Libel - are printed apologies sufficient remedy?

Leona Lewis may have managed to get Look magazine to publish an apology and the PCC may consider this enough to settle the matter but is this really enough?

One issue that remains contentious is the adequacy of printed apologies as remedies. While the offending stories are usually splashed across the front pages, apologies tend to get buried deep inside a magazine or paper’s content. In her recent case against the Daily Mail Kate Winslet was successful in forcing the paper to read out an apology in open court after it had settled the case and paid damages. The original apology the paper printed had been buried in a small column on page 27 which Winslet and her legal team at Schillings considered to be insufficient. They issued an application notice dated 3 September 2009 for permission to read a unilateral statement in open court in accordance with the provisions of CPR 53PD 6.1
Mr Justice Eady agreed that the request to read out a statement fell within the procedural guidelines and allowed it [judgment HERE] – so the Mail was forced to say sorry in open court which meant that the rest of the press got to report it!

Winslet has not been the first to complain about the adequacy of apologies, in 2003 actor John Cleese won £13,500 from the London Evening Standard over a ‘manifestly vitriolic’ article it had published suggesting his career was over. He was not satisfied with the apology it then printed and Mr Justice Eady awarded him damages.

Look says sorry to Leona Lewis

Fashion and gossip magazine Look has said sorry to former X-Factor winner Leona Lewis after publishing a story that suggested she was making ‘emotional calls’ to he mother and not coping with the pressures of stardom.

The Press Complaints Commission (PCC) which received a complaint by the singer over the story, has concluded that the apology published in a subsequent edition was sufficient enough to resolve the issue.

Making unfounded comments about someone’s state of mind or mental health can not only be defamatory but could also – as a discussion of a personal sensitive issue / medical condition - be invasive of their privacy. Luckily for Look Leona Lewis only launched a complaint with the PCC which means the worst the magazine could have got was a telling off, had she decided to launch a legal action there could have been the prospect of a big cheque changing hands to make the issue go away. Could she still sue? Yes, accepting an apology is not the same as a pre-trial offer of amends. She may feel the apology is enough and that the credibility of Look’s content is not going to cause her sufficient damage to warrant the publicity attaching to legal action.

One issue that remains contentious is the adequacy of printed apologies as remedies.

PCC to police online only publications

The Press Standards Board of Finance has announced that it has given the Press Complaints Commission (PCC) the go-ahead to extend its scrutiny over the press to publications that are only available online. In 2007 the PCC expanded its role to cover online content on newspaper and magazine websites but given the surge in internet-based/internet only publications, this extension in remit allow the PCC to extend its watchful eye across the online environment BUT before we get too excited and think the entire internet is now being policed, the extension in remit is limited as follows:
publications that must be recognisable as UK based newspapers or magazines which, if in printed form, would come within the jurisdiction of the PCC.

the publisher and editor must subscribe to the Editors’ Code of Practice.

the publisher must agree to pay registration fees to PressBoF.

So this will open a few internet doors but only those who are happy to allow the PCC in!

The Sun removes nude woman from website

The PCC has deemed a claim against The Sun to be resolved after the paper removed the nude photograph that appeared alongside an article about her relationship. The article appeared in 2006 but was still available online. A rare occasion where The Sun has removed a nude woman from its pages….

Sugababes bust up - Keisha threatens to see Amelle in court

According to The Daily Star’s analysis of media reports and Twitter, ousted Sugababe Keisha Buchanan has threatened to see Amelle Berrabah in court for suggesting she was a bully. Rumours have been rife since relations in the band soured and Keisha, the sole survivor of the original sugary line-up, was replaced. It was suggested that Berrabah succumbed to nervous exhaustion after being on the receiving end of bullying from Keisha but the matter remains as speculation. So it appears Keisha’s not finished with Amelle yet and is lining up the lawyers.

Publishing stories suggesting someone is a bully that are not based on substantiated facts that damage their reputation can amount to defamation. Amelle can say what she wants but it’s the papers that publish the allegations that are liable when it comes to defamation. Keisha might be seeking to put forward an argument based on the fact that she was forced out of the band because of false bullying claims that damaged her reputation and career – let’s see if her lawyers go for it – probably not one for spinning a CFA on.

PCC censures newspaper for harassing pregnant lap-dancer

The Scottish Daily Record has been censured by the PCC (Press Complaints Commission) for harassing a pregnant woman after it had agreed to leave her alone.

Facts:
Nicola Shields was reported to have become pregnant by professional footballer Sol Bamba who plays for the Scottish Premier League side Hibs. She was approached by the paper to confirm the story earlier in the year but had refused to speak and asked to be left alone.

The newspaper undertook to leave her alone but that didn’t stop a reporter pursuing her and a photograph being taken of her outside her house (which was up a private road).

The following headline appeared on August 18 this year: “I am pregnant by Hibs star Sol Bamba, claims lap dancer”

Complaint:
Shields complained to the PCC that the Daily Record had breached clauses 1 (Accuracy), 3 (Privacy) and 4 (Harassment) of the PCC Code.

Clause 1 complaint:
The paper had called her a ‘lap dancer’ when in fact she was/referred to herself as the manager of a gentlemens club.

Clause 3 complaint:
Taking a picture of her and trying to speak to her at her house was an invasion of privacy under the code.

Clause 4 complaint:
Continuing to seek to speak to her or follow or contact her amounted to harassment, especially as she had specifically said she did not want to comment and the paper had undertaken not to pursue her.

Discussion:
A lap dancer becoming pregnant by a professional footballer is classic tabloid material and too good a news story to resist BUT where someone has specifically said they do not wish to comment and is on their private property then the press have a duty to desist from pursuing them. This is especially so in this case given that the paper had already undertaken not to pursue Ms Shields. Refraining from following her does not mean they can’t cover the story but its naturally better to have a picture and a quote to accompany a headline so the temptation to misbehave is there.

While the reporter and photographer should have left Shields alone it is ultimately the editor of the paper who takes responsibility as it is their decision whether to include material and what they consider they can justifiably include.

In this case the Clause 1 complaint over the semantics of whether Shields was an actual lap dancer or instead the manager of a gentlemens club is not material to the story – pregnancy by a footballer and so its correct that it was rejected.

The Clause 3 complaint was however justified – under Clause 3 (iii) its ‘unacceptable to photograph individuals in private places without their consent’ – a private place being ‘public or private property where there is a legitimate expectation of privacy’. Shield’s house was up a private road and she had a legitimate expectation of privacy there (being able to photograph her from further afield using a long lens is no excuse as it is the image rather than the position of the photographer that will define if the privacy of the place or scene has been invaded). There is some editorial scope in the PCC Code for invading privacy but under Clause 3 (ii) in such a case ‘Editors will be expected to justify intrusions into any individual’s private life without consent.’ BUT in this case Shields had specifically refused consent and the paper agreed to leave her alone. Clause 3 (ii) also provides that ‘Account will be taken of the complainant’s own public disclosures of information’ BUT in this case she had chosen not to disclose and Sol Bamba had also denied he was the father. 3(ii) would come into play in a case where the person making the complaint had already got publicity or ‘sold their story’ and then sought to silence the press. So the paper was in clear breach of Clause 3 – and – even though the case wasn’t in court, would have breached the right to privacy under Art 8 of the European Convention as engaged through the Human Rights Act.

Having agreed to leave Shields alone the paper was clearly in breach of Clause 4 harassment – she had been persistently pursued and photographed after having asked the paper to desist. Clause 4(iii) provides that ‘Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.’

Mediabeak concludes that while Ms Shields may have her adjudication from the PCC and while the paper removed the photograph THE ARTICLE IS STILL HERE

So the adjudication is not much use in terms of remedying the damage the story may have caused. As ever with privacy cases the protection offered by the PCC code is impotent and if its damages or an injunction one is after then it will take litigation or at least the threat of it to engage the back door privacy protection offered by the Mosley-led mish mash of case law and its varied interpretation of Article 8 of the European Convention.

