Category: Media

Delfi As v Estonia: ECHR 10 Oct 2013

[2013] ECHR 941, [2013] ECHR 1218, (2014) 58 EHRR 29
Bailii, Bailii
European Convention on Human Rights
Human Rights
Cited by:
See Also – Delfi As v Estonia ECHR 16-Jun-2015
Article 10-1
Freedom to impart information
Award of damages against internet news portal for offensive comments posted on its site by anonymous third parties: no violation
Facts – The applicant company owned one of the largest . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Media

Updated: 28 November 2021; Ref: scu.518827

Emaco Limited, Aktiebolaget Electrolux v Dyson Appliances Ltd: PatC 26 Jan 1999

A company which was using a competitor’s trade mark in the context of an advert, which made misleading and derogatory comparisons, failed the ‘honest practice’ test, and was abusing the rights to use the other company’s mark under the Act. In this case however each party was guilty of such failures.

Times 08-Feb-1999, Gazette 17-Feb-1999, [1999] EWHC Patents 260
Bailii
Trade Marks Act 1994 10(6)
England and Wales
Cited by:
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Media

Updated: 27 November 2021; Ref: scu.136064

Joksas v Lithuania: ECHR 12 Nov 2013

ECHR Article 10-1
Freedom of expression
Dismissal from the armed forces at retirement age, but allegedly on ground of personal opinions: no violation
Facts – In 2002 the applicant was employed by the Lithuanian armed forces on a five-year contract which, under specific circumstances, could be rescinded even before the expiry date. In 2006 a Lithuanian newspaper published an article in which the applicant criticised new legislation for inadequately protecting the rights of servicemen in disciplinary proceedings. An internal investigation was initiated, but was eventually discontinued on the ground that the applicant had not violated military discipline. In 2006 the applicant’s contract was terminated because he had reached retirement age, in accordance with the legal provisions in force. The applicant challenged this decision before the administrative courts, alleging that he had been discriminated against on grounds of his personal opinions, and asked the courts to obtain and analyse evidence of other soldiers in his battalion who should also have been dismissed on grounds of age. The applicant’s complaints were dismissed and that decision was ultimately upheld by the Supreme Administrative Court.
Law – Article 6 – 1
(a) Applicability – The Government argued that Article 6 was not applicable to the applicant’s case, because the dispute at issue could not be regarded as ‘civil’ within the meaning of that provision. The Court noted that the domestic law provided the applicant with the right of access to court, which the applicant had exercised, claiming the right, which was ‘civil’ in nature, to continue his professional military service until the expiry of his existing contract. The dispute before the domestic courts had been genuine and serious and the result of the proceedings directly decisive for the right in question. Article 6 was thus applicable.
Conclusion: preliminary objection dismissed (unanimously).
(b) Merits – The Court noted that an allegation of discrimination was at the heart of the applicant’s complaint before the domestic courts. Therefore, a comparison between his situation and that of the other servicemen who had allegedly been allowed to continue serving after reaching their retirement age but before the expiry of their contracts was indispensable for the applicant to be able to present his grievance. The domestic courts’ failure to assist the applicant in obtaining evidence in this regard and to give it consideration, or at least to provide reasons why this was not necessary, had denied the applicant an essential means to argue his case. In disputes concerning civil rights, such as the present one, such a limited assessment could not be considered an effective judicial review under Article 6 – 1. Therefore, the proceedings before the domestic courts, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6 – 1.
Conclusion: violation (unanimously).
Article 10, alone and in conjunction with Article 14: The Court recalled that Article 10 applied also to military personnel. While Contracting States could legitimately impose restrictions on freedom of expression where there was a real threat to military discipline, they could not rely on such rules for the purpose of frustrating the expression of opinions, even if these were directed against the army as an institution. The internal inquiry into the applicant’s actions regarding his publication in the newspaper was terminated on the ground that he had not violated any legal provisions, and no disciplinary sanction had been imposed on him. Therefore, as far as it concerned that inquiry in itself, the applicant could not claim to be a victim of a violation of the Convention. Furthermore, in the applicant’s case, no new requirements for his post, which he did not meet, had been introduced after the impugned publication nor had any of the applicant’s army superiors made public statements to the effect that he should be discharged from service due to his opinions. Moreover, the obligation to terminate contracts when the retirement age was reached was an established practice of the domestic courts, which had also previously been confirmed by the Supreme Administrative Court. As for the applicant’s colleagues who had allegedly been treated differently from him although they were in a similar situation, the Court noted that they were entitled to serve until the expiry of their contracts, despite the fact that they had reached retirement age because, unlike the applicant, they all held military specialist codes. Therefore, the applicant had not been discriminated against.
Conclusion: no violation (unanimously).
Article 41: EUR 6,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Grigoriades v. Greece, 24348/94, 25 November 1997; Vereinigung demokratischer Soldaten Osterreichs and Gubi v. Austria, 15153/89, 19 December 1994)

25330/07 – Chamber Judgment, [2013] ECHR 1117, [2013] ECHR 1283, 25330/07 – Legal Summary, [2013] ECHR 1289
Bailii, Bailii, Bailii
European Convention on Human Rights

Human Rights, Media, Armed Forces

Updated: 27 November 2021; Ref: scu.519054

Press Standards Board of Finance Ltd, Regina (on The Application of) v The Secretary of State for Culture, Media and Sport: Admn 30 Oct 2013

The claimant sought permission to apply for judicial review of (1) the recommendation and (2) the Order in Council relating to its own petition for a charter. The defendants are the Secretary of State for Culture, Media and Sport, the Lord President of the Council, and the Privy Counsellors who were on the committee which considered the claimant’s application.

Richards LJ, Sales J
[2013] EWHC 3824 (Admin)
Bailii
England and Wales

Media

Updated: 26 November 2021; Ref: scu.518907

Putistin v Ukraine (Football ‘Death Match’): ECHR 21 Nov 2013

The applicant complained of a breach of the right to protection of his reputation as a result of the domestic courts’ refusal to rectify defamatory information about his father that had been published in the newspaper Komsomolska Pravda.

Mark Villiger, P
16882/03 – Chamber Judgment, [2013] ECHR 1154
Bailii
European Convention on Human Rights
Citing:
Legal Summary – Putistin v Ukraine ECHR 21-Nov-2013
Article 8-1
Respect for private life
Alleged failure to secure the right to reputation of an applicant whose father was allegedly defamed: no violation
Facts – The applicant is the son of Mikhail Putistin, now deceased, a former . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media, Defamation

Updated: 26 November 2021; Ref: scu.518403

Gulati and Others v MGN Ltd: ChD 6 Nov 2013

The claimants alleged that the defendant newspaper group had directly or through agents hacked their mobile phones. They suggested that articles published by the defendants could only have come from such activities. The defendants now sought summary judgment striking out two claims, and striking out elements of all four claims.
Held: The applications failed.

Mann J
[2013] EWHC 3392 (Ch)
Bailii
England and Wales
Cited by:
See Also – Gulati and Others v MGN Limited ChD 21-May-2015
The claimants each claimed that their mobile phones had been hacked by or on behalf of the defendant newspaper group. The claims had now in substance been admitted, and the court set out to assess the damages (and aggravated damages) to be paid.
Media, Crime, Litigation Practice, Torts – Other

Updated: 26 November 2021; Ref: scu.517767

PNM v Times Newspapers Ltd and Others: QBD 22 Oct 2013

The claimant had been arrested on allegations of serious child sex abuse. The court now considered an application for a continuation or cancellation of an interim non-disclosure order.
Held: The application for a non-disclosure order was dismissed, but the case was to remain anonymised pending any appeal. The court considered the balance between the diverging interests with an assessment of PNM’s interest in restricting the reporting of the trial. TSome of the public would inevitably equate suspicion with guilt and there was a risk that PNM and his family, including his children, would be subject to some unpleasant behaviour, possibly amounting to harassment. Not being a defendant in the trial, he would have no means of clearing his name if the media confined themselves to fair, accurate and contemporaneous reporting attracting absolute privilege. However, the significance of these was diminished by two factors. Members of the public generally will understand the difference between suspicion and guilt, and because of its public nature, some knowledge of what had been said about him at the trial would spread among those who knew him personally or by name, so that restrictions on press reporting would be of little if any benefit to him or his family. Indeed, the prohibition of media reporting might lead to the circulation of ill-informed or misleading versions of what was said that would aggravate PNM’s situation. By comparison, there was the highest public interest in the allegations of child abuse, which were the subject of continuing police investigations. The reports would be likely to make an important contribution to the knowledge of the public and to informed debate about the administration of justice. Publication might also encourage witnesses to come forward, or lend significance to the fact if they did not come forward.

Tugendhat J
[2013] EWHC 3177 (QB)
Bailii
Contempt of Court Act 1981 4(2)
England and Wales
Cited by:
Appeal from – PNM v Times Newspapers Ltd and Others CA 1-Aug-2014
The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however . .
At first instance – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice

Updated: 22 November 2021; Ref: scu.517013

Jolleys, Regina v, Ex Parte Press Association: CACD 27 Jun 2013

Leveson LJ said: ‘It was for anyone seeking to derogate from open justice to justify that derogation by clear and cogent evidence: see R v Central Criminal Court ex parte W, B and C [2001] 1 Cr App R 2 and in civil cases, the Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1033 and Derispaska v Cherney [2012] EWCA Civ 1235 per Lewison LJ (at paragraph 14). The order was made when defence counsel asserted the likelihood of the defendant’s son suffering ‘the most extraordinary stigma through no fault of his own’ which caused the Recorder to ask the reporter what the need for identifying the son was, rather than whether it was necessary to restrict his identification.’

Leveson LJ
[2013] EWCA Crim 1135
Bailii
England and Wales

Criminal Practice, Media

Updated: 21 November 2021; Ref: scu.516262

Wegrzynowski And Smolczewski v Poland (Legal Summary): ECHR 16 Jul 2013

ECHR Article 8
Positive obligations
Courts’ refusal to order newspaper to remove article damaging applicant’s reputation from its Internet archive: no violation
Facts – The applicants are lawyers who won a libel case against two journalists working for the daily newspaper Rzeczpospolita following the publication of an article alleging that they had made a fortune by assisting politicians in shady business deals. Holding in particular that the journalists’ allegations were largely based on gossip and hearsay and that they had failed to take the minimum steps necessary to verify the information, the domestic courts ordered them and their editor-in-chief to pay a fine to a charity and to publish an apology. These obligations were complied with.
Subsequently, after discovering that the article remained accessible on the newspaper’s website, the applicants brought fresh proceedings for an order for its removal from the site. Their claim was dismissed on the grounds that ordering removal of the article would amount to censorship and the rewriting of history. The court indicated, however, that it would have given serious consideration to a request for a footnote or link informing readers of the judgments in the original libel proceedings to be added to the website article. That judgment was upheld on appeal.
Law – Article 8: The Court declared the first applicant’s application inadmissible, as being out of time. As regards the second applicant, it noted that during the first set of civil proceedings he had failed to make claims regarding the publication of the impugned article on the Internet. The domestic courts had therefore not been able to decide that matter. Their judgment, finding that the article was in breach of the applicants’ rights, had not created a legitimate expectation that the article would be removed from the newspaper’s website. The second applicant had not advanced any arguments to justify his failure to address the issue of the article’s presence online during the first set of proceedings, especially in view of the fact that the Internet archive of Rzeczpospolita was a widely known and frequently used resource both for Polish lawyers and the general public.
As to the second set of proceedings, the second applicant had been given the opportunity to have his claims examined by a court and had enjoyed full procedural guarantees. The Court accepted that it was not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which had in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations. Furthermore, the legitimate interest of the public in access to public Internet archives of the press was protected under Article 10. It was significant that the domestic courts had pointed out that it would be desirable to add a comment to the article on the newspaper’s website informing the public of the outcome of the first set of proceedings. This demonstrated their awareness of how important publications on the Internet could be for the effective protection of individual rights and of the importance of making full information about judicial decisions concerning a contested article available on the newspaper’s website. The second applicant had not, however, the addition of a reference to the judgments in his favour.
Taking into account all those circumstances, the respondent State had complied with its obligation to strike a balance between the rights guaranteed under Article 10 and under Article 8.
Conclusion: no violation (unanimously).

