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'