Take 10 - August 2022
Welcome to RPC's Media and Communications law update for media lawyers. This month's digest reports on key media developments and the latest cases.
"End of term special"
News items
Wagatha - the final episode
Following a high-profile and highly entertaining trial in May, on Friday 29 July, Mrs Justice Steyn handed down the trial judgment in 'Wagatha' in which she dismissed Rebekah Vardy's libel claim brought against Coleen Rooney. Ms Vardy had brought the claim against Ms Rooney following the publication by Ms Rooney of a social media post where Ms Vardy had been accused of leaking private Instagram posts and stories to The Sun. A press summary can be found here. Steyn J found that Rooney's post was "substantially true", meaning that Rooney's truth defence succeeded (although she failed in her public interest defence). It was held that Ms Vardy had used her agent Caroline Watt as an accomplice to leak the posts and that she condoned and actively engaged in the leaks. It was further found that Vardy had deliberately deleted Whatsapp conversations with Ms Watt and in a somewhat dramatic cinematic twist, Ms Watt had deliberately dropped her phone in the North Sea. The Judge also labelled much of Ms Vardy's evidence as "not credible" and considered it with "caution". Whilst the case does not throw up any new or novel areas of law, it serves as a timely reminder of the inherent risks in hard-fought litigation between high-profile individuals, particularly when parties are subjected to robust cross-examination. Ms Vardy as Claimant was subjected to three days of cross-examination which touched on various aspects of her private life. Had she succeeded, this ordeal may have been worth it. Instead, Ms Vardy is left to settle what is likely to be a monstrous legal costs bill. The experience of Ms Vardy may serve as a warning to other future litigants considering embarking on such action.
MoJ outlines anti-SLAPP measures
The Government has responded to its call for evidence in respect of Strategic Lawsuits Against Public Participation (SLAPPs). The proposed reforms include a new statutory early dismissal process to allow judges to dismiss claims that lack merit. This will involve a three-part test with criteria to help courts determine whether a case is a SLAPP. Firstly, it will be assessed if the case is against activity in the public interest. Secondly, it will be determined if there is evidence of abuse of process, such as whether the defendant has been sent an excessive number of aggressive letters on a trivial matter. The third step will be to review if the case has sufficient merit, i.e., a realistic prospect of success. A separate costs protection scheme has also been proposed to shield defendants from excessive costs risk. It remains to be seen how these proposals will operate in practice. RPC will closely follow the legislative developments and keep our readers updated.
The Guardian loses against exceptionally royal private hearing
The Guardian newspaper has lost its appeal challenging the High Court's decision to exclude the press from a hearing in July 2021 where an application to seal Prince Philip's will was heard. It is a century old convention that an application to seal the will of a senior member of the royal family is made to court. This means that such an individual's will would not be open to public inspection . The Guardian did not appeal the decision to seal the will but rather the Family Division's decision to hold the hearing in private which it called "disproportionate and unjustified". In a written argument, Caoilfhionn Gallagher QC called for an "exceptional justification" to be put forward for taking such an "exceptional step" without consulting representatives of the media with regards to the fairness of such a decision. The appeal hearing concluded on Thursday 21 July and the decision was handed down on Friday 29 July. The Court of Appeal held that alerting the media to the hearing would have caused a "media storm" which would have risked protracting the reporting on the proceedings and jeopardising the interest of the Queen and her family during a sensitive time. Moreover, they declared that there is no "specific public interest in knowing how the assets of the Royal Family are distributed" as per the Non-Contentious Probate Rules, which further solidified the judges' position that the hearing's private nature was justified.
Anonymity and breach of confidence
In EGC v PGF NHS Trust, Mr Justice Nicklin has refused an application by a Claimant seeking the anonymisation of the parties and corresponding reporting restrictions, although the judgment will remain private until the Claimant has had an opportunity to seek permission to appeal from the Court of Appeal. The case relates to a dispute between a doctor and an NHS Trust, in which the Trust wishes to make limited disclosure of certain documents relating to the Claimant to a defined class of people, to which the Claimant has objected. The Claimant sought an injunction to prevent the disclosure of the confidential information but prior to the issue of the claim form, had sought an anonymity application alongside reporting restrictions. Nicklin J held that the Claimant had failed to establish that an anonymity order was necessary to preserve what the Claimant was seeking to protect in the proceedings.