33846/07 – Legal Summary, [2013] ECHR 779
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Wegrzynowski And Smolczewski v Poland ECHR 16-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Media

Updated: 20 November 2021; Ref: scu.515144

Nagla v Latvia (LS): ECHR 16 Jul 2013

ECHR Article 10-1
Freedom to impart information
Freedom to receive information
Urgent search at journalist’s home involving the seizure of data storage devices containing her sources of information: violation
Facts – The applicant worked for the national television broadcaster where she produced and hosted a weekly investigative news programme ‘De Facto’. In February 2010 she was contacted by an anonymous source who revealed that there were serious security flaws in a database maintained by the State Revenue Service (VID). She informed the VID of a possible security breach and then publicly announced the data leak during a broadcast of De Facto. A week later her source, identifying himself as ‘Neo’, began to use Twitter to publish information concerning the salaries of state officials in various public institutions, and continued to do so until mid-April 2010. The VID initiated criminal proceedings and in February 2010 the investigating police interviewed the applicant as a witness. She declined to disclose the identity of her source. In May 2010 the investigating authorities established that one I.P. had been connected to the database and had made several calls to the applicant’s phone number. I.P. was arrested in connection with the criminal proceedings. The same day the applicant’s home was searched, and a laptop, an external hard drive, a memory card, and four flash drives were seized after a search warrant was drawn up by the investigator and authorised by a public prosecutor.
Law – Article 10: The seized data storage devices contained not only information capable of identifying the journalist’s source of information but also information capable of identifying her other sources of information. Accordingly, the search at the applicant’s home and the information capable of being discovered therefrom came within the sphere of protection under Article 10. There had been interference with the applicant’s freedom to receive and impart information which interference was prescribed by law and pursued the aims of preventing disorder or crime and of protecting the rights of others.
The search warrant was drafted in such vague terms as to allow the seizure of ‘any information’ pertaining to the offence allegedly committed by the journalist’s source and was issued under the urgent procedure by an investigator faced with the task of classifying the crime allegedly committed by I.P. and establishing the applicant’s role. These reasons were not, however, ‘relevant’ and ‘sufficient’ and did not correspond to a ‘pressing social need’.
The subject-matter on which the applicant reported and in connection with which her home was searched made a twofold contribution to a public debate: keeping the public informed about the salaries paid in the public sector at a time of economic crisis and about the database of the VID which had been discovered by her source. Although it was true that the actions of her source were subject to a pending criminal investigation, the right of journalists not to disclose their sources could not be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but was part and parcel of the right to information, to be treated with the utmost caution.
When, three months after the broadcast, the investigating authorities decided that a search of the applicant’s home was necessary, they proceeded under the urgent procedure without any judicial authority having properly examined the proportionality between the public interest in the investigation and the protection of the journalist’s freedom of expression. According to the national law, such a search could be envisaged only if delay might allow relevant documents or objects to be destroyed, hidden or damaged or the suspect to abscond. The ground given for an urgent search in the warrant was ‘to prevent the destruction, concealment or damaging of evidence’ without further explanation. Information was acquired linking the applicant to I.P. in her capacity as a journalist. The applicant’s last communication with I.P. was on the day of the broadcast. In these circumstances, only weighty reasons could have justified the urgency of the search. However, the assessment was carried out by the investigating judge on the day following the search and the judges who subsequently examined the applicant’s complaint against the investigating judge’s decision confined themselves to finding that the search did not relate to the journalist’s sources at all without weighing up the conflicting interests.
Although the investigating judge’s involvement in an immediate post factum review was provided for in the law, he failed to establish that the interests of the investigation in securing evidence were sufficient to override the public interest in the protection of the journalist’s freedom of expression, including source protection and protection against the handover of the research material. The court’s reasoning concerning the perishable nature of evidence linked to cybercrimes in general could not be considered sufficient, given the investigating authorities’ delay in carrying out the search and the lack of any indication of the impending destruction of evidence. Nor was there any suggestion that the applicant was responsible for disseminating personal data or implicated in the events other than in her capacity as a journalist; she remained ‘a witness’ for the purposes of these criminal proceedings. In sum, he domestic authorities had failed to give ‘relevant and sufficient’ reasons for the interference complained of.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

73469/10 – Legal Summary, [2013] ECHR 781
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Nagla v Latvia ECHR 16-Jul-2013
. .
Legal Summary – Nagla v Latvia ECHR 3-Jul-2012
. .

Lists of cited by and citing cases may be incomplete.

Media

Updated: 20 November 2021; Ref: scu.515137

ASG v GSA: CA 21 Aug 2009

Appeal against refusal of a without notice injunction preventing publication of information said to be confidential.

[2009] EWCA Civ 1574
Bailii
England and Wales
Cited by:
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .

Lists of cited by and citing cases may be incomplete.

Media

Updated: 19 November 2021; Ref: scu.415057

Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08: ECJ 18 Mar 2010

ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and providers – Mandatory to attempt an out-of-court settlement

K. Lenaerts, P
[2010] EUECJ C-317/08, C-317/08, [2010] ECR I-221, [2010] 3 CMLR 17
Bailii
Directive 2002/22/EC
Citing:
Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .

Cited by:
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers . .

Lists of cited by and citing cases may be incomplete.

European, Media, Litigation Practice

Updated: 19 November 2021; Ref: scu.514425

Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08: ECJ 18 Mar 2010

ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers Mandatory to attempt an out-of-court settlement

K. Lenaerts, P
[2010] EUECJ C-318/08, C-318/08
Bailii
Directive 2002/22/EC
Citing:
Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and . .

Cited by:
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers . .

Lists of cited by and citing cases may be incomplete.

European, Media, Litigation Practice

Updated: 19 November 2021; Ref: scu.514426

Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08: ECJ 18 Mar 2010

ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end’users and providers Mandatory to attempt an out-of-court settlement)

K Lenaerts, P
[2010] EUECJ C-319/08, C-319/08
Bailii
Directive 2002/22/EC
Citing:
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) – C-317/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications Directive 2002/22/EC Mandatory out-of-court dispute resolution as a condition for the admissibility of legal . .
Opinion – Alassini v Telecom Italia SpA (Environment And Consumers) C-319/08 ECJ 19-Nov-2009
ECJ Opinion – Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of . .
See Also – Alassini v Telecom Italia SpA i (Environment And Consumers) – C-317/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling – Principle of effective judicial protection Electronic communications networks and services – Directive 2002/22/EC – Universal Service Disputes between end’users and . .
See Also – Alassini v Telecom Italia SpA (Environment And Consumers) C-318/08 ECJ 18-Mar-2010
ECJ Reference for a preliminary ruling Principle of effective judicial protection Electronic communications networks and services Directive 2002/22/EC Universal Service Disputes between end users and providers . .

Lists of cited by and citing cases may be incomplete.

European, Media, Litigation Practice

Updated: 19 November 2021; Ref: scu.514427

MX v Dartford and Gravesham NHS Trust and Others: CA 17 Feb 2015

Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should have been made: ‘the following principles should apply:
(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;
(ii) because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;
(iii) the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an ‘anonymity order’);
(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;
(v) unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;
(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;
(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.’
Moore-Bick VP LJ said: ‘Any application of the present kind, therefore, gives rise to tension between the principle of open justice and the need to do justice in the individual case; or, if the matter is considered in Convention terms, a question whether it is necessary to interfere with the rights of the public and the Press under article 10 in order to protect the rights of the claimant and his or her family under article 8 and vice versa. The constitutional importance of the principle of open justice, as recognised in the authorities, is such that any departure from it must be justified strictly on the grounds of necessity. The same may be said of the right to freedom of speech. In either case the test is one of necessity. Although that usually involves a decision based on the judge’s evaluation of the facts of the case before him, it is important to be clear that the decision does not involve an exercise of discretion. Accordingly, although this court will accord proper deference to the judge’s assessment, it will in an appropriate case consider the matter afresh and decide for itself whether the proposed derogation from the principle of open justice is indeed necessary. It follows from the fact that the test is one of necessity that in order to be justified the derogation must be the minimum that is consistent with achieving the ultimate purpose of doing justice in the instant case.’

Moore-Bick VP, Black, Lewison LJJ
[2015] WLR(D) 77, [2015] EWCA Civ 96, [2015] 1 WLR 3647
Bailii, WLRD
European Convention on Human Rights 14 10, Children and Young Persons Act 1933 39
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Evans and Others v The Serious Fraud Office QBD 12-Feb-2015
evans_sfoQBD201502
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Cited – MXB v East Sussex Hospitals NHS Trust QBD 20-Nov-2012
The claimant child invited the court to protect his identity in these proceedings by the making of an order under section 39 of the 1933 Act.
Held: The court described the limitations inherent in such order in modern conditions where the . .
Cited – JC and Another v The Central Criminal Court QBD 8-Apr-2014
The court was asked whether an order made under s. 39 of the 1933 Act, prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age . .
Appeal from – JXMX (A Child) v Dartford and Gravesham NHS Trust QBD 17-Dec-2013
The court asked whether it should make an order that the claimant be identified by letters of the alphabet, and that there be other derogations from open justice (an anonymity order), in a claim for personal injuries by a child or protected party . .

Cited by:
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – Money v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Human Rights, Children

Updated: 17 November 2021; Ref: scu.542930

Attorney-General v Newspaper Publishing plc: CA 1987

The court explained the common law basis of the law of contempt of court. Lloyd LJ said: ‘Since the test of contempt is not a breach of the order but interference with the administration of justice, it follows that at common law a contempt may be committed if no specific order has been made by the court affecting anyone other than those involved in the proceedings. At common law, if the court makes an order regulating its own procedure and the purpose of the order is plainly to protect the administration of justice, then anyone who subverts that order will be guilty of contempt’.
There was no room for a state of mind which fell short of intention. Lloyd LJ said: ‘ . . that intent may exist, even though there is no desire to interfere with the course of justice. Nor need it be the sole intent. It may be inferred, even though there is no overt proof. The more obvious the interference with the course of justice, the more readily will the requisite intent be inferred.’
Sir Donaldson said of an application for contempt against a third party that: ‘I should like to emphasise with all the power at my command that this case is not primarily about national security or official secrets. It is about the right of private citizens and public authorities to seek and obtain the protection of the courts for confidential information which they claim to be their property’
Lord Donaldson MR set out the intent required to be shown: ‘. . the power of the court to commit for contempt where the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire . .’

Lloyd LJ, Lord Donaldson MR
[1988] Ch 333, [1987] 3 All ER 276, [1987] 3 WLR 942
England and Wales
Cited by:
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – Steen v Her Majesty’s Attorney General; Attorney-General v Punch Ltd and Another CA 23-Mar-2001
The appellant appealed against a finding of contempt of court at common law as regards a report in Punch published when he had been its editor.
Held: The appeal succeeded. The A-G had failed to establish the mens rea of contempt in the . .
Cited – HM Attorney General v Davey Admn 29-Jul-2013
The Attorney general sought the committal of the defendants for contempt of court alleging their misbehaviour as jurors. One had posted to a facebook account about the trial and lied about it to the judge. The second, in a different trial, had . .
Cited – HM Solicitor General v Cox and Another QBD 27-May-2016
Applications for committal of the defendants for having taken photographs of court proceedings when their friend was being sentenced for murder and publishing them on Facebook. The SG urged that the offences had aggravating features taking the . .

Lists of cited by and citing cases may be incomplete.

Media, Contempt of Court

Updated: 16 November 2021; Ref: scu.245989

Regina (on the Application of Ellis) v The Chief Constable of Essex Police: Admn 12 Jun 2003

An officer proposed to print the face of a convicted burglar on posters to be displayed in the town. The court considered the proposal. The probation service objected that the result would be to make it more difficult for him to avoid criminality on his release, and it might affect his children and wife.
Held: The court made no declaration. The scheme might be administered in a way which was lawful. It would be necessary to view each instance of the scheme in the light of the circumstances of each case.

Mr Justice Goldring The Lord Chief Justice Of England &Amp; Wales
[2003] EWHC 1321 (Admin), Times 17-Jun-2003, Gazette 10-Jul-2003
Bailii, Bailii
England and Wales
Citing:
Cited – Hellewell v Chief Constable of Derbyshire QBD 13-Jan-1995
The police were asked by shopkeepers concerned about shoplifting, for photographs of thieves so that the staff would recognise them. The police provided photographs including one of the claimant taken in custody. The traders were told only to show . .
Cited – Marcel v Commissioner of Police of the Metropolis CA 1992
A writ of subpoena ad duces tecum had been issued requiring the production by the police for use in civil proceedings of documents seized during a criminal fraud investigation. The victim of the fraud needed them to pursue his own civil case.
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .

Cited by:
Cited – Callaghan v Independent News and Media Ltd QBNI 7-Jan-2009
callaghan_inmQBNI2009
The claimant was convicted in 1987 of a callous sexual murder. He sought an order preventing the defendant newspaper publishing anything to allow his or his family’s identification and delay his release. The defendant acknowledged the need to avoid . .

Lists of cited by and citing cases may be incomplete.

