I thought I would upload some of the work that I have been doing over the last year as part of my masters degree in International Journalism.
Feel free to take a look over these next few posts.
Below is the essay written for my Media Law module:
How and why have privacy injunctions replaced defamation actions as the means by which celebrities seek to prevent the media from publishing stories about their private lives? Discuss with reference to case law examples since 2000.
I will be discussing the reasons in which celebrities have been using privacy injunctions rather than defamation actions by the means to prevent the publication of stories about their private lives, with particular reference to the difficulty to fight defamation cases after the 2013 Act, the protection of privacy offered before publication with an injunction and the chance of winning a privacy injunction in comparison to defamation action. Whilst both privacy injunctions and defamation action overlap in the sense that both protect the privacy of the individual, the main difference is that privacy injunctions focus on Article 8 of the Human rights Act 1998 protecting the privacy of the claimant, whist defamation actions protect the right to free expression of the journalist. I will make reference to the case law examples from after 2000, such as Naomi Campbell vs the Daily Mirror (2004).
Privacy Law was introduced to the UK in 2000 and developed out of the European Convention on Human Rights Act 1998 Article 8, ‘The Right to a Private Life’. It is used by celebrities and others to prevent information being published (Dodd & Hanna, 2018). With this, judges ruled that celebrities and public figures are entitled to having a private life and are to be sheltered from the public eye when there is a reasonable expectation of privacy (Watts, 2017). However, in section 12 of the Act it states that if an injunction is requested to ban the publication of information, it must be weighed against and regard Article 10, the freedom of expression. An injunction is a court order from a judge that prevents reporters from writing or talking about a case that could breach someone’s privacy under Article 8 of the Human Rights Act. An interim injunction would first be issued until the trial can be held. This is extremely costly for the losing party, but many engaging in their right to Article 8 win. In 2011 injunctions and super-injunctions (which include a clause that bans anyone from publicising that an injunction or anything relating too, even exists) received a lot of media coverage. This was because there had been a considerable amount of cases such as adultery, where anonymity was given, and this was affecting the freedom of expression for journalists whilst online users such as twitter and bloggers were publishing freely. (Middleton, 2013)This led Lord Neuberger to restrict the rules on non-publication injunctions by issuing the Practice Guidance and requiring that once an interim injunction was granted the case should proceed to trial (Supreme Court, 2015). This reduced the amount of applications for injunctions to dramatically as the cost of court was far too high if they lost. However, the use of contra mundum, which applies to the whole world, is one reason in which injunctions are used more than defamation actions. Once issued, it prevents anyone from publishing any information on the case or the private information protected, where a permanent injunction only binds those to who it applies, meaning another media organisation could publish the information. In June 2015 a teenage girl who had been a victim of sexual exploitation was issued contra mundumand given lifelong anonymity as it was decided her history should be kept private and confidential (Birmingham City Council v Safraz Riaz and Others, 2015).
European Court of Human Rights states that neither article 8 or 10 has precedence over the other, however the majority of UK judges’ rule with article 8 having more power. Before the human rights act 1998 journalists could claim that it was in the public interest to disclose private information. After the act however, it became less likely a judge would accept that a claimant’s private life was in the public’s interest, especially with the clause stating that they have the right to ‘reasonable expectation of privacy’. In 2012 the ECtHR stated that the private lives of celebrities were “acceptable if in the general interest and if in reasonable balance with the right to respect for private life” (European Court of Human Rights, 2017).
The first major use of Article 8 in UK law came in 2004 when Naomi Campbell won a privacy claim against the Mirror Group Newspaper for breach of privacy (Campbell v Mirror Group Newspapers, 2004). Photographs and details of her attending therapy at Narcotics anonymous for drug addiction, including photographs of her on the street outside the building. She was awarded a total of £3,500 in damages. Whilst the Mirror Group Newspapers argued that it was in the public interest as she had previously denied using drugs, using their right of freedom of expression under Article 10. However, the majority of judges (3 out of 5) agreed only some of the information such as the fact she had a drug addiction and was receiving therapy for it qualified as public interest, whereas the rest was seen as harmful to her treatment. This case proved that although the new privacy law changed the way of thinking, it was also difficult for the media to decide exactly what is deemed as private and what is deemed as public interest.
