26.7.05

Diaz snapper found guilty

John Rutter, who tried to coerce Cameron Diaz into paying him millions of dollars to prevent topless shots of her being sold, has been found guilty of extortion. The jury in Los Angeles were less than convinced by his testimony last week and decided he had forged Diaz's signature on release forms and then lied about this before trying to get money out of the Charlie's Angel star.

Having been found guilty of theft, forgery and perjury he now faces up to six years in the slammer.

What's interesting about this case is that stars on the other side of the pond are not using invasion of privacy to stop such pictures being sold but are seeking redress in the criminal courts, seeing the taking and attempted sale of such pictures as theft of their image and/or attempt to steal money from them by demanding they pay to prevent them being printed.

If this trend gathers momentum, it could well be something that gets tested in the UK courts. Image rights can be deemed personal property and as such not only protected by copyright and data protection laws but their misappropriation could also be treated as theft.

The days of the snappers' sting could be numbered.

24.7.05

Verdict awaits photographer in Diaz trial

The photographer who is accused of trying to con Cameron Diaz out of millions of dollars using topless pictures taken while she was a model, will soon find out whether the jury believe his version of events.

The Los Angeles Superior Court ordered a permanent ban on the sale, ownership or publication of the undoubtedly valuable piccies back in 2003 when they first came to light.

Photographer John Rutter faces charges of extortion and prejury after he demanded 3.5 million dollars to hand over the pictures and subsequently lied about a release form Diaz was alleged to have signed. Diaz says she never signed any release form and was upset at the attempt to sell the pictures and accompanying video - the star of kids film Shrek2 and Charlie's Angels didn't like the idea of being made out to be a 'bad angel'. In his defence this week, Rutter claimed he hadn't forged her signature on the form and that in offering to sell the pictures to her he was merely giving her a 'right of first refusal' over them.

Whether the jury belives he was acting out of good faith and genuinely wanted Diaz to have the opportunity to buy back her boob shots and didn't forge a signature on a form he couldn't recall seeing, remains to be seen. If convicted he'll face up to 6 years in jail.

More HERE and HERE and HERE
Cameron-Diaz.com

23.7.05

Prosecution have to give Jackson belongings back

Following his acquittal last month, the prosecution in the Michael Jackson case have been ordered to hand him back his porn mags and other belongings seized during the investigation and used in evidence in court. The judge did however say that 'contraband' items such as various prescriptions in other people's names wouldn't be returned.
More from CNN HERE

22.7.05

Polanski verdict provides hope for Saddam's libel claim

Where there’s a court willing to entertain an action for libel, there’s an outside chance of winning one’s case. The Polanski verdict has reinforced the perception its open season for libel tourism in London. Thanks to misconceived perceptions of human rights legislation, it doesn’t matter if you’re a fugitive or prisoner, if you don’t like what’s printed then the UK courts will give you a chance to get back at the press.

The House of Lords paved the way for the Polanski case on the basis that access to justice and a right to fair trial should prevail over minor details such as the fact the plaintiff faced extradition for the statutory rape of an underage girl. We were told that human rights legislation directed us to support due process and irrespective of other offences, the right to a fair trial remains. Having reached their majority decision, the House of Lords may well sit back and say that the ensuing trial was, on the facts put forward in evidence, fair but in allowing the trial to proceed, both the process and the fairness have been called into question.

The European Convention on Human Rights – applied in the UK through the Human Rights Act 1998 – may well provide that there should be access to justice and a right to a fair trial but that same legislation does not decree in which jurisdiction that should be. Polanski is a French citizen and had access to the French legal system, which is also bound by the Human Rights Convention. Indeed, the French libel laws provide for a faster procedure with fines and a criminal conviction as penalty. What they don’t provide for however is a jury that will give you the benefit of the doubt. Residing in France and bringing an action against a US based publication Polanski had access to justice and a fair trial in France. So the only rationale for bringing his case in the UK was to secure, at the risk of the jury system, a ‘fairer’ trial in the UK.

