Update: libel and privacy

In the past year, English courts have dealt with the usual run of celebrity suits, actions by wives and girlfriends and procedural cases on limitation, but one major and influential decision stands out, which has been, in one respect, reassuring to our beleaguered media, and it relates to a qualified privilege defence. They developed the existing Reynolds qualified privilege rule (Reynolds v Times Newspapers [2001] 2 AC 12) for the media and relaxed it. This is important as it could have had a material effect on companies if they had to show damage as opposed to it being presumed. Lord Hoffman described the Reynolds defence as the 'Reynolds public interest defence' applying three requirements: i) public interest of the material; ii) the inclusion of the alleged defamatory statements being necessary and iii) the test of responsible journalism.

Reynolds defence

The rigorous and demanding ten point test laid down by Lord Nicholls in Reynolds was not one that had to be passed and should not become a set of hurdles. Baroness Hale found that a Reynolds defence was a differentï'žÂ¸ jurisprudential creature from the law of privilege. There were two conditions necessary: a real public interest in communicating/receiving the information and responsible verification of that information.

'We need more such serious journalism in this country and our defamation law should encourage rather than discourage it,' she said referring to the article the subject of the action, which examined the monitoring of bank accounts by the Saudi Arabian Monetary Authority to prevent funding, intentional or not, of terrorist organisations and which named the claimant during the course of the article. The importance of this case to investigative journalists cannot be overestimated and does offer real protection to a journalist if he has acted responsibly.

Less happy news for the media was the other decision made by the Lords in Jameel v The Wall Street Journal Europe [2006] UKHL 44 (see also (2006) 150 SJ 1447, 10.11.06), the House of Lords decided that companies can sue for defamation without having to show special damage, upholding the rule in South Hetton Coal Co. Ltd v North Eastern News Association Ltd [1894] 1QB 133.

Bent Coppers book

The extension and application of the principles followed in Jameel concerning responsible journalism and neutral reportage were argued in front of Mr Justice Gray by book publishers on a preliminary issue in Michael Charman v Orion Publishing Group Ltd [2006] EWHC 1756 (QB). The claimant complained that passages in a book called Bent Coppers suggested he had abused his position. Gray confirmed that the Reynolds defence applied equally to books as it did to journalism, including the principles of neutral reportage, but that on the facts the passages did not attract the defence as the defendants had not acted responsibly; nor could there be any reliance on the statutory defence of privilege accorded to fair and accurate reports of legal proceedings as the account of a criminal trial in the book was not a fair presentation of what had occurred in court. The case has gone to the Court of Appeal and judgment is awaited. Clearly a flexible application of the Reynolds defence in book publishing will be an important advance for book publishers reeling from the recent privacy decision in McKennitt.

Baby talk

Elsewhere, the internet remains an active feeding ground for libel actions. Mumsnet.com, a parenting website, which allowed disparaging comments about Gina Ford, the baby expert, to be published on its discussion boards had to settle a libel action out of court in a very public dispute. Nearly 250,000 mothers visit the site every month and Ford was unamused by remarks that she was cruel and uncaring and that she strapped babies to rockets and fired them into South Lebanon. Mumsnet paid her damages and published a full apology.

The lesson for ISPs is that unless you can show that you are only a conduit, even though you are not the author or publisher, you will be treated as a secondary publisher. You may well be unsuccessful in any defence to a libel suit unless you can show that you satisfy the defence available under s 1(1) of the Defamation Act 1996, namely that you were not the author or publisher, that you took reasonable care and did not know that you were publishing anything defamatory. Mumsnet is a stark reminder to ISPs that it is necessary to monitor what is being published on site as the damage caused by offensive material can be very substantial. Failure to do so will probably be deemed to be unreasonable and forfeit a s 1 defence.

Privacy and freedom of expression

The year has seen some real advances in the interpretation of 'privacy' and what a 'reasonable expectation of privacy' means. The foundations of Campbell v MGN [2004] UKHL 22 and Von Hannover v Germany [2004] EMLR 21 have been developed. Privacy, the unwanted 'child', rejected by parliament, has been spoon-fed by Chancery and Queen's Bench judges who are now formulating what they can out of its parent '“ the law of confidence. It still remains a poor relation of its overfed and legitimate brother, defamation, however. The damages are low and so its impact has been in the field of injunctive relief.

