Take 10 - July 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.
News items
Duke of Sussex v Associated Newspapers Limited
Mr Justice Nicklin handed down a judgment today, following a preliminary issues trial last month, in the Duke of Sussex's ongoing libel claim against Associated Newspapers Limited. The claim is over an article from February 2022 reporting on the Duke's separate legal proceedings against the Home Office (in which there was also a hearing yesterday). The Judge's ruling determined the meaning of the article, whether it is (or includes) a statement of fact or expression of opinion, and whether it is defamatory of the Claimant at common law. The Judge's meaning was as follows, with the underlined words deemed expressions of opinion (with the balance making allegations of fact): (a) in his legal claim against the Home Office over the provision of police protection, the Claimant had initially sought confidentiality restrictions that were far-reaching and unjustifiably wide and were rightly challenged by the Home Office on the grounds of transparency and open justice; (b) the Claimant was responsible for public statements, issued on his behalf, which claimed that he was willing to pay for police protection in the UK, and that his legal challenge was to the Government's refusal to permit him to do so, whereas the true position, as revealed in documents filed in the legal proceedings, was that he had only made the offer to pay after the proceedings had commenced; and (c) as such, the Claimant was responsible for attempting to mislead and confuse the public as to the true position, which was ironic given that he now held a public role in tackling "misinformation". The Judge found all three meanings to be defamatory at common law, albeit only narrowly in respect of (a). The Judge rejected ANL's argument that the article bore no defamatory meaning of the Claimant and that a reader would have detected only a criticism of his "team" or those acting on his behalf, finding that the natural reaction of the reader would be that the Claimant was responsible for public statements issued on his behalf. The Judge also rejected the Claimant's submissions that the article bore a meaning accusing him of "lying", given that the article made no such allegation, whether expressly or by implication, and that the ordinary reasonable reader would understand the difference between "spinning" facts (the presentation of true facts, and often the omission of other facts, in a way that is designed to give a positive message but which, overall, is apt to mislead) and "lying". The next stage in proceedings is for ANL to file and serve a Defence. RPC acts for ANL.
No showpiece trial for Millett v Corbyn
In a hearing on Monday 27 June 2022, Mr Justice Nicklin considered pre-trial issues in a libel claim issued by political blogger, Richard Millett, against former Labour leader, Jeremy Corbyn. It is now estimated that the High Court could hear from a total of 41 witnesses during the trial scheduled to last two weeks in October later this year. The claim was issued following remarks made by Mr Corbyn during an interview on BBC1's Andrew Marr Show in September 2018, where the now Independent MP sought to clear allegations of anti-Semitism. During the interview, Mr Corbyn referred to two British Zionists who had been "incredibly disruptive" at various meetings including an occurrence of aggressive behaviour in 2013 towards a Palestinian representative in the House of Commons. Even though he was not named in the interview, Millett was later identified as one of the individuals in question and retaliated that the allegations of disruptive conduct and abuse against the speaker were false and had caused "long lasting damage to his reputation". A trial of preliminary issues held in June 2020 determined the meaning and character of the words published as statements of fact. Mr Corbyn was unsuccessful in his appeal against the judgment at the Court of Appeal in April 2021. The MP is now preparing a truth defence against the claim but could face paying the claimant significant damages and costs if he fails. Mr Justice Nicklin remarked that he will not let the trial turn into "some sort of showpiece".
Banks v Cadwalladr
Following Arron Bank's unsuccessful libel claim at the High Court against Carole Cadwalladr, Mrs Justice Steyn has granted Mr Banks permission to appeal part of the judgment. The financier and co-founder of the Leave.EU campaign put forward five grounds for appeal on 24 June 2022, of which only one was granted based on the serious harm test. Mr Banks' legal team submitted that Steyn J should not have considered the application of the serious harm test afresh following the vindication of criminal liability against him by the Electoral Commission Report as he had previously already proved it. In her closing statement, Steyn J determined that permission to bring the claim to the Court of Appeal may be granted as "it does clearly raise an issue of law that has not been previously determined". RPC has written a summary of the 13 June 2022 judgment here. RPC acts for Carole Cadwalladr.
Jabbar v Aviva - Whiplash doctor loses defamation claim against Aviva
Dr Fatima Jabbar, a doctor specialising in whiplash injuries, has lost multiple libel claims against insurance giant, Aviva. Jabbar claimed that the defendant had tried to "maliciously" deter various claimant solicitor firms from employing her services as an expert between 2015-2018. On one occasion, Aviva sent an allegedly defamatory letter regarding Jabbar to a solicitor acting in a road traffic incident claim. The letter purported that the General Medical Council had placed limits on Jabbar's ability to prepare medico-legal reports. On two separate occasions, the insurer refused to engage in settlement discussions with firms who used Jabbar as an expert. In a hearing held in May 2021, Deputy Master Toogood QC determined that Aviva was entitled to summary judgment as it had absolute privilege to communicate its concerns regarding Jabbar's ability to provide expert evidence due to the relevant communications being made within the pre-action protocol. The Deputy Master further ruled that malice could not be established and remarked, "It is necessary to permit a free and frank exchange of information to allow the claims to be negotiated and settled if possible". Despite the decision being made over a year ago, the judgment was only published on 20 June 2022, due to a dispute as to whether it should be handed down publicly.
