20.2.04

Politics at play as case against anti-war whistleblower dropped

It may be welcome news for the concept of free speech and for 29 year old Katharine Gun but at the end of the day its profoundly political.

Having been sacked from her job as a translator at GCHQ and then charged under the Official Secrets Act for disclosing a dirty tricks campaign by intelligence officials to discredit UN inspectors in the run up to the war with Iraq, Gun could potentially have faced a lengthy prison sentence. She based her decision to expose the spies on her opposition to the war in Iraq and the fact that a public who largely opposed such war had a right to know.

In light of recent developments and factual evidence that seriously calls into question the legitimacy of that war as well as accuracy about what the public were told, it would be asking for trouble to proceed with prosecuting Miss Gun.

Her defence would require the government to reveal or cover up another barrage of embarrasing questions and put more fuel on the fire of disquiet that rages following Hutton's fantastical findings.

Stop all this fuss and let Prince Harry party in peace!

Prince Charles's new communications man has barely got his feet under the desk but that's not stopping him from doing battle with an 'ill-informed' press.

Fresh from dealing with soccer sensation at Manchester United, Paddy Harverson has now taken on a completely different yet equally challenging game. Harverson has been swift to attack an article in the Daily Express that claimed our Harry was a lazy loafer who was enjoying a privileged life. In an attempt at wit, Express columnist Carol Sarler wrote that Harry "rarely lifted a finger unless it's to feel up a cheap tart in a nightclub".

What Harry had done to upset Carol in this way who knows but the point is who cares. He is enjoying himself and displaying relaxed and normal behaviour that is not readily associated with royalty. Clarence House should also chill out and not show such surprise in its reading of the Express.

Harry should be left to enjoy life so that we can enjoy reading about it.

Note to counsel in Campbell case: this is not a defamation trial

Hearing the legal argument before the House of Lords in Naomi Campbell's appeal this week one could be excused for thinking it was a libel action. After being billed as 'taking her (Campbell's) privacy battle to the House of Lords' the legal argument has been rather disappointing and reverted to the well worn argument about whether criticism of Campbell was justified and the merits of exposing her lies about not taking drugs.

The Court of Appeal has already decided that the Mirror was justified in publishing its story and picture because it demonstrated that Campbell had lied and that publication was therefore in the public interest. So its time to leave the defamation-styled argument alone and grasp that nasty nettle that is privacy!

So the question is (as discussed by MB below): should Campbell be entitled to have her private life protected when she is not treading the catwalks? so let's please hear some legal argument about this!

19.2.04

Jonny's lawyers put the boot in!

Its turning out to be a bumper week for complaints about intrusion into privacy. It is ironic that the majority of complaints about the media tend to be in relation to privacy yet the law has up until now not been willing to accept privacy itself as a legal right.

This was confirmed by the House of Lords in the Wainwright case in October last year - so will the House of Lords change its position in the wake of Naomi Campbell's appeal?

Having been thrust into the limelight after the rugby world cup, Jonny Wilkinson has been a reluctant star. So when on Tuesday several papers printed some snaps of him and his girlfriend on a beach in the Seychelles he was not too pleased. His lawyers have warned various papers that the publication was a serious breach of privacy.

So should the papers be concerned? - only if the House of Lords and the courts are as effective at applying the boot as Jonny. Whether a beach is a place where one can expect privacy is up for debate. Some cases such as that of newsreader Anna Ford have decided not but others such as that involving Sara Cox or more recently Ewan McGregor have. It may come down to whether it was a private beach or not or how reasonable his expectation was that this should be private.

It is to be hoped that given they have the Campbell case before them this week the House of Lords will do the law, celebrities and the public a favour by finally lending some clarity to the interpretation of privacy and what the definition or reasonable expectation might be. The fact there is not privacy law in enacted form should not preclude them from doing that.

Fast, Free but Futile - the latest privacy adjudication from the PCC

While the House of Lords is being asked to adopt a 'sensitive' approach in relation to privacy the PCC's latest adjudication offers no such sentiment.

Mr Ibberson from Yorkshire had complained that a photo taken at a public event which he attended was subsequently used in an unconnected article. He had not wanted his photograph taken and when it was used in an entirely different story he considered this to be a breach of his privacy as expressed in clause 3 of the PPC code.

No such thing. The PCC ruled that as his photo had been taken at a public event to which the public and the press had been invited he had no reasonable expectation of privacy. There could therefore be no breach of the code.

