West Law Report

Libel Tourism

Posted in Defamation by mrkooenglish on May 15, 2008

Mark Stephens wrote that “Too many foreigners jet in to sue foreign publications, authors and broadcasters before our claimant-friendly libel courts”. UK courts welcome “Foreigners unable or unwilling to take their chances before their own courts”.

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Privilege survives addition of extra material

Posted in Defamation Act, Privilege (Defamation), Times Law Report by mrkooenglish on May 10, 2008

From The TimesMay 6, 2008

Privilege survives addition of extra material
Court of Appeal

Published May 6, 2008

Curistan v Times Newspapers Ltd

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Laws and Lady Justice Arden Judgment

April 30, 2008

The privilege which attached to a fair and accurate report of parliamentary proceedings was not necessarily lost because of the addition of extraneous nonprivileged material in the same article.

The meaning of the nonprivileged passages in such an article was to be ascertained on the basis that the privileged passages merely provided the context in which the other statements were made and the repetition rule, under which in libel law a hearsay statement was the same as a direct statement, had no application to the privileged passages.

The Court of Appeal so held in a reserved judgment dismissing an appeal by the claimant, Peter Curistan, and allowing a cross-appeal by Times Newspapers Ltd against the decision of Mr Justice Gray (The Times May 10, 2007; [2008] 1 WLR 126) on the trial of preliminary issues in a libel claim.

The claim was brought following publication of an article in The Sunday Times on February 19, 2006, reporting a speech by Mr Peter Robinson, MP, in Parliament alongside other material.

The judge held, inter alia, that, when ascertaining the meaning of a newspaper article where part but not all of the article was protected by privilege, the court should consider the article as a whole, and that when considering whether the qualified privilege, which by section 15(1) of, and Schedule 1 to the Defamation Act 1996 attached to a fair and accurate report of parliamentary proceedings, was lost because of the addition of extraneous nonprivileged material in the same article the court had to decide whether the extraneous material had the effect of rendering the article as a whole substantially lacking in the qualities of fairness and accuracy on which the privilege depended.

Mr Richard Parkes, QC and Mr Matthew Nicklin for Mr Curistan; Ms Victoria Sharp, QC and Ms Alexandra Marzec for Times Newspapers.

LADY JUSTICE ARDEN said the essential issues were the availability of qualified privilege for statements in Parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the newspaper’s own investigative findings.

The first issue was largely fact-specific but the second issue involved a novel challenge to the so-called repetition rule which generally applied to reported speech in defamation proceedings.

Section 15 of the 1996 Act constituted a mandatory rule of law that fair and accurate reports to which it applied and which satisfied the conditions set out in that section were entitled to qualified privilege.

One of the requirements of a fair and accurate report was that the quality of fairness must not be lost by intermingling extraneous material with the material for which privilege was claimed.

The maker of a report would be liable in defamation for allegations entitled to reporting privilege if he adopted them as his own. The judge correctly applied those principles to the privileged passages and correctly concluded that they were entitled to qualified privilege.

In the case of an article consisting in part only of passages entitled to reporting privilege, the meaning of the nonprivileged passages was to be ascertained on the basis that the privileged passages merely provided the context in which the statements in the nonprivileged passages were made, and the repetition rule, under which for the purpose of libel law a hearsay statement was the same as a direct statement, had no application to the privileged passages.

The Lord Chief Justice and Lord Justice Laws gave concurring judgments.

Solicitors: Schillings; Mr Alastair Brett, Wapping.

The Future of Reputation

Posted in Authors@Google, copyright, Defamation, Law and information, online privacy by mrkooenglish on May 7, 2008

Authors@Google: Daniel Solove
Feb 2008

(53 min)

Daniel J. Solove, an associate professor of law at the George Washington University Law School discusses his book “The Future of Reputation“:

What information about you is available on the Internet? What if it’s wrong, humiliating, or true but regrettable? Will it ever go away? Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cyber mobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Longstanding notions of privacy need review, the author contends: unless we establish a balance among privacy, free speech, and anonymity, we may discover that the freedom of the Internet makes us less free.

WARREN v RANDOM HOUSE GROUP LTD

Posted in Defamation Act, Libel, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 03/01/2008

Queen’s Bench Division
Gray J
December 5, 2007

Libel – Offer of amends – Permission to amend – Effect on assessment of damages – Burstein particulars – s. 2 Defamation Act 1996 – s. 3(6) Defamation Act 1996

FACTS

The defendant publisher (R) applied for permission to amend its defence in libel proceedings with the claimant boxing promoter (W). W applied to strike out certain particulars of R’s defence.

R had published a book that contained three alleged defamatory passages about W. With regards to the first of the passages, W claimed that the natural and ordinary meaning of it was that W had dishonestly conned a boxer into accepting a pitiful fee for a fight by lying to him about how much he could be paid. Another passage related to a purported failure by W to vary the agreement with the boxer when it emerged that an American company was to televise the fight on American television.