Privacy laws in a mess? Don't blame the judges says Shadow Justice Secretary

More from the Society of Editors conference - Shadow Justice Secretary Dominic Grieveclaimed today that the justice system in England and Wales was teetering on the brink of collapse - Grieve said “I don’t want to sound apocalyptic but we are in fact facing a serious crisis in the administration of justice which is teetering on the brink between passable efficiency and collapse" How that's not meant to sound alarmist is one for him but he outlined what he considered to be widespread and necessary reforms to rejuvinate the system. In addition to legal aid and family law reforms he also acknowledged the less than satisfactory state of privacy law which has been left to the courts to sort out and so evolved in a hap-hazard case by case basis.

A Max Mosley's recent success against the News of the World demonstrated, courts will punish papers who expose a person's penchant for getting spanked by ladies in leather and the fact a person is a public figure does not automatically allow papers to examine (or plaster pictures relating to) their private life.

The collective brains of our senior judges, leading counsel and a string of cases have failed to adequately unravel the interplay between the Human Rights Act, European Convention on Human Rights and media regulation when it comes to privacy. The spectre of celebrities and those out to sell themselves and every sordid detail of their lives or the lives of people they know or can leak information about has skewed what should be a straightforward protection granted to people in respect of their privacy. Laws such as the European Convention are however phrased as giving and give protection against the state and not directly the media, so its left to the courts to intervene. Given that politicians in the UK have talked about but not had the apetite to legislate specific privacy laws we have ended up with a series of judgments that don't all make sense when taken together. This was predicted in an early privacy case by one judge, Mr Justice Lindsay who prophetically said “A glance at the crystal ball of, so to speak, only a low wattage, suggests that if parliament does not act soon the less satisfactory course of the courts creating the law bit by bit at the expense of the litigants and with inevitable delays and uncertainty will be thrust upon the judiciary” This is where we're at and what Dominic Grieve alluded to today.

Libel capital of the world is no badge of honour

Addressing the Society of Editors today, Lord Chief Justice, Lord Judge commented on the current debate around the need for reform of libel laws. He said he was not impressed by the number of libel cases winging their way to the High Court and being dubbed the libel capital of the world was no badge of honour for London. He said that forum shopping had no appeal and that as is the case with criminal proceedings, if a crime is committed in one city or region then it should be tried there and not thousands of miles away because a legal system entertains it.

Lord Judge also criticised the ever controversial conditional fee arrangements (CFAs) that are being exploited by celebrities to bring risk-free legal actions against the press, thereby gagging free speech. Although not going into the specific Trafigura case involving the Guardian, he did express concern over the latest incarnation of the ‘super injunction’ and the effect that had on the democratic process.

More on CFAs:
Presure to change unfair CFA regime
Plans announced to cut defamation costs
Big win big fee placing unjust pressure on the press

Independent press a cornerstone of democracy says top judge

The Lord Chief Justice, the top judge in England and Wales, has said that an independent press and an independent judiciary are the cornerstones of democracy and should work hand in hand to ensure they remain so.

Speaking at the Society of Editors’ annual conference, Lord Judge said that the fabric of society was based on a free press and independent judiciary and urged journalists to ensure they kept reporting what local authorities and councils are doing. Expressing his concern over the fact that reporters were an increasingly rare sight when it came to council and local authority meetings, he said “I do not want the press to be the broadsheet of the local authority or the Government.” and “I do not want court proceedings to be reported by local authority communications departments”.

Due to budget cuts and a drive for more popular stories, papers, especially local ones, do not, as used to be the case, maintain a more or less permanent presence at council or local authority meetings from where they would file reports on the proceedings and what was being done by elected local politicians in our communities. The current trend is to reprint press releases that have been issued by local authority civil servants without the scrutiny or questioning that forms part of the democratic process and holds local councillors politicians to account.

Similarly, Lord Judge said that court proceedings should also be kept in check but was equally concerned that there had been a similar decline in reporting of local courts: “I am not comfortable with the thought that there is no-one to go into the court and observe and write up. If there is no-one to walk in, the public interest is damaged. That is the harsh reality.”

Society of Editors

Carrie Prejean drops libel action - did sex video play a part?

Carrie Prejean - or Miss California as she may otherwise be identified - has, it would appear, suddenly settled her libel action against the Miss California pageant.

Facts
Having been crowned Miss California, Prejean was dethroned in June this year after she 'failed to carry out her duties' - or as was more publicly the case - because of her unapproving commments over gay marriages. Prejean had launched a religious discrimination and libel action but this seems to have mysteriously settled when a sex tape surfaced. Apprently the tape just involved Prejean but that seemed to be enough.

Comment
There always seems to be/has to be a sex tape ready to surface in cases such as these. Her legal action was set to make her enough publicity to make up for the lost earnings and damages she may have won if the action had ever made it to trial and - what seemed unlikely - she had won. As Paris Hilton knows, sex tapes can prove risky but if rightly managed also lucrative. For Prejean it seems to be (no pun intended) a touchy subject and she nearly stormed off Larry King's chat show this week after deeming his enquiry about her legal case to be inappropriate. The pageant may have been good but the aftermath makes for a far better drama. Who knows, once the tape hits You Tube we may see Prejean knocking at the court door again.

Peter Andre in second libel win this year - Now magazine pays substantial damages

Peter Andre - popster and ex-husband of the phenomenon known as Jordan aka Katie Price - has this week won 'substantial' libel damages against Now Magazine.

Facts
Back in July the magazine had run an article that suggested Andre had been too busy playing about with his musical equipment to properly supervise Katie Price's disabled son Harvey who had consequently had a couple of accidents. The article further suggested Andre was just using Jordan for sex (though there will be many who may argue such a suggestion may not be defamatory).

Legal case
Both these allegations are defamatory in their own right. The magazine may have - if it thought that far - sought to publish or subsequently argue on the basis that as Andre presents himself as a devoted family man then anything that calls this into question is legitimate ground for discussion. In this case the magazine had no proof to substantiate the allegations it presented as fact and therefore no justification for publishing what it did.

Comment
This is yet another example of a gossip rag trying to shift its sales with sensationalist copy. Whether the sales increase offsets the libel damages Now is now paying out is unlikely. Making such specific allegations against high profile 'celebrities' is a red rag to a libel action unless one can prove that what is published is true or justified by context. Neither applied here.

This is not the first time Andre has litigated over articles suggesting he was not a caring parent and husband - in 2008 he and Jordan won damages and an apology from the News of the World after it published 'revelations' from a former nanny under the title "Jordan exposed: Nanny reveals sex, rows, binges.." - that article also contained the allegation that Jordan's son Harvey had hurt himself as a result of Andre's lack of attention.
Back in July this year he also won substantial damages from The People over its false allegations he has made lewd sexual advances to a model who looked a bit like Jordan.

Ecclestone libel action against Telegraph dismissed

Two rare things happened in the High Court today - a newspaper won (or didn't lose) a libel action AND Schillings lost one.

The case
Petra Ecclestone, daughter of Formula 1 supremo Bernie, had brought a libel action against The Telegraph's diary column Mandrake, suggesting it had wrongly attributed a quote to her and that the quote was libellous.

What she was alleged to have said in response to being asked about using leather in her fashion range and vegetarianism was that she "did not have much time for" people like well-known vegetarians such as the McCartneys or Annie Lennox.

Her legal team at Schillings argued that the statement was defamatory on the basis that it portrayed Ecclestone as being disrespectful of the McCartneys and Lennox.

The issue
For something to be libellous the claimant has to show that what was published had, or was capable of having a defamatory meaning. So did the phrase 'not having much time for' someone amount to such a public display of indifference or disrespect as to be capable of being defamatory of the person who was alleged to have said it? And, did the publication of that comment as attributed to Ecclestone actually cause people to think less of her to the extent it damaged her reputation?

