Category Archives: Defamation

Information Law and Policy Centre’s annual workshop highlights new challenges in balancing competing human rights

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Our annual workshop and lecture – held earlier this month – brought together a wide range of legal academics, lawyers, policy-makers and interested parties to discuss the future of human rights and digital information control.

A number of key themes emerged in our panel sessions including the tensions present in balancing Article 8 and Article 10 rights; the new algorithmic and informational power of commercial actors; the challenges for law enforcement; the liability of online intermediaries; and future technological developments.

The following write up of the event offers a very brief summary report of each panel and of Rosemary Jay’s evening lecture.

Morning Session

Panel A: Social media, online privacy and shaming

Helen James and Emma Nottingham (University of Winchester) began the panel by presenting their research (with Marion Oswald) into the legal and ethical issues raised by the depiction of young children in broadcast TV programmes such as The Secret Life of 4, 5 and 6 Year Olds. They were also concerned with the live-tweeting which accompanied these programmes, noting that very abusive tweets could be directed towards children taking part in the programmes.

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Notice-and-Fair-Balance: the Law of Fundamental Rights in European Intermediary Liability

On 11 April 2016, Christina Angelopoulos of the Information Law and Policy Centre, Institute for Advanced Legal Studies and Stijn Smet of the Human Rights Centre, Ghent University gave a presentation at the BILETA Conference (which took place this year at the University of Hertfordshire) on their paper entitled “Notice-And-Fair-Balance: the Law of Fundamental Rights in European Intermediary Liability”.

The abstract of the presentation (which can be found on the BILETA website here) is as follows:

Abstract

Notice-and-action has been the preferred answer to questions of intermediary liability for alleged unlawful online information for over 15 years: first adopted, in the form of “notice-and-takedown”, in the US in 1998 as part of the DMCA safe harbours , the concept quickly spread across the globe in a variety of different mutations, including “notice-and-notice” (adopted in Canada), “notice-and-disconnection” (pioneered in France), notice-and-stay-down (still popular in Germany), “notice-and-judicial-take-down” (encountered in Chile) and notice-wait-and-takedown (a Japanese invention).

Following the general trend, the EU introduced a basic “notice-and-takedown” regime in 2000 by means of the hosting immunity of Article 14 of the E-Commerce Directive. While this provision has proven undoubtedly useful, it is also sparse on the details, creating legal uncertainty and undermining its harmonising power. In addition, it applies horizontally, i.e. to all areas of law, leaving no room for appropriate gradations. As a result of its alleged shortcomings, calls to reformulate the E-Commerce system into a more elaborate notice-and-action procedure have been made. These calls seem to have found the Commission’s ear: a series of Communications (most recently in December 2015 on “a modern, more European copyright framework”) show the EU’s interest in developing a more intricate European notice-and-action system.

At the same time, the European discussion on intermediary liability has moved from the dissection of processes to the analysis of their relationship with underlying law. Particular emphasis has herein been placed on the relevance of fundamental rights. The question of intermediary liability for users’ activities of copyright infringement, defamation, hate speech or child pornography has been reinterpreted as a quintessential question of fundamental rights clashes. The notion of a “fair balance” between competing fundamental rights has emerged as central to addressing such clashes in the relevant case law of Europe’s highest courts – the CJEU and the ECtHR. Although the amassing case law has begun to put some flesh on the bones of the once skeletal references to this “fair balance”, considerable gaps remain, while no general standard is discernible.

Based on the authors’ PhD projects, respectively on the harmonisation of European intermediary liability and the resolution of conflicts between human rights, this paper shall aim to bring some much-needed clarity to the debate by answering the following questions: where might the fair balance lie in intermediary liability cases and can notice-and-action measures help secure that balance? To this end, we will first provide legal theoretical insights on the precise meaning of the notion “fair balance”. We will argue that achieving a “fair balance” in intermediary liability cases requires a search for a viable compromise between all fundamental rights at stake, instead of a solution under which one right “trumps” the others. Having set the theoretical stage, we will then proceed to examine various notice-and-action mechanisms to determine whether or not they contribute to reaching the desired compromise. In doing so, we will differentiate between distinct situations, arguing – for instance – that notice-and-notice suffices in copyright cases, while notice-and-takedown is suitable for defamation cases and a no notice/automatic takedown obligation is appropriate for child pornography.

