media guardian

Media law cw1-Question:Explain the significance a UK court ruling in one case concerning media law that has occured in the last 12 months. What are the implications of the ruling for relevant sections of the media regarding media practices or ‘media freedom’? You should use at least FOUR seperate sources for your report. You must include relevant references to at least two of the ‘key texts’ (see reading and resources)Shevchenko: Mirror to pay out (http://media.guardian.co.uk/medialaw/story/0,,2071574,00.html)
Chris Tryhorn
Thursday May 3, 2007
MediaGuardian.co.uk The Daily Mirror today agreed to pay the Chelsea footballer Andriy Shevchenko substantial libel damages over claims he acted as a “snitch” for club owner Roman Abramovich. Shevchenko’s solicitor, John Kelly, told the high court in London that the allegations, made in four articles earlier this year, had damaged his reputation, distressed him and his family and embarrassed him at Chelsea. The Mirror’s owner, Mirror Group Newspapers, accepted the allegations were untrue, apologised and agreed to pay substantial undisclosed damages as well as Shevchenko’s costs. The newspaper’s counsel, Jude Bunting, said the allegations were without foundation and ought never to have been published. Shevchenko was not present at today’s court hearing. The Mirror’s first article, entitled “Shev’s A Snitch” and published on January 16, claimed that Shevchenko’s team mates believed he was reporting on Chelsea manager Jose Mourinho to Abramovich, the club’s billionaire Russian owner. Despite a legal complaint that the article was untrue, the Mirror followed up with a story alleging that Shevchenko had asked Abramovich to replace Mourinho with AC Milan’s coach, Carlo Ancelotti. After a further complaint, the newspaper went on to claim that Shevchenko was a “dressing room spy” for Abramovich, who bought Chelsea four years ago. Mr Kelly said Shevchenko gave press interviews denying the newspaper’s allegations, and received public support from team-mates such as Frank Lampard and Didier Drogba. The Daily Mirror then printed an apology, on February 9, accepting the allegations were untrue and apologising for any distress caused. But on March 9, in an article headlined “Sheva: Yes, it’s true I’ve complained about Chelsea manager”, the paper claimed that Shevchenko had said in an interview on German TV that he had played for better coaches than Mr Mourinho and would have been happy to have left Chelsea at the start of the year. Mr Kelly said no such interview had taken place and that quotes attributed to Shevchenko by the Mirror were false. The Mirror apologised after admitting he had not given the interview.McLagan wins Reynolds appeal (http://media.guardian.co.uk/medialaw/story/0,,2188797,00.html)Author#Chris Tryhorn
Date#Thursday October 11, 2007
MediaGuardian.co.uk Investigative journalism was given a major boost today after the author of a book about police corruption won a libel victory at the court of appeal. The court found in favour of Graeme McLagan, whose book Bent Coppers was previously judged to have defamed a former Flying Squad officer, Michael Charman. Today the court of appeal unanimously overturned a high court ruling from last year, deciding that McLagan had acted responsibly when writing and researching the book. The court upheld the so-called “Reynolds defence” of qualified privilege, under which journalists can claim the right to publish material in the public interest even if they cannot prove its accuracy or it turns out to be untrue. McLagan’s victory follows a similar ruling by the House of Lords in October last year in favour of the Wall Street Journal Europe, after the paper had been sued by a Saudi billionaire businessman, Mohammed Jameel. Caroline Kean, a partner at solicitors Wiggin, which represented McLagan and his publisher, Orion, hailed the judgment as “a breath of fresh air”. “For too long newspapers and book publishers have been deterred from publishing serious investigative journalism by the threat of incredibly complex and expensive libel proceedings if they made the slightest error,” Ms Kean said. “This decision of the court of appeal has put the role of the investigative journalist back in centre stage.” McLagan, who worked as the BBC’s expert on police corruption for more than 20 years, said today’s ruling was “a victory for solid, responsible investigative journalism”. “Exposing police corruption is obviously in the public interest, as was recognised by the trial judge, the appeal court and even by Michael Charman’s own defence team.” McLagan claimed the Police Federation would incur costs of between £1m and £2m as a result of the judgment. Peter Roche, Orion’s chief executive, said it was the first time the Reynolds defence had been applied to a book. “This judgment will enable serious investigative works covering matters of public concern to be published in future and increase the freedom of debate in the UK,” Mr Roche said. During a one-week trial in June last year, lawyers for Mr Charman argued that authors of factual books should have a higher “duty of care” to verify information than journalists working for daily newspapers. Mr Justice Gray ruled against McLagan in July 2006, rejecting his use of the Reynolds defence. The qualified privilege defence takes its name from a case brought by former Irish prime minister Albert Reynolds against the Sunday Times. Its scope has been tested in a series of recent rulings, including the MP George Galloway’s legal victory over the Daily Telegraph in December 2004, and the Jameel case against the Wall Street Journal Europe. (http://media.guardian.co.uk/medialaw/story/0,,2171009,00.html)Publish and be damned… then jailed

Unless it is in the public interest, procuring an individual’s ‘personal data’ is illegal, but will the threat of a prison sentence stifle investigative journalism?

