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References
Stemming from the case in: Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) 13, 334.
Spring v Guardian Assurance plc [1995] 2 Appeal Cases (AC) 296, House of Lords (HL). See infra no. 60.
Human Rights Act 1998.
European Convention on Human Rights and Fundamental Freedoms (ECHR), art. 10.
See art. 10 subs. 2.
Lord Steyn in Reynolds v Times Newspapers [2001] 2 AC 127 at 208, HL.
McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, HL (Northern Ireland). This was effectively recognized as far back as the Law of Libel Amendment Act 1888 in giving the protection of privilege to certain newspaper reports. The current equivalent legislation (Defamation Act 1996 Schedule 1) is not formally confined to the media but in practice they will be the beneficiaries of it.
Thus in Lyon v Daily Telegraph [1943] 1 King’s Bench Division Reports (KB) 746 at 743, Court of Appeal (CA) Scott LJ referred to the right of fair comment as “one of the fundamental rights of free speech and writing... and it is of vital importance to the rule of law on which we depend for our personal freedom.”
See P. Milmo QC/W.V.H. Rogers, Gatley on Libel and Slander (10th edn. 2003); D. Price, Defamation (3rd edn. 2003).
See now the Broadcasting Act 1966, sec. 166, replacing earlier legislation. Similarly a theatre production is libel by the Theatres Act 1968, sec. 4. A cinema film was held libel at common law in Youssoupoff v MGM (1934) 50 Times Law Reports (TLR) 581, CA.
For a full review see M. Collins, The Law of Defamation and the Internet (2001).
[1964] AC 234, HL.
See also Charleston v News Group Newspapers Ltd [1995] 2 AC 65, HL, perhaps attributing a somewhat unrealistically careful style of reading to consumers of tabloid newspapers.
Based on Sim v Stretch (1936) 52 TLR 669, HL. It is not possible to defame the dead, so the estate of a dead person cannot sue, nor can his family, unless what is said about the deceased injures their reputation. Nor can a governmental body sue (Derbyshire County Council v Times Newspapers Ltd [1993] AC 534) but a human agent of the body can sue if the imputation against the body amounts to an imputation against him. A commercial corporation may sue in respect of words which reflect on its trading reputation or property.
See Berkoff v Burchill [1996] 4 All England Law Reports (All ER) 1008, CA.
See e.g. Newstead v London Express Newspapers [1940] 1 KB 377, CA (Harold Newstead, Camberwell man, convicted of bigamy; true of one Harold Newstead of Camberwell, but not of another, the claimant; defendants liable, but jury awarded tiny damages).
See infra no. 45.
O’Shea v MGN Ltd [2001] Entertainment and Media Law Reports (EMLR) 40, Queen’s Bench Division (QBD).
Shevill v Presse Alliance SA [1995] 2 AC 18, European Court of Justice (ECJ).
Godfrey v. Demon Internet Ltd [2001] Queen’s Bench Division Reports (QB) 201.
Statutory Instrument (SI) 2002 No. 2013.
Slipper v BBC [1991] 1 QB 283, CA.
McManus v Beckham [2002] EWCA Civ 939, [2002] 1 Weekly Law Reports (WLR) 2982, CA.
Infra no. 65.
Lewis v Daily Telegraph [1964] AC 234 at 283, HL, per Lord Devlin.
Shah v Standard Chartered Bank [1999] QB 240, CA; Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] E.M.L.R. 218. The latter case rejected a challenge under Art. 10 of the Convention.
Recently applied in Irving v Penguin Books, 12 April 2000, QB, the “holocaust denial” case.
Berezovsky v Forbes Inc (No 2) [2001] EWCA Civ 1251, [2001] EMLR 45.
Cruise v Express Newspapers plc [1999] QB 931 at 954, CA.
For example Williams v Reason [1988] 1 WLR 96, CA. Contrast Bookbinder v Tebbitt [1989] 1 WLR 640, CA.
