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Category Archives: Media law

Grenfell effigy bonfire and Section 4A – a flawed piece of legislation

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Was a criminal offence committed when a group of friends took it into their head to mock up a Grenfell Tower cardboard effigy and set it ablaze on Bonfire Night? The short answer would seem to be … it’s complex – and that the law six of them have been arrested on is deeply flawed and potentially oppressive.

The question for the police is: did their action amount to causing intentional harassment, alarm or distress according to Section 4A of the Public Order Act 1986? This says:

  1. A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
    (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
    (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
    thereby causing that or another person harassment, alarm or distress.

The cardboard Grenfell Tower is a “visible representation” and setting it alight is “behaviour”. But the issue is the motivation of those doing it. Leaving aside the social media issue, the burning of the effigy was in a private garden – possibly among like-minded friends. Can the police show intention to cause  harassment, alarm or distress to a particularly defined group? Can they also show that such harm was, in fact, caused?

The Section 4A provision of the Act that the police are using is something of a confused botch-up. Significant parts of the Public Order Act are very much about public, open places or public buildings. It is about avoiding public disorder: riot, affray, provocation of violence; that sort of thing.

But Section 4A was introduced in the Criminal Justice and Public Order Act 1994, at a time when a new sense of public threat was abroad under a tough new Home Secretary, Michael Howard (the 1994 Act also cracks down on trespassers and squatters). The political focus was on victims and toughening up the law dealing with the remarkably subjective harms of “harassment, alarm or distress” (wording also in Section 5, and controversially so; see Harvey v DPP 2011; see here) but not explicitly in a there-and-then public space.

In contrast, Section 4 (part of the original Act) on provocation uses similar wording, criminalising threatening, abusive and insulting words and behaviour and visible representations etc but only insofar as there is “intent to cause that person [the victim] to believe that immediate unlawful violence will be used against him or another by any person”.

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Can Sir Philip Green suppress media interest in his ‘banter’?

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So it was just banter. That is how British entrepreneur Sir Philip Green is defending his behaviour towards employees – and presumably defending his right to keep his behaviour secret with the full weight of a permanent High Court injunction. But hasn’t his statement to the Mail on Sunday (“There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive”) rather undermined his case for such an injunction?

The essence of the case is that his behaviour, as covered by non-disclosure agreements with alleged victims, is a private matter. It comes within the English Common Law “equitable doctrine of confidence”, that is to say confidentiality, particularly applicable to the relationship between employer and employee. “The doctrine serves the public interest by encouraging trust, candour and good faith in legal relationships,” as Mr Justice Haddon-Cave expressed it in the original High Court injunction case (which Green and two associated companies lost).

One has to ask, of course, whether Sir Philip’s “banter”, was likely to encourage “trust, candour and good faith” with his employees. He insists: “I’ve got a good relationship with all my staff” – though some would seem to disagree. But the legal point is that Green and his lawyers have to establish the issue as one of confidentiality/privacy since that is the only way they can exercise power over the media to bar publication. This is the reason for his rather carefully worded (and hence rather odd) statement when his name was revealed in the House of Lords by Peter Hain:

“to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour, I categorically and wholly deny these allegations”.   

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Libel juries: How Tim Yeo and Warby J buried the Seven Bishops

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It is ironic – and perhaps a little shocking – that an early high-profile beneficiary of Britain’s abolition of the right for juries to try libel cases should be a Member of Parliament – one who will doubtless have supported the Defamation Act 2013 that removed the long-standing right. So, step forward Tim Yeo, who will not (thanks to the new law and a sympathetic judge) have 12 jurors facing him in court who need to be persuaded that he did not show willingness “to abuse his position in Parliament to further his own financial and business interests in preference to the public interest“.*

Yeo succeeded in challenging Times Newspapers’ attempt to have a jury empanelled – but might be mortified that Mr Justice Warby in Tim Yeo MP v Times Newspapers decided the case could do without a jury because Yeo is just not an important enough figure to warrant one. Some public figures (government ministers or judges, perhaps, rather than footballers or celebs) might have to face a libel trial jury, but the moderately high and not-so-mighty-now Mr Yeo doesn’t quite cut the mustard.