Police, Information, Media

Updated: 16 November 2021; Ref: scu.183374

Nagla v Latvia: ECHR 16 Jul 2013

73469/10 – Chamber Judgment, [2013] ECHR 688
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Nagla v Latvia (LS) ECHR 16-Jul-2013
ECHR Article 10-1
Freedom to impart information
Freedom to receive information
Urgent search at journalist’s home involving the seizure of data storage devices containing her sources of . .

Cited by:
Judgment – Nagla v Latvia ECHR 3-Jul-2012
. .

Lists of cited by and citing cases may be incomplete.

Media

Updated: 15 November 2021; Ref: scu.512417

Martin and Others Gabriele v Giambrone P/A Giambrone and Law: QBNI 5 Mar 2013

The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The defendant now sought to prevent the use of the posting in evidence, saying that his facebook account was restricted to friends, and was therefore confidential.
Held: The application failed. The document was necessary for a fair disposal of the case, and was not confidential: ‘anyone who uses Facebook does so at his or her peril. There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore it is difficult to see how information can remain confidential if a Facebook user shares it with all his friends and yet no control is placed on the further dissemination of that information by those friends. No evidence was adduced as to how many friends the defendant had and what his relationship was with each of them. It was certainly not suggested that those friends were in anyway restricted as to how they used any information given to them by the defendant. For the avoidance of doubt, I do not consider that any of the friends viewing that information would necessarily have concluded that the information was confidential and could not be disclosed.’

Horner J
[2013] NIQB 48
Bailii
Northern Ireland
Citing:
Cited – Compagnie Financiere du Pacifique v Peruvian Guano Co CA 1882
Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: ‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .

Lists of cited by and citing cases may be incomplete.

Media

Updated: 14 November 2021; Ref: scu.511141

JR 38, Re Judicial Review: QBNI 21 Mar 2013

Application for judicial review of a decision by the PSNI to release to local newspapers for publication images of persons suspected of being involved in sectarian rioting and violent offending at an interface area at Fountain Street/Bishop Street Londonderry in May, June and July 2010. The applicant, a child who was born in July 1996, claims one of the images released by the PSNI and published in two local newspapers is an image of him. He seeks judicial review on the single ground that ‘the use of the operation known as Operation Exposure to identify and highlight children and young persons involved in criminal activity as part of a name and shame policy without due process is in breach of the applicant’s rights pursuant to Article 8 of the European Convention on Human Rights’.
Held: The claim failed: ‘The police are under a duty to protect the community and to prevent and investigate criminal acts. One aspect of their investigations will involve the gathering of evidence and exhibits. The photographs represent real time evidence of alleged criminal acts. The police must be entitled to make use of such evidence in seeking to identify offenders by name. Their use in any criminal trial will be governed by the rules relating to the admissibility of evidence. Of course the police must be sensitive to the nature of the evidence which they may wish to publicise. In this instance the police exercised care in carrying out Operation Exposure and were sensitive to the issues involved, conscious that many of those photographed were young people. They engaged with the local community but in particular they carried out a human rights assessment of what they proposed to do. This was extremely comprehensive and went much beyond what, in my view, they were required to do.’
As to whether Article 8 was engaged, Morgan LCJ said: ‘In this case the photograph is not just an image of the child. It is part of a context which discloses to the public that the child in the image is at least wanted for interview in connection with possible involvement in serious public disturbances. At the time of publication it had not been established that the child had participated in any offence. The domestic and international provisions set out at paras 23 to 26 above [section 53 of the Justice (Northern Ireland) Act 2002, article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998, the Beijing Rules, the United Nations Convention on the Rights of the Child (UNCRC)] indicate the importance of respecting the privacy of children in the criminal justice system because of the risk that they will become stigmatised with a consequent effect on their reputation and standing within the community. If participation in criminal activity is established their rehabilitation may thereafter be impaired. Given the breadth of the concept of private life the publication of photographs suggesting that police wished to identify this child in connection with these serious offences was an intrusion into his private life.’
On the engagement of Article 8, Higgins LJ said: ‘The answer to the question whether a private life right exists in a public setting will be found by considering whether the person had a reasonable expectation of privacy in the public circumstances in which he placed or found himself. In this case the applicant placed himself in public view among a crowd of other persons engaged, allegedly, in public disorder. He was open to public view by anyone who happened to be watching, be they police or civilians. He took the risk of his presence and any activities being observed and noted down or otherwise recorded. What was the aspect of his private life which was in issue at that stage? None has been ventured. There must be an onus on the applicant to establish the aspect of his private life which he states is engaged at that stage or to characterise the interest which he seeks to protect. As in Kinloch there can have been no expectation of privacy in the circumstances of the instant case. The criminal nature of his activities or his presence, (if that is what they are), are not aspects of his life which he is entitled to keep private. Such activities should never be an aspect of private life for the purposes of article 8. In my view a criminal act is far removed from the values which article 8 was designed to protect, rather the contrary. In this case the applicant was photographed by the police, rather than his presence or activities simply noted down. I do not consider that is a material distinction. The photograph is probably a more accurate record of what is on-going. In my view the taking of the photographs of the claimant, in the particular circumstances of this case, did not amount to a failure to respect any aspect of the claimant’s private life within article 8(1).’

Morgan LCJ, Higgins LJ
[2013] NIQB 44
Bailii
European Convention on Human Rights 8
Northern Ireland
Cited by:
Appeal from – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

Police, Media, Human Rights, Children

Updated: 14 November 2021; Ref: scu.511140

Ahmet Yildirim v Turkey: ECHR 18 Dec 2012

Article 10-1
Freedom of expression
Interim court order incidentally blocking access to host and third-party websites in addition to website concerned by proceedings: violation
Facts – The applicant owns and runs a website on which he publishes material including his academic work. It was set up using the Google Sites website creation and hosting service. On 23 June 2009 the Criminal Court of First Instance ordered the blocking of another Internet site under the Law on regulating publications on the Internet and combating Internet offences. The order was issued as a preventive measure in the context of criminal proceedings. Later that day, under the same Law, a copy of the blocking order was sent to the Telecommunications Directorate for execution. On 24 June 2009, further to a request by the Telecommunications Directorate, the Criminal Court of First Instance varied its decision and ordered the blocking of all access to Google Sites. As a result, the applicant was unable to access his own site. On 1 July 2009 he applied to have the blocking order set aside in respect of his own site, which had no connection with the site that had been blocked because of its illegal content. On 13 July 2009 the Criminal Court dismissed the applicant’s application. In April 2012 he was still unable to access his own website even though, as far as he understood, the criminal proceedings against the owner of the offending site had been discontinued in March 2011.
Law – Article 10: Following the blocking of another website as a preventive measure, the court had subsequently, further to a request by the Telecommunications Directorate, ordered the blocking of all access to Google Sites, which also hosted the applicant’s site. This had entailed a restriction amounting to interference with the applicant’s right to freedom of expression.
The blocking of the offending site had a basis in law but it was clear that neither the applicant’s site nor Google Sites fell within the scope of the relevant law since there was insufficient reason to suspect that their content might be illegal. No judicial proceedings had been brought against either of them. Furthermore, although Google Sites was held responsible for the content of a site it hosted, the law made no provision for the wholesale blocking of access to the service. Nor was there any indication that Google Sites had been informed that it was hosting illegal content or that it had refused to comply with an interim measure concerning a site that was the subject of pending criminal proceedings. Furthermore, the law had conferred extensive powers on an administrative body, the Telecommunications Directorate, in implementing a blocking order since it had been able to request an extension of the scope of the order even though no proceedings had been brought in respect of the site or domain concerned and no real need for wholesale blocking had been established.
Such prior restraints were not, in principle, incompatible with the Convention, but they had to be part of a legal framework ensuring both tight control over the scope of bans and effective judicial review to prevent possible abuses. However, in ordering the blocking of all access to Google Sites, the Criminal Court of First Instance had simply referred to the Telecommunications Directorate’s opinion that this was the only possible way of blocking the offending site, without ascertaining whether a less severe measure could be taken. In addition, one of the applicant’s main arguments in his application of 1 July 2009 to set the blocking order aside was that to prevent other sites from being affected by the measure in question, a method should have been chosen whereby only the offending site became inaccessible. However, there was no indication that the judges considering his application had sought to weigh up the various interests at stake. This shortcoming was merely a consequence of the wording of the law itself, which did not lay down any obligation for the domestic courts to examine whether the wholesale blocking of Google Sites was necessary, having regard to the criteria established and applied by the Court under Article 10 of the Convention. Such wholesale blocking had rendered large amounts of information inaccessible, thus substantially restricting the rights of Internet users and having a significant collateral effect. The interference had therefore not been foreseeable and had not afforded the applicant the degree of protection to which he was entitled by the rule of law in a democratic society. The measure in issue had had arbitrary effects and could not be said to have been designed solely to block access to the offending site. Furthermore, the judicial-review procedures concerning the blocking of Internet sites were insufficient to meet the criteria for avoiding abuses; domestic law did not provide for any safeguards to ensure that a blocking order concerning a specified site was not used as a means of blocking access in general.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.

3111/10 – CLIN, [2012] ECHR 3003
Bailii
European Convention on Human Rights

Human Rights, Media

Updated: 14 November 2021; Ref: scu.510859

JIH v News Group Newspapers Ltd: CA 31 Jan 2011

Principles on Request for Anonymity Order

The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, to justify any resulting curtailment of that party’s right to respect for his or her private life.
Lord Neuberger MR summarised the principles applicable as follows: (1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.
(2) There is no general exception for cases where private matters are in issue.
(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.
(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.
(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.
(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.
(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.
(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.
(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.
(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.
public coverage of court proceedings is a fundamental aspect of freedom of expression, with particular importance: the ability of the press freely to observe and report on proceedings in the courts is an essential ingredient of the rule of law. Indeed the right to a ‘fair and public hearing’ and the obligation to pronounce judgment in public, save where it conflicts with ‘the protection of the private lives of the parties’ or ‘would prejudice the interests of justice’, are set out in Article 6 of the Convention’.
The court explained why it could be proper to restrain publication of the bare fact of a relationship: ‘there is much in the point that the media will be generally better able to discover, and report on, what the courts are doing if they can publish (a) details of the type of case (for instance, as in this case, a sexual liaison between an unidentified well known sportsman, in an apparently monogamous relationship, and a third party) rather than (b) the name of the individual who is seeking to protect an unspecified aspect of his or her alleged private life by means of an injunction. As Mr Tomlinson puts it, the former information would normally enable the public to have a much better idea of why the court acted as it did than the latter information.’

Neuberger MR LJ, Maurice Kay VP LJ, Smith LJ
[2011] EWCA Civ 42, [2011] 2 All ER 324, (2011) 108(7) LSG 18, (2011) 161 NLJ 211, [2011] EMLR 15
Bailii
England and Wales
Citing:
Cited – Gray v UVW QBD 21-Oct-2010
Application was made for the name of the defendant not to be published.
Held: To the extent that a claimant seeks an order for the anonymisation of any reports of the SOPO proceedings, then that jurisdiction derives from section 6(1) of the . .
Appeal from – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Appeal from – JIH v News Group Newspapers Ltd (No. 2) QBD 18-Nov-2010
Explanation of reasons for anonymity order. . .
Cited – Ntuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Flood v Times Newspapers Ltd CA 13-Jul-2010
The claimant police officer complained of an article he said was defamatory in saying he was being investigated for allegations of accepting bribes. The article remained on the internet even after he was cleared. Each party appealed interim orders. . .

Cited by:
Cited – Allen v The Grimsby Telegraph and Another QBD 2-Mar-2011
The claimant sought to prevent publication of his name in the context of the making of a Sexual Offences Prevention Order (SOPO). He had been convicted of offences against sex workers. An order had been made preventing disclosure of his address, but . .
Cited – Goldsmith and Another v BCD QBD 22-Mar-2011
The claimants sought damages, alleging that the defendants had hacked into their e-mail accounts. The defendant now sought protection of her identity through anonymisation of the case.
Held: Granted. . .
Applied – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – McClaren v News Group Newspapers Ltd QBD 5-Sep-2012
The claimant had obtained an interim injunction to restrain the defendant publishing what he said was private information about a sexual encounter. He also sought an injunction under the 1997 Act.
Held: The claim succeeded: ‘there have been . .
Cited – AAA v Associated Newspapers Ltd CA 20-May-2013
An order had been sought for the claimant child for damages after publication by the defendant of details of her identity and that of her politician father. She now appealed against refusal of her claim for damages for publication of private . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – A, Regina (on The Application of) v Lowestoft Magistrates’ Court Admn 26-Mar-2013
A had pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A’s daughter, to whom I shall refer as B. B . .
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Cited – Imam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media

Updated: 12 November 2021; Ref: scu.428348

A v B; Regina (A) v Director of Establishments of the Security Service: Admn 4 Jul 2008

The claimant a retired senior officer in the intelligence services wished to publish a book of his memoirs. He was refused permission for his duty of confidentiality, and said that this infringed his human rights. The Director denied his right to take the case before the court saying that it was to be heard by the Security Commissioner who had exclusive jurisdiction.
Held: Where the issue regarded human rights the Security Commissioner did not have an exclusive jursdiction. Nothing in the section that indicated that the tribunal was to have exclusive jurisdiction to deal with matters raised in complaints for which the tribunal was the appropriate forum.

