Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.
Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?
Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”
Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.
Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):
“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.”
This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:
“There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)
The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference? Continue reading
Monroe v Hopkins libel case: a retrograde judgment
Is it possible that Britain’s populist polemicist Katie Hopkins may be right? Perhaps, just on this one thing: the outcome of the Jack Monroe libel trial. She says the High Court judge who found against her for her inaccurate and rude tweets against Monroe was wrong and she intends to appeal. [Note: in the event no appeal was forthcoming.]
Monroe was awarded £24,000 in damages in the High Court in a row over a tweet implying the food writer and activist approved of defacing a war memorial during an anti-austerity demonstration in Whitehall. Hopkins had simply confused Monroe with left-wing polemicist Laurie Penny. She deleted the tweet but then sent one out suggesting that, nonetheless, Monroe was a pretty awful person (“social anthrax” was the term used).
In the case Mr Justice Warby noted that:
“Libel consists of the publication by the defendant to one or more third parties of a statement about the claimant which has a tendency to defame the claimant, and causes or is likely to cause serious harm to the claimant’s reputation.”
Serious harm to reputation is crucial, particularly since the Defamation Act of 2013, which enshrined the concept in legislation – with the clear intention of curbing defamation actions seen as wasteful of court time and (one suspects) irritating to the Conservative Government’s friends among newspaper owners. It says at Section 1:
“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
The intention was to focus on real harm and deter trivial cases. But reading the Monroe judgment, one can’t help thinking that Warby underplayed “serious harm” and somewhat overplayed Monroe’s hurt feelings once Hopkins’s loyal fans got to work on Twitter.
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Filed under Analysis, Comment, Defamation, ECHR, European Convention on Human Rights, Human rights, Law, Legal, Media, Media law, Politics, tort, UK Law, UK Politics, Uncategorized
Tagged as Defamation Act of 2013, Lachaux v Independent, Lord Atkins libel test, Monroe v Hopkins libel case, Nigel Smith v ADVFN Plc and others [2008], Sim v Stretch (1936), Thornton v Telegraph Media [2010]