Libel season opens: Michelle Keegan v Mirror; Russell Brand v Sun on Sunday; J K Rowling v Daily Mail


The 2014 Libel season kicks off in style with three separate actions against three tabloids. As revealed by the Huffington Post today the main tabloids account for the majority of complaints to the Press Complaints Commission - the Daily Mail alone accounting for just over a third. So no surprise then that this past week has seen actions against the Daily Mail, Mirror and Sun on Sunday.

Michelle Keegan v Mirror
Keegan, who stars in TV soap Coronation Street brought a £50,000 libel action against the Mirror (no.4 on the list of most complained about newspapers for 2013) after it ran a piggy-back story covering a sting set up by Channel 4 that aimed to entrap unwitting celebrities into accepting free corporate gifts. Channel 4 staged a fake event using an Italian translation of corporate prostitute "Puttana Aziendale" to entice non- Italian speaking celebrities into accepting free gifts. The programme attracted legal interest but even though the Mirror reported that, it included Keegan in its role of dishonour of 'Puttanas' accepting gifts. Keegan hadn't made it to the event at the time the sting was sprung. It being a sting, the paper didn't bother with the usual checks and balances of offering a right to reply or verifying the full facts. Following legal negotiations Keegan has, as reported in the Press Gazette, now accepted an offer of amends from the Mirror.

Brand v Sun on Sunday
A none to pleased and exceptionally ranty Russell Brand has launched legal action against the Sun on Sunday (no.11 on the list of offending newspapers for 2013, while the Sun came in at no.2) over its claims he had cheated on (current girlfriend) Jemima Khan with a suitably busty glamour model. Brand is suing for the upset caused to him (and presumably Jemima) and the defamatory nature of the article. The Sun on Sunday's approach to its piece was about as subtle as Brand's comedy and used oversize lettering and an equally large picture of Sophie Coady who was attributed in the headline "Russell cheated on his Jemima with me". Whether or not the story is true (the Sun is sticking by its story), Brand's upset seems to be about not having had the opportunity to respond to the story within an acceptable timeframe. Is it surprising the Sun on Sunday was not going to give him lots of time to position its exposee? probably not. So it seems that Brand's legal action could be about not being able to mitigate the damage of the story rather than the truth of the story itself...let's get the 2013 Defamation Act to work and see how this plays out! Meanwhile Brand has tweeted that he has returned the 'Shagger of the Year' award previously conferred on him by The Sun to the paper.

J K Rowling v Daily Mail
No stranger to the copyright and libel courtroom, an aggrieved J K Rowling is suing the Daily Mail (no.1 complaints offending paper with 36.4% of all complaints for 2013) for what also seems to be a bit of a re-hashed piece that referred to Rowling's early years of writing when she was struggling as a single mother and recounted a 'sob story' that suggested she had accused churchgoers of stigmatising her. The overall suggestion flowing from the story was that she had played up and even lied about her early struggles as a single mother. To add insult to injury (and legal claim) it also appears that the story was concocted from and plainly misquoted a piece Rowling had herself written for another website. As with other actions, part of the complaint is also that Rowling was not given sufficient opportunity to respond to the allegations - indeed the allegations complained of don't appear to have been put to her. The story had surprisingly remained on the Mail's online site but has as this reports concludes with, now been taken down.

What emerges from all three actions is the apparent lack of offering an appropriate right of reply (Sunon Sunday and Mail) or of fully checking the accuracy of the stories in question (Mirror and Mail). Even where elements of a story are true, if the context in which the story was prepared and then presented is not fair and balanced, it could still fail the neutral reportage and public interest tests.


Italian court reinstates Knox and Sollecito guilty verdicts in Kercher murder

The retrial of Knox and Sollecito for the murder of Metedith Kercher has returned a guilty verdict and seen the sentence increased. Latest from BBC News http://bbc.in/LffAnL

The verdict was received as a shock by some while welcomed by others and means Knox is now a fugitive. 

The case attracted massive media attention and so the appeal came as no huge surprise but the retrial that was subsequently ordered has reopened the whole issue of questions over the evidence versus questions over the testimony of Knox and Sollecito. There were gaps and inconsistencies on both fronts but the verdict delivered in the past half hour suggests that the balance of probability and believability swung back against Knox and Sollecito enough to find them guilty. There remains doubt over the evidence and the mystery over the fact that Rudy Guede is serving out a 16 year term for pleading guilty to the murder - so where does he fit in and link in with Knox and Sollecito. Also unanswered is why Knox sought to implicate former bar owner Lumumba at the time. 


2014 Edelman Trust Barometer - trust in government 'decimated' - trust in media dented but still credible

The 14th Edelman Trust Barometer was unveiled to the great and good at Davos this week – as well as to the rest of us.

The 2014 Edelman Trust Barometer revealed that the biggest decline was trust in government and business. While business trust levels remained largely flat, it was the ‘decimation in trust’ in government that led to a gap of 20 or more points in the majority of the 27 countries included in the survey. While business trust leveled at 58%, the report showed that trust in government hit an historic low of just 44% and thus retaining the crown of least trusted institution for the third year running.

While both government and business have been quick to give media a bashing and point to its failings and excesses, while trust in the media showed a slight decline back down to 2010 levels (decreasing five percentage points globally to 52 percent). The report showed that “Nearly 80 percent of the countries surveyed reported trusting media less compared to last year. However, there was a slight uptick in trust in all media sources including online search engines (65 percent), traditional media (65 percent), hybrid media (54 percent), social media (47 percent) and owned media (45 percent)”.

In terms of trust in UK media, this fell back slightly to 41%, after reaching 47% in 2013 but this is still a significant improvement after the dramatic drop to 22% on the back of the phone hacking revelations that emerged in 2011. Given that the actual hackgate trial is taking place and we have seen Savillegate at the BBC and now further criminal proceedings currently underway in relation to others from that era, the overall level of trust in media is still ahead of what it was during the five years between 2007 and 2012. What is interesting that in terms of the public’s trust in UK media by category, traditional media remains the most trusted, at 61%, ahead of search engines, at 51%, online news and blogs, at 47% and then social media, at 30% with owned commercial media trailing at 28% (the latter is probably also reflective of general business mistrust).