More significantly, Warby’s decision about a jury has ditched centuries of legal and constitutional  principle, denying any public interest right for defamation cases involving senior public servants to be tried by those representatives of the public who constitute juries. But some background is needed.

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Paul Weller’s children: another brick in the wall of privacy law

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The judgment in the privacy case of three of pop singer Paul Weller’s children (Weller v Associated Newspapers has caused a little confusion – not least among some of the press who might be expected to need to understand it best.

 

Mr Justice Dingemans has perhaps added another small brick in the developing English law of privacy – clarifying when pictures of stars can and cannot be published when they are going about their private lives. Here’s a brief rundown.

 

There is no tort of invasion of privacy in England. You can, in general, take pictures of whomever you want so long as you aren’t invading property rights to do so. Nor, broadly speaking, are their specific rights to those images belonging to the people who feature in them.

 

However, Dingemans notes: “After the enactment of the Human Rights Act 1998, claims for misuse of private information were absorbed into the established claim for breach confidence; see A v B plc [2002] EWCA Civ 337 at paragraph 4. In paragraph 53 of Douglas and others v Hello! Ltd and others (No.3) [2005] EWCA Civ 595 Lord Phillips said “we cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion”. (Para 20)

 

In other words a privacy law is being bit by bit put together by the courts from the old Common Law of confidence (ie misuse of confidential information) and the European Convention on Human Rights – balancing Article 8 (right to family life) with Article 10 (freedom of expression including right to publish photographs of people).

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Did Stuart Hall ‘attempt to influence jurors’ in sex abuse case?

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The Lord Chief Justice has left the media, high profile alleged sex abusers and their lawyers in something of a quandary following the up-rating of UK broadcaster Stuart Hall’s prison sentence for 14 sex offences.

Lord Judge in the Court of Appeal criticised a “manipulative” Hall for attempting to influence potential jurors in his public comments reported in the media denying the charges before his eventual admissions in court.

Lord Judge is reported as saying: “Whatever legal advice the offender has been given, he knew the truth. He knew he was guilty of molesting these girls … This deliberate falsehood was a serious aggravating feature because here was an expert in the ways of the media, fully alert to the possible advantage of manipulating the media, at that point hoping to escape justice. He was attempting to use the media for the purpose of possibly influencing a potential juror.”

There has been a long tradition of people accused of offences denying in no uncertain terms any guilt before they come to trial and a tradition of full media reports of those denials – even though pre-trial reporting is, in law if not in practice, severely restricted by sub judice rules (broadly speaking to items such as name of accused, age, address and the charges – but not evidence, confessions). Indeed the media tends to make a practice of ensuring such denials are reported when they are made, even if only tacked to the end of the article. Read the rest of this entry

The Truth: Kelvin MacKenzie is wrong about Hillsborough headline

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Sometimes one can only think the tabloid press will disappear into the black hole of its self-created paradoxical backside. Surely the moment has arrived with Kelvin MacKenzie demanding an apology from the police for giving him information that led to the notorious “The Truth” headline in his Sun blaming fans for much that went wrong in the 1989 Hillsborough disaster.

His argument is that other papers used the same police information but he is the only editor in fear of heading towards the north-west lest he suffer vilification or worse.

The issue at the heart of this is whether information from the police, in the middle of an investigation, can be treated as “the truth” for the purpose of relaying it to readers. And here’s the crashing, ironical paradox. This is what Kelvin’s view was last year when the Guardian took too literally something the police had told them about his former employer’s role in the Millie Dowler phone hacking affair:

So the cops in Surrey told you [the reporter] the story was true – or so you claim. The cops at the Yard told you it was true – or so you claim. Every aching bone in your reporter’s anti-Murdoch body told you it was true. But there was a problem – as we all now know today. The Milly Dowler story that led The Guardian on that fateful day back in July was untrue: there is no evidence to show that the News of the World deleted Milly’s voicemails.”

