Eric Barendt

Balancing Freedom of Expression and Privacy: The Jurisprudence of the Strasbourg Court

paper given at Uppsala University, Sweden, in March 2008. 1 (App no 59320/00) (2005) 40 EHRR 1. 2 See, for example, the House of Lords decision in Campbell v MGN [2004] 2 AC 457, the decisions of the Court of Appeal in Douglas v Hello! (No 6) [2006] QB 125, in McKennitt v Ash [2008] QB 73, and in Murray v Express Newspapers plc [2008] EMLR 12, and the recent decision of Eady J in Mosley v News Group Newspapers Ltd [2008] EMLR 20.

Bad News for Bloggers

Two recent court decisions—one in England, the other in New York—have denied bloggers a right which many of them regard as an essential aspect of their freedom: a right to anonymity. The anonymity claims were made in very different circumstances, but both raise the fundamental question how far bloggers are, or should be, entitled to communicate their views without disclosing their identity. In The Author of Blog v Times Newspapers Ltd,1 Eady J rejected the claim of the author of a blog known as ‘Night Jack’ to an interim injunction to stop Times Newspapers from revealing his identity. The blog, which had been awarded the Orwell Prize for citizen journalism in April 2009, discussed the claimant’s day-to-day work as a police officer and expressed his views on a number of social and political issues concerning police work. In the judge’s view, the information about the blogger’s identity was not to be treated as private, for ‘blogging is essentially a public rather than a private activity’.2 But even if it could be regarded as private, the public had a right to know who was disclosing the details of police work and often expressing strong criticism of police strategies.3 In the New York case,4 the question was whether Google, Inc should be directed to identity the author of allegedly defamatory statements about the petitioner, a well-known professional model, on blogs posted on websites under its control. The judge, Joan A [2009] 2 Journal of Media Law 141–147

Mark Warby QC, Nicole Moreham and Iain Christie (eds), Tugendhat and Christie, The Law of Privacy and the Media

The first edition of this magisterial book was published in 2002, when the law of privacy in relation to the media had certainly been conceived, but remained in a state of gestation. It was the decision of the House of Lords in Campbell v MGN Ltd which gave birth to English privacy law under the name of the tort of ‘misuse of private information’. Since then it has developed considerably, shaped not only by decisions of the courts in England, but also by the seminal ruling of the European Court of Human Rights in von Hannover v Germany (to which this book refers on no fewer than 32 occasions). So the appearance of a second edition was more than timely. Naturally its text is much longer—more than 200 pages longer—than that of the first edition. There are new chapters on the protection of individuals against media intrusion (chapter 10, discussed later in this review), on practice and procedure in privacy (chapter 14), and on some special issues in privacy law which have not yet been fully resolved by the courts (chapter 8, also discussed later in the review). The coverage of foreign law has been considerably expanded; 47 pages in chapter 3 are devoted to privacy law in other common law and in civil law jurisdictions. On the other hand, there is no separate chapter now on freedom of information and newsgathering; these topics, covered in chapter 11 of the first edition, are now treated more briefly in chapter 1 of the new edition (paras 1.28–1.30) or elsewhere in the book. The first edition of the book was edited by Michael Tugendhat QC, now a High Court judge and author of many recent judgments on privacy law, and by Iain Christie. The latter remains one of the three editors of this second edition, but he has been joined by Mark Warby QC, and by Nicole Moreham, a leading privacy law scholar. (Sir Michael Tugendhat is a consultant editor.) Apart from Nicole Moreham, the authors are members of 5 Raymond Buildings, the leading set of media law chambers, while a number of overseas contributors write sections on privacy in other legal systems. Dr Moreham brings a welcome theoretical perspective to the subject. This is shown most particularly in chapter 2, where she examines the scope of privacy interests and the rationales for protecting them. She suggests that there are ‘two core components of the right to privacy’ (para 2.07): the right to protection against the unwanted dissemination of private information, and the right to protection against unwanted intrusion or surveillance. Legal protection against unwanted intrusion has been less well developed than the protection of informational privacy (see para 2.17), but Dr Moreham argues, to some extent relying on academic support (para 2.20), that the law should provide full

Statutory Underpinning: A Threat to Press Freedom?

Newspaper bosses are considering their next move following the Royal Charter deal and many maintain their strong objections to the statutory underpinning proposed by Leveson. In an exclusive preview of his remarks at the upcoming Media Law after Leveson workshop in Oxford, Eric Barendt, Emeritus Professor of Media Law at University College London, looks back at the case made for statute and finds it lacking.

Reynolds Privilege and Reports of Police Investigations

When Lord Nicholls introduced in Reynolds v Times Newspapers a new head of qualified privilege defence to libel actions, he expressed confidence that ‘[o]ver time, a valuable corpus of case law will be built up’ to clarify when the media would be entitled to claim the privilege. The expectation was that courts would explain how they assessed the various factors set out by Lord Nicholls in his famous checklist, for example, the extent to which the subject of the story was of public concern, and whether the defendant had taken steps to verify the story or to contact the claimant for his comments on it. Eventually, the requirements of responsible journalism—one of the requisites of Reynolds privilege—would be clearly established. Subsequently, in Jameel v Wall Street Journal Europe SPRL the House of Lords made it plain that the factors in Lord Nicholls’ checklist should be applied flexibly; it would not necessarily matter, if comments had not been obtained from the claimant, when, as in Jameel itself, he could not be expected to say anything useful about the story. Further, in determining whether there was a public interest in publication of the information, the story should be considered as a whole, and some room should be left to editorial judgement as to whether it was necessary to incorporate the particular defamatory allegations.