Open justice in the Solicitors Disciplinary Tribunal
Following the Solicitors Disciplinary Tribunal's decision in February 2021 to acquit a solicitor in a misconduct action brought by the Solicitors Regulation Authority, the solicitor appealed the tribunal's approach to anonymity. The tribunal had previously refused the solicitor's request to anonymise her identity in the proceedings and yet chose to grant "sweeping" anonymity orders in respect of third parties. This was despite the relevant parties not even submitting applications to that effect. On 6 July 2022, Mr Justice Kerr, denounced the tribunal's skewered stance on open justice by stating that hearing the case in private was "convenient rather than necessary" and further criticised the superfluous redaction of names and details in its judgment. Moreover, Kerr J demystified misconceptions that an individual only needs to be named as a matter of public interest if they have direct relevance to the matter. The Judge ruled that the tribunal was right not to accept the solicitor's invitation to protect her identity. However, he found that further anonymity orders, save for in relation to three individuals who were likely subject to contractual rights to anonymity as a result of their employment, were unnecessary. He further noted that "courts and tribunals should not be squeamish about naming innocent people caught up in the wrongdoings of others" as it must not be presumed that "their privacy is more important than open justice". Read the full judgment here.
Tayler v HarperCollins - Ghislaine Maxwell's ex PA sues publisher for libel
Emmy Tayler, Ghislaine Maxwell's former personal assistant has brought a libel claim against publisher HarperCollins over allegations made by journalist Julie Brown in her book 'Perversion of Justice, The Jeffrey Epstein Story'. According to Ms Tayler, a passage in the book falsely alleged that she facilitated the sexual abuse of a fourteen-year-old girl at Epstein's Palm Beach home in 2005. The passage has since been amended following the realisation that Brown had erroneously conflated the identity of Ms Tayler with another individual. The claim, based on the original text, was heard at the High Court by Mr Justice Pepperall on 28 June 2022 where he was asked to determine the "natural and ordinary" meaning of the passage. The claimant's lawyers argued that the wording seemed to strongly imply that Ms Tayler "knowingly facilitated the paedophilia of a notorious child abuser" by leaving the underage victim alone in a room with Epstein. However, the defendant's counsel, argued that any claim of defamation "lacked reality" and would require the reader "to know things not mentioned in the passage". Pepperall J will give his written decision on the meaning of the passage at a later date.
Chatter
The Sun's application granted to reveal indentities of violent teenagers brothers:
On 30 June 2022, HHJ Henson QC lifted an order made under Section 45 Youth Justice and Criminal Evidence Act 1999 which had prevented the media from identifying two underage perpetrators involved in a violent attack on Easter Sunday in 2021. George (13) and Archie Tilley (14) left Alan Wilson with permanent brain injury and a fractured skull after beating him with a log. They were both convicted of GBH with intent to cause harm. Subsequently, the Sun applied for the perpetrators' identities to be revealed in publication. The Judge applied the principles in R v KL and granted the application as it was "now in the interests of justice to lift the restriction".
High Court judge grants media representatives' application to name 14-year-old murderer
On the same date, Mrs Justice Jefford granted an application to name 14-year-old murderer, Craig Mulligan who, alongside his stepfather and the victim's mother, brutally killed his 5-year-old stepbrother, Logan Mwangi in July 2021. Reach, Associated Newspapers and others submitted the application hoping for an "exceptional direction" to provide the public with a fuller understanding of the family dynamic and circumstances which led to the murder. Jefford J noted that withholding Mulligan's name would otherwise increase the risk of "ill-informed information".
Online Safety Bill updates:
After many months of speculation, on 6 July 2022, Ofcom published a roadmap to regulation aimed at companies that will be affected by provisions proposed by the current version of the Online Safety Bill if and when it is entrenched into UK law. It is important to note that the roadmap is not meant to be used as a guide but rather as an informative document that gives insight into Ofcom's current thoughts of the proposed legislation. The regulator has also published a call for evidence so that it may gather data to strengthen its understanding of techniques that online content platforms may employ to meet their obligations under the Bill. The call for evidence closes on 13 September 2022 and the information gathered will be used to create the regulator's first consultation on the topic in 2023.
New Bill of Rights to provide increased protection for journalistic sources
Dominic Raab has promised that the new Bill of Rights, replacing the current Human Rights Act, will "reinforce freedom of speech". The Bill will contain provisions to enhance the protection of journalistic sources' identities. This includes obligations on the courts to use a stronger test when considering whether a source is disclosable. Under this stance, individuals will not be prosecuted for contempt of court if they do not disclose a source unless this would be in the interest of justice, national security, or the prevention of crime and disorder. This provision is already entrenched in the existing Contempt of Court Act 1981. However, the new Bill will further reinforce that there must be "exceptional and compelling reasons why it is in the public interest for the disclosure to be made" thus increasing the threshold for divulgence.
Newspaper publishers lobby the Government to change privacy provisions
On a similar note, the publishers of The Times, the Daily Mail, and The Telegraph have joined forces to lobby the UK government for a provision in the new Bill of Rights which would increase the threshold used to determine the severity of a privacy claim. A threshold similar to the one used for defamation has been proposed where actual or serious harm to a core aspect of a claimant's life must be proved. The publishers have asserted that the "balance between free speech and privacy needs to be reset". This would be a move away from the current privacy-indulgent provisions of Article 8 Human Rights Act 1998.
Quote of the fortnight:
"The justice system thrives on fearless naming of people, whether bit part players or a protagonist. Open reporting is discouraged by what George Orwell once called a “plague of initials”. Clarity and a sense of purpose are lost. Reading or writing reports about nameless people is tedious."
Mr Justice Timothy Kerr at [6] of the Lu v SRA judgment, discussing the importance of open justice.