No strike out on the basis of insufficient case on serious harm
In the libel claim of Soriano v Société D'Exploitation and another, the Defendants applied to strike out the claim on the basis that the statement of case discloses no reasonable grounds for bringing the claim and/or that the statement of case is an abuse of the Court's process. Mrs Justice Collins Rice declined to strike out the case for a number of reasons including that (1) witness evidence would play a significant part in the fact-finding in relation to the issue of serious harm; (2) the inferential route is multifactorial, requiring an overall evaluation of a range of considerations; and (3) the evidence before the Court was not enough to consign an inferential case to the "realms of the unreal or fanciful". The Court held that the Claimant's pleading on serious harm was defective but that it was capable of being remedied and that the Claimant should be given an opportunity to do so. This case serves as a reminder of the high threshold that the Court must meet in order to grant strike out / summary judgment.
Teenage murderer to remain anonymous
On 25 November 2021, a 15-year-old boy was given a life sentence after fatally stabbing Ava White, a 12-year-old girl, in Liverpool City Centre. Ava's killer was referred to as 'Boy A' throughout the trial. Following the teenager's conviction, submissions were made by the PA News Agency, the Liverpool Echo and the BBC to reveal his identity under section 45(3) Youth Justice and Criminal Evidence Act 1999. However, Mrs Justice Yip concluded that the public interest in identifying 'Boy A' was outweighed by safeguarding issues which were especially pronounced due to concerns for the welfare of the defendant's young siblings. This is a stark contrast to the decisions made by HHJ Henson QC and Mrs Justice Jefford as reported in our previous publication where anonymity was respectively lifted in the 'interests of justice' and to deter the risk of 'ill-informed information'.
Claimant loses appeal in libel and GDPR/DPA claim
In Mueen-Uddin v Secretary of State for the Home Department, the Court of Appeal has dismissed the claimant's appeal against the first instance decision of Sir Andrew Nicol, in which he struck out the claimant's claims for libel and breach of the GDPR / DPA. The first instance judge found that the claim was an abuse of process and should also be struck out on Jameel grounds. The Court of Appeal upheld the Judge's finding, finding that there were a number of particular factors or features of the case which made the proceedings abusive. The Court found that a continuation of the proceedings would be manifestly unfair to the Secretary of State because it would not be possible to have a fair hearing of the defence of justification and that given evidence of the claimant's reputation, the proceedings "are not worth the candle" of pursuing them (Lord Justice Philips dissenting).
Chatter
Vote on Online Safety Bill delayed following Boris Johnson's resignation
The House of Commons vote on the Online Safety Bill has been postponed until 5th September when the Conservative Party is expected to elect a new Prime Minister following Boris Johnson's resignation.
A second attempt to discount the judgment of Depp v Heard is dashed
Amber Heard's legal team made a bid for a re-trial of the highly publicised defamation claim made against her by ex-husband Johnny Depp. Evidencing "newly discovered facts and information" about one of the jury members, an alleged "improper jury service" in the multimillion-dollar legal battle was claimed by her lawyers to constitute a mistrial. A new trial has subsequently been requested. This follows a previously unsuccessful attempt by Heard's legal team to argue that the decision in favour of Mr Depp on June 1 was not supported by the evidence shown during the trial. Nevertheless, Judge Penney Azcarate has thrown out this recent application, stating that the jury has nonetheless made a "competent decision", where the jurors were vetted, spent the requisite time in the court room, deliberated and had reached their own verdict. Ultimately, the Judge found that the prior judgment in favour of Depp should remain in place. Meanwhile, Depp's lawyers have condemned the appeal as "frivolous" with "no legitimate basis".