The further issue of whether she had actually said that she didn't have much time for these ueber-vegetarians is relevant only insofar as the comment could be shown to be defamatory - i.e. if what' been printed isn't capable of having a defamatory meaning and effect then its immaterial to the defamation claim as it will have failed anyway.

The decision
This was a preliminary hearing to decide whether the case should be allowed to proceed to full trial. Mrs Justice Sharp was not convinced, indeed she said she was 'entirely unpersuaded' that Telegraph readers would have been outraged by the comment. She concluded that the reasonable reader would not think it any more than a generally used commment to convey that she was not particularly influenced by or subscribe to the schools of vegetarianism supported by the McCartneys or Lennox. SO there had not been publication of a statement that had or was capable of having a defamatory meaning such that it would be appropriate to proceed to trial.

Next was the contention that she had never said the words attributed to her = as Mrs Justice Sharp was swift to point out, falsity in relation to the quote was immaterial in these circumstances. Result = Press 1 : Schillings 0

Comment
Mediabeak thinks this was a long-shot libel action as it hinged on the strength, meaning and potentially defamatory effect that could be attributed to or flow from the phrase 'not having much time for' someone. The argument is further weakened by context in that - assuming the quote was not falsely attributed - saying she didn't have time for 'people like' the McCartneys or Lennox was merely describing her approach to vegetarianism as being less campaigning than others. Indeed the context of the interview related to her forthcoming fashion show and the use of leather so viewed at from this broader perspective, trying to pin a libel action on a throw away comment about vegetarianism was optimistic. If one looks at what celebrities fling at each other via the press on a daily basis, the phrase at the centre of this action seems decidedly mundane. Presumably the case was not on a CFA.

Winslet wins £25k from Daily Mail

Kate Winslet has today won £25,000 damages from the Daily Mail over reports the paper ran in January this year that questioned her diet. Today's award follows an earlier apology by the paper and a successful action against Grazia magazine in 2007 after it claimed she was seeing a diet doctor.

The Mail gloated over the 2007 award against the magazine and reported the fact Winslet had donated some of her award to a local eating disorder charity. The tabloids have been fuelling the obsession over weight against which the likes of Winslet are campaigning and so can't help themselves speculating over their weight and fitness regimes. The announcement of today's settlement just confirms the fact that when it comes to securing a splash over speculation about a celebrity's weight or fitness normal ethical principles go out of the window. What Mediabeak thinks is surprising is that the award is fairly modest in terms of 'going rates' for libel - perhaps its because Winslet was not using a CFA.

Sun stung after failing to prove Tory smear campaign story

The Sun splashed its exclusive back in April that there was a Labour plot to smear the Conservatives via a political rumour website 'Red Rag' but it now appears the only bull it has attracted has been Carter Ruck's litigation team who have today secured an apology and substantial damages for Tom Watson who it had - as has now emerged - falsely accused of being part of the plot to smear the Tories along with labour spin-meisters Damian McBride and Derek Draper.

Bit of a sorry indictment on The Sun and its former political scrutineer Trevor Kavanagh that what was a great scoop has now proved to lack the sting and has ended up in court as yet another apology and big libel bill because the story was either untrue or the paper had not been able to make it stand up to legal scrutiny. While todays reluctant sorry in the High Court and damages payout will, rightly subject the journalism to scrutiny, the public impact of the original story will have been far greater.

What Mediabeak thinks is a shame is that IF the impact of the story could be backed up with robust journalism that stood the test of legal action then we would have more faith in the papers and columnists who expose the dodgy dealings of politicians. Handing over yet another damages cheque and mumbling sorry in court might seem a commercially viable offset to the circulation generated by the offending story but its not a victory for journalism. While many of Carter Ruck's practices and cases may be seen as thorn in the side to the press, in cases such as these the financial pain the press suffer is a justified and important reminder of the fact that if you can't substantiate the story then don't be surprised if the lawyers come knocking at your door.

BNP Question Time debate - the BBC failed

Huge debate surrounded the BBC's decision to invite and allow BNP leader Nikc Griffin onto its 'flagship' programme Question Time. No one has emerged a winner - if there can be one in such a situation.

Contrary to silly suggestions that allowing Griffin on TV would be 'illegal' it was not - how can one in a democratic society legally prevent someone who is an elected politician - even if we find this distasteful and unacceptable - from appearing on a debate on a publicly funded state broadcast channel. We might not like what people have to say but to the extent we rely on our democratic and legal process we have to accept that the rules dictate they have a right to say things (subject to laws such as incitement etc) and there is not a law that prevents people (subject to the rules of contempt of court or certain criminals) from appearing on television.

What Mediabeak thinks was the main failing of Question Time is the fact that the first question was 'loaded' and referred directly to the BNP and so made the BNP the main subject of Question Time debate rather than allow a series of subjects to be presented to the panel and see what Griffin had to contribute. So Question Time turned into a debate about the BNP and whether Griffin was a Nazi and should be on TV rather than a programme that allowed viewers to hear Griffin and others debate issues of the day. Had the editors/producers let the programme take its course it would have made for more plausible and useful television. Instead we have a programme that did not answer many questions, provided the papers with the headlines they chose to intrpret and left no one truly wiser.

Do we like what Griffin has to say or stands for - no - BUT has he a case to complain to the BBC that his treatment on the BBC was biased, yes. In a sense there is a greater honesty to his racial offensiveness than the opportunistic and hyperbolic vitriol spouted by many politicians whose real views we can be less certain of.

Sick, sad and stupid Jan Moir and the Mail misjudge the issue

She's not said sorry but 'apologised' for the timing of her rambling which the Mail decided to publish in the wake of Stephen Gately's untimely death. Jan Moir epitomises what the Mail is about and the words 'objective analysis' or 'reasoned response' or 'timely insight or analysis' do not spring to mind.

Getting the record for the most complaints ever lodged with the PCC is not some sort of accolade but testimony to the journalistic and editorial failings that allowed such a piece to be printed. The key theme that ultimately determines judicial decision making and should be filtered down to the foodchain to editorial decision making is CONTEXT. While one can argue that a debate over certain lifestyles or the use of stimulants or alchohol are important and timely, linking such line of enquiry over a - as it was at the time - yet unresolved cause of death of a public figure such as Stephen Gately is, in the circumstances as naive, ill-timed and ultimately offensive.

The key question here is not why Moir penned such a piece - there is nothing preventing her as a commentator or columnist taking the stance or adopting the angle she did (whatever one might think) - BUT it is ultimately the Mail's editorial process that allowed her ramble to be published and so it is the paper that takes the responsibility for dissemintating her views. So we might want to bash Moir but without the Mail she would not have her platform so the question IS - was the Mail right to publish her 'contribution' to the 'debate' she allegedly sought to generate based on - what she has admitted was ill-timed - the link to Gately's death and lifestyle.

No. The Mail has a wider duty and that extends to assessing the public mood surrounding an event (Gately's death) and issues (lifestyle, sex etc) and deciding when it is appropriate to link the factual reports of one to the conjecture surrounding another. Both the Mail and Moir got it very wrong.

Daily Mail gets sued by Chelsea

The Mail should beware. A writ filed at the High Court in London this week claims that its handling, through Chief Executive Peter Kenyon, of the departure of business affairs boss Paul Smith was unprofessional.

Only a few years ago The Times ended up having to pay out £250,000 damages to Southampton FC Chairman Rupert Lowe over claims he had acted 'shabbily' in suspending the club's manager. In that case the claim succeeded even though it was comment by a sports columnist. In the current case the report was reported editorial fact based on an alleged 'cat fight' between Kenyon and Smith's partners.

Both Chelsea FC and Kenyon are claiming loss of reputation and distress as a result of the article and that the supposed spat between their partners was behind Smith's departure. Another aspect of the claim that will not be in the paper's favour is the suggestion that it had not sought response from the club or Kenyon pre-publication. The right to reply and/or putting to the potentially defamed party the facts upon which the story is based are seen as important stepping stones to satisfying the test for the journalism in question as being responsible.

