Kidman sets lawyers on the Telegraph for commenting on her choice of perfume

Nicole Kidman has unleashed Schillings on the Daily Telegraph after its Spy column suggested her favourite perfume was not the Chanel No 5 she advertises and is paid to publicise but Jo Malone's White Jasmine and Mint. What great pre-Christmas publicity for Jo Malone but not so good for Chanel who are reported to be "unhappy" that Kidman was favouring the English city-chique scent over their classic perfume. Kidman may be in breach of contract for dousing herself in Jasmine and Mint but in the meantime is suing the Telegraph for the grossly defamatory claim. This is unlikely to get near court but if it did it would be great to have sniff test evidence admitted to ascertain whether the claim that she did indeed have an air of Jasmine and Mint rather than No 5 about her could be stood up to be true and rebut the defamatory slur on her character.

Libel - Beesley makes beeline for Popbitch

Its been a busy week for Schillings - not only have they been brandishing writs for Nicole Kidman's claim against the Telegraph (for suggesting she favoured one of Jo Malone's scents over the Chanel No 5 she's contracted to promote)but they are defending Max Beesley's honour against a Popbitch story that claimed "Maxed out Beesley makes beeline for beauties".

Babeworld TV busted by Ofcom

Ofcom has, according to reports on mediaguardian, hit Babeworld TV with a £25,000 fine for beaming out smut shortly after the watershed.

An outraged mother had complained after she found her young son and his friends being told by scantily clad ‘presenters’ thrusting their wares into the camera lens that "you are going to be spunking your load" – they went on to say that "Mimi's pussy needs some attention", and invited viewers to contemplate that their "cock could virtually be straight in between my tits right now".

Fined for being flagrantly in breach of Ofcom’s Broadcast Code rules on protecting uner 18s from offensive material, Ofcom ruled that the channel was broadcasting what was blatantly ‘adult material’ that should have been broadcast under encryption. The fact that the programme makers had said that the producer had been ‘retrained’ did little to offset the fact that viewers were also invited to phone in for more off-screen offerings and, still before 10pm, were invited to to "send in your pictures, show us your nice hard cock".

In issuing its fine Ofcom took into account that Babeworld was no stranger to complaints and had done little to address past issues relating to its output.

Ofcom Broadcast bulletins

Press Freedom prevails as German reporter wins damages for wrongful raid on his software and sources

Stern Magazin reporter Hans Martin Tillack has secured a significant ruling from the European Court that upholds the right of a free press to protect its sources. Following his report on alleged fraud within the European Union, Tillack was detained for several hours and had his office and equipment ransacked and confiscated in a bid to find out who his sources were. The pretext for the action against him was that he had violated Belgian law by offering an official money for confidential information and documents - no such offence was substantiated.

In its ruling the European Court confirmed that the protection of sources was a right not a privilege that could be taken away and the action against Tillack had violated his rights.


Celebs put paparazzi in their place

The hunter becomes the hunted as more celebs decide to see of the paps. Julia Roberts is the latest in a growing list of celebrities who rather than run or attempt to hide from the press (as Naomi Campbell and Lewis Hamilton so inelegantly tried to do in London this week) are seeing them off or, in Roberts case, chasing after them.

Roberts was so incensed that paparazzi were trying to sneak pictures of her near a school where unconnected kids could be in the shot or put at risk that she jumped in her car and chased after them.

Meanwhile George Clooney also got heavy earlier in the month in a well publicised 'altercation' with what he called the "bounty hunters" who were putting innocent bystanders at risk by their reckless attempts to get a picture of their prey.

Clooney defended troubled Britney
Clooney falls out with Fabio over snappers

Heat should get slammed for disgraceful sticker

The PCC has received a complaint from Katie Price and Peter Andre over a sticker it gave away with this week’s magazine. Even by Heat’s editorial standards the sticker was a disgrace and featured her son Harvey’s face with the caption “Harvey wants to eat me!” (Harvey is her son from a relationship with footballer Dwight Yorke and suffers from a rare medical condition which includes growth hormone deficiency).

Quite what possessed Heat editor Mark Frith to print and issue the sticker - one of 50 given away with the magazine - remains unknown but to the extent its tasteless it also falls foul of clauses 6 and 12 of the PCC Code of Practice which provide that children of celebrities shouldn’t be photographed or featured just because of who they are and also that the press must avoid prejudicial or pejorative reference to – among other things – any physical or mental illness or disability.

The PCC confirmed that they had received several complaints from the public as well as representatives of Katie Price. It is likely and to be hoped that the PCC will uphold the complaint and get Heat to donate some money to a charity that helps children with disabilities to compensate for their tasteless attempt at humour.

Heat have now published an apology on their website:
Harvey – Sorry
but that doesn't explain or compensate their stupidity for publishing it in the first place.

Egypt: bloggers and journalists accounts cut in blatant censorship attempt

Egypt, which appears on the Reporters Without Frontiers watchlist as one of the “enemies of Internet Freedom” seems intent on intimidating and imprisoning bloggers and journalists who may report too closely what is actually going on.

A journalist has been investigated for taking pictures and covering the story of a demonstration at a university which was – ironically – hosting a conference on information technology and regulation of the internet.

Another journalist had his YouTube account suspended after posting scenes of police brutality on his blog.

The whole point of blogging is that it empowers and provides publishing for the people. Those in power may in the past have been able to influence news agendas and even news websites but they have no control over blogs – other than the blatant censorship being seen in countries such as Egypt and others highlighted by organisations like Reporters Without Frontiers. The spectre of citizen journalism and ability of the public to report on what they see – tell it as it is – without editorial agendas or interference is a threat to those who like to distort the news, censor what we see and hear and infringe free expression. That is why they seek to suppress, intimidate and cut it off. The power of blogging and the internet is that news of such practices will spread beyond the servers, networks and borders they control.