R had advanced pleas of justification in respect of that passage and made an offer of amends pursuant to the Defamation Act 1996 s. 2. W had accepted that offer. Thereafter R was refused permission to substitute a plea of justification for its offer of amends. R subsequently sought to amend its defence so as to adduce evidence of various particulars of purported fact on the basis that they were directly relevant to the contextual background to the publication complained of. In particular R contended that the amendments in question were justified in accordance with the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 as the offer of amends had been made by it on a mistaken basis and it learned, after the making of the offer of amends, that the allegation complained of by W was true.

ISSUE

Whether the amendments in question were justified in accordance with the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 as the offer of amends had been made by it on a mistaken basis and it learned, after the making of the offer of amends, that the allegation complained of by W was true.

HELD (judgment accordingly)

(1) It was impossible to lay down rules as to what was to be permitted to be adduced as being directly relevant to the contextual background to a publication complained of, Burstein applied. It was for a judge to decide in the exercise of his case management powers on a case by case basis.

In performing that function a judge had to have regard

  1. to the need to be fair to both parties,
  2. to the need to ensure that damages were not assessed on a false basis and
  3. to the overriding requirement of proportionality.

In the ordinary way Burstein particulars would be relied upon by a defendant who was contesting liability and seeking to mitigate the damages payable to a claimant, as such it was important not to lose sight of the fact that in the instant case R had offered amends to W and had apologised to him in respect of the allegation complained of. Accordingly there was no contest as to liability in respect of that allegation.

That did not of itself mean that R was debarred from relying on Burstein particulars for the purpose of the judicial assessment of damages under s. 3(6) of the Act but the latitude to be afforded to R in regard to the Burstein particulars could not be wider on such an assessment than it would have been if R was seeking to reduce damages in the context of a denial of liability. The amendments sought by R in so far as they related to an assertion that W had allegedly made illegitimate and dishonest deductions from the boxer’s purse were impermissible and fell to be struck out. The admission of such allegations amounted to an attempt by an indirect route to enter what in effect was a plea of justification in a case where R had elected to follow the offers of amends and had participated in a public apology to W. Moreover to permit those amendments would result in a prolonged contest as to the rights and wrongs of W’s actions that would be disproportionate to a proper assessment of damages.

(2) However, it was appropriate to allow R to amend its defence in so far as those amendments related to a purported failure by W to vary the agreement with the boxer when it emerged that an American company was to televise the fight on American television. If damages were to be assessed in ignorance of the fact that the American company had acquired the rights to televise the fight after the boxer’s purse had been agreed the judge carrying out that assessment would be doing so without the necessary facts and there was a risk of damages being assessed on a false basis.

(3) J’s claim for false imprisonment was in tort. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 s. 11(1) rendered Iraqi law the applicable law. There were insufficient grounds for displacing, under s. 12 of the Act, Iraqi law as the applicable law.

Adrienne Page QC and William Bennett (instructed by Carter-Ruck) for the claimant. Desmond Browne QC and Matthew Nicklin (instructed by Simons Muirhead & Burton) for the defendant.

MALIK v NEWSPOST LTD & OTHERS

Posted in Libel, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 17/01/2008

Queen’s Bench Division
Eady J
December 20, 2007

Libel – Newspapers – Privilege – Responsible journalism – Unsubstantiated allegations of fact in newspaper – No effort to obtain claimant’s comment or check facts – Availability of defence of Reynolds privilege

FACTS

The court was required to determine the availability of the defence of privilege in a libel claim brought by the claimant Labour Member of Parliament (M) against the defendants in respect of two publications.

The first publication was a reader’s letter written by the third defendant (S) to a newspaper owned by the first defendant and edited by the second; the second publication was a subsequent interview with S in the same newspaper. Both publications were concerned with a recent local council election in M’s constituency in which S had lost to a Labour candidate.

M’s pleaded natural and ordinary meanings of the publications were that M had organised and directed gangs to disrupt the voting and to threaten and intimidate voters, and was therefore guilty of serious criminal offences, that he had exhorted and put improper pressure on voters to vote according to their ethnic or religious affiliations and that by his actions he had shown himself to be a racist and dangerous extremist who was not fit to hold public office. The newspaper did not make contact with M before publication and did not report any response from him. At the close of evidence M invited the judge to decide whether the defence of privilege under Reynolds v Times Newspapers Ltd [2001] 2 AC 127 was available to the defendants.

ISSUE

Whether the Reynolds defence was available to the defendants.

HELD (judgment accordingly)

It was clear that neither publication could remotely be classified as investigative journalism, yet it was that type of journalism that the defence was intended to protect or promote. The courts had not previously addressed the question of how far, if at all, it could assist a contributor, such as S, who was not a journalist and was not performing the functions of a journalist. On the face of it, therefore, Reynolds privilege would have no application.

Yet it was necessary to consider the broader issues of public policy upon which were founded not only Reynolds privilege, but also the closely related public-interest privilege previously applied from time to time, Adam v Ward (1917) AC 309 considered. Sometimes it could be in the public interest for allegations to be generally disseminated through the media by means that could not be labelled as journalism. There could be circumstances where it was the information itself, and the public interest in receiving it, that was important rather than the means of conveying it. In such a case, some of the public policy considerations identified in Reynolds might well be engaged.

