Tag: Rights

A critical analysis of the effect of Article 8 and Article 10 of the European Convention on Human Rights on newspapers in the UK with an emphasis on libel laws

Abstract

This dissertation is a critical analysis of the effect of both Article 8 and Article 10 of the European Convention of Human Rights on the media in the UK with a special emphasis on the press and libel which has absorbed most of the advances the Human Rights Act enshrined into UK law in 1998. The hypothesis of this study is that although both rights have been absorbed into the UK neither appeared into a vacuum and furthermore they have not been absorbed with the equality which the rhetoric of the judiciary would suggest. There is a ‘continental drift towards privacy’ clearly prevailing in the UK and the effects are being most sharply felt by the press who are so often at the vanguard of free speech for themselves and freedom of expression for all. In no area can this be demonstrated more clearly than in the area of libel which has sought to strike a balancing exercise between the two rights. The libel laws are heavily stacked towards the individual and act as an obstacle to freedom of expression. This dissertation will carry out extensive secondary case research to establish the effects of convention arguments in the courts in libel actions and attempt to divine the future direction and analyse the detailed recommendations of the Coalition Government in the Draft Defamation Bill of 2011.

Introduction

The Human Rights Act 1998, now woven into the fabric of the British legal landscape, represents a sea change in the endless dance of death between freedom of expression and the right to privacy between the state and the media, paparazzi and celebrities, journalists and editors and now even between social networking employees and employers. But just how far has the UK comeThat Britain, traditionally a country without any law of privacy[1], now has an anchor for the right to privacy and the freedom of expression in the European Convention on Human Rights can be partially attributed to a media which has, ironically, committed some of the gravest sins against privacy: for example taking pictures of the (then) retired actor Gordon Kaye in 1991 while he was recovering in hospital after sustaining severe head injuries[2]. The Court of Appeal ruled that there was no satisfactory legal remedy for what the judges admitted was a “monstrous invasion of privacy”:

“Any reasonable and fair-minded person hearing the facts which Glidewell L.J. has recited would in my judgment conclude that these defendants had wronged the plaintiff. I am therefore pleased to be persuaded that the plaintiff is able to establish, with sufficient strength to justify an interlocutory order, a cause of action against the defendants in malicious falsehood. Had he failed to establish any cause of action, we should of course have been powerless to act, however great our sympathy for the plaintiff and however strong our distaste for the defendants’ conduct. This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens.”[3]

Bingham L.J uses the settled position in Germany to contrast the tortured reasoning that the British courts have had to apply to invasions of privacy for generations. The confusion of the court in Kaye is a good example of when overlap occurs between the various actions that UK law has developed to deal with issues of privacy. The plaintiff in Kaye argued four separate ways: Libel, malicious falsehood, trespass to the person and passing off. This can be contrasted against the position in France where strong privacy laws enshrined in the constitution inhibit free speech and allowed Francois Mitterand to conceal his illegitimate daughter until she reached the age of 19[4]. On the flipside of privacy, Britain has a very self congratulatory proud tradition of extolling the merits of free speech and the freedom of the press, a freedom, as Robertson forcefully argues, which was, prior to the Human Rights Act, a hollow concept that any government could detract from at whim[5]. As a corollary, privacy could be protected indirectly through the development of laws such as trespass and official secrets while freedom of speech could be eroded indiscriminately to bolster a state that was seeking to protect its own interests. Robertson observes on this paradox:

“’Freedom of the Press’ remained a potent phrase, but the fact that it was protected by unwritten convention rather than by a constitution meant that there was no external brake to stop Parliament and the courts moving to restrict it in particular ways, as the mood and temper of the times seemed to require. Britain remained a country where ‘everything is permitted which is not specifically prohibited’ but the specific prohibitions became much more numerous, because they never had to justify themselves against the standards set by Article 10.”[6]

The final sentence of Geoffrey Robertson’s observation suggests that article 10, now widely cited in the British courts and developed by an illustrious line of European jurisprudence from Strasbourg, is now a new standard and represents a paradigm shift. Although the Human Rights Act came into force in 1998 it is 1979 which marked the turning of the intellectual tide when the European Court of Human Rights delivered a devastating judgement against the British courts’ attempts to suppress the publication of a remarkable piece of investigative journalism which exposed the harmful effects of the drug Thalidomide.[7] Although, to a greater degree than article 8[8], article 10 is qualified[9] and subject to certain restrictions there is a further section in the Human Rights Act itself which demonstrates the importance of freedom of speech and which distinguishes the right from the right to privacy:

“(4) The court must have particular regard to the importance of the Convention right to freedom of expression”.[10]

It is crucial to note that s.12(4) does not give article 10 what is called “presumptive priority”[11] over other rights, most notably privacy, despite the judicial rhetoric and that individuals cannot currently bring a free-standing cause of action based on ECHR (newspapers are private bodies) but must instead “anchor” their claim to an existing common law action, such as breach of confidence: the Human Rights principle affect has been one of absorption of convention rights into existing common law actions rather than creating a new tort of privacy[12] . This dissertation will critically assess privacy in the UK and its’ interplay with freedom of expression both before and after the passing of the Human Rights Act in the UK in 1998 through the lens of the press: are they having to yield to privacy in article 8 and has the human rights act only had a modest impactOr are they able to report fearlessly in the knowledge that article 10 will reinforce their positionThe hypothesis of this study is that the Human Rights Act has had a huge impact on the competing rights although, considering the history and the development of breach of confidence, a framework for protecting privacy at common law already existed[13] and with regard to freedom of expression there is a long line of pre Human Rights Act judicial dicta which has emphasised the importance of this right[14] although notably Robertson pours scorn on what he insists is purely rhetoric which obscures the fact there has been no generalised right of free expression since the Magna Carta[15]. In short the Human Rights Act and articles 8 and 10 did not step into a vacuum and must be analysed accordingly though it is debatable to what extent freedom of expression was protected in the UK prior to 1998. In determining how to balance the competing rights, however, the HRA has been vindicated in providing a framework although we are still a long way from a situation where the media can speak freely and in some areas, such as libel for example, the right to privacy is winning to the detriment of us all; the “chilling” effect on free speech still very much evident and there is no prospect of a thaw even with the promising Draft Defamation Bill in 2011[16].

The tortured history of privacy and free speech in the UK in chapter 1 will be analysed before examining both of the fundamental rights at stake in chapter 2. Chapter 3 will address the law of libel in the UK and secondary case research will be conducted into libel cases involving newspapers and the mediafrom 2008 to 2011. This chapter will also provide an exhaustive look at the latest case law in relation to libel including the cases of Mr.Justice Eady up to his very latest in 2011[17] as well as case studies of important libel cases including the seminal Max Mosley and the News of the World trial[18] which was Mr.Eady’s most high profile case and triggered a barrage of criticism. This chapter will conclude by determining whether the claim by Paul Dacre of the Daily Mail, that Mr.Justice Eady is responsible for eroding free speech, is true[19]. Chapter 4 looks at the position in France in order to extract any useful lessons for privacy reform in the UK while chapter 5 draws all the strands of this study together to assess the impact of the Human Rights Act, in the shape of articles 8 and 10, on privacy and free speech in the UK. The striking case of Wikileaks will also be examined in this chapter alongside the growth of the so-called “super injunction” as well as the much welcomed reforms of the coalition government[20]. Finally chapter 6 will provide recommendations for the future based on conclusions drawn from the previous five chapters. With the historic multitude of laws enhancing privacy the role of the human rights act in promoting freedom of speech is remarkably important and Robertson makes an inspired case for article 10:

“The Human Rights Act 1998…provides what previous governments, and generations of judges, have never believed politic to entrench either in statute or common law, namely a guarantee of freedom of expression, a promise that “speech” will have a presumption made in its favour by any court invited to suppress it. This covenant – which enters British law by way of the incorporation of Article 10 of the ECHR – reflects the core belief of the eighteenth century republican revolutions in France and America, adopted as an article of faith in modern Human Rights instruments, that freedom of speech is a good in itself, an essential pillar of democratic order. This is the free speech principle, which assumes that liberty is best secured by a system that protects utterances irrespective of their merit, because in a free market of ideas and opinions the good will triumph over the bad”[21].

This study will focus on the press as their struggle for free speech is a front in the battle for freedom of expression: the two are often conflated and it is the press, with its resources, who is often in the courtroom arguing for publication[22]. Thus there is no better prism through which to evaluate the impact of articles 8 and 10 of the ECHR as private individuals do not have the vast resources, since legal aid is not available, to initiate libel claims or contend with the costs of victory or defeat[23].

Chapter 1: Background and overview

A. A right to Privacy in the UK prior to 1998?

Privacy in the United Kingdom has never enjoyed the protection of statute and has remained an enigma that is referred to by convention rather than constitution[24]. Countries such as France[25], Germany[26] and America[27] have a more defined right to privacy and are often seen as providing more constitutional protection than Britain, with its’ unwritten constitution, ever has despite the levelling of the European playing field in the 21st century. The Younger Committee on Privacy met in 1972 to address this very question but the introduction of such a right was abandoned despite the committee recommending that “privacy requires additional protection”[28]. The Report followed the introduction of a Private Member’s Bill in the House of Commons that ultimately was rejected[29] and indeed there have been a few privacy Bills that have foundered in the House amid ideological ruins[30]. The influence of the report was very profound and indeed, in the words of Bradley & Ewing, was to “structure the debate for a generation”[31]. Yet it is a fallacy to say that there have been no laws that have addressed privacy to a degree. In terms of civil law: in surveillance there has been the law of trespass[32] and the regulation of interference with property[33]; in the field of private information there has been legislation to protect individual’s data[34] and also legislation for the public to have access to sensitive data held about them[35]; in the protection of trademarks, patents and copyright ideas and sensitive information are restricted from dissemination[36] as well as a whole smorgasbord of criminal laws, some ancient and obsolete[37], some common law and some statute, which have restrained newspapers[38]. The suite of laws, both criminal and civil, which enhance privacy often overlap and can influence the press although often indirectly as the anchor for a Convention Rights argument[39] which the court as a public authority under the Human Rights Act 1998 must act compatibly with[40]. The most relevant action for privacy matters in relation to the media is breach of confidence which many commentators have defined as a virtual right to privacy in all but name[41]. This equitable doctrine developed out of the case of Prince Albert v Strange[42] where the Prince had supplied various members of his family with private drawings. An employee of the prince disseminated a copy of the etchings entrusted to him to a friend. The Prince then secured an injunction against the friend and it “was held that an injunction could lie in property, trust, confidence or contract”[43]. This case is very much in keeping with the use of breach of confidence in the early half of the 20th century as a restraint on the disclosure of trade secrets[44]. Prince Albert was followed by the two cases in the 1960s that sought to clarify and define the law of breach of confidence. In Argyll v Argyll[45] confidential secrets of marriage were successfully restrained and set the benchmark for the kind of information that can be restrained even absent of a contract or a property rights violation. The classic test of breach of confidence came two years later in Coco v A N Clark (Engineers) Ltd[46] which produced the classic test, in the words of Mackenzie[47], to establish a breach of confidence: firstly that the information was of a confidential nature, secondly that it was communicated in circumstances giving rise to an obligation of confidence and finally that the information was used in an unauthorised manner[48].

This test has been gradually eroded and stripped away over the years to reveal what Mackenzie argues is a virtual right to privacy[49]. The obligation of confidence has, in particular, been relaxed from the strong bonds that were required, such as marriage[50], to mere friendship[51] sufficing to satisfy this limb of the test. In 1990 the classic case on breach of confidence arrived in the form of Attorney General v Jonathan Cape[52] which demonstrated the scope for breach of confidence to be widened to material published by the media which is in the public interest. Lord Widgery made the following observations:

“…the Attorney General has a powerful reinforcement for his argument in the developing equitable doctrine that a man shall not profit from the wrongful publication of information received by him in confidence. This doctrine, said to have its origin in Prince Albert v Strange (1849) 1 H&T.1, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence”[53].

The developments in the Crossman diaries saga and the Spycatcher[54] case in 1990 explicitly recognised that breach of confidence was a right to privacy in all but name but these reforms by the judiciary were halted by the Kaye case mentioned above, however, which firmly “refused to widen breach of confidence any further and reaffirmed the position that there was no law of privacy in UK law.”[55] A further dilution of the obligation of confidence occurred in Shelley Films Ltd v Rex Features Ltd[56] where, following Spycatcher and not Kaye, the concept of a reasonable man test was introduced thus making it easier to argue that the photographer in question who supplied a picture of Robert de Niro to a newspaper should have known that photography was explicitly forbidden. Five years later Laws J felt confident enough, albeit obiter dicta, to again reassert that breach of confidence was effectively a right to privacy in all but name and this was perceived to be the first signs of an emergence of breach of confidence as a right to privacy[57] two years before the Human Rights Act in 1998 came into force.

The most important case on breach of confidence so far has been Douglas v Hello! Ltd[58] which was an appeal against the decision to grant an interim injunction preventing Hello! from publishing more photographs of the Douglas’ wedding after a photographer breached the extensive security surrounding the event. The action was brought under breach of confidence coupled with a breach of privacy under Article 8 of ECHR. Although this case dragged on to 2004[59] and the Douglases’ ultimately prevailed on a breach of confidence, it is the original successful appeal against an interim injunction that prompted many commentators to proclaim a new right to privacy in the UK[60] with three of the judges in the case discussing the changing nature of breach of confidence. Sedley LJ observed:

“English law will recognise, and, where appropriate, protect, a right of personal privacy, grounded in the equitable doctrine of breach of confidence, which accords recognition to the fact that the law has to protect not only those whose trust has been abused but those who find themselves subject to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy”.[61]

It should be pointed that Bridge L.J’s dictum[62] which effectively restricted the privacy rights of those who actively seek publicity has been distinguished recently[63] but remains a difficult authority which those seeking to establish a breach of confidence will have to hurdle if those seeking relief have themselves wanted favourable publicity Thus the almost total abandonment of the tight controls which distinguished breach of confidence is quite evident from a test which at first required a strong bond such as marriage to impart an obligation of confidence[64], then to lesser bonds sufficing such as friendship[65], to a reasonable man test[66] and finally to Sedley LJ’s observations that this limb of the test is effectively redundant[67] as the right of privacy emerges not as something which has never been recognised before like a phoenix from the flames but rather, as Mackenzie has astutely observed, recognition of the role breach of confidence has been playing since 1849[68]. Eadie J outlines the modern position:

“Although the law of “old-fashioned breach of confidence” has been well established for many years, and derives historically from equitable principles, these have been extended in recent years under the stimulus of the Human Rights Act 1998 and the content of the Convention itself. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.”[69]

The complementary laws outlined above such as trespass and breach of copyright all serve to augment the pivotal role of breach of confidence. The Human Rights Act did not step into a vacuum but was absorbed into existing actions such as breach of confidence: and it crucially must be analysed as such.

B. Freedom of expression and UK newspapers: last chance saloon?

The reference to the press in the UK drinking “in the last chance saloon” is derived from Sir Andrew Calcutt’s Royal Commission into the Press in 1990[70] when the then National Heritage Secretary David Mellor claimed that some parts of the media had snapped the government’s patience after numerous scandals which intruded into private grief, arguing that the media’s “sacred cash cow” of free speech should be restricted as he introduced the Royal Commission to the House of Commons[71]. Ultimately of course Calcutt came out against a new law of privacy and instead laid the foundations for the Press Complaints Commission and a code of conduct through self-regulation[72] but David Mellor’s comments deserve analysis: what was he referring to when he explicitly stated that the Press should be reined inThere is a historical common law right to freedom of expression in the UK which Laws J described as being: “…as much a sinew of the common law as it is of the European Convention for the Protection of Human Rights and Fundamental Freedoms”[73]. Lord Bingham of Cornhill, an eloquent defender of free speech, produced this classic observation:

“Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments…Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred. The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one…Despite the high value placed by the common law on freedom of expression, it was not until incorporation of the European Convention into our domestic law by the Human Rights Act 1998 that this fundamental right was underpinned by statute.”[74]

Thus like privacy, freedom of expression was recognised if not eulogised long before the Human Rights Act arrived. Robertson’s criticisms of a notion of British free speech stems from successive governments introducing indirect privacy laws to curb the worst excesses of the tabloid and broadsheet press in chequebook journalism, the reporting of political scandals, undercover surveillance and entrapment[75]. There are myriad ways to hedge in what is left of free speech and the debate against the press enjoying untrammelled expression took on a life of its own in the 90s. The privacy furore in the mid 1990s reached what has been called “fever pitch”[76] after pictures of Princess Diana in 1993 working out in a gym were splashed across the front pages of the Sunday Mirror and the Mirror; a Sunday Times investigation in July 1994 uncovered two MP’s accepting cash for questions and in October 1994 the Guardian’s own investigation into allegations of sleaze in the Conservative Government led to the Guardian editor Peter Preston resigning from the PCC[77]. Throughout all of the times of crisis under both the Thatcher and Major governments the press only survived by clinging to the last vestiges of self-regulation: the Press Complaints Commission. The Commission was memorably attacked as concerned only in looking after its own: “a pact between the great and the good and the newspaper industry”[78] and Robertson further comments on the implications of a PCC ruling: “its adjudications are short and usually over simple, reflecting only on editors, who do not appear discomfited by its statements that they have breached a code of practice”[79]. The PCC produces a Code of Conduct that has, in the human rights era, been elevated by section 12 of the Human Rights Act 1998 under (4)(b) to a code with “indirect legal effect”[80] which renders its contents more important and gives some credibility to the much ridiculed notion of self-regulation. It has been observed that it now has a role to play in court cases involving the press and article 10:

“with respect to section 12(4) it may actually be the case that the press has shot itself in the foot. The section elevates the Press Complaints Commission (‘PCC’) Code of Practice to a position it has not occupied previously. This is of particular relevance in respect for private life cases where it has been held that where the Code has been flouted and no public interest claim is asserted, a claim to freedom of expression is likely to be trumped by Article 10(2)”.[81]

Under the Code of Conduct “there is a public interest in freedom of expression itself”[82]. Thus the Human Rights Act could justifiably be argued to have given some indirect teeth to the Code of Conduct, although not the PCC itself which continues to be seen as toothless[83], but the important point remains that which Lord Bingham made in Shayler; that although freedom of expression existed before the Human Rights Act it is only through human rights that it has been given a renewed emphasis albeit stopping dramatically short of a presumptive priority[84]. As will be seen in the following chapter on the European jurisprudence, there is a balancing exercise to be carried out between article 8 and article 10 which underpins the modern approach[85]. Furthermore, there are those who are extremely sceptical of the existence of free speech in Britain such as Geoffrey Robertson QC who argues passionately against Amos’ assertions that UK freedom of expression was the most highly evolved of rights in place before the Human Rights Act 1998 was passed[86]. Robertson points out that freedom of speech is too easily trampled on by the various laws that the courts have developed and highlights James v Commonwealth of Australia[87] as being reflective of the courts historical interpretation of a qualified right of free speech prior to the Human Rights Act. It was observed in that case that “free speech does not mean free speech”[88] but actually speech that is subject to the laws of, inter alia, defamation, blasphemy and sedition. It is difficult to disagree with Robertson’s viewpoint as he undertakes a look at the right from the Magna Carta up to the Human Rights Act and he points out that the only free speech right to be found in British constitutional law is in fact in the 1689 Bill of Rights but “belongs only to M.Ps and to peers, giving them absolute privilege against libel actions over allegations they make in the course of parliamentary proceedings”[89]. He concludes that:

“Although the European Convention, incorporated into British law on October 2nd, 2000 by the Human Rights Act (HRA), had been promoted by the spin doctor’s slogan “rights brought home”, article 10 (which guarantees freedom of expression) never has been at home in Britain. Although many other sections of the Convention, guaranteeing free trial and Habeus Corpeus and due process, owe their providence to English law, and…the “open justice” principle and rule against prior restraint were first formulated here, no generalised right of free expression, however common in rhetoric, entrenched itself in law.”

A free press has often been at the heart of arguments for free speech and the two have often been confused as, understandably, most cases on freedom of expression involve the press in some capacity and the two notions are inextricably woven[90]. The watchdog role of the press, lionised by newspapers for centuries as their raison d’etre[91], has been incorporated into the jurisprudence of the European Court of Human Rights as pointed out by Longmore LJ[92] and is referred to in countless judgements. The House of Lords has very recently reaffirmed the Reynolds public interest defence for journalists[93] and the protection of freedom of expression for newspapers, and by extension all of us, is gathering pace despite some worrying inroads into privacy.

Chapter 2: Article 8 and Article 10

A. Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As has been pointed out above there is a duty for the courts to act compatibly with Convention rights being as they are included under the list of public bodies under the Human Rights Act 1998: their actions would be unlawful if they did not comply with the ECHR[94]. The extension of Convention rights to private law cases was described by the court in Venables v News Group Newspapers[95] as being beyond doubt and that s.12(4), in the words of Sedley LJ in Douglas, “puts beyond question the direct applicability of at least one article of the Convention as between one private party to litigation and another—in the jargon, its horizontal effect”[96]. The content of the privacy right in article 8 is very broad and has been held to cover: “…a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”[97]. In reality this means private life in physical and psychological integrity[98] and even includesthe right to choose death[99] despite the memorable submissions of the Secretary of State in Pretty: “He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it.”[100] The court disagreed with the Secretary of State in this instance, holding that a blanket ban on assisted suicide could constitute an interference with article 8(1) but that the interference can be justified as safeguarding life and furthermore in accordance with the law[101].

The courts, in respect of article 8 and the media, have adopted a two stage test for article 8 which firstly asks whether there is a reasonable expectation of privacy and if there is to balance this against a countervailing public interest in interfering with the article 8 rights[102]. On the first limb of the test, which is objective[103], it needs to be established whether the activity reported on is in the public or private domains and there are several factors to be taken into account such as absence of consent and the nature of the intrusion. In Author of a Blog v Times Newspapers Ltd[104] the blogging of the detective was clearly a public activity while by contrast in Mosley v News Group Newspapers Ltd[105]the claimant did have such an expectation given the private nature of the sexual encounters. Regarding the second limb of the test the public interest, if the first limb is engaged, must be sufficient to outweigh the interference with the article 8 rights of the claimant. Again when looking at Author of a Blog the public interest is apparent in unmasking a senior police officer as the mysterious writer of a blog which had criticised the police while in Murray v Express Newspapers[106] the public interest element was very weak in taking pictures of the children of a celebrity and the fact that an ordinary, reasonable person would consider the publication of the pictures abhorrent was significant. The public interest has an explanatory definition in the PCC Editorial Code which has, in light of s.12(4)(a) of the Human Rights Act and the elevated status if the code, been approved by the courts in their attempts to capture the public interest and if the conduct complained of is disproportionate to the aim[107]. Eady J asked a simple question to demonstrate the concept:

“The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliffSurely not. There must be some limits and, even in more serious cases, any such intrusion should be no more than is proportionate.”[108]

B. Article 10

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The content of the right to freedom of expression is also very broad and includes not only written and oral forms of communication but also videos and internet sites[109]. Thus in the context of the press online editions are clearly included under article 10 and indisputably all printed newspapers will fall easily under article 10 which has been described as “easily engaged”[110]. The next stage in the analysis is whether there has been an interference with article 10This is also easily proved and it has been held that injunctions[111], convictions under the Official Secrets Act 1989[112] and more gravely state censorship[113] all constitute an interference with article 10. As Merris points out the situation is not always so clear cut: in the case of copyright this is but a minor interference in light of the fact that a claim under copyright which does threaten publication is not an absolute bar to publication[114].

The real hurdle in article 10 is under (2): where such an interference as found in (1) must be justified under one of the extensive grounds since almost all cases so far have proceeded with recognisable laws at common law or by statute and are prescribed by law. There are two aspects of necessity which then need to be analysed: whether the interference was “necessary in a democratic society” and whether the interference is proportionate to the legitimate aim pursued. On the both it has been observed that:

“Lord Hope in Shayler held that the restriction on the disclosure of information cannot be said to be necessary in the interests of national security unless (a) relevant and sufficient reasons are given by the national authority to justify the restriction, (b) the restriction on disclosure corresponds to a pressing social need and (c) it is proportionate to the legitimate aim pursued.”

In determining proportionality the case law has developed certain general principles which the court will pay heed to: firstly s.12 of the Human Rights Act 1998 and the importance of freedom of expression as well as the PCC Code of Practice under s.12(4), secondly the importance of the freedom of the press, thirdly the public interest and finally deference to the decision maker[115].

C. The New Methodology: Von Hannover and Campbell

Von Hannover[116]

Under s.2 of the Human Rights Act 1998 courts in the UK must take into account decisions of the European courts when considering questions of convention rights. This case marked a watershed moment in striking the correct balance between article 8 and article 10 when Princess Caroline von hannover attempted to defend her right to privacy against paparazzi and tabloid intrusions. Germany was found to be in breach of the applicant’s right to privacy under the European Convention on Human Rights by denying her a remedy in their courts for intrusive pictures taken while she was shopping[117]. A key development in this case was that aspects of von hannover’s public life were held to be under the scope of article 8 as well as a limited sphere of interaction with others. Under article 8(2) the court crucially pointed out that the right to privacy is not absolute and that in having regard to the “rights of others” included the respect for the freedom of the press. The court observed:

“Although freedom of expression extended to the publication of photographs, this was an area where the protection of the rights and reputation of others took on particular importance. The present case did not concern the dissemination of ideas but of images containing very personal or even intimate information about an individual. Furthermore photographs appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution.”[118]

Thus freedom of expression is, of course, itself qualified and regard must be had to the “respect of the reputation and rights of others”[119]. In applying these tests to the current case the court observed that Princess Caroline’s role was only symbolic and not political and consequently this was not a matter to which the press could fulfil their watchdog role legitimately in contributing to a public debate[120]. The court then went on to hold that in the absence of any legitimate public concern freedom of expression would be more narrowly construed[121]. The court upheld the applicant’s right to privacy.

Campbell[122]

This case has also been remarkably influential in the debate and has been recognised judicially as marking a turning point in the application of these rights and indeed embracing a so-called “new methodology” according to Lord Steyn in In Re s (A Child)[123]. On the facts of this case the supermodel Naomi Campbell, who openly courted publicity, had volunteered false information to the newspaper, insisting that she didn’t take drugs. The newspaper then disclosed details of her addiction and obtained photos of her therapy meetings. The claimant succeeded at first instance but then the Court of Appeal overturned the decision in favour of the newspaper, ruling that publication of the photos was in the public interest. There was then an appeal to the House of Lords where their lordships by a 3-2 decision upheld her right to privacy. Lord Hoffman (dissenting) made the following observation on the unique difficulties of this case:

“The facts are unusual because the plaintiff is a public figure who had made very public false statements about a matter in respect of which even a public figure would ordinarily be entitled to privacy, namely her use of drugs. It was these falsehoods which, as was conceded, made it justifiable, for a newspaper to report the fact that she was addicted. The division of opinion is whether in doing so the newspaper went too far in publishing associated facts about her private life”.[124]

Hoffman went on to point out that the House, although divided on the law, was united on the principles to be taken from the case. A number of factors spurred the House to reason that the claimant’s right to privacy had been breached: the nature of the drug addiction meetings were akin to medical records under the Data Protection Act 1998 and so required a particularly strong justification which was lacking, persons in her position with such difficulties may encounter setbacks if their struggles with drugs are disclosed and what Lord Hope christened as a “margin of appreciation” of journalists in deciding story content had been overriden by content which infringed the claimant’s right to privacy[125]. In In Re s (A Child) the new methodology of Campbell was summarised as thus:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”[126]

Chapter 3: Libel in the UK

A. Libel and the Press: the landscape

The libel laws of the UK are so attractive to international litigants that a tourism industry has grown up around it which Parliament has now sought legislation to address[127]. But why are British libel laws so attractive to foreign companies and individualsThe simple answer is that the UK system is very heavily stacked against freedom of expression as has been very evident recently in the Trafigura affair where British newspapers and media, including the Guardian, the Independent and the BBC, were frightened off the story of Trafigura dumping illegal waste in the Cote-D’ivoire by legal threats made by the media lawyers Carter Ruck and forced to issue apologies and climb-downs[128]. Carter Ruck defends many clients’ private information and of the cases examined for the secondary research below Carter Ruck are prominent as defendants in a large number of cases[129]. Bearing in mind that Carter Ruck even threatened to gag Parliament it becomes clear that the libel laws in this country may be out of control[130] and that the Draft Defamation Bill is recognition of this.