Polanski’s strategy paid off and Vanity Fair publisher Conde Nast may well be considering an appeal but the real loser in this case is surely the integrity of a justice system that is, in libel terms, perpetuating its reputation as a tourist resort.

So those who maligned Saddam Hussein’s claim that he’d been ridiculed and libelled by the Sun’s publication of a picture of him in his underpants may yet see him proceed with his action. If Polanski can argue that infidelity and promiscuity should be no bar to being libelled for a claim based on the same, then surely Saddam should not see oppression and murder stand in the way of the humiliating sight of being seen in his pants.

The Polanski trial raises two questions for lawyers and the media in the UK, first, should we allow such cases. In Polanski the House of Lords said yes but earlier this year in the case of Dow Jones v Jameel the answer was no. In that case a limited number of people had accessed and read a potentially libellous report and it was held that to allow proceedings would have been an abuse of process.

Second, which is of equal interest and probably of greater application, where a plaintiff has a questionable reputation and openly admits to actions that are the basis for the sting in the story complained of, should they still be able to succeed with a claim, which while subjectively offensive, does not alter the objective perception of their character.

Polanski was open about his colourful sex life but was able to convince the jury that groping a girl after rather than before his wife’s funeral was acceptable within the context of his lifestyle while the suggestion it had taken place en-route to the funeral was libellous. Given the case was digging up events that took place 35 years ago, the question that needs to be asked is who was seeking absolution here, his conscience or his legal claim.

So back to Saddam. He’s facing charges for war crimes but he too is subject to the Geneva Convention on the treatment of prisoners and Human Rights legislation. He may be a dictator and responsible for countless deaths but on the basis of the Polanski case, does that mean he should be denied the opportunity of a mini-break at the High Court to slam the Sun for picturing him in his pants.

Mel B takes heat off the Sun

We'll never get to hear about what Mel B was alleged to have got up to in the loos at the Elysium. As reported on MediaGuardian, the former Spice Girl decided to drop her legal action against the Sun after its Bizarre section alleged she's been engaged in nocturnal nookie earlier this year.

Her lawyer said the action was being dropped after agreeng terms of a settlement that they were not at liberty to disclose - pity. Celebrities seem to have a penchant for nefarious tendencies in nightclubs - earlier this year Elizabeth Jagger managed to obtain an injunction (details HERE and HERE ) preventing footage of her and Calum Best in a compromising position in another club not far from Elysium, Kabaret's Prophecy club.

Perhaps Mel B is too busy concentrating on her career options after the release of her latest album disappointed . She also thwarted plans for the Spice Girls to stage a comeback at Live8 which will certainly have left many Spice Girls fans disappointed. Meanwhile, fans on the unofficial website think she's organising a big reunion next year! She's obviously not run that past Mel C who says 'no way'

15.7.05

Meadow Stuck Off - but what we need are more open family courts that allow for better scrutiny

While many may criticise the GMC’s decision to strike off Sir Roy Meadow, those affected by his flawed evidence will be able to gain some solace from the fact he has been brought to book.

Few will deny that Sir Roy Meadow had a distinguished career and contributed to child health. However it was his transition from experienced paediatrician to an expert on child abuse that led his career down a path where he ultimately substituted medical and scientific fact with statistical supposition.

It seems ironic that in his defence in front of the GMC, Roy Meadow denied he was a child abuse expert and claimed that he was simply ‘an experienced paediatrician’. Having invented Munchausen syndrome by proxy (MSBP) and edited ‘The ABC of Child Abuse’ his denial did not stand up to the scrutiny of the GMC and nor should it have.

One cannot stand before a jury in court as an expert witness whose testimony holds the freedom of a mother and future of her family in hand one minute and then claim just to be someone who is experienced rather than an expert, the next. In this sense it was right for the GMC to strike him off.

The message for expert witnesses is clear, if you are going to stand up in court as an ‘expert’ you will be judged as such. If you are experienced but don’t consider yourself an expert then stay at home.