Russia: Novy Peterburg editor imprisoned on defamation charges

The Committee to Protect Journalists (CPJ) has issued a notice this week expressing its alarm at the imprisonment of the editor of the St Petersburg newspaper Novy Peterburg. Nikolai Andrushchenko was sentenced last weekend to a two month period of pre-trial detention on charges of defamation. If he’s convicted he could face up to six years in jail.

The charges seem to be politically motivated and relate to his papers coverage of a murder trial back in 2006. The coverage had been critical of local authorities and that, coupled with the paper’s pro-opposition stance in the wake of parliamentary elections last December probably upset the ruling politicians who are using Russia’s more draconian defamation laws to punish Andrushchenko.
Joel Simon from CPJ said: "We are disturbed by the imprisonment of Nikolai Andrushchenko on more than one-year-old charges just days before an election… With a pattern of harassment of the journalist and his paper, it is apparent that the authorities' actions are aimed at stifling an opposition voice before the parliamentary vote. We call on Russian authorities to release Andrushchenko without delay."

CPJ Press Release

This is not the only case of journalists from the paper being targeted – see recent release from the Bulletin of the Center for Journalism in Extreme Situations HERE


Morrisey threatens NME with libel action

Bigmouth will strike again - unless he gets an apology from the NME over an article that sets him up as being someone who should have been part of the guest list at the Oxford Union earlier in the week. The interview behind the write-up that finally appeared seems to be a patchwork of questions and answers leaving plenty room for ambiguity. The essence of the story is that Morrisey was presented by an NME interview as complaining about the level of immigration and different races in England. Under the headline 'Bigmouth Strikes Again' (the title of one of The Smiths top hits) the NME suggested that the former Smiths frontman had used his big mouth to bad mouth the fact that England was not as english as he might like - the suggestion being he was displaying potentially nationalistic tendencies. The outraged Morrisey - through his representatives and legal team - is having none of it. Aside from the fact that he now lives in Rome and previously lived in the US he claims he has been grossly misrepresented and defamed. The suggestion that he has nationalistic views might seem at odds with the peace loving, vegetarian lyrics his previous songwriting (such as 'Meat is Murder') would seem to embrace. What is clear is that what appeared in the NME was an inelegantly compiled write-up of a pieced together interview. Unless the NME can prove there is more behind their story than sloppy journalism big mouth will strike home with a libel action.

More from GuardianUnlimited


McCann Watch – who is briefing who? As media coverage hits new lows Mediabeak asks who is behind the stories and will we ever know the truth?

The interaction between the media and the McCann’s in the tragic tale of Madeleine’s disappearance continues to trawl the depths of desperate reporting. As the stories stretch ever further from substantiated fact or corroborated evidence we are as far away from the truth as we were in those desperate days that followed her disappearance. Mediabeak uses the term ‘disappearance’ advisedly as we do not know if she was abducted, wandered off, died in a tragic accident, was sold or even murdered. All we do know is that she disappeared, seemingly without trace, leaving cuddle cat behind. The rest is speculation.

With so much coverage but so little to go on we have to ask who is behind all these stories and more importantly, why. Is it the Portuguese police who are still briefing ‘off record’ or is there, as some seem to suggest, more to the McCann’s campaign strategy than we or perhaps even they know? It certainly seems that the stream of smear and counter-smear seems to show little sign of drying up.

After being out of the frame for several months, initial suspect, Robert Murat came back into play via his girlfriend Michaela Walczuch. While friends say she was at a Jehova’s Witness prayer meeting on the night Madeleine disappeared, witnesses claim to have seen her with Madeleine on two separate occasions – one in Morocco. Her alibi has also been rubbished amid claims she was expelled from the church for allegedly ‘breaking the laws of the bible’ – see report from the Sun. While these claims are being rubbished by Walczuh and Murat, the McCann’s are getting hit with a fresh wave of speculation about DNA evidence locked in a lab in Birmingham – why is it there and what’s happening with it? We also saw front pages, proclaim that Kate McCann had ‘sold’ Madeleine see the Daily Star’s coverage. This turned out to be a grossly misleading headline that drew on an early line of investigation the police had looked into but dismissed. Meanwhile the Express continues with its McCann coverage crusade and is touting extracts from a new book (one of the many likely to be produced) - Madeleine: A Most Heartbreaking And Extraordinary Disappearance, by Robert Downing -under the headline ‘Maddy: what really happened’

The Mirror and Sun are offering a new twist to the tangled tale with a new line of investigation that suggests a paedophile may have suffocated Madeleine with a pillow to stifle her screams when she awoke to find them in her room. Meanwhile there is little love lost between the new police team heading – though recent reports suggest they may be winding down – the investigation and the Spanish firm of investigators, Metodo 3 who the McCann’s have hired to find Madeleine. A bullish Metodo 3 claim they are ‘very close’ to solving the case and in any event were confident they would have it wrapped up within six months, while the Portuguese police have dismissed them as ‘irrelevant’ and threatened that they could be arrested if they interfered with the investigation. If they do manage to solve the case would that be seen as ‘interfering’?

So back to assessing who’s briefing the media and why.

McCanns – want the focus to remain on finding Madeleine and keep the campaign in the public eye. They also want to deflect negative stories and criticism of their reactions and emotions. They also seem be keen to downplay inconsistencies in their recollection or version of events and their interaction with the ‘Tapas 9’.

The Tapas 9 – what could be the title to a Tarantino film does of course refer to the assembled friends who shared dinner at the tapas bar on the night of Madeleine’s disappearance. What do they know. Why are there seeming inconsistencies in versions of events attributed to them. Having remained largely silent, some of them have come forward and engaged with the media, notably Jane Tanner who gave an interview to the BBC amid press coverage of the e-fit of a man she says she saw carrying a little girl on the night Madeleine disappeared.