As a global snapshot this provides a worthwhile read: Full report site and links


Privacy Law - Hollande and Gayet may raise questions but Finnish kiss'n'tell ruling provides answers

So we're several weeks on from the scooterboy revelations about French presidential peccadillos. Hollande seems to have gained some 'man' stripes for conforming to (stereo)type, Trierweiler is out of hospital and resting, Gayet is getting legal and over the Atlantic, Obama and Michelle are awaiting confirmation of which concubine Hollande will be bringing with him (if any) on his upcoming visit to the US.

To privacy law and while Hollande has (thus far) taken the (what I would argue) is the sensible course and not sought to bring legal proceedings, Gayet has (perhaps to compensate for the embarrassment of tittle tattle being outed as an affair with a not particularly image-enhancing Hollande) set her lawyers loose.

While the international media have got very excited over this story and now that French media are joining in - to the extent they see there is some commercial value in doing so - what implications does this have when it comes to privacy law?

As Mediabeak has already reported, French privacy laws are seen as stricter than their counterparts in other countries but - given the level of fine v. commercial gain, is no longer the deterrent it may have been. Indeed while attracting legal penalty it was perhaps, ironically, the moral deterrent of being prosecuted and having to atone on ones front page (as French law requires publications to do) that was the greater.

While the Hollande affair has, largely, left the French non-plussed as to the finer points of privacy, it has stirred some debate as to the extent to which the President - or for that matter anyone in public office or the public eye - can expect or enjoy significant or absolute privacy protection when it comes to what they get up to in their private lives.

Here the European Court of Human Rights (ECHR) has within the last week provided some clarification and guidance. Judgment in the case of Ruusunen v Finland (Application no. 73579/10) was handed down on 14 January 2014 and provides a good summary and then conclusive view of the European Court in relation to the balance between Article 10 rights to free speech as against Article 8 rights to privacy.

The case in issue concerned a kiss'n'tell fairly badly written book about a single mother's affair with the divorced but still in office Finnish Prime Minister Matti Vanhanen. Beyond the usual muck-raking and salacious reports that accompany any such kiss'n'tell, the key issue - in terms of privacy law from a ECHR perspective - was to what extent those in the public eye (such as politicians, presidents, royalty, etc) can enjoy rights to privacy and whether there is a notional sliding scale whereby their assumed rights decrease in proportion to the extent to which their activities are in the public interest and domain AND what they do (beyond their roles and duties of office etc) and are happy to share with the public is also in the public domain.

I would argue that whether royalty, politician or 'celebrity' there is a sliding scale whereby the more public or commercialised someone's image already is, the less privacy protection they can realistically seek to secure (save for intimate details of a sexual or medical nature that cannot sufficiently satisfy a public interest test). Indeed this is what the ECHR has confirmed. In its judgment the court discussed the interplay between Article 10 and Article 8 rights and (in relation to how individual member states apply these) the'margin of appreciation' in balancing these two conflicting interests (at para 43 of judgment).

The way the ECHR articles - both 10 and 8 - are constructed is such that where there is to be interference with either an Article 10 right to free speech or and Article 8 right to privacy, the qualification at sub-paragraph (2) of both Articles in relation to the exercise of the right being 'subject to law' AND 'necessary in a democratic society' needs to be justified. It is not sufficient therefore that there exists a competing or constraining law (e.g. domestic privacy related law - as was the case in Ruusunen) BUT it has to be shown that the exercise of that law in all the circumstances was 'necessary'.

In Ruusunen the court held (at paras 48 and 49):

48. In order to assess whether the “necessity” of the restriction of the exercise of the freedom of expression has been established convincingly, the Court must examine the issue essentially from the standpoint of the relevance and sufficiency of the reasons given by the domestic courts for convicting the applicant and imposing a fine. The Court must determine whether her conviction and the criminal sanction imposed on her struck a fair balance between the public and the former Prime Minister’s interests and whether the standards applied were in conformity with the principles embodied in Article 10 (see Von Hannover v. Germany (no. 2) [GC], cited above, §§ 109-113; and Axel Springer AG v. Germany [GC], cited above, §§ 89-95).

49. The Court considers that even though the emphasis in the book was on the applicant’s private life, it nevertheless contained elements of public interest. The Supreme Court considered, contrary to the Appeal Court, that the information about how and when the former Prime Minister had met the applicant and how quickly their relationship had developed had relevance to general public discussion as these issues raised the question of whether in this respect he had been dishonest and lacked judgment. The Supreme Court also found that the information concerning the great differences in the standard of living between the applicant and the former Prime Minister, his lifestyle, the data protection concerns and the protection of the highest political authorities in general had relevance to general public discussion. The Court agrees with this. From the point of view of the general public’s right to receive information about matters of public interest, there were thus justified grounds for publishing the book.

The judgment provides a succinct and very helpful summary of the relevant recent cases of : Jersild v Denmark; Lingens v Austria; Von Hannover v Germany; Axel Springer v Germany.

In terms of the Ruusunen case, the ECHR did agree with the national courts that some of the material was too explicit to fall within any public interest and as such did transgress the right to know v right to privacy divide. The main message and law coming out of the case is however that for politicians and others in the public eye, your office, status, fame etc comes at a price and that price is the legitimate entitlement to and parameters of privacy you can expect.

So back to France and the lesson from Ruusunen is to follow Verhanen's approach and for Hollande to stick to politics and not get embroiled in developing French presidential privacy law. The message to Gayet has to be, litigate if you want more headlines and few thousand Euro, otherwise, spare yourself more outing (as Closer has shown its happy to trade circulation for litigation). Meanwhile Trierweiler is presumably waiting to have her position clarified before deciding who, if anyone, to sue (her best bet would be to sell rather than sue when it comes to her story...but that's probably a cynical point of view!). 


Google loses privacy case. Court confirms 'misuse of private information' as a tort.