Collins J
[2008] EWHC 1512 (Admin), Times 05-Aug-2008, [2008] 4 All ER 511, [2008] ACD 76
Bailii
Regulation of Investigatory Powers Act 2000 65(2)
England and Wales
Cited by:
Appeal from – Regina (A) v Director of Establishments of the Security Service CA 18-Feb-2009
The director appealed against a finding that the court did have jurisdiction to determine whether its order preventing a restriction on publication of a book by a former member of the security services had infringed his right of free speech. The . .
Appeal from – A v B CA 18-Feb-2009
The claimant a former senior member of the Security Services sought to challenge a decision refusing permission to pulish his memoirs in full. The respondent argues that the Investigatory Powers Tribunal had exclusive jurisdiction. The respondent . .
At First Instance – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights, Media

Leading Case

Updated: 12 November 2021; Ref: scu.270617

Peck v The United Kingdom: ECHR 28 Jan 2003

peck_ukECHR2003

The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness of the CCTV system, of the police and otherwise. Only in later versions was his identity protected.
Held: The disclosure infringed his rights of privacy: ‘Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Art. 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’.’ The distribution of the footage without appropriate conditions to protect his privacy, infringed article 8. The distribution generated far more publicity than would have arisen otherwise, and was a serious breach. There were no relevant or sufficient reasons for the publicity. The English legal system had not afforded him a remedy, infringing also his article 13 rights.

Times 03-Feb-2003, 44647/98, (2003) 36 EHRR 41, [2003] ECHR 44, [2003] 36 EHRR 719, [2011] ECHR 1661
Worldlii, Bailii, Bailii
European Convention on Human Rights 8 13
Cited by:
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Energy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – Murray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Leading Case

Updated: 11 November 2021; Ref: scu.178834

Football Association Premier League and Others v QC Leisure and Others; Murphy v Media Protection Services Ltd: ECJ 3 Feb 2011

ECJ (Advocate General’s Opinion) (Freedom To Provide Services) Satellite transmission of football matches – Marketing of decoder cards which have been lawfully placed on the market in other Member States – Directive 98/84/EC – Legal protection of services based on conditional access – Illicit access device – Directive 2001/29/EC – Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Communication to the public – Directive 93/83/EEC – Coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable transmission – Free movement of goods – Freedom to provide services – Competition – Article 101(1) TFEU – Concerted practices – Practice having the object of preventing, restricting or distorting competition – Criteria for assessing the anti’competitive object of a practice.

Kolott AG
C-429/08, [2011] EUECJ C-429/08 – O
Bailii
Directive 2006/115/EC, Council Directive 89/552/EEC, Council Directive 93/83/EEC, Directive 984/EC
European
Citing:
Order – Football Association Premier League and Others v QC Leisure ECJ 16-Dec-2009
ECJ (Order) REFERENCES for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division, and the High Court of Justice of England and Wales, Queen’s Bench . .

Cited by:
Opinion – Football Association Premier League and Others v QC Leisure and Others etc ECJ 4-Oct-2011
ECJ Satellite broadcasting – Broadcasting of football matches – Reception of the broadcast by means of satellite decoder cards – Satellite decoder cards lawfully placed on the market in one Member State and used . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Media

Updated: 11 November 2021; Ref: scu.428494

Financial Times Ltd and Others v The United Kingdom: ECHR 15 Dec 2009

The claimants said that an order that they deliver up documents leaked to them regarding a possible takeover violated their right to freedom of expression. They complained that such disclosure might lead to the identification of journalistic sources.
Held: The protection of journalistic sources was part of the protection of freedom of expression: ‘protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital ‘public watchdog’ role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest .’
In this case: ‘Interbrew’s interests in eliminating, by proceedings against X, the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists’ sources.’

L Garlicki, President, and Judges Sir Nicolas Bratza, G Bonello, L. Mijovic, D Bjorgvinsson, L Bianku and M Poalelungi
28 BHRC 616, [2010] EMLR 21, 821/03, [2009] ECHR 2065, Times 16-Dec-2009, (2010) 50 EHRR 46
Bailii
European Convention on Human Rights 810
Human Rights
Citing:
At first Instance – Interbrew SA v Financial Times Ltd and Others ChD 19-Dec-2001
The claimant was involved in takeover proceedings. Certain confidential documents were taken, doctored, and released to and published by the defendants who now resisted orders for disclosure of the source.
Held: The court must balance the . .
Appeal from – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Ashworth Security Hospital v MGN Ltd CA 18-Dec-2000
The court can order the identity of a wrongdoer to be revealed where the person against whom the order was sought had become involved in his tortious acts. This might apply even where the acts were unlawful, but fell short of being tortious. There . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Ackroyd v Mersey Care NHS Trust CA 16-May-2003
The journalist was required to provide the source of his material. In an earlier hearing the newspaper had been ordered to disclose the name of its source, the journalist. The claimant obtained summary judgement, which the journalist now appealed. . .
Cited – Ackroyd v Mersey Care NHS Trust 18-Oct-2002
The medical records of a patient at the hospital had been provided by an employee to a journalist who then provided a story to the Mirror. An order had been made for the Mirror to disclose the source. An application was now made against the . .
Cited – Akdivar and Others v Turkey ECHR 16-Sep-1996
ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (abuse of process); Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Violation of Art. 25-1; Violation of P1-1; No . .
Cited – Steel and Morris v United Kingdom ECHR 15-Feb-2005
The applicants had been sued in defamation by McDonalds. They had no resources, and English law precluded legal aid for such cases. The trial was the longest in English legal history. They complained that the non-availablility of legal aid infringed . .
Cited – Fressoz and Roire v France ECHR 21-Jan-1999
Le Canard Enchaine published the salary of M Calvet, the chairman of Peugeot, (which was publicly available information) and also, by way of confirmation, photographs of the relevant part of his tax assessment, which was confidential and could not . .
Cited – Bladet Tromso and Stensaas v Norway ECHR 20-May-1999
A newspaper and its editor complained that their right to freedom of expression had been breached when they were found liable in defamation proceedings for statements in articles which they had published about the methods used by seal hunters in the . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:
Cited – Seckerson and Times Newspapers Ltd v The United Kingdom ECHR 24-Jan-2012
The first applicant had been chairman of a jury and had expressed his concerns about their behaviour to the second applicant who published them. They were prosecuted under the 1981 Act. They had said that no details of the deliberations had been . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 11 November 2021; Ref: scu.384140

Tv 2/Danmark v Commission (State Aid) T-336/04: ECFI 22 Oct 2008

Europa State aid Measures implemented by the Danish authorities for the public broadcaster TV2 to finance its public service remit – Measures classified as State aid partly compatible and partly incompatible with the common market – Actions for annulment – Admissibility Interest in bringing proceedings Rights of the defence – Public broadcasting service – Definition and financing – State resources – Obligation to state the reasons on which the decision is based – Obligation to examine.

T-336/04, [2008] EUECJ T-336/04
Bailii
European

Media

Updated: 11 November 2021; Ref: scu.277133

Goodwin v News Group Newspapers Ltd: QBD 27 May 2011

An associated claimant alleged contempt against another newspaper for publishing matters so as to defeat the purposes of a privacy injunction granted to her.
Held: Even though the principle claimant had been subsequenty identified with the consent of the court, the order as regards the second claimant remained in place. It was said that the Daily Mail’s article released many items of further information to identify her. False information deliberately given had other purposes, and in practice had also been damaging. However, there no purpose would be served in the court referring the matter to the Attorney-General for contempt. The claimant herself had this power, and the A-G had power to act of his own motion.

Tugendhat J
[2011] EWHC 1341 (QB)
Bailii
England and Wales
Citing:
See Also – MNB v News Group Newspapers Ltd QBD 9-Mar-2011
The defendant resisted an order preventing disclosure of information said by the claimant to be private.
Held: At the start of the hearing before herself, she had been told that the application for an interim injunction was no longer opposed. . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
See Also – Goodwin v News Group Newspapers Ltd QBD 23-May-2011
The claimant had obtained orders restricting publication by the defendant of stories of his relationship with a woman. The order had also restrained publication of their names. The names had since been revealed under parliamentary prvilege, and the . .

Cited by:
See Also – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice, Contempt of Court

Updated: 11 November 2021; Ref: scu.440245

UPC Telekabel Wien v Constantin Film Verleih GmbH: ECJ 27 Mar 2014

ECJ Request for a preliminary ruling – Approximation of laws – Copyright and related rights – Information society – Directive 2001/29/EC – Website making cinematographic works available to the public without the consent of the holders of a right related to copyright – Article 8(3) – Concept of ‘intermediaries whose services are used by a third party to infringe a copyright or related right’ – Internet service provider – Order addressed to an internet service provider prohibiting it from giving its customers access to a website – Balancing of fundamental rights

L. Bay Larsen, P
C-314/12, [2014] EUECJ C-314/12, ECLI:EU:C:2014:192, [2014] WLR(D) 148, [2014] Bus LR 541, [2014] ECDR 12
Bailii, WLRD
Directive 2001/29/EC
European
Cited by:
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Media

Updated: 11 November 2021; Ref: scu.523335

Carrefour Hypermarches SAS v ITM Alimentaire International SASU: ECJ 8 Feb 2017

Misleading adverts in Europe

(Judgment) Reference for a preliminary ruling – Comparative advertising – Directive 2006/114/EC – Article 4 – Directive 2005/29/EC – Article 7 – Objective price comparison – Misleading omission – Advertising comparing the prices of goods sold in shops having different sizes or formats – Permissibility – Material information – Degree of communication of information and the medium for communication of that information

C-562/15, [2017] EUECJ C-562/15
Bailii
Directive 2005/29/EC 7
European

Media

Updated: 11 November 2021; Ref: scu.573894

ZXC v Bloomberg Lp: CA 15 May 2020

Privacy Expecation during police investigations

Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further identified the Claimant as the subject of a criminal investigation. The court was asked to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities.
Held: The appeal was dismissed. In general a person has a reasonable expectation of privacy in an investigation up to the point of charge. Stage one of the enquiry is whether a claimant has a reasonable expectation of privacy in the relevant information? If the answer is yes, stage two involves an enquiry and evaluation as to whether that expectation is outweighed by a countervailing interest, in the present case Bloomberg’s right to freedom of expression under article 10.
The circumstances in which and the purposes for which the information came into the hands of the publisher was the most significant (of several) issues.
The Judge was right, at the very least, to treat the fact that the Information was contained in a LoR and the circumstances in which the Information came into the hands of Bloomberg as showing the provisional nature of the UKLEB’s suspicion and consequently the reasonable expectation of privacy in relation to the Information.

Lord Justice Simon
[2020] EWCA Civ 611, [2020] WLR(D) 292
Bailii, WLRD
Data Protection Act 1998, European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Abacha and Others v National Crime Agency CA 19-Jul-2016
‘When considering an application to the Court to prohibit the dealing with or disposal of assets within the jurisdiction made by the National Crime Agency, at the request of the Central Authority of a friendly foreign state by way of Mutual Legal . .
Appeal From – ZXC v Bloomberg LP QBD 17-Apr-2019
Claim for misuse of private information. The central issue is whether the Claimant can have a reasonable expectation of privacy in information that relates to a criminal investigation into his activities. . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – PG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Wood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Cited – HM Attorney General v MGN Ltd and Another Admn 29-Jul-2011
The police arrested a man on suspicion of the murder of a young woman. He was later released and exonerated, and a second man arrested and later convicted. Whilst the first was in custody the two defendant newspapers, the Daily Mirror and the Sun . .
Cited – Kinloch v Her Majesty’s Advocate SC 19-Dec-2012
The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the . .
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Cited – Yeo v Times Newspapers Ltd QBD 25-Nov-2015
The claimant alleged defamation by the defendant as to his conduct as an MP. The defendant having pleaded justification, the court now tried the liability issue.
Held: The claim failed. The publication had the benefit of reynolds privilege.
Cited – Axon v Ministry of Defence QBD 11-Apr-2016
Action for misuse of private information and/or breach of confidence.
Held: Information relating to the events leading to the removal of a Royal Navy warship commander from that role fell outside the ambit of his private or personal life.
Cited – Abbey v Gilligan and Others QBD 20-Nov-2012
Claim for damages for breach of confidence, or misuse of private information, in relation to the obtaining and publication by the Defendants of a number of E-mails.
Held: The claim was dismissed: ‘Mr Abbey could not have any claim for breach . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
Cited – Axel Springer Ag v Germany ECHR 7-Feb-2012
ECHR Grand Chamber – A German newspaper had published a story or stories about the arrest and conviction of a well-known TV actor, together with photographs, and various restraining-type orders had been issued by . .
Cited – Ali and Another v Channel 5 Broadcasting Ltd CA 16-Apr-2019
The claimant’s eviction had been filmed and broadcast by the defendants. They succeeded in an award of pounds 10,000 damages for breach of their rights of privacy. The parties cross appealed against the sum awarded and the finding respectively.
See Also – ZXC v Bloomberg LP QBD 17-Apr-2019
Claim for misuse of private information. The central issue is whether the Claimant can have a reasonable expectation of privacy in information that relates to a criminal investigation into his activities. . .