Mr Murat and friends – initially in the frame as the main ‘arguido’ what really is his story. We are told he was seen hanging around the apartment complex and know he was hanging around the press but beyond wanting to be Mr Helpful who is he, what is he about. His bizarre relationship with Walczuch – who still lives with her estranged, pool cleaning husband. His former wife and daughter in the UK. His contact with his IT consultant. His alleged trip to Exeter in the weeks prior to Madeleine’s disappearance. The complete lack of evidence police appear to have found at his mother’s home.

The PJ – the much maligned judicial police. They have received a battering from day one over their handling of the investigation (continued in today’s Express) – partly due to frustration at there being no results but largely due to the fact no one appreciated the restrictive machinations of the judicial secrecy laws that protect the investigation from being exposed to the outside world. The track record of some of the officers responsible for the initial investigation, especially in relation to a previous missing child case. For an organisation protected by secrecy laws they – or certain numbers among them and their colleagues seem to have done a very good job of making ‘leaks’ or ‘confirmation from official sources close to the investigation’ available – in other words, ‘we’re happy to brief our local press but the rest of you can get lost and stop smearing us and upsetting the status quo of what was a perfectly pleasant tourist spot until now’.

Metodo 3 – will they actually find Madeleine and/or solve the case? – certainly their web profile makes them seem more like fraud and financial crime investigators rather than the James Bond of the investigative world. They’ve staked their reputation on it so are either supremely confident or optimistic. They claim the net is closing in and believe that she may have been snatched to order by a paedophile ring and is being kept in Morocco. This follows claims another girl who had also disappeared had been successfully found there.

Many are asking on how long the McCann's can go on - a report on Sky News today suggests that the campaign money may run out before they tire out. Kate Miller, writing in today's Scotsman asks how much vilification the McCanns still have to suffer at the hands of these runaway headlines. Greenslade writing on his MediaGuardian blog writes that the "McCanns misery on amid newspaper coverage exhibiting a casual cruelty"
He concludes that the low levels the unattributed headlines are plunging to are "nothing more than sales gimmicks aimed at pandering to the basest of human characteristics, a gloating, ghoulish, gossiping vulgarity devoid of basic human pity". While the media are getting their money's worth out of the enduring headline bait offered by this tragic story that bait and the enduring public interest in the 'gossiping vulgarity' are being fed by those who for whatever reason have not yet finished telling their story or are satisfied that we've been told all we need to know or uncovered all there is - or actually reached the conclusion everyone has been hanging on for - that Madeleine will be found.


Death by reality TV - should broadcasters bear more responsibility for the scenarios they unleash?

Victim Svetlana Orlova - pic: Antenna 3/YouTube
A Spanish broadcaster has become embroiled in a row after a guest on one of its chat shows was found murdered five days after her appearance. It wasn't the show that killed her but seemingly her former boyfriend who the show's host had thought it would make good tv to wheel out live on air to propose to the woman who - it turns out - ditched him for his abusive behaviour.

Researchers putting together the Diario de Patricia programme for channel Antena 3 had overlooked the fact that there was a court order preventing their 'surprise guest' from being within 500 metres of Svetlana Orlova. The tragic case has highlighted the need for broadcasters to be more careful when setting up situations that play on people's psyche's and may lead to outcomes the broadcasters can't control (and probabably won't be interested in) after the programme's gone out on air.

This echoes similar debate in the UK over the acceptable boundaries of reality tv and playing with people's vulnerable psychologies.

More from Sky News

Diana inquest - coroner in court battle to get paparazzi evidence admitted

Lord Justice Scott Baker is not being fobbed off by attempts to prevent evidence given by photographers who were at the tragic crash scene in Pont de l'Alma on August 31st 1997 from being made available to the onging inquest into her death.
The row is over whether the evidence should be allowed to be read out or played via video in court given that the photographers themselves (all but one of whom have refused to attend and can't be compelled to do so by the English coroner's court)will not be in court and cannot therefore be cross-examined.

Given that their evidence is likely to be contested by 'interested parties'rule 37 of the 1984 Coroners’ Rules comes into play as it provides that such evidence can only be admitted where there is not likely to be a contest to the evidence.

Given that what the photographers saw - or may have seen - is so fundamental to getting the full picture of what happend in the immediate aftermath of the crash it seems ludicrous for rule 37 to be applied so as to lock out the evidence.

The High Court upheld the rule and blocked the evidence but their Lordships did concede that the system was far from satisfactory. Having been given leave to bring this appeal to the Court of Appeal one hopes Lord Justice Baker will secure a breakthrough and get the evidence admitted.

More from Timesonline

Top cops clash in libel case

Its not always the media who get sued. Two former Metropolitan Police officers have been in court over ‘libellous allegations’ contained in a book. Having been cleared of charges back in 2003 for perverting the course of justice, Chief Superintendent Ali Dizaei co-authored a book entitled ‘Not one of us’ about his experience and the police force. There was public outrage at the time with estimates that between £4-7 million pounds of taxpayers money had been wasted on what turned out to be a 'witch hunt' - background on Newsnight and more Newsnight

The book contained the suggestion that former colleague and now Devon and Cornwall Chief Constable, Stephen Otter had given ‘false evidence’ at Mr Dizaei’s trial – so the suggestion was that Otter had in effect also perverted the course of justice by giving false evidence at Dizaei’s trial.

In the circumstances neither could be shown to have perverted the course of justice and Dizaei was cleared of criminal charges and Otter has now won libel damages from Dizaei in respect of the same.

More from the BBC


Defamation charge for 3 reporters in Mauritius

In the first such action in over 13 years, 3 reporters have been charged with defamation in Mauritius. The trio have been busted for alleging that a large cash stash had been found in a poliecman's locker. The move is seen as part of a clampdown on the media by Prime Minister Navin Ramgoolam who had told his parliament he was going to take on the media's excesses. Quite how the press are meant to have been excessive in their coverage is at odds with the lack of legal action for over a decade but Ramgoolam seems intent on curbing the media's "abuse of freedom" - it remains to be seen quite whose freedom is being abused.