An out of court settlement might be a good option for the Mail here as if it proceeds to trial it could see its legal bill match the precedent set by the Lowe v Times case.

PCC to probe Gately comment by Moir in Mail - over 21,000 complaints

The PCC has said irrespective of whether friends or family lodge a complaint, the regulator will launch its own inquiry.

Jan Moir's insensitive ramble has caused widespread outrage and sent the Twitterati into overdrive. The amount of complaints received by the PCC now exceeds 21,000 and represents more than the regulator has received in total over the past five years.

While the heat of the debate centres on Jan Moir, the wider issue for the Mail to ponder and the public and PCC to question is whether the paper's decision to publish was appropriate. Moir may have penned her poison piece but the paper decided it was acceptable to publish it. In doing so it has certainly judged the mood wrongly. Whether this misjudgement of mood directly breaches the PCC code is subject to interpretation and debate. It may seem easy to defame the dead but the ethics of doing so demand some debate.

Endgame in Trafiguragate - Carter Ruck folds as Guardian secures free speech win

The Trafigura question has - without seeking to overstate the case - put democracy and freedom of expression to the test. Social media has displayed its role and effectiveness in following and promoting the debate and - to be fair to Carter Ruck - they have done everything they could for their clients, posturing by raising the sub judice angle to seek to diffuse the debate in Parliament, Alan Rusbridger (Guardian editor) was pushing for.

This evening it appears - as reported by the Guardian - that the paper has been 'released from restrictions forthwith' and justice can prevail through the proper and unfettered reporting of the issues.

So the reporting of information about the alleged dumping of toxic waste off the Ivory Coast has now been made possible. The irony is that in seeking to suppress the story the company is now center stage not merely for its waste dumping but also for its advisers attempts to suppress its activities. In this endgame it was the attempt to suppress the information and influence Parliamentary process that has drawn the focus of attention to this case.

TO the extent that the underlying questionable act of dumping waste is a legitimate focus of attention, the attempts to suppress or even pervert the democratic process have a more enduring resonance. The true crime in this case would have been if legal process (via what has been dubbed the 'super injunction') could have been used to suppress information and debate because a corporation could afford lawyers to scare off the press and enlist judicial support for their position.

While this case may not resolve or alter Trafigura's working practices it has raised and hopefully reasserted a fundamental democratic principle that the public has a right to know and the media a corresponding right to report what issues are raised and debated in Parliament.

Carter Ruck went the distance for their clients but ultimately they had to concede the endgame - had they not then one of the cornerstones of the democratic and legal process upon which they sought or may in the future seek to rely on would be undermined and be called into question - the ability to scrutinise and debate without undue influence is a crucial principle that deserves to be fought over and upheld. The law should be there to preserve rather than deny this right irrespective of who holds the cheque book.

Former McCann PR wins libel action

Justine McGuinness who was appointed former PR adviser to Gerry and Kate McCann has won a libel action against Mirror Group Newspapers over a front-page piece in The People.

The paper had published allegations on its front page suggesting McGuinness had resigned as the McCann's PR after charging too much for her expenses. The paper couldn't back up its claims and has today issued an apology in the High Court and agreed to pay damages to a charity nominated by McGuinness.

Peaches Geldof sues Star over prostitute slur

Peaches Geldof has issued proceedings against the Daily Star after the paper published a less than adequate apology for suggesting she'd received cash for sex.

The issue of papers printing apologies and retractions that are as prominent as the original offending articles has been debated by the PCC and news editors. Claimant solicitors are pushing for front page apologies - so far these have been very rare - Geri Halliwell got one as did Miss Dynamite (mediabeak suspects Peaches may have got hold of their lawyer, Jonathan Coad, to go after the Daily Star). More analysis to follow.

PCC rules police raid coverage did not violate privacy

PCC rules that privacy rights don't attach to someone who has been the subject of a police raid.

Plymouth businessman Luke Dann took exception to coverage in The (Plymouth) Herald about a raid on his property and search of his cars by dozens of police officers. The raid did not result in any charges but the issue here is - given there was no charge, was it right for the press to report the raid on his property.

Dann argued that the paper was not entitled to report on the raid and that it was an invasion of his privacy.

Not so ruled the PCC which upheld the paper's position that the raid was a very public affair and as such was a legitimate subject to report on.

Mediabeak agrees - the raid was a public event or an action carried out in public view and as such should be open to be reported on at a factual level - in other words there is nothing wrong with reporting the fact of the raid provided that if, as is suggested in this case, there is no subsequent arrest or case, the reporting of the raid does not infer that the person(s) being raided are guilty of any wrongdoing.

Dann sought to rely on privacy but the paper did not divulge any information or pictures from inside his property so there was nothing published that could not have been veiwed or recorded by anyone who may (theoretically) have been standing on the street at the time of the raid. So nothing that was beyond the public domain was reported on.

Issues:
The fact - even reported as fact - of a raid can be seen or have a prejudicial and invasive effect on the individual involved. However, it would be wrong to suppress the reporting of such fact as if there is a public raid or investigation then the public (who pay for the police conducting the raid) have a right to know what and why their money is being spent on.

Where an investigated or 'invaded' individual has nothing to hide then they can turn the raid or investigation into a positive for them by acknowledging the investigation and showing that it cleared as opposed to implicated them.

From a privacy point of view both the self regulatory press rules and the European Convention provide for the right and its protection BUT such provision is subject to intrusion or invasion of it being 'unwarranted' or 'unjustified' - so a raid may well be justified even where the person being raided is shown to be perfectly innocent.

Mediabeak concludes the key issue here is that yes, the press should be allowed to report on such raids or similar investigations BUT the contentious issue for those being investigated is that where the investigation being reported on does not result in any proceedings or highlight any wrongdoing then it is very unlikely the press will run a follow-up story along the lines that 'Raid proves local businessman innocent' etc. Bottom line is that the public has a right to know what is going on in its communities but that in the modern multimedia, multi-platform age it is no longer a question of a newspaper controlling the media agenda. The press will print what sells and that is not necessarily consistent with what might be the story or answer to it an individual is seeking to sell. Solution = capture and create your own online space that you can use for 'official' announcements.

Full PCC ruling HERE

Harriet Harman defends press freedom

Harriet Harman had a pop at the judiciary in Parliament this week. As leader of the House of Commons she defended the right to report proceedings in Parliament and said it was not for the courts but for the Speaker of the House to decide what should be restricted in terms of reporting proceedings. Harman has a long track record of defending freedom of speech (Harman v UK)so its great to see her sticking up for the press at a time when the expenses scandal is heating up again....

Harman addresses the House (courtesy of Guardian)
Harman tells courts to but out of Parliamentary proceedings
Harman, expenses and political ambition - analysis by the ever impartial Daily Mail

Should Carter Ruck be reported to Law Society for Trafigura-gate?

Media Guardian are running a line saying Tory MP Peter Bottomleyis goingto report Carter Ruck for engaging in that heinous offence of seeking to inhibit the reporting of Parliament but is the media's super injuncting nemesis about to be censured? No.

They tried it on and along came a question in Parliament which trumped their gag potential so end of.

There have been far more serious affronts to free speech in recent years through anti terrorism legislation and 'national security' issues. As Mediabeak has already posted, natural justice has prevailed and the Guardian has secured the story and moral high ground.

What is interesting about this case is that the old and new world orders have combined to produce the right result. On the one hand we have the ancient rule about Parliamentary business being reportable through Hansard and beyond while on the other we have Twitter and the freedom to Tweet.

The public domain is a great thing and concept and what Twitter is proving is that - beyond the millions of tweets about random people round the world doing and sharing their random things - it can play a significant part in putting information or an issue into the public domain and so defuse the legal process from its power to suppress information.

Twitter might not be Carter Ruck's friend today but it will be tomorrow because the opportunities if offers will - Mediabeak suggests - become part of the democratisation and liberation of information that will be definitive of news, knowledge and evidence in the years to come.