When there is a tort of breach of privacy, a court can provide damages and permanent injunctions. The highest sum of damages for breach of privacy went to Sadie Frost in 2015, where she received £260,250 from the Mirror Group Newspapers after a journalist hacked her phone, along with seven other claimants (Dodd & Hanna, 2018).
Although each case depends on the specific facts, the judge will rule with the varying levels of freedom of expression as expressed by the ECtHR. The more the person is in the public domain, the more protection that freedom of expression has. A survey conducted by Thomson Reuters found that over the last five years privacy claims have doubled, from 28 in 2010 to almost 60 in 2015 (Glenslade, 2016). This is because celebrities, to whom 1/5 of these claims were from, were trying to restrict publicity about their private lives (Inform’s Blog, 2015). The Ministry of Justice (Ministry of Justice, 2016)statistics show that by contrast, defamation cases have fallen by 40% from 2013. Mark Stephens (Greenslade, 2016), dispute-resolution lawyer, states that this drop is because “people have realised that reputation management is a much more sophisticated dark art than lawyers are capable of dealing with” since the 2013 Act. Stephens also argues that Max Mosley’s case against the News Group Newspapers (Mosley v News Group Newspapers LTD, 2008), where they alleged that he took part in sado-masochistic behaviour with prostitutes, was a turning point as he sued for breach of privacy over libel (won £60,000) as it is now believed that in order to manage reputation, a privacy claim is more effective. However, Carter-Ruck and Nigel Tait (Taddia, 2016)argue that the statistics on defamation action are actually misleading as most cases are now settled without a hearing from a judge and are therefore not reported on. They say this is due to section 1 of the 2013 act, which requires all claimants to establish the statement that caused of is likely to cause serious harm to their reputation.
Defamation actions claim damages and repair the reputation of the claimant after publication, unless the publisher can prove it is substantially true (Smartt, 2006). There are three types of defamation action; libel which is an allegation that is published, slander which is a spoken allegation and malicious falsehood which is an allegation that falls short of damaging a reputation. To file for any of these the claimant must first prove that what they are taking action against is defamatory, refers to them and has been published or is viewed by a large amount of people.
Cleland Thom (Thom, 2016)said that the Defamation Act 2013 was the biggest shakeup of libel Laws in years. The law protects a person’s Individual and professional reputation and reflects the changes brought about by the internet and favours the protection of free speech to expose, making it harder for individuals or companies to win libel action. Under section 1 of Act, to file for defamation the claimant has to prove that the publication causes serious harm to their reputation in one of four ways: Shunned or avoided, lowered in the eyes of right-thinking members of society, exposed to ridicule, hate or contempt or disparage in the office, business, trade or profession. Cooke v MGN Limited (Cooke V MGN Limited, 2014)was the first case to consider what constituted as ‘harm’ in 2014 when the Sunday Mirrorpublished an article Cooke found damaging to her business.
The need for proof means that there are fewer trivial cases and fewer taken to court, and the 2013 Act abolished the need of a jury trial. It also means that editors can take a harder line with those who are threatening action as they have more defences than in a privacy case. Under the 2013 Defamation Act the defences for defamation are improved. The truth defence, which can be used if the statement made can be proven to be true, replaces the justification defence. For example, in 2005 Robbie Williams won damages from after magazines Star andHot Starafter they alleged that he had not included details of a sexual encounter with a man in his biography, and therefore not revealing his true sexual identity. They could not prove that this was true and the publisher Northern and Shell had to pay the damages (Robert Peter Williams v Northern and Shell Plc, 2005). (Robert Peter William v Northern and Shell Plc, Statement in High Court, 6 December 2005).
Honest opinion, privilege and public interest, which replaces the complicated Reynolds defence are other defences that can be used against defamation and libel. Section 5 of the Act also now includes defence for secondary publishers online, including a one-year limitation period from original publication.