More from Reuters

Sex, drugs and lack of goals

The News of the World reports on the pathetic behaviour of the overpaid pissheads who were meant to represent the country at football.

If they disgrace themselves on the football pitch they can hardly complain when the media uncover their behaviour off-pitch.

Read more HERE

Free Speech - freesheets to overtake papers as media of the future

Who said newspapers are on the decline?

Board any train, underground or bus and you're likely to see copies of any of an increasing stream of free titles. Do they make money and are they here to stay?

According to recent reports, leading freesheet title Metro is surging up the circulation ladder and with over 1,358,000 copies distributed in October is nearing circulation of the Mirror with its average circulation of 1,525,477 copies.

Do the mounting circulation figures translate into money? According to Greenslade's Guradian blog last month, it would seem not. He reported Metro was looking at trading losses of £9m.



Latest Ofcom bulletin - Undercover Mosque cleared

Ofcom's latest broadcast bulletin has backed Channel 4's controversial programme 'Undercover Mosque' but ruled Talk Sport was out of line for allowing George Galloway to set out his political stall on air.

Full report coming soon

You can read Ofcom's Broadcast Bulletin HERE

Deadly hoax - how should we patrol and police MySpace and similar sites?

MSNBC's Today Show is reporting on a tragic story of a 13 year old girl who committed suicide following a hoax romance on MySpace.

After falling out with her friend, 13 year old Megan Meier was lured by a hoax MySpace posting pretending to be from a young boy who had recently moved to her neighbourhood in Missouri. Little did she know that the real person behind the MySpace postings was the mother of the friend she had fallen out with. This warped use of one of the internet's leading social spaces ultimately led to a virtual relationship that broke down and the false online identity was used to shower the victim with abuse, abuse that resulted in a vulnerable teenager taking her own life.

We are all too aware of the dangers posed by those misusing the freedom to exchange views, contact others and interact in the onlne environment but what can be done about them? There are various boxes to click on sites that ask users to consent to 'terms of use' and to basically behave themselves but such rules don't envisage or extend to the harm that can be done. While regulations allow an internet provider or website to take down a posting or ban a user they don't extend to analysing, predicting or being able to do anything about the potential psychological damage that can be done by those with sick minds who prey on vulnerable online users.

This case is particularly disturbing because of the warped way in which an adult decided to play this emotional mind game on the friend, or former friend of her daughter. The parents of Megan Meier want justice but the legal process is not rushing to offer them a solution. The online hoax was not of itself criminal - yet the result was deadly.

Read more HERE

What do you think? should there be more laws to police what gets posted online? Should there be tougher penalties for those who use online sites to bully, harass and ultimately, as in this case, drive people to suicide?
Post your comments below or mail mediabeak your views: mediabeak@gmail.com

Defamation covered by Article 8 of the European Convention on Human Rights

There has been ongoing debate in the UK and across Europe over the past years whether Article 8 of the European Convention - that has been applied regularly in respect of Privacy actions - also covers reputation and defamation actions. As it protects the 'right to respect' over a family and private right it has been argued in the English courts that Article 8 should become engaged where such respect has been violated and such violation does not also have to be a violation of privacy.

This view has been confirmed by the case of Pfeifer v Austria - judgment issued 15/11/07

Details below:

Press release issued by the Registrar


The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Pfeifer v. Austria (application no. 12556/03).

The Court held, by five votes to two, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights concerning the Austrian courts’ failure to strike a fair balance between the protection of freedom of expression and the right of the applicant to have his reputation safeguarded.

Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Pfeifer 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 for costs and expenses. (The judgment is available only in English.)

1. Principal facts

The applicant, Karl Pfeifer, is an Austrian national who lives in Vienna. He is a freelance journalist. From 1992 to 1995 he was the editor of the official magazine of the Vienna Jewish community.

In February 1995 Mr Pfeifer published a commentary criticising in harsh terms a professor who had written an article alleging that the Jews had declared war on Germany in 1933, and which trivialised the crimes of the Nazi regime. The professor brought defamation proceedings against the applicant, who was ultimately acquitted in May 1998 when the courts found that his criticism constituted a value judgment which had a sufficient factual basis.

In April 2000, criminal proceedings under the National Socialism Prohibition Act were brought against the professor by the Public Prosecutor on account of his article. He committed suicide shortly before his trial.

In an article from June 2000, the weekly Zur Zeit referred to the Mr Pfeifer’s commentary, alleging that it had unleashed a manhunt which had eventually resulted in the death of the victim. The applicant brought unsuccessful defamation proceedings against the publishing company owning Zur Zeit. While the first-instance court had found that the statement was defamatory, in October 2001 the appellate court found that it was a value judgment which was not excessive.

Meanwhile, in February 2001 the chief editor of Zur Zeit had addressed a letter to the subscribers asking them for financial support and claiming that a group of anti-fascists was trying to damage the weekly by means of disinformation in the media and by instituting criminal proceedings and civil actions. The letter stated again that Karl Pfeifer and a number of other people were members of a “hunting” association which had chased the professor to his death. The applicant brought a second set of defamation proceedings. His action was dismissed in August 2002, as the appellate court held that the principles and considerations set out in its previous judgment of October 2001 applied.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 7 April 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Loukis Loucaides (Cypriot), President,
Nina Vaji (Croatian),
Anatoli Kovler (Russian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
Heinz Schäffer (Austrian), ad hoc judge,

and also Søren Nielsen, Section Registrar.

3. Summary of the judgment2


Relying on Article 8 (right to respect for private and family life), Mr Pfeifer complained that the Austrian courts failed to protect his reputation against defamatory statements made by the chief editor of Zur Zeit.

Decision of the Court

Article 8

The Court held that a person’s right to protection of his or her reputation was encompassed in Article 8 as being part of the right to respect for private life.