What this adjudication and much of the current UK jurisprudence on this issue does is ignore privacy as a right in relation to the person as opposed to privacy in respect of a particular place. Just because a picture is taken in a public place does not mean it cannot be private. The use of Mr Ibberson's image in an unconnected story could be seen as intrusive but what can he do about it? If he were a celebrity with established and commercialised image rights then he might be able to sue for passing off or breach of confidence but as a relatively normal person - albeit a well-known local businessman - he is not in a similar position.

Does this mean that where a picture is taken in public then its subject has no rights or control over its use? The PCC seems to think so.

18.2.04

Protecting the Private - Naomi Campbell tries to persuade House of Lords to uphold her privacy claim

Having had her case overturned by the Court of Appeal in 2002 and faced with paying for the Daily Mirror's legal costs, Naomi Campbell has this week returned to court in a bid to persuade the House of Lords that the paper did in fact breach her privacy.

What's all the fuss about?
The Dialy Mirror ran a story about Campbell having attended a narcotics anonymous session. Campbell had previously denied doing drugs and denounced their use so when a picture landed on Piers Morgan's desk of her coming out of a narcotics anonymous meeting that was just too good an opportunity to miss.

What the Mirror says:
The story and picture prove Campbell lied about drugs and given her prominence as a public figure and charity work it is in the public interest (or, the public has a right to know) that she has been lying about drug use.

What Campbell says:
This was a gross intrusion into her private life - and therefore privacy and confidentiality - she should be allowed to attend such meetings in private and not have people know about them. The paper should not use what her QC Andrew Caldecott described as a 'candid camera' stunt and have used the picture which clearly shows where the meeting took place. Instead she should have been asked by the photographer if she minded having her picture taken and she might have said she would prefer the picture to be taken further along the road so it was not outside the narcotics anonymous meeting place - get real! - if this was how celebrity or news photographers got their pictures our papers would be much emptier and more boring.

What the court ruled first time round:
In the High Court Mr Justice Morland had ruled that in publishing the photograph and details of her treatment the Mirror had not just breached her confidentiality but also breached the Data Protection Act. She was originally awarded damages of £3,500.

What the Court of Appeal decided:
The court was not prepared to recognise her privacy in this way and saw the story as a legitimate news exposee of the fact she had lied about taking drugs. The use of the photograph and story was evidence of that and its publication was in the public interest. She was denied her damages and left with a massive legal bill.

The case before the House of Lords:
Campbell is trying to persuade the Lords that her privacy was indeed breached and that although one may be in the public eye or pass through public places en route to somewhere private that does not mean that the media should be allowed to intrude or report on matters that are confidential or 'essentially private in nature'. Her counsel Andrew Caldecott QC is therefore trying to move the case from the public interest point that she lied about drugs and the story was justified to the wider privacy issue that even though there may have been a legitimate news story the photograph of her coming out of the meeting went too far and was a breach of privacy.

This raises a number of interesting issues. Looking at privacy along defamation lines there was truth in the Mirror's story and the photograph was a necessary part of evidence to prove this. Looking at privacy from a breach of confidence or European Convention rights point of view - Campbell lied about drugs in public so such protection as should notionally be offered her in relation to confidentiality or privacy could be offset against the public interest in knowing she lied - in other words her notional right to privacy had been forfeited by virtue of her publicly lying. Looking at privacy from a purely human rights view - the UK Human Rights Act provides that public bodies must have regard to the European Convention - so protection of privacy under Article 8 is only provided for in UK law insofar as public bodies are concerned and does not extend to commercial newspapers.

Campbell is also arguing that the story and photograph was likely to deter her from attending further sessions as she may be 'inhibited'. Others attending may also have cause for complaint as they do not wish their anonymity to be compromised by her presence or publicity.

It would be trite to argue that the original story in the Mirror was not a legitimate news story and a good scoop or exposee about the fact Campbell had lied in relation to drugs. The question the House of Lords will have to decide is whether the manner in which that story was revealed or reported was such as to amount to a breach of confidence or invasion or privacy. To follow Andrew Caldecott's argument that the photographer should not have shot a covert snap but asked Campbell if she minded so she could go up the road for an impromptu picture would be unrealistic - the photo was a vital part of the story as it showed Campbell in situ and therefore backed up the story.

There is a big and fundamental difference between not being happy that the fact you take drugs and have lied about taking them and have now been caught on camera coming out of a narcotic anonymous meeting and the suggestion that this was a gross and unwarranted intrusion into Naomi Campbell's privacy.

Celebrity or not we all have a private life and hope to enjoy a reasonable expectation as to privacy.

