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Inforrm: Important privacy hearing begins over image publishing

October 14th, 2010 | No Comments | Posted by in Editors' pick, Legal

The potentially important privacy hearing of Von Hannover and Springer v Germany began yesterday at the Grand Chamber of the European Court of Human Rights regarding the publication of photographs by the media. The International Forum for Responsible Media Blog has provided a copy of the second media intervention in the case from the Media Legal Defence Initiative, the International Press Institute and the World Association of Newspapers and News Publishers.

In the submission the organisations detail the current protections for privacy and freedom of expression across Greece, Hungary, Italy, the Netherlands, France, Poland and Sweden, as well as touching on New Zealand as a comparison.

They conclude that the court should “focus on the principles adopted by domestic courts in balancing Articles 8 and 10 … while affording a wide margin of appreciation to Council of Europe member states in determining the precise balance between such rights in individual cases”.

In particular, the organisations submit that, unless the weights attributed to the factors taken into account by the national courts in performing this balancing act are manifestly inappropriate and therefore result in a decision which clearly falls outside the member state’s margin of appreciation, the findings of local courts in favour of free expression should be “set aside” only if they are shown to be clearly arbitary or summarily dismissive of the privacy/reputational interests at stake. To do otherwise would be wrong in principle, for the reasons given, and would have severe practical consequences for parties, the Court and the domestic implementation of the Convention through national measures.

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California signs new anti-paparazzi legislation into law

October 4th, 2010 | No Comments | Posted by in Editors' pick, Legal

California has signed into law legislation which seeks to provide new remedies for invasion of privacy and higher penalties for reckless driving by members of the paparrazi.

The new measures will mean that photographers can be sentenced to up to a year in prison for reckless driving while trying to photograph or film people. The law will come into effect at the start of January, according to a post on by the International Forum for Responsible Media Blog.

Inforrm also refers to Clause 1(b) which clarifies liabilities for invasion of privacy in reference to surveillance techniques:

A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording,or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.

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Inforrm Blog: Wayne Rooney and the public interest defence

Following the William Hague allegations sparked from posts within the blogging community last week, this weekend the media spotlight turned to Wayne Rooney as allegations relating to his private life were brought into the public domain by the News of the World and the Sunday Mirror, both appers accusing the footballer of having an affair with a prostitute.

In response, the International Forum for Responsible Media blog has posted an interesting analysis of the issues raised by the press coverage. These mainly centre on the distinction between a story which is argued to be ‘in’ the public interest and one which is simply ‘of’ public interest – the latter of which would not theoretically afford the same justification for publication.

What takes place between Mr Rooney and Ms Thompson behind the closed doors of a hotel bedroom is, at first sight, private. It relates to an indisputable area of private life: sexual relations. Under the general law and the clause 3 of the PCC Code, its publication requires justification in terms of the public interest.

Looking at the newspapers’ references to a public interest in their own reports, the blog argues that in this case the coverage fails to provide such justification.

The central justification appears to be the familiar one that this conduct exposes the hypocrisy of Mr Rooney’s “crafting” of “a brand of happy family life that’s helped win big-money sponsorships and endorsements”. There are a number of difficulties with this argument (…) What false public pronouncements are actually being shown to be false?  A “brand of happy family life” – even if “carefully crafted” – is not, in itself, a public statement about conduct or morality.

(…) This kind of assertion is a patently inadequate basis to justify splashing someone’s private life across the pages of the national press.

Another issue raised by the blog post is that of the right of individuals to an advance warning. The author refers with some concern to a statement in the Mail on Sunday’s report on the allegations which claims Rooney’s lawyers were aware but decided not to battle the allegation due to previous “revelations” in the media.

We do not know whether this is correct. If it is it is an unfortunate reflection on the state of English privacy law – where it is thought to be impossible to restrain the publication of patently private information because of previous press publicity. If, on the other hand, Mr Rooney was not given proper notice then this would be further support for the arguments being advanced by Max Mosley in Strasbourg in favour of a legal obligation to give advance notice.

See the full post here…

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Inforrm Blog: William Hague reports ‘postively damaging to public interest’

September 2nd, 2010 | 1 Comment | Posted by in Editors' pick, Press freedom and ethics

An interesting analysis from the International Forum for Responsible Media Blog (Inforrm) on the William Hague and Christopher Myers story and the media’s role in it:

The approach of some sections of the media to this story was not only irresponsible but is also, in seems to us, positively damaging to the public interest. If talented and accomplished politicians like Mr Hague are subject to rumour and innuendo of this kind they could be forgiven for thinking that a career in public life is not worth it. Of course the media should be scrutinising the decisions of elected politicians – including their decisions about the employment of advisers. What they should not be doing is sniping at their private lifes [sic] – forcing them to reveal matters which are deeply private and personal. The lack of public interest or benefit is plain.

Full post on Inforrm at this link…

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Jamaica’s libel reform proposals highlight issues ignored in England

August 4th, 2010 | No Comments | Posted by in Legal, Politics

The International Forum for Responsible Media blog has a post up on proposed libel law reforms in Jamaica.

As Inforrm points out, the current common law of libel in Jamaica is the same as that in England and Wales, offering an interesting comparison when looking at how their authorities have approached reform over the last three years.

The blog lists the recommendations made in 2007 by a committee assembled by the country’s prime minister to assess its defamation laws, from changes to the limitation period which would match it to English law and the introduction of a defence of ‘triviality’, to guidelines for the assessment of damages. But much like English libel law in recent times, the years have now passed with no actual reform yet to speak of.