The historical development of libel is traced by Geoffrey Robertson who asserts that the current form of libel can be traced from the Victorian Club: “The idea that large sums of money must be awarded to compensate people for words which ‘tend to lower them in the estimation of right-thinking members of society’ directly derives from an age when social, political and legal life was lived in gentlemen’s clubs in Pall Mall, an age when escutcheons could be blotted and society scandals resolved by writs and slander”[131]. Thus a system emerges which attempts to strike a balance between the right of free speech and the right of reputation with the balance leaning heavily towards the latter. From these humble beginnings the modern test of libel can be easily elicited from the dictum of Lord Atkin: “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”[132].

Libel, as distinct from slander, is actionable without damage[133] and is one of the few surviving civil torts which, under the Supreme Court Act 1981[134], still has a presumption in favour of a jury should one of the parties request it[135] although this presumption will be abolished should the Draft Defamation Bill receive royal assent[136] . It was the president of the Supreme Court, Lord Philips of Worth Matravers who observed:

“Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirableThe issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre-empt issues from going before the jury.”[137]

The consultation criticised the costs, simplification of complex legal concepts and the effect on settlements jury trials have in defamation cases[138]. Furthermore damage would have to be proved under the new draft Bill which would be an astounding departure from the past where up until now there has been a presumption that such defamatory words cause harm without the need for proof[139]. Returning to Lord Atkin’s dictum the construction of words is clearly very important in libel cases and many hearings are simply to decide precisely what words mean[140]. Subject to the claimant being identified as the object of the allegedly defamatory statement[141] and not being part of a group whose collective reputation cannot be protected[142] anyone who has been involved in the publication, from the author down to the distributor or even an Internet Service Provider[143], may be sued in libel. The Defamation Act 1996 put some of the law of libel on a statutory footing and enabled distributors who were unaware of the defamatory material to escape liability by the defence of innocent dissemination[144]. Two final but crucial points remain to be made: the multiple publication rule[145] firstly means that each “publication of a defamation gives rise to a separate cause of action”[146], being every copy of a newspaper or website hit, and secondly it is for the defendant, on a balance of probabilities, to prove one of the following defences[147]:

(a) Fair Comment: This defence actually protects what Robertson describes as “unfair comment”: an opinion, however unfair, that is honestly held on a matter of public interest. The defence only applies to comment and not to fact and is a distinction which led Eady J to err[148].

(b) Justification: If the defendant proves that the statement is true then there can be no action. The defendant need not show that the statement was in the public interest and it cannot be undone by the claimant proving malice[149]. Under the Defamation Act 1952 the defence do not have to prove the truth of each allegation[150].

(c) Absolute and qualified privilege: the Defamation Act 1996 sets out that fair and accurate reports of court proceedings and parliamentary proceedings attract absolute privilege; meaning that they comprise a complete defence regardless of any malice or truth. Qualified privilege, which can be defeated if malice is shown, attaches to all of the circumstances in schedule 1 of the 1996 Act which includes fair and accurate reports of legislatures or international organisations anywhere in the world[151].

(d) Offer of amends: S.2 of the 1996 Act contains this defence which contains three elements: a correction, an apology and compensation to the claimant. If the offer is accepted then the claimant can no longer bring an action of defamation[152] but if the offer is refused then this will form a statutory defence at the trial[153].

(e) The Reynolds duty-interest defence: This defence arose out of a case in the House of Lords[154] where their Lordships extended the defence of qualified privilege to protect the publication of material which the reporter was under a moral or social duty to publish and, as a corollary; the recipients have an interest in receiving. The House of Lords held in Reynolds that the Sunday Times could not benefit from the defence as they had acted unfairly in omitting the explanation of Albert Reynold, the ex-premier of Ireland, from their Irish edition after his resignation in 1994[155]. This defence is most relevant to the aims of this study as it strikes a balance between the protection of reputation and the freedom of expression as Lord Nicholls explains:

“My Lords, this appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation. The context is newspaper discussion of a matter of political importance. Stated in its simplest form, the newspaper’s contention is that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive.”

Lord Nicholls goes on to set out ten factors which the court must have regard to in establishing this defence which include the gravity of the allegation, the nature of the information and its’ source, the urgency of the matter as well as any steps taken to verify the information among others[156]. There have been a lot of problems with this defence, however, and these ten factors were considered to potentially be ten obstacles by the House of Lords[157] with Lord Hoffman taking the unusual step in this case of criticising Eady J, at first instance, for his interpretation of the Reynolds privilege:

“In the hands of a judge hostile to the spirit of Reynolds , they can become ten hurdles at any of which the defence may fail. That is how Eady J treated them. The defence, he said, can be sustained only after “the closest and most rigorous scrutiny” by the application of what he called “Lord Nicholls’s ten tests”.”[158]

Commentators have also remarked on the judicial hostility to Reynolds and the uncertainty it created[159]. Clayton and Tomlinson argued that this uncertainty was a violation of article 10 in itself by restricting the use of the defence although this uncertainty has been approved as being article 10 compliant by the European Court of Human Rights in Strasbourg[160]. Thus the case of Jameel and Others v Wall Street Journal Europe Spr[161] was vital in reaffirming the Reynolds defence and this was followed by the Court of Appeal in Flood v Times Newspapers Ltd[162] where Lord Neuberger went through the classic test propounded by Lord Nicholls[163]. In the case of Jameel Lord Hoffman took the opportunity to highlight the importance of responsible journalism, a concept which Eady J had described as subjective but which Lord Hoffman defined as an objective standard all could relate to. The developments in Jameel were vital in resuscitating a defence which had been reeling in the wrong hands:

“The judgments of the Lords in Jameel strongly re-affirm the importance of Reynolds privilege – or as it may more accurately become known, Reynolds public interest defence – as a cornerstone to protect the press when responsibly informing the public on matters of public interest.”[164]

(f) Malice: As pointed out above, malice can defeat the defences of fair comment in the public interest and qualified privilege as described by Lord Diplock: “The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would have otherwise been entitled.”[165] Thus malice is “dishonest or reckless writing or reporting”[166].

B. Secondary case law research into British newspapers and libel

The “chilling effect” of libel on the media has been well documented[167] and as the authors of this study noted at the time in the introduction this is a “strangely neglected“ topic which deserves research to examine what Robertson has powerfully called “the greatest inhibition upon freedom of speech”[168] in light of recent developments with the ECHR. As noted above, it has been recognised judicially that the press have a unique watchdog role in society which legitimises a democracy and embodies a central pillar of freedom of expression in a democracy[169]. The seminal studies of Barendt et al were conducted in 1997 and research carried out for this dissertation revealed that there has not been its equal in the post human rights libel environment: their study was a one-off before courts were compelled to take into account Convention arguments[170]. Now, in 2011, the environment is especially ripe to undertake some secondary case research of libel actions, especially with the “chilling” effect of libel laws being recognised by the Justice Secretary of the Coalition Government Kenneth Clark and a Draft Defamation Bill in Parliament[171]. Taking into account accusations from the press of the judiciary creating a right to privacy via the back door crystallising in 2008[172] and the case against Dr.Singh brought by the British Chiropractic Association provoking widespread criticism in May 2009[173] it is apt to examine case law in the period from January 2008[174] up until January 2011[175]. A further reason for choosing this period is that Mr.Justice Eady stepped aside as the top libel judge in the UK on 1st October 2010 for Mr.Justice Tugendhat in a move which some commentators cautiously welcomed as being a positive one for freedom of expression[176].

The research is restricted to libel actions in Britain[177] in any court up from first instance Queen’s Division to the Supreme Court[178] and either the case or the appeal is within the period stated above: furthermore, only cases resolved in this period are covered and hearings for summary judgements (except where either party succeeds or the action is struck out) are excluded as often the case will proceed to trial which will be pending at a later date. The results are presented in graphical form and the following will be analysed: whether convention arguments were relevant or not, the frequency of libel actions and the identity of the defendants, the success or failure of the action (from the perspective of the newspaper), the effect of Mr.Justice Eady[179], the defences employed and success of interim injunctions as will be the anchoring action to which the Convention Rights are parasitic. Before embarking upon this research it is wise to recount the findings of Barendt et al:

“The law of libel exercises a chilling effect…because the defences of justification, fair comment, and privilege do not adequately safeguard the interest of the media (and the public) in freedom of expression. The media may, for instance, be unsure whether they could prove the truth of the allegations in court or…they may be concerned by the cost of defending an action bought by a wealthy and persistent litigant.”[180]

(a) Overview of the case law January 2008 – March 2011: victory and defeat

Within the specified period 35[181] libel cases against newspapers reached conclusion. Below is a graph of the cases split into the identity of the defendant along with the result for the defendant.

Comment: These seven main players in the newspaper industry account for 30 of the cases with a further five including various other newspapers as the defendants[182]. Associated Newspapers include the Daily Mail, the Mail on Sunday and the Metro[183]. News Group Newspapers includes the Sun and the News of the World[184]. Express newspapers include the Daily and Sunday Express[185]. The Guardian Media Group includes the Guardian and Observer titles[186] while the Times group owns The Times and the Sunday Times[187] under the control of News International along with the Sun and the News of the World. Finally the last two are self-explanatory: the Independent News & Media Ltd owns the Independent newspaper and the Independent on Sunday[188] and the Telegraph Media Group own the Telegraph and Sunday Telegraph[189].

News International: A possible reading of these results is that in the period above News International (which includes News Group and the Time Group) have been sued for libel the most (9 times) although this is perhaps not surprising given the huge circulations of the Sun, the News of the World, the Time and the Sunday Times together.

Financial Times: One conclusion from the study of Barendt et al[190] is that the Financial Times is very risk averse and was the only newspaper where the “chilling effect” was perceived to be most powerful: “On only one newspaper did a clear indication of the inhibiting effect of libel emerge. This was the Financial Times, one of whose senior editors stated flatly that, as a matter of policy, the paper did not want to get involved in libel actions”[191]. This research confirms the findings of Barendt et al and it is notable that the one case the Financial Times got involved in (and won) was one which went to the European Court of Human Right to fight an order against disclosure of sources in the UK[192].

Tabloids and broadsheets: As for the other newspapers in the UK they seem to be willing to be subject to libel in the inescapable push for stories. There does not seem to be any neat broadsheet/tabloid divide either which perhaps strengthens arguments of a blurring of the boundaries between the two[193] although clearly a paper such as the Express, which lost 100% of the libel claims against it, is more susceptible to losing libel writs with its cocktail of entertainment stories which included writing a story that Ozzy Osbourne’s wife was working him to death[194], intruding into the private grief of Matt Lucas following the death of his ex-partner[195] and reporting that Mohammed George of Eastenders was thrown out of an Eastenders party by security[196]. By way of contrast the Guardian and the Times, both considered upper market broadsheets, have a roughly equal success and loss ratio. There may be a blurring of the boundaries between tabloids and broadsheets but there is still a boundary.

Statements in open court: A striking statistic is that of all 35 cases the press was on the losing side in 20 of them. A common way of conceding defeat is via a statement in open court before trial coupled with an offer to retract, an apology and compensation[197]. Of the cases 16 of them (46%) were conceded in this fashion. Robertson points out, however, that these statements, made under considerable pressure to settle before a potentially crippling trial, “are sometimes more akin to public relations announcements than to records of truth”[198].

Pressure on early settlement: As stated above the costs of a libel action are enormous and conceding a case is often the wisest course of action. Geoffrey Robertson observes: “In the year 2001, a contested fortnight’ defamation trial – including all the applications which would proceed it – could easily cost each side ?750,000, and the loser would have to pay 75% of the winner’s costs, on top of damages which amount to six figures”[199]. So there is obviously a pressure to settle early and this is born out by the disproportionate amount of statements in open court made to settle actions as well as the somewhat traditional means of reaching an out of court settlement just before trial to make the settlement more lucrative[200].

Chilling effect: A further conclusion which might be drawn is that libel laws are stacked against newspapers who must: bear the burden of proof in rebutting the presumption that defamatory statements are false unless proved otherwise[201] and be open to libel writs without any averments of loss or damage to the claimant[202]. The onerous burden on newspapers of proving that a statement is true is one pillar of the “chilling” effect mentioned above and inhibits proper journalism.

(b) Use of convention rights in libel cases against newspapers January 2008 – March 2011

In order to properly establish whether Convention arguments are really influencing libel laws in the UK with respect to newspapers the graph below is a breakdown of cases within the period which have been determined by convention arguments:

Comment: It is fair to say that the cases in the period above, while determined by convention arguments, are not exhaustive in that many of the other cases will have featured convention arguments as a matter of course in litigation such as Lucas[203]where an article published about the claimant’s deceased ex-partner intruded into privacy in a stark manner which prompted the early settlement by statement to the court. With a statement to open court being protected by privilege[204] however, it is exceptionally difficult to divine arguments on Convention rights. As a proportion of the overall cases these numbers are very low, 6 in a total of 35, but the effects of these decisions are more profound and more far-reaching than otherwise[205]. In these cases freedom of expression under article 10 is clearly being favoured in a minority of cases isolated to their facts while the decisions of Mosley and Murray, taken together, have provoked furious criticism that article 8 is being extended in scope[206].

Mosley v News Group Newspapers Ltd[207] : This case was one of Judge Eady’s most high profile cases and ended in a judgement which held that the balance between freedom of expression and privacy lay in the protection of Mr.Mosley’s privacy where a newspaper story made allegations about his sex life[208]. He held that between consenting adults on private property sexual behaviour, however bizarre and unconventional, could attract a reasonable expectation of privacy[209]. The methods used to capture the alleged sordid activities were done by secret film which Eady said engaged the claimant’s article 8 rights: “The clandestine recording of sexual activity on private property engaged the rights protected by art.8 of the Convention, and serious reasons had to exist before interferences with it could be justified”[210]. Eady then made reference to the “ultimate balancing test” propounded by Sedley LJ in Douglas v Hello[211] and observed that: “The judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public interest supposedly being served by it.”[212] The public interest argument put forward by the newspaper was destroyed by the factual dispute over whether there was any Nazi theme at all. Ultimately Justice Eady was unconvinced by the public interest defence put forward and ruled in favour of the claimant. He was sensitive to point out that, despite ruling that article 8 prevailed in this case, “It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.”[213] There are some though who would strongly disagree and point that this decision, taken together with Murray below, is tantamount to a privacy shift towards the protection of the individual in extending the scope of article 8.[214]
Murray v Express Newspapers Plc[215]: This case was concerned with the child of J.K Rowling who appealed against the earlier decision in 2007 to strike out his claim for libel where photographs had been taken of him in a public place and published a national magazine. The judge at first instance, Patten J, had been reluctant to rule that extending article 8 rights to the case at hand would be “on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy”[216]. However Sir Anthony Clarke M.R, along with Laws L.J and Thomas L.J, took the case into that area and went as far as to observe: “[A] child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.”[217] Thus commentators have decried the notion that a breach of privacy can occur in a public place and have observed that the extension of this rule to adults is perhaps only a matter of time given the ambiguity surrounding the fracture between Von Hannover and Campbell with the former giving an expansive interpretation to a reasonable expectation of privacy and the latter qualifying against it certain criteria[218].
Times Newspapers Ltd v United Kingdom[219]: This case was a judgement by the European Court of Human Rights who were asked to rule, in the words of Mora, “…whether the UK’s common law rule that a new cause of action in libel accrues each and every time that a defamatory article remains available on the internet constitutes an unjustifiable and disproportionate restriction on the right to freedom of expression guaranteed by art.10 of the European Convention on Human Rights (ECHR).[220] Thus the central issue was freedom of expression and whether articles retained on a large archive could be susceptible to separate libel actions even after the lapse of many years and even if a libel action had already been brought in respect of the same article in print form. This rule (internet publication) dictates that each time an article is downloaded a fresh cause in libel proceedings accrued. The Court ultimately rejected the complaint, refusing to consider what T had expressly alleged was a “chilling effect” on freedom of expression caused by this unduly onerous rule: “They argued that the internet publication rule breached art.10, pointing out that as a result of the rule newspapers which maintained internet archives were exposed to ceaseless liability for re-publication of the defamatory material. The defendants argued that this would inevitably have a chilling effect on the willingness of newspapers to provide internet archives and would thus limit their freedom of expression.”[221] A crumb of comfort from this case is that the judgement was argued closely to its facts and if an action were to be raised in the future regarding an article from the past stored on an archive which was unknown to the newspaper or archivers then this may well be disproportionate to the complainer’s article 10 rights[222].
Author of a Blog v Times Newspapers Ltd[223]: This case concerned a serving detective constable (the blogger) who wished his identity to be restrained from publication in the Times who had, by investigations, deduced his identity. He faced disciplinary action from the police and was keen to hold onto his anonymity but the Queen’s Bench ultimately held that firstly he had no reasonable expectation of privacy as blogging was a public activity and secondly the sources used by the newspaper did not have the necessary “quality of confidence”[224]. Thus the unmasking of “Night Jack”, as the blogger was known, did not even engage his article 8 rights although it is important again to note that this judgement is tied closely to the facts and the unusual fact that the blogger was a prominent member in the police force was the catalyst for a high degree of public interest: “Reports of the death of anonymous blogging may, however, have been exaggerated.”[225]
Financial Times Ltd v United Kingdom[226]: This case brought by the FT in the European Court of Human Rights concerned a high court order obtained by I, an international drinks company, that certain newspapers would disclose the identity of a source which had leaked the details of a takeover bid in which I would purchase a brewer, SAB. The newspapers appealed but were dismissed by the Court of Appeal and then refused leave to go to the House of Lords and ultimately came to the ECHR to argue that their article 10 rights had been breached by the order compelling them to disclose the identity of anonymous sources. The court went through the article 10 analysis, holding that despite the order did not actively restrain F the potential it had to do so interfered with F’s article 10 rights. On the question on whether the interference was justified under article 10(2) the court emphasised the watchdog role which journalism has in the UK and that disclosure of such sources might inhibit the public interest in exposing wrongdoing and corruption and the court held that: “Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with art.10 unless it is justified by an overriding requirement in the public interest.”[227] The European Court here did have regard to the “chilling” aspects which it had declined to do in Times Newspapers Ltd v United Kingdom[228].
In re Guardian News and Media Ltd and others[229]: This case, in the Supreme Court of the United Kingdom, involved, much like the blogging case above, the publication by a newspaper of a story about an individual whose identity was protected: he was a suspected terrorist and the subject of an anonymity order made by the House of Lords. As was stated: “More particularly, the court is being asked, on the one hand, to give effect to the right of the press to freedom of expression and, on the other, to ensure that the press respect M’s private and family life.”[230] Ultimately the court held that balancing the two rights favoured article 10 and a necessary interference with the claimant’s article 8 rights for, inter alia, the reason that the disclosure of the name would contribute to a “debate of general interest”[231].

Comment: In the period examined, from January 2008 – March 2011, it is clear to see just how much the European Convention on Human Rights, and in particular articles 10 and 8, have permeated the fabric of UK libel law. From a free speech perspective in the UK domestic courts it is clear that the right to privacy is favouring individuals and both Mosley and Murray are incontestable evidence for a broadening of the scope of article 8 potentially into the public sphere for all[232]. The two domestic case s which favoured article 10 over article 8 are tied closely to their facts and it is submitted that their scope is limited: anonymous publishers who are not in such prominent positions nor are discovered by purely public means will enjoy the protection of article 8 in due course[233] and whether the anonymity orders ruling applies to control orders was not discussed by the Supreme Court[234]. Regarding the European Court of Human Rights the message is mixed: in Times Newspapers Ltd v United Kingdom the court chose not to examine the “chilling effect” that the internet publication rule would have on freedom of expression and accordingly dismissed the complaint while in Financial Times Ltd v United Kingdom[235] the “chilling effect” was considered in an order which forced the disclosure of anonymous sources and judgement found in favour of the FT. The domestic courts are clearly favouring privacy and crucially so too is the jurisprudence from Strasbourg:

“It is indisputable that, over the last five or six years, the English courts have been applying the law in a way that has provided ever increasing protection for individuals’ rights to privacy. One only needs to contrast the decisions in Mosley and Murray with the Court of Appeal’s decision in A v B in 2002 to appreciate the extent of the shift in the law that has occurred. However, as Mr Dacre acknowledged in his testimony to the Select Committee,the real cause of this creep towards this “Continental” level of protection for privacy, has been the ever increasing level of protection that the ECtHR is affording to art.8 rights. Far from being an unsanctioned judicial crusade against the press (as Mr Dacre might have us believe), English judges have simply been developing English privacy law in step with the Strasbourg court, as, of course, they are bound to do under the HRA.”[236]

I will christen this shadowing of European jurisprudence, enshrined in s.2(1) of the Human Rights Act 1998, a ‘continental drift towards privacy’ whichBritain, as a signatory to the Convention, can only be swept along with.

(c) Judge Eady January 2008 – March 2011 on all media cases

Eady J has had to shoulder a lot of criticism as the judge previously in charge of the High Court’s libel actions[237]. A question which arises is whether this criticism is justified and whether it is right to single out one judge, as Paul Dacre did, and say that he is introducing a privacy law by the “back door”This research has looked at all of Eady J’s judgements on the media, whether in the UK or not, during the specified period above.

Comment: It is perhaps convenient to single out Eady J’s significant judgements which have been averse to journalists[238] or the scientific community[239] but on reflection of the cases he has handled in the last three years it is evident that it is a fallacy to generalise in saying that he is against the media or single-handedly responsible for judicial activism[240], conspiring to bring a law of privacy in through the back door although it is correct to say two key decisions were devastating to free speech:

Statements: In 32 cases the striking statistic is that 20 were conceded by statement in open court, unreported[241] and in light of Robertson’s comments to the effect that these are more like “public relations exercises” coupled with the privilege which attaches to them, it is difficult to say the real reasons why they were settled. The concession of these cases would at the very least indicate that the laws of libel do not operate in favour of the media and at the most that many were resigned to losing under Justice Eady.
Favourable to press: The most notable case in which the freedom of the press was protected by Eady J was Author of a Blog v Times Newspapers Ltd[242] , a case which protected the article 10 rights of journalists above the article 8 rights of an anonymous blogger by allowing them to publish the identity of the blogger. Given the unusual facts however, with “night jack” being a prominent detective and his identity being of a strong public interest, it has been argued that this decision does not advance the article 10 cause much but is instead an example of applying the iniquitous law meticulously[243]. Other favourable judgements are not remarkable: extending absolute privilege to the reporting of previous court events[244], refusing to grant an interim injunction where neither the interests of justice nor urgency required it[245], striking out a claim where the claimant in a libel action had no reputation to protect[246] and making use of the new offer to make amends procedure under the Defamation Act 1996 s.2 to reduce the compensation a publisher had to pay[247].
Unfavourable judgements: The Mosley case and the Singh case are inescapable in providing an analysis of Mr.Eady’s decision-making in the specified period but it is also inescapable to acknowledge that his legal career as a judge does not turn on two cases. The real scope of the Mosley decision alone, since Singh was overturned on appeal[248], will be known when Mosley is heard before the European Court of Human Rights and challenges the UK privacy laws as affording too little protection to individuals. A defence of prior notification may emerge as will be discussed later but that will be the decision of the European Court and not Justice Eadie. That Eadie was just applying the iniquitous law in the fashion of a legal positivist is a convincing argument and discredits Paul Dacre’s accusations to an extent:

“Lord Falconer, the former Lord Chancellor and one of the architects of the Human Rights Act 1998 (“HRA”), has said that Eady J.: “[I]s unquestionably applying the law as it comes from Parliament, as interpreted by the senior courts, the Court of Appeal and the House of Lords.” This is a view shared by four of the country’s most eminent media law Queen’s Counsel and a number of other senior media lawyers and commentators”.[249]

This argument has some force but the Court of Appeal in Singh certainly didn’t think that Eady J had mechanically applied the law and neither did Lord Hoffman in Jameel[250]. He had erred, in the opinion of Lord Judge in Singh, in two respects: firstly he conflated opinion with fact and secondly treated the former as something which needed to be proved by the defamer and thus placed an impossible burden upon him and by so doing extended libel laws irrationally:

“The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth”.[251]

Chapter 4: France and privacy

A. Declaration of the Rights of Man and the tort of privacy

France’s privacy laws have a heritage which has grown to be formidable despite the blood spilled in the 1789 revolution and the enshrinement of free speech in the Declaration on the Rights of Man and the Citizen:

“No-one is to be disquieted because of his opinions …Free communication of ideas and opinions is one of the most precious rights of man”[252]

These bold proclamations did not stop France developing a law of privacy which, as Delany and Murphy point out, is traditionally seen as being at the opposite end of the spectrum from the UK which has no precise tort of privacy[253]. It soon emerged that France would not tolerate invasions of privacy on a scale that to a lesser extent Britain, and to a much larger extent America, would[254] with “causes of action to protect privacy rights”[255] common since the 19th Century. In terms of the modern position the law of 1970 amended both the Civil and Criminal codes with article 9 of the Civil Code being the cornerstone of a tort of privacy which states in no uncertain terms[256] that “Everyone has the right to respect for his private life.” A crucial distinction is made in France, as Helen Trouille points out, between a person’s private life and the more intimate aspects of a person’s private life with only the latter attracting the most severe sanctions such as the potential seizure of printing presses[257]. There is a certain sphere of protection for individuals which the law keeps sacrosanct[258] and the image of the individual is considered to be their own[259] and even an extension of property[260]. Trouille interestingly points out that Bill Clinton might well have been saved from the Kenneth Starr treatment had America a similar system of protecting privacy. The criminal code was also amended by the Act of 1970 and now provides under Chapter VI and Offences Against Personality:

“A penalty of one year’s imprisonment and a fine of ˆ45,000 is incurred for any wilful violation of the intimacy of the private life of other persons by resorting to any means of:

1° intercepting, recording or transmitting words uttered in confidential or private circumstances, without the consent of their speaker;

2° taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned.

Where the offences referred to by the present article were performed in the sight and with the knowledge of the persons concerned without their objection, although they were in a position to do so, their consent is presumed.”[261]

The inquisitorial procedure of France applies these laws strictly although as Troille observes there a certain element of discretion in the search for the truth[262]. The press are indeed mentioned throughout the criminal civil code in relation to a number of offences with the qualification that the law will punish only those responsible: in bringing certain recordings or documents to the knowledge of third parties[263], misuse of people’s images without their express consent[264], messages bearing a pornographic or violent nature which violates “human dignity” where the message may have been viewed by a child[265], incitement of endangering minors[266] and even incitement to rise up in arms against the state[267]. On top of all these laws is the adoption of the European Convention on Human Rights articles 8 and 10 upon ratification of the Convention in 1974[268] which, much unlike the UK courts their sudden conversion to adopting the balancing approach, have undergone a slow dance of death in which the right to privacy has been gradually eroded until in 2001 the Cour de Cassation found, in a case involving the publication of an image without consent, that the strict application of the image right and the absolutist approach were no longer appropriate in the 21st century where freedom of expression is recognised and the watchdog role of the press in a democracy is beyond dispute:

“this judgment probably marks the last stage in the transformation process which the right over one’s image has been undergoing for several years … and which is resulting in the gradual replacement of the absolutist concept of the right over one’s image by a more balanced approach, more commensurate with the need to keep citizens informed”.[269]

B. France and the UK: a comparison in Human Rights

It has been commented that Britain and France, traditionally so alienated towards each other regarding privacy, are currently evolving towards a common set of principles under the shadow of the ECHR[270]. In France, as noted above, the absolutist approach has been incrementally eroded to reveal a judiciary which has started to use language similar to the European Court of Human Rights in Strasbourg. In a famous case[271] brought by the current president of France, Nicholas Sarkozy, article 9 was invoked in alleging that the newspaper le matin had breached his privacy in publishing a whole series of reports of his apparent marital problems. Incredibly the court at first instance found there was no breach of privacy as there was a legitimate interest in the stories for the people of France. Some of the articles did breach the privacy laws but the difficult question the court faced was how to reconcile the absolutist privacy laws with a President who had clearly put himself in the public eye[272]. The judge in this case acknowledged the influence of Strasbourg jurisprudence on the decision:

“The judge, in assessing the invasion of privacy in that case, noted that the European Court of Human Rights requires a balancing of the privacy rights of the individual with the right to freedom of expression by determining whether the information in question contributes to a debate of public interest, or whether it solely concerns the private life of the individual in question”[273].