[2001] 1 WLR 579, CA.
[2001] EWCA Civ 791, [2001] EMLR 32, CA.
Reynolds v Times Newspapers Ltd [2001] 1 AC 127 at 193, HL, per Lord Nicholls.
Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743 at 747, CA, per Diplock LJ.
Branson v Bower (No 2) [2002] 2 WLR 452 at 455, QBD, per Eady J.
Tse Wai Chun Paul v Albert Cheng [2001] EMLR 31, Hong Kong Court of Final Appeal, per Lord Nicholls (this case is not binding on any English court, but Lord Nicholls is a judge of the House of Lords and it was immediately accepted as stating English common law).
Branson v Bower (No 2) [2002] 2 WLR 452 at 460, QBD. Cf. Nilsen and Johnsen v Norway (2000) 30 European Human Rights Reports (EHRR) 878, European Court of Human Rights (EctHR).
For example, Kemsley v Foot [1945] AC 345, HL.
Parliamentary Papers Act 1840.
Defamation Act 1996, sec. 14, replacing earlier legislation. There are additional common law and statutory qualified privileges for non-contemporaneous reports.
This includes a press conference: McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, HL.
Kingshott v Associated Kent Newspapers [1991] 1 QB 880, CA, under earlier legislation.
(1834) 1 Compton, Meeson & Roscoe (C.M. & R.) 181at 193.
W.V.H. Rogers, Winfield and Jolowicz on Tort (16th edn. 2002), 452.
[2001] 2 AC 127 (decided in 1999).
Ibid at 205.
Ibid.
Lange v Australian Broadcasting Corporation (1997) 145 Australian Law Reports (ALR) 96, High Court of Australia (HCA).
Lange v Atkinson [2000] New Zealand Court of Appeal (NZCA) 95, [2000] 3 New Zealand Law Reports (NZLR) 385.
G.K.R. Karate Ltd. v Yorkshire Post Newspapers Ltd. [2000] EMLR 410, CA. Reynolds itself concerned a story about the resignation of the Prime Minister of Ireland, so it was about politics, though not the politics of the United Kingdom.
New York Times v Sullivan 376 US 254 (1964). The law is more complex with regard to private persons but the general approach seems to be that a negligence standard applies. As is so often the case, legal rules cannot be compared in isolation from their procedural background. In the United States there is pre-trial disclosure of sources, whereas the media in England will generally be unwilling to reveal the identity of an informant and the courts will not compel them to do so. Since the refusal cannot, therefore, be treated as evidence of malice on the part of the media defendant, an extensive application of privilege can put the claimant in a very difficult position. There is a common law rule which in general prevents the defendant being compelled to give information about his sources in the preliminary stages of the case. This is reinforced by Part 53 of the Civil Procedure Rules. These do not protect a defendant from having to answer questions on this matter at the trial of the action but sec. 10 of the Contempt of Court Act 1981 provides that “no court may require a person to disclose, nor is any person guilty of contempt of court in refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.” It is extremely unlikely that this discretion would be exercised to order disclosure in a libel case, where the purpose would be to allow the applicant to bring further proceedings against the source. It is perhaps more likely to be exercised in a confidence case, where the purpose might be to allow the applicant to stop “leaks”.
[2001] EWCA Civ 1805, [2002] QB 783 at [35].
In Loutchansky the first instance judge, having reconsidered his decision in the light of the CA’s judgment, once again came to the conclusion that there was no privilege: [2002] EWHC 2490 (QB). Other cases in which claims to Reynolds privilege failed include James Gilbert Ltd. v M.G.N. Ltd. [2000] EMLR 680, QB; Grobelaar v News Group Newspapers Ltd. [2001] EWCA Civ 33, [2001] 2 All E.R. 437. Contrast Saad Al-Faghi v H.H. Saudi Research & Marketing (U.K.) Ltd [2001] EWCA Civ 1634, [2002] EMLR 13; H.H. Sheikha Mouza Al Misnad v Azzaman Ltd [2003] EWHC 1783 (QB); and Lukowiak v Unidad Editorial S.A. [2001] EMLR 46. The last case is of particular interest because although the action was brought in England the newspaper was foreign and the judge took account of the standards of verification required under the law of its domicile.