There was no such evidence – except for what the police suspected (and possibly even believed to be true) and had suggested to the Guardian, which accordingly printed it. Later everyone rowed back and an apology was issued (MacKenzie says it was unintelligible – but that’s the Guardian for you.)

MacKenzie gives a reason why the Guardian wanted to believe the police’s comments – it hates News International. He does not explain why “every aching bone” in his own editorial body wanted to believe that Liverpool fans urinated on police officers resuscitating the dying and stole from the dead. He does not explain why all the lies used to obscure official failings during the disaster were to be treated as “The Truth”.

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Libor libel: has George Osborne defamed Ed Balls?

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Following UK Chancellor George Osborne’s apparent fingering of former Labour Government figures over the Libor affair – and his failure to either apologise or substantiate the claims, the question arises, has Osborne libelled his opposite number Ed Balls or members of the previous Labour Government?

Baroness (Shriti) Vadera has acted to ensure the media does not imply her involvement in pressing Barclays to reduce its Libor Panel submissions (she was former financial adviser to the Labour government in 2008 and had legitimately expressed the need for Libor to come down) and she has gained the deletion of a section of Question Time in which journalist Dominic Lawson repeated the Osborne claim.

Basically Osborne’s allegation is that people close to former prime minister Gordon Brown “were clearly involved” in the Libor issue – and the interview in the Spectator suggests he means they were involved in pressing for Barclays to reduce its Libor Panel submission so Libor would fall with a beneficial effect on interest rates generally.

The truth of the matter is that the Government was indeed worried about Libor and Barclays’ high submissions – and considered perfectly legitimate assistance to bring it down (explained in The still missing killer email). There is no evidence of wrongful pressure brought on Barclays by Vadera or Balls (who was Children’s Secretary at the time, not with the Treasury).

Libel is a defamatory statement in a permanent form – including broadcast in these iPlayer, YouTube days. The BBC would not be liable for Dominic Lawson’s live statement “as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement” (S.1(3)(d) of the Defamation Act 1996) but probably would be liable if it kept it on a BBC website.

To prove libel it has to be shown that the statement was defamatory, that it was published and that it referred to the complainant (including that the person is identifiable if unnamed). To avoid liability the defendant must then prove it is true or “fair comment on a matter of public interest” or was covered by privilege – as Osborne’s comments in Parliament were, though not those to the Spectator. Defamation is an untrue statement that injures someone’s reputation including lowering him or her in the esteem of right-thinking members of society. On the face of it suggesting illegitimate pressure on Barclays would damage the reputations of those against whom the allegation is made.

Osborne, since the most recent revelations and testimony that fail to support his apparent implication has not elaborated or apologised, simply repeating that Balls “has questions to answer”.

Here, to give context, are some extracts from the Spectator article. It makes clear that Osborne was in a good mood as a result of the Libor scandal: “He saw almost instantly that a story that started with 14 big boys at Barclays trying to make a profit by hook or by crook could fast turn into something that threatens to destroy reputations in Westminster as well as in the City.” (Trashing reputations is what gets George Osborne up in the morning – even at the expense of a trashed economy all around him.*)

This element of the story is about failed regulation from 2006-08 when the Barclays boys were trying to manipulate Libor for profit. It is arguably fair enough to make political hay out of this sort of thing on the grounds that it happened on Labour’s watch and under Labour regulations – it is fair comment on a matter of public interest.