The balancing requirement has been transposed into UK law[274] who, in a miracle of adoption given that the Human Rights Act 1998 only came into force 13 years ago, now conduct the very exercise that France is starting to embrace in 30 years after they ratified the Convention. The omission of article 8 from the French cases on ECHR applicable law is striking however and it has been noted that they have not sought to distinguish it from Article 9 of the Civil Code although in truth the differences between the two are marginal. Delany and Murphy argue that it is in the concept of public interest where the UK and France differ markedly, with France being more closely aligned to Strasbourg than the UK: “The general right of the public to be informed is subject to the legitimacy of the information in question”[275].

They further comment that while the concept of reasonable expectation of privacy is used as a threshold test in the UK with caveats including what the person was actually doing etc it is used more expansively in Strasbourg. Whether Franceand the UKare evolving towards a point of common principle may depend upon the extent to which France, like the UKhas done in a continental drift towards privacy[276], will allow itself to be swept up in the full implications of von hannover[277]. Recent developments in France, which have included successfully taking Google to court over mistaken data gathering in order to establish Street View with a fine of 100,000 Euros[278] and introducing a tough new law on privacy in the digital age[279] only confirm that Britain and France remain polar opposites and that, as Berlins comments, although “the door has been left ajar for the French media to start behaving like their British counterparts,” [280] the more likely reality is that the door will be closed soon enough.

Chapter 5: The effect of Articles 8 and 10 and the future

A. Has the Human Rights Act changed the media law landscape?

Articles 8 and 10 of the ECHR, by virtue of the Human Rights Act 1998, which incorporated all of the articles of the ECHR into UK law, have undoubtedly changed the media law landscape. The question is, to what extentBy section 6 of the Act UK courts are, as we have seen, obliged to take into account Convention Rights as public bodies and furthermore obliged to take into account the jurisprudence of Strasbourg under section 2 whenever a question of Convention Rights arises in a UK court. This permeation of the courts by these articles has reinvigorated the right to privacy, unwritten and supplemented by a grotesque menagerie of laws both civil and criminal[281], and the right to freedom of expression, held up by centuries of rhetoric but little substance[282], although to varying and dramatic effects. With respect to libel law and the media the secondary case research conducted in chapter 3 revealed that there is a continental drift towards privacy[283] which, if left unchecked, will rein in what advances of freedom of expression[284] the courts have enabled in the 13 years since 1998. The cases looked at in 2008 – 2011 which advanced freedom of expression were confined to their facts[285] and, with respect, limited in their outlook while the cases on privacy and most notably Murray, could potentially broaden the scope of privacy to all individuals in public life even if taking an innocuous walk down the street. There is undoubtedly confusion over the application of these Convention rights which does not help when assessing their impact as the fracture between Campbell and von hannover demonstrates[286]. Bearing in mind that the law of breach of confidence has evolved into a right of privacy in all but name[287] then it is clear that the impact of articles 10 and 8 can only be analysed with this in mind.

It is the contention of this study that the impact of the two rights has been imbalanced: the continental drift towards privacy has taken the UK with it while leaving unchanged those aspects of UK libel law which render the system so stacked against individuals and curtail freedom of expression: such as the multiple publication rule and the burden of proof being on the defence to prove the truth of the claim. Both of these aspects have been challenged in Strasbourg and both have been dismissed[288] even under the shadow of the Human Rights Act. The influence of Justice Eady has been a factor in moving the goalposts towards privacy, most notably in Singh, but although he has not been applying law like a legal positivist, neither can it truly be said that he has been imposing his own moral judgements upon cases: it is the system which predominantly produces the iniquitous results not the judges. Furthermore, the absence of legal aid is surely an issue under article 6 in providing those involved in libel trials with an “equality of arms”[289] but this has also has been held to be ECHR compliant in McVicar. The British law of libel is a powerful restraint on the press and still exerts a chilling grip in 2011. From the case research conducted 46% of cases settled in 2008-2011 were conceded by statement to open court and under obvious pressure to settle early and avoid not only the crippling costs but also the onerous burden of proof. It wasn’t for nothing that the US Supreme Court recognised long ago that the UK system of libel was incompatible with the first amendment to the US constitution due to the placing of burden on the defender whereas in America the onus is on the defamed party to prove the falsity of the statement[290]

B. The Draft Defamation Bill 2011

Kenneth Clarke’s assertions upon the unveiling of this Bill, that the libel laws of the UK were damaging free debate, have been much welcomed by those seeking reform: “In recent years, though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate and investigative journalism.”[291] Eight key proposals outline the draft bill which include the end of the presumption in favour of jury trials in libel cases[292], abolition of the presumption that a defamatory statement causes harm[293], attempts to limit libel tourism by giving the courts broad discretion to decide whether the courts of England and Wales are the most appropriate jurisdiction[294], abolition of the multiple publication rule and replacement with a single publication rule[295] as well as introducing new defences: “truth” will replace justification, “honest opinion” will replace fair comment and “responsible publication of a matter in the public interest” will codify the rule in Reynolds[296].

It is important to acknowledge that these proposals are exactly that at this stage and one needs only to reflect upon another cornerstone of the freedom of expression, the Freedom of Information Bill, being sabotaged by the Labour Government in their final draft by inserting the notoriously vague “formulation of government policy” to prevent real access and produce what the great liberal journalist Hugo Young described as “one catch-all annihilation of freedom of information”[297] Despite this the proposals have been attacked as not going far enough in reforming libel laws with one notable omission being a limitation on powerful corporate entities’ ability to sue individuals[298]. This is really another side of article 6 and the equality of arms debate, inspired by Mcdonalds suing two environmentalists in the 1990s[299].

C. The future: Max Mosley and prior notification

Max Mosley, emboldened by his triumph over the News of the World, has lodged a petition with the European Court of Human Rights at Strasbourg to challenge UK law regarding the lodging of interim injunctions. He argues that in the absence of a system of “prior notification”, there is no opportunity for those in the potentially defamatory story to restrain publication and thus this is a breach of his article 8 rights[300] under which the state is under a positive obligation to safeguard the private lives of its’ citizens. The proposed system would allow the individual at the heart of the story a grace period in which to reflect upon whether an interim injunction should be sought and if the story is deemed not to be permissible then publication should be restrained until trial[301]. The applicability of this is obvious to Mosley who ultimately had to resign from his position following the story which played on his father’s fascist roots and exploited them with some creative guesswork[302]. But would this justify a system which militates against the rule against prior restrain in UK law[303]The Mosley case is certainly extreme but does not justify such a curtailment in freedom of expression and surely such a system would be immediately upon to a counterattack based upon article 10The Supreme Court of America has said:

“Any system of prior restraint on expression comes to this court bearing a heavy presumption against its constitutional validity. The only effective restraint upon executive policy and power in the areas of national defence and international affairs may be an enlightened citizenry – informed and critical public opinion which alone can here protect the values of democratic government. For without an informed and free press there cannot be an enlightened people”.

Unfortunately Britain doesn’t have a constitution but effectively created this rule in the Duke of Wellington’ famous phrase “publish and be damned”[304] but have long recognised an exception in the form of an interim injunction in an action for breach of confidence which is now under the Human Rights Act: “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”[305] If Mosley were to win in Strasbourg, and this is quite unlikely, then one of Britain’s most telling contributions to free speech, taken up and adopted in America to an honourable extent, would be irrevocably lost and the freedom of speech tradition further undermined.

Chapter 6: Recommendations

A. The recommendations of Kenneth Clarke

All of the recommendations contained in the Draft Defamation Bill are welcome and no single clause should be dropped during the consultation. Of particular importance is the requirement to demonstrate harm which single-handedly dispatches of a rule which produced a ridiculous distinction between slander and libel where only the latter, where the statement complained of is in writing or in some permanent form, could sue even though they have suffered no financial loss while the former would have to be proved in monetary terms[306]. The extension of this to libel will prevent many needless actions and free up the courts. Another noteworthy advance is the abolition of the presumption for jury trials (though the judge will still retain a discretion) in libel cases which somewhat destroys Dicey’s age old adage that a jury trial is the guarantor of free speech[307]. Codifying the defences of fair comment, justification and the Reynolds defence is also welcome to avoid confusion given that the Times itself tried to challenge Reynolds’ itself in Strasbourg[308] and give a statutory footing to journalist’s often underused defences.

B. Reforming self-regulation

The Press Complaints Commission is widely recognised to be without teeth[309] in enforcing disputes against newspapers and self-regulation, although the better option than a law of privacy, needs to be reformed in light of it receiving several thousand complaints per year but only adjudicating on a select number[310] and even then only able to request corrections with no question of costs, expenses or compensation. The PCC is still seen as being in bed with the very journalists it purports, weakly, to hold to account. Although the PCC code has been given indirect legal effect by s.12(4) of the Human Rights Act, the regulation of the press should either go to OFCOM, whose objectivity would improve, or remain in the PCC albeit within a more independent framework that has the power to monitor compliance and enforce compensation: a quasi-judicial body. As such a body they would be, under s.6, compelled to take into account convention arguments as well under Article 8 and Article 10.

C. Article 6 and the equality of arms: legal aid and costs

It is perhaps stating the obvious that libel law is seen as a rich man’s preserve with the top QC’s costing around ?400 an hour and cases being well in excess of ?750,000 for each side regardless of victory or defeat. The level of legal fees deters all but wealthiest or principled and can only serve as a curb on free speech. As can be seen from the secondary research, 46% of cases against the press were conceded by statement to open court which demonstrates the inability of newspapers to fight for what they believe in. The inhibitive costs will be reduced by the presumption in favour of a jury trial being abolished but more could be done to provide access to justice: legal aid. If legal aid, perhaps unlikely in the current economic climate, were to be extended to certain individuals and organisations then perhaps the bankrupting of individuals and the closure of small businesses, such as happened to Living Marxism in 1999 when faced with a ?350,000 libel compensation[311], would be avoided and the principle behind article 6 would be reinforced. To prevent vexatious litigants from abusing this process there could be a simple test to establish the merits of the claim prior to the award of any legal aid. The complexities of the law are also contributing and any measures which reduce the amount of pre-trial hearings to deduce the minute meanings of words would be welcomed.

D. Switching the burden of proof

One matter which is not addressed at all in the Draft Bill is the burden of proof which rests on the defender. Quite simply this burden should be switched to the American system where it is up to the defamed person to prove the falsity of the alleged statement. By placing a burden on the defendant to prove what they are saying puts an onerous exercise of calling witnesses (which increases costs) onto the party which is least able to verify the exact truth of the matter: the knowledge of the statement is surely within the exclusive and undisputed mind of the claimant and accordingly the burden of proof should reflect this.

E. Lessons from France

France maintains an interesting distinction between two spheres of privacy which British libel law could learn a lot from. The inner sphere, intimate relations, attracts heavy punishment when breached and would cover many of the stories which developed the law so far including Mosley and which have been the subject of vociferous criticism. If the media knew that such intimate parts of a person’s life were out of bounds then perhaps the investigative journalism on real issues of public interest would return and the watchdog role of journalism would be further legitimised instead of being undermined by prurient sex scandals. Either way, a definition of what is private and what is not is vital after the decision of Murray and private inroads into public space.

Conclusion

In conclusion the effect that both Article 8 and Article 10 have had on the British legal landscape and the media has been profound but not as much as some would argue. Neither right stepped into a vacuum and it can be argued that the law of breach of confidence was already a right of privacy in all but name long before Britain adopted Convention Rights in the Human Rights Act 1998. Freedom of speech, on the other hand, was a powerful rhetorical tool which has had too much style and too little substance to be considered to be dominant even before the Human Rights Act came along. However, rather than redress this historical imbalance which has curiously been created by the lack of a constitution and a dizzying array of laws that encroach upon privacy, the HRA has swept Britain along with a continental drift towards privacy which has seen the private sphere enter the public and the role of investigative journalism undermined by the iniquitous libel laws which refuse to move on from a Victorian era when reputations were guarded fiercely. No one judge has undermined the system: it is the system itself which, when the Defamation Act of 2012 hopefully passes, will hopefully take a step towards true equality between Article 10 and Article 8 and compliant with Article 6 in reducing the horrendous costs and providing legal aid. Neither right deserves to be in the ascendant but the rhetoric up to now has been misleading us all: privacy is on the march across Europe and Britain must for now march in step. The press have committed the gravest sins of all but are also at the vanguard of free speech and have enriched the UK. It should always be remembered that one of the greatest moments in the history of investigative journalism, the Times investigation of thalidomide which won compensation through the law for endless victims for the parents and families of babies born with deformities after taking the drug, was obtained through “chequebook journalism”[312].

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ARTICLE 226-1 (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

BBC News 21st March 2011 ‘ France fines Google over Street View Data Blunder’ retrieved on 2nd April 2011 and accessed at: http://www.bbc.co.uk/news/technology-12809076

Berlins, Marcel (2008) ‘Publicity-mad Sarkozy leads fight for privacy’ in Guardian online accessed 9th April 2011 and available from: http://www.guardian.co.uk/world/2008/feb/04/france.comment

Plunkett, John (2011) ‘Government unveils libel law reforms’ from Guardian online retrieved 28th March 2011 and available from: http://www.guardian.co.uk/media/2011/mar/15/libel-law-reforms

Rozenberg, Joshua (2011) ‘The Libel Reforms are a Step in the Right Direction: But do they go far enough?’ Guardian online retrieved on 1st April 2011 and available from: http://www.guardian.co.uk/law/2011/mar/15/libel-reforms-step-campaigners-satisfied

APPENDIX A:

Every libel action involving a newspaper between January 2008 and March 2011. The analysis of cases was obtained from www.westlaw.co.uk

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1. Jeynes v News Magazines Ltd Court of Appeal (Civil Division) reported on 31 January 2008, [2008] EWCA Civ 130;

Case Analysis

An issue of “love it!” magazine had featured on its front cover a photograph of J together with the words “BB’s Lisa ‘The Geezer’ – My fake boobs fell out on date with James Hewitt!”. That was a trailer for an article within the magazine concerning J’s account of her date. A newspaper later carried an advertisement for the magazine showing its front cover. J issued a libel action against N, who were the publishers of the magazine and newspaper respectively. She contended that the words on the front cover bore the natural and ordinary, alternatively the inferential, meaning that she was either a man posing as a woman, or that she was a transgendered or transsexual person who had been born a man but had become a woman.(Unsuccessful appeal against claim being struck out at first instance).

Judge: Sir Anthony Clarke, M.R.; Tuckey, L.J.; Jacob, L.J.

Counsel: For the appellant: Adrian Davies, S Hastie. For the respondents: Andrew Caldecott QC, Alexandra Marzec.

Solicitor: For the appellant: Osmond & Osmond. For the respondents: Farrer & Co.

2. Shaffer v Associated Newspapers Ltd Unreported Queen’s Bench Division

13 February 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the administration of the estate of the claimant’s brother.

Abstract: A statement in open court was made in a libel action brought by the claimant (S) against the defendant newspaper publisher (N). N had published an article wrongly alleging that S had thwarted his late brother’s testamentary wishes resulting in his nieces being improperly deprived of their inheritance. In fact, S had acted at all times on legal advice and in accordance with the provisions of his late brother’s will and had administered the estate properly. N acknowledged that the allegations were untrue and agreed to withdraw publicly the false allegations and apologise to S for the hurt and distress caused by the publication.

Judge: Eady, J.

Counsel: For the claimant: Hanna Basha. For the defendant: Nick Braithwaite.

3. Mosley v News Group Newspapers Ltd [Convention rights arguments]

Queen’s Bench Division [application for interim injunction] 09 April 2008

[2008] EWHC 687 (QB);

Case Analysis

Application refused Video footage of a known figure engaging in sexual activities with prostitutes had entered the public domain and therefore, although the material was intrusive and demeaning and there was no legitimate interest in its further publication, an injunction prohibiting its further publication on a newspaper website was not appropriate and would serve no practical purpose. [reasonable expectation of privacy]

Judge: Eady, J.

Counsel: For the applicant: James Price QC, David Sherborne. For the respondent: Gavin Millar QC, Anthony Hudson.

Solicitor: For the applicant: Steeles Law. For the respondent: Farrer & Co.

4. Curistan v Times Newspapers Ltd Court of Appeal (Civil Division) [appeal]

30 April 2008

Case Analysis

Summary: In the circumstances passages in a newspaper article, which were a fair and accurate report of proceedings in Parliament, were protected by qualified privilege and did not lose that privilege by reason of the comments added by the newspaper to those passages. The meaning that the newspaper had to defend was the meaning to be attached to those portions of the article that were additional to those protected by privilege, and that meaning was that there were grounds to suspect that the allegations made were true rather than that they were true. [appeal refused –

The appellant (C) appealed against a decision ( [2007] EWHC 926 (QB), [2008] 1 W.L.R. 126 ) on a trial of preliminary issues that passages in an allegedly defamatory article in the newspaper published by the respondent (T) were protected by qualified privilege, and T cross-appealed against the judge’s finding on the article’s defamatory meaning

Judge: Lord Philips, L.C.J.; Laws, L.J.; Arden, L.J.

Counsel: For the appellant: Richard Parkes QC, Matthew Nicklin. For the respondent: Victoria Sharp QC, Alexandra Marzec.

Solicitor: For the appellant: Schillings. For the respondent: In-house solicitor.

5. Murray v Express Newspapers Plc [Convention right argument] [appeal] Also known as: Murray v Big Pictures (UK) Ltd Court of Appeal (Civil Division)

07 May 2008 [2008] EWCA Civ 446; [2009] Ch. 481; [2008] 3 W.L.R. 1360;

Case Analysis

Summary: Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child’s behalf.

Abstract: The appellant (M), acting through his parents, appealed against the striking out ( [2007] EWHC 1908 (Ch), [2007] E.C.D.R. 20 ) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art.8 . M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that even if the decision in Von Hannover v Germany (59320/00) [2004] E.M.L.R. 21 had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 , he was bound to follow Campbell in preference. The issue was whether the judge was right so to have concluded.

Appeal allowed. (1) In deciding whether there had been an infringement of art.8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which, and the purposes for which, the information reached the hands of the publisher. If there was found to be a reasonable expectation of privacy, then the second question was how the balance should be struck as between the claimant’s right to privacy and the publisher’s right to publish. At that stage, the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant, Campbell followed and Von Hannover considered. (2) It was at least arguable that M had a reasonable expectation of privacy. The fact that he was a child had greater significance than had been attributed to it by the judge. Although the Press Complaints Commission had ruled that the mere publication of a child’s image could not breach its Editors’ Code of Practice when taken in a public place and unaccompanied by private details that might embarrass the child, everything depended on the circumstances. It was at least arguable that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him, and the same was true of M, especially since the photograph would not have been taken or published had he not been the son of a well-known author. In reaching his decision, the judge had relied on the decision in Hosking v Runting [2005] 1 N.Z.L.R. 1 for a significant part of his reasoning. However, that decision was not a sufficient reason to hold that M could not show a reasonable expectation of privacy at trial, Hosking considered. (3) There may well be circumstances, even after Hannover , in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case. It was not possible to draw a distinction between activities that were part of a person’s private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer’s to buy milk. Moreover, it was not necessarily the case that such routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances. Subject to the facts of the case, the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf. The judge had therefore been wrong to strike out M’s claim. M had an arguable case and his parents were to be permitted to take the claim to trial on his behalf.

Judge: Sir Anthony Clarke, M.R.; Laws, L.J.; Thomas, L.J.

Counsel: For the appellant: Richard Spearman QC, Godwin Busuttil. For the respondent: Mark Warby QC, Jonathan Barnes.

Solicitor: For the appellant: Schillings. For the respondent: Solomon Taylor & Shaw.

6. Osbourne v Express Newspapers Unreported Queen’s Bench Division

05 June 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article concerning a musician.

Abstract: A statement in open court was made in a libel action brought by the claimant musician (O) against the defendant newspaper publishers (E). O had hosted a prestigious music awards ceremony with his wife and two children. The following day, E published an article falsely alleging that O had thrown the ceremony into chaos after he suffered a health scare. The article falsely reported that as a result of his health scare, O had to be ferried around the ceremony in an electric buggy. The article was republished on E’s website, where it was also falsely claimed that O and his wife sat on thrones when they were not speaking as O insisted on having a place to sit in case he got tired. In fact, O was fit and well at the time of the awards and none of the allegations were true. E accepted that the allegations were untrue and ought never to have been published. E agreed to set the record straight publicly, retract the libels and undertake never to republish the libels. E agreed to publish an apology and pay O substantial undisclosed damages and his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Kate Wilson.

Solicitor: For the claimant: Schillings

7. Farage v Times Newspapers unreported Queen’s Bench Division

11 June 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant politician (F) against the defendant newspapers (T). T had published an article wrongly alleging that F had employed his son (Y) to work as his assistant, paying him out of taxpayers’ money whilst Y was in full-time education. T accepted that there was in fact no foundation to the allegation and agreed to publish an apology in the Sunday Times. T undertook not to repeat the allegation and agreed to pay F damages and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Andrew Stephenson. For the defendant: Gillian Phillips.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

8. Murat v Associated Newspapers Ltd Queen’s Bench Division

16 July 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a number of articles regarding the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimants (R) a businessman, (M) a translator and (S) an IT consultant against the defendant publishers. The defendants had published numerous articles in their respective newspapers and websites covering the Madeleine McCann story, wrongly alleging that R, M and S all played a part in the abduction. In relation to R, the defendants wrongly suggested in numerous articles that not only had R abducted Madeleine, but that he had lied to the police, had obstructed their investigation and had paedophilic tendencies. The defendants wrongly alleged that M had been cast out of her church, that she had lied to the police about her whereabouts when Madeleine was abducted and that she was part of a paedophile ring. It was also alleged in some of the papers that S, along with R, had been involved in the abduction of Madeleine, that S had convictions for sex offences and was interested in child pornography. In fact, R had helped the police with their investigations by becoming a volunteer translator, M was never suspected or accused of any involvement with the abduction of Madeleine McCann and S was not guilty of any sexual misconduct and had no criminal convictions. The defendants accepted that none of the claimants had played any part whatsoever in Madeleine’s abduction, and that the allegations made were wholly false. They withdrew the statements from the newspapers’ websites. The defendants apologised for the false defamatory allegations published, agreed to publish apologies and paid substantial damages to the claimants as well as covering their legal costs.

Judge: Eady, J.

Solicitor: For the claimant: Simons Muirhead & Burton. For the defendants: Reynolds Porter Chamberlain LLP.

9. Ewing v News International Ltd Queen’s Bench Division 22 July 2008

[2008] EWHC 1390 (QB);

Case Analysis:

Vexatious litigant and s.42(3) of the Supreme court act 1981] Application refused. (1) The test under s.42(3) should be exercised with due care and caution or carefully and sparingly Becker v Teale [1971] 1 W.L.R. 1475 and Attorney General v Jones (Marcus David) [1990] 1 W.L.R. 859 applied. An applicant had to show that there were reasonable grounds for bringing a claim and, when considering whether there were reasonable grounds, the court normally had to consider whether or not that claim had a real prospect of success.

10. Tesco Stores Ltd v Guardian News & Media Ltd Queen’s Bench Division

29 July 2008 [2009] E.M.L.R. 5; (2008) 105(34) L.S.G. 24; (2008) 152(34) S.J.L.B. 29

Case Analysis:

Summary: It was not possible for a claimant indefinitely to elect neither to accept nor to reject an offer of amends made in defamation proceedings. To do so would undermine the statutory regime under the Defamation Act 1996 and make a nonsense of Parliament’s intention in introducing the offer of amends defence.

Abstract: The court was required to determine whether the claimant supermarket chain (T) was entitled neither to accept nor to reject an offer of amends proffered by the respondent newspaper (G) following G’s publication of defamatory statements. G had published allegations that T had engaged in a scheme designed to avoid corporation tax, and T instigated a libel action against G and a claim for malicious falsehood. G admitted the falsehood of its principal allegation, namely that the particular scheme in question did not involve the avoidance of corporation tax. G also admitted that the meanings pleaded by T were defamatory. G published a retraction of its principal allegation, stating that T had not been involved in the avoidance of corporation tax but rather an avoidance of stamp duty land tax. G served its defence 21 minutes after making an offer of amends pursuant to the Defamation Act 1996 s.2. T neither accepted nor rejected that offer. The issue for determination was whether T should be compelled to elect either to accept or to reject the offer of amends, and whether its malicious falsehood claim should be stayed as serving no useful purpose. G submitted that there was no head of damages recoverable in malicious falsehood that T could not recover in the defamation claim and that the malicious falsehood claim was only extant for tactical reasons. T argued that, even if it accepted the offer of amends and obtained an apology and damages under the statutory scheme, it could go on and obtain a decision on the malicious falsehood issue so as to have the court’s finding in relation to malice.

Judgment accordingly. (1) The philosophy underlying Parliament’s introduction of the offer of amends regime contained in the Defamation Act 1996 was to enable parties in defamation proceedings, or even prior to the issue of proceedings, to achieve a relatively speedy and inexpensive disposal of a complaint of injury of reputation where the defendant was prepared to acknowledge that it had published defamatory allegations that were essentially inaccurate. It would make a nonsense of that underlying policy if it were possible for a claimant to go ahead with proving malice whilst keeping an offer of amends available until the conclusion, or throughout the duration, of the trial, Express Newspapers Plc v News (UK) Ltd [1990] 1 W.L.R. 1320 applied. T had to accept the offer of amends or else take on the risk of overcoming the statutory defence by proving malice at trial. Furthermore, there was no legitimate reason why T should be allowed to pursue a claim for malicious falsehood. It would not afford any substantive remedy in respect of reputation, and any damages to which T might be entitled as a result of G’s publications could be recovered in defamation, Burstein v Times Newspapers Ltd [2001] 1 W.L.R. 579, Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 W.L.R. 3469 and Warren v Random House Group Ltd [2008] EWCA Civ 834, [2009] Q.B. 600 considered. Accordingly, the malicious falsehood claim would be stayed. (2) Finally, G would be allowed to amend its pleadings to include a proposal that T had been avoiding stamp duty land tax as opposed to corporation tax, Birchwood Homes Ltd v Robertson [2003] EWHC 293 (QB) considered.

Judge: Eady, J.

Counsel: For the claimant: A Page QC, J Rushbrooke. For the defendant: A Caldecott QC, C Evans.

11. John v Guardian News and Media Ltd Queen’s Bench Division

12 December 2008 [2008] EWHC 3066 (QB); Official Transcript

Case Analysis

Summary: In context, the words complained of in a libel action were not capable of bearing the meaning attached to them by the claimant. No reasonable reader of the publication would have understood the words complained of as containing serious allegations about the claimant and his charitable donations.

Abstract: The applicant media corporation (G) applied to strike out a libel claim brought against it by the respondent musician (J). G had published what purported to be an extract of J’s diary in a supplemental newspaper magazine called the “Weekend”. The extract included statements of purported fact and opinion that were attributed to J. In particular, the extract referred to an annual ball that was hosted by J for the purpose of raising money for a charity (C). The article stated that once the costs of hosting the event had been deducted from the proceeds, any remaining money was given to C. J issued a libel claim against G on the basis that (i) by their natural and ordinary meaning, the words complained of suggested that J was insincere about his commitment to C’s aims and objectives; (ii) by way of innuendo the same words also suggested that he dishonestly or falsely claimed that all money raised during the event went to C, when only the balance of money raised at the event, subtracting the costs of hosting the event, was made available to C. G submitted that no reasonable reader would have sensibly thought that the words complained of meant that the money raised by the ball was used to cover the costs of the event and that, thereafter, only a small proportion of the remaining money was made available for charitable objectives.

Appeal allowed. The designation of the supplement, in which the words complained of were contained, assisted in understanding the extent to which the words could be understood to be factual or not. On the basis that the “Weekend” supplement was not part of the news section of the paper, the words complained of would not have been understood by a reasonable reader as containing a serious allegation of fact. If such an allegation was being made, a reasonable reader would have expected it to have been made without humour and to have been written explicitly in the part of the newspaper devoted to news. Unless a reader was exceptionally suspicious or naive, he would be bound to understand that the words complained of were not to be understood as a factual statement as to how the money raised at the ball was spent. Thus, the words complained of were not capable of bearing the meanings attributed to them by J and consequently, his claim fell to be struck out. Furthermore, J’s associated plea of malice fell to be struck out since it was dependent on the court endorsing J’s view of the meaning behind the words complained of.

Judge: Tugendhat, J.