What the House of Lords have to decide is whether 1: they are willing to accept that there is a right of privacy in the first place that the courts are willing to accept (there has been much judicial resistance to this recently in cases such as Peck or Wainwright)
2: those in the public eye can expect the same level of privacy
3: whether privacy can be forfeited through their own actions (as was decided by the Court of Appeal.

Whatever the outcome it will hopefully help clarify whether privacy is to be recognised as a stand alone right or whether the courts are still only prepared to find constructs such as breach of confidence or data protection inot which to parcel the legal treatment of privacy issues.

14.2.04

Lord Black hits back

As the bidding battle for the Daily Telegraph intensifies the campaigns of recrimination and revenge across the pond are also gathering pace. Since his decision to sell the Daily Telegraph Lord Black has been at war with Hollinger International and some of its directors who have accused him of misappropriating millions of pounds.

With lawsuits flying high both sides of the Atlantic Lord black has added one of his own and decided to hit back at his critics with a multimillion pound defamation action.
Filed in Canada his lawsuit lists a string of defendants from Hollinger directors to a former SEC chairman and former Illinois governor James Thomson. Whether his action succeeds remains to be seen but it is unlikely to be the last court action filed in this ever expanding saga.

Bailey hit by big bill after six of his libel actions fail

Bringing a defamation action is not always the safest or cheapest means of clearing your name as the beleaguered journalist Ian Brady found out this week. Desperate to clear his name after being implicated in the murder of Sophie du Plantier, a French film-maker who was killed in Ireland in 1996 Bailey had launched defamation actions against 8 newspapers over their coverage of du Plantier's murder. He had reported on the brutal murder but was then himself questioned in connection with it. He was never charged but the murder remains unsolved.

Seven years on and Bailey's defamation action against six of the original eight papers failed. Only the Irish Mirror and Irish Sun each had to pay up for articles about Bailey's relationship with his ex-wife. The remaining papers including The Times, Sunday Times and Daily Telegraph were all cleared of libel.

The trial judge ruled that Bailey should pay over half the costs of the six papers he cleared. That leaves Bailey with a bill of over 150,000 pounds and in the judge's own words certainly not having won first prize.

6.2.04

Kettle may sue pot over allegation

If ever there was a case of the proverbial pot calling the kettle black then it was embodied in the form of Alistair Campbell pontificating to the Foreign Press Association claiming that Hutton showed that all Tony's men (and women) and of course Ali C told the truth and the whole of the BBC did not.

Well the Government through Hutton have had a bash at the Beeb for saying they were lying now it may be the Beeb's turn - or to be precise, ex beebite in the form of Gavyn Davies. Having heard Campbell's ridiculous diatribe he's considering whether to sue him for libel. So it could be the turn for Ali to prove that the whole of the BBC from Davies to Dyke and byond had lied. If he can't prove it then it'd be one of the most memorable libel actions ever.

Media Beak reminds the potential litigants that Lord Hutton has retired - so this may make legal action more attractive.

Beeb backs off from Hutton challenge

The BBC has said it will not be pursuing a legal challenge to Lord Hutton's report. With tension mounting among staff in the organisation it has decided to concentrate on healing its wounds within rather than continuing its scrap with the Government and its judiciary.

The reasoning of the BBC's legal team was nearly as narrow as Hutton in that they concluded that on the basis of Hutton's findings and the BBC's mistakes they would not seek to pursue an action for judicial review of Hutton's report.

While the BBC may have considered that their actions were not as white as Hutton's report the findings of that report remain questionable. Imposing a burden of proof on the media - as Hutton did - that suggests they need to be able to prove the truth in respect of information provided by confidential sources where that source is questioning the Government would be an outrageous development if accepted in law. It is an intrusion on free speech and a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

5.2.04

Policing Sources

As reported by MediaBeak (see MB 26th Jan below), the media should continue to fight for its right to preserve the anonymity of its sources. This does however become complicated when the source comes from inside the police. The Met set up Operation Glade to police its own police and those who were leaking information to the press. This was in response to concerns that the press and wider media were obtaining information via private investigators.

The fact that the media receive tip-offs or information about people is nothing new but with increasing amounts of money being traded for such secrets the authorities are clamping down on this ethically questionable trade.

This week has seen four men charged with offences related to passing on police information. The case could open up a can of worms as previous investigations have never resulted in any specific legal sanction. The difficulty when you factor in payment is that the public interest angle gets distorted. Getting information from inside the force about matters of serious public concern such as illegality or corruption is desirable. The problem arises when the practice of so doing is itself seen as corrupt. Paying police high prices for stories could in the end cost the higher price of the legal measures to prevent such practices.