The UK High Court has today issued its judgment in the Vidal-Hall (and others v Google privacy case [2014] EWHC 13 (QB)

The case could have significant impact on Google and other browsers and will be welcomed by privacy campaigners as reining in the wide scope to which Google and others put people's browsing data to use.

Google was perhaps an obvious target but it is not just browsers but the majority of retailers, insurers and financial service providers that could also be affected given they also track browsing data to determine customer journeys and behaviours.

The basis of the Vidal-Hall v Google claim was straightforward in that the Claimants alleged that Google had misused their private information, and "acted in breach of confidence, and/or in breach of the statutory duties under the Data Protection Act 1998 s.4(4) ("the DPA"), by tracking and collating, without the Claimants' consent or knowledge, information relating to the Claimants' internet usage on the Apple Safari internet browser ("the Tracking and Collation")".

There were various elements to the case, such as whether it could be brought in the UK jurisdiction rather than US where Google is headquartered. Under Civil Procedure rule in England and Wales, in order to be able to serve the claim out of (the US) jurisdiction the claimant has to state which ground in paragraph 3.1 of Practice Direction 6B is relied on (CPR r6.37(1)(a)). A court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim (CPR r6.37(3)).

While the Claimants were not successful on all their points, what the judgment did confirm was that in relation to 3.1(9) of Practice Direction 6B, misuse of private information is a "tort where (a) damage was sustained within the jurisdiction; or (b) the damage sustained resulted from an act committed within the jurisdiction."


Hollande (alleged) affair could prove pivotal for French privacy laws

After headlining across the international media at the end of this week and in spite of real news events such as the death of Ariel Sharon, the story of 'scooterboy' French President Francois Hollande and the exposee by Closer magazine of his alleged affair with actress Julie Gayet is still newsworthy - but why?

Stories or rumours about French politicians or even the President having affairs are nothing new (Mitterand secured the attention of Paris Match in that regard decades ago).

What is new is the fact that a French media outlet (in the form of the French edition of Closer) has crossed the metaphorical rubicon in terms of feeling threatened by the suite of sanctions available in French privacy law.

Closer made an assessment not just of the law but also of the mood of the country and took a calculated gamble in running its story on Hollande. French privacy laws are normally referenced with envy by claimant lawyers and observers in other jurisdictions as being 'tough' and ensuring all the excesses of scoop-hungry media are kept in check. This week has seen Closer challenge the status quo and seek to test whether the legislative bark of the French civil code (Art 9) and penal code (Art 226) carries an equally strong bite when it comes to putting political private lives in the public domain.

While Article 9 of the Civil Code guarantees a right to protection of privacy and Article 226 of the Criminal Code takes this further by creating an offence of 'intentionally and by means of any process whatsoever, to infringe another's privacy by (relevant to this case) 'recording or transmitting, without his or her consent, the picture of a person who is in a private place'. But to the extent there are laws that do provide for the President's (or indeed any citizen's) privacy, why should this guarantee compliance with them? Up to now, French media have, on the whole (Closer, Voici, Public and others being occasional exceptions), operate within the law and left politicians and their dalliances alone. Recent years have however seen a shift and more of a willingness to challenge this status quo.

The French edition of Closer is no stranger to pushing the limits when it comes to privacy:

Its decision to publish pictures of Kate Middleton (the Duchess of Cambridge) sunbathing topless while on holiday in 2012 caused widespread condemnation and also ended up with legal action. While French privacy law may be tough on legislative provision and sanction, it loses its deterrent from a commercial risk assessment perspective when it comes to the fine or punishment. 5 pages of topless Kate saw Closer ordered to destroy and/or hand over all the pictures and face a EUR10,000 daily fine IF it passed on or republished any pictures.

Similarly, when, also in 2012, VSD, Closer and other magazines printed snaps of Hollande and Trierweiler on holiday in the south of France, Trierweiler set the lawyers lose but the fine that got handed out to VSD was EUR2,000. So we may have laws that punish but the fines hardly deter.

According to reports in various French media, Closer's decision to publish was strategically well prepared - it doubled its print circulation and distributed it early (and more or less sold out its doubled print run) and then pushed the story online. Is Closer in breach of French privacy law? - most likely, although even here one could argue that there has not been a divulging of Hollande's confidential comments or emails or phone records or text messages (ex President Sarkozy sued the Nouvel  Observateur over publication of an alleged text message to his former wife ahead of his wedding to Carla Bruni in 2008). Nor has there been any use of image from a private place - the pictures of scooterboy were on a public street.

Aside from a willingness to do the proverbial crime (print a story of pictures that are invasive of privacy) in exchange for the time/punishment (in form of a fine), Closer's argument also seems to be one that comes more from English law than the French, namely that there is public interest in the exposure of the story. Closer came out with some half-hearted line on Friday that the story highlighted a concern over the security of the President. But in terms of public interest there may be a point. While - as has been evidence by both the French press and public being largely disinterested in the story compared to their other European or international counterparts - the French public may not care less what Hollande gets up to in the bedroom (with or without croissants) they may well care about the fact that their President is on top of everything but his politics and policies. If he were running a good government and enjoyed a moderately satisfied electorate then affairs would be something private and not of interest to the French public BUT he is presiding over what is rapidly turning into a farce in terms of his political credibility. In this regard the choice of a comedy actress as alleged concubine has some irony at least.

So what Closer's exposee has highlighted is not so much an alleged affair which was by all accounts one of Paris society's worst kept secrets anyway, but the fact that a President who should be getting his country, party and policies in order is busy presiding over a domestic side show that calls into question his focus on the job of being President.

We know that Gayet has already unleashed her lawyer on Closer who agreed to take down their online offering (big deal given they had earned their cash from the sold out print circulation already) and Hollande has threatened to do so. Meanwhile Trierweiler has managed to get a look-in on the story by securing headlines over her hospitalisation for what Le Monde reported as being a 'gros coup de blues'. What have any of them to gain by dragging out this story in a courtroom? Beyond seeing justice done by Closer getting a judicial telling off and fine for disregarding any of their individual privacy, court action will not endear Trierweiler any more to the people than it will Hollande. Gayet might get some mileage but would many publicists out there suggest that a romantic association with Hollande is going to boost your career or reputation?