The Court reiterated that statements that shock or offend the public or a particular person were indeed protected by the right to freedom of expression under Article 10 (freedom of expression). However, the statement here at issue went beyond that, claiming that the applicant had caused the professor’s death by ultimately driving him to commit suicide. Although it was undisputed that the applicant had written a critical commentary on the professor’s article in 1995 and that, years later, in 2000, the professor had been charged under the National Socialism Prohibition Act in relation to this article and had committed suicide, no proof had been offered for the alleged causal link between the applicant’s article and the professor’s death. By writing that, the chief editor’s letter overstepped acceptable limits, because it in fact accused Mr Pfeifer of acts tantamount to criminal behaviour.

Even if the statement were to be understood as a value judgment, it lacked a sufficient factual basis. The use of the term member of a “hunting” association implied that the applicant was acting in cooperation with others with the aim of persecuting and attacking the professor. There was no indication, however, that Mr Pfeifer, who had merely written one article at the very beginning of a series of events and had not taken any further action thereafter, acted in such a manner or with such an intention. Moreover, it had to be noted that the commentary written by the applicant, for its part, had not transgressed the limits of acceptable criticism.

The Court was therefore not convinced that the reasons advanced by the domestic courts for protecting freedom of expression outweighed the right of the applicant to have his reputation safeguarded. There had accordingly been a violation of Article 8.

Judges Loucaides and Schäffer expressed dissenting opinions, which are annexed to the judgment.

Mediabeak thinks this is a significant judgment that will back the trend to argue Article 8 violation in defamation actions.


Portuguese law - the 'arguido' status

Mediabeak would like to thank an anonymous comment contributor on our previous post about the McCanns.

Given the frustration at the lack of new news coming out of the Madeleine McCann investigation it was easy to point the finger at the much maligned investigation and secrecy laws which bind it. While it would not be unfair to say that there were certain shortcomings in the early stages of the investigation, these were perhaps added to and distorted by mistaken understanding of the Portuguese 'arguido' suspect status and secrecy surrounding investigations. We are used to the way contempt laws work in the UK or the way they have minimal meaning in other jurisdictions. While the UK contempt laws seek to secure the administration of justice and its - and those concerned (jury, witnesses, public) with it who may be influenced or prejudiced, the Portuguese system focuses heavily on the preceding investigation. In the UK strict liability contempt is engaged when someone is arrested, whereas in Portugal, the 'arguido' status applies to anyone who is made a suspect (arrest not being necessary)or wants to be protected by the system.

Mediabeak thinks its time to contribute some more information about the system we have been quick to criticise. We haven't edited our anonymous friend's submission and are posting their contribution below:

The arguido status

In Portuguese law a person is constitued as an arguido when she or he is suspected of having committed a crime.

A person can request to be made "arguida" because he or she will benefit from rights that he/she does not have as a witness. Apart of the obligation of being accompanied by a lawyer when giving depositions in front of police authorities, the arguido has the right to remain silent and not reply to any questions. This means that as a potential suspect he or she is acting in their own defence. A witness by law is obliged to reply to all questions.

A person is constituted arguido during the investigation phase when sufficient evidence is collected to formulate an accusation. At that time, the less serious of the coercive sanctions which is the "term of identity and residence" is applied to the arguido. This term can be translated as a kind of conditional liberty where the arguido is obliged to inform the police authorities whenever he/she is absent for more than 5 days. An arguido can also be submitted to other coercion measures, the most severe being the "preventive arrest", which is usually applied when there is the danger of escape, disturbance of the investigation, possibility of destroying evidence, etc.

Secrecy of justice

The notion of secrecy of justice means a special jurisdiction obligation that applies to any person with direct knowledge of an act or document of the penal procedure. That person must comply to that secrecy, meaning he/she is forbidden to talk or reveal the content of that act or document.

The secrecy of the inquiry or investigation aims to satisfy the functionality of the juridical machine in the preliminary phases of the process. The arguido cannot be granted access to clues and evidence collected during the investigation since there might be over-riding interests such as: national security, witnesses protection, efficacy of the investigation and the obtaining of evidence.

The aim of the secrecy of justice is to ensure the secrecy of the criminal procedure, and allows also the guarantee that justice is made in an independent and unbiased way without the interference of other sovereign organs. Interference is also prevented from pressure groups or persons with personal (or institutional) power able to spread erroneous information campaigns through the media, harming the discovery and preservation of evidence and thus hindering the conclusions of the penal procedure.

Mediabeak thanks 'anonymous' for this submission.

Mirror pays damages to Danielle Lloyd over ‘fiddy diddy’ sex slur

Former Big Brother contestant and Miss Great Britain, Danielle Lloyd has accepted undisclosed ‘substantial’ damages from the Mirror over claims that she’d had a hot night in with 50 Cent.

The story, published in July, carried the headline “Fiddy’s no diddy, Danielle looking wobbly after big night in with 50 Cent” and suggested she had sexually propositioned rapper 50 Cent and cheated on Wigan Athletic player Marcus Bent.

It was the Mirror that left the High Court short of change today after accepting its story had been untrue and that Lloyd had not in common parlance ‘been going out’ with Bent. Even though her agent Ray Levine had issued a denial to the paper at the time, it went ahead with the story.

This then spread across further websites under various headlines which she said caused distress, embarrassment and damage to her reputation.

She issued proceedings at the end of August through Carter Ruck.

Lloyd didn’t comment on the amount of damages but issued a statement saying:
“I was devastated by the disgusting lies about my private life which the Daily Mirror published without a shred of evidence to back them up and despite being told the truth in advance. The allegations could not have been more hurtful and the story in which they appeared was unbelievably spiteful and malicious.”

Lloyd sued the Daily Star earlier in the year:
This is not the first time this year the press have had to pay out for suggesting Lloyd’s been having steamy sex. The Daily Star was in the doc back in May over its allegations that Lloyd was afraid that a sex tape of her having a romp with a DJ could ruin her career. The paper was forced to apologise and make a donation to charity as well as reimburse legal fees and costs.