Counsel: For the claimant: William McCormick. For the defendant: Gavin Millar QC, Anthony Hudson.

Solicitor: For the claimant: Carter Ruck. For the defendant: Isobel Griffiths.

12. Osbourne v News Group Newspapers Ltd Queen’s Bench Division

15 January 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (O), a successful music manager, promoter and television presenter, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website wrongly suggesting that the claimant had put her musician husband’s life at risk by working him too hard at the cost of his health. N also falsely suggested her motivation for doing so was to fund her exorbitant spending. The allegations were entirely without foundation. N apologised for publishing the false and defamatory allegations and offered to publish an apology. N also agreed to pay O substantial damages and her legal costs. Leave to withdraw the record was requested.

13. Marshall v Express Newspapers Queen’s Bench Division 29 January 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), an 18 year old student, against the defendant newspaper publisher (N). N had published articles falsely alleging that the day after the conviction of a man (B) for the murder of an 11 year old boy, M had publicly praised him in a television interview as a hero. The articles also wrongly alleged that M was B’s girlfriend, was a member of a criminal gang and that she had declared a pledge of loyalty to the gang following B’s conviction. In fact M did not make any public statement following B’s conviction, did not regard him as a hero and had not made such a claim or sought publicity for it in the aftermath of B’s conviction for such an appalling murder. M was not nor had ever been a member of a criminal gang and had never been B’s girlfriend. N agreed to pay M a substantial sum in damages which she intended to donate to the Rhys Jones Memorial Trust. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Helen Morris. For the defendant: Kate Wilson.

14. Raulynaitis v News Group Newspapers Ltd Queen’s Bench Division

26 February 2009 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (R) against the defendant newspaper publishers (N). N had published an article in its newspaper and to its website wrongly alleging that R had ordered passengers off of his bus in order for him to pray. The article suggested that R was arrogant, unprofessional and contemptuous of the passengers. The article further alleged that the passengers later refused to re-board the bus as they spotted a rucksack and feared R was a fanatic. In fact, R had prayed on the bus during his statutory break and no passenger was inconvenienced. N accepted the allegations were false and published an apology. N paid R a sum in damages and covered his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Stephen Loughrey. For the defendant: Patrick Callaghan.

Solicitor: For the claimant: Carter-Ruck.

15.Hudson v Associated Newspapers Ltd Queen’s Bench Division

04 March 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication and broadcast of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (H) against the defendant newspaper publishers and broadcaster (N). N had published articles in their newspapers, on their websites and broadcast items that made various allegations relating to the 16th birthday party of H’s daughter at her home. The overall impression was that H allegedly had failed to exercise proper parental supervision over the party. In fact, all the allegations were false. There was no basis to accuse H of failing to exercise proper supervision. N apologised for publishing the false allegations and had published apologies in their respective newspapers or on their websites. N also agreed to pay H substantial damages and her legal costs. Leave to withdraw the record was requested.

Judge: Sir Charles Gray

16. Times Newspapers Ltd v United Kingdom (3002/03) Times Newspapers Ltd v United Kingdom (23676/03) European Court of Human Rights 10 March 2009 [2009] E.M.L.R. 14; Times, March 11, 2009;

Case Analysis:

Summary: Where a newspaper had published, in its print publication, an allegedly defamatory article which, during the libel action, was available to readers on the newspaper’s website, it was not a disproportionate interference with the right to freedom of expression to require that the newspaper publish an appropriate qualification to the internet version of the article. [convention arguments]

[multiple publication rule – each new reproduction was a fresh libel]

17. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division

16 June 2009 [2009] EWHC 1358 (QB); [2009] E.M.L.R. 22; (2009) 106(26) L.S.G. 18; (2009) 159 N.L.J. 924; (2009) 153(24) S.J.L.B. 33;

Case Analysis:

The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity. [convention arguments]

18. Jones v Telegraph Media Group Ltd Queen’s Bench Division

23 June 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (J) against the defendant newspaper publisher (T). J was the United Kingdom’s most senior intelligence expert on weapons of mass destruction in the period leading up to the Iraq war. T had published an article in its newspaper and on its website which falsely alleged that J had leaked information to the media before the Iraq war. In fact, J had been singled out by the Chairman of the House of Commons Select Committee investigating leaks in Whitehall as someone who did not, and would not, leak information. T accepted that the allegation was untrue and published an apology to J as well as agreeing to pay damages and J’s legal costs.

Judge: Eady, J.

Counsel: For the claimant: Luke Staiano.

Solicitor: For the claimant: Carter-Ruck.

19. Zuma v Guardian News & Media Ltd Queen’s Bench Division

30 July 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (Z) against the defendant newspaper publisher (G). Z was the President of South Africa. G had published an article in an edition of its newspaper and on its website which falsely alleged that Z was guilty of various crimes. Z issued libel proceedings and G subsequently published an apology accepting that Z was acquitted of one of the offences and the others were dropped by the South African National Prosecuting Authority. Z did not consider that the apology adequately dealt with his complaint. The apology was said to be published far less prominently in the newspaper and on the website than the article complained of. Additionally, the apology was initially unavailable online when a search was made using Z’s name. G then made an offer of amends. In light of the fact that G was willing to pay very substantial damages to Z and it had publically apologised to Z, Z considered his reputation in the matter had been entirely vindicated and he was prepared not to proceed any further in his action against G. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Jenny Afia.

Solicitor: For the claimant: Schillings.

20 .Ecclestone v Telegraph Media Group Ltd Queen’s Bench Division

06 November 2009 [2009] EWHC 2779 (QB);

Case Analysis:

Summary: An item in a newspaper diary column, which quoted the claimant as saying that she was not a vegetarian and “did not have much time for people like the McCartneys and Annie Lennox”, was not capable of bearing the defamatory meaning that she contended it did. The ordinary reasonable reader would see the words as nothing more than the expression of a permissible view.

Abstract: The applicant newspaper publisher (T) applied for a ruling that the words complained of by the respondent fashion designer (E) in her libel action were not capable of being defamatory. T published an item in a diary column about E, in which she was quoted as having said, “I am not a veggie and I don’t have much time for people like the McCartneys and Annie Lennox.” She denied saying that, and claimed that in their natural and ordinary or inferential meaning the words meant and were understood to mean that she was disrespectful and dismissive of the McCartneys and Annie Lennox to the point of being willing to disparage them publicly for promoting vegetarianism. T submitted that the real focus of E’s complaint, the phrase “haven’t much time for”, was commonly used and a perfectly acceptable way of expressing a difference of opinion or preference. If the opinion of the speaker was acceptable the phrase did not necessarily impute a dislike or disparagement of a person holding a contrary view. T submitted that even if the phrase connoted such an imputation, that in itself would not make the item defamatory. [action struck out]

21. Financial Times Ltd v United Kingdom (821/03) European Court of Human Rights 15 December 2009 [2010] E.M.L.R. 21; (2010) 50 E.H.R.R. 46; 28 B.H.R.C. 616; Times, December 16, 2009

Case Analysis:

Summary: An order requiring that certain newspapers disclose to a brewing company documents that could lead to the identification of journalistic sources who had leaked information about a takeover bid violated the European Convention on Human Rights 1950 art.10. The public interest in the protection of journalistic sources was not outweighed by the company’s arguments that the institution of proceedings against the sources would eliminate the threat of damage by any future dissemination of confidential information and would compensate it for past breaches of confidence.

[convention arguments] success of article 10 here

22. Guardian News & Media Ltd, Re Also known as: HM Treasury v Youssef

al-Ghabra v HM Treasury Ahmed v HM Treasury Supreme Court

27 January 2010 [2010] UKSC 1; [2010] 2 A.C. 697; [2010] 2 W.L.R. 325; [2010] 2 All E.R. 799; [2010] E.M.L.R. 15; [2010] H.R.L.R. 14; [2010] U.K.H.R.R. 181; (2010) 107(6) L.S.G. 18; (2010) 154(4) S.J.L.B. 29; [2010] N.P.C. 8; Times, January 28, 2010;

Case Analysis:

In the circumstances, there was a powerful general public interest in identifying M which justified curtailment of his art 8 rights. M’s argument really amounted to saying that the press should be prevented from printing what was true for fear that some of those reading the reports might misinterpret them and act inappropriately. [Convention arguments]

23. Ali v Associated Newspapers Ltd Queen’s Bench Division

27 January 2010 [2010] EWHC 100 (QB);

Case Analysis:

Summary: Summary judgment was granted to a defendant newspaper publisher in a claim for libel on the basis of justification.

Abstract: The applicant newspaper publisher (N) sought summary judgment on a libel claim brought by the respondent (X). X was a civil servant employed by the Treasury. N published the fact that X had been suspended from his employment following the posting of remarks on his personal blog. Passages from X’s blog were published by N. X pleaded that the publications had the defamatory meaning that X was a hardline Islamic extremist who supported the killing of British and American soldiers in Iraq by fellow Muslims as justified. N submitted that X’s claim was bound to fail as X’s observations on his blog advocated a form of jihad which could only be understood as justifying the killing of British and American troops in Iraq. N argued that a jury would be perverse not to hold that the blogs in question justified the inference against X. X submitted that he should be permitted to adduce evidence of his background and other blogs to demonstrate that he was not hardline or extremist.

Application granted. It was necessary to have in mind the role of a jury not only in coming to conclusions of primary fact but also in drawing any appropriate inferences, Bataille v Newland [2002] EWHC 1692 (QB) applied. On reflection, N’s submissions were correct on the very unusual facts in the instant case. X had taken the position that the killing of American and British troops in Iraq would be justified by his interpretation of jihad. As it was a matter of construing plain language in its overall context, it would be perverse to take a contrary view. In those circumstances the claim could legitimately be categorised as bound to fail. Nothing would be gained by investigating X’s other blogs or his background. Such an exercise could not change or qualify the plain meaning of the blog in question.

Judge: Eady, J.

24. Curran v Scottish Daily Record and Sunday Mail Ltd Court of Session (Outer House) 26 March 2010 [2010] CSOH 44; 2010 S.L.T. 377; 2010 G.W.D. 11-191; Official Transcript

Case Analysis:

Summary: A newspaper article did not amount to defamation where, having regard to its timing and context, its contents could be characterised as fair retort, and qualified privilege therefore attached.

Abstract: A member of the Scottish Parliament (C) sought damages from a newspaper company (D) in respect of alleged defamatory comments contained within articles based on interviews with another member of the Scottish Parliament (S) who had previously belonged to the same political party as C. C and other MSPs had released a press statement immediately following S’s success in a defamation action against a newspaper group, stating that S had lied during the court case. The articles complained of were published three days later, and referred to C as a “scab” or a “political scab” and included her photograph with the word superimposed upon it. D moved for dismissal, submitting that (1) criticism by one MSP of another did not amount to defamation because of the permitted latitude in criticising those who hold public office and the article had to be read as a whole, the test being whether the words used in it tended to lower the pursuer in the estimation of right thinking members of society generally; (2) in any event, the comments made in the article were protected by qualified privilege in the form of fair retort to the attack made upon S by C and her colleagues.

25. Dee v Telegraph Media Group Ltd Queen’s Bench Division

28 April 2010 [2010] EWHC 924 (QB); [2010] E.M.L.R. 20; (2010) 160 N.L.J. 653; Official Transcript

Case Analysis:

Summary: It was arguable that a professional sportsman could be libelled by suggestions that he lacked skill or was incompetent. However, on the facts of the instant case a newspaper article which highlighted a professional tennis player’s 54 consecutive defeats on the international tennis circuit was not defamatory as the publisher could rely on the defence of justification and/or fair comment.

Any application for summary judgment in a libel case is difficult – because any seriously disputed issues of fact or meaning have to be left to the jury – nevertheless, the case is a remarkable one and it is not surprising that an application was made.

26. Gascoigne v News Group Newspapers Ltd Queen’s Bench Division 07 May 2010 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (G) against the defendant newspaper publisher (N). N had published an article that reported on the reaction of G’s ex-husband, an ex-England footballer, to an interview given by G in relation to her autobiography. The article falsely alleged that G had lied in both her book and the interview about her ex-husband forcing himself upon her sexually and acting violently towards her. In fact, the allegations were entirely untrue. N apologised and agreed to pay G damages along with her legal costs.

Judge: Tugendhat, J.

Counsel: For the claimant: Roderick Chisholm-Batten. For the defendant: Patrick Callaghan.

27. Margolis v Independent News & Media Ltd Queen’s Bench Division 21 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a headline which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), a writer and feminist, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website that was written by M, however the headline inserted by N falsely alleged that M had been a prostitute or had otherwise been involved in the sex industry. The allegations were completely untrue. N published an apology in the newspaper and online. N agreed to pay M damages along with legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Victoria Shore

28. Lucas v Express Newspapers Queen’s Bench Division 25 May 2010

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (L) against the defendant newspaper publisher (E). E had published articles in its newspaper concerning L’s state of being following the death of his ex-partner. E did not provide L with any warning that it intended to publish the articles, or any indication of their contents. The statements were false and caused L considerable upset and distress. E accepted that the articles constituted an unlawful intrusion into L’s grief and suffering and that the statements therein were false and should not have been published. E retracted the allegations, agreed not to republish the articles and apologised to L. E also agreed to pay L substantial damages and his legal costs.

Judge: Tugendhat, J.

Counsel: For the claimant: John Kelly.

Solicitor: For the claimant: Schillings.

29. Thornton v Telegraph Media Group Ltd Queen’s Bench Division

16 June 2010 [2010] EWHC 1414 (QB); [2010] E.M.L.R. 25;

Case Analysis

Summary: In the context of defamation, the position of professional writers could be compared to the position of professional sportsmen in Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB), [2010] E.M.L.R. 20; writers were free to direct different products to different readerships or markets. As long as the true position was made clear by the writer to the prospective reading public, the standards to which a writer wrote were simply a matter of choice of one product over another and therefore to impute to a writer that they wrote to one standard rather than another could not of itself be defamatory.

Abstract: The applicant newspaper (X) applied for summary judgment of an action for libel commenced by the respondent book author (T). Whilst researching her book, T had conducted several interviews. X had published an unfavourable review of the book, in which it stated among other things that T had given her interviewees the right to read what she proposed to say about them and alter it, which was known by journalists as “copy approval” and very much disapproved of. T considered X’s statement to have a defamatory meaning. She maintained in her particulars of claim that the statement also suggested a second defamatory meaning, namely that she had shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer. The court was required to determine, for the purposes of both CPR r.24.2 and CPR PD 53 4.1(2) whether T had a real prospect of establishing that the relevant words were defamatory of her. X submitted that in order to be actionable as business defamation and defeat defences of justification and fair comment, words had to do more than injure a claimant in the way of their office, profession or trade. X contended that as copy approval was not illegal or contrary to any professional code, the allegation did not amount to business libel because it was not serious enough to pass the required threshold of seriousness. T argued that the allegation was business or professional libel because it undermined her integrity as a professional writer and that to impute incompetence in a claimant’s profession was sufficient to constitute defamation. (summary judgement granted for paper)

30. Flood v Times Newspapers Ltd Court of Appeal (Civil Division)

13 July 2010 [2010] EWCA Civ 804; [2011] 1 W.L.R. 153; [2010] E.M.L.R. 26; [2010] H.R.L.R. 30; Times, July 27, 2010;

Case Analysis:

Summary: The inquiry involved in deciding whether the Reynolds defence applied to a defamatory statement was a matter of judgment which raised a question of law to which there was only one right answer. It was not an exercise of discretion, and could therefore be a matter for an appellate court. [appeal allowed against newspaper]

31. George v Express Newspapers Queen’s Bench Division 19 July 2010

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant actor and DJ (G) against the defendant publisher (E). E had published an article in one of its newspapers that falsely suggested that G had been drunk and intent on causing trouble at a party and that, as a result, he had been removed from the party by security guards. In fact, the allegations were entirely false. E accepted that the allegations were untrue and should not have been published. It apologised for the damage to G’s reputation and for the distress and embarrassment which the publication caused. E agreed to pay G damages and his legal costs. Leave to withdraw the record was requested.

Judge: Tugendhat, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Kate Wilson.

32. Hewitt v Express Newspapers Queen’s Bench Division 22 July 201 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimant trustees (T) of a charity against the defendant newspaper publisher (E). E had published an article on its website about a terrorist attempt to blow up an aeroplane. The article falsely suggested that the Palestinian Relief and Development Fund, commonly known as Interpal, a charity registered in the United Kingdom of which T were trustees, was Hamas supporting, notwithstanding that Hamas was deemed a terrorist organisation under UK anti-terrorism legislation, and thereby wrongly suggested that T aided terrorism. E apologised for publishing the false and defamatory allegations and accepted that they should never have been published. E agreed to pay T substantial damages and their legal costs.

Judge: Eady, J.

Counsel: For the claimants: Luke Staiano.

Solicitor: For the claimants: Carter-Ruck.

33. Ronaldo v Telegraph Media Group Ltd Queen’s Bench Division

27 October 2010 [2010] EWHC 2710 (QB);

Case Analysis:

Summary: Whilst it was an abuse of process for defamation proceedings to be pursued that were not serving the legitimate purpose of protecting the claimant’s reputation, the claimant’s vindication in the settlement of his claim against one publisher did not mean that his continuing claim against a second publisher was an abuse.

Abstract: The applicant newspaper publisher (T) applied for a libel action by the respondent footballer (R) to be stayed as an abuse of the process of the court. R was claiming that an article published by T falsely stated he had drunk lots of champagne and danced at a nightclub shortly after an ankle operation, thereby suggesting he was unprofessional and reckless. In the meantime, another newspaper publisher (M) which had published a similar article had reached a settlement with R. In a statement in open court, it was said that M accepted the allegations it had published were untrue, R had been paid substantial damages and he considered himself to be fully vindicated. T submitted that following the vindication of R in his action against M, his instant claim no longer served the legitimate purpose of protecting his reputation.

Judge: Sharp, J.

Counsel: For the claimant: James Price QC, Adam Speker. For the defendant: David Price.

Solicitor: For the claimant: Schillings. For the defendant: David Price.

34. Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) Queen’s Bench Division 08 November 2010 [2010] EWHC 2819 (QB);

Case Analysis:

Subject: Defamation Other related subjects: Media and entertainment; Civil procedure

Keywords: Libel; Newspapers; Nightclubs; Statements of case

Summary: Libel proceedings against a local newspaper publisher were struck out on the basis that the claimant’s fifth attempt to draft a statement of case was still deficient for the purposes of CPR r.3.4(2)(a) and (b).

Abstract: The applicant nightclub owner (X) applied to set aside an order staying libel proceedings brought against the respondent newspaper publisher (Y) and Y cross-applied to strike out the claim. X owned a nightclub that had had its alcohol licence revoked by the relevant local authority after the police discovered evidence of illegal activities on the premises. Y had published a series of articles that referred to the nightclub’s closure and the surrounding circumstances. X commenced libel proceedings against Y. The principle meaning complained of was that words used in the articles suggested that X had been involved in criminal activity. X’s statement of claim was deficient in a number of regards. A master determined that X had failed to provide necessary details to support his claim pursuant to CPR r.3.4(2)(a) and, so far as he was seeking general damages, the action was worth no more than a nominal amount, if anything at all. Consequently, the master determined that the case, as formulated, infringed r.3.4(2)(b). X’s final draft statement of case was his fifth attempt to comply with the CPR.

Application refused, cross-application granted. The master was entitled to form the view that X’s statement of case was deficient and contrary to r.3.4(2)(a) and (b). His claim for damages bore no relation whatever, either to the law or reality. The master was entitled to conclude that the action was in fact worth no more than a nominal amount if anything at all. X’s claim was without merit and his calculations of loss entirely imaginary. Even if X were given another opportunity to put his claim in proper form, and if he limited his claim to general damages, it would, on its merits, have no real prospect of success (see paras 32 -34 of judgment).

Judge: Tugendhat, J.

Counsel: For the applicant: In person. For the respondent: Richard Munden.

Solicitor: For the respondent: Reynolds Porter Chamberlain.

35. Lait v Evening Standard Ltd Queen’s Bench Division 09 December 2010

[2010] EWHC 3239 (QB);

Case Analysis:

Summary: A former member of Parliament was not entitled to summary judgment on her claim alleging defamation by a newspaper in respect of an article which bore the meaning that she had milked the Parliamentary expenses system and that her criticism of a proposed reform to the expenses regime was apt, rightly, to provoke public anger. The newspaper’s defence of fair comment was bound to succeed. [judgement for newspaper – references to pilot scheme?]

Judge: Eady, J.

Counsel: For the claimant: Richard Rampton QC, Ian Helme. For the defendant: Mark Warby QC, Victoria Jolliffe.

Solicitor: For the claimant: Carter-Ruck. For the defendant: Taylor Wessing LLP.

APPENDIX B

Every Libel Case Mr Justice Eady was involved in between February 2008 and March 2011.The analysis of cases was obtained from www.westlaw.co.uk

1. Shaffer v Associated Newspapers Ltd Queen’s Bench Division 13 February 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the administration of the estate of the claimant’s brother.

Abstract: A statement in open court was made in a libel action brought by the claimant (S) against the defendant newspaper publisher (N). N had published an article wrongly alleging that S had thwarted his late brother’s testamentary wishes resulting in his nieces being improperly deprived of their inheritance. In fact, S had acted at all times on legal advice and in accordance with the provisions of his late brother’s will and had administered the estate properly. N acknowledged that the allegations were untrue and agreed to withdraw publicly the false allegations and apologise to S for the hurt and distress caused by the publication.

Judge: Eady, J.

Counsel: For the claimant: Hanna Basha. For the defendant: Nick Braithwaite.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

2. Smith v World Entertainment News Network Ltd Queen’s Bench Division

22 February 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article about the claimant actor.

Abstract: A statement in open court was made in a libel action brought by the claimant actor (S) against the defendant news network (W). W had published an article which falsely claimed that S had declared in an interview that Nazi dictator Adolf Hitler was a good person. The allegation was false and without any foundation. In fact, S believed that Hitler was a vile and heinous man. W agreed to apologise for the distress and embarrassment caused by the allegations, which it acknowledged were false. W also agreed to pay an amount of damages to S for the libel. S intended to donate the award of damages to charity. W agreed to pay S’s legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Rachel Atkins. For the defendant: Marvin Simons.

Solicitor: For the claimant: Schillings. For the defendant: Seddons.

3 .Osbourne v Express Newspapers Queen’s Bench Division 05 June 2008

Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article concerning a musician.

Abstract: A statement in open court was made in a libel action brought by the claimant musician (O) against the defendant newspaper publishers (E). O had hosted a prestigious music awards ceremony with his wife and two children. The following day, E published an article falsely alleging that O had thrown the ceremony into chaos after he suffered a health scare. The article falsely reported that as a result of his health scare, O had to be ferried around the ceremony in an electric buggy. The article was republished on E’s website, where it was also falsely claimed that O and his wife sat on thrones when they were not speaking as O insisted on having a place to sit in case he got tired. In fact, O was fit and well at the time of the awards and none of the allegations were true. E accepted that the allegations were untrue and ought never to have been published. E agreed to set the record straight publicly, retract the libels and undertake never to republish the libels. E agreed to publish an apology and pay O substantial undisclosed damages and his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Kate Wilson.

Solicitor: For the claimant: Schillings.

4. Farage v Times Newspapers Queen’s Bench Division 11 June 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant politician (F) against the defendant newspapers (T). T had published an article wrongly alleging that F had employed his son (Y) to work as his assistant, paying him out of taxpayers’ money whilst Y was in full-time education. T accepted that there was in fact no foundation to the allegation and agreed to publish an apology in the Sunday Times. T undertook not to repeat the allegation and agreed to pay F damages and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Andrew Stephenson. For the defendant: Gillian Phillips.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

5. Murat v Associated Newspapers Ltd Queen’s Bench Division 16 July 2008

Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a number of articles regarding the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimants (R) a businessman, (M) a translator and (S) an IT consultant against the defendant publishers. The defendants had published numerous articles in their respective newspapers and websites covering the Madeleine McCann story, wrongly alleging that R, M and S all played a part in the abduction. In relation to R, the defendants wrongly suggested in numerous articles that not only had R abducted Madeleine, but that he had lied to the police, had obstructed their investigation and had paedophilic tendencies. The defendants wrongly alleged that M had been cast out of her church, that she had lied to the police about her whereabouts when Madeleine was abducted and that she was part of a paedophile ring. It was also alleged in some of the papers that S, along with R, had been involved in the abduction of Madeleine, that S had convictions for sex offences and was interested in child pornography. In fact, R had helped the police with their investigations by becoming a volunteer translator, M was never suspected or accused of any involvement with the abduction of Madeleine McCann and S was not guilty of any sexual misconduct and had no criminal convictions. The defendants accepted that none of the claimants had played any part whatsoever in Madeleine’s abduction, and that the allegations made were wholly false. They withdrew the statements from the newspapers’ websites. The defendants apologised for the false defamatory allegations published, agreed to publish apologies and paid substantial damages to the claimants as well as covering their legal costs.

Judge: Eady, J.

Solicitor: For the claimant: Simons Muirhead & Burton. For the defendants: Reynolds Porter Chamberlain LLP.

6. Mosley v News Group Newspapers Ltd Queen’s Bench Division, 24 July 2008

[2008] EWHC 1777 (QB); [2008] E.M.L.R. 20; (2008) 158 N.L.J. 1112; Times, July 30, 2008;

Case Analysis

Summary: There was a reasonable expectation of privacy in relation to sexual activities, albeit unconventional, carried on between consenting adults on private property. The exposure by a national newspaper of sado-masochistic and some sexual activities and role play between the claimant and other consenting adult participants could not be justified on grounds of public interest and had been in breach of confidence and the claimant’s rights under the European Convention on Human Rights 1950 art.8 .

Abstract: The claimant (M) sought damages from the defendant newspaper publisher (N) for breach of confidence and the unauthorised disclosure of personal information which infringed his rights of privacy as protected by the European Convention on Human Rights 1950 art.8 . M was the President of the FIA. One of N’s newspapers had published an article under the heading “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” , accompanied by a number of captioned images, which concerned an event attended by M and five women involving sado-masochistic and some sexual activities and role play. The same information and images were published on N’s website, which contained video footage relating to the same event. The articles alleged that the sessions had a Nazi theme and mocked the way that Holocaust victims had been treated in concentration camps. A “follow up” article was published a week later, headed “EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS”, which consisted of a purported interview with one of the women (E) who had been present at the event in question and had filmed what took place clandestinely with a hidden camera supplied by N. M contended that the content of the published material was inherently private in nature and that there had also been a pre-existing relationship of confidentiality between the participants as they had all known each other for some time and had taken part in their activities on the understanding that they would be private and that none of them would reveal what had taken place. M alleged that E had breached that trust. N contended that M had no reasonable expectation of privacy in relation to the information or images concerning the event, or alternatively that M’s right to privacy under art.8 of the Convention was outweighed by a greater public interest in the disclosure, such that its right to freedom of expression under art.10 of the Convention should, in the circumstances, be allowed to prevail. N submitted that, because of M’s role as president of the FIA, the public had a right to know about the nature of the sexual activities that he indulged in. M denied that the event had had any Nazi theme or anything to do with concentration camps.

Judgment for claimant. (1) The law now afforded protection to information in respect of which there was a reasonable expectation of privacy, even in circumstances where there was no pre-existing relationship giving rise of itself to an enforceable duty of confidence, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 considered. M had a reasonable expectation of privacy in relation to sexual activities, albeit unconventional, carried on between consenting adults on private property. The clandestine recording of sexual activity on private property engaged the rights protected by art.8 of the Convention, and serious reasons had to exist before interferences with it could be justified, Dudgeon v United Kingdom (A/45) (1982) 4 E.H.R.R. 149 considered. It had to be determined whether the degree of intrusion into a claimant’s privacy was proportionate to the public interest supposedly served by it, Douglas v Hello! Ltd (No.1) [2001] Q.B. 967 applied. Moreover, E had owed a duty of confidence to M and the other participants. Those who participated in sexual or personal relationships might be expected not to reveal private conversations or activities. It was highly questionable whether, in modern society, the concept that “there is no confidence in iniquity” could be applied to sexual activity, fetishist or otherwise, conducted between consenting adults in private. E had, therefore, committed a breach of confidence as well as a violation of the art.8 rights of all those involved. (2) There was no evidence that the event attended by M and the other participants was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes, and nor had it been so in fact. There was no genuine basis at all for the suggestion that the participants had mocked the victims of the Holocaust. Whilst there had been bondage, beating and domination typical of sado-masochistic behaviour, there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of video extracts on the website, all of which had been done on a massive scale. Although such behaviour was viewed by some people with distaste and moral disapproval, in the light of modern rights-based jurisprudence that had not provided any justification for the intrusion on the personal privacy of M. (3) It was necessary to afford an adequate financial remedy for the purpose of acknowledging the infringement and compensating, to some extent, for the injury to feelings, the embarrassment and the distress caused. However, it was not right to extend the application of exemplary or punitive damages into the field of the right to privacy or to include an additional element specifically directed towards deterrence. That was not a legitimate exercise in awarding compensatory damages. No amount of damages could fully compensate M for the damage done to him and what could be achieved by a monetary award in the circumstances was limited. Any award had to be proportionate and avoid the appearance of arbitrariness. The right award, taking those considerations into account, was one of ?60,000.