X Factor outrage - Dannii v Danyl

According to Ofcom's website, the media regulator has clocked up 3,885 complaints about Dannii's supposed 'banter' with Danyl that was suggestive of media speculation about his sexuality.

Now a media storm is brewing over this 'outrage' but is this a justified outpouring and analysis of inappropriate broadcast comment or is it just another example of the media playing with itself to generate a story?

It highlights the risks in taking what might have seemed innocent 'banter' off-screen and following it through on-screen but why should an interaction and comment that seems acceptable off-screen become so offensive on-screen? - because the same tabloids that speculated over Danyl now decide an innuendo based on that same speculation is 'out of order'. Better still they can pay Danyl to sell his story and pillory Dannii. It is indeed a tangled web the media weaves but the sad fact is that all that is going on here is creating a story that trades off X Factor prominence and viewing figures, plays on the characters and spins into a print press story that has minimal substance yet still manages (as the complaint numbers to Ofcom prove) to generate appeal.

So in a week where one of the country's leading media law firms has tried to suppress reporting of proceedings in Parliament we're busy generating a story about a reality show judge teasing a contestant about lyrics in a song. It's time to have some serious debate around what we want from our media and separate the important issues that impact society from the vacuuous that may drive sales and keep shareholders happy but ultimately distract the public and media regulators from the more important issues they should be addressing.

Guardian wins Trafigura question via Twitter

What's the case about: Trafigura - a company based in the Netherlands was supposdely dumping waste in West Africa. A Parliamentary question was tabled in relation to this and unusually, the Guardian newspaper found itself at the centre of a legal gag seeking to prevent it from reporting on the matter.

Why this case is important: The High Court had actually ruled that what should be an open question in Parliament (the supposed centre of democracy) could be shrouded in secrecy and not be reported by the press.

Key issue: Should legal process be allowed to prevent the press reporting on Parliamentaty procedure. Mediabeak says NO. This IS fundamental to democracy and the whole concept of press freedom - whatever the issue wherever in the world, the press, the media are there and have to be protected and recognised as being there to keep in check and question what is going on. If you can suppress questions in Parliament then you extinguish or discredit the whole basis upon which open government and a scrutinisable deomcratic societal systemt operates.

More background:
Guardian
Press Gazette

Lily Allen gets apology and payout from Sun for fake quotes

The Sun has been forced to apologise and pay damages to Lily Allen after printing a string of allegations it couldn't back up.

The complaint relates to a 'story' published in May this year that reproduced quotes - attributed to the singer - that supposedly came from an interview with French sports magazine 'So Foot'.

What The Sun said - it printed a story headed 'Ranting Lily' that claimed she had said rude things about the Beckhams (Victoria apparently being labelled 'a monster') and that other talented couple Ashley and Cheryl Cole (who was apparently 'stupid and superficial').

Problem with the story was that The Sun took it from So Foot who - it appears - made it up.

Result - if you make up stories, don't check the source and falsely attribute comment to people (especially celebrities), you're going to get sued!

Today's High Court grovel on the part of The Sun follows earlier court action in September where The Sun agreed to pay £10,000 plus legal costs - see:
MediaGuardian
Press Gazette

Other rants The Sun reported on (but have not been litigated over)

Could a privacy action follow over boob exposure coverage...

Writter - the new online injunction via Twitter

Twitter has tweeted its way into the courtroom and Mediabeak sees there is scope for a new online writ serving service "Writter" to accompany this latest legal action.

Facts: A law firm - Griffin Law - who thought they were being impersonated by a 'tweeter' online but could not identify them other than through their online Twitter status, succesfully persuaded the High Court to issue and injunction via Twitter.

Implications: With due deference to our legal process, it isn't known for its procudural agility. Accepting Twitter as a medium means that legal orders such as writs can be served almost instantaneously. This has fast forwarded injunction serving into cyberspace and has far reaching implications. The current case led the High Court to Twitter as the only readily ascertainable medium through with to serve process on the defendant BUT if the courts were to embrace this method of service then following this precedent there is no reason why they should not issue other/future orders via the Twitter medium - provided the intended recipient could reasonably be expected to be in a positon to accept or receive service via this medium. So online perpetrators beware - if you're infringing or violating others' rights in cyberspace then the long arm of judicial law now reaches into your virtual domain and will be legally binding!

More from:
Reuters
The defendant complied with injunction - Solicitors Journal

Twitter - a legal force to be reckoned with - see further case involving the UK's Guardian newspaper HERE

Mail on Sunday pays price for splashing Madonna’s wedding photos

A year on from punctuating Madonna’s divorce from Guy Ritchie by splashing a series of their wedding photos across its pages, the Mail on Sunday has been forced to make a substantial settlement – to be paid to Madge’s Malawi charity.

What the MoS did:
• Got hold of photos from Madonna’s wedding in 2000 at the exclusive Skibo Castle in Scotland.
• The pictures had previously never been released and were private.
• An interior designer Madonna had employed back in 2003 had copied a series of photos from a private photo album.
• A third party then offered these for sale to the MoS last year.
• The paper thought it would be a nice touch to publish them just after Madonna and Guy Ritchie announced their divorce.

Why this was not on:
• Madonna had always kept her wedding private and not sought to sell the wedding photos to OK Magazine (like Zeta Jones and Michael Douglas had done – but alas they subsequently got caught out by Hello Magazine)

• It was therefore a private event to which an expectation of privacy could attach.

• Copying photographs (no matter what they are of) is infringement of copyright

• Dealing in an infringing copy (as in buying the photographs) is also infringement

• Not offering Madonna advance notice is also a bit unkind – but had the paper done so she would have got an injunction and spoilt its fun.

Who else could she sue:
Her designer for breach of confidentiality and copyright infringement.
Any third party dealing in the infringing copy

BUT the MoS has more money and splashed the pictures so it gets to pay the price.

More:
Sky News
MoS analyses divorce

Murdoch, media regulation, what's it all about?

The great and the good of UK broadcast media have just returned from the annual love-in that is the Edinburgh TV festival. James Murdoch ruffled a few feathers with his not unbiased critique of the BBC and regulatory regime - but fair play, we need to have the debate.

While we obsess over regulation and the law courts decide to create the back-door privacy law many have feared the real question we need to be asking - as media, as journalists and as commercial entities is what do the public, the democratic electorate, our customers and consumers actually want from their media. We've spent recent years debating the impact of convergence, the need for more content and the calls for stricter regulation and legal sanctions but we have failed to rewind and ask the fundamental question of what a changed society and media ownership world wants and expects from its media.

So (as the Beak returns from several months of too much work to post online) here is a summary to set the scene and hopefully - for those reading this - get some debate started:

We hear the phrase ‘the media’ being used by both the public and commentators in a wide variety of situations. These range from members of the public commenting on or complaining about what they’ve read in their newspaper or ‘the press’, through to discussion about whether there should be strict media ownership rules that prevent the likes of a Rupert Murdoch or Silvio Berlusconi from taking over other media organisations.

The UK broadcast regulator Ofcom refers to its remit over the media as “regulator for the UK communications industries, with responsibilities across television, radio, telecommunications and wireless communications service”. This recognises the variety of ‘media’ over which it has regulatory authority. Whether viewed from a micro perspective of a local newsletter or newspaper or from a macro perspective of an international news organization or channel such as Reuters, CNN or Al Jazeera, the one unifying feature behind the term ‘media’ is a reference to communication – what’s being delivered, how it’s being delivered and who’s delivering it.

So when we refer to the media we are talking about communication of one sort or another. Whether that is in the form of a newspaper, television broadcast, podcast or an advert, PR campaign or stockmarket sector to invest in. Comment and analysis in relation to the media normally focuses on mass media i.e media with broad-based national or international coverage aimed at the mainstream – newspapers such as The Sun, Bild Zeitung, Le Figaro, 24 Horas, The Times or broadcasters such as RTL, Europe1, ARD, BBC, Sky or CNN.