Jon Robins
Monday September 17, 2007
MediaGuardian.co.uk The evolution of a privacy law under the Human Rights Act (HRA) has grabbed the headlines because of its stellar cast, but it isn’t the only game in town. There are the echoes of HRA protection of family and private life in both the Ofcom and Press Complaints Commission (PCC) codes, but privacy is on the statute books elsewhere, too. JK Rowling’s recent tussle with the Sunday Express is a case in point. The author utilised the Data Protection Act 1998 (DPA) to argue that a photograph of herself, her husband and her child in the street, amounted to an unlawful and unfair use of her personal data. For Rowling, read any number of other litigants. The DPA could prove yet thornier for the media if the data protection commissioner, Richard Thomas, has his way. Thomas has proposed that anyone who might obtain, disclose or procure the disclosure of “personal data” without consent of the “data controller” under section 55 of the DPA should be sent to prison for up to two years, rather than face an unlimited fine. “It’s in no way proportionate as a penalty for somebody publishing private information,” insists Alastair Brett, legal manager at the Times. Nonetheless the Information Commissioner’s proposal has since been taken up by the Department for Constitutional Affairs (now Ministry of Justice) and is included in the Criminal Justice and Immigration Bill. Next month it receives its second reading in the Commons. Thomas wants to close down what he sees as “a widespread and organised undercover market in confidential personal information”, one in which the media is heavily implicated. “Among the ultimate ‘buyers’ are many journalists looking for a story,” he says. His office backs up his contention with evidence of such information being supplied to 305 journalists. Brett argues that a two-year sentence is a draconian response to a problem that has seen 27 prosecutions in the last four years. Moreover, he argues that the threat of prison will have a “chilling effect” on free speech, not least among investigative journalists who are trusted by their confi dential sources to take a peek into brown paper envelopes. There is a defence if a journalist can prove that what he has done is justified as being in the public interest, but for Brett this has its inadequacies: “A journalist has to prove not that he believes what he has done is in the public interest but that it actually is in the public interest. “How can an investigative journalist know that until he has finished his investigation?” The DPA appears to be loaded against the media, so why didn’t it help JK Rowling? Caroline Kean, of Wiggin LLP, explains: “The data had been processed lawfully - that is, the taking of photographs - even though they weren’t consented to and had been taken covertly. “No deception had been practised and the taking of the photograph couldn’t be said to have been unfair.” Those seeking to be left alone by the media might also avail themselves of the Protection from Harassment Act 1997, though this tackles a different kind of privacy. “Harassment relates to the right to be left alone,” explains Ruth Hoy of DLA Piper, “while the developing law of privacy relates to a person’s right not to have certain private information about them made public. “They are both rights that protect the individual and his private space, albeit separate and distinct rights.” Harassment is not defined and each case is decided on its own facts, but the media should beware: it has been established that newspaper articles can amount to course of conduct sufficient to contravene the Act - which creates both civil law remedies (an injunction and damages) as well as penalties under the criminal law. Can you stop the paparazzi?