“An endangered species”: Eady J. in Lillie v Newcastle C.C. [2002] EWHC 1600 (QB) at [1093].
Roberts v Bass [2002] HCA 57, 194 A.L.R. 161.
Roberts v Bass at [77]–[78] per Gaudron, McHugh and Gummow JJ. See also Gleeson C.J. at [13]: “It would be inconsistent with the purpose of the privilege to use the occasion, not for the honest expression of views, but for the pubication of defamatory matter, knowing it to be false, or not caring whether it was true or false”. Kirby J’s “reservation” at [185] seems to relate not to this issue but to whether, outside the electoral context, absence of belief in truth might be equated with knowledge of untruth: see [195].
[1975] AC 135, HL.
Ibid at 152.
G.K.R. Karate (U.K.) Ltd v Yorkshire Post Newspapers Ltd [2000] 1 WLR 2571 at 2580, CA.
Loutchansky v Times Newspapers Ltd (Nos 2–5) [2001] EWCA Civ 1805, [2002] QB 783 at [34].
Egger v Chelmsford [1965] 1 QB 248, CA.
Loveless v Earl [1999] EMLR 530 at 538, C.A., per Hirst L.J.
Sec. 3(6).
Sec. 4(3). He may therefore rely on the defence if he was aware that the story was defamatory and referred to the claimant but believed that it was true. This was not so under the 1952 Act.
Milne v Express Newspapers [2002] EWHC 2564 (QB), [2003] 1 WLR 927.
See supra no. 32.
See supra no. 45.
Obduracy is not confined to the tabloid press. In Baldwin v Rusbridger [2001] EMLR 47, QB, a broadsheet newspaper lost a libel action brought by the claimant. The editor then repeated the allegations in a piece critical of the state of the law of libel. His claim that this was privileged as a reply to attacks made by the claimant’s counsel in the first action failed. Privilege was irrelevant since the defendant was perfectly entitled to attack the law of libel without the protection of privilege.
As Lord Atkin put it in Ley v Hamilton (1935) 153 Law Times (LT) 384 at 386, HL: “It is precisely because the real damage cannot be ascertained that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach.” See also Kiam v Neill [1996] EMLR 493, CA.
Comingersoll SA v Portugal (2001) 31 EHRR 31. See also W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001), 288–289.
John v MGN Ltd [1997] QB 586, CA.
Broome v Cassell & Co. Ltd. [1972] A.C. 1027 at 1077, HL, per Lord Hailsham L.C.
The Gleaner Co Ltd v Abrahams [2003] UKPC 55, [2003] 3 WLR 1038 at [54].
John v MGN Ltd [1997] QB 586, CA.
See generally Att Gen v Blake [2001] 1 AC 268, HL.
Ibid.
But cf Lord Scott in Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 AC 122 at [109] and the position in breach of confidence, infra no. 82.
See John v MGN Ltd [1997] QB 586 at 619, CA.
The leading cases are Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670, CA and John v MGN [1997] QB 586, CA.
[2002] EWCA Civ 43, [2002] 2 All ER 219.
[1997] Q.B. 568, CA.
[2003] UKPC 55, [2003] 3 WLR 1038.
See P. Milmo QC/W.V.H. Rogers (supra fn. 10), Chap. 20; Clerk and Lindsell on Torts (18th edn. 2000), Chap 23. The limitation period is one year, as in the case of defamation.
Ratcliffe v Evans [1892] 2 Q.B. 524, CA.
It is most likely that malicious falsehood claims will involve trade rivals, but there are examples of its use against the media (e.g. Ratcliffe v Evans, supra fn. 125; Kaye v Robertson [1991] Fleet Street Reports (FSR) 62, CA) sometimes without any “trade” context at all: Joyce v. Sengupta [1993] 1 WLR 337, CA.
