Update: media

There has been a dramatic change in attitude by our courts in both libel and privacy actions in the last few months. The media cry for help has been met by our judges '“ in part. Fair comment as a defence has now been considerably widened by the Court of Appeal in Singh (see 'Served chilled' in last week's issue of Solicitors Journal, 154/14, 13 April 2010). The super injunction has been recently checked by Mr Justice Tugendhat, and a committee has now been set up to investigate the concept. Finally, the internet has recently had a number of important judgments giving greater freedom of expression; though bloggers have been prevented from hiding behind a cloak of anonymity.

Outside our courts there has been a hive of activity. Not part of the Labour Party manifesto, but perhaps an attempt to get the media vote, has led to the Ministry of Justice trying, unsuccessfully, to rush through regulations concerning the CFA and ATE premiums and indicated its intent to introduce a single publication rule. Nothing has come to pass in that regard, but the government's attempts to introduce changes followed on from the House of Commons' Culture Media and Sport Committee 18 months' investigation of the country's libel and privacy laws also calling for a shake up, including criticism of libel tourism. If it is an unwanted invasion of our jurisdiction by foreigners comparable to abuse of the NHS, two cases recently decided in favour of Russians appear to indicate that without any more stringent control tourists will still be allowed to use our courts. But at the root of all the problems suffered in relation to defamation and privacy is the question of costs. They are still wildly out of control as the case of Dee against The Daily Telegraph rather graphically illustrates and represent a serious 'chill' factor to the media. On the court that is defamation and privacy, it is time for new balls. While our judges have responded in many respects, they are still failing to control costs and must do better.

Privacy super injunctions ruled offside

One of the complaints agitating the media in privacy over the last year has been the perceived abuse of 'super injunctions' '“ an effective and comprehensive way of gagging the press (as it prevents even the reporting of the injunction's existence quite apart from details of it). They have become the 'must have' for celebrities and corporations. A storm of protest blew up over oil firm Trafigura using a super injunction to stop The Guardian from reporting details of a report into the dumping of toxic waste on the Ivory Coast. The decision of Mr Justice Tugendhat, therefore, in LNS v Persons Unknown [2010] EWHC 119 (QB), proved a further welcome breakthrough for freedom of expressionistas.

A well-known footballer sought to stop a breach of confidence and misuse of private information by publication of details of his relationship with another person by seeking an injunction. Similar applications had been made before and failed viz. A v B plc [2002] EWCA 337. In this instance, the judge carried out not one but two balancing exercises. The first was in relation to articles 8 and 10 (the rights to privacy and freedom of expression) of the European Convention on Human Rights; but then he also balanced reputation protection with misuse of private information. The importance of this latter test is that following the Bonnard v Perryman rule ([1891] 2 Ch 269), no interim injunction can be granted where the defence to publication of defamatory material is one of justification.

In this instance, justification would have succeeded as a defence so the rule applied.

It is clear from the judgment that Mr Justice Tugendhat was worried about the priority given to protection of the footballer's reputation and his sponsors more than his concern to protect his privacy. He ruled there was insufficient evidence of any breach of duty of confidence. As to misuse of private information, he was not satisfied that there was any real threat to publish intrusive details of the relationship or photographs of the relationship (the media subsequently filled the news pages for weeks with both).

In any event, he found damages would be an adequate remedy and, even if wrong, the strength of the public interest defence to the privacy claim was likely to succeed. The super injunction request was therefore thrown out.

The judge was not only concerned about the merits of the application but the presentation of the application given the draconian effect of a super injunction. There were numerous inadequacies in the application and the evidence in support of it was inadequate while the other party in the relationship had conveniently signed a confidentiality agreement. The possible derogations from open justice and requirement of fairness set out in article 6 of the

Convention were considered. This was also a case where not only had no notice been given but where there was clear evidence that at least one media organisation had an interest in the application. The judge concluded that the injunction was not necessary or proportionate having regard to the level of gravity of interference with the footballer's private life and that 'the nub of the applicant's complaint is to protect his reputation, in particular with sponsors'. The claim by the footballer could therefore be adequately compensated for in damages and an injunction was not appropriate '“ and a super injunction certainly wasn't '“ and failed accordingly.