Sky News
More on Danielle and her boob job

Should journalists be allowed to name paedophiles?

The Court of Appeal is set to rule on whether newspapers will be allowed to name a paedophile whose name had already been read out in open court.

Five judges, rather than the usual three will sit to decide if a selection of publications including the Times and The Mirror can name the 45 year old man from South London after a Crown Court judge ruled in June that the man couldn’t be named. This followed his conviction in April for downloading and making highly indecent pornographic images of children. He got away with a community service order.

So why did the Crown Court ban his being named?

The reason is that he has two young daughters who would be subjected to embarrassment and possibly harassment were his name to be made public. Under section 11 of the 1981 Contempt of Court Act the court has the power to make an order giving anonymity in sensitive cases.

So why the appeal?
Section 159 of the 1988 Criminal Justice Act provides the right to appeal where it is argued that a judge should not be allowed to make a Section 11 (Contempt of Court Act) order where the person has already been named and no previous restriction has been imposed.

Convicted paedophiles should be named and shamed and the media should have the right to do so. The question for the Court of Appeal to decide is whether, given there are young children who could be adversely affected, it is correct to do so in this case. The case splits into two here as procedurally one can argue that naming should be allowed given it wasn’t previously banned but beyond procedure the court will have to weight the risk of his daughters being put at risk against the right of society to know who has been engaged in and convicted of paedophile offences. Controversially one could argue that harsh though it may be, his daughters also have a right to know what their father has been up to. So if the risk to them derives from the knowledge and embarrassment then that might not be as persuasive an argument for the court as one that demonstrates it is likely they will be put at risk of physical harm if their father is identified.


Sunday Times stands by Jonathan Ross BAFTA fee story

Wossy is not amused and Schillings are having a good week. Cause of complaint is a story run by the Sunday Times claiming Jonathan Ross was being paid £100,000 to host the BAFTA awards in February 2008. Are his witicisms worth the money? the suggestion by the article was that as he is already rumoured to be paid a whopping £18million (over three years) by the beeb why should he get more. Added to this came a quote from his mate Ricky Gervais that he'd nicked the gig from Stephen Fry, who was at least known in the US (didn't Ross spend some time over there before returning to stardom on our screens? so how come they don't remember him?).

The Sunday Times is standing by its story from November 4th while Schillings are defending his honour by suggesting it has been impeached by the falsehood created through misrepresentation of Ricky Gervais' quote. So is the suggestion that a ridiculous fee is being paid to an already overpaid person who is not big in the US? who cares, though if he was any good at football it might seem less controversial. Will his reputation be damaged by either, if true, the fee or the fact he is not - according to what is being suggested as a jovial comment from Gervais - as wll known in the US as Stephen Fry? Hardly. If he's not being paid the fee then why counter the story - no fee, no fact = no story. Is it defamatory to suggest that a comment made in jest by a friend of his means he is less well known than Stephen Fry - one would hope not.

If such a fee is being paid then Ross could donate it to Comic Relief. and no one will argue with that outcome. If not then he can simply provide proof and discredit the story.

Here's a controversial scenario from Mediabeak: he might not be getting a fee for presenting the awards but he may well net £100,000 (and Schillings their fee) if he can scare the Sunday Times into settlement or persuade a court there's a case based on the story.

If Mediabeak is correct, the Times and its formidable legal team aren't going to fall for this one. All the legal grandstanding is achieveing is highlighting the fact that people might believe Ross would be paid £100,000 to present the awards - is the suggestion that he can command such a fee really defamatory - Mediabeak thinks not. Smart money is on the Sunday Times - wots Rossy's action trying to prove? Another case where the allure of a CFA might have got the better of the situation.

More on Media Guardian


TV - Should baby behaviour programmes be banned?

OK so no one has ever said parenting was easy but there have been parents and troublesome toddlers long before there was ever reality tv - so this takes us to the debate over whether (1) we need reality tv to tell us how to bring up baby and, more importantly (2) in parading wayward and, arguably maladjusted tots on such tv programmes we are exploiting them.

Programmes such as Supernanny do take the parents to task over their behaviour rather than just blame the children which is probably why this more balanced approach has caused less consternation. Not all programmes have been as well received and the various self-professed gurus of parenting skill have also been called into question. One programme in particular has drawn particular complaint - 'Bringing up baby' on Channel 4 has already, according to a report on MediaGuardian, clocked up 743 complaints to regulator Ofcom and has attracted a web campaign by The Children's Project which is petitioning against the show

Read more:
Guardian says shows with under 5’s should go
Mail says shows with under 3’s should be banned

What do you think? mail mediabeak your comments so we can continue the debate and ask whether current Ofcom guidelines do enough to stike a balance between informational programme making and protecting children from being exploited by such shows.

Free speech under fire: Spanish court convicts cartoonists for caricaturing a royal romp

Spanish cartoonists have been convicted for falling foul of the countries austere laws that prevent the press from commenting on or satirising those in power.

For a journalist or cartoonist the story was too good to miss – the government had introduced a scheme to up the birth-rate by offering mothers cash for having babies. The weekly satirical magazine, El Jueves came up with a cartoon of the heir to the Spanish throne, Prince Filipe and his wife Princess Letizia having sex, accompanied by a caption of him telling his wife that if he got her pregnant that would be closest thing he ever did to work in his life.

Witty, yes. Topical, also. It wouldn’t have cause too much of a stir in the UK but Spanish – and many other continental European laws – take a different view - defaming the Royal family in Spain carries a 2 year prison sentence. Back in July a judge issued an order banning the publication and ordered all copies of the magazine to be seized (thereby ensuring they became hot property and the story spread over the internet).

At their trial this week, the court convicted the magazine’s editor, Manel Font de Villa and cartoonist, ‘Guillermo’ of “damaging the prestige of the crown”. Each were fined £2,539 for their humorous contribution to public debate.