The line between a defamatory statement and a damaging non-defamatory one may be hard to draw. For example to say of an airline that it was more than usually at risk of hijacking would clearly be defamatory if it imputed lax security, but perhaps not if it merely imputed that this was caused by the region in which it operated. However, it probably goes too far to say that a defamatory statement necessarily imputes blameworthy conduct: it is clearly defamatory to say that the claimant is insane even though sensible people regard that as a misfortune. And it has been held defamatory to say of a woman that she has been raped: Youssoupoff v MGM (1934) 50 TLR 581, CA. It is suggested by M. Tugendhat QC/A. Marzec, in: M. Tugendhat QC/I. Christie (eds.), The Law of Privacy and the Media (2002), 276 that rather than stretching the law of defamation by imputing prejudice to the “right thinking person” it would be better to deal with these cases as ones where it was actionable to put the claimant in a false light.
For example, framing the claim as malicious falsehood deprives the defendant of his right to trial by jury: Joyce v Sengupta [1993] 1 WLR 337, CA. Until 2000 malicious falsehood claims were eligible for Legal Aid. They are no longer eligible for the replacement, litigation funded by the Legal Services Commission.
Which means “likely to”: Customglass Boats v Salthouse Bros. [1976] Reports of Patent etc Cases (RPC) 589 (equivalent provision of New Zealand Act).
Khodaparast v Shad [2000] 1 WLR 618, CA. The same caution is shown in approaching applications for an interim in junction as in cases of defamation (supra no. 48). However, such an application succeeded in Kaye v Robertson [1991] FSR 62.
[1995] 2 A.C. 296, HL.
[1995] 2 A.C. at 346.
See the decision of the New Zealand Court of Appeal in Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd [2001] NZCA 321, [2002] NZLR 289.
Farah v British Airways, The Times, 26 January 2000, CA; Phelps v Hillingdon London Borough Council [2001] 2 AC 619, HL.
Bartholomew v Hackney London Borough Council [1999] Industrial Relations Law Reports (IRLR) 246, CA.
Kidd v Axa Equity and Law [2000] IRLR 301, CA.
See e.g. Erwen Warnink BV v J Townend & Sons (Hull) [1979] AC 731 (selling English “egg flip” drink as if it were genuine Dutch advocaat).
Lord Byron v Johnson (1816) 2 Merivale’s Reports (Mer) 29; Clark v Associated Newspapers Ltd [1998] RPC 261. There is another cause of action under sec. 84 of the Copyright, Designs and Patents Act 1988.
See Dockrell v Douglas (1899) 80 L.T. 556 at 557, 558; Walter v Ashton [1902] 2 Ch. 282 at 293.
Irvine v Talksport Ltd [2002] EWHC 367 (Ch), [2002] 1 WLR 2355 at [39]; affirmed, [2003] EWCA Civ 423, [2003] 2 All E.R. 881.
M. Tugendhat QC/I. Christie (eds), The Law of Privacy and the Media (2002); R. Toulson/C. Phipps, Confidentiality (1996).
Contrast the common law in the United States, though the constitutional guarantee of free speech has cut this down more than is sometimes appreciated. See generally D. Dobbs, The Law of Torts (2000), Chap 29.
Wainwright v Home Office [2003] UKHL 53, [2003] 3 WLR 1137.
Sec. 6(3).
Sec. 6(5)(b).
Aston Cantlow etc Parochial Church Council v Wallbank [2003] UKHL 37, [2003] 3 WLR 283; and see sec. 6(5).
Ibid.
Ibid at [55] per Lord Hope.
Glaser v U.K. (2001) 33 EHRR 1.
See M. Tugendhat QC/I. Christie (supra fn. 143), 270. The issue of the horizontal effect of the 1998 Act is still described as “controversial” by Lord Nicholls in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at [18].