When it comes to legal action relating to the media it is invariably the larger cases involving celebrities and the popular press or politicians and broadcasters that get highlighted. This can be misleading as both the law and self-regulatory guidelines apply to all media whether large or small. An individual blogger is no less exempt from penalties for defamation or copyright infringement than a national paper. Similarly, local newspapers are often behind influential court decisions and often it may be individual litigants themselves who will bring about change to the laws that affect the media.

Rapid advances in technology and the proliferation of web-based content have led to convergence both in terms of the content being delivered over any given platform and the suppliers of such content. To this extent, traditional mass media is engaging with local audiences while localised media is widening its reach through the global availability of its online content such as webcasts.

So we now have mass communication being delivered via local means and local communication being delivered across mass mediums. This has completely changed the shape of media delivery as content and audiences blend across varying formats.

Interactivity has become a key component in programme formats and in attracting readers from print-based media into the online environment.

While the media constantly seeks out wider audiences, the audiences are starting to seek out the media. At a news level we have seen the emergence of ‘citizen journalism’ as witnessed in the wake of the terrorist attacks in Majorca in August 2009 and the July 7 bombings in London in 2005 – record numbers of people sent picture messages to broadcasters such as the BBC, Sky and CNN and many of these were subsequently used in broadcasts. Meanwhile numerous websites have sprung up that trade in such content.

To the extent that all these changes to content and delivery offer great potential, they also present great challenges. There is a fine dividing line between profit and pitfall not just in a commercial sense but in terms of the legal implications and regulation of such a varied and expansive media marketplace.

The challenge for the law and those seeking to comply with and apply it is to keep up with all this change. The media not only reports on change but also creates it. Whether this is in the form of news, investigative programmes into health, the environment, social welfare and the like or campaigns to bring about changes to the political process or indeed the law.

For legal systems such as the English common law model that traditionally rely on legislation being initiated and passed through the parliamentary system and complement and supplement this through a body of case law, this poses significant difficulty. Such a system is more used to being responsive – to new legislation, cases brought by litigants, appeals in relation to cases – and it is faced with the task of ‘responding’ retroactively to the proactive activities of the media. In doing so it is being asked to apply old laws to new situations. The 1959 Obscene Publications Act didn’t have internet pornography in its contemplation. Similarly, legislation such as the 1981 Contempt of Court Act or 1996 Defamation Act aren’t set up or equipped to deal with transjurisdictional offenders using the internet. The same is true of codified legal systems such as those in Germany, France, Spain or Italy.

So when it comes to media law we have a unique situation whereby the subject of regulation and legal control is at the same time part of the democratic and social process that exists to scrutinise those who would seek to impose and apply such controls

At a general level, the buzz word and growth area identified at recent Media conferences is User Generated Content. Broadcasters are trying to work out how best to use this new strand of content ‘by the people for the people’ in an enduring and profitable way. While YouTube set the scene for this type of content, its seemingly big bucks deal with google was transacted on cautious terms (it being bought for shares rather than cash) and soon highlighted the risks such content poses in relation to copyright infringement. If one gets the business model right and finds a way of cost-effectively managing the rights issues then UGC still holds much potential for new entrants to the market.

In its quest for content the media has been pushing boundaries and its various organisations – both broadcast and print – are no strangers in Europe’s courtrooms. There has to be and thankfully is judicial acceptance of some degree of editorial latitude when it comes to how the media should be allowed to put together and present their stories. If the media was confined to reporting news verbatim or per press release this would be both dull and lack the inquisitorial approach society demands from a proactive media. It would also not provide headlines about Hamsters, Hookers, or ‘Sex scandal’ that sell papers, provide profits for shareholders and don’t unduly harm individuals or put society at risk.

Whether motivated by the quest for today’s top story or the prospect of a big bonus for having charted a risk averse path (facilitated through giving away stickers, cd’s, holidays or the sale of some dull yet dependable format right) to provide shareholders with a handsome return on investment (as one editor who shall remain nameless put it – “the bigger the tit or tits in my paper the better the circulation”) the media are increasingly overstepping the mark of what’s acceptable.

Where the media are not targeting an individual they can and do get away with more as the competing rights – and laws that protect such rights – of individuals are not engaged. So with no one threatening or likely to threaten to sue over a story, the laws that could restrict or punish the press lie dormant and the media can ply their trade. The problem is that stories that do not defame, expose or otherwise excite the public are unlikely to do much for viewing figures or circulation. With the exception of certain political issues or large scale disasters, the stronger stories are invariably personality driven. Both media and public want to know as much about the people in the headlines as their reason for being there. Sadly, their reason for being there is often synonymous with the headline they are creating.

When it comes to filling front pages, editors enjoy an unparalleled celebrity-infused feeding frenzy. It is perhaps a sad indictment of society that children grow up aspiring to be ‘celebrities’ and older, misguided individuals devoid of tangible talent describe their ‘profession’ as ‘celebrity.’ Andy Warhol’s 15 minutes of fame concept has been grossly oversold. Whereas a person may previously have been profiled in the media for their positive contribution to their profession, sport or society at large, today’s front pages are more likely to be filled with people whose ‘contribution’ to society is neutral or negative and invariably lies in selling their sordid story to the highest bidder or whose crimes are so repulsive that they provide headline-grabbing attention.

Recent judgments do however seem to be assessing whether the fact someone is a public figure of itself justifies media coverage. Even though the model Naomi Campbell had lied about taking drugs and the British newspaper The Mirror exposed her for this, the top UK court, the House of Lords still held (by majority) that she was still entitled to some privacy. The fact the paper was exposing her lies did not allow it ‘access all areas’ to her life and treatment for drug addiction.

This is especially the case when it comes to unofficial, non-contentious or private business. The European Court of Human Rights has also placed constraints on what can be published about public figures when engaged in private activities:
“The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest… it does not do so in the latter case. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned this is not the case here…. because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.”*
*Hannover v Germany [2004] ECHR 294 at para. 63-64

It is however important to note that such cases are brought by and concern public figures or wealthier ‘A’ List celebrities who have a reputation and status worth litigating over. So ‘big ticket’ subjects are becoming harder and riskier to target. This has led to the media being forced to go down-market in search of headline or programme fodder whose excitement at being headlined is likely to exceed their desire and ability to litigate over any adverse coverage they receive.
The result is that the media is serving up a menu of junk food to a ‘dumbed down’ less discerning and less critical public. The proliferation of media content and mechanism for its delivery has turned it into a fast food commodity. People don’t have to rely on any one source for their information or entertainment. Quantity comes ahead of quality. Quality journalism and news programmes cost more than gossip columns or reality TV shows. A quick glance at the front pages or tv schedules on any given day sees the trials and tibulations of ‘no hopers’ grappling in some jungle or on some dancefloor trump the less surreal and more real actuality of political, social or economic analysis.

Commercial pressure on the media to deliver profit-yielding front pages is shifting the emphasis from (ethically pure) substantiated stories to the less neutral and, in its disregard for the consequences to a person’s privacy or reputation, less responsible journalism.
“What has developed is a culture that puts a price on all forms of information. It encourages citizens to believe that any knowledge they may have about anyone could be worth some money. It does not have even the dubious virtue of an ideological framework. Popular tabloids regularly indicate that they are willing to pay for information. ‘Reality’ TV shows seek to convince potential participants that it is ‘worth their while’ to take part because they might become minor celebrities and so can earn temporary wealth by jumping on the bandwagon and allowing their most intimate secrets to enter the public arena”.*
*Stop the Rot! – Submission from the UK PressWise Trust to the UK Government’s Culture, media & Sport Select Committee inquiry into Privacy and Media Intrusion February 2003 at paragraph 2.18

So is the media responsible for the moral degradation of society – the ‘Rot’ referred to in the above citation or is it merely reflecting the rotten, degraded state of society as it is? While many do and would criticise the media for engaging in sensational journalism, failing to follow any ethical code and only reporting on crime, sensation, scandal or smut, I don’t think it is fair to blame the media for the objectionable content or evil it exposes or reports.