Bristol mayor criticised in media row
Bristol's Mayor Rees has denied banning 'local democracy reporters' from his press conferences, amidst an ongoing row between Bristol City Council and the local media. The row began after Mayor Rees' office declined to invite local democracy reporters to further press briefings, after a reporter asked the Mayor "if he saw the irony" in flying to Canada to deliver a talk on climate change. The Society of Editors, which represents editors of more than 400 national and regional newspapers, websites and broadcasters, published an open letter of condemnation against the Mayor's actions. Media outlets such as the BBC, ITV and Bristol 24/7 have announced boycotts of the Mayor's fortnightly media briefings. The National Union of Journalists is also supporting the stance of local media boycotts in future briefings. Mayor Rees' office has responded to the criticism by denying that a ban occurred, stating: "There's no ban but they're not invited".
Rishi Sunak makes tall claims: repealing section 40 Crime and Courts Act 2013
Prime Minister candidate, Rishi Sunak has pledged to repeal section 40 of the Crime and Courts Act 2013 as a matter of "urgency". The costs-shifting provision was initially put in place to protect independently regulated newspapers from the risk of facing excessive costs when defending media claims whilst also protecting claimants from such costs. However, the section has never come into force and the media industry has long since lobbied for its repeal.
Media given green light to reveal location of tycoon's burial
The sons of Sir David Barclay were unsuccessful in their attempt to prevent the media from revealing where their late father is buried. The location of the grave was revealed at a public hearing in the Family Division of the High Court in the ongoing dispute between the tycoon's twin brother Sir Frederick Barclay and his ex-wife, Lady Hiroko Barclay. The sons' barrister, Heather Rogers QC argued that the information was "deeply private" and should not be revealed by the media whilst Beth Grossman, acting for The Guardian, argued against the ban. It was held by the judge, Sir Jonathan Cohen, that the location of the grave does not need to remain private and could be reported.
First televised criminal sentencing in England & Wales
In a first for the criminal courts, the sentencing of a 25-year-old convicted of murder was broadcast on television and was also made available to view on various platforms. This follows the Crown Court (Recording and Broadcasting) Order 2020 which permits cameras in the Crown courts. Despite the law being passed in 2020, this case was the first instance where it was implemented following delays caused by the pandemic. The Ministry of Justice's decision to broadcast was hailed by broadcasters as a "landmark moment for open justice". Furthermore, the Lord Chancellor and Justice Secretary Dominic Raab emphasised the new law's ability to "promote transparency" when convicting the most serious offenders and to "reinforce confidence in the justice system". To highlight, only the judge giving the verdict may be filmed when delivering their sentencing remarks in order to protect the privacy of victims, witnesses and jurors.
MP pays £1000 to Ukraine crisis fund after losing libel claim against businessman
During a parliamentary debate on the Sanctions and Anti-Money Laundering Bill in 2018, Labour MP Chris Bryant alleged that businessman Christopher Chandler was a Russian spy involved in money laundering. Usually, such debates are protected from defamation claims due to parliamentary privilege, but the MP later quoted from his speech in a letter to the Foreign Secretary which was then published on Twitter. Chandler proceeded to bring a libel claim, but the case was recently settled. Bryant later apologised and was asked by the businessman to donate to a charity supporting the Ukraine in lieu of damages and legal fees. This case was the first of its kind where an MP was "held accountable" for a defamation claim after quoting words they had previously said in parliament. The businessman added: "parliamentary privilege is a crucial and cherished right in a democracy, but in an age of fake news and social media, MPs must have the ability and duty to amend the official record if they subsequently find out what they have said is false".
Quote of the fortnight:
"In my judgment, the conclusions that I have reached as to the extent to which the claimant engaged in disclosing to The Sun information to which she only had access as a permitted follower of an Instagram account which she knew, and Ms Rooney repeatedly asserted, was private, suffice to show that the single meaning is substantially true."
Mrs Justice Steyn at [287] of the Vardy v Rooney judgment