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.