To the extent the media may be absolved from responsibility for eroding the fabric of society, it is nevertheless guilty of peddling pernicious headlines and pointless programmes. In this sense it is fair to say that much of the content the public is presented with yet seemingly still pays for is as unacceptable as it often is illegal. Speaking from experience, former UK newspaper editor and commentator Roy Greenslade states that:
“What is contentious, what is unacceptable, is the routine publication of willfully distorted and misleading stories, usually based on wildly inaccurate information, stories which papers either seek to justify or, in extremis, stories for which they offer only the most cursory of apologies. These tell tales, many of which are intertwined with a news agenda dominated by the cult of celebrity, have undoubtedly resulted in the debasement of British journalism”

The question is – how low can journalism go in its debasement?
I would argue that the economic and technological drivers behind current convergence in the industry is going to result in what I’ll term ‘content burnout’ – the public will tire of recycled and reformatted content of little consequence.
While convergence is normally associated with the broadcast and online sectors of the media, it is having equal impact on the print sector. The meeting place for both broadcast and print is the online environment. While the print press is reformatting itself and merging print and online operations, broadcasters are exploring the market for online and tv on demand as well as UGC.
Convergence is bringing about consolidation at a corporate level and consequently at the point and mode of delivery. The next step will be a consolidation of content. At present we have a vast and fragmented market. Take a close look at the core businesses in that market and one can see that newspaper circulation is in decline (ref stats) and ratings figures are being diluted and yielding to online viewing. The consumers who have seemingly ‘dumbed down’ and who are paying premium prices for repackaged content or sporting events they used to see for free will eventually wise up.

As with other industries where markets have become oversaturated with supply, there will be a flight to quality. Consumers will tire of junk food and go in search of the fresh and organic option. But with the market so full how will they determine where to shop? This is the question media organisations should be asking themselves now. As with other consumable goods, the public will look for content and brands they can trust. Such trust will be born out of brand strength – which will favour larger public sector broadcasters such as the BBC or popular commercial organisations such as Sky, RTL, SAT1 etc. It will also grow from trust in the actual content any given outlet delivers – at this level the marketplace is open for large and small organisations alike as niche blogs share their global platform with the biggest media players.

So for those who may seek and enjoy a short-term gain from the debasement of their trade there is a clear warning – the public might be taken in by the headlines but the enduring message will reside in the manner and method of their delivery
The above discussion has centred around content but insofar as the objection to media activity or a given report relates to the packaging, the law also has to assess when it is appropriate or proper for it to intervene. While the media may accept that it should subject itself to the jurisdiction and scrutiny of the legal process in relation to content, it may be less willing to do so in relation to how it chooses to package such content.

Surely a news editor is better placed to decide how to package up and present a story than a judge? The fact that “judges are not newspaper editors” was recognised by the English judge Lord Hoffman in his dissenting judgment in model Naomi Campbell’s legal action against the UK Mirror newspaper. In that case the story itself had been true but Naomi Campbell complained about the inclusion of a photograph and other additional material. Lord Hoffman concluded that:
“We value the freedom of the press, but the press is a commercial enterprise and can flourish only by selling newspapers. From a journalistic point of view, photographs are an essential part of the story. The picture carried the message, more strongly than anything in the text alone, that the Mirror's story was true. So the decision to publish the pictures was, in my opinion, within the margin of editorial judgment and something for which appropriate latitude should be allowed.”
The issue of distinguishing between form and content when it comes to the media was also examined in the European Court of Human Rights which held (inter alia) that:
“It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists.”*
* Jersild v Denmark (1995) 19 EHRR 1 at 215 et seq.

The media should therefore be free from judicial interference when it comes to deciding how to present their stories and other material. But this is not always the case.

In seeking to identify and rationalise the appropriate legal provisions and responses to the business and activities of the media we need to take a step back from the adversarial context of cases or complaint. If the media is being judged against the backdrop of its democratic remit as the ‘mouthpiece of society’ and the benchmark of ‘responsible journalism’ we need to explore what society wants from the media. In doing so we need to acknowledge both the democratic function of the media to inform as well as its commercial function of providing demand-led entertainment.

So the above discussion hopefully provides some pointers and a backdrop against which the Beak will be posting and analysing the ongoing debate around the media's actions and how these should be regulated or indeed protected.

Plans announced to cut defamation costs

The government has finally announced that the escalating cost of legal fees in defamation actions will be controlled. This is good news for defendant lawyers and their (predominantly) media clients who have been at the receiving end of many disproportionate settlements in recent years.

The English courts and London have for too long upheld the accolade of being the global capital for libel tourism. We’ve had Saudi plaintiffs suing American papers, foreign film directors evading extradition by giving evidence by videolink and closer to home seen the likes of the Times being hammered with damages and costs for printing the view that a football boss had behaved ‘shabbily’.

To compound the complaints advanced by the press, the spectre of conditional fee arrangements has allowed plaintiff lawyers to levy a success fee, often at premium rates, that can lead to the costs that come with a damages award having an unduly punitive effect on the final bill faced by defendants.

Plaintiffs and their lawyers will no doubt feel that the greater the punishment faced by the press the better. This may have the benefit of deterring them from heinously libeling the innocent. But to the extent the press should be brought to book for outrageous and unsubstantiated libels, they should not be subjected to a threat of costs that could make them hold front pages that the public may have a right to know about.

Rather than have a chilling effect that freezes free speech, there should be a cool wind that blows through newsrooms and reminds editors to keep their stories and sales targets in line with the law.

So it is welcome news that the government has launched a consultation paper that will examine how better controls can be implemented to curb the excessive costs that have crept into defamation litigation over the years. The consultation paper will complement evidence that is due to be heard by the Commons Culture, Media and Sport Select Committee about the effects defamation fees are having on the press.

Justice Minister Bridget Prentice said the new proposals were designed to “bring more effective cost control to litigation in defamation proceedings and to ensure that costs in this area are more proportionate and reasonable”. Their aim is to “ensure that people's right to freedom of expression is not infringed, and media organisations continue to report on matters of public concern" said Prentice.

The government is also considering proposals that would include:
• limiting recoverable hourly rates by setting a maximum or fixed rate
• compulsory cost-capping or compulsory consideration of cost-capping in each case
• requiring the proportionality of total costs to be considered on cost assessments conducted by the court.

More from BBC and The Independent

Libel costs - claimant and defendant lawyers put their case to the politicians

As is discussed in Mediabeak's other postings (Plans announced to cut defamation costs and Guardian editor sees libel lottery oddsevenly stacked between claimant and defendant) pressure is mounting to tackle the costs associated with libel actions. The government has announced proposals to review the issue and the Culture, Media and Sport Select Committee is currently hearing submissions from lawyers about the effect fees, in particular conditional fee arrangements (CFAs), are having on libel actions.

The press and their lawyers have been highlighting the deterrent effect recent actions are having on papers, particularly smaller regional titles, risking investigative stories. Claimant lawyers are less charitable and see the current status quo as being justified to ensure their clients reasonable access to justice.

Neither have the moral high ground - the press sometimes take calculated risks to secure a high profile story and sell papers, while claimant lawyers often profit handsomely from using CFAs - but the application of libel laws under the current rules need revision. Hopefully the current consultation process will result in some sensible revisions that achieve a balance between safeguarding free speech while providing those unfairly defamed access to remedy.

A full discussion is on MediaGuardian

Related articles:
No win no fee cases
I won't see you in court

Guardian editor says libel lottery sees odds evenly stacked between claimant and defendant

In response to the media bleating about being bashed by libel costs, claimant lawyers will often cite the gross injustice their clients face and that were it not for conditional fee arrangements, these poor claimants would have no power to get justice and fight back against the big bad media bastions. There is truth in this insofar as many members of the general public have been able to be compensated for having their reputations unduly trashed by the press.