Sec. 8(4).
See Law Commission Report No 266, Damages under the Human Rights Act 1998 (2000). The EctHR rarely awards more than € 15,000. However, there is generally no motivation of its awards: it acts rather like an English jury.
See M. Warby QC/S. Bate/ G. Busuttil/ A. Speker, Chap 6, in: M. Tugendhat QC/I. Christie (supra fn. 143).
Jack J in A v B Plc, 30 April 2001, QB.
A v B plc [2002] EWCA Civ 337, [2003] Q.B. 195 at [11].
See e.g. Robb v Green [1895] 2 QB 315, CA; Faccenda Chicken Ltd v Fowler [1987] Ch 117, CA.
Prince Albert v Strange (1849) 1 M’Naghten and Gordon’s Reports (Mac & G) 25.
See e.g. Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, HL. Although government secrets cases typically involve the media, both they and trade secrets cases are outside the scope of this survey.
Lord Nicholls in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at [14].
Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444, QB; Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134, Ch.
Ashburton v Pape [1913] 2 Ch 469 at 475, CA.
Hellewell v Chief Constable Derbyshire [1995] 4 All ER 473 at 475, QB.
[1990] 1 AC 109 at 281, HL, a case concerning government secrets.
[1991] FSR 62, CA.
[2001] QB 967, CA (surreptitious photography at society wedding — see infra no 83). The claimants, Michael Douglas and Catherine Zeta-Jones succeeded in their action (Douglas v Hello! Ltd (No. 3) [2003] EWHC 786 (Ch), [2003] 3 All ER 996) and recovered modest damages ([2003] EWHC 2629 (Ch)). However, the major dispute was between the defendants and OK! Magazine, which had been granted exclusive publicity rights in the event. OK! recovered about € 1.5 million.
[2001] Family Division Reports (Fam) 430.
But in the somewhat similar case of X (a woman formerly known as Mary Bell) v O’Brien [2003] EWHC 1101 (QB) Art. 8 was in issue.
Thus the strip searches in Wainwright v Home Office [2003] UKHL 53, [2003] 3 WLR 1137 might be described as an invasion of privacy but they cannot be dragged into the law of confidence because in no sense is information involved.
Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at [51]. Cf. Lord Hope at [86].
Supra.
[2002] EWHC 499 (QB), [2002] EMLR 30 at [14].
Compare WB v H Bauer Publishing Ltd [2002] EMLR 8, QB (information obtained from press article published in contravention of court order of which defendant ignorant; no duty of confidence).
Campbell v MGN at [50] per Lord Hoffmann.
Ibid at [17] per Lord Nicholls.
Stephens v Avery [1988] 1 Ch 449.
Argyll v Argyll [1967] Ch 302.
Argyll, supra. Cf R v Dept of Health ex parte Source Informatics Ltd [2001] QB 424, CA (anonymised mass information about drug prescriptions issued by doctors).
W v Egdell [1990] Ch 359; Cornelius v De Taranto [2002] EMLR 112, CA.
Thompson v Stanhope (1774) Ambler’s Reports (Amb) 737.
Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892.
John Reid Enterprises Ltd v Pell [1999] EMLR 675.
Venables v News Group Newspapers Ltd [2001] Fam 430.
Blair v Associated Newspapers Ltd, 10 March 2000, QBD.
Elliott v Chief Constable of Wiltshire, The Times, 5 December 1996. See also R v Chief Constable of North Wales, ex parte Thorpe [1999] QB 396, CA.
See supra no. 15.
[2002] EMLR 8, QB.
The judge was clearly troubled by Minelli v Switzerland (1983) 5 EHRR 544, EctHR, but that case involved adverse comments by the acquitting court.
At [44].
[2001] HCA 63, 185 ALR 1 at [42].
[2004] UKHL 22, [2004] 2 AC 457 at [22], [136], [166].
[1998] 1 Supreme Court Reports (SCR) 591.
