QC, Landmark Chambers; Professor Tom Gibbons, Univerisyt of Manchester;  Professor John Horgan, Irish Press Ombudsman; Michael McManus, Director of Transition, Press Complaints Commission; 
Professor Chris Marsden, University of Sussex;  Professor Leslie Moran, Birkbeck, University of London; Professor Alastair Mullis, University of East Anglia; Gill Phillips, Director of Editorial Legal Services, Guardian News and Media Ltd;  Professor Gavin Phillipson, University of Durham;  Professor Colin Scott, University College Dublin;  Hugh Tomlinson QC, Matrix Chambers; Professor Lorna Woods, City University London;  and a further 25 papers given in parallel sessions.
Organised by: Institute of Advanced Legal Studies" 'via Blog this'

Thursday, 30 May 2013

Council of Europe publications: Internet-related cases

Other Publications: "Internet: case-law of the Court" 'via Blog this'

Commission asks The Netherlands to ensure independence of Dutch regulator

EUROPA - PRESS RELEASES - Press Release - April infringements package: main decisions: "The 2009 EU Regulatory Framework for telecoms requires that national regulators have full independence in how they apply market regulation. The Commission believes that current Dutch regulation limits this regulatory discretion by attempting to directly regulate the market in two ways. In the first case, broadcasters subject to "must-carry obligations" are forced to offer for resale their television programmes, as well as the transmission service that carries them, at wholesale level at "cost-oriented" prices (to prevent undue profits). The second provision obliges the ACM to force companies found to have significant market power to resell their programmes to competitors at cost-oriented prices.
The Commission is mainly concerned about how these regulatory provisions were imposed. It should be up to independent regulators to decide on whether such measures should be imposed, rather than the Dutch Government. The Commission is therefore sending a reasoned opinion (the second stage in EU infringement proceedings). The Netherlands has two months to reply. In the absence of a satisfactory response, the Commission may refer it to the EU Court of Justice." 'via Blog this'

Tuesday, 28 May 2013

Defamation Act 2013 - the text

Defamation Act 2013: "Defamation Act 2013 CHAPTER 26: An Act to amend the law of defamation.
[25th April 2013]" 'via Blog this'

Defamation Act 2013 – the Explanatory Notes

Defamation Act 2013 – the Explanatory Notes | Inforrm's Blog: "The Explanatory Notes to the Defamation Act 2013 have now been published. It is important to understand the status and value of these notes in relation to the construction of the Act.  As the notes themselves make clear “They have been prepared by the Ministry of Justice in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament” (para 1). Explanatory Notes are admissible aids to the construction of the statute insofar as they “cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed” (Westminster City Council v National Asylym Support Service [2002] UKHL 38 [5])."
In relation to the new defences of “Truth” (Section 2) and “Honest Opinion” (Section 3) the paragraphs 13 and 19 of the Explanatory Notes suggest that these “broadly reflect the current law while simplifying and clarifying certain elements”. The Notes are clear that the new defence of “publication on a matter of public interest” (section 4) is not intended to be a new departure but is, rather: “based on the existing common law defence established in Reynolds v Times Newspapers and is intended to reflect the principles established in that case and in subsequent case law“.As indicated by the Minister in the House of Commons on 16 April 2013, the Notes say that The intention in this provision is to reflect the existing common law as most recently set out in Flood v Times NewspapersSo section 4 does not establish a “new public interest” defence but simply codifies the common law as developed by the Courts.
The notes to section 9 (Action against a person not domiciled in the UK or a Member State etc) indicate that the section “aims to address the issue of “libel tourism” (a term which is used to apply where cases with a tenuous link to England and Wales are brought in this jurisdiction)” but go on to point out that does not apply to a person domiciled in a EU Member state or a state which is party to the Lugano Convention. Section 9(2) says that a court does not have jurisdiction to determine an action against a person domiciled outside the countries mentioned unless the court is satisfied that, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement." 'via Blog this'

Defamation Act 2013: Serious Harm, Truth and Honest opinion

Defamation Act 2013: A boost for free speech – Part 1: Serious Harm, Truth and Honest opinion – Timothy Pinto | Inforrm's Blog: " One of the most important provisions in the 2013 Act states:
“For the purposes of this section [1], harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss”.
In practice a for-profit company is likely to need to specify in its letter of claim and Particulars of Claim that the statement: a) Has caused or is likely to cause the body financial loss; b) What that loss is; and c) That the loss is serious. If it does not specify these things, the defendant may well insist on such details before responding substantively. The serious financial loss requirement is likely to make it difficult for companies to sue for defamation." 'via Blog this'