A Joint Select Committee was set up to consider this report and has not yet reached any conclusion. The Media Association of Jamaica and the Press Association of Jamaica made joint submissions to this Committee which, in general, supported the recommendations but raised additional points on the capping of damages and a “wire services” defence.

The Small Report is interesting as it shows how another jurisdiction – with similar libel laws to those in England and Wales – has grappled with the problems of reform. It is particularly noteworthy that in Recommendations eight and nine it has directly confronted issues of “remedial reform” which are ignored by the Libel Reform Campaign and by Lord Lester’s Defamation Bill.

See the full post here…

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English PEN director describes ‘careful balancing act’ of libel reform

Jonathan Heawood, director of English PEN, part of a coalition of libel reform campaigners in the UK, has a detailed post on the International Forum for Responsible Media (Inforrm) blog about the NGO and its stance on the public interest defence in libel reform.

He discusses the criticisms the group has faced in relation to its campaign from both sides and the difficulty of finding a balance accepted by everyone.

Nonetheless, both organisations, and our coalition partners at Sense about Science, have been routinely attacked throughout our campaign for libel reform for promoting a ‘defamers’ charter’, that would give the media a licence to print defamatory stories without restraint.

Needless to say, this has never been our intention. As human rights charities, we recognise the need – in the words of Alastair Mullis and Andrew Scott – to ‘strike a fair balance between private reputation and public information.’ Their suggestion that this has never been a ‘motivating factor’ for us seems ungrounded.

I have to report that, when we have attempted to strike this balance too carefully, we have been attacked from the other side for weakening the cause of libel reform. The course of public benefit never has run smooth.

He goes on to outline his hopes for the future government libel bill, discussing the scope of the Reynolds defence and burden of proof for both claimant and defendant.

I would suggest that we begin a new Libel Bill by defining the tort as the publication of inaccurate and damaging material about an identifiable individual or corporate entity. We would then require claimants to show that the publication is inaccurate and damaging. Only if claimants had been able to show this would the court ask respondents to mount a defence, based on one of the three headings of truth, honest opinion or public interest.

See his full post here…

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An appreciation as long-serving legal manager leaves the Times

July 22nd, 2010 | No Comments | Posted by in Editors' pick, Legal

The Inforrm blog has a post up today looking at the work of Alastair Brett, the Times’ legal manager who has left the newspaper after 30 years.

It highlights the many campaigns Brett was behind to improve media law, such as disclosing offered payment of damages to a jury as well as establishing the “Fleet Street Lawyers’ Society”, which campaigned for press freedom before the Media Lawyers Association and various campaigns for libel law reform.

Alastair Brett has been central to many campaigns for the reform of libel law and procedure over more than two decades, writing in the Times, lobbying Government and Parliament and speaking frequently at legal conferences.

The article looks back along Brett’s career since joining the broadsheet in the late 1970s, from the major cases he fought to the causes he supported.

See the full post here…

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High court ruling imposes new ‘threshold of seriousness’ for defamation

An interesting and significant ruling on defamation was yesterday made in the High Court; here’s a quick round-up from the reports.

Mr Justice Tugendhat dismissed the claim that part of Lynn Barber’s Daily Telegraph review of ‘Seven Days in the Art World’ by Sarah Thornton (in 2008, but no longer available online) was defamatory.

The Lawyer reports:

Thornton brought the defamation action against The Daily Telegraph after journalist Lynn Barber claimed in a review of Thornton’s book Seven Days in the Art World that the author gave her interviewees copy approval – a practice of which Barber said journalists disapproved.

TMG’s lawyer, David Price Solicitors & Advocates, said that the ruling was a judgement that “raised the threshold” for defamation.

In a statement, the solicitor says:

Solicitor Advocate David Price, acting for the Telegraph Group, successfully argued for a qualification, or threshold of seriousness, to be applied to defamation claims in order to prohibit trivial claims, thereby effectively raising the bar for claimants.

Mr Justice Tugendhat, accepting this argument gave a new definition of what may constitute defamation as follows [para 95 of Tugendhat judgment]:

“the publication of which he complains may be defamatory of him because it [substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”.

Inclusion of the word “substantially” is crucial and is likely to set a higher bar for defamation cases in future.

The Inforrm blog also emphasises this point, stating that a “novel ‘threshold of seriousness'” had been entered into the legal definition of what constitutes a “defamatory” imputation. “The consequences are potentially far reaching,” it continues.

Read Inforrm’s full post and comment at this link…

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William Bennett on libel reform: ‘The real crux of the problem is not the law but the excessive costs of deploying it’

June 4th, 2010 | 2 Comments | Posted by in Editors' pick, Journalism, Legal

As promised earlier this week, the Inforrm blog continues to offer challenging discussion around the arguments posed by the Libel Reform campaign. Here, it reproduces an article by William Bennett, barrister at 5RB, that originally appeared in the Solicitor’s Journal.

“Think again: the recent campaign for libel reform is not based on careful consideration,” he argues.

The real crux of the problem is not the law but the excessive costs of deploying it – and Parliament should abolish the right to jury trials in defamation. Such reform, particularly if implemented in conjunction with the proposals set out in Lord Justice Jackson’s recent review of civil litigation costs, would dramatically cut the cost of defamation litigation. In turn this would promote freedom of speech in a way which would not compromise the rights of those defamed.

Disclaimer: Journalism.co.uk has pledged its support to the Libel Reform campaign and is listed as a supporter.

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