Press restrained in alleged blackmail sex case

DFT v TFD [2010] EWHC 2335 (QB) (27 September 2010) – Read the judgment

Updated | In a recent restraint of publication case, the High Court has assessed the conflicting requirements of open justice and freedom of speech versus the privacy interests of the applicant.

The High Court was asked to consider continuing restraint of publication of what was said to be private and confidential information. The applicant alleged that the respondent had been blackmailing or attempting to blackmail him, and had threatened to make public private and confidential information concerning a sexual relationship between them unless she was paid very substantial sums. The applicant not only sought continuation of the injunction restraining publication but a prohibition on publishing the fact of the order as well, to avoid “jigsaw” identification of the applicant by the media.

Media freedom under review

Updated | Recent weeks have seen some interesting developments in the debate over freedom of expression of the press.

Last week saw a decision of Grand Chamber of the European Court of Human Rights in Sanoma Uitgevers B.V. v. the Netherlands. The case related to the protection of journalistic sources, and has been described as a “victory for press freedom”.

The court held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. The Dutch prosecutors in the case, which had ordered the production of a CD-ROM containing potentially incriminating photographs of participants in an illegal race, had therefore breached Article 10 (freedom of expression).

New senior media judge to play important role in balancing of rights

Eady to go

The Lord Chief Justice has announced the appointment of Mr Justice Tugendhat as Judge in charge of the Jury and Non-Jury Lists with effect from 1 October 2010. This makes him the senior ‘media judge’ in England and Wales, and he will play an important role in balancing rights to privacy against freedom of expression.

The Jury and Non-Jury lists contains general civil law, including defamation and privacy. The Judge in charge has responsibility for managing the work in the lists and assigning judges to cases.

Rooney, Coulson and Hague scandals reveal the need for more, not less, press protection

What does Wayne Rooney’s alleged philandering have to do with human rights? In itself, not very much. But a recent spate of exposés in and of the press has exposed more than a footballer’s indiscretions.

The starting point from a human rights perspective is the fragile relationship between two articles of the European Convention on Human Rights; namely, the right to privacy and the right to freedom of expression. Article 8 provides that everyone has the “right to respect for his private and family life, his home and his correspondence.” This right is qualified, in the sense that it is possible for a state authority to breach privacy rights if it is (amongst other things) necessary in a democratic society.

Press freedom defeat continues to sting

Gary Flood

The fall-out from last week’s Court of Appeal judgment in Flood v Times Newspapers Ltd continues as the Times’ long-standing in-house lawyer parts company with the newspaper, and commentators remain unsure as to whether the case marks a significant blow for press freedom.

We posted last week on the Flood case, in which a police officer accused of taking bribes won his battle to prevent the Times relying on the Reynolds defence, which allows allegations to be reported even if they turn out to be wrong. The well-known and much used defence arises from the 1999 case of Reynolds v Times Newspapers in which the House of Lords (now the Supreme Court) extended the defence of qualified privilege to cover the media. Lord Nichols also provided 10 criteria which should be taken into account when deciding whether the defence applies (see the end of his judgment). Since 1999, the defence has been an important weapon in the press’ armoury in libel cases, and has undoubtedly led to greater press freedom.

Russian mafia bribe police officer wins battle against the Times

Don't follow the money

Flood v Times Newspapers Ltd [2010] EWCA Civ 804 (13 July 2010) – Read judgment

A Detective Sergeant in the Metropolitan Police accused of taking bribes has won his battle against the Times to prevent the newspaper relying on the Reynolds defence, which allows allegations to be reported even the it they turn out to be wrong, in the interest of media freedom.

In June 2006 the newspaper had published an article entitled “Detective accused of taking bribes from Russian exiles”, leading the detective to sue in libel The Court of Appeal reversed the decision of Mr Justice Tugendhat in the High Court which had said the Times could rely on Reynolds privilege.  The Inforrm Blog has provided an excellent analysis of the judgment. The post sums up the facts as follows:

Hardeep Singh libel case reignites debate on place of religion in the English courts

Cult leader?

HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor [2010] EWHC 1294 (QB) (17 May 2010) – Read judgment

The High Court has effectively thrown out a libel action against a journalist who claimed in an article that a Sikh holy man was a “cult leader”. The judge’s reasoning was that the disputed points of religious principle were not questions which a secular court could properly decide. In refusing to rule on such cases, are the courts taking an increasingly anti-religious view, and are they now in breach of the human right to religious freedom?

The decision was reported in mid-May, but Mr Justice Eady’s judgment was made publically available yesterday. It highlights controversial issues of whether religious believes are getting a fair hearing in the English courts, and whether “secular” judges are qualified to decide points of religious principle.

Libel reform debate media round-up [updated x 3]

We posted on Friday that the libel reform debate is hotting up now that the Coalition Government has pledged to reform the law of libel. We are following the debate because of the wide-ranging implications any significant reform will have for the law of freedom of expression, as a number of articles published over the weekend demonstrate.

Lord Lester, who has recently produced a draft libel reform bill, writes in the Times:

The chilling effect of our current libel law needs urgently to be tackled by the government and parliament. I hope that my bill will be the catalyst for much-needed legislative reform.

John Kampfner, chief executive of Index on Censorship, an organisation which aims to promote freedom of expression, writes in the Guardian:

Libel reform debate hots up as new Government takes advice on reform

Set the ball rolling

The recent announcement of the review of libel and privacy law by a high-profile panel has led to a flurry of conjecture, comment and proposals. The new Government has pledged to reform the law of libel, but what shape will the reforms take?

The committee, which was announced last month, is being led by Lord Neuberger, the head of the Court of Appeal, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial “super injunctions”.

The new Coalition Government have pledged to “reform libel laws to protect freedom of speech“. Cases involving libel, defamation and super-injunctions have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).

Super injunctions, bad habits and secret justice [updated]

No more super injunctions?

Lord Neuberger, the Master of the Rolls, provided an interesting discussion on so-called “super injunctions” in a speech on 28 April 2010. He said that “Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so.”

Super injunctions came to prominence as a result of the case involving footballer John Terry, who initially used the courts to block publication of details of his extra marital affair, as well as all mention of the case.

The speech will be of particular interest to libel lawyers, as Lord Neuberger is currently chairing a high-profile panel to review super-injunctions which may lead to their demise. The speech provides a useful background to the issue in terms of human rights law, as well as in relation to freedom of speech in the United States (see our recent post on the topic).

Lord Neuberger gave little away, but does strongly emphasise the importance of open justice, which the super injunction has arguably diminished. The following paragraph may worry lawyers and celebrities who hope that the super injunction will survive:

29. But what of the substantive issue? How do we reconcile such injunctions with the principle of open justice? The first thing we could say is, as Mr Justice Tugendhat, the judge in the Terry case, pointed out, where such an issue is raised it requires intense scrutiny by the court. It does so because openness is one of the means by which public confidence in the proper administration of justice is maintained. Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so. Neither reality nor suspicion are an acceptable feature of any open society.

Read more:

• Update 4/5/10 – The Lawyer: Media judges in the spotlight as Eady J’s future is thrown into doubt
• Update 2/5/10 – Joshua Rozenberg writes on libel reform in Standpoint: “… this mixture of cherry-picking and window-dressing had been the only libel reform that Straw could have got through before the general election.”
• Previous posts on super injunctions here and here
• Mr Justice Tugendhat decision in the John Terry case