Judge: Eady, J.

Counsel: For the claimant: James Price QC, David Sherborne. For the defendant: Mark Warby QC, Anthony Hudson.

Solicitor: For the claimant: Steeles. For the defendant: Farrer & Co.

7. McGill v 365 Media Group Plc Queen’s Bench Division 31 July 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant football agent (C) against the defendant publisher (D). D had published a story on its transfer gossip website alleging that C had invited a Celtic player to visit Villa Park to watch Aston Villa play, the implication of which was that C, in breach of the rules of football’s regulatory bodies, was trying to induce the player to break his contract and join Aston Villa without the permission of Celtic, thus making C guilty of “tapping up”. In fact, C had advised the player to sign his current contract and stay at Celtic. D also alleged that C had set up deals that took other Celtic players to the Midlands. D accepted that all of the allegations made were totally without foundation and should not have been published. D published an apology and withdrawal on its website, paid C substantial damages and covered his legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Paul Hackney.

Solicitor: For the claimant: Geldards LLP (Derby).

8. Mottley v IPC Media Ltd Queen’s Bench Division 07 October 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article that referred to the claimant member of the Barbados Parliament.

Abstract: A statement in open court was made in a libel action brought by the claimant member of the Barbados Parliament (M) against the defendant publisher (P). P had published an article in one of its magazines in which reference was made to a Barbadian calypso song that suggested M had assaulted another woman. In fact, M had never assaulted anyone in the manner described in the article or at all. Further, the suggestion of assault in the song was based on a totally unfounded rumour. P apologised for publishing the article and agreed to cover M’s legal costs as well as paying a substantial sum in damages. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: David Price (Solicitor Advocate). For the defendant: Paul Fox.

9. Murat (Robert) v British Sky Broadcasting Ltd Queen’s Bench Division 14 November 2008 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article that referred to the claimant.

Abstract: A statement in open court was made in an action for libel brought by the claimant (M) against the defendant publishers (B). B had published an article to its website covering the Madeleine McCann story together with a video entitled “It reminded me of Soham”. Both the video and the article falsely alleged that there were strong grounds to believe that M, who was resident in the area when Madeleine disappeared, was guilty of abducting her. The article and video went further and likened M’s behaviour, in the days after Madeleine’s disappearance, to that of a notorious child murderer. They also falsely suggested that M deliberately tried to mislead journalists by pretending to be acting in an official capacity for the police. In fact, M was heavily involved in the search for Madeleine after her disappearance and was recruited by the police to act in an official capacity as an interpreter. B acknowledged that the allegations made were entirely false and that M played no part in the abduction of Madeleine. B also acknowledged that M did not behave like a child murderer nor did he try to mislead or lie to journalists. B agreed to publish an apology on its website for a period of 12 months and to pay substantial damages to M as well as covering his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Louis Charalambous. For the defendant: Victoria Shore.

Solicitor: For the claimant: Simons Muirhead & Burton.

10. Crossley v Newsquest (Midlands South) Ltd Queen’s Bench Division

11 December 2008 [2008] EWHC 3054 (QB);

Case Analysis:

Summary: Absolute privilege under the Defamation Act 1996 s.14 extended to the reporting of previous court hearings, insofar as it was reasonably necessary to give context to a contemporaneous report of a court hearing.

Abstract: The appellants (C) appealed against a decision of a master to strike out their libel claim against the respondent newspaper publisher (N). Three days after a final county court hearing about a nuisance action brought against C by their neighbours, N had published an article about the hearing. The article also referred to court hearings that had taken place a few months previously. The nuisance action related to the effectiveness of a sewage system discharging sewage from C’s property. A photograph appeared in the article accompanied by a caption. C alleged that the caption contained an emotive phrase which was not an accurate representation of the findings of the county court judge. The master concluded that C’s claim was bound to fail because N could rely on the defences of privilege and that C’s plea of malice could not be supported. He also found that no reasonable jury could come to a finding other than the words were substantially true and the plea of justification was bound to succeed. Appeal dismissed. (1) The master was correct in concluding that absolute privilege would attach to parts of the article reporting on the county court hearing as that reporting would constitute a contemporaneous report of court proceedings for the purposes of the Defamation Act 1996 s.14 and there was little doubt that a report published three days after a court hearing would be so classified. Absolute privilege would also extend to the reporting of the earlier hearings at least insofar as it was reasonably necessary to give context to what took place at the county court hearing and to enable readers to understand the contemporaneous report of the court hearing. In other words, that coverage should be construed as forming an integral part of the contemporaneous report. The offending caption to the photograph would also be treated as part of the attempt to report, fairly and accurately, the outcome of the trial and would, therefore, attract qualified privilege. (2) The master was also correct in concluding that there was no realistic prospect of C establishing malice and there was nothing to support a plea of malice in the criticisms which were made of N’s phraseology. In particular, the caption to the photograph should be read in the context of the article as a whole; it was not appropriate to interpret headlines or captions as though they stood on their own, Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65 applied. (3) N was also entitled to rely on the defence of fair comment and there was no reason to suppose that the opinions expressed by the commentator in the article were not honestly held by him, Tse Wai Chun Paul v Cheng [2001] E.M.L.R. 31 considered. (4) The conclusions reached by the master on privilege, malice and fair comment were such as to entitle N to the relief sought. It was therefore strictly not necessary for him to go on to address the matter of justification. However, he was entitled to reach the conclusion that the plea of justification was bound to succeed. (5) The master was also entitled to reach the conclusion that the libel proceedings were an obvious attempt to re-litigate issues which had already been determined in earlier hearings and therefore constituted an abuse of process, Johnson v Gore Wood & Co (No.1) [2002] 2 A.C. 1 and Hunter v Chief Constable of the West Midlands [1982] A.C. 529 considered. (6) The master was also right to refuse C’s application to amend to add causes of action founded upon privacy and confidentiality as the hearing had taken place in open court and anything said in open court could be reported, R. v Arundel Justices Ex p. Westminster Press [1986] 1 W.L.R. 676 considered.

Judge: Eady, J.

Counsel: For the appellants: In Person. For the respondent: Alexandra Marzec.

Solicitor: For the respondent: Farrer & Co.

11. Mardas v New York Times Co, Mardas v International Herald Tribune SAS

Queen’s Bench Division 17 December 2008 [2008] EWHC 3135 (QB); [2009] E.M.L.R. 8;

Case Analysis

Summary: A judge had erred in striking out a claim for libel as an abuse of process. He had wrongly made findings of fact which should have been left to trial after full disclosure had occurred.

Abstract: The appellant (M) appealed against a decision to strike out his claim for libel made against the defendant foreign newspapers (N and H) as an abuse of process. N and H had published an article which referred to M concerning events which had taken place approximately 40 years earlier. M had claimed that the article had been published in the jurisdiction of England and Wales and he issued libel proceedings. However, the parties disputed the extent and forms of publication that had allegedly occurred. N and H applied for the proceedings to be struck out. The judge found that M stood no real prospect of establishing that there had been a hard copy publication by H. In allowing the applications, he considered the costs, resources and time that would be involved in the claims going to trial, that the article concerned matters that had happened 40 years ago and found that there had been publication to, at the most, two hundred people. M submitted that it would only rarely be appropriate to strike out an action as an abuse because a claimant’s reputation had suffered only minimal damage or there had been no real and substantial tort within the jurisdiction. M further contended that the judge had been too ready to make findings of fact on contested evidence and to conclude that there had been no real or substantial tort.

Appeals allowed. It was inappropriate for a finding of fact to be made about the scale of publication on the basis of incomplete evidence. The finding of fact was a matter which should have been left to trial. Furthermore, even if there had been publication to the number of people N alleged, there was no basis for concluding that there was no real and substantial tort. M wished to have the benefit of full disclosure and such further information as might be appropriate to disprove H’s contention that the article had not been published anywhere in printed form. The court could not refuse that opportunity. The number of times the internet article had been looked at via H’s website also could not be resolved until at least disclosure had taken place. Investigating the scale of publication further could be very expensive. If that had to be carried out and yielded no evidence of a wider readership that N and H currently admitted, it might be that M would have to bear the cost of such investigations which would almost certainly exceed any sum awarded in damages. However, that was a risk that M would have to take. The allegations made could not be dismissed as trivial. Moreover, even if defamatory allegations related to events of long ago, that could not be a ground in itself for refusing access to justice, Polanski v Conde Nast Publications Ltd [2005] UKHL 10, [2005] 1 W.L.R. 637 considered. It was desirable that some sensible accommodation should be reached so as to avoid a time-consuming and expensive trial but that was for the parties to deal with, Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260, [2008] 1 W.L.R. 748 considered. The circumstances could not be characterised as an abuse of process.

Judge: Eady, J.

12. Osbourne v News Group Newspapers Ltd Queen’s Bench Division

15 January 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (O), a successful music manager, promoter and television presenter, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website wrongly suggesting that the claimant had put her musician husband’s life at risk by working him too hard at the cost of his health. N also falsely suggested her motivation for doing so was to fund her exorbitant spending. The allegations were entirely without foundation. N apologised for publishing the false and defamatory allegations and offered to publish an apology. N also agreed to pay O substantial damages and her legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly.

13. Marshall v Express Newspapers Queen’s Bench Division 29 January 2009

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), an 18 year old student, against the defendant newspaper publisher (N). N had published articles falsely alleging that the day after the conviction of a man (B) for the murder of an 11 year old boy, M had publicly praised him in a television interview as a hero. The articles also wrongly alleged that M was B’s girlfriend, was a member of a criminal gang and that she had declared a pledge of loyalty to the gang following B’s conviction. In fact M did not make any public statement following B’s conviction, did not regard him as a hero and had not made such a claim or sought publicity for it in the aftermath of B’s conviction for such an appalling murder. M was not nor had ever been a member of a criminal gang and had never been B’s girlfriend. N agreed to pay M a substantial sum in damages which she intended to donate to the Rhys Jones Memorial Trust. Permission to withdraw the record was requested.

Judge: Eady, J.

14. Raulynaitis v News Group Newspapers Ltd Queen’s Bench Division

26 February 2009 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (R) against the defendant newspaper publishers (N). N had published an article in its newspaper and to its website wrongly alleging that R had ordered passengers off of his bus in order for him to pray. The article suggested that R was arrogant, unprofessional and contemptuous of the passengers. The article further alleged that the passengers later refused to re-board the bus as they spotted a rucksack and feared R was a fanatic. In fact, R had prayed on the bus during his statutory break and no passenger was inconvenienced. N accepted the allegations were false and published an apology. N paid R a sum in damages and covered his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Stephen Loughrey. For the defendant: Patrick Callaghan.

Solicitor: For the claimant: Carter-Ruck.

15. Zola v BBC Queen’s Bench Division 12 May 2009 Unreported

Case Analysis

Summary: A joint statement in open court was made in proceedings for defamation following a radio broadcast that referred to the claimants.

Abstract: A joint statement in open court was made in a libel action brought by the claimant West Ham United Football Club manager (Z) and coach (C) against the defendant BBC. The BBC had broadcast a radio breakfast show that featured a contribution from a sports journalist (H). H wrongly alleged that Z and C had attended an interview for management positions at an alternative football club, which would have constituted a breach of their contracts of employment and, in the case of Z, breach of FA Premier League rules. In fact, the allegations were completely untrue. The BBC apologised for the false allegations and agreed to pay Z and C damages and their legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the applicants: James Quatermaine.

16. Jones v Telegraph Media Group Ltd Queen’s Bench Division 23 June 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (J) against the defendant newspaper publisher (T). J was the United Kingdom’s most senior intelligence expert on weapons of mass destruction in the period leading up to the Iraq war. T had published an article in its newspaper and on its website which falsely alleged that J had leaked information to the media before the Iraq war. In fact, J had been singled out by the Chairman of the House of Commons Select Committee investigating leaks in Whitehall as someone who did not, and would not, leak information. T accepted that the allegation was untrue and published an apology to J as well as agreeing to pay damages and J’s legal costs.

Judge: Eady, J.

Counsel: For the claimant: Luke Staiano.

17. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division

16 June 2009

Case Analysis

Summary: The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity.

18. Bari v BBC Queen’s Bench Division 16 July 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the broadcast of a programme which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (B) against the defendant BBC. The BBC had broadcast a programme in which a panellist alleged that the leadership of a Muslim organisation, of which B was leader and chief spokesperson, had failed to condemn the kidnapping and killing of British soldiers and thereby implicitly condoned such acts. The panellist further alleged that B believed the kidnapping and killing of British soldiers to be a good and Islamic thing. In fact, B did not condone the kidnapping and killing of British soldiers and did not believe this would be a good or Islamic thing to do, and in 2007 B had said publicly that the killing of British troops in Iraq was unacceptable. The BBC apologised for the false allegations. It also agreed to pay B substantial damages, which he would donate to a charity, and his legal costs.

Judge: Eady, J.

19. Zuma v Guardian News & Media Ltd Queen’s Bench Division 30 July 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (Z) against the defendant newspaper publisher (G). Z was the President of South Africa. G had published an article in an edition of its newspaper and on its website which falsely alleged that Z was guilty of various crimes. Z issued libel proceedings and G subsequently published an apology accepting that Z was acquitted of one of the offences and the others were dropped by the South African National Prosecuting Authority. Z did not consider that the apology adequately dealt with his complaint. The apology was said to be published far less prominently in the newspaper and on the website than the article complained of. Additionally, the apology was initially unavailable online when a search was made using Z’s name. G then made an offer of amends. In light of the fact that G was willing to pay very substantial damages to Z and it had publically apologised to Z, Z considered his reputation in the matter had been entirely vindicated and he was prepared not to proceed any further in his action against G. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Jenny Afia.

Solicitor: For the claimant: Schillings.

20. Andre v MGN Ltd Queen’s Bench Division 31 July 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (P) against the defendant newspaper publisher (M). M had published an article in an edition of its newspaper and on its website which alleged that P had made inappropriate advances towards a woman in a night club whilst he was still together with his wife. In fact, as M accepted, the allegations were untrue. All that happened was that P was introduced to the woman and a photograph was taken of them together. P spoke to the woman very briefly. M apologised for the hurt and damage suffered by P as a result of the publication of the article. M agreed to pay a substantial sum by way of damages, together with P’s legal costs, and agreed not to repeat the allegations. Leave to withdraw the record was requested.

Judge: Eady, J.

21. Karim v Newsquest Media Group Ltd Queen’s Bench Division 27 October 2009

Case Analysis

Summary: A website article summarising a hearing in the Solicitors Disciplinary Tribunal was absolutely privileged, being a fair, accurate and contemporaneous report of legal proceedings. The Electronic Commerce (EC Directive) Regulations 2002 reg.19 also provided a defence in relation to comments published on the site from site users because N had no actual knowledge of unlawful activity and had removed the article and comments as soon as complaint was made.

Judge: Eady, J.

Counsel: For the applicant: Mr Vassall-Adams. For the respondent: No appearance or representation.

22. Martin v Channel Four Television Corp Queen’s Bench Division 06 November 2009

Case Analysis

Summary: The court had no jurisdiction to grant an interim injunction prior to the issue of proceedings to prevent the broadcast of a television documentary where the application was neither urgent nor in the interests of justice. The application could not be described as urgent where the broadcasters had already agreed not to show the documentary.

23. Williams v MGN Ltd Queen’s Bench Division 02 December 2009

Case Analysis

Subject: Defamation Other related subjects: Media and entertainment; Torts

Keywords: Abuse of process; Defamatory meaning; Libel; Newspapers; Reputation

Summary: Where the claimant in a libel action had a background of serious criminal convictions, he had no reputation capable of protection and his claim had to be struck out under CPR r.3.4(2)(b) as an abuse of the court’s process as it was clear that no real or substantial tort had been committed.

24. Buxton v MGN Ltd Queen’s Bench Division 10 December 2009

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant property developer (B) against the defendant publisher (M). M had published an article in its newspaper and on its website that suggested that B had viciously attacked a female model (X) to such an extent that injuries to her face were so severe that her career as a model was almost certainly over. In fact, the allegations were entirely false. M apologised for publishing the false and defamatory allegations and accepted that B had neither attacked X nor caused any injuries to her face. M agreed not to republish the allegations, and agreed to pay B substantial damages and to pay his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Mark Thomson. For the defendant: Lindsay Hodgkinson.

Solicitor: For the claimant: Atkins Thomson. For the defendant: Reynolds Porter Chamberlain.

25. Ali v Associated Newspapers Ltd Queen’s Bench Division 27 January 2010

Case Analysis

Summary: Summary judgment was granted to a defendant newspaper publisher in a claim for libel on the basis of justification.

Abstract: The applicant newspaper publisher (N) sought summary judgment on a libel claim brought by the respondent (X). X was a civil servant employed by the Treasury. N published the fact that X had been suspended from his employment following the posting of remarks on his personal blog. Passages from X’s blog were published by N. X pleaded that the publications had the defamatory meaning that X was a hardline Islamic extremist who supported the killing of British and American soldiers in Iraq by fellow Muslims as justified. N submitted that X’s claim was bound to fail as X’s observations on his blog advocated a form of jihad which could only be understood as justifying the killing of British and American troops in Iraq. N argued that a jury would be perverse not to hold that the blogs in question justified the inference against X. X submitted that he should be permitted to adduce evidence of his background and other blogs to demonstrate that he was not hardline or extremist.

Application granted. It was necessary to have in mind the role of a jury not only in coming to conclusions of primary fact but also in drawing any appropriate inferences, Bataille v Newland [2002] EWHC 1692 (QB) applied. On reflection, N’s submissions were correct on the very unusual facts in the instant case. X had taken the position that the killing of American and British troops in Iraq would be justified by his interpretation of jihad. As it was a matter of construing plain language in its overall context, it would be perverse to take a contrary view. In those circumstances the claim could legitimately be categorised as bound to fail. Nothing would be gained by investigating X’s other blogs or his background. Such an exercise could not change or qualify the plain meaning of the blog in question.

Judge: Eady, J.

Counsel: For the applicant: David Hirst. For the respondent: David Glen.

Solicitor: For the applicant: Farooq Bajwa & Co. For the respondent: Reynolds Porter Chamberlain LLP.

26. Berezovsky v Russian Television and Radio Broadcasting Co Also known as: Terluk v Berezovsky Queen’s Bench Division 10 March 2010

Case Analysis

Summary: The court awarded damages for defamation to a Russian businessman and politician who had been accused, in a television programme broadcast by a state-owned Russian television company, of involvement in the murder of the former Russian security agent, Alexander Litvinenko.

27. Abramovich v Gruppo Editoriale L’Espresso SPA Queen’s Bench Division

18 March 2010 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant businessman (R) against the defendant newspaper publisher (G). G had published in its newspaper and on its website false allegations about R that he had suffered a heavy loss in a poker game and had been forced to hand over a luxury yacht to cover his gambling debt. The article also falsely alleged that R’s gambling had caused problems in his relationship with his partner. G accepted that the allegations were wholly unfounded and untrue and apologised to R for the distress and embarrassment caused to him. G agreed to publish a correction and pay R substantial damages, which he intended to donate to charity, and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Sarah Toolan.

Solicitor: For the claimant: Schillings. For the defendant: Davenport Lyons

28. Bowman v MGN Ltd Queen’s Bench Division 26 April 2010 [2010] EWHC 895 (QB);

Case Analysis

Summary: Following the publication on a newspaper’s website of an article wrongly claiming that the claimant was romantically involved with an actress, the court assessed compensation for the defamation in the sum of ?4,250 having regard to the newspaper’s early apology, quick removal of the offending article and early use of the offer to amends procedure in the Defamation Act 1996 s.2.

Abstract: The court was required to determine the amount of compensation to be paid to the claimant actor (B) in respect of distress caused to him by a defamatory article published by the defendant (M). M had published an article on its website about B, suggesting that he had been romantically involved with an actress. B complained that the article was untrue and that he was in a serious relationship with another person. The article was removed from M’s website almost immediately, having remained on there for some 27 hours. M published an apology soon after. Prior to the issue of proceedings, M made an unqualified offer of amends pursuant to the Defamation Act 1996 s.2 to s.4, which B accepted.
Compensation assessed. When determining appropriate compensation the courts had adopted a two-stage process: first, to determine the figure which would have been awarded after trial and, second, to decide to what extent that figure should be discounted to give effect to any mitigation, Duncan & Neill on Defamation, 3rd edn (LexisNexis, 2009) para.19.12, Nail v News Group Newspapers Ltd [2004] EWCA Civ 1708, [2005] 1 All E.R. 1040 and Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 W.L.R. 3469 applied. There was no evidence about the number of readers who would have understood the article in a defamatory sense, but it was reasonable to assume that the scale of publication would be much lower than in the case of a natural and ordinary defamatory meaning published in a national newspaper, so it would be right to take a conservative approach. It was of fundamental importance that the article had been removed as soon as B’s complaint was received, and that it amounted to no more than a bit of celebrity gossip. As libel cases went, it was at the less serious end of the scale. The hurt that could be caused by a false allegation of adultery, however, should not be discounted, and there was no doubt that B had taken the suggestion seriously and incurred embarrassment and some genuine distress. Yet the libel was short-lived and the court had seen no hard evidence that his reputation had actually suffered. Choosing the right bracket or figure for compensation was largely a matter of impression and personal evaluation, although it was legitimate to take into account personal injury awards for pain, suffering and loss of amenity. Bearing in mind the temporary nature of M’s allegations and their impact, even on B, who was rather sensitive, it did not equate even closely to physical pain or long-term loss of amenity. An appropriate starting figure would be ?8,500. That then had to be discounted to recognise the deflationary or mitigating effect of M’s conduct, in particular its early resort to the offer of amends procedure. That would have signalled to B that he had effectively “won” from that moment onwards and his stress and anxiety should have been correspondingly reduced, Nail applied. Thus, because of the early apology, the willingness to remove the offending words immediately, and the very prompt reliance on the offer of amends regime, B’s award should be reduced by 50 per cent to ?4,250.

Judge: Eady, J.

Counsel: For the claimant: David Sherborne. For the defendant: Alexandra Marzec.

Solicitor: For the claimant: Schillings. For the defendant: In-house solicitor.

29. George v MGN Ltd Queen’s Bench Division 14 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (G) against the defendant newspaper publisher, newspaper editor and assistant editor (M). M had published articles in their newspapers and on their websites that falsely suggested that G had harassed and stalked a nurse; had become obsessed with a TV presenter and said that he loved her; had become obsessed with another TV presenter and threatened to pester and harass her; and had illegally attempted to obtain drugs from a hospital. In fact, the allegations were entirely false. M apologised for publishing the false allegations and agreed to withdraw them. M also agreed to pay G substantial damages and to pay his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Gordon Bishop. For the defendant: Emily Barber.

30. Margolis v Independent News & Media Ltd Queen’s Bench Division 21 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a headline which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), a writer and feminist, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website that was written by M, however the headline inserted by N falsely alleged that M had been a prostitute or had otherwise been involved in the sex industry. The allegations were completely untrue. N published an apology in the newspaper and online. N agreed to pay M damages along with legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Victoria Shore

31. Hewitt v Express Newspapers Queen’s Bench Division 22 July 2010 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimant trustees (T) of a charity against the defendant newspaper publisher (E). E had published an article on its website about a terrorist attempt to blow up an aeroplane. The article falsely suggested that the Palestinian Relief and Development Fund, commonly known as Interpal, a charity registered in the United Kingdom of which T were trustees, was Hamas supporting, notwithstanding that Hamas was deemed a terrorist organisation under UK anti-terrorism legislation, and thereby wrongly suggested that T aided terrorism. E apologised for publishing the false and defamatory allegations and accepted that they should never have been published. E agreed to pay T substantial damages and their legal costs.

Judge: Eady, J.

32. Lait v Evening Standard Ltd Queen’s Bench Division 09 December 2010

[2010] EWHC 3239 (QB);

Case Analysis:

Summary: A former member of Parliament was not entitled to summary judgment on her claim alleging defamation by a newspaper in respect of an article which bore the meaning that she had milked the Parliamentary expenses system and that her criticism of a proposed reform to the expenses regime was apt, rightly, to provoke public anger. The newspaper’s defence of fair comment was bound to succeed.

APPENDIX C

Libel claims determined by convention arguments.The analysis of cases was obtained from www.westlaw.co.uk

1. Mosley v News Group Newspapers Ltd [Convention rights arguments] Queen’s Bench Division [application for interim injunction] 09 April 2008

[2008] EWHC 687 (QB);

Case Analysis

Application refused Video footage of a known figure engaging in sexual activities with prostitutes had entered the public domain and therefore, although the material was intrusive and demeaning and there was no legitimate interest in its further publication, an injunction prohibiting its further publication on a newspaper website was not appropriate and would serve no practical purpose. [reasonable expectation of privacy]

Judge: Eady, J.

Counsel: For the applicant: James Price QC, David Sherborne. For the respondent: Gavin Millar QC, Anthony Hudson.

Solicitor: For the applicant: Steeles Law. For the respondent: Farrer & Co.

2. Murray v Express Newspapers Plc Also known as: Murray v Big Pictures (UK) Ltd Court of Appeal (Civil Division) 07 May 2008 [2008] EWCA Civ 446; [2009] Ch. 481; [2008] 3 W.L.R. 1360; [2008] E.C.D.R. 12; [2008] E.M.L.R. 12; [2008] 2 F.L.R. 599; [2008] 3 F.C.R. 661; [2008] H.R.L.R. 33; [2008] U.K.H.R.R. 736; [2008] Fam. Law 732; (2008) 105(20) L.S.G. 23; (2008) 158 N.L.J. 706; (2008) 152(19) S.J.L.B. 31;

Case Analysis

Summary: Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child’s behalf.

Abstract: The appellant (M), acting through his parents, appealed against the striking out ( [2007] EWHC 1908 (Ch), [2007] E.C.D.R. 20 ) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art.8 . M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that even if the decision in Von Hannover v Germany (59320/00) [2004] E.M.L.R. 21 had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 , he was bound to follow Campbell in preference. The issue was whether the judge was right so to have concluded.

Appeal allowed.

3. Times Newspapers Ltd v United Kingdom (3002/03) Times Newspapers Ltd v United Kingdom (23676/03) European Court of Human Rights 10 March 2009[2009] E.M.L.R. 14; Times, March 11, 2009;

Case Analysis

Summary: Where a newspaper had published, in its print publication, an allegedly defamatory article which, during the libel action, was available to readers on the newspaper’s website, it was not a disproportionate interference with the right to freedom of expression to require that the newspaper publish an appropriate qualification to the internet version of the article. [convention arguments]

[multiple publication rule – each new reproduction was a fresh libel]

4. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division 16 June 2009 [2009] EWHC 1358 (QB); [2009] E.M.L.R. 22; (2009) 106(26) L.S.G. 18; (2009) 159 N.L.J. 924; (2009) 153(24) S.J.L.B. 33;

Case Analysis

The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity. [convention arguments]

5. Financial Times Ltd v United Kingdom (821/03) European Court of Human Rights 15 December 2009 [2010] E.M.L.R. 21; (2010) 50 E.H.R.R. 46; 28 B.H.R.C. 616; Times, December 16, 2009

Case Analysis

Summary: An order requiring that certain newspapers disclose to a brewing company documents that could lead to the identification of journalistic sources who had leaked information about a takeover bid violated the European Convention on Human Rights 1950 art.10. The public interest in the protection of journalistic sources was not outweighed by the company’s arguments that the institution of proceedings against the sources would eliminate the threat of damage by any future dissemination of confidential information and would compensate it for past breaches of confidence.