The slides are available below.

Bileta – Smet Angelopoulos

The full paper will be published later this year.

MTE v Hungary: New ECtHR Judgment on Intermediary Liability and Freedom of Expression

Christina Angelopoulos is a post-doc researcher at the Information Law and Policy Centre of the University of London. She wrote her PhD on intermediary liability in copyright at the Institute for Information Law (IViR) of the University of Amsterdam. In the following piece, she analyses the recent judgment of the ECtHR in MTE v Hungary. The post was originally published on the Kluwer Copyright Blog.

On 2 February 2016, the European Court of Human Rights (ECtHR) delivered its first post-Delfi judgment on the liability of online service providers for the unlawful speech of others. Somewhat puzzlingly, the Court reached the opposite conclusion from that of last summer’s controversial Grand Chamber ruling, this time finding that a violation of Article 10 of the European Convention on Human Rights (ECHR) had occurred through the imposition of liability on the applicant providers. While in principle therefore the judgment is good news for both internet intermediaries and their end-users, the ruling does little to dispel the legal uncertainty that plagues the area: attempting to reverse and head off in the right direction, the Court still finds itself falling over the stumbling blocks it set out for itself last year. [To continue reading the rest of the post on the Kluwer Copyright Blog, click here.]

William McCormick QC: What now for recoverability of Success Fees and ATE Premiums in ‘publication and privacy proceedings’?

In this guest post, which originally appeared on the Ely Place Chambers site, William McCormick QC looks at the implications of the recent Supreme Court decision in Coventry v Lawrence for the handling of costs in defamation and privacy cases.

The much anticipated judgment of the Supreme Court in Coventry v Lawrence [2015] UKSC 50 resulted in a resounding 5-2 majority decision that the pre-Jackson CFA/ATE regime, under which the loser was at risk of paying base costs, a success fee and an ATE premium, was not incompatible with ECHR Article 6 and/or Article 1 of the First Protocol to the ECHR. This comes as no real surprise given the chaos that a contrary decision could have caused and the fact that the regime in question has now all but passed into history.

It is perhaps ironic that those cases in which the “old” regime still applies were not directly the subject of this decision. What then can be inferred about the attitude of the Court to any comparable challenge in such cases, including “publication and privacy cases” as defined in the CFA Order 2013, namely, proceedings for defamation; malicious falsehood; beach of confidence involving publication to the general public; misuse of private information or harassment by a news publisher. In these cases, success fees and ATE premiums remain recoverable from an opponent, but pending the judgment in Coventry defendants have refused to make any such payments.

The Supreme Court in Coventry gave permission to the Media Lawyers Association (“MLA”) to intervene by way of written and oral submissions. This was not at all surprising given that the cornerstone of the attack on the “old” regime was the decision of the ECtHR in MGN v UK (2011) 53 EHRR 5 in which the ECtHR declared that the regime that allowed the recoverability of a success fee by the wealthy claimant in Campbell v MGN (No.2) [2005] UKHL 61 had infringed the Art 10 rights of MGN.

The MLA sought to have the Court adopt the conclusion of the ECtHR and declare that the continuation of the “old” regime in cases in which Art 10 was engaged was incompatible with the ECHR. The problem that this submission faced (as pointed out by Lord Neuberger in argument) was that it sought a decision on a category of case which was not actually at issue in the case being decided. Accepting the force of that observation, the Court was expressly told that the intention was to use any dicta on the topic to persuade costs judges to apply MGN v UK rather than Campbell v MGN.