UK House of Lords can obtain opinions from ECtHR in future? Protocol 16

News de la Semaine: "PACE’s Legal Affairs Committee has given its green light to a proposal which would allow states’ highest courts to obtain opinions from the European Court of Human Rights on questions of principle relating to the interpretation or application of rights and freedoms defined in the European Convention and its protocols.
Approving a draft opinion today in Izmir, prepared by Christopher Chope (United Kingdom, EDG), the committee said Draft Protocol No. 16 to the European Convention – which will enter into force after 10 parties to the Convention have ratified it – would strengthen the link between the Strasbourg Court and the highest courts at national level by creating “a platform for judicial dialogue”.
The change would facilitate the application of the Court’s case-law by national courts and help shift the resolution of questions of interpretation to the domestic forum before they arrive in Strasbourg, saving valuable Court resources and enabling a speedier resolution of similar cases at national level. This in turn would reinforce the principle of subsidiarity, the committee said.
The Assembly is due to debate and adopt a final opinion during its summer plenary session in June." 'via Blog this'

Zemblanity, Bercow and the Defamation Act 2013

Editor's Blog: "whether the result would have been different if the Defamation Act 2013, s 1 had applied. That would have enabled Sally Bercow to plead that, in the context of all the other allegations made by others, no ‘serious harm’ was caused by this one tweet. It raises issues too about how best to deal with dribs and drabs of allegations that, when collated, amount to serious allegations but which individually amount to very little...But the most relevant issue for IT lawyers was highlighted by the regret expressed by Lord McAlpine’s solicitor about the fact that allegations like those unfounded and appalling allegations connecting Lord McAlpine with child sexual abuse remain forever on the Internet." 'via Blog this'

Defamation Injunction: Google, Facebook Must Try Harder to Prevent 'Zemblanity'

Defamation and Injunction: Google and Facebook Must Try Harder: "Defamation of an Irish student has provided a perfectly formed example of why the fact that the Internet never forgets might not be such a good thing - and a likely candidate to be cited in arguments favouring the right to be forgotten. . It has also proved to be an outstanding example of what the judge in the case calls zemblanity.
In the Irish High Court, Mr Justice Micheal Peart had to deal with a case involving a student from Dublin City University who has faced a barrage of 'the most vile, crude, obscene and generally obnoxious comments' from 'nasty and seemingly idle minds' after a Dublin taxi driver posted a video clip on YouTube, asking for a fare dodger to be identified....the order made by Mr Justice Peart required experts for Mr McKeogh to meet with experts for the internet companies on how to go about removing all defamatory material Experts must be nominated within 14 days and the meeting between them must take place within the following 14 days. When reports have been prepared and exchanged, the matter can come back before the court to 'consider the position which emerges'.  Facebook were also ordered to produce an electronic copy of the fake Facebook profile that was relevant to the dispute.

The latest judgment is of interest partly because of the judge's thinly disguised despair at the defendants' refusal to co-operate with the plaintiff as the court requested: 'I do not understand what prejudice those defendants would suffer by trying to assist the plaintiff who is after all a customer of their services. But it was not to be. It might have avoided what turned out to be a marathon application for interlocutory relief … Every issue was hotly contested involving a proliferation of affidavits, and a veritable mountain of paper.' The attempt by the defendants to use the shelter of the E-commerce Directive 'immunity' for ISPs was postponed for consideration at trial. The judge seemed sympathetic to the use of data protection legislation to bolster the plaintiff's position. 'via Blog this'

Parody, Satire and Freedom of Expression

ECHR BLOG: Satire and the Freedom of Expression: " Two cases of comparable satire were decided by the Court. In both cases the authorities involved had violated the freedom of expression in punishing various forms of satire. The first was the case of Kuliś and Różycki v. Poland (Appl.no. 27209/03), decided by the Court on 6 October 2009. This concerned the publication of cartoons in a children's magazine. The cartoons were a parody on an advertising campaign by a potato crisps company, Star Foods." 'via Blog this'

Defamation Act won't come into to force for all stories until late 2014

Keep the bubbly on ice, Defamation Act won't come into to force for all stories until late 2014 | PressGazette: "The new act will certainly make libel actions easier for the media to defend. Libel tourism will disappear, and the rules governing online publications will make life a lot easier for web journalists.
But … remember, the Defamation Act is not in force yet. The Government has only said it will take effect ‘later in the year’.
And many people have missed a section that is in force already. This says that the new law will only apply to articles published after it takes effect. This is because existing libel laws give claimants a 12-month deadline to start a libel action. So if a reader starts an action on 5 April, 2014, about an article that had been published nine months earlier, the paper must use the old libel laws, as they were in effect when the article was published. And it will probably lose its case.
Realistically, then, the media will not be able to use the new legislation in full until late 2014." 'via Blog this'