Cited by:
Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .

Lists of cited by and citing cases may be incomplete.

Information, Human Rights, Media, Police

Updated: 11 November 2021; Ref: scu.650811

Child X (Residence and Contact- Rights of Media Attendance) (Rev 2): FD 14 Jul 2009

The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude the press in the welfare or privacy interests of a party or third party the Court is to conduct the balancing exercise and process of parallel analysis in Campbell as elaborated in re S. Whilst the principle of open justice is important in civil proceedings concerning children, the need for the protection of children from publicity in the course of proceedings which concern them, was long ago recognised at common law in Scott v Scott, and is provided for in the statutory provisions as to identification.
In this case all the issue related to the child. The sole purpose of the media interest was in the celebrity of the parents. The press should be excluded.

Sir Mark Potter, President
[2009] EWHC 1728 (Fam), Times 27-Jul-2009, [2009] Fam Law 930, [2009] EMLR 26
Bailii
Family Proceedings Rules 1991 (1991 No. 1247) 10.28(4), Administration of Justice Act 1960 12(1), Children Act 1989 97(2), Children and Young Persons Act 1933 39(1), European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – P v BW (Children Cases: Hearings in Public) FD 2003
The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – C v Crown Prosecution Service Admn 8-Feb-2008
The court considered the practice of hearing submissions from the media in relation to reporting restrictions.
Held: Thomas LJ rejected the submission that, in conducting the Re S balancing exercise the Court should have regard to the public . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Lists of cited by and citing cases may be incomplete.

Children, Media, Human Rights

Updated: 11 November 2021; Ref: scu.349067

ITV Broadcasting and Others v TVCatchup Limited (in administration): ECJ 1 Mar 2017

No European Law excuse for live streaming breach

ECJ (Judgment) Reference for a preliminary ruling – Directive 2001/29/EC – Harmonisation of certain aspects of copyright and related rights in the information society – Article 9 – Access to cable of broadcasting services – Concept of ‘cable’ – Retransmission of broadcasts of commercial television broadcasters by a third party via the internet – ‘Live streaming’

T von Danwitz (Rapporteur) P
ECLI:EU:C:2017:144, [2017] EUECJ C-275/15, [2017] WLR(D) 141
Bailii, WLRD
European

Intellectual Property, Media

Updated: 11 November 2021; Ref: scu.579678

ZXC v Bloomberg Lp: QBD 23 Feb 2017

Investigation of claimant was properly disclosed

The claimant requested the removal of material naming him from the defendant’s website. Criminal investigations into a company with which he was associated were begun, but then concluded. In the interim, the article was published. The hearing had been in private and the claimant anonymised.
Held: The weight to be attached to the Defendant’s art 10 rights here comfortably outweighed the Claimant’s article 8 rights. In those circumstances, the claim based on Art 8 and the Claimant’s expectation of privacy failed. Moreover, the defence under section 32 was such that the Claimant could not show that he was likely to succeed in overcoming that defence: ‘the decision to refer to the Claimant in the article was taken after careful consideration of the relevant circumstances, including the public interest in the disclosure of the Claimants involvement. In my judgment, it is clear that the Defendant as data controller believed, and believed on reasonable grounds, that publication would be in the public interest.’
The fact that ERY proceeded from a concession meant it was only weak support for the existence of such an expectation, but rejected a submission by the defendant that there was a blanket rule against it – it was a fact sensitive question. He identified a number of features in that case (including the confidentiality of the document and the fact that it came into the hands of the defendant via an unauthorised leak) which led him to the conclusion that the claimant would reasonably have expected that the document: ‘would remain private to the law enforcement agency and the other party receiving it’

Garnham J
[2017] EWHC 328 (QB), [2017] EMLR 21
Bailii
Civil Procedure Rules 39.2, European Convention on Human Rights 6 8 10, Date Protection Act 1998 32
England and Wales
Citing:
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .

Cited by:
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
See Also – ZXC v Bloomberg LP QBD 17-Apr-2019
Claim for misuse of private information. The central issue is whether the Claimant can have a reasonable expectation of privacy in information that relates to a criminal investigation into his activities. . .

Lists of cited by and citing cases may be incomplete.

Information, Human Rights, Media

Updated: 11 November 2021; Ref: scu.577510

Football Association Premier League and Others v QC Leisure and Others etc: ECJ 4 Oct 2011

ECJ Satellite broadcasting – Broadcasting of football matches – Reception of the broadcast by means of satellite decoder cards – Satellite decoder cards lawfully placed on the market in one Member State and used in another Member State – Prohibition on marketing and use in a Member State – Visualisation of broadcasts in disregard of the exclusive rights granted – Copyright – Television broadcasting right – Exclusive licences to broadcast in a single Member State – Freedom to provide services – Article 56 TFEU – Competition – Article 101 TFEU – Restriction of competition by object – Protection of services based on conditional access – Illicit device – Directive 98/84/EC – Directive 2001/29/EC – Reproduction of works within the memory of a satellite decoder and on a television screen – Exception to the reproduction right – Communication of works to the public in public houses – Directive 93/83/EEC

[2011] EUECJ C-429/08, C-429/08
Bailii
Directive 93/83/EEC, Directive 2001/29/EC, Directive 98/84/EC
European
Citing:
Opinion – Football Association Premier League and Others v QC Leisure and Others; Murphy v Media Protection Services Ltd ECJ 3-Feb-2011
ECJ (Advocate General’s Opinion) (Freedom To Provide Services) Satellite transmission of football matches – Marketing of decoder cards which have been lawfully placed on the market in other Member States – . .
Order – Football Association Premier League and Others v QC Leisure ECJ 16-Dec-2009
ECJ (Order) REFERENCES for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division, and the High Court of Justice of England and Wales, Queen’s Bench . .

Cited by:
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .

Lists of cited by and citing cases may be incomplete.

European, Media, Intellectual Property

Updated: 11 November 2021; Ref: scu.444961

Doctor A and Others v Ward and Another: FD 8 Jan 2010

Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made restricting further identification. The professionals feared that their readiness to act as experts would be reduced if their identities were made public.
Held: The stays were lifted. The case raised issues as to the extent of information restricted under section 12 of the 1960 Act. Not all information about the child is within the scope of section 12, only information ‘relating to’ the proceedings. Moreover it is equally clear that information does not ‘relate to’ the proceedings merely because it is information communicated to the court or contained in documents put before the court.
However,’the fact that a document is for some other reason already confidential no more brings it within the scope of section 12 merely because it is lodged with the court or annexed to a witness statement or report than would be so with a document lacking the quality of intrinsic confidentiality. What brings a document within the scope of section 12 depends not on whether it is otherwise or already confidential but whether it is ‘information relating to [the] proceedings.’ ‘ and
‘one has to distinguish between, on the one hand, the mere publication of a fact (fact X) and, on the other hand, the publication of fact X in the context of an account of the proceedings, or the publication of the fact (fact Y) that fact X was referred to in the proceedings or in documents filed in the proceedings. The publication of fact X may not be a breach of section 12; the publication of fact Y will be a breach of section 12 even if the publication of fact X alone is not.’
Since no order had been made, decisions about what was in the children’s best interests remained primarily with the parents.
As to the risk to the expert witnesses, Munby J said: ‘neither the risks of targeting, harassment and vilification (which I accept are made out to a certain extent) nor the consequential risks of a flight of experts from child protection work (which again I accept are made out to a certain, though I think more limited, extent) are such as to the demonstrate the ‘pressing need’ which alone could begin to counter-balance what in my judgment are the powerful arguments, the very powerful arguments, founded in the public interest, for denying expert witnesses anonymity.’

Munby J
[2010] EWHC 16 (Fam)
Bailii
Administration of Justice Act 1960 12(1)(a), European Convention on Human Rights 8
England and Wales
Citing:
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
See also – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
See also – N (A Child), Re; A v G (Family Proceedings: Disclosure) FD 8-Jul-2009
Application in respect of the proposed disclosure to the General Medical Council (GMC) of an expert report produced in the course of and for the purposes of proceedings in relation to a child. . .
Cited – In Re G (A Minor) (Social Worker: Disclosure) CA 14-Nov-1995
A social worker may relate oral admissions made by parents to him to the police without first getting a court’s permission.
Butler-Sloss LJ said: ‘I would on balance and in the absence of argument give the more restrictive interpretation to r . .
Cited – In re Martindale 1894
Miss Martindale was made a ward of court on 11 April 1894. Knowing that she was a ward of court a young poet and novelist named Ford Madox Hueffer – later known as Ford Madox Ford – married her in May 1894. On 1 June 1894 North J granted an . .
Cited – In re F (otherwise A ) (A Minor) (Publication of Information) CA 1977
An allegation of contempt was made in proceedings related to the publication by a newspaper of extracts from a report by a social worker and a report by the Official Solicitor, both prepared after the commencement and for the purpose of the wardship . .
Cited – In re S (Minors) (Wardship: Police Investigation); Re S (Minors) (Wardship: Disclosure of Material) FD 1987
Local authority case records and a verbatim extract from the case records which had been exhibited to an affidavit from a social worker had been disclosed.
Held: Booth J asked as to the case records: ‘whether the words in the section . .
Cited – In Re W (Minors) (Social Worker: Disclosure); Re W (Disclosure to Police) CA 26-Mar-1998
A social worker may disclose admissions made during investigation into child abuse, to the police without the court’s permission, where the information had not been incorporated in the welfare report filed at the court. The rule (against disclosure) . .
Cited – Re M (Disclosure: Children and Family Reporter) CA 31-Jul-2002
The question arose as to whether a Cafcass officer acting as a children and family reporter (CFR) in private law proceedings required the permission of the court before referring to the local authority’s social services department for further . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Brown v Matthews CA 1990
There is a public interest in encouraging the frank and ready co-operation from people as diverse as doctors, school teachers, neighbours, the child in question, the parents themselves, and other close relations, including other children in the same . .
Cited – Rochdale Metropolitan Borough Council v A 1991
Ten children were taken into care amid allegations of ritual satanic sex abuse.
Held: the allegations were not proved. All but four of the children were returned home. Injunctions were granted to protect the identify of the children and of the . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
Cited – Medway Council v G and others FD 18-Jul-2008
The court considered the extent of publicity for a case where the local authority was to be criticised. . .
Cited – Norfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
Cited – In re Manda CA 1993
A wardship court can extend its protection beyond the age of majority where a public interest was identified that required it. Whilst those who give evidence in child proceedings can normally assume that their evidence will remain confidential, they . .
Cited – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – In re W (Wardship: Discharge: Publicity) CA 1995
Four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who . .
Cited – Re X; Barnet London Borough Council v Y and Z FD 2006
The judge refused to endorse a local authority’s care plan, and invited the local authority to reconsider it. He criticised the local authority for taking an important decision in pending care proceedings without any warning to the guardian and . .
Cited – In Re C (A Minor) (Care Proceedings: Disclosure); Re EC (Disclosure of Material) CA 22-Oct-1996
Guidance was to the courts on disclosure of care proceedings statements etc to police. But for section 12 it would have been contempt of court to have disclosed to the police matters before the children’s court. . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Re L (Care: Assessment: Fair Trial) FD 2002
The court emphasised the need, in the interests not merely of the parent but also of the child, of a transparently fair and open procedure at all stages of the care process, including the making of documents openly available to parents.
Munby . .
Cited – Re X (Disclosure of Information) FD 2001
There cannot be an expectation that expert evidence given in a children’s court will always stay confidential. The various aspects of confidentiality will have greater or lesser weight on the facts of each case. Munby J: ‘Wrapped up in this concept . .