Hollande may actually have achieved something here though!

In deciding to push the door open on what the media can get away with in terms of publishing and in terms of taking a calculated gamble on invading privacy to sell a story, this whole affair could see French privacy law disarmed from its restrictive reputation and shown to have no greater ability to protect misbehaving politicians or celebrities from being exposed in the media than the laws in other European countries.

What is interesting is that to the extent the French public profess disinterest in such media driven tittle-tattle, Closer did appear to make the right commercial call in terms of upping and shifting the circulation of its print magazine.


Twitter trolls plead guilty over Caroline Criado-Perez abuse but is the law working?

When feminist campaigner, Caroline Criado-Perez campaigned (successfully) to persuade the Bank of England to feature Jane Austen on a bank note (thereby preventing there being a male only line up) little could she have guessed the torrent of abuse and sinister spectre of trolls her actions would unleash. Following the Bank of England’s decision in July last year to agree to place Austen on one of its banknotes, Criado-Perez was receiving as many as 50 harm, rape and murder threats each hour. Stella Creasy, a Labour MP who backed Criado-Perez's bank note campaign was also the target of vile abuse over Twitter.

Criado-Perez discovered that Twitter did not have adequate protection or processes in place to deal with such abuse and campaigned for change. Twitter reacted and introduced a single-click button to report abuse. Despite being targeted with sustained abuse from over 80 Twitter accounts there followed only two arrests in July last year.
It was not until Criado-Perez used the media (through a story suggesting police had lost evidence) to apply pressure on the police that the justice process seemed to pick up. Although when Isabella Sorley from Newcastle and John Nimmo from South Shields who appeared in court today were finally charged on the 16 December last year, it appeared that Criado-Perez found out through the press rather than from the CPS - she commented at the time: "Well that's pretty awesome. CPS informing press about charges ahead of me. About the level of victim-support I've grown to expect."

Today's guilty pleas
Pleading guilty at Westminster Magistrates' Court today, it appeared that Sorley's defence was that she was 'off her face' while Nimmo was 'a recluse'. What is troubling is the level of depravity and threat of violence people, of which the two in court today are capable of. In the eyes of victims like Criado-Perez, or indeed Stella Creasy, there can be little excuse or comfort from the fact that bored, wasted loners fill their time by abusing people. What is even more troubling is that Sorely and Nimmo are but two and as Criado-Perez commented on BBC Radio 4's Today programme: "This is a small drop in the ocean, not just in terms of the amount of abuse that I was sent, where way more people than just two were involved, but also women in general, the amount of abuse that they get online and how few people see any form of justice."

Twitter abuse and the law
Twitter abuse was already on the radar in 2012 when Director of Public Prosecutions, Keir Starmer, announced there needed to be a ‘legal rethink’ on twitter abuse and the boundaries of free speech. His remarks followed abuse received by Olympic diver Tom Daley.

While no prosecution followed the Daley incident, Starmer told BBC Radio 4’s PM programme that social media raised difficult issues of principle for police, prosecutors and the courts. He said that “the time has come for an informed debate about the boundaries of free speech in the age of social media”.

In June 2013 Starmer’s office published final guidelines for prosecutions involving social media communications. These included:
  • Greater detail about communications targeting specific individuals, particularly making it clear that this category relates to communications that constitute harassment or stalking
  • Clarification that where a communication might constitute a credible threat of violence or harassment or stalking, prosecutors should consider whether the offence is racially or religiously aggravated or whether there is aggravation related to disability, sexual orientation or transgender identity and pay particular regard to the increase in sentence provisions
  • In those cases where communications might be considered grossly offensive, indecent, obscene or false that meet the high threshold for prosecution, the guidelines have been amended to make clear that prosecutors should particularly consider whether there is a hate crime element to the communication, when assessing the impact on the victim
  • Clarification of the wording of the public interest factors to be considered for prosecution under section 1 of the Malicious Communications 1988 or section 127 of the Communications Act 2003
  • Clarification that when considering the public interest factors set out in the guidelines in relation to cases considered grossly offensive, indecent, obscene or false, prosecutors should also consider the public interest test set out in the Code for Crown Prosecutors, particularly with regard to the circumstances of and harm caused to the victim.
The full Guidelines can be viewed HERE

Here the General Principles provide a first hurdle in that they set out (para 6):

As far as the evidential stage is concerned, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This means that an objective, impartial and reasonable jury (or bench of magistrates or judge sitting alone), properly directed and acting in accordance with the law, is more likely than not to convict. It is an objective test based upon the prosecutor's assessment of the evidence (including any information that he or she has about the defence).

But concerningly for victims go on to say at para 7 that:

A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be

Even if the evidential stage is satisfied one then gets to para 8 that adds:

It has never been the rule that a prosecution will automatically take place once the evidential stage is satisfied. In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

In terms of assessing the offence, the guidelines set out that:
  • Communications which may constitute credible threats of violence to the person or damage to property.
  • Communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997.
  • Communications which may amount to a breach of a court order. This can include offences under the Contempt of Court Act 1981, section 5 of the Sexual Offences (Amendment) Act 1992, breaches of a restraining order or breaches of bail. Cases where there has been an offence alleged to have been committed under the Contempt of Court Act 1981 or section 5 of the Sexual Offences (Amendment) Act 1992 should be referred to the Attorney General and via the Principal Legal Advisor's team where necessary.
  • Communications which do not fall into any of the categories above and fall to be considered separately (see below): i.e. those which may be considered grossly offensive, indecent, obscene or false.
[See the Guidelines for full explanation]


If all the evidential hurdles are overcome, the assessment concludes there is a case to answer AND the DPP decides the public interest test is also satisfied, then this will still be a prosecution under section 127 of the Communications Act 2003 rather than under the Protection from Harassment Act 1997. It is here that confusion is caused not just for victims, who perceive the abuse they endure very much as harassment but also generally. While evidence of harassment within the meaning of the Protection from Harassment Act forms part of the evidential assessment of whether an offence has been committed under the Communications Act, it seems that when it comes to online abuse, the legal process prefers to prosecute this as a communications crime rather than a personal one. That is to say the offence under the Communications Act uses evidence of personal attack to establish that communications channels (such as Twitter) have been abused, or in terms of the Malicious Communications Act, that communications have been malicious. 