It is important to realize that the case goes no further than this. Decisions of the Supreme Court on provincial legislation have no binding force for the states of other provinces and in Hung v Gardiner [2002] BCSC 1234 the British Columbia court declined to accept that Aubry provided any support for the existence of causes of action for invasion of privacy at common law.
At [65].
(2003) 36 EHRR 41. Cf. the ECtHR’s doubts on this when Peck was decided.
[2004] UKHL 22, [2004] 2 AC 457 at [74], [122]. In certain circumstances a claim might be supported on some other basis. There might be a breach of confidence if the photograph exposed the claimant to danger (see supra no. 68). If it exposed the claimant to ridicule it might be defamatory (Dunlop Rubber Co v Dunlop [1921] 1 AC 367, HL); or if the claimant had a valuable “commercial” reputation and the image was used in support of the defendant’s advertising it might be passing off (see supra no. 61).
[2004] UKHL 22, [2004] 2 AC 457 at [154].
[2004] NZCA 34.
P. Gault, Blanchard and Tipping JJ, Keith and Anderson JJ dissenting. The New Zealand Bill of Rights Act deliberately omitted any guarantee of privacy and the New Zealand Privacy Act 1993 did not create a remedy by civil action.
See infra no. 91.
Alex Kingston and Hello!, 1 May 2001.
[2004] UKHL 22, [2004] 2 AC 457 at [122] et seq.
See e.g. Initial Services Ltd v Putterill [1968] QB 396, CA (information about a price cartel).
[1985] QB 526, CA.
[2001] EWCA Civ 1491, [2003] EMLR 4.
[2002] EWCA Civ 337, [2003] QB 195.
See infra no. 91.
At [11 (xii)].
In Theakston v MGN Ltd [2002] EWHC 137, [2002] EMLR 22 where Ouseley J declined to prevent publication of the story of the claimant television presenter’s visit to a brothel, he said, “sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away.” (at [60]).
At [43].
Cf Theakston v MGN [2002] EWHC 137, [2002] EMLR 22 and Woodward v Hutchins [1977] 1 WLR 760, where such behaviour pointed in favour of publication.
G. Phillipson, Judicial Reasoning in Breach of Confidence Cases under the Human Rights Act: Not Taking Privacy Seriously, [2003] European Human Rights Law Review (Special Issue: Privacy) (EHRLR) 53.
[2002] EWCA Civ 1373, [2003] QB 633 at [41].
Most clearly put by Lady Hale at [2004] UKHL 22, [2004] 2 AC 457 at [147]: “But the starting point must be that it was all private and its publication required specific justification”.
At the trial, the editor of the newspaper had deposed: “I thought there were two main reasons why publication was justified. (i) It appeared that Naomi Campbell had been committing a serious criminal offence by possessing and using a class A drug over a period of years...”: [2003] EWCA Civ 1373, [2003] QB 633 at [131].
Ibid at [58], per Lord Hoffmann.
See G. Phillipson (supra fn. 221).
See e.g. [2004] UKHL 22, [2004] 2 AC 457 at [112].
See ibid at [123], [155], [169].
Ibid at [143].
A v B [2002] EWCA Civ 337, [2003] QB 195 at [11 (vii) and (viii)]. The trial judges in this case and in Campbell came to the opposite conclusion from the CA. Furthermore, only two years before in R v Broadcasting Standards Commission, ex parte BBC [2000] 3 WLR 1327 at [14] Lord Woolf himself had said: “What constitutes an infringement of privacy or bad taste or a failure to conform to proper standards of decency is very much a matter of personal judgment. This is not an area in which the courts are well-equipped to adjudicate. In relation to privacy, both the literature and the jurisprudence show an understandable reluctance to propose a comprehensive definition. As Mr Beloff submitted, we are here in an area involving open-textured concepts. An interference with privacy is not even like the elephant, of which it can be said it is at least easy to recognise if not to define. The meaning of privacy can be influenced by the context in which it appears.”