Therefore privilege obviously could not be ruled out of court altogether just because the instant circumstances did not exactly match those discussed in earlier Reynolds -type cases. There was no doubt that the subject-matter of the publications was of public interest, but that alone did not mean that it was in the public interest to publish any such allegations irrespective of their truth or falsity. If a defendant was to be spared the burden of proving the truth of such allegations, and to avail himself of a public interest defence, certain conditions had to be fulfilled, because the public interest itself required that some filter be applied to allegations that were liable to damage the reputations of those who were attacked, Reynolds applied. S had not merely reported allegations, he had made allegations of fact.

There was no authority to support the proposition that he could do so to the world at large without having to prove that they were substantially true. As to the newspaper and its editor, there would be circumstances in which such allegations could be reported under the cloak of privilege, provided

  1. they had first taken steps, such as obtaining a response from M in advance of publication or carrying out other corroborative checks.
  2. Moreover, if both sides of the controversy had been fairly and disinterestedly reported, there might have been a reportage defence, Roberts v Gable [2006] EWHC 1025 (QB), [2006] EMLR 23 considered.

In the case of allegations as serious as those made by S, more determined attempts should have been made to give M the chance to comment. No such effort had been made and that was fatal to the first and second defendants’ plea of privilege.

Adam Wolanski and Victoria Jolliffe (instructed by Bindman & Partners) for the claimant. Jonathan Crystal (instructed by Fox Hayes) for the defendants.

BLACKWELL v NEWS GROUP NEWSPAPERS LTD & OTHERS

Posted in Libel, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 17/01/2008

Queen’s Bench Division
Eady J
December 12, 2007

Football – Libel – Malice – Public policy – Qualified privilege – Comments not response to attack – Public policy reasons to afford privilege

FACTS

The third defendant (K) applied for summary judgment under the Defamation Act 1996 s. 8 in respect of libel proceedings brought by the claimant (B). In the alternative K applied for summary judgment under CPR Pt 24 in respect of the issues of qualified privilege and malice with a view to limiting the scope of the trial.

K was the chairman and B had been the manager of a football club (L). B’s employment was terminated and a statement was released by L to the effect that K and B had agreed that they would not make any further public statements relating to B’s time at L and his dismissal. The following year, at a point at which L were close to being relegated, a newspaper article appeared in which B was quoted as saying that he was a good manager and that if he had remained as manager of L the club would not be in the position it was. Three days later an article appeared in the same newspaper in which K was quoted as saying that B made excuses; that B’s managerial incompetence would have resulted in L’s relegation at an earlier stage of the season; and that he lost control of the dressing room. B brought proceedings against K on the basis of that article. K submitted that

  1. (1) his comments constituted a “reply to attack” and were protected as a form of privilege at common law;
  2. (2) K had a legitimate interest to make the allegations he did and a corresponding interest in the readers of the newspaper to see what he had to say;
  3. (3) alternatively, if and insofar there were defamatory allegations about B contained in the article, they were plainly to be characterised as comments.

ISSUES

(1) Whether K’s comments constituted a “reply to attack” and were protected as a form of privilege at common law.

(2) Whether K had a legitimate interest to make the allegations he did and a corresponding interest in the readers of the newspaper to see what he had to say.

(3) Whether alternatively, if and insofar there were defamatory allegations about B contained in the article, they were plainly to be characterised as comments.

HELD (judgment accordingly)

(1) What K said could not be characterised as responding to an attack. He was simply criticising those he thought had contributed to L’s problems.

(2) When the readership ran into millions, as was the case of the newspaper in which K’s comments were published, there must be some cogent reason of public policy that defamatory remarks needed to be accorded a cloak of privilege. If K wished to attribute or spread the responsibility for L’s difficulties, that was his entitlement, but public policy did not require that he should be allowed to attack whomsoever he pleased to millions of people under cover of privilege. There was no duty on his part to do so; nor a legitimate common and corresponding interest in the subject matter as between him and the readers. If the jury were to hold that B had been defamed, K must rely on alternative defences.

(3) The allegation of losing control of the dressing room was one which was capable of being categorised as an assertion of fact. A jury would not be perverse if it so held. It could be characterised as comment also, since “losing control” might be a matter of opinion and degree. The court was not prepared to rule that the words were bound to be classified as comment only or that the defence of honest comment was bound to succeed. There would be at least some tasks for a jury to perform. B was entitled to judgment on that issue.

(4) K was entitled to judgment on the issue of malice. There was no sufficient factual basis on which a jury could draw the inferences that K’s motive was to give vent to a personal spite towards B; that K had the improper motive of falsely blaming B for L’s misfortunes; and that K could not have an honest and reasonable belief in what he caused to be published. If the jury were to do so, such a conclusion would be perverse.

Jonathan Crystal (instructed by Hextalls) for the claimant. Mark Warby QC and Jacob Dean (instructed by Carter-Ruck) for the third defendant.