The main judgment is that of Lords Neuberger & Dyson (Lords Sumption & Carnwath agreeing). They consider the scope of MGN v UK at [50-52] but reject the submission that that case required a finding that the “old” regime was incompatible with Art 6. They note that that decision concerned Art 10 which is “always given particular weight by the ECtHR” and decide that the balancing exercise in that case was “of a wholly different character” to that under consideration.  There is no hint of criticism of the decision in MGN v UK in Art 10 cases, but neither is there any suggestion that the contrary decision of the House of Lords in Campbell v MGN should not be followed. Lord Mance (Lord Carnwath agreeing) gave a judgment to the same effect, thus constituting the majority of 5 justices.

Lord Clarke delivered the dissenting judgment with which Lady Hale agreed. At [129] he expressly endorsed MGN v UK and considered that it applied beyond Art 10 cases.

So what do the judgments offer to litigants in “publication and privacy proceedings” seeking certainty about the(ir) recoverability of success fees and ATE premiums?

Having permitted submissions from an organisation which was only interested in publication and privacy proceedings, the decision not to make any express comment as to the impact of MGN v UK upon the authority of Campbell v MGN  (and the decision not to explain the lack of comment) may be thought odd. It is certainly unhelpful, leaving the potential protagonists to such disputes (and the judges deciding them) in the dark as to how the majority in the highest court in the land views the issues.

Given the lack of any criticism of MGN v UK what is likely to happen if it is used to attack the still current costs recovery regime in “publication and privacy” cases, almost all of which are bound to engage Article 10?

Lord Neuberger & Lord Dyson observe at [87] that the real issue was whether paras 11.7 and/or 11.9 of the Costs Practice Direction could be “read down” to remedy the defects upon which the MGN v UK decision was predicated.  They conclude that, even if the old regime was incompatible with the ECHR, it would not be right to do so because of the legitimate expectation of litigants and their lawyers that the regime would apply to cases which fell within it. At [90] they point out that doing so would “have a  serious impact on many thousands of pre-April 2013 cases which are in run-off, as well as claims to which the pre-Jackson costs rules continue to apply, such as ….publication and privacy cases.”

This might be taken as an indication that the “legitimate expectation” argument would apply equally to publication and privacy cases.

Lord Mance reaches the same conclusion but without making a comparable comment.

The dissenting minority would not have allowed any legitimate expectation to trump the need to give effect to the ECHR and would have been prepared to read down or striking down paras 11.7 and/or 11.9 and thus bring into the consideration of the recoverability of success fees and ATE Premiums the means of the parties. This would mean that the balance between the rights of the CFA funded claimant under Art 6 (and Art 8) would need to be balanced on a case by case basis against the rights of the defendant  (under Art 10). Thus would be avoided what might be thought the least attractive aspect of the CFA regime (that it is available to those who have no need of it) while serving the real need of access to justice for those who cannot afford it.

The following would therefore seem to summarise the position:

  1. the Supreme Court chose not to make any specific comment on this issue;
  2. as a matter of strict precedent, Campbell v MGN continues to govern;
  3. the majority of the Supreme Court considers there to have been (and to be) a legitimate expectation that the existing regime on recoverability will continue to apply;
  4. if the regime is to be modified to meet the ECtHR’s criticisms it will probably be by a more subtle means than denying recoverability to all.

Further reading

  • Coventry & Ors v Lawrence & Anor [2015] UKSC 50 (22 July 2015) [PDF]
  • UK Supreme Court press summary [PDF]

William McCormick QC is a barrister at Ely Place Chambers. He was appointed Queens Counsel in 2010 following a series of substantial defamation and commercial cases and since then has developed his practice in these and other areas. This post originally appeared on the Ely Place Chambers site.

Is data protection the new defamation?

“If the headline asks a question, try answering ‘no'” says Andrew Marr in My Trade (2005, p. 253).

The answer to this post’s headline, as I see it, is a bit uncertain. I ignored Betteridge’s Law and used the same question as a title for a presentation at the University of Winchester’s Conference on Trust, Risk, Information and the Law (#TRILCon15) in April 2015 because I’d seen it popping up on Twitter (for example: here and here), and a piece in the Economist describing a ‘new front’ in media law.

spenceThe question of whether data protection  is superseding defamation can’t be answered definitively because of the inadequate data on defamation and data protection. I’ve set this out in more detail in a post on the Inforrm blog and the LSE Media Policy Project.