BUT this seems to pitch the crime against the communications medium rather than acknowledge the person as victim. In this sense the victim as a person is merely a vehicle for prosecuting the crime against communications medium. This seems perverse and what no doubt leaves Criado-Perez and others feeling aggrieved.

Why not prosecute the likes of Sorley and Nimmo under the Protection from Harassment Act? - section 4 of that Act sets out what amounts to putting people in fear of violence:

4.(1)A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.

4.(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.

So if one looks at just a few examples of tweets sent to Criado-Perez and Stella Creasy:

...one does have to ask how these do not qualify as putting people in fear of violence and go to the offence of harassment under the Protection from Harassment Act itself.

While today's guilty plea is a step forward, the next step will be the actual sentences handed down on 24 January. The Judge did intimate that Sorley would be looking at a custodial sentence but was this as much down to the various other offences she had on the go? Meanwhile Nimmo got bail. The maximum sentence under the Communications Act is a six month prison term and/or fine. It remains to be seen what message the judge sends with his sentencing and whether that, or indeed the length of sentence under the Act iteself, i sufficient a deterrent to the ranks of trolls who abuse not just (as the law provides and protects) a communications medium but the lives and psychological welfare of real human beings.

It seems appropriate to hand over to Caroline Criado-Perez for sign off (though not forgetting Stella Creasy) also.


Thank you to those of you who have offered your support today. For obvious reasons I am staying off twitter (cont) http://t.co/GwilIHuUqn

"This is not a joyful day, these two abusers reflect a small drop in the ocean, both in terms of the abuse I received across July and August, but also in terms of the abuse that other women receive online.
"I hope that for some people who are watching, this conviction will be a warning: online abuse is not consequence-free".

Schumacher's wife in privacy plea - what can she expect and the law do to protect?

Michael Schumacher's, or 'Schumi's' tragic ski accident has been world news for over a week now but to the extent his family may appreciate people's well-wishing, it's time to call time on 'Schumi-watch' and give his family and those treating him at the hospital in Grenoble a break from the spotlight.

Time for media to move on
While his family had expressed their appreciation of the good wishes delivered by fans who assembled outside the hospital for his birthday last Friday, such appreciation can soon turn to frustration as was expressed by his wife, Corinna's plea to the media today. Having rows of press, fans and ghoulish observers encamped outside a hospital when your loved one is fighting for his life is more likely to create pressure than provide comfort. Similarly, as Corinna Schumacher expressed in her message today, it also puts pressure on those treating Schumacher inside the hospital. Having dozens of media hungrily awaiting the slightest blip of a heart monitor, increase in temperature, decrease in swelling is not helpful. As with all stories that turn into media 'events' the journalists, their editors, their readers and viewers become hungry for news and this is where the risk arises and mistakes are made. Desperate to report on something, fact or the lack of it can often turn into speculation that fuels misleading or inaccurate stories. Wake up everyone - if there were something newsworthy or which the family or medical staff wanted to tell the world then I'm sure they would provide a press release or arrange a news conference. So in absence of that it is, as Corinna Schumacher politely conveyed today time to back off and go home.

Media response to plea sums up problem
What is as disappointing as it is predictable is that the media's reaction to her plea today has resulted in virtually every news outlet featuring a picture of a harrassed Corinna Schumacher and a story about her asking the media to leave the family in peace. I've chosen not to add to the actions I criticise by featuring that picture here but a look at any of these will paint the picture:
Sky news; BBC news; CNN; USA TodayReutersEurosport; Guardian; Telegraph; Berliner Morgenpost; T-Online; Focus; ZDF-heute; Le Point; FranceTV Sport;
Some managed to do it without including a photo of Corinna and thereby respecting here privacy, a bit:
Sueddeutsche Zeitung;

It's not the UK but the German tabloid Bild that has overstepped the mark this time
While it is invariably the UK's tabloid press that come under the spotlight in terms of privacy invasion or excessive headlines - in this case the German Bild Zeitung has splashed a Schumi story and speculation across its front pages for the past week:


if one contrasts this with the Express's coverage of Madeleine McCann one can see how intrusive such sustained and over-egged media feeding frenzy becomes:

Right to Privacy v Freedom of Expression and interest in Schumacher as public figure
Corinna Schumacher has asked the media to leave the family alone - i.e. back off and respect their privacy - but can she expect or indeed force them to do so? Here the rules of engagement in terms of the media as well as the laws that apply to them create a tension between competing issues and considerations. On the one hand there is a 45 year old man fighting for his life after a terrible ski-ing accident and his family supporting him and doctors trying to save him. On the other there is a world famous Formula 1 star who is a public figure and has, motor racing aside, become famous through media coverage and fans and public who have read stories or viewed coverage of his races and interviews etc with him. To put this in the balance there is the right to privacy attaching to Schumacher and his family versus the public interest in him and the legitimate media interest and free expression that brings with it (not just to the media but to any member of the public). To the extent there are various media (and other civil and indeed criminal, in the case of French law) laws that apply, these all allow for the competing interests to be weighed up. They also take into account how well known someone is. While not captured in any legislation there is a sliding scale that sees the right to privacy lessen the more someone has become famous by sharing or having their private life shared with the world.

European law captures this through the European Convention on Human Rights (ECHR) under which Article 8 provides for a right to respect for privacy and  family life while this competes with Article 10 that provides for a right to free expression. The issue with ECHR is that it is framed as a defensive right of the individual against the actions of state and as such not directed at the media itself (though the state will acquire a duty to uphold ECHR in its laws and policing of them in relation to the media).