[convention arguments] success of article 10 here

[1] Reed & Murdoch A Guide to Human Rights Law in Scotland Tottel: Edinburgh (2008); Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide; Lustgarten et al (1997) Libel and the Media Oxford University Press: Oxford

[2] Kaye v Robertson [1991] F.S.R. 62

[3] Kaye v Robertson [1991] F.S.R. 62 at page 68 per Bingham L.J.

[4] Article 9 of the Civil code in France simply says: “Everyone has the right to privacy”.

[5] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 1

[6] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction xii

[7] Sunday Times v United Kingdom (A/30) European Court of Human Rights, 26 April 1979

[8] Article 8(2) provides: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[9] Article 10(2) provides: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

[10] Human Rights Act s.12(4)

[11] Douglas v. Hello! Ltd [2001] 2 W.L.R. 992 at para. 135, per Sedley L.J. and para. 150, per Keene L.J.

[12] Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the

Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6 pp 824-849

[13] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[14] Imutran Ltd v Uncaged Campaigns Ltd [2001] E.C.D.R. 16 per Sir Andrew Morritt VC at p.198

[15] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide p.2

[16] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[17] Baturina v Times Newspapers [2011] EWCA Civ 308

[18] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[19] Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats Retrieved 2011.4.1

[20] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf

[21] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction xii

[22] Ibid

[23] Ibid p.76

[24] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide

Turpin & Tomkins (2009) British Government and the Constitution (6th ed) Cambridge: Cambridge, New York , Melbourne , Madrid

[25] Article 11 of the Declaration of the Rights of Man and of the Citizen

[26] Professor Markesinis (1990) The German Law of Torts 2nd ed

[27] Bill of Rights 1st, 3rd, 4th amendments

[28] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.513

[29] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[30] HL Deb 06 June 1973 vol 343 cc104-78

[31] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.513

[32] Entick v Carrington (1765) 19 St Tr 1030

[33] Regulation of Investigatory Powers Act 2000 Parts I and II

[34] Data Protection Act 1998

[35] Freedom of Information Act 2000

[36] Intellectual property law

[37] Such as the common law offence of sedition: See Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.3

[38] Examples include the Obscene Publications Act 1959 and 1964, Official Secrets Act 1911 & 1989, the Public Order Act 1986 and trespass as demonstrated by Entick v Carrington

[39] Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the

Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6 pp 824-849

[40] S.6(3)

[41] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[42] (1849) 1 Mac & G 25

[43] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.533

[44] Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide p.389

[45] [1967] 1 QB 349

[46] [1969] RPC 31

[47] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 99

[48] Ibid p. 99

[49] Ibid

[50] Argyll v Argyll [1967] 1 QB 349

[51] Stephens v Avery [1988] Ch 449

[52] [1976] 1 QB 752 [Crossman Diaries]

[53] Attorney General v Jonathan Cape [1976] 1 QB 752 at p.769-770

[54] Where the Government unsuccessfully attempted to restrain the memoirs of a retired secret service agent: Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109

[55] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 99

[56] [1994] EMPLR 134

[57] Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at p.807 and see Loon, Wee (1996) ‘The Emergence of a right to privacy within the law of confidence?” in European Intellectual Property Review vol.18(5) at p.312

[58] (no.1) [2001] Q.B. 967 (CA (Civ Div)

[59] Douglas v Hello! (no.9) [2004] EWHC 63 (Ch)

[60] Kearns, Paul (2001) ‘Privacy and the Human Rights Act 1998’ in New Law Journal vol.151 p.377, Carey, Peter (2001) ‘Hello to Privacy?’ in Entertainment Law Review vol.12(4) pp120-123, Grundberg, Peter (2001) ‘The “new” Right to Privacy’ in Intellectual Property Lawyer vol 9 (Feb) pp12-13

[61] Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div) at p.1001

[62] “It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of the invasion of their privacy by publicity that shows them in an unfavourable light”. [1977] 1 W.L.R. 760 Per Bridge L.J at p.765

[63] Ash v Mckennit [2008] Q.B. 73

[64] Argyll v Argyll [1967] 1 QB 349

[65] Stephens v Avery [1988] Ch 449

[66] Shelley Films Ltd v Rex Features Ltd [1994] EMPLR 134

[67] Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div)

[68] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 p.100

[69] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.686 per Eadie J

[70] (1990) Cm 1102

[71] O’Malley, Tom & Soley, Clive (2000) Regulating the Press Pluto Press: London

[72] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[73] Regina v Advertising Standards Authority Ltd Ex p.Vernons Organisation [1992] 1 W.L.R. 1289 per Laws J at p.1292

[74] Regina v Shayler [2003] 1 A.C. 247 at p.266

[75] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[76] Leigh, David & Vulliamy, Ed (1997) Sleaze: Corruption in Tory Britain Fourth Estate

[77] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[78] Bromley, Michael & Stephenson (eds) (1998) Sex, Lies and Democracy: the press and the public Longman

[79] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.709

[80] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.547

[81] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[82] Press Complaints Commission (January 2011) Editors Code of Conduct public interests s.2 accessed on 1st April 2011 and available from: http://www.pcc.org.uk/cop/practice.html

[83] Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB) per Justice Eady at para 69

[84] Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[85] A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

[86] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[87] [1936] A.C. 578

[88] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.3

[89] ibid p.2

[90] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[91] Moore, Roy.L & Murray, Michael.D (2007) Media Law and Ethics Taylor & Francis Group: New York

[92] R. (On the application of Telegraph Group plc) vs Sherwood [2001] 1 W.L.R. 1983 per Longmore LJ at p.1986

[93] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

[94] Human Rights Act 1998 s.6(1)

[95] [2001] Fam 430

[96] Douglas v Hello! (no.1) [2001] Q.B. 967 at para 133 per Sedley LJ

[97] Perry v UK (2004) 39 EHRR 76

[98] X and Y v. Netherlands (1985) 8 E.H.R.R. 235

[99] Pretty v UK (2002) 35 EHRR 1

[100] Ibid at p.14

[101] Article 8(2) of the ECHR

[102] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22 and see Murray v Express Newspapers

Plc [2008] EWCA Civ 446

[103] Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 W.L.R. 934

[104] [2009] E.M.L.R. 22

[105] [2008] EWHC 687 (QB)

[106] Plc [2008] EWCA Civ 446

[107] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at para 110 per Eadie J

[108] Ibid at para 111

[109] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[110] Ibid

[111] Sunday Times v United Kingdom (A/30) European Court of Human Rights, 26 April 1979

[112] R. v. Shayler [2002] 2 W.L.R. 754.

[113] Regina (Prolife Alliance) v British Broadcasting Corporation [2004] 1 A.C. 185

[114] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[115] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[116] Von Hannover v Germany [2004] E.M.L.R. 21

[117] Rudolf, Beate (2006) ‘Council of Europe: Von hannover v Germany’ in International Journal of Constitutional Law

[118] [2004] E.M.L.R. 21 at p.381

[119] Article 10(2)

[120] Rudolf, Beate (2006) ‘Council of Europe: Von hannover v Germany’ in International Journal of Constitutional Law

[121] Rudolf (2006) argues this is simply a matter of less weight.

[122] Campbell v MGN Ltd [2004] UKHL 22

[123] [2004] UKHL 47 at para 23

[124] Campbell v MGN Ltd [2004] UKHL 22 per Lord Hoffman at para 36

[125] Ibid per Lord Hope at para 112

[126] [2004] UKHL 47 per Lord Steyn at para 17

[127] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf clause 7

[128] Press standards, privacy and libel: second report of session 2009 Volume 2 By Great Britain: Parliament: House of Commons: Culture, Media and Sport Committee

[129] Farage v Times Newspapers unreported 11th June 2008, Raulynaitis v News Group Newspapers Ltd 26th February 2009, Jones v Telegraph Media Group Ltd 23rd June 2009, Hewitt v Express Newspapers unreported 22nd July 2010 , Lait v Evening Standard Ltd unreported 9th December 2010

[130] Fowler, Andrew (2011) The Most Dangerous Man in the World Melbourne University Press: Melbourne

[131] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.74

[132] Sim v Stretch [1936] 2 All ER 1237 at 1240

[133] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.563

[134] S.69

[135] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.562

[136] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf clause 8

[137] Ibid page 36

[138] Ibid

[139] Ibid clause 1

[140] Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB)

[141] Hulton v Jones [1910] AC 20

[142] For example “all lawyers” or “all politicians” and not “the lawyers from matrix chambers”.

[143] Godfrey v Demon Internet [1999] EMLR 542

[144] S.1 of the 1996 Act

[145] Duke of Brunswick v Harmer (1849) 14 Q.B. 185 (QB)

[146] Dunlop, Rory (2006) ‘Article 10, the Reynolds test and the rule in the Duke of Brunswick’s case – the decision in Times Newspapers Ltd v United Kingdom’ in European Human Rights Law Review 3, 327-339

[147] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York p.9

[148] British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

[149] Barendt & Hitchens (2000) Media Law: Cases and Materials Pearson Longman: worldwide

[150] S.5

[151] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.564

[152] Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide p.375

[153] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.74

[154] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[155] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[156] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 per Lord Nicholls at p.205

[157] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

[158] Ibid at para 57 per Lord Hoffman

[159] R. Clayton and H. Tomlinson, The Law of Human Rights (Oxford University Press, 2000), para.15.249.

[160] Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[161] [2006] UKHL 44

[162] [2010] EWCA Civ 804

[163] Ibid at paras 67 – 76

[164] Joyce, Andrew (2006) ‘The Reynolds Public Interest Defence’ The IT Law Community accessed on 1st April 2011 and available from: http://www.scl.org/site.aspx?i=ed920

[165] Horrocks v Lowe [1975] AC 135 at 150

[166] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.110

[167] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York

[168] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.72

[169] R. (On the application of Telegraph Group plc) vs Sherwood [2001] 1 W.L.R. 1983 per Longmore LJ at p.1986

[170] Human Rights Act 1998 s.6

[171] Bentham, Martin (2011) ‘Ken Clarke unveils libel law reform to strengthen free speech’ in London Evening Standard online edition accessed on 1st April 2011 and available from: http://www.thisislondon.co.uk/standard/article-23932236-ken-clarke-unveils-libel-law-reform-to-strengthen-free-speech.do

[172] Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) Retrieved 2011.4.1 and available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats

[173] [2009] EWHC 1101 (QB)

[174] Jeynes v News Magazines Ltd [2008] EWCA Civ 130

[175] Lait v Evening Standard Ltd [2010] EWHC 3239 (QB)

[176] Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

[177] Against either British publishers or newspapers directly.

[178] Includes both reported and unreported cases.

[179] It is perhaps too early to analyse the impact Mr.Justice Tugendhat has had as the top libel judge given that he was appointed on 1st October 2010.

[180] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York p.190

[181] See Appendix A for a full breakdown of all the cases within this period.

[182] Jeynes v News Magazines Ltd [2008] EWCA Civ 130, Curran v Scottish Daily Record and Sunday Mail Ltd

[2010] CSOH 44, Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) [2010] EWHC 2819 (QB), Lait v Evening Standard Ltd [2010] EWHC 3239 (QB) Ewing v News International Ltd [2008] EWHC 1390 (QB)

[183] http://www.associatednewspapers.com/ accessed on 5th April 2011

[184] http://www.newsinternational.co.uk/ accessed on 5th April 2011

[185] http://www.express.co.uk/home accessed on 5th April 2011[under the ownership of Northern & Shell]

[186] http://www.gmgplc.co.uk/ accessed on 7th April 2011

[187] http://www.newsinternational.co.uk/ accessed on 8th April 2011

[188] http://www.inmplc.com/ accessed on 5th April 2011

[189] http://www.telegraph.co.uk/ accessed on 4th April 2011

[190] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York .64

[191] Ibid

[192] Financial Times Ltd v United Kingdom (821/03) (2010) 50 E.H.R.R. 46

[193] Franklin, Bob (1999) Social Policy, the Media and Misrepresentation Routledge: London and New York

[194] Osbourne v Express Newspapers Unreported 5th June 2008

[195] Lucas v Express Newspapers unreported 25th May 2010

[196] George v Express Newspapers unreported 19th July 2010

[197] Shaffer v Associated Newspapers Ltd Unreported 13th February 2008, Osbourne v Express Newspapers Unreported 5th June 2008 , Farage v Times Newspapers unreported 11th June 2008, Murat v Associated Newspapers Ltd unreported 16th July 2008, Tesco Stores Ltd v Guardian News &Media Ltd [2009] E.M.L.R. 5; Osbourne v News Group Newspapers Ltd unreported 12th January 2009, Marshall v Express Newspapers unreported 29th January 2009, Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009, Hudson v Associated Newspapers Ltd unreported 4th March 2009, Jones v Telegraph Media Group Ltd unreported 23rd June 2009, Zuma v Guardian News & Media Ltd unreported 30th July 2009, Gascoigne v News Group Newspapers Ltd unreported 7th May 2010 Margolis v Independent News & Media Ltd unreported 21st May 2010, Lucas v Express Newspapers unreported 25th May 2010, George v Express Newspapers unreported 19th July 2010, Hewitt v Express Newspapers unreported 22nd July 2010

[198] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 100

[199] Ibid p.76

[200] Ashley Cole is a recent example of this in relation to his extra-marital infidelities: see Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

[201] Berezovky v Forbe Inc (No.2) [2001] EMLR 48, CA

[202] Draft Defamation Bill clause: 1 “Libel is currently actionable without proof of actual damage” accessed on 14th March 2011 and available from: http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf

[203] Lucas v Express Newspapers unreported 25th May 2010

[204] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 99

[205] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), Murray v Express Newspapers Plc [2008] EWCA Civ 446, Times Newspapers Ltd v United Kingdom (3002/03) [2009] E.M.L.R. 14, Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22, Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21, In re Guardian News and Media Ltd and others [2010] 2 A.C. 697

[206] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-89

[207] [2008] EWHC 687 (QB)

[208] “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS”

[209] See chapter 2

[210] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.681

[211] Douglas v Hello! Ltd (No.1) [2001] Q.B. 967 at para 137

[212] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.681

[213] Ibid at p.737

[214] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-79

[215] [2008] EWCA Civ 446

[216] Murray v Express Newspapers Plc [2008] EWCA analysis of case

[217] Ibid para 57 per Sir Anthony Clarke MR

[218] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.86

[219] (3002/03) [2009] E.M.L.R. 14

[220] Mora, David Paul (2009) ‘The compatibility with art.10 ECHR of the continued publication of a libel on the Internet: Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom’ in Entertainment Law Review vol. 20(6) pp 226-228 at 226

[221] Times Newspapers Ltd v United Kingdom (3002/03) [2009] E.M.L.R. 14 at p.259

[222] Mora, David Paul (2009) ‘The compatibility with art.10 ECHR of the continued publication of a libel on the Internet: Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom’ in Entertainment Law Review vol. 20(6) pp 226-228 at 228

[223] [2009] E.M.L.R. 22

[224] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22 at p.412 per Eady J.

[225] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[226] (821/03) [2010] E.M.L.R. 21

[227] Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21 at p.1172

[228] (3002/03) [2009] E.M.L.R. 14

[229] [2010] 2 A.C. 697

[230] In re Guardian News and Media Ltd and others [2010] 2 A.C. 697 para 43 per Lord Rodger

[231] Ibid para 75 per Lord Rodger

[232] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-79

[233] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[234] In re Guardian News and Media Ltd and others [2010] 2 A.C. 697 para 78

[235] (821/03) [2010] E.M.L.R. 21

[236] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[237] As of October 2010 the mantle has been taken by Tugendhat J see Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

[238] Mosley v News Group Newspapers Ltd [2008] EWHC 687

[239] British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

[240] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[241] Shaffer v Associated Newspapers Ltd Unreported 13 February 2008, Smith v World Entertainment News Network Ltd unreported 22nd February 2008, Osbourne v Express Newspapers unreported 5th June 2008 [cont next page]

Farage v Times Newspapers unreported 11th June 2008, Murat v Associated Newspapers Ltd unreported 16th July 2008, McGill v 365 Media Group Plc unreported 31st July 2008, Mottley v IPC Media Ltd unreported 7th October 2008

Murat (Robert) v British Sky Broadcasting Ltd unreported 14th November 2008, Osbourne v News Group Newspapers Ltd unreported 15th January 2009, Marshall v Express Newspapers unreported 29th January 2009

Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009, Zola v BBC unreported 12th May 2009

Jones v Telegraph Media Group Ltd unreported 23rd June 2009, Bari v BBC unreported 16th July 2009

Zuma v Guardian News & Media Ltd unreported 30th July 2009, Andre v MGN Ltd unreported 31st July 2009

Buxton v MGN Ltd unreported 10th December 2009, Abramovich v Gruppo Editoriale L’Espresso SPA unreported 18th March 2010, George v MGN Ltd unreported 14th May 2010, Margolis v Independent News & Media Ltd unreported 21st May 2010, Hewitt v Express Newspapers unreported 22nd July 2010

[242] [2009] E.M.L.R. 22

[243] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[244] Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB)

[245] Martin v Channel Four Television Corp [2009] EWHC 2788 (QB);

[246] Williams v MGN Ltd [2009] EWHC 3150 (QB)

[247] Bowman v MGN Ltd [2010] EWHC 895 (QB)

[248] British Chiropractic Association v Singh [2011] 1 W.L.R. 133

[249] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[250] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44 per Lord Hoffman at para 57 ; chapter 3A

[251] British Chiropractic Association v Singh [2011] 1 W.L.R. 133 para 23

[252] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 5

[253] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 568

[254] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) pp 199-208

[255] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 575

[256] (Act no 70-643 of 17 July 1970)

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order” retrieved on 3rd April 2011 and available from [English translation of the Civil Code of France]: http://195.83.177.9/upl/pdf/code_22.pdf

[257] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 202

[258] “la sphere secrete ou l’individu aura le droit d’etre laisse tranquille”

[259] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 pp 575

[260] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 204

[261] “ARTICLE 226-1 (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

[262] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 203

[263] ARTICLE 226-2 retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

[264] Ibid ARTICLE 226-8

[265] Ibid ARTICLE 227-24

[266] Ibid ARTICLE 227-28

[267] Ibid ARTICLE 412-8

[268] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 pp 568 – 582

[269] Bigot, Dalloz (2002) quoted from Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[270] Ibid

[271] Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006.

[272] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[272] Ibid

[273] Ibid p.578

[274] A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

[275] Ibid p.578

[276] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[277] Von Hannover v Germany [2004] E.M.L.R. 21

[278] BBC News 21st March 2011 ‘ France fines Google over Street View Data Blunder’ retrieved on 2nd April 2011 and accessed at: http://www.bbc.co.uk/news/technology-12809076

[279] Cousin & Sordet (2009) ‘France: Radical Thoughts on how to Enhance Right to Privacy’ in Privacy Laws & Business International Newsletter vol.101 pp 6-7

[280] Berlins, Marcel (2008) ‘Publicity-mad Sarkozy leads fight for privacy’ in Guardian online accessed 9th April 2011 and available from: http://www.guardian.co.uk/world/2008/feb/04/france.comment

[281] See chapter 2

[282] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 2

[283] Murray v Express Newspapers Plc [2008] EWCA; Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[284] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[285] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22

[286] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[287] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[288] McVicar v United Kingdom (46311/99) (2002) 35 E.H.R.R. 22 and Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[289] Merrills, J.G (1993) The Development of International Law by the European Court of Human Rights Manchester Univerity Press: Manchester at p.185

[290] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 2

[291] Plunkett, John (2011) ‘Government unveils libel law reforms’ from Guardian online retrieved 28th March 2011 and available from: http://www.guardian.co.uk/media/2011/mar/15/libel-law-reforms

[292] Clause 8 of the Draft Defamation Bill

[293] Clause 1 Ibid

[294] Clause 7 Ibid

[295] Clause 6 Ibid

[296] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[297] Young, Hugo (2003) Supping with the Devils Atlantic Books: London

[298] Rozenberg, Joshua (2011) ‘The Libel Reforms are a Step in the Right Direction: But do they go far enough?’ Guardian online retrieved on 1st April 2011 and available from: http://www.guardian.co.uk/law/2011/mar/15/libel-reforms-step-campaigners-satisfied

[299] Ibid

[300] Phillipson, Gavin (2009) ‘Max Mosley Goes to Strasbourg: Article 8, claimant notification and interim injunctions’

[301] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

[302] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[303] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.19

[304] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.19

[305] S.12(3)

[306] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.87

[307] A.V.Dicey (1888) An Introduction to the Study of the Law of the Constitution (10th ed) Macmillan p246

[308] Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[309] Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB) per Justice Eady at para 69

[310] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.682

[311] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.76

[312] Knightley, Phillip (1997) ‘The thalidomide Scandal: Where we went Wrong’ in Pilger, John (ed) Tell Me No Lies Jonathan Cape: London

Introduction

Human rights are defined as those inalienable and universal rights and freedoms which all individuals enjoy simply because they are human, they are entitlements which we all share regardless of age, gender, race, sexuality, class or culture (Henry 2009: 1). Human right are rights inherent to all human beings, irrespective of the nationality, place of resident, sex, national or ethnic origin, colour, religion, language, or any other status.

Human rights are entitlement gotten outside/without discrimination. these rights are all interrelated, interdependent and indivisible in the sense that most states have the same human right laws that govern the security of individual and group with brings about equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to development and self-determination.

Most human rights are expressed and supported by law, in terms of treaties, customary international law, general principles and other sources of international law. infact, these human right laws lay down obligations of Governments to act in certain way in order to promot and protect human rights.

Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.

Universal Declaration on human rights in 1948 contains 30 articles. but the most important of these are considered as follows:

the right to life, liberty, property and security of person,

the right to an education,

the right to employemtn, paid holidays, protection against unemployment and social security,

the right to participate fully in cultural life

freedome from torture or cruel, inhumane treatement or punishment,

freedome of expression and opinion

freedom of thought, conscience and religion.

Vienna World conference on human rights 1993 noted that ‘it is the duty of states to promoted and protect all human rights and fundamental freedoms, regardless of their politica, economic and cultural systems.

Human Rights Act in the UK

“The Human Rights Act was brought about as a result of the European Convention on Human Rights, which was set up by the Council of Europe. This was to ensure that the violations of human rights under the reign of Hitler during the Second World War, would not be able to happen again. The act however, was only passed into UK law in October 2000. individual now have the right to seek redress in a UK court instead of having to visit the European Court of Human Rights in Strasbourg, which covered the act of: the right to life, prohibition of torture, inhuman and degrading treatment, Freedom from forced labour, Right to liberty, Right to a fair trial, Retrospective penalties, Right to respect for private and family life, Freedom of thought, conscience and religion, Freedom of expression, Freedom of assembly and association, Right to marry, Prohibition of discrimination”.

The Human Rights Act 1998, has affected the lives of British Citizens, for example recently a law allowing terror suspects to be detained for up to 90 days without charge, but this was dropped as it was deemed to breach the rights of those being detained for such a long period of time.

Importance of human rights

Human rights help everyone to have a secured and safe life. it educates people to be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

Criticisms against human rights

Human rights as a principle is always positive. They should be the basis for evaluating any regime, aid program, etc. The criticism can arise when human rights are written down as laws, as they are almost impossible to police and there can be very blurry edges when defining everyday practicalities, such as a bill of rights.

Some sociologists also see a problem with western countries defining human rights in a way that makes sense to westerners, yet is at odds with another culture. An example is child education. we see it as a human right and wish to enforce it globally. Many poor countries depend on working children in order for the family to eat and survive. When the child is forced to go to school, they lose a breadwinner, and a parent can also be forced to cease work in order to now attend to a child who is not working at home like they used to. Costs are also astronomical in developing countries to school a single child, and many families are large. end result is deepening of impoverishment before the fruits of the child’s education kick in decades later. So is this still an easily recognisable human right?

“Human Rights” is a much used and abused term today, and is used extensively for political gain. The term is used to defend Human freedom as well as destroy it. People tend to attach importance to particular human rights issue according to ideology and political convenience. if a man is not to have recourse or rebellion against tyranny and oppression, taking law into their own hands,”Human Rights” should be built into the society as a natural rule. As a last resort only, law should be applied as a protection.

Desite the fact human right laws are in existence, there is still racism and discrimination which has criticised human right in a way that it can no longer make any impact to individual in some societies.

Conclusion

Human rights are the rights of individual men and women to basic freedoms such as freedome of association, freedom speech, etc.

one should note that ‘the improvement fo one right facilitates advancement fo the others, likewise, the deprivation of one right adversely affects the others.

Introduction

First of all, much debate in the United Kingdom amongst commentators and some judges in relation to the human rights are currently being generated.

The amalgamation of the European convention on human rights was introduced by Tony Blair (prime minister of the United Kingdom from the 2nd of May to the 27th June 2007) who led the government in 1998, and more importantly it was known as Human Right Act 1998.

The EuropeanCourtofHumanRightsin Strasbourg is a national court, formed by the European Convention on Human Rights, which provides legal remedy of final alternative for persons who feel that their human rights have been desecrated by a contracting party to the Convention.

In addition, I would like to state that it is against the law for public authorities to act contrary to the convention rights. Parliamentary Sovereignty which has however been elemental to the constitution of England and Wales since the 17th century had an important role when it came to the realization of the incorporation of the European Court of Human Right (ECHR) into the United Kingdom law but the convention rights come into force through an Act of Parliament.

Second of all, The Human Right Act section 6 also states that public authorities including courts must take actions attuned with definite Convention Rights as enforced in the European Court of Human Rights (ECHR). Meanwhile, the Human Rights Act empowers the judiciary courts to interpret both delegated and primary legislations which is very well incompatible with the Convention Rights.

Incompatibility under section 4 of the European Court of Human Right only comes in place when the domestic legislation is in conflict with the ECHR, interestingly it does not affect the validity of the legislation and the right to legislate contrary to the human rights are kept because no one can override any law at all which is made by the parliament, for an incompatible legislation to be set aside and stop to exist some amendments have to e made by the parliament.

Incompatible legislation will have to go through the parliament for amendment and scrutiny. There would have been a massive entrenchment on the citizens’ individual human rights because protective mechanism would not have taken place within this period as was in the case of GC & C v Commissioner of Police for Metropolis. This is an arbitrary policy which fails to permit consideration of personal factors and it as well permits imprecise custody of samples received in state of affairs where neither of the claimants have been accused of any offence or convicted of any offence.

Although section 54 of the Police and Criminal Justice Act 2001 Section 82, which was amended states that fingerprints and DNA samples can be retained and used for the purposes related to the prevention and detention of crime investigating offences or conducting persecutions.

Furthermore, Public authorities have a defence if legislation requires them to act the way they did in section 6(2), this was shown in the GC & C v Commissioner of Police for the Metropolis [2010] EWHC 2225, through the policy which the Chief Constable of police officers adopted, in cognizance to retain biometric samples, DNA and fingerprints for an unlimited period like was explained above, and it infringes individual rights.

Lastly, the introduction of the Human Rights Act is a development which is very well welcome because of its protection of individual convention rights. European Court of Human Right laws are not merged automatically into the United Kingdoms’ law simply because the United Kingdom is a dualist state unlike many continental European countries, which are ‘monist’. In dualist states a treaty ratified by the Government does not change the laws of the state except and until it is incorporated into national law by legislation. Until incorporating legislation is put to force, the national courts have no authority to put into effect treaty rights and obligations both on behalf of the Government or a private human being.

Parties agree to secure these rights and freedoms to everyone within their jurisdiction. The Convention also establishes international enforcement machinery. To ensure the observance of the activities undertaken by the Parties, the European Court of Human Rights in Strasbourg has been set up; it deals with individual and inter-State petitions. At the demand of the Committee of Ministers of the Council of Europe, the Court may also give advisory opinions with reference to or pertaining the interpretation of the Conventions and the protocols thereto.

Under the European Communities Act 1972 (ECA) Parliament willingly gave effect to the United Kingdoms’ obligations and duties under the previous Community and now European Union Treaties in national law. The European Community Act (ECA) defines the legitimately certified or legal relationship amid the two if not separate spheres of law, and exclusive of it European Union law could not become part of national law.

Most of the Contracting Parties to the European Convention on Human Rights have included the Convention into their own national legal orders, either through constitutional provision, statute or judicial decision. Coupled with the access of force of Protocol No. 11, has radically improved the status of Convention rights, and the impact of the case law of European Court of Human Rights.