Expert witnesses are not, as some may believe, there to back up or make out the prosecution’s case. The duty of an expert witness is to the court. They are there to assist the court in assessing the evidence and to provide their expertise in a specific area. So are we placing too much of a burden on experts? Richard Horton, editor of medical journal The Lancet believes so and recently argued that Sir Roy should not have been charged let alone stuck off. He argues that it is for the legal system to work out how it uses expert witnesses rather than blame the experts for their evidence. While valiant in its defence, The Lancet overlooks the damage that was done by Meadow’s flawed testimony. He didn’t have to give such evidence so it is right he should face the consequences. The consequences his evidence held in store for Clark, Cannings, Patel, Anthony and others was far graver. However, a key point within Mr Horton’s Lancet article is his question about the efficiency of the legal process employing expert witnesses.

This shifts the argument from not appearing as an expert unless you are sure you are and take responsibility for your testimony to one of not using expert witnesses or allowing the jury to hear their testimony unless you are sure the system works.

There are two fundamental problems with the system, one relates to evidence and the other to access. Where the forensic evidence or scientific fact is not self-evident, how do we bridge the gap between such ‘hard-fact’ evidence and interpretation of surrounding evidence and fact that is often key to proving or disproving a case. Presently the divide is bridged by the persuasiveness of the prosecution or defence and importantly, expert witnesses. This however leads to conflict. While an expert’s duty is to the court, their testimony may be perceived as belonging to the prosecution. If the jury is not clear about their role or their evidence then problems arise. Similarly, where as in Meadow’s case, the expert goes from assessing evidence to making it up, the jury may be left with a dangerously wrong impression.

At least in criminal trials there is a jury and the media have access to report on and assess the case. The problem with child protection cases, especially those involving expert witnesses is that unless and until they result in a criminal trial, they take place in secret behind closed doors. The media has no access and there is therefore minimal opportunity for transparency or scrutiny. If one wants to prevent further miscarriages of justice taking place and for a system that often relies on expert witnesses to sustain, then the answer is to open that system up to scrutiny and let the open justice principle break its way into family courts.

Given the lack of reporting rights in children and family courts, mothers can easily have their children taken from them on the basis of expert testimony. Where there are no ensuing criminal proceedings, the case will remain secret. Surely the severity of the penalty of having children taken from you demands a system that is open to scrutiny.

As if Sally Clark’s plight was not bad enough, her husband was faced with the prospect of having their surviving child taken from him on the basis of the ‘expert’ opinion of Professor David Southall, who having watched Mr Clark interviewed on a Channel 4 programme concluded the child was not safe in his care. If we are going to remove children and accuse parents on the basis of what an expert saw on TV then it is only right and the interests of justice should demand that the same media be permitted to scrutinise such experts.

Proponents of the current legal system will point to legislation such as the Children Act and argue that it is in the paramount interests of the children that they – and proceedings involving them – be given anonymity. So letting reporters into court is the last thing they would want. However, is it in the interests of children to be taken away from parents who subsequently are shown to have been wrongly accused of seeking to harm them. There is no reason why one shouldn’t or couldn’t open up the court system to allow the reporting and scrutiny of such sensitive cases while still preserving the anonymity of the children and families involved. Proper and measured reporting that allows for scrutiny is preferable to allowing a system to operate unchecked and then face sensational media coverage when things go wrong.

To the extent the courts and medical profession have some work to do on their interaction and the use of experts, the courts need to extend their dialogue with the media and allow them access to the system.

More from BBC here
The GMC
The Lancet
The Children Act 2004
Protection of Children Act 1999
Children Act 1989
More on Meadow HERE and HERE
More on Southall HERE and HERE
The Sally Clark case Appeal Judgment and aftermath
Related cases:
Angela Cannings HERE and BBC Real Stories investigates HERE
Trupti Patel HERE
Donna Anthony HERE but having spent 6 years in prison gets no compensation

6.7.05

PCC stats show efficiency but how effective are their remedies?