‘They were clearly involved and we just haven’t heard the full facts, I don’t think, of who knew what when’ – Spectator’s ‘bombshell’ Osborne quote

But the article goes further, focusing on late 2008 when the Government and the Bank of England wanted interest rates down and were concerned that Barclays was keeping them up through its Libor submissions. The article has Osborne first blaming the regulatory system for Barclays’ 2006-08 behaviour but it then goes on:

But suddenly, and far more explosively, he moves on to the political efforts to keep Libor low during the financial crisis of 2008.As for the role of the Labour government and the people around Gordon Brown, well I think there are questions to be asked of them’, he says. He starts to discuss reports that those in the Brown circle were pressuring Barclays to manipulate the Libor rate it was paying. Then he drops a bombshell: ‘They were clearly involved and we just haven’t heard the full facts, I don’t think, of who knew what when’.”

This, the Spectator goes on to say, “is a remarkable charge” – “But Osborne does not stop there.”

He continues: ‘My opposite number was the City minister for part of this period [May 2006 to June 2007] and Gordon Brown’s right-hand man for all of it, so he has questions to answer as well. That’s Ed Balls, by the way’.” For these last words, Osborne leaned close to the reporter’s microphone, we are told.

Thus the two issues become conflated, apparent failure of regulation, alleged pressure on Barclays to manipulate Libor. The Spectator is clear that none of this is “the usual political point-scoring” but “crucial to Osborne’s electoral ambitions”.

The potential libel, then, is specifically about 2008 and centres on the words “they were clearly involved”, meaning Labour Government figures. The Spectator wonders whether Osborne “intended to bring into question Balls’s defence that he couldn’t have known about any-rate fixing as he was Secretary of State for Children at the time”.

No defence
The fact that Osborne has not named those “clearly involved” would be no defence to a libel action if people such as Vadera or Balls were clearly identifiable as the target of the allegation. Vadera
is, arguably, identifiable, which, one might assume, is why she has taken action against the media to stop repetition of the untrue claim – libellous if deemed to be damaging to her reputation.

Balls, given his Children’s brief at the time, is less identifiable – except that Osborne seems to bring him into the frame as Brown’s “right-hand man for all of it” – meaning the whole period of 2006 to 2008. The Spectator suggests Osborne is seeking to undermine Balls’s Children’s Secretary defence – but that is not the same as Osborne actually pointing the finger at Balls regarding alleged government manipulation attempts.

This leaves Alrich in some difficulty. The burden of the allegations has been reproduced here. Repetition of someone else’s libels is still libel – even, in many cases, if you make clear you don’t believe it. All being well, though, a defence of “fair comment on a matter of public interest” will put paid to that.

There is, however, also a danger of suggesting that the Spectator, rather than Osborne, has committed a libel by its contextualising commentary on what Osborne said – implying it was directed at Balls by undermining his Children’s Secretary defence and implying it relates to the untrue claim of government pressure on Barclays rather than the just the regulatory background to Barclays’ Libor manipulation.

The answer to that would be that the man on the Clapham omnibus reading the Spectator (if he still bothers, rather than picking up a free copy of Metro like most people) would indeed draw that conclusion from the words published.

If Osborne did mean to point the finger at Balls, the Spectator’s implications that he did are not untrue – but the substantive allegation remains (we believe) untrue. The Spectator would be on the hook for publishing the claims even though they are Osborne’s. On this reading, the “bombshell” bit of what Osborne said was libellous and the Speccie should not have published it.

One suspects Osborne will rely on some of this for his own defence. He will insist that nothing he actually said explicitly or impliedly suggests Balls approached Barclays or was involved in a decision to approach Barclays to push down Libor. His attack was more of a scattergun affair justified as political knockabout or “fair comment on a matter of public interest” ie comment on the regulatory failure.

However, he has had ample opportunity to clarify which allegation he is making and has failed to do so. So what can be concluded with any safety? Perhaps we may use Osborne’s own formulation: the whole issue leaves him with questions to answer.

*Note: This, on the face of it, shocking suggestion – that Osborne cares more about scoring points against his opponents than dealing with bankruptcies, unemployment and rising poverty in Britain. It qualifies as a statemnt likely to bring him into “hatred,  ridicule and contempt”, according to the libel law formulation. Fortunately we are able to ridicule politicians, not merely because they are very often ridiculous, but also because “mere vulgar abuse” is accepted and excepted under libel law.