In their famous and influential article, The Right to Privacy, [1890] 4 Harvard Law Review 193 Warren and Brandeis said at p. 196: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle... When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.” As Buxton LJ said in Wainwright v Home Office [2001] EWCA Civ 2081, [2002] 3 WLR 405 at [110], CA, “It may be doubted whether a judge in 2001 would feel able to advance quite that justification for awarding damages for breach of privacy.” However, some hold the view that a privacy law has a role to play in improving press standards. See e.g. G. Phillipson/H. Fenwick, Breach of Confidence as a Privacy Remedy in the Human Rights Act Era, [2000] Modern Law Review (M.LR) 660 at 693: “If stories about the diets or clothes or sexual practices of celebrities squeeze out political speech, it can be said that low-value speech is stifling speech that is actually directed towards the maintenance of a truly democratic society. In itself this tendency runs counter to the Meiklejohnian argument for free speech from democracy, since it leads to the impoverishment of the diet of a very large number of newspaper readers and inhibits their ability to participate in an informed manner in a democracy. The development of a privacy law that was fully respectful of the press’s legitimate role in a democracy would have at the least a tendency to arrest this debasement of standards, while at the same time it would be strongly in accordance with this key free speech justification. If one of the central aims of the Convention is, as the European Court has repeatedly stressed, the furtherance of a democratic society, a tendency away from a preoccupation with lurid trivia and towards an interest in political coverage in the popular press could only be viewed as furthering that aim and thus as being wholly consonant with the values underlying Art. 10.”
[2004] UKHL 22, [2004] 2 AC 457 at [14] and [15].
Typically, no other loss is asserted, as in Campbell v MGN. See also Cornelius v de Taranto [2001] EMLR 329, QB; Archer v Williams [2003] EWHC 1670 (QB); Douglas v Hello! Ltd [2003] EWHC 2629 (Ch). However, the awards (between € 3,500 and € 5,500) were modest by libel standards.
Campbell v MGN Ltd [2002] EWCA Civ 1373, [2003] QB 633 at [139]. Aggravated damages are based on the idea that the defendant’s wilful behaviour has increased the claimant’s suffering and are to be distinguished from exemplary damages, which are based on punishment/deterrence. Can exemplary damages be awarded for breach of confidence? The New Zealand CA thought so in Aquaculture Corp v New Zealand Green Mussel Co [1990] 3 NZLR 299. But (a) New Zealand courts are more liberal with exemplary damages than are English courts and (b) if an account of profits is available that may point the other way: see supra no. 54.
Lord Nicholls said he thought this award correct: [2004] UKHL 22, [2004] 2 AC 457 at [35].
Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 286, HL; Douglas v Hello! Ltd [2001] QB 967, CA.
Kitechnology BV v Unicor GmbH Plastmaschinen [1995] FSR 765, CA (not a “privacy” case). On the other hand, these concepts have an autonomous meaning in this context, so it might be relevant where privacy was at stake that other systems treat invasion of privacy as tort. The Convention is now replaced by Council Regulation 44/2001.
[2001] QB 967, CA.
As they did: [2003] EWHC 786 (Ch).
Att Gen v Times Newspapers Ltd [1992] 1 AC 191, HL.
Venables v News Group Newspapers Ltd [2001] Fam 430.
For a fuller account see M. Tugendhat QC/D. Sherborne/ J. Barnes, Chap 5, in: M. Tugendhat QC/I. Christie (eds), (supra fn. 143).
Campbell v MGN Ltd [2002] EWCA Civ 1373, [2003] QB 633 at [72].
See Schedule 3 to the Act and the Data Protection (Processing of Sensitive Personal Data) Order, SI 2000/417.
The publication of the newspaper itself forms part of the processing of the data: Campbell v MGN Ltd [2002] EWCA Civ 1373, [2003] QB 633 at [107]. It is true that the Data Protection (Processing of Sensitive Personal Data) Order 2000 allows the publication of sensitive personal data in the public interest where it concerns certain defined forms of wrongdoing, malpractice, incompetence or mismanagement but this was thought too narrow to cover the facts in the Campbell case.