The difficulty in this case is that Schumi is a global figure and the media coverage is equally global. So to the extent one might persuade one sector of the media to rein in their activities (or be able to do so via the relevant domestic laws), that will not prevent other media or social media from keeping up the coverage. The excesses of the Bild Zeitung would be subject to relevant German privacy laws and ECHR. Following the European Court ruling in Hannover v Germany, there is precedent that suggests that just because someone is famous, that does not of itself allow the media to report on their private life. However German law does allow for public figures of 'absolute current interest' to be reported on without the need to attach to a specific event (so in absence of a change in Schumacher's condition there is still plenty justification for keeping the coverage going).

Turning to French law that applies on the ground in Grenoble, this may have the reputation for being very pro privacy but the law attaches more directly to the person than the situation they find themselves in. French law provides both civil and criminal law protection. Under Article 9 of the Civil Code respect for privacy is guaranteed (as well as under general civil liability principles as per art 1382 of the Civil Code) and provides that everyone has a right to respect for his or her private life and also extends protection to ‘the intimacy of private life’ – a court may make an order directing whatever steps necessary to put stop to violations of that right. However there is no specific definition of ‘private life’ albeit that the courts have interpreted it to include family circumstances and state of health. However, as with German and other European laws, the law attaches more to personality and the right to control ones image than to reports about a situation someone finds themselves in. Under Article 9 a court can take necessary measures to prevent or put a stop to an invasion of privacy that is linked to an act of publication.

In terms of Criminal Law, the French penal code provides under Article 226-1:
".. it is an offence, intentionally and by means of any process whatsoever, to infringe another’s privacy:
1. By receiving, recording or transmitting, without the consent of their author, words uttered in private or confidentially;
2. By taking, recording or transmitting, without his or her consent, the picture of a person who is in a private place."
Again, while there is law there is not any specific legal provision that covers off the situation Schumacher and his family find themselves in. Undoubtedly if the media sought to get confidential information or pictures etc or physically invaded any of the Schumachers' space then these and indeed other laws might apply. The setting in terms of the hospital and his treatment are certainly private matters (as has been established in various cases such as in the UK in Campbell v Mirror).

So media interest is, of itself, not something that Corinna Schumacher can stop or make go away. Media transgressing the boundaries of privacy itself is something that can be protected against but as stated above, given the global interest, this is likely to be difficult to guarantee.

Legalities aside, it is to be hoped that the media and others have heard Corinna Schumacher's plea and can demonstrate good ethics as well as respect by giving the family and hospital some space. The story of his terrible accident has been told. He's not going to go away. So let's hope the media can (albeit counter-intuitive in many ways journalistically) wait for the next part of the story to come to them rather than continue to chase and trace every detail of a story, the outcome of which is for Schumacher and his medical team to work on, not the press.


Ofcom: Rigby murder footage did not breach broadcast rules

In its latest Broadcast Bulletin published today, Ofcom has said that the use of graphic footage of the killing of Lee Rigby, did not, in the circumstances and context in which it was shown, breach the Ofcom Broadcast Code.

Various broadcasters including the BBC, ITV, Channel 4 and Sky had included footage taken by members of the public on their mobile phones directly at the murder scene in Woolwich on 22 May last year.

The use of the footage attracted around 680 complaints with viewers upset that the images were too graphic, insensitive to the family of Rigby as well as considerations over the impact they may have on younger viewers. Additionally, viewers complained that the use of one piece of footage showing one of the attackers speaking to camera, could be seen as providing him with a platform to seek to justify his actions.

Having reviewed all the material as well as carried out a separate investigation into how the broadcasters had reported the incident overall on the day, Ofcom decided that there had been no breach of the Code.

The applicable rules:
Rule 1.3: “Children must be protected by appropriate scheduling from material that is unsuitable for them”
Rule 1.5: “Radio broadcasters must have particular regard to times when children are particularly likely to be listening”
Rule 2.3: “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by context”

Ofcom concluded that “While the coverage was detailed and at times distressing, we did not consider that the images were too offensive for broadcast given they were appropriately scheduled and justified by thecontext.” Ofcom did however go on to set out some guidance to broadcasters on, for example, the need to give appropriate warnings to viewers before broadcasting material which might cause offence or distress to viewers.


The unprovoked attack on Lee Rigby on 22 May 2013 was horrifyingly brutal and violent. As the scene unfolded, while some members of the public were trying to help save Rigby, at least two people used their mobile phones to film Rigby and then the two suspects, one of whom was speaking straight to the camera while wielding a blood-covered machete in his hand. The grotesque nature of the incident soon saw it widely reported on several TV and radio broadcasts during the day as well as online. While some broadcasters decided not to show the footage, several did include in within their programmes. As is commonplace nowadays, the footage spread rapidly across social media mediums.


In assessing the use of the footage, Ofcom took into account the context in which it was used and the wider context surrounding the event itself and reactions to it. A Press Association alert had labelled the attack as a ‘Serious Incident’ and Ofcom considered as relevant reactions to the incident including:
  • a meeting of COBRA, the Government’s emergency committee, took place in Whitehall; 
  • the Ministry of Defence stepped up security at all of its London barracks and military personnel were advised not to wear their uniform in public; 
  • David Cameron made a public statement in Paris condemning the attack and announced his earlier than planned return to the UK; 
  • the proposed demonstrations by the English Defence League; and 
  • the Muslim Council of Great Britain released a statement publicly condemning the attack. 

Use of the footage by broadcasters
As it sets out in its decision:
“Ofcom was informed by ITV that in the hours that followed the incident the ITV news desk made contact with one witness who had footage of the aftermath of the incident filmed at the scene on his mobile telephone. This individual travelled to ITN’s studios2, arriving at approximately 17:45. ITV informed Ofcom that once ITV News had satisfied itself that the person who filmed the incident was not linked to the incident and was genuinely a member of the public who happened to be there at the time, the footage was transferred to the ITV News digital server and first broadcast in the second part of the ITV London Tonightbulletin at approximately 18:20. During the course of the evening other television services broadcast the footage originally shown on ITV London Tonight, although edited and presented in various ways. Editing techniques included blurring images of the victim and the face of one of the alleged attackers, shortening the sequences in question and not broadcasting the audio of the alleged attacker when he spoke directly to camera.