Reynolds revived and replaced

ABSTRACT Two recent decisions of Warby J have upheld the defence of public interest privilege to libel actions: the first on the common law principles established in Reynolds v Times Newspapers, the second on the basis of the provision in the Defamation Act 2013 which replaced Reynolds. Though neither decision resolves every question about the scope of the defence, both of them show a high regard for the concerns of defendants who raise this defence in libel cases.

Freedom of the press

Contents: Introduction Part I Press Freedom and Freedom of Expression: Or of the press, Potter Stewart A preferred position for journalism?, Anthony Lewis The independent significance of the press clause under existing law, C. Edwin Baker Freedom of the press: ownership and editorial values, Thomas Gibbons. Part II Self-Regulation of the Press: Press councils: the answer to our 1st Amendment dilemma, John A. Ritter and Matthew Leibowitz Privacy jurisprudence of the Press Complaints Commission, Louis Blom-Cooper and Lisa R. Pruitt Self-censorship among journalists: a (moral) wrong or a violation of ECHR law?, HerdA-s ThorgeirsdA^3ttir. Part III Freedom of the Press and Libel Law: Libel and press self-censorship, David A. Anderson Freedom of speech and defamation: developments in the common law world, Adrienne Stone and George Williams Lange and Reynolds qualified privilege: Australian and English defamation law and practice, Andrew T. Kenyon. Part IV Freedom of the Press and Privacy: The right to speak from Times to Time: 1st Amendment theory applied to libel and misapplied to privacy, Melville B. Nimmer Privacy and the press, Eric Barendt Privacy and the reasonable paranoid: the protection of privacy in public places, Elizabeth Paton-Simpson Privacy and speech, Paul Gerwitz Is Von Hannover v. Germany a step backward for the substantive analysis of speech and privacy interests?, M.A. Sanderson Name index.

Problems with the ‘reasonable expectation of privacy’ test

ABSTRACT The ‘reasonable expectation of privacy’ test has been applied in two recent cases, Re JR38’s Application for Judicial Review and Weller v Associated Newspapers. Both cases were brought by children, to whom it is hard to apply the test. This note argues that the ‘reasonable expectation’ test is generally problematic and could be discarded.

The brave new world of press self-regulation

The central proposal in the Leveson Report following his inquiry into the culture, practices and ethics of the press was to replace the Press Complaints Commission with a new body, independent of both the newspaper industry and of government (see the articles in the Special Issue of this journal: (2013) 5 Journal of Media Law 167–296). There followed a period of wrangling between the political parties, the press and pressure groups, in particular HackedOff, with regard to the most appropriate means of implementing Leveson’s recommendations. In October 2013 the Privy Council issued a Royal Charter establishing a Recognition Panel to determine whether a regulatory body should be recognised as satisfying the criteria set out in a Schedule to the Charter. One regulatory body, IMPRESS, is at the time of writing (October 2015) applying to the Panel for recognition under the Royal Charter scheme. But the majority of national newspapers and many other newspaper and magazine publishers are opposed to this scheme, on the ground that it threatens press freedom; in September 2014 they set up the Independent Press Standards Organisation (IPSO) which has therefore been considering complaints of infringement of the Editors’ Code of press standards for the last 12 months. This is the background to the invitation from the editors of the Journal of Media Law to representatives of IPSO and IMPRESS to explain how they see the role of the bodies they represent, and the challenges their organisations will face in the next few years. We are grateful to Niall Duffy from IPSO and Jonathan Heawood from IMPRESS for accepting this invitation and for their contributions to this issue of the journal.

An overlap of defamation and privacy

May a claimant bring proceeding for infringement of privacy and confidentiality rights when a substantial element of the claim is damage to reputation? Or must the claim then be brought in defamation, when it would be subject to the rules of libel law, notably the defences of truth, honest opinion and privilege, and the rule in Bonnard v Perryman precluding the grant of interim injunctions in libel actions? This was the most important question in Hannon v News Group Newspapers Ltd, a case involving two actions brought for breach of confidence andmisuse of private information which has recently been considered byMann J. In the action brought by Ms Hannon, the Sun reported that the claimant, a model, ‘went mad’ when she found that her boyfriend, with whom she had been travelling on a flight from Bangalore to London, had behaved inappropriately on the flight with another woman passenger. It was reported that Ms Hannon had started to scream, and that all three passengers were arrested at the end of flight. (Ms Hannon was not chargedwith any offence, and neither of the other two passengers was convicted of being drunk on board the flight.) The second action concerned a claim by Mr Dufour, an airline captain with Air Canada, in respect of another article in the Sun giving a sensational account of events in which the claimant had been taken off a plane before it was due to leave Heathrow because it was suspected after a breathalyzer test that he had exceeded the permissible alcohol limit. In fact after blood tests had been taken, it was clear that his alcohol level was below the permitted limit, and he was released without charge. Both the articles in the Sun were published in April 2009, over a year before the proceedings were brought. Although the two actions were brought for breach of confidentiality and infringement of privacy, both claims referred to the humiliation suffered by the claimants and the damage to their reputation. This was particularly clear in the action brought by Mr Dufour, which in Mann J’s view was ‘heavily weighted by reputational matters’. So the argument for the newspaper was that it was