Cited by:
See also – Doctor A and Others v Ward and Another FD 9-Feb-2010
. .

Lists of cited by and citing cases may be incomplete.

Media, Children, Human Rights

Updated: 11 November 2021; Ref: scu.396650

ETK v News Group Newspapers Ltd: CA 19 Apr 2011

The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, but when the employer terminated her employment she set out to publicise the affair.
Held: The appeal was allowed.
The court is required to have regard to the Article 8 rights of non-parties and the best interests of any child whose interests are engaged.
It was more likely than not that a judge at trial would grant an injunction.
Ward LJ said: ‘The decisive factor is the contribution the published information will make to a debate of general interest. Is a debate about the reasons why X’s employment terminated a matter of such public interest? Both the appellant and X will be known to a sector of the public though it is impossible to measure how large – or how small – that sector is. Certainly some members of the public will have noticed the end of her employment: a proportion of them will even have speculated why she left. But the reasons for her leaving give rise to no debate of general interest. The reasons for her leaving may interest some members of the public but the matters are not of public interest. Publication may satisfy public prurience but that is not a sufficient justification for interfering with the private rights of those involved.’

Ward, Laws, Moore-Bick LJJ
[2011] EWCA Civ 439, [2011] EMLR 22, [2011] 1 WLR 1827
Bailii
European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – BeokuBetts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .

Cited by:
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – McClaren v News Group Newspapers Ltd QBD 5-Sep-2012
The claimant had obtained an interim injunction to restrain the defendant publishing what he said was private information about a sexual encounter. He also sought an injunction under the 1997 Act.
Held: The claim succeeded: ‘there have been . .
Cited – AAA v Associated Newspapers Ltd CA 20-May-2013
An order had been sought for the claimant child for damages after publication by the defendant of details of her identity and that of her politician father. She now appealed against refusal of her claim for damages for publication of private . .
Cited – A, Regina (on The Application of) v Lowestoft Magistrates’ Court Admn 26-Mar-2013
A had pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A’s daughter, to whom I shall refer as B. B . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 11 November 2021; Ref: scu.432838

O’Dowd (Boy George) v National Probation Service London: Admn 23 Dec 2009

Refusal of curfew relaxation was reasonable

The claimant had been released from prison early on licence subject to conditions including a home detention curfew. He was offered a place on a TV programme, Celebrity Big Brother, which would require relaxation or alteration of his place of residence and work restrictions. The respondent had refused consent based on concern for the victim and public confidence in the criminal justice system.
Held: The decision was properly reached and had not taken into account irrelevant matters: ‘right-thinking members of the public would take the view that an offender serving the non-custodial part of a sentence of imprisonment should not be allowed to take part in a high profile, controversial television production, promoting his status as a celebrity and with considerable financial gain. At any rate that is a reasonable view which Mr Wilson was entitled to reach.’ The decision was for the respondent, and no statutory status attached to the officer himself, whose own view was not therefore improperly overruled.

Bean J
[2009] EWHC 3415 (Admin)
Bailii
Criminal Justice Act 2003 244, Criminal Justice and Court Services Act 2000 2
England and Wales
Citing:
Cited – Regina v Secretary of State for Home Department ex parte Mellor CA 4-Apr-2001
A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the . .
Cited – Dickson and Another v United Kingdom ECHR 15-Dec-2007
(Grand Chamber) The complainants were husband and wife. They had been married whilst the husband served a sentence of life imprisonment. They had been refused suport for artificial insemination treatment.
Held: The claim succeeded. The refusal . .
Cited – Nilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
Cited – Regina v Secretary of State For The Home Department, Ex Parte Venables, Regina v Secretary of State For The Home Department, Ex Parte Thompson HL 12-Jun-1997
A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .
Cited – Nilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
Cited – Regina on the Application of Uttley v Secretary of State for the Home Department CA 30-Jul-2003
Licence conditions imposed at the time of sentence would restrict the defendant after he had served his sentence and been released, and so operated as a heavier penalty, and section 33(1) was incompatible with the defendant’s Art 7.1 rights.
Criminal Sentencing, Human Rights, Media

Updated: 11 November 2021; Ref: scu.384458

Sugar v The British Broadcasting Commission and Another (No 2): CA 23 Jun 2010

The respondent had had prepared a report as to the balance of its reporting of the Israeli-Palestinian conflict. Earlier proceedings had established that the purposes of the holding of the reporting included jurnalism. The claimant now appealed against an order by the Information Tribunal saying that if the purposes included journalism, then other purposes for its being held could not remove the exemption from disclosure.
Held: The claimant’s appeal failed. A court acting on an appeal from a specialist tribunal should take extra care to respect that tribunal’s expertise. The court’s task is to correct any error of law.
The dominant purpose test in Waugh was not applicable here. ‘Provided there is a genuine journalistic purpose for which the information is held, it should not be subject to FOIA. After all, there must be a great deal of information held by the BBC which is not solely held for journalistic purposes, if ‘journalism’ is given the meaning which the Tribunal accorded to it, and it could well have a chilling effect on BBC journalism and could well operate unfairly on the BBC against its commercial rivals, if any document held for journalistic purposes and another purpose was liable to be disclosed to the public.’ It was not necessary to claim exemption for the dominant purpose to be for journalism.

Lord Neuberger of Abbotsbury MR, Moses, Munby LJJ
[2010] EWCA Civ 715, [2010] WLR (D) 157, [2010] EMLR 24, [2010] 1WLR 2262
Bailii, WLRD
Freedom of Information Act 2000
England and Wales
Citing:
At IT – Sugar v Information Commissioner IT 29-Aug-2006
IT At this preliminary hearing the Tribunal finds that at the time of the request made by Mr Sugar to the BBC for a copy of the Balen Report it was held for purposes other than those of journalism, art or . .
At IT – Sugar v Information Commissioner IT 29-Aug-2006
The Preliminary Issue before the Information Tribunal
The Tribunal decided on 2 March 2006, under its rule 10 procedure (summary disposal of appeals – The Information Tribunal (Enforcement Appeals) Rules 2005 (the Rules), in the absence of the . .
See Also – British Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
See Also – Sugar and Another v British Broadcasting Corporation (BBC) CA 25-Jan-2008
The court upheld Davis J’s decision that neither the Commissioner nor the Tribunal had had any jurisdiction to entertain Mr Sugar’s challenges to the BBC’s refusal to disclose the Balen report. . .
At HL – Sugar v British Broadcasting Corporation and Another HL 11-Feb-2009
The Corporation had commissioned a report as to its coverage of Middle East issues. The claimant requested a copy, and the BBC refused saying that the report having been obtained for its own journalistic purposes, and that it was not covered by the . .
At IT – Sugar v Information Commissioner IT 14-May-2009
. .
Appeal from – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
Cited – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Cited – Revenue and Customs v Procter and Gamble UK CA 20-May-2009
The court was asked whether Pringles are ‘similar to potato crisps and made from the potato?’ Toulson LJ discussed the need for appellate courts to respect the special knowledge of tribunals: ‘Where a Tribunal has taken into account all relevant . .
Distinguished – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .
Cited – Goodwin v The United Kingdom ECHR 27-Mar-1996
An order for a journalist to reveal his source was a breach of his right of free expression: ‘The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to . .
Cited – Tarsasag A Szabadsagjogokert v Hungary ECHR 14-Apr-2009
The court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, . .

Cited by:
Appeal from – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .

Lists of cited by and citing cases may be incomplete.

Information, Media

Updated: 11 November 2021; Ref: scu.417715

Sugar v British Broadcasting Corporation and Another: HL 11 Feb 2009

The Corporation had commissioned a report as to its coverage of Middle East issues. The claimant requested a copy, and the BBC refused saying that the report having been obtained for its own journalistic purposes, and that it was not covered by the 2000 Act. The claimant appealed against a confirmation by the CA that neither the Information Commissioner nor the Information Tribunal had jurisdiction to order the release of the report.
Held: The appeal succeeded. The request was necessarily made to the BBC as a public authority. It was wrong to treat it as a request to a non-public authority because of the nature of the document. The Information Commissioner therefore did have the jurisdiction to test whether the document was held for the purposes of journalism, and an appeal against his decision to the High Court. The case was remitted for this purpose. (Lord Hoffmann and Lady Hale dissenting)

Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury
[2009] UKHL 9, Times 12-Feb-2009, [2009] 1 WLR 430, [2009] 4 All ER 111, [2009] EMLR 254, [2009] All ER (D) 101
Bailii, HL
Freedom of Information Act 2000
England and Wales
Citing:
At First Instance – British Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
Appeal from – Sugar and Another v British Broadcasting Corporation (BBC) CA 25-Jan-2008
The court upheld Davis J’s decision that neither the Commissioner nor the Tribunal had had any jurisdiction to entertain Mr Sugar’s challenges to the BBC’s refusal to disclose the Balen report. . .
Cited – Watt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
Cited – Regina v Kensington and Chelsea (Royal) London Borough Rent Officer, Ex parte Noel 1978
A rent officer can investigate whether a tenancy is protected by the Rent Act 1977 in order to decide whether he has jurisdiction to fix the rent. . .
At IT – Sugar v Information Commissioner IT 29-Aug-2006
IT At this preliminary hearing the Tribunal finds that at the time of the request made by Mr Sugar to the BBC for a copy of the Balen Report it was held for purposes other than those of journalism, art or . .
At IT – Sugar v Information Commissioner IT 29-Aug-2006
The Preliminary Issue before the Information Tribunal
The Tribunal decided on 2 March 2006, under its rule 10 procedure (summary disposal of appeals – The Information Tribunal (Enforcement Appeals) Rules 2005 (the Rules), in the absence of the . .
Cited – Regina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .

Cited by:
At HL – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
At HL – Sugar v Information Commissioner IT 14-May-2009
. .
At HL – Sugar v The British Broadcasting Commission and Another (No 2) CA 23-Jun-2010
The respondent had had prepared a report as to the balance of its reporting of the Israeli-Palestinian conflict. Earlier proceedings had established that the purposes of the holding of the reporting included jurnalism. The claimant now appealed . .
At HL – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Applied – Clarkson v Information Commissioner FTTGRC 18-Dec-2013
The Tribunal Procedure (First-Tier Tribunal) (General Regulatory Chamber) Rules 2009 – application of journalism exception – claim struck out. . .

Lists of cited by and citing cases may be incomplete.

Information, Media

Leading Case

Updated: 11 November 2021; Ref: scu.293986

Attorney-General v Jonathan Cape Ltd: 1976

The Attorney-General sought restraint on the publication of certain materials in the diary of Richard Crossman, a former cabinet minister, submitting that the protection from disclosure of Cabinet papers was based on collective responsibility.
Held: The court refused the injunction.
There is a specific interest in maintaining the confidentiality of ministerial communications arising from the convention of collective responsibility of Ministers of the Crown, which is that once a policy decision has been reached by the Government it has to be supported by all ministers whether they approve of it or not unless they resign: that convention and the free discussion between ministers may be prejudiced by ‘premature disclosure’ of the views of individual ministers. Lord Widgery CJ said that: ‘the court must have power to deal with publication which threatens national security.’
As regards confidence in publicly owned material: ‘There must, however, be a limit in time after which the confidential character of the information, and the duty of the court to restrain publication will lapse’ and ‘It may, of course, be intensely difficult in a particular case, to say at what point the material loses its confidential character, on the ground that publication will no longer undermine the doctrine of cabinet responsibility.’
Lord Widgery LCJ said: ‘The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.’

Lord Widgery LCJ
[1976] 1 QB 752, [1976] 3 All E R 484
England and Wales
Cited by:
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

Media, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.241360

8 Representative Claimants and Others v MGN Ltd: ChD 19 Apr 2016

Application about costs which raises an important point about the applicability of normal conditional fee agreement provisions to privacy litigation generally. Although the application has technically been made by the claimants, the real point which arises is one raised by the defendant, which is whether the defendant newspaper publisher is right to say that the current CFA legislation, which permits the recovery of an uplift and ATE insurance premium is incompatible with Article 10 of the European Convention on Human Rights.
Held: The English legislative regime which permits the recovery of the additional liabilities is not incompatible with Article 10 of the Convention.