In conclusion, the laws cannot be changed because of GC & C v Commissioner of Police for Metropolis because a law made is a law to be kept and followed. It cannot be made flexible or easily amended at any given time because if it did there would not be any respect for the law and that would make the law be easily influenced which is not good for a country or state.

Human Rights in the United Kingdom are not being fully protected but despite that fact the court has however being able to protect individual rights just like in the case of R v The Head Teacher and Governors of Denbigh High School [2006] UKHL 15, where the Court of Appeal and the House of Lords was In favour with shabina Begum.

Bibliography:

Le Sueur, A., Sunkin, M., Murkens, J.E.K., ‘Public Law: Text, Cases and Materials’, (Oxford University Press: New York 2010)

Le Sueur, A. & Sunkin, M., ‘Public Law’, (Addison Wesley Longman Limited: New York, 1997)

Abstract

This essay examines whether the Human Rights Act 1998 sufficiently protects individuals’ rights in the UK. The essay considers the declaration of incompatibility as a major limitation of the Human Rights Act using the Belmarsh detention case. Despite this limitation, I argue that based on the overall case law and reports on the Human Rights Act, it is overwhelming apparent that the Act goes far enough to provide individuals in the UK with protection of their rights.

Introduction

The Human Rights Act 1998 (HRA), in force from 2 October 2000, has incorporated civil rights of the European Convention of Human Rights (ECHR) into UK law. As the first legislation attempting to protect human rights at home, it is important to explore its success in the last decade. In order to assess whether the HRA sufficiently protects individuals’ rights in the UK, this essay will consider the objective of the HRA and then analyse the case of A and Others v. Secretary of State for the Home Department (2004) to demonstrate the caveat of declarations of incompatibility. This case has particularly posed a challenge to the effectiveness of the HRA in upholding rights as fundamental. However, successes of the HRA provide overwhelming evidence that the HRA does go far enough to protect the rights of individuals in the UK.

Bringing Rights Home

The purpose of the HRA was to allow UK courts to provide a remedy to violations of rights in the ECHR and thereby avoid the cost of lengthy court cases at the European Court of Human Rights in Strasbourg. Not only did the HRA allow UK courts to consider relevant jurisprudence in Strasbourg (s2), but the Act also imposed obligations on public authorities to uphold Convention Rights (s6). The HRA is thus a domestic check of rights that links into the global human rights movement. Gearty argues that the language of civil liberties is more vulnerable than the language of human rights due to no requirement to be compatible (2005, pp. 27). Consequently, to use the phrase of the White Paper published in precedence of the HRA, it appears that the HRA has made an attempt at “bringing rights home” (Home Office, 1997).

Declarations of Incompatibility

Yet one of the limitations of the HRA can be clearly demonstrated particularly through the case of A and others v. Secretary of State for the Home Department (2004). While it held that indefinite detention of foreign prisoners in Belmarsh without trial was incompatible with Article 5(1) of ECHR because it was discriminatory on the grounds of nationality, this decision was only a declaration of incompatibility (s4). With just the ability to put political pressure on producing legislation compatible with human rights law, the judgement had no legal effect as the HRA (s4 (6a)) does not grant courts the power to invalidate Acts of Parliament. Furthermore, Lord Hoffman dissented with the opinion that the case overall was incompatible because the precondition of a ‘threat to the life of the nation’ was not present. It should also be noted that Article 6 of the ECHR outlining the right to a fair trial within ‘reasonable time’ was not considered in the judgement. This suggests that the courts only have an interpretative obligation allowing Parliament to remain supreme. The effectiveness of declarations of incompatibility is additionally questioned as the government replaced the Anti-Terrorism Crime and Security Act 2001 with the Prevention of Terrorism Act 2005, introducing ‘control orders’ that apply to both Britons and non-nationals. Fenwick claims that due to lack of judicial power, the government are able to pass such legislation restricting civil rights without fear of the law being struck down (2002, pp.194). The case at hand seemingly supports this perspective that rights can still be restricted, bringing into question of whether the HRA is committed to the idea of human rights as absolute.

Successes through the HRA

However, other cases have proved to be far more successful in deeming the HRA as effective in protecting individuals’ rights in the UK. Although Parliament is free to ignore Declarations of Incompatibility, Klug (2009) observes that Parliament has responded to all 18 Declarations of Incompatibility that have been made and not been overturned on appeal. For example, in Bellinger v. Bellinger (2003), the courts declared that not recognising gender change of post-operative transsexuals in marriage law is incompatible with Articles 8 and 12 of ECHR. This resulted in Parliament in passing the Gender Recognition Act 2004. Likewise, using the right to private and family life, Diane Blood won her case to have her children’s father recognised legally despite being conceived after his death (O’Loan, 2009: 78). The result was a change in the Human Fertilisation and Embryology Act 1990, which may have impacted approximately 50 families (Dyer, 2003). This demonstrates the ‘dialogue’ encouraged by the HRA between the courts and Parliament is sufficiently balanced where the HRA is properly implemented and does not fall victim to the will of politicians. This is supported by Gearty (2006) who states that cases such as the Belmarsh case as discussed previously indicates the balance is perfect because the strength is that judges are ‘part of a discussion’ rather than overriding legislation. In this sense, there is sufficient scope for the HRA to safeguard rights of individuals as fundamental and absolute.

On a similar note, Mathews et al. (2008) found numerous individuals, from all walks of life, have used the language of the HRA to improve the experience of public services without any direct remedy from the courts. The Equality and Human Rights Commission’s Inquiry also ascertained that the Human Rights Act has provided a rights-based framework for public services including in the NHS (O’Loan, 2009: 38). While Gearty (2006) suggests the possibility of a social and economic bill of rights similar to the HRA in the future, it seems there may not be a need given that the reach of the HRA is extensive.

Conclusion

To conclude, on the whole, the HRA has gone far as possible to protect the rights of individuals in the UK because it is overwhelmingly evident that the HRA is central to Britain’s human rights culture. It is used as a tool to protect individuals’ rights both in the courts and in wider society. The HRA has no doubt been challenged by cases such as those involving terrorist suspects as discussed in this essay. The power of courts to issue a declaration of incompatibility merely appears to be of a political nature. However, this has not been abused by the government by ignoring such declarations. Although the legal changes enacted as a result of the Belmarsh case had little effect in guaranteeing civil rights, other case law surrounding the HRA shows that Parliament has responded effectively to make legislation compatible with the rights in the ECHR.

Bibliography

A and Others v. Secretary of State for the Home Department (2004) UKHL 45. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2007/45.html [Accessed: 04/01/2013].
Bellinger v. Bellinger (2003) UKHL 21. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2003/21.html [Accessed: 04/01/2013].
Dyer, C. (19 September 2003) Diane Blood Law Victory gives her Sons their ‘Legal’ Father. [Internet] Available from: http://www.guardian.co.uk/science/2003/sep/19/genetics.uknews [Accessed: 04/01/2013].
European Convention of Human Rights (1950) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 268-277.
Fenwick, H. (2002) Civil Liberties and Human Rights. 3rd Edition. London: Cavendish Publishing.
Gearty, C. (2005) “11 September 2001, Counter-Terrorism, and the Human Rights Act” in Journal of Law and Society. Vol. 32, No. 1. pp. 18-33.
Gearty, C. (2006) Language of Fear is Difficult to Beat. [Internet] Available from: http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/SocialistLawyer.pdf [Accessed: 02/01/2013].
Home Office (1997) Rights Brought Home: The Human Rights Bill. The Stationary Office.
Human Rights Act (1998) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 489-501.
Klug, F. (10 December 2009) Promoting and Protecting Human Rights. University of Westminster Law School.
Matthews, L. et al. (2008) The Human Rights Act – Changing Lives. 2nd Edition. London: The British Institute of Human Rights.
O’Loan, D. N. (2009) Human Rights Inquiry: The Report of the Equality and Human Rights Commission. Equality and Human Rights Commission

Abstract

This essay will outline the main attributes of the Human Rights Act 1998 and seek to argue that it does not go far enough to protect an individual’s rights. It will explain the difference between the procedural and substantive protection on offer to an individual and will show that whilst on a procedural level the rights appear to be protected, this is in fact not the case. The diversity of academic commentary on this topic will be explained to further enhance the essay’s argument that more is required in order to adequately protect an individual’s rights.

Introduction

The majority of the Human Rights Act 1998 (HRA) came into force in the UK on 2 October 2000 and enabled individuals to rely upon their European Convention on Human Courts (ECHR) rights in the domestic courts. There is a clear divide amongst the academics as to whether the Act has gone far enough to protect the rights of individuals in the UK. Whilst there is no denying that the HRA has afforded British residents the opportunity to use their rights in the courts, whether this amounts to a true protection of their rights will now be debated.

The Human Rights Act 1998

One of the main attractions of the HRA is that it allows individuals to pursue remedies against public organisations/bodies in the domestic courts as opposed to going to Strasbourg (Section 6, HRA). Before the HRA, if an individual alleged that one of their Convention rights had been breached, then the only course of action available to them was to go to the European Court of Human Rights in Strasbourg. The HRA makes it illegal for any public body or organisation to breach an individual’s Convention rights (Section 6, HRA). Additionally, judges are now required to consider “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” (Section 3(1), HRA). If this is not possible, then judges are under a duty to issue a declaration of incompatibility (Sections 4 and 10, HRA). It is important to note the limitation of their powers and they are no power to strike down the primary legislation, despite its incompatibility. One of the reasons for this is constitutionally, which is to maintain Parliament’s sovereign nature. This is one of the key criticisms facing the HRA as arguably it affords little protection to individuals whose rights are being violated due to a piece of legislation being incompatible with their ECHR rights.

However, the statistics show that out of 28 cases where a declaration of incompatibility was issued, only case remains open for remedy (Ministry of Justice, 2012). This one exception is the controversial case of Chester v Secretary of State for Justice [2010] EWCA Civ 1439 which involves the right of prisoners to vote in elections. It has become something of a political football, but arguably the statistic alone shows that Parliament has taken the issue of incompatibility seriously as remedies have been provided in the other 27 cases. The other remedy available is the award of damages under section 8(1) of HRA.

Rights Protected by HRA

One of the over-arching principles of the HRA is that public bodies treat individuals equally and with respect. The Act allows the rights under the ECHR to be given effect into UK law and ensures individuals enjoy rights such as right to life (Article 2), the right not to be tortured (Article 3) and the right to a private and family life (Article 8). However, these rights have been used in various areas of law by lawyers such as planning applications (Coster v UK [2001] 33 EHRR 20).

Whilst this appears to be positive protection of individual rights, there are numerous examples of breaches of the Convention rights since the introduction of the HRA. One such instance is the right to privacy being curtailed through the Regulation of Investigatory Powers Act 2000 which has permitted government at the local level to carry out covert surveillance. Although on the other side of the argument, it can be shown that the introduction of HRA has allowed individuals to successfully pursue claims of invasion of privacy, not permitted before the HRA. These include Max Mosley and Naomi Campbell (Max Mosley v News Group Newspapers Limited [2008] EWHCC 177 and Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22).

Academic Commentary

Academics are divided in their opinions regarding the effect of the HRA on the protection of individual rights. On the one hand, some academics perceive the introduction of the HRA to be a positive development in human rights in creating an expectation of privacy (Fenwick, 2013), whilst others would disagrees with this contention and point to other areas of law where rights are being violated. One such example is Article 6 right to a fair trial, where Hoyano argues that the increased use of hearsay and bad character evidence are ensuring that individuals struggle to obtain fair trials in the UK (Hoyano, 2014). Furthermore, it has been suggested that, “The Act is widely blamed for administrative and judicial decisions that have been caricatured as privileging the rights of criminals and terrorists.” (Wadham, et al., 2011, p 14). Overall, the Act has been controversial and reforms are most likely in the future.

Conclusion

To conclude, the HRA requires all courts and tribunals in the UK to interpret legislation in accordance with the Convention rights which primarily ensures a borderline protection of rights on a procedural level. Furthermore, section 6(1) of HRA makes it unlawful for a public body to act in a way to contravene Convention rights and therefore all public duties are now under a duty to act in accordance with an individual’s Convention rights. However, a declaration of incompatibility can be sought and such a remedy is a first in the UK. Individuals still have the right to pursue their claim in Strasbourg and the European Court of Human Rights remains the final point of appeal in allegations of breach of human rights. In this respect, it can be argued that an individual’s rights are protected in a procedural sense as they can now pursue remedies in the domestic courts which is a far easier and cheaper solution. However, on a substantive level, there are criticisms that the Act does not far enough and instead human rights are curtailed. The presence of such violations ensure that the Act does not adequately protect rights, although arguably it is a significant step in the right direction.

Bibliography

Articles

Fenwick, D & Fenwick, H 2013 ‘The Changing face of protection for individual privacy against the press: Leveson, the Royal Charter and tort liability,’ International Review of Law, Computers & Technology, vol 27, no 3, 1 November 2013, pp. 241-279.

Hoyano, L. 2014 ‘What is balanced on the scales of justiceIn search of the essence of the right to a fair trial’ Criminal Law Review vol 1, pp. 4-29.

Books

Wadham, J., Mountfield, H., Prochaska, E., Brown, C., 2011. Blackstone’s Guide to the Human Rights Act 1998. 6th ed. Oxford: OUP

Cases

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

Coster v UK [2001] 33 EHRR 20

Chester v Secretary of State for Justice [2010] EWCA Civ 1439

Max Mosley v News Group Newspapers Limited [2008] EWHCC 177

Legislation

Human Rights Act 1998

Regulation of Investigatory Powers Act 2000

Reports

Ministry of Justice, 2012. Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011-12 [pdf] London: Ministry of Justice. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217308/responding-human-rights-judgments.pdf [Accessed 3 February 2014]

Introduction

‘The International Bill of Human Rights is a promissory note to recognize, promote and protect the inherent dignity of individuals. However, justice must sometimes defer to amnesty following gross violations of human rights in a State.’ Critically examine this statement.

The International Bill of Human Rights comprises the Universal Declaration of Human Rights 1950, International Covenant on Civil and Political Rights 1966 (ICCPR) (with its two Optional Protocols) and the International Covenant on Economic, Social and Cultural Rights 1966, all adopted by the United Nations. The ideas inherent in these declarations/protocols are directed at recognising, promoting and protecting the inherent dignity of individuals. However, these ideas may come into conflict with a range of other principles, including amnesty laws enacted by individual states. Amnesty may be defined as a pardon given by a government to a group of people who have not yet been convicted. By its very nature amnesty presupposes the complete obliteration of past offences of individuals.

Currently, in the age of accountability, there is a prohibition on amnesties for serious crimes under international law[1], and many argue that this trend is likely to continue. For example, the Inter-American Court of Human Rights bans any amnesty provision which is capable of eliminating responsibility for a serious crime under the Convention. The ‘new’ UN position on amnesties also emphasises the denial of amnesty for the perpetrators of serious crimes involving gross human rights violations. However, as Orentlicher argues, it is not clear whether all amnesties should be held unlawful, (1991:80).

This essay will first provide a criticism of the statement above and then outline weaknesses behind that criticism, arguing that justice must sometimes defer to amnesty following gross violations of the state, despite the wording of the International Bill of Rights. It will then provide concrete arguments in support of the statement and conclude that, despite all the injustices inherent in the idea of granting amnesty for gross violations of human rights, it is sometimes the only available measure in the circumstances and, therefore, is completely justified by necessity.

There are a number of arguments against the idea that justice must defer to amnesty when there is a gross violation of human rights, and most of these arguments, as Orentlicher points out, stem from the legal, moral and political duties of a state to hold the perpetrators of gross human rights violations accountable (1991:43).

Firstly, it could be argued that although there is no treaty explicitly prohibiting amnesty, the International Bill of Human Rights presupposes such a prohibition. For example, Article 2 (3) of the ICCPR provides for a right to an effective remedy, which may be understood as requiring states to ensure that punishment of human rights offenders is carried out.[2] Moreover, the UN Human Rights Committee states in 1992 that “amnesties are generally incompatible with the duty of states to investigate [acts of torture]”[3]…to guarantee freedom from such actions” and “to ensure that they do not occur in the future”.[4] In this respect, any amnesty provision can potentially appear to be in a direct conflict with the wording and spirit of the Covenant, especially since it can potentially deny persons from seeking compensation through court. This means that a person’s right to access to court is also denied. Moreover, the body of jurisprudence of such organs as the UN and Inter-American systems points to the conclusion that amnesties should be seen as incompatible with basic human rights obligations of states, (Robinson, 2003:486).

However, as Freeman points out, the right to a remedy is not as broad as it is often thought to be (2009:40), and there is no right available to people to force a prosecution. The right to remedy only places an obligation on the state to conduct an effective investigation which may lead to the capture and punishment of offenders. Also, international law does not state that states must prosecute every human rights violation in every case. The UN has also been seen as supporting amnesty measures which were related to international crimes and which were necessary to end military deadlock, (Naqvi, 2003:34).

It could also be argued that perhaps the key word in the UN Human Rights Committee’s General Comment of 1992 is ‘generally’ and the inclusion/use of an amnesty provision may sometimes be justified in the circumstances. Moreover, as Robinson (2009:489) argues, “to impose a duty to prosecute on some states is simply to impose too much burden on them, as some democracies are too fragile and if they start prosecuting, it may lead to their destruction”.

It may also be impossible to prosecute all the offenders if the scale of human rights violations is very large in a country. Although to this one may reply that governments may choose to prosecute leaders of gross human rights violations instead, this may also be undesirable in certain circumstances. Leaders may have close attachments to their community, and their prosecution may lead to further revolts and bloodshed. Alston and Goodman (2012:1391) argue on similar lines, stating that if one denies the participation of former leaders (who are also the perpetrators of past offences) in a present government, it may effectively “obstruct social integration and political stability”. By way of example, Alston and Goodman refer to the undesirable consequences of prosecuting major organisations who were involved in the apartheid regime in South Africa, (2012: 1392).

Perhaps the most powerful argument against amnesties involves victims’ rights and tolerance of impunity. Protesters of amnesty measures argue that amnesty infringes states’ obligations to make sure that victims receive means to achieve justice, and seek out the truth in their cases (Mallinder, 2008:7). By imposing an amnesty measure, the perpetrators’ crimes are effectively denied, causing victims to feel alienated from society, which, in turn, increases the likelihood of vigilantism on their part (Mallinder, 2008:10).

There are not many who would deny the negative impact that amnesty has on victims and/or their families, and the argument here is that such a negative impact cannot be avoided if one is to achieve common good for the society as a whole.

Another point against the statement that justice must sometimes defer to amnesty following gross violations of human rights is that such a deferral, by its very nature, prevents the achievement of the aims of criminal justice, such as prosecution, retribution, stigmatisation and deterrence (Freeman, 2009: 20). Aston and Goodman take this view and point out that trials can be very important in the promotion of “norms and expectations of punishment” in the country, (Alston and Goodman, 2012:1392). Moreover, as Freeman points out, the deferral of justice to amnesty in spite of the International Bill of Human Rights’ promissory note, undermines public confidence in the rule of law, (Freeman, 2009: 33).

However, even assuming that amnesty is capable of preventing the realisation of some of the criminal justice’s goals, it should not be forgotten that an amnesty measure can take many forms. Freeman states that, more often than not, an amnesty measure would be accompanied by other provisions, such a reparation programme, which may lessen the harm caused by an amnesty, and an amnesty’s potential harm caused is always overestimated, (2009:25). Another argument is that there are many conditional amnesties in existence, which may encompass some of the aims of the criminal justice process, for example, Freeman enumerates a number of temporal and provisions amnesties, (2009:93).

Even if one takes into account the need for a trial and all its benefits, it is not altogether clear that a trial or its threat may lead to beneficial results in every case, because as Freeman argues, a threat of a trial may lead to the perpetrators destroying the vital evidence needed in the future for the victims or their relatives to find out the truth about a crime, (2009:24). In support of this argument Alston and Goodman also state that any attempts at prosecution in a state which undergoes the transition from an authoritarian past may threaten a delicate peace-conflict balance between different groups, (2012:1391). Mallinder makes a similar argument when she states that although the trial of leaders may benefit the society by asserting the supremacy of democratic values (as argued by Scharf), there may not be enough evidence to put those leaders on trial in the first place, (2008:18).

Here, it is interesting to point out an illuminating point made by Mallinder that there could be an instance where the distinction between victims and perpetrators is not clear, for example, in the case of child soldiers who are part of a rebel group in Uganda, and, therefore, the prosecution and punishment may have to take a back seat, (Mallinder, 2009: 34).

Clark also questions the belief that the promotion of individual criminal responsibility is always desirable, (in Lessa and Payne, 2012:13). He draws attention to the criminal prosecutions in Rwanda and Uganda, and argues that by insisting on the prosecutions, the international organisations overlooked “the specific context and dynamics of these countries”, for example, the absence of legal procedures and institutions to carry out an effective judicial process, (2012:14). This means that even though the countries may be the signatories of the International Bill of Human Rights, their specific contexts should be taken into account, and may be used to justify the imposition of conditional amnesties.

One of other widespread arguments against the idea that amnesty should be granted is that doing so only creates a culture of impunity, encouraging future violence, and prevents accountability. This view has a widespread support from many governments around the world, for example, from the government of Sri Lanka.[5] When academics make this argument they often refer to the offenders who continue violate human rights, and are only stopped when amnesty is granted to them. The clear example of this is Ugandan rebel group ‘The Lord Resistance Army’s public statement that they will only stop the violence if amnesty is granted to its members. Nevertheless, to these arguments it can be replied that it is not necessarily the case that amnesty will produce further violence, and in fact, there may be situations where one must choose a lesser of two evils and invoke an amnesty provision. Freeman supports this argument.

Therefore, it seems that although the case for the abolition of amnesty is a strong one, it is not without its weaknesses, and despite the promissory note of the International Bill of Human Rights, there may be circumstances where the imposition of an amnesty provision is not a truly unthinkable course of action.

It is clear that there are obvious discrepancies between the theoretical foundations of the International Bill of Human Rights and the practical application of the Bill. There inevitably will be circumstances where it is unwise to follow the literal meaning of the Bill. The reality of an international/domestic political scene is that sometimes compromises must be made in order to safeguard peace in a country and prevent further conflict. In the same vein, Snyder and Vinjamuri maintain that in order to prevent future violations of rights and reinforce the respect for the rule of law it is often necessary to “strike politically expedient bargains that create effective coalitions to contain the power of potential perpetrators of abuses,” (Snyder and Vinjamuri, 2003:17).

Thus, one of the main arguments for the proposition that justice must sometimes defer to amnesty following gross violations of human rights is that such deferral of justice is likely to foster reconciliation and may be necessary to achieve peace in terms of promoting political settlement. Linked to this is an argument that amnesties are needed so that a state can make a break from its past and start from a ‘clean slate’, (Mallinder, 2008:13). Governments often use these reasons to justify the imposition of amnesties when it is necessary to end violence. However, this view is becoming more controversial as the states-signatories to the International Bill of Human Rights move to the implementation of more mechanisms of accountability, and this view is not shared by everyone. For example, in 2007 the ICC Prosecutor, Lois Moreno-Ocampo termed the demands of amnesty made by combatants as being nothing less than pure blackmail. Moreover, the offering of amnesty may appear as though a state is showing signs of weakness, which may, in turn, encourage more violations of human rights, (Mallinder, 2008:12).

However, despite this, Freeman supports the view that amnesties may sometimes be necessary to achieve peace in a state, (2009:11). He contends that there may not be any other choice for societies which have gone through mass violence and genocide, (2009:7). Freeman asserts that he is against the idea of impunity for serious crime, but he states that there may be situations where the desire for peace and security should stand above any impunity which may result from granting amnesty (2009:6). In particular, he states that if we look at such countries as Burma and Somalia and their particular contexts, one may be forgiven for wishing any kind of amnesty in order to ensure the survival of people by lessening daily violent conflicts, even though this leads to impunity, (2009:24).

Another argument against the view that amnesties are needed to achieve peace in a country, and to ensure a smooth transition from an authoritarian regime to a democratic one, is provided by Robinson when he draws on an example of Sierra Leone, (Robinson, 2003:490). In that country, unconditional amnesties were granted to ensure that peace would follow only to discover that the culture of impunity was reinforced and gross violations of human rights continued.

However, in reply to all this, it can be pointed out that, regarding the International Bill of Rights in particular, amnesties can be used, because the International Bill encompasses a wide variety of rights, and unlike the Rome Statute, is not primarily concerned with the protection against gross human rights violations.

Freeman also makes a relatively convincing argument that amnesties are rarely granted without the imposition of other orders or qualifications, such as a reparation programme or an institutional reform measure, (2009:14). Truth Commissions, which are primarily set up to investigate the causes of death/injury unlawfully perpetrated, often play an important role in offsetting the damage done by amnesty. However, it is questionable whether they are, in fact, as successful as they were initially perceived to be. For example, again using the Sierra Leone example, the Lome Accord 1999 was designed to provide both an amnesty provision and a Truth Commission investigation, but was unsuccessful in its implementation (Alston and Goodman, 2012:1452).

Nevertheless, a broad conception of justice usually agrees with the idea that there could be a Truth Commission and a limited amnesty in place to satisfy “the essential purpose of the right to justice”, (Naqvi, 2003:34). Dugard seems to be of the same view when he states that even though unconditional amnesties should not be permitted, a Truth Commission should still be capable to grant amnesty after an investigation, provided that amnesty contributes to the achievement of peace and justice, and is more effective than prosecution, (Dugard, 1999:1020). Arguably, South Africa’s imposition of a conditional amnesty showed that it was possible to combine an amnesty with an accountability process which culminated in the achievement of truth and social healing.

Another argument, which is linked to the argument about the right to remedy discussed above, and which is put forward by Freeman and Pensky (in Lessa and Payne, 2012), is that an amnesty measure will not necessary infringe international law in every instance. This argument rests on the well-known fact that the status of amnesties in international law is unclear, and the practice of its imposition still persists in many countries, including Rwanda, Cambodia, El Salvador and South Africa. This point is supported by Laplante, who argued that the status of an “outright prohibition on amnesty remains unclear”, (Laplante, 2009:920). To illustrate the point, Mallinder discovered in her research that the number of amnesties which includes different kinds of crimes has increased, and this casts doubt on the proposition that we are living in the age of accountability (Mallinder in Lassa and Payne, 2012:95). Mallinder concludes that this means that there is still a belief that an amnesty measure may be deemed necessary where there is some exceptional situation, (Mallinder in Lassa and Payne, 2012: 96)

Liked to this is the idea that amnesties do not necessarily stand in opposition to the spirit of the International Bill of Human Rights, and, in fact, can fulfil some of its provisions by balancing competing goals, and facilitating long-term peace and security in the nation. One particular example is where a political activist-offender is integrated into a society anew, preventing further disputes.

The final point is that some defendants are unlikely to come within the scope of criminal prosecution as defined by the Rome Statute, and some countries’ legal systems may not be sufficiently evolved to prosecute such defendants. In these cases, it may be argued that amnesty could be granted to alleviate the political tension in the country if it exists. Moreover, even the Rome Statute could be said to presuppose the use of amnesties as it gives discretionary powers to prosecutors/judges to take account ‘the interests of justice’, particularly for those defendants which are unlikely to come within the scope of the International Criminal Court’s prosecution.[6]

Thus, it seems that it may not be correct to treat all amnesties as being in the opposition to the principles of justice and truth, and the specific context of a country must be taken into account. Even though amnesties violate the victim’s rights and can potentially create a culture of impunity, it is important to recognise that some amnesties, in some circumstances, may be an effective measure directed at achieving peace and security in a country. This is especially true since it is wrong to think of amnesties as either granting complete impunity or achieving long-term peace. This view fails to take into account the sheer diversity of amnesty measures which a state can employ, and which can be combined with the variety of accountability measures, (Mallinder, 2008:8). Moreover, as Freeman points out, justice may sometimes defer to amnesty because such practice is virtually unavoidable, although it should be maintained as a practice of the last resort (2009:4). Moreover, oncloser examination, the granting of an amnesty may not be in the direct conflict with the spirit of the International Bill of Human Rights and, therefore, it is fair to say that justice must sometimes defer to amnesty following gross violations of human rights in a state.

Word count: 3,228.