English High Court most popular resort for Russians

Elena Baturina, a Russian citizen and wife of the Mayor of Moscow runs a property business. She sued over a Sunday Times article with the headings: 'Russian's $100 million London palace' and: 'Elena Baturina: bunker billionairess digs deep' (Elena Baturina v Times Newspapers Ltd [2010] EWHC 696 (QB)). She claimed the articles were defamatory. They alleged that she had purchased a large mansion in Highgate for £50m through an offshore company based in the British Virgin Islands, but she claimed she had not in fact purchased the property at all and alleged that in the light of her obligations in Russia to give details of her assets it would be understood by some readers of the articles that she had breached Russian law. The Sunday Times sought to strike out the application on the grounds the articles were not defamatory and the claim was a Jameel type abuse. Much turned on the foreseeability that the words published of which complaint was made would be repeated and would be understood by readers in the innuendo sense contended for. The judge held that, notwithstanding that the publications were in Russia, as long as the repetition was foreseeable the law would be the same here or in Russia. There is a risk accordingly of a libel trial involving only publications in Russia. While this may be good for the entente cordiale in the wider sense, this merely inflames even more the arguments against libel tourism.

Britain's most famous Russian 'tourist' (he was granted asylum in the UK in 2003), Boris Berezovsky, has just been awarded £150,000 libel damages against the Russian Television and Radio Broadcasting Company over claims about the radiation poisoning murder of Alexander Litvinenko (Boris Berezovsky v Russian Television and Radio Broadcasting Company and Terluk [2010] EWHC 476 (QB)).

Unfortunately, the TV channel is available by satellite in the UK and Mr Berezovsky has a not insubstantial reputation here. Tried without a jury, Mr Justice Eady concluded that there was no evidence at all that Mr Berezovsky had any part in the murder of Mr Litvinenko and there were no reasonable grounds to suspect him of it.

A blog too far

In The Author of a blog v Times Newspapers Limited [2009] EWHC 1358 (QB), an anonymous police blogger '“ a serving detective calling himself 'Night Jack' '“ who had won an award for online political writing has had his anonymity ended by Times Newspapers. A breach of confidence/private information application was made to Mr Justice Eady to stop The Times from identifying Night Jack but applying the two-stage approach (an objective test) in relation to confidence/private information claims: (1) was there a reasonable expectation of privacy? and (2) was there a countervailing public interest? Mr Justice Eady concluded that the information did not have about it the necessary 'quality of confidence' as contemplated by Coco v A N Clark (Engineers) Limited [1969] RPC 41 and nor did it qualify as information in respect of which the claim had a reasonable expectation of privacy. He held that essentially blogging was a public activity. As a result, the blog hit the dust and no doubt the detective's employment will follow. The importance of this case is in relation to anonymity on the web in general and the clear indication that no longer will it be possible to hide even if you are the Old Bill '“ well not from The Times anyway.

Costs in libel actions

The concerns about costs in libel actions which underpin the media's campaign to change our libel laws could not have been more graphically illustrated than in the recent case of Robert Dee v Telegraph Media Group Limited [2009] EWHC 2546 (QB).

Dee was described in articles as Britain's worst professional tennis player and he sued for libel. At a preliminary hearing before Mr Justice Eady in October last year, when further information was sought about the 54 defeats suffered by Mr Dee on circuit, which was granted, it was revealed that a costs estimate given by his solicitors had reached a staggering £500,000 (not including success fee or ATE premium). The Telegraph is now awaiting the result of a summary judgment application that the articles published were not capable of being defamatory and/or their defences of justification and/or fair comment would succeed. This is all very well but why didn't Mr Justice Eady deal with the ridiculous costs estimate of what looks like a ridiculous case at the time in October?

What about the overriding objective, and what about proportionality? The powers are there and our judges simply must be more proactive in stamping on sky high costs. Not only do they damage freedom of expression they are causing irreparable damage to the reputation of libel.