Mann J
[2016] EWHC 855 (Ch), [2016] WLR(D) 195
Bailii, WLRD
European Convention on Human Rights 10
England and Wales
Cited by:
Appeal from – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Costs, Media

Updated: 11 November 2021; Ref: scu.562456

In re P (A Child): FD 17 Dec 2013

A local authority applied for a reporting restriction order. The Italian mother when pregnant suffered mental illness. She ceased treatment to protect her unborn child and became psychotic and delusional and was detained in a mental hospital. She had had two previous births by caesarian section, and the doctors view was that a natural birth carried very serious risks and they had obtained an order that the child be born by caesarian. Later the Council had obtained a care order for the child thus born, and then an order freeing her for adoption. The mother continued to fight for the return of her child.
Held: The court noted the extent of incorrect and uninformed comment on the case, but noted also that given the privacy attached to such proceedings under the rules and traditionally, such misinformation was in part at least understood.
Given the extremes faced by the mother she had a right to speak out.
Munby P made again points made in earlier cases: ‘First, that ‘It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish’. Second, that ‘Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts [but the] fear of such criticism, however justified that fear may be, and however unjustified the criticism, is . . not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms . . or even in language which is crude, insulting and vulga”. Third, that ‘It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory . . If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction.”

Sir James Munby P
[2013] EWHC 4048 (Fam)
Bailii
England and Wales
Citing:
See Also – Re P FD 13-Dec-2013
A local council applied for a reporting restriction order in the context of a case as to which there had been substantial public discussion and conflict.
Held: As to the child involved: ‘the arguments in favour of the continuing anonymisation . .
Cited – Re B-S (Children) CA 17-Sep-2013
The mother had been refused leave to oppose her child’s adoption. She now appealed.
Held: A court facing such an application faced two questions: Has there been a change in circumstances? If not, that is the end of the matter. If yes, then the . .
Cited – In re P (A Child) Misc 1-Feb-2013
Chelmsford County Court – The court heard an application by the local authority for an order freeing a child for adoption. The mother suffered a continuing mental health condition but that was presently under control.
Held: The threshold . .
Cited – In re AA COP 23-Aug-2012
The patient had been attending a course in the UK for her work. She suffered a further episode of a bipolar condition. Being pregnant she stopped taking her medication. Her mental condition deteriorated, and she was taken into secure psychiatric . .

Lists of cited by and citing cases may be incomplete.

Children, Media

Leading Case

Updated: 11 November 2021; Ref: scu.519043

British Broadcasting Corporation v Harpercollins Publishers Ltd and Another: ChD 4 Oct 2010

The claimant sought an injunction and damages to prevent the defendant publishing a book identifying himself as ‘the Stig’ saying that this broke his undertaking of confidentialty as to his identity, a necessary part of the character in the TV programme Top Gear.
Held: The claimant was refused an injunction. The driver had worked for the BBC through a service company. The signatures had been given by him in his capacity as the service company, and he was not personally bound to confidentiality by the contract. Nevertheless he was bound, as was accepted, but also beyond the term of any series in which he appeared was first broadcast.
At the same time there had come to be substantial press and internet speculation as to his identity to the point where no continued confidence could exist, and also the service companies published accounts which sufficiently identified him as the Stig. The material went beyond speculation to statements as to his identity, and the identification had been made. Any confidence was now lost.

Morgan J
[2010] EWHC 2424 (Ch), HC10C02684, [2011] EMLR 6
Bailii
Human Rights Act 1998 12
England and Wales
Citing:
Cited – Terrapin v Builders Supply Co (Hayes) ChD 1967
The defendants made up prefabricated portable buildings to the plaintiffs’ design, provided to them only for this purpose. When the contract ended, the defendants then offered their own prefabricated buildings using much of the material, including . .
Cited – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others ChD 26-Jun-2009
Arnold J reviewed the authorities and expressed his conclusion that an injunction will not be granted to prevent a future publication of information that has ceased to be confidential. He qualified this statement in relation to information that . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Schering Chemicals Ltd v Falkman Ltd CA 1982
The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Schering Chemicals Ltd v Falkman Ltd CA 1982
The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Roger Bullivant Ltd v Ellis CA 1987
The plaintiffs sought various remedies against an ex-employee who had set up a company in competition with the plaintiffs. One was for breach of confidence in respect of a card index of customer contacts, a copy of which the first defendant had . .
Cited – Universal Thermosensors Ltd v Hibben and Others ChD 8-Jul-1992
After complex litigation, the remaining issues were a claim for damages by the claimant in respect of the defendant’s misuse of confidential information and a counterclaim by the defendants for loss falling within the claimant’s cross-undertaking in . .

Lists of cited by and citing cases may be incomplete.

Contract, Media, Employment, Intellectual Property

Updated: 11 November 2021; Ref: scu.424853

The British Broadcasting Corporation and Another v The Secretary of State for Transport and Another: QBD 28 Jan 2019

Recording’s disclosure would limit investigation

After an air crash, the prosecutor of the pilot used in evidence a recording from the cockpit of the aircraft. The claimant broadcaster sought release of the recording to it so that its own report would be more accurate and fair. The request was resisted under the statutory provisions on the ground that it would make future investigations more difficult because pilots would be reluctant to co-operate.
Held: The request was refused. The UK Regulation did yet not include the full restriction on republication of the international provisions, but comity required it to be read in such a way as to comply with international obligations. A balance was to be found in each case between the need for open justice, and the maintenance or international co-operation in air investigations by applying common standards. On the facts, the suggested adverse impacts outweighed the benefit of disclosure to the claimants.

Edis J
[2019] WLR(D) 92, [2019] EWHC 135 (QB)
WLRD, Bailii
Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018 25, Parliament and Council Regulation (EU) No 996/2010
England and Wales

Media, Transport, Information, European

Updated: 11 November 2021; Ref: scu.633229

Sugar v British Broadcasting Corporation and Another (2): SC 15 Feb 2012

The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only in part for jurnalistic purposes, it was exempt from disclosure under the 2000 Act. Lord Wilson saying that where as in this case the journalistic purpose was predominant that was sufficient to take it outside the Act. The respondent was a public authority for the purpose of the Act only where an activity fell outside journalistic purposes. Once it was established that the information sought was held by the BBC to any significant degree for the purposes of journalism, it is exempt from production under Act, even if the information is also held for other purposes. The public purpose of disclosing information was balanced against a similar interest that journalistic organisations should not have their basic activities limited by the consequences of disclosure.

Lord Phillips, President, Lord Walker, Lord Brown, Lord Mance, Lord Wilson
[2012] UKSC 4, [2012] 1 WLR 439, [2012] EMLR 17, [2012] 2 All ER 509, [2012] WLR(D) 33
Bailii, Bailii Summary, SC, SC Summary
Freedom of Information Act 2000 7(1)
England and Wales
Citing:
At IT – Sugar v Information Commissioner IT 29-Aug-2006
IT At this preliminary hearing the Tribunal finds that at the time of the request made by Mr Sugar to the BBC for a copy of the Balen Report it was held for purposes other than those of journalism, art or . .
At IT – Sugar v Information Commissioner IT 29-Aug-2006
The Preliminary Issue before the Information Tribunal
The Tribunal decided on 2 March 2006, under its rule 10 procedure (summary disposal of appeals – The Information Tribunal (Enforcement Appeals) Rules 2005 (the Rules), in the absence of the . .
At First Instance – British Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
See Also – Sugar and Another v British Broadcasting Corporation (BBC) CA 25-Jan-2008
The court upheld Davis J’s decision that neither the Commissioner nor the Tribunal had had any jurisdiction to entertain Mr Sugar’s challenges to the BBC’s refusal to disclose the Balen report. . .
At HL – Sugar v British Broadcasting Corporation and Another HL 11-Feb-2009
The Corporation had commissioned a report as to its coverage of Middle East issues. The claimant requested a copy, and the BBC refused saying that the report having been obtained for its own journalistic purposes, and that it was not covered by the . .
At IT – Sugar v Information Commissioner IT 14-May-2009
. .
Cited – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
Appeal from – Sugar v The British Broadcasting Commission and Another (No 2) CA 23-Jun-2010
The respondent had had prepared a report as to the balance of its reporting of the Israeli-Palestinian conflict. Earlier proceedings had established that the purposes of the holding of the reporting included jurnalism. The claimant now appealed . .
Cited – Chohan v Saggar ChD 1992
Section 423(3) of the 1986 Act requires a plaintiff to show a dominant purpose to remove assets from the reach of actual or potential claimants or creditors, but not excluding the possibility that there might be other purposes behind the relevant . .
Cited – Peach v Commissioner of Police of the Metropolis CA 1986
Statements made to the police about the death of Mr Blair Peach should be disclosed to his mother in her action against the police because, although they were made partly for the purpose of a complaint against the police and so would to that extent, . .
Cited – Common Services Agency v Scottish Information Commissioner IHCS 1-Dec-2006
The Agency rejected a request to provide statistics on certain children, saying that the numbers were so small that individuals might be identified.
Held: Since the whole purpose of 2002 Act is the release of information, it should be . .
Cited – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .
Cited – Regina v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd HL 1993
One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .

Cited by:
Binding – Kennedy v Charity Commission CA 20-Mar-2012
The claimant sought disclosure of an investigation conducted by the respondent. The respondent replied that the material was exempt within section 32(2). The court had found that that exemption continued permanently even after the inquiry was . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .

Lists of cited by and citing cases may be incomplete.

Information, Media

Updated: 11 November 2021; Ref: scu.451296

Norfolk County Council v Webster and others: FD 1 Nov 2006

The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge must adopt the same ‘parallel analysis’ leading to the same ‘ultimate balancing test’, as described in In re S and W, which is applicable in deciding whether to relax or enhance reporting restrictions. What has to be struck is the proper balance between publicity and privacy, though this is complex. The order made was too wide in its restrictions: ‘Even if all the guardian’s concerns were fully justified, that could not in my judgment justify the prohibition of publishing anything at all about the case.’ In this case the child’s photograph was already in the public domain, and it would be disproportionate not to allow the parents to carry forward their case under their own full names. It was not for the court to specify which parts of the media might be allowed access, but it remained the case that members of the public would be excluded. Certain controls would remain as to the reporting of witness’s names.
Whilst the issue of transparency and openness in the family courts is the subject of an ongoing and sometimes vigorous debate, applications concerning the publication of information relating to family proceedings ‘fall to be determined by reference to the law as it is, not the law as some might think it ought to be.’

Munby J
[2006] EWHC 2733 (Fam), [2007] EMLR 199, (2007) HRLR 3, [2007] 1 FLR 1146, [2007] HRLR 3, [2008] 1 FCR 440, [2007] Fam Law 399
Bailii
Children Act 1989 97(2), Administration of Justice Act 1960 12, Family Proceedings Rules 1991 4.16(7), European Convention on Human Rights 6 8
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – In re F (otherwise A ) (A Minor) (Publication of Information) CA 1977
An allegation of contempt was made in proceedings related to the publication by a newspaper of extracts from a report by a social worker and a report by the Official Solicitor, both prepared after the commencement and for the purpose of the wardship . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – ex parte Guardian Newspapers Ltd CACD 30-Sep-1998
The defendants purported to serve a notice under Rule 24A(1) of the Crown Court Rules 1982 of an intention to apply for a hearing in camera of their application that the trial be stopped as an abuse of process.
Held: Where an application was . .
Cited – Pretto And Others v Italy ECHR 8-Dec-1983
The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; . .
Cited – Axen v Germany ECHR 8-Dec-1983
‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Diennet v France ECHR 26-Sep-1995
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 (publicly); No violation of Art. 6-1 (impartiality); Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – Bergens Tidende And Others v Norway ECHR 2-May-2000
A newspaper complained that its rights under Article 10 of the Convention had been infringed by a libel action which a cosmetic surgeon had successfully brought against it in respect of defamatory articles it had published saying he was incompetent. . .
Cited – Re X (Disclosure of Information) FD 2001
There cannot be an expectation that expert evidence given in a children’s court will always stay confidential. The various aspects of confidentiality will have greater or lesser weight on the facts of each case. Munby J: ‘Wrapped up in this concept . .
Cited – Prager And Oberschlick v Austria ECHR 26-Apr-1995
Article 10 requires that journalists be permitted a good deal of latitude in how they present their material and that a degree of exaggeration must also be accepted. The media have a special place in any democratic society as purveyor of information . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – McCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Harris v Harris; Harris v Attorney General FD 21-May-2001
The applicant had been committed for ten months for contempt, being in breach of family court injunctions. He applied to be released after two months on the basis that the unserved balance of the sentence be suspended. The court held that it had the . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – In re L (Care: Assessment: Fair Trial) FD 2002
The court set out precepts to be followed by courts in preparing for care proceedings so as to ensure that they did not infringe the rights of the family to respect for their family life under article 8.
Munby J said: ‘ . . it must never be . .
Cited – Re B (Disclosure to Other Parties) 2001
Witnesses and others involved in children proceedings have article 8 rights. . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – Whitney v California 1927
(United States) Brandeis J considered that the risk of mis-reporting of court proceedings was in fact a reason for more court reporting: ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes . .
Cited – In re W (Wardship: Discharge: Publicity) CA 1995
Four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Re Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD 2-Dec-2003
A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
Cited – Re H (Freeing Orders: Publicity) CA 2005
Wall LJ said: ‘Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily . .
Cited – In re W (Children) (Care Proceedings: Witness anonymity) CA 7-Oct-2002
In care proceedings, the court had allowed a social worker to give evidence in such a way that her identity was hidden. She was in fear of violence.
Held: It was possible for a civil court to provide anonymity. These public law proceedings . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
See Also – Re a Minor CC 21-May-2004
(Norfolk County Court) . .
Appeal from – Norfolk County Council v Webster CC 24-Nov-2004
(Norwich County Court) . .