A more detailed look at the legal issues, including relevant cases, is here
See also the Defamation Bill 2012 PDF version, 113KB


Cameron sacrifices Jeremy Hunt and the British constitution

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The Jeremy Hunt affair in Britain has shown that the problem with being governed by ex-policy wonks and PR men rather than politicians is that they tend not to be imbued with a sense of the great historical struggle for liberty and a Parliament free and independent from the monarchy that has culminated in placing them in the positions of power they enjoy today. As a result they play fast and loose with the British constitution and let those great freedoms drain away for the sake of political expediency.

Take Article 9 of the Bill of Rights of 1689 for example. It says: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

What Article 9 emphatically does not say is: “If the prime minister is in a tight spot and needs a bit of breathing space, he can pack his Culture Secretary off down the Road to the Royal Courts of Justice, there to hang him out to dry by having him cross-examined by Queen’s Counsel before one of her majesty’s most learned Lord Justices.”

Any such suggestion would be anathema to Prime Minister David Cameron’s forebears and it took several civil wars and the Glorious Revolution to ensure that, constitutionally, there should never be such a suggestion. Oddly, David Cameron himself  is generally rather opposed to “unaccountable judges” second-guessing the decisions of democratically accountable ministers (as pointed out here). He has made a special exception for Hunt.

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Rebekah Brooks can’t get a fair trial? Tell it to the judge

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It would be enough to make a Sun leader writer’s blood boil. If a gang embarked on illegal activities (allegedly); if it had at the centre of it (allegedly) a heartless flame-haired “criminal-in-chief” (as a former associate put it) allegedly linked (according to a deputy assistant commissioner of the Metropolitan Police no less) to “a network of corrupted officials” within an alleged “culture of illegal payments”; if this happened and they all got off on the basis of a loophole in the law, think how the Currant Bun would fulminate. You couldn’t make it up!

Unfortunately someone has, let’s say, been somewhat free with the legal actualité, throwing into doubt the chances of former Sun editor Rebekah Brooks (for it is she allegedly*) and her colleagues ever receiving a fair trial for their (alleged) misdemeanours in the (so-called) hacking scandal.

The issue is that there has been “huge, dramatic and sensational” press coverage of the hacking story and particularly of the Leveson inquiry at more or less the same time as police have been stumbling towards the conclusion (one hopes) of their investigations into the matter. Anyone reading that coverage will be seriously prejudiced against Brooks et al. There is no jury in the land that would be able to give them a fair trial. This is the argument of Stephen Parkinson, Brooks’s solicitor

There is, of course, one jury that might have missed the “huge, dramatic and sensational” coverage: one made up from the many millions of good men and true (and women too) who read the Sun, since its coverage has been rather modest, restrained and unsensational. But leaving that aside, given the Leveson inquiry, can Rebekah Brooks get a fair trial?

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Leveson inquiry and privacy law: kiss goodbye to kiss-and-tell

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One assumes that, when the Sun or News of the World reporters were gathering material on the peccadillos of X-Factor contestants, football stars and Formula One bosses, Article 8 of the European Convention on Human Rights was somewhat distant from their minds. This, after all, is the one that says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

So when Lord Justice Leveson during his inquiry into phone-hacking and related matters asked of former News of the World chief reporter Neville Thurlbeck: “Did anybody or did you give any thought to the Article 8 rights of the women?” meaning those in the Max Mosley affair, the answer was a little slow in coming but predictable: “There was no discussion about that.

Why would there be? After all, why let Article 8 of the European Convention on Human Rights get in the way of a good story?

But in fact Mr Thurlbeck showed the concept of privacy law was not wholly alien to him: “I would say the ‘kiss and tell’ story is now largely dead as a genre. In the last three years, we’ve taken great note of privacy matters.” There were now two questions asked of a story:  “That was the second question after ‘is it true’: ‘is it intruding into privacy?’”

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