Ofcom invited broadcasters to respond to the complaints raised. The broadcasters responded with the following (as summarised in Ofcom’s bulletin):

  1. that Rules 1.3 (and 1.5 with regard to the radio broadcast on LBC) and 2.3 were complied with (specifically with regard to giving the audience appropriate information and the limited amount of mobile telephone footage broadcast); 
  2. the audience’s and the broadcaster’s right to freedom of expression as set out in Article 10 of the European Convention of Human Rights was very important in this case as was the duty fully to inform the public of the detail of unprecedented news events; 
  3. the extraordinary and unprecedented set of events (specifically the nature of the attack and behaviour of the alleged attackers after the incident) were of high public interest and potentially had wider ramifications for public security and was a major national news event; 
  4. the very limited time in which editorial decisions had to be made; 
  5. serious news programmes are aimed at and primarily of interest to an adult audience; 
  6. the unique nature of news reporting is acknowledged in Ofcom’s guidance on Section One (Protecting the Under-Eighteens), namely that in exceptional circumstances stronger material than is normally in pre-watershed programmes may be warranted in a news programme; 
  7. the footage (of one sequence in particular) was carefully selected and edited and helped viewers fully to understand the nature of and potential justification for the attack. The images conveyed a substantial amount of information about the men’s demeanour and their proximity to the victim, as did the clear British accent of one of the men who had willingly made a public statement about the incident. This statement implied a potential terrorist motive; 
  8. the body of the victim was visible in some of the mobile telephone footage. However it was never the focus of the shot. There was no visible evidence of injuries the victim had suffered or any close-up shots. Nothing was broadcast that could readily identify the victim, including any physical characteristics; 
  9. for legal reasons (contempt of court!) parts of the audio of one alleged attacker making what could be interpreted as an express confession/admission was not broadcast; 
  10. a substantial amount of mobile telephone footage was not shown because it was judged too graphic for broadcast; 
  11. although the images were strong, they are not inconsistent with those images seen in news programmes from warzones or other areas of conflict or other terrorist attacks abroad; and 
  12. the descriptions of the attack were strong, but justifiably so given they were describing what was known about this shocking incident on the basis of eye witness reports at the time. 


Under the Communications Act 2003, Ofcom has a statutory duty to set standards for broadcast content as appear to it best calculated to secure the standards objectives, including that “persons under the age of eighteen are protected” and “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material”. These duties are reflected in Section One (Protecting the Under-Eighteens) and Section Two (Harm and Offence) of the Code.

Rule 1.3 requires that children must be protected by appropriate scheduling from material that is unsuitable for them. Rule 1.5 states that radio broadcasters must have particular regards to times when children are particularly likely to be listening. Rule 2.3 requires broadcasters to ensure that the broadcast of potentially offensive material must be justified by the context.

In reaching its decisions in this case, Ofcom has taken account of the right to freedom of expression of the broadcaster and of the audience. This is set out in Article 10 of the European Convention on Human Rights, which encompasses the right to hold opinions and to receive and impart information and ideas without interference by public authority. Ofcom must balance this against its duties to ensure that under-eighteens are protected from material that is unsuitable for them, and to provide adequate protection for members of the public from potentially offensive material.

The Code contains no absolute prohibition on distressing or graphic content as there may be occasions where the broadcast of such material is justified. Ofcom believes that, taking account of the right to freedom of expression, it is important for news programmes to be able to report freely on events which the broadcasters consider to be in the public interest. However when broadcasting distressing material broadcasters must comply with Rule 1.3 (to protect the under-eighteens), Rule 2.3 (to apply generally accepted standards) and for radio, Rule 1.5 (when children are particularly likely to be listening).

The full decision and considerations are comprehensive and can be viewed HERE (pp22-56)

Iain Dale Show, LBC 97.3 FM: Not in Breach
London Tonight, ITV: Not in Breach
Channel 5 News, Channel 5: Not in Breach
ITV News, ITV: Not in Breach
Channel 4 News, Channel 4: Not in Breach
News, BBC News Channel: Not in Breach
World News Today, BBC Four: Not in Breach
Sky News Channel: Not in Breach
Al Jazeera News: Not in Breach

Ofcom further guidance:

While having decided there had not been any breach of the Code, Ofcom was however concerned about some of the coverage and issued the following guidance.

“Ofcom recognises that when covering a breaking and important news story, especially where the subject matter and associated audio visual material is potentially distressing and offensive, important and timely editorial judgement is required. Television journalists must balance the need to inform the public fully and in a timely way in a competitive news environment against the requirements of the Code.

In relation to ITV London Tonight
In this particular bulletin we noted Sequence One was shown four times on ‘a loop’, without audio, and without being preceded by any specific warning. We noted that ITV said that with hindsight some form of explicit warning should have been broadcast before this material was shown. While Ofcom agreed with ITV that sufficient information had in fact been given to viewers through the content shown before Sequence One was broadcast, we considered that an explicit warning would have been preferable given the shocking nature of the images. Further we were concerned about the repetition of the same material four times without audio, particularly as this was the first time this material was shown on UK television and no warning had been given beforehand. Ofcom recognised that ITV News understandably wished to broadcast this powerful (and exclusive) material to viewers as soon as possible. Nonetheless, while acknowledging these sorts of pressures, Ofcom urges news broadcasters always to consider giving explicit warnings before broadcasting challenging material before the watershed, and not repeating potentially offensive material in a way that some may perceive as gratuitous.

In relation to BBC Four World News Today
Similarly we noted the BBC’s view that it would have been preferable if the broadcast of the clip of the alleged attacker from Sequence One had been preceded by an explicit warning. Ofcom agreed. We were also concerned that BBC Four opts in to BBC World News, which is an international 24-hour rolling news service, and that the BBC said it therefore “cannot be tailored to suit any one time zone in terms of compliance”. Whatever a broadcaster’s scheduling arrangements, it must (as the BBC recognises) ensure compliance with the Code at all times. We note that World News Today’s compliance procedures have been revised to take into account the need for audience warnings as appropriate when the programme is broadcast.

In relation to Al Jazeera
With regard to the broadcast on Al Jazeera, we noted that there was no warning given to viewers prior to the broadcast of Sequence One. We noted that Al Jazeera acknowledged that with hindsight an explicit warning would have been preferable before this material was shown.. In our view the sequences that showed images of the alleged attackers (particularly Sequence One) and the body of the victim on a London Street were disturbing, regardless of the nature of the service, and therefore in Ofcom’s opinion the broadcaster could usefully have warned viewers in advance. Dedicated news channels regularly include images of violence from warzones and terrorist attacks abroad. Nonetheless, when showing distressing images broadcasters should ensure adequate protection is afforded to audiences from harmful and/or offensive material.

In relation to LBC
No advance warning was given to listeners in this case before LBC broadcast a live interview with an eyewitness who gave a fairly graphic account of the killing. Ofcom advises that, before broadcasting a live interview or material where it can be (as here) reasonably anticipated that the interview or material may contain distressing content, broadcasters should seriously consider giving an appropriate advance warning to listeners or viewers.


Ofcom’s decision is balanced and comprehensive in its review and argument. As emphasised by the regulator, the key considerations are:
(a) balancing the right to free expression in relation to matters of public interest against competing rights and restrictions – such as the code and rights of Rigby’s family; and
(b) context.

The contextual argument is a daily one for broadcasters and media generally for it shapes the background against which news evolves and revolves and also how the media treat a story and its surrounding material. In this case the broadcasters (and ITV’s review and treatment of the footage pre broadcast) had given consideration to the nature of the material and edited (to varying degrees) sections of the footage. So crucial is not just that a story is, as the Press Association labelled it ‘a Serious Incident’ and in the public interest but also how the material is gathered and used (ITV ascertained that the person who provided the footage of the attacker speaking to camera was in no way linked to the attacker – and therefore seeking to give him a platform).

Showing harrowing footage will always shock some viewers but it is also (or has also sadly become) part of the reality of news. Ofcom took into account that not dissimilar footage (albeit differing circumstances) is shown in relation to war zones and terrorist attacks across the world.

While deeply uncomfortable and appreciably distressing for Rigby’s family and friends to view, would it be right to sanitise the shocking reality of event and reporting of it? If one starts cleansing what one sees on television or in other media then is this not placing a false sticking plaster across the uncomfortable images and facts that make the story real in the first place?

Broadcasters have over the years been in debate and called into question over their use of images, for example some of the images of the London bombings in 2005 – see my comment on the debate around preventing the press from publishing photos of alleged terrorists; or al-Jazeera showing terrorist footage – see comment on why the media should be allow to use the same mechanism as terrorists to get to the truth that lies beyond and behind the lens; or the BBC’s decision to show bodies of dead British soldiers in Iraq.

So as today’s Ofcom decision confirms, it is appropriate for media to keep the news real, provided it is considered and contextually justified.

Big Exploding Rubber Duck in IP wrangle

Someone has to have a sense of humour (in this case Dutch artist Florentijn Hofman) if they think it's a great idea to create and tour a giant rubber duck around the globe. However this has proved to be one big bad duck as all has not gone well on the far east leg of its tour. 

Aside from variously and inexplicably 'blowing up', the duck (or more precisely, the IP rights relating to it) has become embroiled in an IP infringement spat following the production of rogue merchandise (and inferior unlicensed 'duck-themed' products) during rubber duck's visit to Keelung City in Taiwan. So rather than be part of a fun event that was meant to engage people, it has got them fretting over the quality and authenticity of their bath toys. According to reports, originating artist, Hofman, took exception to the cheap nasty duckies on sale and this, according to the Taipei Times, has brought 'shame' on Taiwan

You have to feel sorry for the big duck, which perhaps stressed by its IP having been violated, suffered a blow-out when it got to New Year!


Happy New Defamation Act

What better way to start the New Year than with some shiny new media law legislation? The 2013 Defamation Act came into force this week and follows hot on the heels (not!) of the previous 1952 and 1996 Defamation Acts (so the decades between Acts are shortening).

Discussion around the Bill and then the Act as well as coverage, from the learned to the banal, has been done to death so I will not add to the swelling column inches (a nifty lecture summarising the Act and where it fits in with/takes libel law is available from me) so will highlight a few thoughts. Master of the Rolls, Lord Dyson has this week also issued a statement reminding that the Act is in force but also pointing out that in terms of legal procedure, much of CPR already provides for dealing with libel cases.

I think that the one thing both media and lawyers (both claimant and defendant sides) were agreed on is that libel law, specifically in its Defamation guise, was due a bit of an overhaul. The hallowed Reynolds defence had been relied on then turned then twisted over the years into an assessment of what was 'responsible journalism'. So Reynolds gets the boot and is replaced with the public interest defence (Clause 4) - will this change things much? probably not and defendants will still have to demonstrate their publications were balanced and amounted to 'neutral reportage'. The cloak of privilege has also been re-tailored so coverage extends to public domain materials issued by governments or corporations (Clause 7), while academics get a bit more free speech when it comes to their reviews (Clause 6). Operators of Websites get a break (Clause 5) and a clause that provides a defence but also guidelines on its scope and what's expected of ISPs, aggregators etc.The Truth gets restated (Clause 2) which also sees common law justification and section 5 of the 1952 Act replaced with a simpler formulation.

The two headline provisions in the Act are the Serious Harm test (Clause 1) - which will bring some respite to the media and see frivolous or bullying actions closed down for want of any serious harm materialising -and a reworked Single Publication rule (Clause 8) which removes further liability for every single page refresh, review or arguably retweet (though this could be interesting if a retweet were held to be a fresh publication rather than republication - depending on its context).

Defamation Act 2013
Steele: Tort Law - update on Defamation Act 2013
BBC: Defamation Act 2013 aims to improve libel laws