But it is more often than not celebrities or high profile individuals (and their lawyers) who profit from the CFA schemes – the prime example to date being Naomi Campbell’s case against the Mirror for exposing her drug addiction (OK so she fought the case as a privacy based one but that was only because she couldn’t run a libel action as what had been exposed was true – so she relied on a privacy and confidentiality action. Read many of the judgments at the appeal and House of Lords stage and it might as well have been a libel case).

The Guardian is still reeling from its run in with the mighty Tesco. The paper had wrongly (as it turned out) suggested the supermarket giant may have been creatively steering clear of certain taxes. That little outing and settlement was seriously expensive for the Guardian, which is contesting a bill for £800,000 it has just received from Tesco’s lawyers.

So its not surprising its editor, Alan Rusbridger, is saying the playing field when it comes to libel is not one of big media versus small innocent victim. He cites recent research that shows the cost of fighting a libel action in England and Wales was 140 times higher than in the rest of Europe.

Rusbridger has consistently said there should be more debate and discussion of what the public should expect from the press and how this should be regulated. He says the press need to keep themselves in check but that the politicians can no longer bury their heads in the sand.

Mediabeak would add to this that there is plenty of sand in Iraq which the government are currently trying to keep much – such as the papers over the decision to go to war there – buried under). So it is high time that politicians, the press and public need to engage over what is an appropriate balance between freedom of the press and informing the public on the one hand, and bringing the press to book where justified, on the other.

Mail says sorry to mums for adoption slur

As mediaguardian reports, the Daily Mail has been forced to apologise to four women after suggesting they opted for adoption to preserve their looks and careers.

The four women had been named in an article that appeared in the Femail section of the Mail last November. Its headline “How women are so afraid of losing their careers or their figures they’re choosing adoption over childbirth” (short and snappy title then!) clearly set the tone for the overall piece. However the women in question had in fact opted for adoption due to medical and other reasons.

This shows the risk of suggesting one theme in a headline and then featuring people who do not fit that theme. If you set out the headline like this then that implies that those you feature fit with it. If they don’t then you should come up with another headline.

The women complained to the PCC who helped them secure an apology – which for once was moderately prominent.

BBC Middle East coverage - Law Lords give free expression a boost

The House of Lords has today dusted down its wigs and banged its gavel and drawn an important line in the sand in relation to political suppression of world news.

Backstory to this is that the BBC had come under scrutiny for its coverage of the middle east conflict - specifically the Israel-Palestine conflict (which is again topical and deserves more discussion...but not for now or will be here a long time).

The BBC commissioned a report from its previous nine o'clock news editor, Malcolm Balen into its coverage. The findings of the report were never disclosed and have been hidden behind an exception under the Freedom of Information Act that allows for material gathered for the purposes of 'journalism,art or literature' to be excepted from disclosure. The FOA has more loopholes than ripped fishnet stockings but it seemed perverse to acknowledge that its coverage required a report to assess it and then keep it suppressed.

At an Information Tribunal stage the BBC had run with the argument it was entitled to suppress the report. What today's ruling confirms is that the tribunal did indeed have the right and power to review the decision.

The judgment is a significant milestone but it does not guarantee or force any disclosure. It merely establishes the right to review.

More from mediaguardian

Express pays out to Pentagon Capital - Desmond in the frame

As Mediabeak reported last week, The Sunday Express has today been in court to confirm its agreement to pay undisclosed libel damages to Pentagon Capital Management over a story that claimed the firm was intending to withold £1bn of its investors funds.

As reported on mediaguardian it seems the article was prompted by the paper's proprietor Frank Desmond.

Roy Greenslade certainly thinks that Desmond is a 'rogue proprietor'. Mediabeak's own research into the days the Express has spent in the dock in recent times certainly supports the argument that its standards and editorial influences are keeping its lawyers busy. For example, the paper's coverage of the Kate and Gerry McCann was about as excessive and irresponsible as it gets - August 2007 saw nearly every front page devoted to some unsubstantiated claim in relation to the disappearance of Madeleine McCann.

Press regulation under fire - Media Standards Trusts says PCC is failing

In its report 'A more accountable press' published today, the Media Standards Trustsays that the public thinks more needs to be done to tackle the inaccuracies and intrusion regularly practiced by the media. To back this up, the Media Standards Trust commissioned and is citing research by YouGov that claims (based on an extrapolation of their sample) over 75% of the public believe that the media publish stories they know are inaccurate.

Put bluntly, the claim is that the majority of the public think the media lie or make up stories and that the self-regularoty system that exists in the form of the Press Complaints Commission (PCC) is inadequate in dealing with the problem.

The key findings of the report (as extracted from the report)include:

Changes in the way that news is gathered, edited, packaged, published, marketed, delivered and consumed raise fundamental questions about news content regulation which the Press Complaints Commission has not yet sought to address
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Given the increased technical challenges and financial pressures that news organisations face, combined with the explosion of user-generated-content, there is an increased risk of inaccuracy that self-regulation is not structured to deal with

There is evidence to suggest that the press’s need to capture public attention and maintain circulation is leading to greater levels of intrusion and invasion of privacy
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70% of the public believe there are ‘far too many instances of people’s privacy being invaded’

Trust in journalists is low and may be declining further. 70% of people think newspaper editors cannot be trusted to ensure their journalists act in the public interest
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The current system of self-regulation lacks transparency and accountability, has conflicting interests and is not equipped to meet the regulatory challenges now facing the press

Lack of confidence in self-regulation is encouraging some people to go to the courts, creating a precedent-based privacy law which threatens to marginalise self-regulation and has the potential to constrain press freedom

As reported on MediaGuardian PCC Chairman Sir Christopher Meyer has hit back against the Media Standards Trust claims. He says the report is selective, based on emotive 'sound bites' and is not representative.

So here we have a clash between the arguably self appointed press watchdog and the self-appointed monitor of standards. The debate today's report has and will generate is to be welcomed but as Mediabeak will argue, neither side is right or has the moral or legal argument here.

The PCC has been much maligned in recent years and been called 'ineffective' or a 'toothless' regulator. Its impotency lies in the fact that it is not legally constituted and has no legal power to sanction the press for breaching its code. Its historical make-up is that of an organisation created by the press for the press. It is therefore seen as partisan. Mediabeak, who has conducted much research into the decisions of the PCC concludes that the problem the PCC has - and consequently the lack of faith that may be seen among the public in relation to the PCC - derives from the fact that it cannot fine or seriously sanction wrongdoing. This causes a problem in that whether it is an aggrieved party or shocked public, both expect to see some form of sanction or punishment. The PCC does not have the tools for a 'grandstanding' censure of a publication.

In defence of the PCC Mediabeak would argue that within the terms of its remit it has sought to flex its muscle and profile as much as possible. The numerous cases that are resolved or proactively dealt with 'under the radar' by - or brokered through - the PCC largely go unnoticed and do play a large part in the work it does. So to turn to the deficiencies and challenge laid out by the Media Standards Trust report what is the answer?

Mediabeak is clear on this. What we need is a proper study into what the public want from their media and press. Times and technology have significantly moved on from when such rules as exists were put togther. The PCC is doing what it can within its remit but - as the Media Standards Trust (YouGov) research shows - the public are not convinced by what is being done. What we need is not a knee-jerk reaction to one report but a considered review of the dramatically changed and changing landscape in relation to how the media operate, its interaction with its audience and changes in the laws of defamation and privacy.

To achieve the standards that are acceptable to the public, the puclic first needs to be engaged and made part of the process that shapes the standards by which their media should operate. Mediabeak's view is that to the extent the PCC is ineffectual, it has not been given the proper authority, status and tools to make it so. Its failure to clamp down on media abuse and prosecute excess is down to its remit and powers rather than willingness to exercise them. Given greater power the PCC would gain credibility among the press and - in exercising such power - would gain the respect and trust of the public.

There are two options. Either equip the PCC with the tools it needs to do its job or get rid of it and come up with some othr form of regulation. Mediabeak suggests that the PCC has the infrastructure to do what it should - all it needs is an injection of potent remedy to make its views and decision count.