Tag Archives: article 8

Case Preview: PNM v Times Newspapers, Open justice and the privacy of suspects – Hugh Tomlinson QC

In this guest post, Hugh Tomlinson QC previews an appeal to the Supreme Court in a case that considers where the balance lies between rights to privacy and the principle of open justice. The post was first published on the Inforrm blog

On 17 and 18 January 2017, a seven judge Supreme Court will hear the claimant’s appeal against the decision of the Court of Appeal in the case of PNM v Times Newspapers ([2014] EWCA Civ 1132).

That Court had upheld the judge’s view that, on the basis of the “open justice principle”, information mentioned in open court concerning a person who was arrested but not charged could be reported.  

Background

The claimant was one of a number of men arrested in March 2012 in connection with a Thames Valley Police investigation into allegations of child sex grooming and prostitution.  The claimant was released on bail and was subsequently notified that he was to be released without charge.

Nine men were charged and a criminal trial took place at the Central Criminal Court between January and May 2013.  The claimant was not a party or witness at the criminal trial.  On 25 January 2013 order under section 4(2) of the Contempt of Court Act 1981 was made prohibiting publication of any report which referred to evidence which may identify or tend to identify him.

On 14 May 2013, seven of the defendants were convicted of numerous serious sexual offences.  A further order under section 4(2) of the Contempt of Court Act 1981 was made on the claimant’s application.  It prohibited disclosure of details of applications made to the Court by Thames Valley Police (which concerned certain of the claimant’s property).

The claimant’s full name was mentioned in open court when a police officer said that a witness had failed to pick him out on an identification parade.  He was also mentioned in the course of cross-examination, in speeches and in the summing up.

At the conclusion of the criminal trial the Judge declined to discharge the section 4(2) order until the decision was made as to whether the claimant would be charged.  In July 2013 the police notified the claimant that he was not going to be charged.   The Times and the Oxford Mail applied to discharge the section 4(2) but, before he had handed down his ruling, the claimant applied to the High Court for an injunction.

By an application made on 15 October 2013 against the Times, the Oxford Mail and two journalists, the claimant sought an order to prevent publication of the fact of his arrest on suspicion of committing serious sexual offences against children and associated information because of the fear of the damage such publications may cause to him and his family, including his children.

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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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“Right to be forgotten” requires anonymisation of online newspaper archive

In this post, Hugh Tomlinson QC discusses the implications of a ruling in the Belgian justice system for the application of the “right to be forgotten” for news organisations. Tomlinson is a member of Matrix Chambers and an editor of the Inforrm blog. The post was first published on the Inforrm blog and is cross-posted here with permission. 

In the case of Olivier G v Le Soir (29 April 2016, n° C.15.0052.F [pdf]) the Belgian Court of Cassation decided that, as the result of the “right to be forgotten”, a newspaper had been properly ordered to anonymise the online version of a 1994 article concerning a fatal road traffic accident.

The applicant had been convicted of a drink driving offence as a result of the accident but his conviction was spent and the continued online publication of his name was a violation of his Article 8 rights which outweighed the Article 10 rights of the newspaper and the public.

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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.