In 2004 the use of defamation was higher than the use of breach of confidence and injunctions. However, following from the 2013 Defamation Act which gave a better defence for journalists, many use the Privacy Law. Gill Phillips (Phillips, 2018)said that this is because it is more difficult to defend privacy than it is to defend a defamation case and courts are more likely to approve a super injunction. Even though are many defences that a journalist can take, they may be reluctant to fight it. This is because it can be different to prove their defence, for instance and if the case is lost there can be huge damage costs to pay due to the Crime and Courts Act 2013 by which a court can impose ‘exemplary damages’. Defamation Law is also very complicated, and judges often disagree, making the possibility to predict an outcome very difficult. In 2000 Living Marxism Magazineshut down as they had to pay a total of £375,000 damage costs being to two TV reporters over an allegation of a sensationalised image. (The Guardian, 21 March 2000). It is due to these costs that media organisations often choose to settle by apologising and paying damages rather than going to trail over defamation
In conclusion, celebrities are beginning to use injunctions under privacy law rather than defamation action as the outcome is over all more reliable. With an injunction, the publication of the private information is stopped before it is ever seen by the public, whilst with a defamation case like libel, the damage has to already be done, therefore the reputation is already damaged. It is also difficult to predict the outcome of a defamation case as it is dependent on the defence of the journalist and what the judge’s personal take on ‘harm’. Another reason is that defamation action is considered to favour freedom of expression and therefore the rights of the journalist, whilst privacy law favours the right to privacy (article 10 v article 8). Although, with both cases they take into consideration the other. The overall costs of defamation can also be more if it is taken to trial, and with journalists having more defences, it is harder for a celebrity to win than it is to get an injunction. Therefore, celebrities are using injunctions rather than defamation action due to ease, reliability and cost.
Birmingham City Council v Safraz Riaz and Others, EWHC 1857 (2015).
Campbell v Mirror Group Newspapers, UKHL 22 (2004).
Cooke V MGN Limited, EWHC 2831 (High Court 2014).
Dodd, M., & Hanna, M. (2018). McNae’s Essential Law for Journalists.Oxford: Oxford University Press.
European Court of Human Rights. (2017, September). Right to the Protection of Ones Image.Retrieved from European Court of Human Rights: https://www.echr.coe.int/Documents/FS_Own_image_ENG.pdf
Glenslade, R. (2016, June 13). Privacy claims reach record level as defamation cases fall away. Retrieved from The Guardian: https://www.theguardian.com/media/greenslade/2016/jun/13/privacy-claims-reach-record-level-as-defamation-cases-fall-away
Greenslade, R. (2016, June 13). Privacy Claims reach record level as defamation cases fall away. Retrieved from The Guardian: https://www.theguardian.com/media/greenslade/2016/jun/13/privacy-claims-reach-record-level-as-defamation-cases-fall-away
Inform’s Blog. (2015). Judicial Statistics, 2015: Issued defamation claims down by 40%, the second lowest number since 1992. Retrieved from Inform: https://inforrm.org/2016/06/04/judicial-statistics-2015-issued-defamation-claims-down-by-40-the-second-lowest-number-since-1992/
Middleton, A. (2013). Journalism Beyond Leveson.Birmingham: The Governance Foundation.
Ministry of Justice. (2016, June 2). Civil Justice Statistics Quartlery January to March 2016. Retrieved from Gov.co.uk: https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-january-to-march-2016-and-the-royal-courts-of-justice-2015
Mosley v News Group Newspapers LTD, EWHC 1777 (2008).
Phillips, G. (2018, November 27). The ethical and legal framework within which the Guardian approaches information, [Media Law Lecture]. Retrieved from Blackboard: https://shuspace.shu.ac.uk/webapps/blackboard/content/listContent.jsp?course_id=_316124_1&content_id=_82
Robert Peter Williams v Northern and Shell Plc (High Court December 6, 2005).
Smartt, U. (2006). Media Law for Journalists.Sage Publications Ltd.
Supreme Court. (2015). Centre for Commercial Law Studies Conference. UK Supreme Court decisions on private and commercial law: The role of public policy and public interest.
Taddia, M. (2016, 18 April). The Media, Defamation and Lawyers. Retrieved from The Law Society Gazette: https://www.lawgazette.co.uk/law/the-media-defamation-and-lawyers/5054757.article
Thom, C. (2016). Online Law for Journalists: A Practicle Guide.CreateSpace Independent Publishing Platform.
Watts, M. (2017, January 1). Privacy in UK (England and Wales): Overview. Retrieved from Thomson Reuters Practical Law: https://uk.practicallaw.thomsonreuters.com/3-525-6372?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk