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 ( 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'

Summary of repetition rule: McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013)

McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013): "The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant's name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused's denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation.
If the Defendant wished to avail herself of a public interest defence, such as Reynolds privilege or reportage, she would have had to plead it. She has not done so. Given the well known risk that a victim of a real crime may make a mistaken identification of the criminal, I do not find it surprising that she has not pleaded any defence of that kind." 'via Blog this'

Restraint of republication: Tesla Motors Ltd v BBC [2013] EWCA Civ 152 (05 March 2013)

Tesla Motors Ltd & Anor v British Broadcasting Corporation (BBC) [2013] EWCA Civ 152 (05 March 2013): "I do not think that Tesla has sufficient prospect of recovering a substantial sum by way of damages to justify continuing the proceedings to trial. Nor do I think that this is a case in which the court would be at all likely to grant an injunction to prevent further publication of the film. Production of the Roadster was due to cease in 2012 in any event and it must be very doubtful whether by the time the case came to trial any purpose would be served by restraining the BBC from continuing to show it. In my view this provides an important ground of distinction between the present case and that of Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40, [2002] 1 W.L.R. 3024, to which Mr. Spearman drew our attention. It follows that I am not persuaded that the case which Tesla seeks to make by the proposed amendment has any real prospect of success, or, if successful, is likely to yield any benefit to Tesla that can justify the devotion of the substantial resources in terms of costs and the use of court time that its determination would require. I am therefore satisfied that the judge was right to refuse permission for the amendment." 'via Blog this'

Thursday, 16 May 2013

Sally Bercow pleads innocence over Lord McAlpine Twitter storm

Sally Bercow pleads innocence over Lord McAlpine Twitter storm | Politics | The Guardian: "In February, the peer, who has received £310,000 from the BBC and ITV over the allegations, announced that he was dropping defamation claims against Twitter users with fewer than 500 followers, saying he wished to "draw this unfortunate episode forced into my life to a close". But he vowed to continue to fight Bercow.
At a hearing relating to this case this year, it emerged that the Tory peer had rejected an offer to settle the dispute in November. McCormick told Tugendhat at the time that she had offered to settle the claim but did not reveal the details. In return, McAlpine's barrister pointed out that he too had offered three times to settle the claim and prevent it going to court, but each one was rejected.
Arguing that Bercow's tweet could not be seen as anything other than an innocent question about McAlpine trending, her lawyer told the court that the furore over Newsnight did not blow up until a day later when ITV presenter Phillip Schofield handed David Cameron a list of Tory names on air, including that of McAlpine, that he had found on the internet that were allegedly linked to sexual abuse." 'via Blog this'

Bahrain sentences Twitter users to prison

Bahrain sentences Twitter users to prison - Middle East - Al Jazeera English: "A Bahraini court has sentenced six Twitter users to one year in prison for allegedly insulting King Hamad bin Isa Al Khalifa, according to the public prosecutor's office. The six were charged by the lower criminal court with "misusing the right of free expression," the government statement, which was posted online, said on Wednesday. The six Twitter users were accused of writing remarks "undermining the values and traditions of Bahrain's society towards the king on Twitter", according to the statement, which did not identify the people who were accused." 'via Blog this'

Monday, 13 May 2013

Time to Abolish the BBC? Leveson missed media diversity

Craig Murray » Blog Archive » Time to Abolish the BBC: "The Leveson Inquiry was a brilliant sleight of hand which managed to get liberals arguing for more government control of the media, while the real problem – the need for a radical breaking up of media ownership – was ignored. If we fracture the Murdoch empire and break up the BBC, with radically tough regulations restricting the percentage of the market any owner can have, we have a real chance to have a diverse media and broader political debate." 'via Blog this'