Privacy laws may give Kate Middleton a cause of action but will they offer her any real protection?

Edgar Forbes
Wednesday January 10, 2007
MediaGuardian.co.uk The press celebrated Kate Middleton’s 25th birthday by treating her to an array of headlines and photographs cynically discussing whether she should have greater privacy protection. News International even took the seemingly altruistic step of announcing that it would not use any paparazzi pictures of Ms Middleton in any of its publications. While this may mean the Sun and News of the World default to their own snappers rather than pay over the odds for sneaky paparazzi shots, it won’t drive down demand for pictures of a person who is tipped to become a princess. While there may be an eerie similarity between the press harassment Ms Middleton is being subjected to and that which faced the young Princess Diana, the legal landscape relating to such harassment has seen a significant shift. Both refinements to the PCC code of practice and developments in the law have given greater emphasis to the need for privacy and recognition of its protection. Recent cases have made it clear that even though the public may be interested in someone as a celebrity (Naomi Campbell v Mirror) or royalty (Hannover v Germany), such interest does not of itself reduce the level of privacy protection that they should be reasonably and legally entitled to receive. The PCC code provides that it is unacceptable to photograph people in private places without their consent - this includes public places where there is a reasonable expectation of privacy. The code also provides against “harassment or persistent pursuit”. In relation to such harassment it puts the onus on editors who must also ensure they do not use “non-compliant material” from other sources - such as freelance paparazzi. So it is perhaps with this in mind that News International has announced its own attempts at self-restraint. From a legal perspective, earlier incoherent and unsatisfactory attempts at formulating privacy protection through the use of confidentiality and common law constructs have been replaced by a tangible privacy tort. The European case of Hannover v Germany made it clear that where the public interest is not engaged through some specific activity (such as attending a public event or engagement or in Kate Middleton’s case, attending Prince William’s passing out parade at Sandhurst), then taking and publishing photographs of someone just because they are royalty, a celebrity or ‘of interest’ will amount to an invasion of privacy. In Campbell v Mirror, the House or Lords also made it clear that even celebrities who had lied about their drug addiction were still entitled to privacy protection. This shift towards greater privacy protection has been upheld in recent cases such as McKennitt v Ash and Prince of Wales v Associated Newspapers (Charles’s journal case). The difficulty for Kate Middleton will lie in distinguishing between actual invasion of her privacy and the more generic harassment that may give rise to privacy breaches. If a paper published pictures of Middleton going about her ordinary or ‘private’ business then, in line with recent cases, this will give her a cause of action. The private nature of her activities will engage Article 8 of the European Convention and unless the press can demonstrate a real public interest element in their story and inclusion of the photograph then this is likely to outweigh the freedom of expression conferred under Article 10. Similarly, if a paper publishes a “non-compliant” picture it has obtained from a paparazzi or its own snapper then it will fall foul of the PCC code. This is all well and good but the real question is this: While the PCC code may deem “harassment” and “persistent pursuit” unacceptable and the law will provide a cause of action where privacy has been invaded, what can Ms Middleton actually do to prevent this happening? The answer is, very little. Here lies the flaw in the current system of privacy protection in the UK. It is largely retroactive. Harm has to have been done before a cause of action is engaged. Where the press publish photographs that breach her privacy then she can go to court but, by this stage, that which was private will have been made very public. She could apply to the court for an injunction preventing publication of pictures taken of her going about her private business but while she may be able to provide grounds for such an order it would be difficult to secure an open-ended one covering all media. Even if she were to secure protection against some or all of the UK press, this will do little to keep foreign paparazzi and publications at bay. Consumer demand will always ensure there is a price for her picture, the best she can hope for is to use the law to level the playing field on home ground. · Edgar Forbes is senior lecturer in Media Law at Bournemouth University