The PCC has today released its annual report for 2004. The level of complaints stood at 3618, slightly down from the 3649 for 2003 but still a 40% increase over 2004. The bulk of complaints related to accuracy 56.2% (of the 333 cases raising a possible breach of the code, all but 6 were resloved) and privacy 11.4% (with 218 investigations resulting in 127 possible breaches of the code, with 125 thereof being resolved).

Commenting on these figures and the underlying work behind them, the PCC said it was living up to its claim of being 'fast, free and fair' and was the preferred forum for resolving privacy related issues. While we've seen high-profile disputes battled out in court, from the epic Douglas v Hello to the House of Lords ruling in Naomi Campbell's battle with the Mirror and at a European level the judgment in von Hannover v Germany, the PCC still handles the majority of complaints. Privacy is not just the preserve of the rich and famous and over 90% of the complaints handled by the PCC for 2004 concerned people who had not previously been in the public eye.

While the court cases mainly concerned photographs, the wider crop of complaints handled by the PCC concerned a more general breach of one of the 9 parts of the PCC code that deal with privacy-related issues.

In the wake of the von Hannover and Campbell cases there is still debate as to the scope of not necessarily where but importantly, when one might enjoy a 'reasonable expectation of privacy'. The PCC thinks its cracked this and points to two rulings.

First, in the wake of the celebrated Blunkett and Kimberly Fortier affair, the PCC rejected a complaint about the publication of a picture taken of her walking along a street in Los Angeles stating that "it did not generally consider that the publication of photographs of people in public places breach the Code."

However a qualification was added to this stating that "Exceptions might be made if there are particular security concerns, for instance, or in rare circumstances when a photograph reveals something about an individual's health that is not in the public interest".

So when it came to the second case concerning Allegra Versace who had complained that pictures in a magazine indicated something about her health, the PCC upheld the complaint and the magazine published an apology.

The problem remains - and the Beckhams recent failed bid to gag former nanny Abbie Gibson highlights - that whether its pictures or a story, there is still some trade-off when it comes to the expectation of privacy. It would appear that the more public one's life, the less privacy one may be entitled to. The difficulty relates to interpreting 'the public interest' in relation to publication. The PCC's own code provides a caveat in its definition of public interest whereby public interest may be established where publication relates to something that prevents the public from being misled by some statement or action of an individual or organisation.

Beyond the provisions and context of its code the PCC does not have the remit or power to give full effect to the Human Rights Act and underlying Convention rights relating to privacy on the one hand or freedom of expression on the other. So those seeking to debate the reasonableness of their expectation of privacy have less of a forum and no recourse to remedies beyond the publication of an apology or promise not to republish.

Fact remains, if you want the PCC Code to bite, you need to go to court. For it is in court that one can direct the judge to the provisions within section 12 of the Human Rights Act that allows the court to balance the competing rights between individual and press with reference to 'the relevant code'. The other important point to consider is that when it comes to privacy, much of the litigation is aimed at preventing publication in the first place. Once published, the damage is done so an injunction is always going to prove more useful than an apology.

When it comes to policing its code, the PCC has again provided us with proof that its fast, free and fair service works well. When it comes to prevention and shaping the law, it will still be litigation that prevails over self-regulatory scrutiny.

PCC Annual Report
PCC Press Release
Media Guardian comment

5.7.05

Financial Journalism - Best Practice Note

The PCC has issued a practice note in relation to financial journalism. Clauses 1 (accuracy) and 13 of the PCC code apply to financial journalism and provide that journalists shouldn't undertake any form of activity relating to financial journalism which could be open to misinterpretation. In other words, no profiting from share tipping or similar activity.

The practice note ties in with the recently issued Investment Recommendation (Media) Regulations 2005

PCC Practice Note
Investment Recommendation (Media) Regulations 2005
Example: Mirror City Slicker case - comment HERE