This is the latest in a string of cases that has seen European courts use arcane powers of their domestic laws to constrain freedom of the press. While the European Convention on Human Rights was meant to safeguard free expression and individual constitutions across Europe provide for a free press, old fashioned laws created by the establishment are still being used to gag those who should be questioning them in a democratic society.

More from: Telegraph

Lancashire Telegraph gets fingers burnt over mortuary story

The PCC has upheld a complaint against the Lancashire Telegraph for failing to protect its sources.

Under clause 14 of the PCC Code:
“Journalists have a moral obligation to protect confidential sources of information.”

A mortuary worker had spoken to the paper’s reporter about plans to close a local mortuary. The paper ran a piece entitled “Burnley bodies may be sent to Blackburn” in which it referred to its source as “a worker at Burnley mortuary”. Problem was that there were only two workers there, one being his boss. The complainant subsequently lost his job.

In its defence the paper claimed that because it could have found out about the mortuary move from other sources, it didn’t consider the worker to be a confidential source as far as the PCC code was concerned.

The PCC disagreed and found the paper in breach.

What this case shows is that the confidentiality under clause 14 attaches to the source themselves and not to whether the information they have provided is confidential in that its not known to anyone else.

Full PCC adjudication: HERE

PCC slams Chat for insensitive murder reconstruction

A lesson in the need for caution when staging reconstructions. Chat magazine had run an article about the abuse suffered by the former partner of a convicted murderer. Under the heading “Beaten, raped and brutalised” the piece was timed to coincide with the anniversary of the murder that finally saw him banged up. It also carried two photographs - a headshot of the victim and an uncaptioned staged photograph of a female body wrapped in bin liners. The latter, was how the actual body was discovered but there was no mention that it was in fact a reconstruction. The stepfather of the murder victim complained that the article was misleading and contained unnecessary graphic detail.

Under Clause 1 (i) of the PCC Code: The Press must take care not to publish inaccurate, misleading or distorted information, including pictures.

Under Clause 5 (i) of the Code: In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively.

The fact that a particular story and its details may be in the public domain does not lessen the duty arising under these clauses.

The PCC upheld the complaint. While intrusion into grief and shock under clause 5 is normally applies more strictly in the close aftermath of an incident, the PCC slammed the magazine’s “cavalier approach” to the feelings of the family:

“.. in using the misleading picture near to the first anniversary of the death, the magazine had also shown a total disregard for the family of the dead woman. While the Commission normally considers the rules on grief and shock to have greatest relevance in the immediate aftermath of an incident, the magazine’s cavalier approach in this instance constituted a clear breach of both the letter and spirit of Clause 5 of the Code.

Full PCC adjudication

Further PCC cases:
Prescott appeased after Mail publishes correction
Clear as mud! New Scientist clarifies muddy water story

McCann Watch – MEP criticises “corrupt” and “flawed” investigation

Sky News is running a story carrying comment from a letter issued by the office of UK MEP Roger Knapman, that lays into the Portuguese police. The letter was actually written by former Tory MP, Piers Merchant who moved to work as assistant to Mr Knapman after an exposee in the Sun forced him out of his previous office.

Among other things it proclaims:
"In any event I think you can rest assured that the British police and intelligence services have long had a better grip on the facts of this case than the Portuguese police."

This will no doubt continue to fuel debate over the investigation and whether the media are being unduly harsh on the Portuguese cops.

Read full story on Sky

Mediabeak asks – should we get Martin Brunt to head up the investigation? – send us your comments!

Read Brunt’s Life of Crime Blog

More on Piers Merchant sex scandal HERE

Between The Rock and a hard place – pointless gag over Northern Rock rescue story

The story had already appeared on the 8th November and subsequently featured in the FT and Telegraph (+others). Good news about any rescue bid for stricken Northen Rock has to be good news and the public + investors deserve to know more about how the company's financial management was structured.

The gag handed down by the court, while technically logical from a legal point of view seems an unecessary use of process to constrain information about financial matters investors and the wider public have an interest in knowing about.

In the circumstances the gag seems over the top and a bit futile.

Details from:
Financial Times


Independent hit with Lebanese libel action

As reported on MediaGuardian and the Lebanese Daily Star, The Independent is being sued by Beirut hotel The Mayflower over suggestions its guest-list included people responsible for arming Lebanese militia.

The offending article, written by well-respected journalist Robert Fisk, claimed that ‘Secret armies pose sinister new threat to Lebanon’ and suggested that anyone checking the guest register at the hotel would be able to confirm the presence of militias in the Lebanese capital.

Following complaints by the hotel’s owner Sherif Samaha, this reference was removed from the online version of the original article. This has not placated Mr Samaha who has instructed lawyers in the UK to commence proceedings against the Independent along with Lebanese French language magazine L’ebdo which translated and reprinted the original article.

PCC upholds complaint against Mail on Sunday (Scotland)

The PCC has upheld a complaint against the Scottish edition of the Mail on Sunday after it published an article claiming a US based charity was subject to a criminal investigation.
Mr Alan Bain, president of the American-Scottish Foundation (ASF), had objected to an article
published on the 20th May this year under the headline “Tartan Day chief facing $1m charity cash probe” suggesting that ASF was at the centre of a criminal investigation by the Office of New York’s Attorney General (OAG). The piece was written by a freelance journalist who had herself initiated the complaint to the OAG, relying on information she had received from third parties. With no investigation having been followed up the article was both inaccurate and misleading. It was therefore held to be in breach of Clause 1 of the PCC Code:
“The Commission considered that the article was clearly misleading as it failed to make clear that the complaint to ONYAG had been made by the article’s author. While she may well have made the complaint as a result of concerns being raised with her by third parties, this was not reflected in the coverage.