The test to be carried out is complex. An intense focus has to be brought to bear on the facts and a parallel analysis of the competing rights of Articles 8 and 10 of the European Convention on Human Rights. If they are successfully negotiated then the requirements of s 12(3) of the Human Rights Act have to be met and, following Cream Holdings v Banerjee [2005] 1 AC 253, it has to be shown that the claimant is likely to win at trial. In a privacy action the Bonnard v Perryman libel rule, that prevents injunctive relief if there is a justification plea, does not apply as truth is not relevant to privacy though it was, literally, in the most recent privacy case involving the then BP boss, Lord Browne.

In Lord Browne of Madingley v Associated Newspapers [2007] EWHC 202 (QB). The case led to two balancing exercises being carried out, as aside from the competing convention rights Mr J Eady had to decide whether the case was a reputation or a privacy case. He chose the latter and awarded an injunction subsequently limited on further application.

The facts were that a former lover sought to sell his story to the media and reveal all about his private life with Lord Browne, which included business activities inspired by the relationship. The judge distinguished those activities which affected Lord Browne's employer, BP, and which he decided were in the public interest, and for which there could be no reasonable expectation of privacy, from purely private conversationsï'žÂ¸ and activities, and declined to protect them. He also castigated Lord Browne for lying in his evidence. While this did not alter his decision, not telling the truth clearly undermined his credibility in the eyes of the Court.

Book publishing nightmare

J Eady must be very fit as he has been carrying out many balancing exercises throughout the year but the media and book publishers wish he was not. In the case of Ash v McKennitt [2006]EWCA Civ 1714 his first instance decision in favour of Ms McKennitt was upheld in the Court of Appeal. McKennitt, a well-known folk music recording artist, sued Ash who had written a book about her which she claimed revealed personal and private details that she was entitled to keep private. These included recording her personal feelings about her deceased fiancé and the circumstances of his death, her health and emotional vulnerï'žÂ¸ability.

The Court of Appeal confirmed the judge was right to prevent publication of the offending parts of the book as having carried out the balancing exercise he had found that she had a reasonable expectation of privacy and that Ash had no story of her own to tell but only McKennitt's. This is a case that has momentous consequences for those in the industry of kiss'n'tell. Extreme care must now be taken in publishing other people's stories. Whether the media have themselves to blame given their insatiable appetite for newer and more intrusive stories is debatable.

Prince of Wales

As for the other cases that have kept the noticeably quiet corridors of the law courts busy the Prince of Wales succeeded in his actions against the Mail on Sunday (Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776) in an unsurprising win when suing for breach of confidence over the publication of extracts of his personal journal leaked by an employee, in gross breach of contractual duties of confidence. The Court of Appeal found the journalwas confidential and private and that the Prince had an expectation that it would remain so. The test to be applied when reviewing the question of restricting freedom of expression in such a case was not simply whether the information was a matter of public interest '“ which had been argued '“ but whether in all the circumstances it was in the public interest that the duty of confidence should be breached.

Douglas and OK! v Hello!

The long running soap opera that was originally Douglas and OK! v Hello! finally ended with OK! winning damages for breach of confidence by a 3'“2 majority in the House of Lords (Douglas & Ors v Hello! Ltd & Ors [2007] UKHL 21).

Photographs of the Douglases' wedding were held to be confidential information and the obligation of confidence had been imposed for the benefit of the couple and also the magazine. This case is important in demonstrating the shift of attitude by the courts to protecting privacy and confidentiality both personally and commercially. Hello! crossed the line of fair play even by media standards and paid the penalty.

Chancellor's feet ignored

A genuinely exceptional and unique case was CC v AB [2006] EWHC 3083 (QB), where an adulterer successfully obtained an injunction against a cuckolded husband who threatened to sell the story to the press. The adulterer had slept with the husband's wife but neither he nor she wished to publicise their affair. The decision exemplifies the truism that 'each case depends on its particular facts', as Eady granted an injunction. He also reflected on the changing public mores and, indeed, the judicial mores of the bench. He emphasised how important it was that no case should be determined by a judge's personal views or as it used to be said by 'the length of the chancellor's foot'. A judge should never allow personal moral views to intrude into the interpretation and application of the law. There was a reasonable expectation of privacy in this instant and the s 12 (3) test was met.

His decision was clearly evidenced by a belief that the defendant had been motivated by spite, money making or tittle tattle. A telephone call to the claimant by the defendant saying: 'Listen mate. You're going to be f*****. You're f*****...This is going to the House of Lords and you can't even afford it,'did not help. Fortunately, the case never went to the House of Lords.

Libel and privacy: a striking contrast

The relaxation of the Reynolds rule in libel by a restatement of its intent is an important step forward for our media and freedom of expression, but they will feel that recent privacy decisions have been a step back and will be alarmed by the

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