Bibliography

Books/Academic Articles

Alston, P. and Goodman, R. (2012) International Human Rights, New York: Oxford University Press
Cassese, A. (2008) International Criminal Law, New York: Oxford University Press
Cassese, A. (2004) International Law, 2nd Edition, Oxford: Oxford University Press
Dugard, J. (1999) ‘Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?’, Leiden Journal of International Law, 12, No. 4, at p. 1001
Freeman, F. (2009) Necessary Evils: Amnesty and the Search for Justice, 1st Edition, New York: Cambridge University Press
Griffey, B. (2011) ‘The ‘Reasonableness’ Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’, Human Rights Review, Vol. 11, No. 2
Harris, D., Moeckli, S. and Sivakumaran, S. (2010) International Human Rights Law, 1st Edition, Oxford: Oxford University Press

8. Joyce, D. (2010) ‘Human Rights and the Mediatization of International Law’, Leiden Journal of International Law, Vol. 23, Issue 3, pp. 507-527

Laplante, L. (2009) ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’, Virginia Journal of International Law, 49, at p. 915
Lessa, F. and Payne, L. (2012) Amnesty in the Age of Human Rights Accountability, New York: Cambridge University Press
Loucaides, L. (2003) ‘TheDeveloping Case Law of the Inter–American Court of Human Rights’, Human Rights Law Review, Vol. 3, No. 1, pp. 1-25
Mallinder, L. (2010) ‘Law, Politics and Fact-Finding: Assessing the Impact of Human Rights Reports’, Journal of Human Rights Practice, 1, No. 4
Mallinder, L. (2009) ‘The Role of Amnesties in Conflict Transformation’, in Ryngaert, C. (ed.) The Effectiveness of International Criminal Justice, Intersentia Publishers
Mallinder, L. (2008) Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide, Hart Publishing
Meisenberg, S. (2004) ‘Legality of Amnesties in International Humanitarian Law. The Lome Amnesty Decision of the Special Court for Sierra Leone’, International Law Review of the Red Cross, 86, No. 856
Naqvi, Y. (2003) ‘Amnesty for War Crimes: Defining International Recognition’, International Law Review of the Red Cross, Vol. 85, pp. 583-560 (2003); Available: http://www.mkkk.org/eng/assets/files/other/irrc_851_naqvi.pdf [10 Dec 2013]
Orentlicher, D. (1991) ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, The Yale Law Journal, Vol. 100, at p. 2537
Robinson, D. (2003) ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ European Journal of International Law, Vol. 14, No. 3, pp. 481-500
Snyder, J. and Vinjamuri, L. (2003) ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security, Vol. 28, No. 3, pp. 5-44; Available: http://belfercenter.hks.harvard.edu/publication/343/trials_and_errors.html [ 9 Dec 2013]
Weissbrodt, D. Ni Aolain, F., Fitzpatrick, J. and Newman, F. (2009) International Human Rights: Law, Policy, and Process, LexisNexis Publishing; Available: http://www1.umn.edu/humanrts/intlhr2006/chapters/chapter8.html [ 7 Dec 2013]

Reports

United Nations (2011) Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, New York: United Nations Publications; Available: http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf [10 Dec 2013]

Web Materials

The International Centre for Transitional Justice (2009) Justice, Truth, Dignity: Amnesty Must Not Equal Impunity [Online]; Available: http://ictj.org/publication/amnesty-must-not-equal-impunity [8 Dec 2013]

Abstract

The interrelationship between the environment and human rights has led many to question whether current human rights mechanisms have the capacity to provide environmental protection outcomes. Hence, because the environment is a pre-requisite for the enjoyment of human rights (UNEP, 2011, p. 1), it is important that all States ensure that the environment is being adequately protected. This is very difficult to achieve under the current regime, however, and so it seems as though further changes are needed to ensure that environmental human rights are being provided for.

Introduction

Many concerns have been raised in recent years as to whether the environment is being adequately protected. Yet because of the effects harm to the environment can have on the individual, it is vital that appropriate mechanisms are in place that help to deal with any environmental issues that may arise. It is contestable whether existing human rights mechanisms have the capacity to provide environmental protection, nonetheless, since the relationship between human rights and environmental protection is complex. Thus, it seems as though the law within this area needs to be codified so that separate human rights are created that deal primarily with environmental human rights. This would certainly remove many of the inconsistencies that currently arise, yet the terms would have to be on a global level to ensure the rights of those in underdeveloped countries are also being preserved. The current human rights mechanisms dealing with environmental protections will be explored in this assignment in order to consider whether they are effective or not. Once this has been done, a review of what changes need to be made will then be determined. This will be done by gaining access to relevant texts, journal articles, governmental reports and case law decisions. Once all of the applicable information has been gathered an appropriate conclusion will then be drawn summarising all of the main findings.

Literature Review

Overview of Human Rights

The Charter of the United Nations (UN) was introduced in 1945 and was considered to be the first global expression that provided for individual human rights. The Charter is thus made up of 30 different Articles, which all aim to provide adequate protection to all individuals on a global level. The Charter’s main objective is therefore to achieve international co-operation so that every individual can be afforded the same protections. This is currently being attained under Article 1 of the Charter which states that international co-operation must always be upheld by “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” This was deemed a major development for individual citizens since they were being given, for the first time, individual recognition on a global basis. This ensured that equality for all was maintained by prompting States to implement various legal rules and principles providing for the protection of human rights. The European Convention on Human Rights and Fundamental Freedoms 1951 was established within the European Union (EU) in order to provide sufficient human rights protection to individuals. This was later incorporated into the UK through the Human Rights Act 1998 which states that the rights enshrined under the provisions of the Convention must not be violated. Whether the current human rights mechanisms have the capacity to provide environmental protection outcomes is, however, a debatable subject. This is because; the relationship between human rights and environmental protection is blurred and although there have been great attempts to clarify the law in this area, much confusion still exists.

Relationship between Environmental Protection and Human Rights

Regardless, environmental protection is a human rights issue because of the impact the environment can have on a human’s life, health and property. As such, it is imperative that there is sufficient protection in place dealing with any issues that may arise. Some of the main environmental problems that exist are pollution, overuse or misuse of resources, right to water, biodiversity reduction and habitat destruction. In order to overcome these problems, however, it has been suggested by Hancock (2003, p. 1) that the following universal human rights should be respected; 1) the right to an environment free from toxic pollution and 2) the right to ownership rights of natural resources, such as water. Despite this, however, environmental protection is rarely discussed in the context of human rights and it seems as though debate surrounding the underlying issues is lacking. This is clear from the academic writings of Alston et al; (2010) because although they refer to some of the human rights precedents relevant to this area, there is no discussion of the precedents from an environmental protection perspective. Therefore, greater emphasis needs to be placed upon the relationship between environmental protection and human rights in order for the current issues to be tackled effectively. At present, the problems surrounding this area are merely being dealt with by generalist international lawyers or environmentalists (Anton and Shelton, 2011, p. 3). This is insufficient given that there are a growing number of cases dealing with environmental issues under existing human rights law and it remains arguable whether there is a need for new rights to be added to existing human rights treaties.

This is because, at present environmental human rights problems are being dealt with by the ECHR, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), the American Convention on Human Rights (AmCHR) and the African Convention on Human and People’s Rights (AfCHPR). Consequently, it has been said that the body of environmental protection case law has “greened” existing human rights law (Sanghamitra, 2008, p. 3), though it has been said that “the need to bring the environmental and human rights movements together has been rendered both urgent and vital by the impending climate change catastrophe” (Gearty, 2010, p. 21). Essentially, given the recent concerns surrounding global warming and environmental pollution it seems as though more stringent human rights protections ought to be created to prevent toxic chemicals and global markets from affecting the lives of individuals. This can be done by “focusing on equality and respect for individual dignity, an insistence on attention to human rights has the effect of forcing all decision-makers to look outside their own circle, to see the human as well as global consequences of their actions” (Gearty, 2010, p. 21). This would be the most sensible and ethical approach to take in response to climate change and the links between the protection of the environment and human rights would be realized more effectively (OHCHR, 2002, p. 1). It has already been made clear by Judge Higgins (2006, p. 798), nonetheless, that human rights courts do make great attempts to co-ordinate their approaches and so it seems as though co-operation will subsist if new human rights protections are created that deal primarily with environmental protection.

Environmental Human Rights Cases

Regardless of the fact that new human rights dealing explicitly with environmental factors would be more helpful than revised environmental laws, human rights mechanisms do still have the capacity to provide environmental protection outcomes. This has been identified the Lopez Ostra v. Spain (1994) 20 EHRR 277 case where it became apparent that noise, smells and polluting fumes were capable of being treated as a human rights issue. Here, it was held that freedom from environmental pollution could be included in Article 8 of the ECHR because of the fact that there were documental health effects. In addition, it has also been recognised that noise can also be deemed a form of torture under Article 8 on the grounds that it interferes with the right to a private and family life as shown in Hatton v United Kingdom (2002) 34 EHRR. Here, it was stated by the court that “anyone who has suffered for a long period from noise disturbance is well aware that the effects of this on the nerves and on one’s physical and mental well-being are extremely unpleasant and even harmful.” Because of this, it was felt that noise should be considered a form of torture and thereby protected under human rights legislation. Damages were awarded in this case for sleep disturbance due to night flights taking place at Heathrow airport. Had the defendants in the case been able to establish that the night flights were a necessity and of economic advantage, damages would not, however, have been awarded. Therefore, although protections will be available in cases such as this, defendants may be able to justify their actions in certain instances. Accordingly, it will therefore be up to the courts to decide whether environmental considerations should prevail over commercial interests.

In Borysiewicz v Poland (2008) (No 71146/01) a claim in respect of Article 8 actually failed on the basis that it had not been established that “the noise levels complained of were so serious as to reach the high threshold established in cases dealing with environmental issues.” Therefore, the courts did not feel as though environmental considerations ought to prevail in this instance and instead believed that commercial interests overrode such protections. Essentially, it seems as though current human rights legislation is not always effective in preserving environmental protections, yet it is arguable whether this is a necessary requisite given that Article 8 is not an absolute guarantee. Thus, state interference is permitted if the interference is in “accordance with the law and is necessary.” In accordance with this, it could be said that justifications are appropriate in some cases when damage to the environment has been caused as shown in Powell and Rayner v United Kingdom (1990) 12 EHRR 355. Nevertheless, as stressed by Hancock (2003, p. 2); “in the case of toxic pollutants, environmental laws currently permit emissions at levels that can physically harm individuals.” Whether this is acceptable is doubtful and it seems as though changes to the existing human rights regime need to be made so that environmental considerations are being effectuated. Hence, environmental activists are frequently claiming that toxic pollution violates human rights (Cassel, 2007, p. 104), yet nothing is being done about this. Whilst it may seem obvious that environmental damage can result in individuals’ health being harmed, it is only recently that international human rights law has began to link the two together.

Critical Analysis of Environmental Human Rights

Because of this, environmental human rights remain undefined and are only being protected by pre-existing human rights legislation that is not necessarily equipped to deal with environmental cases (Apple, 2004, p. 34). As such, new laws need to be created in order to prevent any injustice from occurring because at present there is no “stand-alone right not to be exposed to too much noise” (Stewart, 2010, p. 1). And, although this right may be derived from other established rights such as; freedom from torture, the right to respect for private life and home and freedom from discrimination, this will not suffice. Even though human rights courts are not generally concerned with protecting the environment per se, they are concerned with preventing serious harms that are likely to interfere with individual human rights and autonomy. As such, any harm to the environment that will have an impact upon individuals’ human rights and fundamental freedoms should be strictly prohibited and protected by human rights legislations. Arguably, because environmental human rights protections are ill-defined, new human rights dealing specifically with these issues ought to be created so that individual’s rights are being fully respected. Some advancements have been made to this area in recent years, nonetheless, as the United Nations General Assembly (UNGA) recognised the human right to water and sanitation through Resolution 64/292. Accordingly, it was acknowledged by UNGA that “clean drinking water and sanitation are essential to the realization of all human rights” (UNGA, 2010, p 10). In the resolution, it was also made clear that all States and international organizations should provide resources to help all countries, especially developing ones, to provide safe, clean, accessible and affordable drinking water and sanitation to all.

Resolution 64/292 thus appeared to have stemmed from the General Comment that was adopted by the Committee on Economic, Social and Cultural Rights in 2002, which stated that “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights” and is an essential human right that should be provided to all individuals. Still, it is arguable whether the Resolution goes far enough since it is believed that water and sanitation should be an essential public service and that universal access should be achieved (Right2Water, 2011, p. 1). Although great attempts to ensure that this happens have been made, it seems as though many individuals are still lacking access to safe drinking water. This is so, despite the fact that the United Nations Human Rights Council have adopted a binding resolution that recognizes the human right to water and sanitation as being part of the right to have an adequate standard of living (UNHR, 2010, p. 1). Hence, it has been put forward by Deen (2012, p. 1) that little progress has been made by States to fully implement the human right to water as provided for in the resolution: “governments aggressively pursue false solutions to the environmental and economic crises, the situation will only deepen the water injustices that our organisations and communities have been fighting for decades.” Therefore, although it seems as though environmental human rights protections are improving, on closer inspection there are still many underlying issues that exist. Unless these problems are dealt with appropriately, individuals will continue to be subjected to human rights violations. This is unjustifiable; yet 2.8 million people continue to die each year as a result of poor water supplies, sanitation and hygiene (Zetland, 2010, p. 1).

In light of this, it could be said that human rights protections have failed to address the issues surrounding access to water and although progress appears to have been made, this has proven rather futile. Consequently, it has thereby been said that it would be more productive to “give people a property right in water” (Zetland, 2010, p. 1). Because property rights are alienable, whereas human rights are not, some portion of an individual’s rights will be capable of being exchanged for access to clean water. This view does remain contestable but given that individuals are still not receiving their right to water even after the Resolution was implemented, it is evident that something more needs to be done. It remains to be seen whether this is the answer but as further noted by Zetland (2010, p. 1); “A property rights allocation increases both equity and efficiency, the former by the allocation of rights — and their value — to every person, the latter by trading water from owners to users.” Even if this would solve the problems relating to water access, however, other environmental human rights problems would still remain and so it seems as though greater human rights recognition is needed. Accordingly, exposure to dangerous substances at the workplace has generally been disregarded as a human rights issue and has instead been passed off as strictly controlled workers rights. This appears unacceptable and is unlikely to provide individuals with the protection in which they require. Hence, toxic pollution is classified as a ‘public nuisance’ and ‘risk’ as opposed to being ‘harmful’ which is said to have been constructed “to accommodate the systematic degradation of the environment that is required to achieve sustained economic growth and conditions of allocative efficiency” (Hancock, 2003, p. 108). If toxic pollution was classified as ‘harm’, then criminal sanctions would follow since all types of harm are prohibited by law.

This may be one of the reasons as to why environmental human rights remain undefined since many organisations would be found criminally liable for harming individual’s and violating their human rights. Nevertheless, if this would protect the environment and individual human rights further, then this may be what is needed. Still, it is already an offence under Regulation 12 of The Environmental Permitting Regulations 2010 (as previously provided for by section 85 of The Water Resources Act 1991) to “cause or knowingly permit a water discharge activity unless you are complying with an environmental permit or exemption.” It could be said that this is sufficient in helping to preserve human rights since “harm to ecological and/or biological systems for business or personal advantage” (Bell and McGillivray, 2008; p. 277) will be avoided at all costs. Furthermore, in the case of Rylands v Fletcher [1968] UKHL 1 it was held that a person who brings on to land anything that would be likely to cause mischief should it escape will be strictly liable for a criminal offence. Nevertheless, it was stated in the case that the defendant must have “brought something onto his land, made a non natural use of his land, the thing must have been something likely to do mischief if it escaped and that the thing did actually escape and cause damage.” This case was considered a landmark decision in helping to protect the environment from pollution and could assist in the protection of human rights. Thus, as argued by Wolf and Stanley (2003; 442); “the Rylands v Fletcher principle imposes strict, but not absolute, liability for damage caused by the escape of dangerous things, including things such as; water, fire, gases and fumes, electricity, oil, chemicals, colliery waste, poisonous vegetation.” Arguably, because of the devastating effects pollution can have on the environment, it is important that strict liability offences remain intact. Yet, it remains to be seen whether new human rights laws will be created to protect these rights even further as required in Tatar v. Romania [2009] ECtHR.

Conclusion

Given the importance of human rights, it is vital that they are being adequately protected by the law so that all individuals are not being subjected to harm. Whether this is sufficient when it comes to environmental protections is doubtful since it appears as though individual’s human rights are being undermined by the actions of those damaging the environment. Hence, the impact the environment can have on a human’s life, health and property is significant, yet the relationship between human rights and environmental protection is in a state of confusion despite the attempts that have been made to clarify the law in this area. Consequently, it would thus be more appropriate for new human rights to be created that deal explicitly with environmental factors as opposed to merely revising environmental laws as this will prevent ambiguity. Injustice will also be removed since environmental human rights will be fully defined and stand-alone human rights protections that relate to the environment will be established. It remains to be seen whether changes such as this will take effect, but given the lack of clarity that exists with the current human rights mechanism, it is integral that something is done.

References

Alston, P. Steiner, H. and Goodman, R. (2008) International Human Rights in Context, 3rd Edition, OUP Oxford.

Anton, D. and Shelton, D. (2011) Environmental Protection and Human Rights, Cambridge University Press.

Apple, B. (2004) Commentary, Human Rights Dialogue, Spring.

Bell, S. and McGillivray, D. (2008). Environmental Law. 7th edition, Oxford University Press.

Boyle, A. (2012) Human Rights and the Environment: Where Next, The European Journal of International Law, Volume 23, No 3.

Cassel, J. (2007) Enforcing Environmental Human Rights: Selected Strategies of US NGOs, Northwestern University of Journal of International Human Rights, Volume 6, Issue 1.

Deen, T. (2012) Human Right to Water and Sanitation Remains a Political Mirage, Inter Press Service, [Accessed 14 April, 2013].

Gearty, C. (2010) Do Human Rights Help or Hinder Environmental ProtectionJournal of Human Rights and the Environment, Vol 1, No 1, Edward Elgar Publishing Ltd.

Hancock, J. (2003) Environmental Human Rights: Power, Ethics and Law, Ashgate Publishing Ltd.

OHCHR. (2002) Human Rights and the Environment, Office of the United Nations High Commissioner for Human Rights, [Accessed 12 April, 2013].

Right2Water. (2011) Water and Sanitation are a Human Right, Water is a Human Right, [Accessed 14 April, 2013].

Sanghamitra, P. (2008) Greening Law: A Socio-Legal Analysis of Environmental Human Rights, Faculty of the Graduate School University of Southern California, < http://digitallibrary.usc.edu/cdm/compoundobject/collection/p15799coll127/id/49274/rec/1> [Accessed 11 April, 2013].

Stewart, F. (2010) A Right to SilenceThe Journal of the Law Society of Scotland, [Accessed 12 April, 2013].

UNEP. (2011) High Level Expert Meeting on the New Future of Human Rights and Environment: Moving the Global Agenda Forward. United Nations Environment for Development, [Accessed 16 April, 2013].

UNGA. (2010) The Human Right to Water and Sanitation, United Nations Department of Economic and Social Affairs (UNDESA), < http://www.un.org/waterforlifedecade/human_right_to_water.shtml> [Accessed 13 April, 2013].

UNHR. (2010) UN united to make the right to water and sanitation legally binding, United Nations Human Rights, < http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10403&LangID=E> [Accessed 14 April, 2013].

Wolf, S., and Stanley, N., (2003). Wolf and Stanley on Environmental Law. Routledge Cavendish.

Zetland, D. (2010) Water Rights and Human Rights: The Poor Will Not Need Our Charoty if We Need Their Water, Johns Hopkins University, < http://globalwater.jhu.edu/magazine/article/water_rights_and_human_rights_the_poor_will_not_need_our_charity_if_we_need/> [Accessed 14 April, 2013].

Executive Summary

The Arab Spring refers to a period of dramatic changes in the Middle East, where there were multiple different uprisings across the region, by individuals and groups of individuals believing that their own rights had been overlooked by the government. As part of this, issues of human rights have emerged, as a result of numerous human rights violations which were experienced, prior to the uprisings, something which was deemed to be substantially influential in the decision to protest against government behaviours.

The research here contends that developing a more robust strategy for the protection of human rights within the Middle East region is a real possibility, following the uprisings; however, it is not likely to happen quickly or easily and therefore mapping out the best way forward following the Arab Spring is critical[1].

Introduction and Background

The Arab Spring refers to a dramatic period of discontent and revolution, across the Middle East, which began on 18 December, 2010. As part of this uprising, there were several protests and demonstrations which took place across the region, with rulers being pushed from power, in Libya, Yemen, Tunisia and Egypt and with further discontent being seen in other countries, such as Algeria, Syria, Iraq and Kuwait. Clashes also emerged on the borders between countries, with minority groups taking the opportunity to have their voices heard. In addition, there were several instances of more minor protests and demonstrations taking place, as well as the more revolutionary uprisings, all of which have arguably paved the way for a new political agenda, as well providing as opportunities to improve the human rights’ agenda, in the Middle East[2].

During the revolutionary period, there were also concerns as to how the authorities reacted and this again suggested that there was likely to be a resulting period of discontent which would clear the way for a new improved approach to many fundamental areas, including human rights[3].

Although the likely reason for the Arab Spring can be attributed to general discontent with the role of local government, it is argued in the research that whenever there is a dramatic uprising of this nature opportunity is seen in the aftermath, when it comes to establishing a new improved approach to all aspects of government, from offering political stability, to ensuring that the regions provide greater security to the individuals within those regions. Human rights’ violation is merely one aspect of this research; however, the focus will be on this element, in order to ensure sufficient focus in this research.

Aims, Objectives and Rationale

The overall aim of this research is to monitor the way in which human rights have been dealt with in the Middle East, both prior to and after the Arab Spring, with a view to identifying a potential way forward, for the future. The question raised, here, is deemed to be particularly important in the current climate, as it will identify means whereby the actual uprisings of this nature are the catalyst for dramatic change, in terms of fundamental rights, such as human rights[4]. Having entered this period of change the aim of this research is to establish an appropriate framework that can be followed in the future development of Human Rights in the area.

Although the revolutionary period saw a dramatic and potentially inspiring display of action from the public, across the region, the magnitude of the challenges that are now being faced across the region is becoming clearer. The importance of this research, therefore, is to consider the impact that this period in history will have on the development of human rights in the region. Therefore, in order to achieve this objective, it will be necessary to look at human rights, prior to the uprising, as well as how they are now being dealt with, in the aftermath. The challenges, and crucially the way in which these challenges are being dealt with, will offer valuable information to any organisation looking to improve human rights in the region, especially when the region is undergoing a dramatic period of change. It is for this reason that the research is particularly appropriate, at this point in time, as information can be gathered from the experiences in the Middle East that may then be the applicable, elsewhere.

Planned Methodology

In order to undertake this research, it is proposed that the focus will be on an inductive style of research which will involve observing findings and activities across a broad range of organisations, some of which are within the governments of the various countries affected and others are third party non-governmental organisations which are focussed on improving human rights, in the area[5].

Due to the personal and sensitive nature of the research, it is anticipated that it will be difficult to obtain accurate primary research, in this area, as individuals may be reluctant to speak out about human rights’ violations, for fear of repercussions. Therefore, existing secondary case studies will be drawn upon, where appropriate, and with specific reference to individual examples of human rights’ violations and how these may now be treated differently, in the wake of these regional uprisings. It is anticipated that these will be obtained from agencies working in the area such as Oxfam or the Red Cross. On the whole, however, the main focus of the research is on the existing literature, in the area, as well as on reports about human rights’ violations which may be drawn upon, in order to identify changes as they are happening and also how this is likely to develop, in the long run.

Existing Literature

As noted in the proposed methodology, drawing on existing literature in the area, including government and non-government sources will form an important and central part of this research. The World Report 2013, written by the Human Rights Watch organisation, looked specifically at the uprisings in the Middle East and raised questions as to how this would potentially impact on human rights, within the region[6]. According to the report, it was recognised that the Arab Spring was hugely influential in the development of human rights, in the region; however, it was also stated that creating a democratic, self-respecting state was not something that would happen in a matter of a few months, despite the revolutionary nature of the changes.

It was noted in this report that a region which has previously been subject to a dictatorial regime, when left to behave independently, does not necessarily mean that there will be an automatic improvement in human rights; therefore, the difficulty for the path from the current situation to creating a democratic and fair society should not be underestimated[7].

Other research in this area has suggested that the dramatic events which took place in 2009 and 2011 actually arose over a prolonged period of time and did not suddenly arise from nowhere, as the media reports may have suggested, at the time. By looking at instances of human rights’ violations prior to the uprisings and the way in which various different third-party organisations were becoming increasingly involved in providing security within the region, it could be argued that the events which took place, in December 2010, were merely the final step towards liberalisation and were not actually as dramatic as originally suggested[8].

The issues that have arisen in the Middle East will be considered in the context of wider theoretical perspectives of human rights and how these rights emerge within modern society as well as how they should be protected. For example in the case of Marx it was argued that the only reason that human rights needed to be established at all was to support the capitalist developments and this reliance on natural rights should be viewed as paramount[9]. Other appropriate theories that will be drawn on in the wider discussion is that of the socialist concept which suggests that basic human rights area duty of society and basic levels should be established as a matter of political urgency[10].

When looking towards the future, there is considerable uncertainty from academics and practitioners as to how this revolutionary period is likely to play out, in the future and whether or not these dramatic changes in the region are going to create a suitable framework for the protection of human rights, or whether there is a danger that the situation will become worse, before it gets better. This presents the argument that whilst dictatorial rule can be damaging to human rights, creating such a high level of uncertainty within the region can also create similar problems[11].

Proposed Time Frame

It is anticipated that the research will take place over a period of three years, with the timeframe being necessary, in order to explore the potential changes and to observe how the region develops, in the coming months, which may be hugely influential to the ultimate findings of this research.

The main period of the research will be spent analysing the existing position, drawing on all current literature in this area, before identifying how the situation is now developing and whether or not the suggested theories associated with the development of human rights in the region are being experienced or not, in practice, as time goes on. Due to the transient nature of this research, it is anticipated that several aspects will need to be revisited, on an ongoing basis, and it is therefore a relatively time-consuming project, albeit crucially important, at this dynamic period of time.

Ethical Issues and Potential Problems

Dealing with issues such as human rights, particularly in a volatile political arena, has substantial ethical issues and care must be taken to ensure anonymity, particularly when collecting any primary research that may be available. Gathering data in this area is likely to be emotive and personal; therefore, ensuring sufficient balance of research will be a critical aspect of presenting the most balanced viewpoint possible, as regards to future options[12].

Indicative References

The references identified here are the starting point of the research and it is likely that this will be extended substantially, as the research is undertaken.

Arthur, Paige. 2009. How transitions Reshaped Human Rights: A Conceptual History of Transitional Justice. In Human Rights Quarterly, 31:2, May, pp. 321- 46.

Bentham, Jeremy 1987 “Anarchical Fallacies; being an examination of the Declaration of Rights issues during the French Revolution”, in Jeremy Waldron (ed.),Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, New York: Methuen, p.69.

Berger, Lars. 2011. The Missing LinkUS Policy and the International dimensions of Failed Democratic Transitions in the Arab World. In Political Studies, 59:1, March, pp. 38-55

Bevernage, Berber. 2010. Writing the Past out of the Present: History and the Politics of time in Transitional Justice. In History Workshop Journal, 69, Spring.

Blackbum, Robin. 2011. Reclaiming Human Rights. In New Left Review, 69, May-June.

Dembour, Marie-Benedicte. 2010. What Are Human RightsFour Schools of Thought. In Human Rights Quarterly, 32:1, February, pp.1-20.

Fletcher, L., Weinstein, H. & Rowen, J. 2009. Context, Timing and the Dynamics of Transitional Justice: A Historical perspective. In Human Rights Quarterly, 31, pp. 163-220.

Human Rights Watch (2013) Annual Report 2013 Available at: http://www.hrw.org/news/2013/01/31/world-report-2013-challenges-rights-after-arab-spring

Husak, Douglas 1985 “The Motivation for Human Rights”, 11 Social Theory and Practice, 249-255

Langlois, Anthony J. 2003. Human Rights without DemocracyA Critique of the Separationist Thesis. In Human Rights Quarterly, Vol 25: 4, November.

MacQueen, Benjamin. 2009. Democracy Promotion and Arab Autocracies. In Global Change, Peace and Security, 21:2, June, pp. 165-178.

Meister, Robert. 2011. After Evil: A Politics of Human Rights. New York: Columbia University Press.