Campbell v MGN Ltd [2002] EWCA Civ 1373, [2003] QB 633 at [120]. There was no appeal to the HL on the data protection issue in Campbell.
[2001] EWCA Civ 1233, [2002] EMLR 78.
The right to freedom of expression is clearly relevant here but the defence was rejected on the facts in Silverton v Gravett, 19 October 2001, QBD (animal rights campaign).
So it was not applicable in Kaye v Robertson, supra no. 68.
Lyons & Sons v Wilkins [1899] 1 Ch 255; Bernstein v Skyviews [1978] QB 479.
Khorasandjian v Bush [1993] QB 727, CA (though the case is wrongly decided because of the next point).
Hunter v Canary Wharf [1997] AC 655, HL.
See Wainwright v Home Office [2003] UKHL 53, [2003] 3 WLR 1137. The tort of intentional infliction of harm by indirect means (Wilkinson v Downton [1897] 2 QB 57) would only come into play if there was some damage in the form of a psychiatric illness, not mere distress.
See D. Sherborne/ S. Jethani, Chap 13, in: I. Christie (eds), The Law of Privacy and the Media (2002); R. Toulson/C. Phipps, Confidentiality (1996) M. Tugendhat QC/I. Christie (supra fn. 143). For a critical review of the operation of the regulatory bodies see G. Robertson QC/A. Nicol QC, Media Law (4th edn. 2002), Chaps 14 and 16.
This and the other Codes referred to below are the “relevant privacy codes” for the purposes of sec. 12(4)(b) of the Human Rights Act, supra no. 76. Although the Codes do not give rise to private law remedies the fact that the court is directed to have regard to them in private law proceedings therefore gives them at least some legal influence, if not force. The Codes themselves say nothing about injunctions because the regulatory bodies have no power to prevent publication. But if a media defendant is in breach of the relevant Code that is likely to weight heavily against him in the context of an interim injunction: Douglas v Hello! Ltd [2001] QB 967 at 994, CA.
Para. 73.
See supra no. 87.
Douglas v Hello! was of course a case of this type.
Para. 50.
Ibid. While it was possible to add an Appendix on von Hannover before this went to the printer, the law moves fast and there are now a number of further significant cases on defamation to which the reader may be referred. Some of them (the “Jameel” cases) have arisen from reports of financial investigations in the aftermath of “9/11”. In Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, a case of limited publication in UK, the claim was struck out as an abuse of process even though, technically, only one “publishee” is necessary: one may expect some sections of the media frequently to seek to take advantage of this where they contend that little harm was done. Jameel v Times Newspapers [2004] EWCA Civ 983, [2001] E.M.L.R. 31 considers the court’s role in determining meaning. Important cases considering the scope of the Reynolds form of qualified privilege are: Jameel v Wall Street Journal Europe Sprl (No 2) [2005] EWCA Civ 74; Galloway v Telegraph Group Ltd. [2004] EWHC 2786 (QB), [2005] E.M.L.R. 7; Armstrong v Times Newspapers Ltd [2004] EWHC 2928 (QB). This type of case is proving difficult to handle with a jury and there are some signs that agreements for “judge-only” trial are becoming more common. Hamilton v Clifford [2004] EWHC 1542 (QB) considers the distinction between “fact” and “opinion” in fair comment. Buchanan v Jennings [2004] UKPC 36, [2004] 3 WLR 1163 reaffirms that a member of parliament has no immunity for repetition outside the House of what he says inside.
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Rogers, W.V.H. (2005). England. In: Koziol, H., Warzilek, A. (eds) Persönlichkeitsschutz gegenüber Massenmedien. Tort and Insurance Law, vol 13. Springer, Vienna. https://doi.org/10.1007/3-211-29443-0_2
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