In April, I answered the question with a “not yet, no”, but it is becoming (or should be) an area of increasing concern for news organisations and journalists, which will need careful scrutiny and further research.

Things are certainly changing in terms of the impact of Article 8 of the Human Rights Act and the Data Protection Act 1998 on journalism and online publishing, but I’m not convinced that either, or both, have totally overtaken libel. My research in 2011-13 indicated that libel was still the major concern and preoccupation for bloggers, journalists and media lawyers.

And defamation certainly isn’t dead. There are two interesting defamation related developments to report since I wrote that post.

The first is a case described by the Times as ‘libel tourism’, a phenomenon that better data would allow us to monitor properly (cf. this Guardian’s piece – another one with a question in the headline).  Although the claimant  in Sloutsker v Romanova (Rev 1) [2015] EWHC 2053 (QB) (16 July 2015) lives outside the jurisdiction and the material complained of was published on Russian websites by a journalist living in Russia, the judge “concluded that the claim involves a real and substantial tort in this jurisdiction, and that England is clearly the appropriate place in which to try the claim” [para. 12; para. 100 Sloutsker v Romanova [2015] EWHC 545 (QB) (05 March 2015)]. He awarded the claimant £110,000 in damages.

The second is not a defamation case, but a Supreme Court decision that relates to the issue of costs in privacy and defamation proceedings, since it discusses at length the ECtHR’s rejection of the pre-LASPO Conditional Fee Agreement regime in MGN v United Kingdom (Coventry & Ors v Lawrence & Anor [2015] UKSC 50 (22 July 2015)). As 5RB notes here, “by a majority of 5-2 the Supreme Court held that the pre-LASPO CFA regime, which remains applicable in a small minority of claims including privacy and publication cases, is compatible with the ECHR“. More on the UK Human Rights blog here.

SLS Media and Communications: Call For Papers

The deadline for papers for the Media and Communications section at this year’s annual Society of Legal Scholars conference (University of York, 1st-4th September 2015) has been extended to 31st March 2015 24th April 2015. Here is the Call for Papers, prepared by section convener Dr Paul Wragg. He says that abstracts can be sent directly to P.M.Wragg@leeds.ac.uk and please feel free to get in touch with him to discuss ideas and proposals before submitting an abstract, if you would prefer.

The Media and Communications section will meet in the second half of the conference on Thursday 3rd and Friday 4th September. If you are interested in presenting a paper, please submit an abstract by Tuesday 31st March.

All abstracts must be submitted through the EasyChair conference system. If you have not used this system before, you will need to create an account before making your submission.

I would welcome proposals for papers on any area of media and communications law, including (but not limited to): media regulation; defamation; privacy; breach of confidence; telecommunications law; media ownership and pluralism; the laws, practices and codes affecting journalism (e.g. contempt of court, subterfuge, court reporting, recognition/status of journalists); the control of marketing, advertising, and sponsorship contract and rights issues affecting the media and communications sectors (for example, television coverage of sporting events); image rights; universal design / access in relation to communications language and minority rights and the media whether they address this year’s conference theme (Law’s Subjects: Subject to Law) or not. Alternatively, if you would like to propose a topic of current interest for a panel or roundtable discussion, please do get in touch to see if this can be arranged.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference. With this in mind, I would be grateful if you could let me know if you are also responding to calls for papers from other sections.

Please note that whilst you need only send a proposed title and abstract at this stage, speakers are encouraged to submit a full paper via EasyChair before the conference. The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career. The Prize carries a £250 monetary award and winning papers are published in Legal Studies. To be eligible:

• speakers must be fully paid-up members of the SLS;

• papers must not exceed 11,000 words including footnotes (as counted in Word);

• papers must be uploaded to EasyChair by Monday 24th August; and

• papers must not have been published previously or have been accepted or be under consideration for publication.

via SLS Media and Communications – 2015 Call For Papers | Lex Ferenda.