There was also no evidence that, as a result of the complaint, the complainant or the ASF charity were ‘at the centre of a criminal investigation’ ”
Full adjudication HERE
The Mail on Sunday has today published an apology and acknowledged:
“Further to the PCC's adjudication above, we also accept that Mr Bain and his family have made substantial donations to the ASF and that a company in which Mr Bain has a shareholding – World Wide Business Centres – has also donated office space free of charge to the ASF. We also accept Mr Bain's assurances that the ASF has not paid for any flights he has taken to Scotland.
We accept Mr Bain had no interest in the Harris Tweed industry in 1993 when the ASF gave funds to the Highland Fund, which decided to use the money to purchase a prototype loom. We are happy to set the records straight and apologise to Mr Bain and his family and to ASF for any distress caused. “

Dando Appeal - judge makes retrospective threat to the media

The Court of Appeal has fired a warning shot at broadcasters over their recent programmes relating to the Jill Dando killing. Lord Phillips announced the court would be looking into the propriety of broadcasts by the BBC’s Panorama programme as well as a Channel 4 programme broadcast on the evening of the appeal. The comments came as the Court started hearing an appeal from Barry George who was convicted for the brutal killing of the popular television presenter.

Contempt laws are in need of an overhaul anyway as they are not compatible with the 24-7 broadcast and online coverage but that doesn’t mean they can be ignored. Whether the broadcasts will be seen to have intentionally sought to prejudice proceedings may be doubtful but the courts have shown they will punish the media if their actions cause a trial or appeal to collapse.

Duncan Campbell discusses this in more detail in today’s Guardian: HERE


Muckraking with Macca and Mucca

[Image from News of the World, Sunday 11.11.07]

How do you top Heather Mills' performance on GMTV the other day? - it now appears she has a series of secret recordings that substantiate some of her complaints about Macca's behaviour. The protracted hostilities surrounding their divorce would make for a special edition of the Jeremy Kyle or Vivien Vile show and the way the pre-hearing disclosures are going that would perhaps be a more fitting forum to hear the charges. Mischon de Reya have (ditched) parted company with Mills, who is going to represent herself when it finally comes to the big showdown with Macca in court. They still seem to be fogetting that this isn't LA Law and that they will be subjecting themselves to the family courts where the main focus, rightly, will be on the welfare of their daughter. For all their potential sensation, these latst Maccagate tapes might not even be admissable in court - so reference to them may be no more than posturing to force Macca to get the chequebook out and improve the settlement offer he previously put on the table. If the substance of the tapes is true then it could see the halo slip from the popular public hero who seemingly can do no wrong. As ever, Macca seems unphased and is enjoying his trans-atlantic attentions. The sad fact about this bitter battle is that the inability of both parties to seek a selfless settlement is going to leave an ugly legacy for their poor daughter. There will be no winners - other than perhaps Macca's lawyers at Payne Hicks Beach. In the meantime trial by media continues and it would be wrong to blame the press for this one - Macca and Mucca know what they're doing so they should expect some more criticism in weeks to come.
More from
Mirror http://www.mirror.co.uk/showbiz/2007/11/10/heather-solo-on-divorce-89520-20089263/
and News of the World http://www.newsoftheworld.co.uk/1111_mucca_secret_tapes.shtml
More analysis on the background from Media Guardian:


McCann speculation spins out of control

The McCanns are never far from the headlines and just when we thought we'd witnessed every possible new twist in the confusing yet engaging story of the disappearance of Madeleine, we are offered a new take on what may have happened on that fateful evening six months ago.
What started out as reporting and then a story about the disappearance of a little girl, Madeleine, has now become the Kate and Gerry story. The media pendulum swings from support for the plight of these suffering parents to question about what actually happened.
In the last few days we have seen headlines suggesting that the McCanns were going to sue the Portugese police for £1m while others focused on the suggestion that two of the so-called 'Tapas 9' were going to change their story - allegedly the same two who happen to live in the south west English city where Robert Murat is supposed to have been in the weeks prior to Madeleine's disappearance.
So what on earth is going on!
Can the McCann's sue the police? - yes, arguably once they have had their 'arguido' (suspect) status removed. Why bother? The officers leading the investigation have already been 'sacked' or 'stepped down', with one of them implicated in the mistreatment of a suspect in a similar case. It would be wrong to generalise but it does not take an expert to conclude that in this particular case the handling of the investigation - at its early stages - gives cause for serious concern as to its efficiency, propriety and credibility.
With much of the media and the public not taking the police investigation seriously any more does suing them help?
No. It won't bring Madeleine back and rather than concentrate on their failings and culpibility for them, one should be concentrating on continuing the quest to find Madeleine or what happened to her.
The bottom line is someone must know something.
The dilemma is that the only people who know anything tangible in relation to the evening of Madeleine's disappearance are her parents and the 'Tapas 9'. So the suggestion that there may be discrepancies in their version of events does give the media, if not the investigation legitimate cause for inquiry.
What the McCanns are experiencing is the fact that if, as they have done, one engages the media at such a pervasive level with such a compelling story, in absence of new news or a solution to the mystery, the media attention will focus on those at the centre of and telling the story, Kate and Gerry.
No one likes an unsolved mystery, least not the media. With Madeleine as yet unfound, the Portugese police largely seen as not delivering any results, then focus will be on those left talking. To think that, church going, Pope visiting Kate and Gerry could have anything to do with their own daughter's disappearance is abhorrent and rationally absurd but in absence of any developments and given the drive for media exposure, the media can't be expected to back away from the story. The real issue in relation to media coverage is distinguishing between fact and fiction, making clear what is conjecture and what is substantiated and getting the tone and context right. But has the UK press done so? Have they overstepped the mark in terms of what's been reported (especially at a secondary level in relation to what has appeared in the Portugese press), or their intrusion into the McCann's life? Mediabeak will continue the analysis of this in the next of a series of postings looking at the media story, separating fact from fiction and asking where the boundaries lie.