Cited by:
See Also – Norfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
Cited – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Children, Local Government, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.245938

Belgian Electronic Sorting Technology Nv v Bert Peelaers: ECJ 11 Jul 2013

best_bpECJ072013

ECJ Directives 84/450/EEC and 2006/114/EC – Misleading and comparative advertising – Definition of ‘advertising’ – Registration and use of a domain name – Use of metatags in a website’s metadata

Ilesic P
C-657/11, [2013] EUECJ C-657/11, [2013] WLR(D) 275
Bailii, WLRD
Directive 2006/114/EC, Directive 84/450/EEC

European, Media

Updated: 10 November 2021; Ref: scu.512334

The British Broadcasting Corporation v Johns (HM Inspector of Taxes): CA 5 Mar 1964

The BBC claimed to be exempt from income tax. It claimed crown immunity as an emanation of the crown. The court had to decide whether the BBC was subject to judicial review.
Held: It is not a statutory creature; it does not exercise statutory functions; it is not in any general way subject to statutory guidance. The traditional view of it is that it does not exercise a governmental function, and is therefore not subject to judicial review.
Counsel claimed for the government the right to grant a monopoly of broadcasting. LJ Diplock replied: ‘It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints upon citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension. In particular, as respects monopolies the Crown’s claim to a general right to the monopoly of any activity was denied and circumscribed by the Statute of Monopolies, 1623. Today, save in so far as the power is preserved by the Statute of Monopolies, or created by other statutes, the executive government has no constitutional right either itself to exercise through its agents or to confer upon other persons a monopoly of any form of activity.’
and ‘The modern rule of construction of statutes is that the Crown, which today personifies the executive government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints on persons or in respect of property unless the statute says so expressly or by necessary implication.’
As to whether a statute was binding on the Crown: ‘Since laws are made by rulers of the subjects, a general expression in a statute such as ‘any person’ descriptive of those on whom the statute imposes obligations or restraints is not to be read as including the ruler himself . . The modern rule of construction of statutes is that the Crown, which today personifies the executive Government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints on persons or in respect of property unless the statute says so expressly or by necessary implication.’

Willmer LJ, Diplock LJ, Danckwerts LJ
[1965] Ch 32 CA, [1964] EWCA Civ 2, [1964] 41 TC 471, (1964) 43 ATC 38, [1964] 1 All ER 923, [1964] 2 WLR 1071, [1964] TR 45, [1964] RVR 579, [1964] 10 RRC 239
Bailii
England and Wales
Cited by:
Cited – Regina v British Broadcasting Corporation, ex parte Referendum Party; Regina v Independent Television Commission, ex parte Referendum Party Admn 24-Apr-1997
The Referendum Party challenged the allocation to it of less time for election broadcasts. Under the existing agreements, having fielded over 50 candidates, they were allocated only five minutes.
Held: Neither the inclusion of past electoral . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Dictum adopted – Revenue and Customs, Regina (on The Application of) v HM Coroner for The City of Liverpool Admn 21-May-2014
The Coroner, conducting an investigation into a person’s death, issued notices under para 1(2) of Schedule 5 to the Coroners and Justice Act 2009, requiring the Revenue and Customs Commissioners to provide occupational information concerning the . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice Admn 5-Mar-2015
The serving prisoner said that new general restrictions on smoking in public buildings applied also in prisons. were a breach of his human rights. The only spaces where prisoners were allowed now to smoke were their cells, and he would share cells . .
Cited – Secretary of State for Justice v Black CA 8-Mar-2016
The Secretary of State appealed against a declaration that the provisions prohibiting smoking in pubic places applied in prisons.
Held: The appeal succeeded. . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Cited – Lord Advocate v Dumbarton District Council HL 1989
The House was asked whether the Ministry of Defence was entitled to cone off a section of the A814 road without the permission of the roads authority under the Roads (Scotland) Act 1984 or the local planning authority under the Town and Country . .

Lists of cited by and citing cases may be incomplete.

Media, Judicial Review, Income Tax

Leading Case

Updated: 10 November 2021; Ref: scu.181973

Pressdram Ltd v Whyte: ChD 30 May 2012

The respondent had been involved in company director disqualification proceedings some 12 years earlier. The claimant, publisher of Private Eye sought disclosure of the associated court papers.
Held: The applicant had provided appropriate details of the papers required. The basic principle of open justice applied, and the papers were required for a proper jurnalistic purpose.The order was made.

Morgan J
[2012] EWHC 1885 (Ch)
Bailii
Company Directors Disqualification Act 1986, Civil Procedure Rules 5.4C(2)
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Dian AO v Davis, Frankel and Mead QBD 2005
Application was made for the disclosure of documents from an earlier court case involving the defendants.
Held: The application as made was disallowed. The right thing to do was to identify the documents it sought with reasonable precision and . .
Cited – Chan v Alvis Vehicles Ltd and Another ChD 8-Dec-2004
The parties had had a part trial, and settled. The Gardian Newspaper now applied for disclosure of various documents to support a proposed news story. The parties had disputed payment to the claimant of commissions on the sales of military vehicles . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Company

Updated: 10 November 2021; Ref: scu.462434

Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5): Admn 16 Oct 2009

The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was unnecessary for the court proceedings, and that publication of US security materials would risk damage to US UK relations.
Held: Previous judgments had been obtained by virtue of a threat to international relations claimed by the respondent. The court recognised a principle that material provided by a security service remained the property of the provider. That was not a principle of law. The original doubts as to the publication were made by the former US administration at the request of the respondent. Further documents had also come to light in British hands. The respondent had already accepted that he might disclose such information, and therefore whatever damage it was argued might arise was already to follow. There was a difference in the response of the current US administration. The reality of the risk was to be balanced against the need for publication. There was nothing of an intelligence nature in the documents, and he closed parts of earlier judgments should be opened.
The court considered the arrangements for publication by law reporters of hearings which included closed materials. In the light of Bovale, a direction was required.

Thomas LJ, Lloyd Jones J
[2009] EWHC 2549 (Admin)
Bailii
England and Wales
Citing:
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 29-Aug-2008
The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – Paulin v Paulin CA 17-Mar-2009
The court considered an application by the wife when, anticipating ancillary relief claims, the husband sought to have himself declared bankrupt, and she intervened to have the bankruptcy set aside. The husband now appealed.
Held: Wilson LJ . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Secretary of State for Communities and Local Government v Bovale Ltd and Another CA 11-Mar-2009
The applicant had sought to quash a refusal of its plannng application. An order had been made for the service of evidence, and the judge had set down an order which was expressed to be of more general application. The Secretary of State now . .

Cited by:
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60 Admn 19-Nov-2009
The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
See Also – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .

Lists of cited by and citing cases may be incomplete.

Administrative, Media

Updated: 10 November 2021; Ref: scu.376142

Campbell v Mirror Group Newspapers Ltd (MGN) (No 1): HL 6 May 2004

The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story showing a picture of her leaving a drug addiction clinic, along with details of her addictions and the treament she had received.
Held: The law of confidence is now better characterised as misuse of private information. ‘The need to be free to disseminate information regarding Miss Campbell’s drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.’ Having made her virtue public, it was proper to disabuse the public of her virtue, but that did not excuse the powerful way in which it had been done, and which had failed to maintain the balance required.
Lord Nicholls explained the article 8 ambit of private life: ‘Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.’ and ‘This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognised clearly in the judgment of Lord Goff of Chieveley in A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109. Now the law imposes a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase duty of confidence and the description of the information as confidential is not altogether comfortable. Information about an individual’s private life would not, in ordinary usage, be called confidential. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.’
Baroness Hale said: ‘The [Human Rights Act 1998] does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights . . The action for breach of confidence is not the only relevant cause of action: the inherent jurisdiction of the High Court to protect the children for whom it is responsible is another example: see In re S (a child) (identification: restrictions on publication) [2003] 3 WLR 1425. But the courts will not invent a new cause of action to cover types of activity which were not previously covered: see Wainwright v Home Office [2003] 3 WLR 1137. That case indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.’

Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Nicholls of Birkenhead (dissenting), Lord Hoffmann (dissenting)
[2004] UKHL 22, Times 10-May-2004, [2004] 2 WLR 1232, [2004] 2 AC 457, [2004] UKHRR 648, [2004] EMLR 15, 16 BHRC 500, [2004] HRLR 24, [2004] 2 All ER 995
Bailii, House of Lords
European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – Campbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Coco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – A v B plc and Another (Flitcroft v MGN Ltd) CA 11-Mar-2002
A newspaper company appealed against an order preventing it naming a footballer who, they claimed, had been unfaithful to his wife.
Held: There remains a distinction between the right of privacy which attaches to sexual activities within and . .
Cited – Prince Albert v Strange ChD 8-Feb-1849
albert_strange1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
Cited – Earl Spencer v United Kingdom ECHR 1998
The English law of confidence provided an adequate remedy to restrain the publication of private information about the applicants’ marriage and medical condition and photographs taken with a telephoto lens. These developments showed that the basic . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – Hellewell v Chief Constable of Derbyshire QBD 13-Jan-1995
The police were asked by shopkeepers concerned about shoplifting, for photographs of thieves so that the staff would recognise them. The police provided photographs including one of the claimant taken in custody. The traders were told only to show . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – Peck v The United Kingdom ECHR 28-Jan-2003
peck_ukECHR2003
The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness . .
Cited – Douglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .
Cited – Regina v Broadcasting Standards Commission, Ex Parte British Broadcasting Corporation CA 6-Apr-2000
The Act protects the privacy of a corporate body. A television company which secretly filmed in a company’s store could be held to have infringed the privacy of the company by the Broadcasting Standards Commission. The Act went further than the . .
Cited – Fressoz and Roire v France ECHR 21-Jan-1999
Le Canard Enchaine published the salary of M Calvet, the chairman of Peugeot, (which was publicly available information) and also, by way of confirmation, photographs of the relevant part of his tax assessment, which was confidential and could not . .
Cited – Jersild v Denmark ECHR 20-Oct-1994
A journalist was wrongly convicted himself of spreading racial hatred by quoting racists in his material.
Held: Freedom of expression is one of the essential foundations of a democratic society. The safeguards to be afforded to the press are . .
Cited – Bladet Tromso and Stensaas v Norway ECHR 20-May-1999
A newspaper and its editor complained that their right to freedom of expression had been breached when they were found liable in defamation proceedings for statements in articles which they had published about the methods used by seal hunters in the . .
Cited – Dudgeon v The United Kingdom ECHR 22-Oct-1981
ECHR (Plenary Court) Legislation in Northern Ireland that criminalised homosexual behaviour which was lawful in the rest of the UK.
Held: There was a violation of article 8, but it was not necessary to . .
Cited – Goodwin v The United Kingdom ECHR 27-Mar-1996
An order for a journalist to reveal his source was a breach of his right of free expression: ‘The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – Tammer v Estonia ECHR 6-Feb-2001
Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual. Criminal penalties imposed in respect of the reporting of a . .
Cited – PG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
Cited – Aubry v Editions Vice-Versa Inc 9-Apr-1998
(Supreme Court of Canada) Publication in a magazine of an unauthorised photograph of a 17 year old girl sitting on the steps of a public building had violated her right to respect for private life conferred under Article 5 of the ‘Quebec Charter’ of . .
At First Instance – Campbell v Mirror Group Newspapers Ltd QBD 27-Mar-2002
The applicant sought damages for the defendant having infringed her privacy in several ways, including under the 1998 Act. The defendant argued that she had invited publicity and had misled the public as to her drug problem. A photograch had been . .

Cited by:
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Greene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
Cited – EPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another ChD 21-Dec-2004
The claimant had developed an additive which would assist in making plastic bags bio-degradable. They alleged that, in breach of confidentiality agreements, the defendants had copied the product. The defendants said the confidentiality agreement was . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
See Also – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – TB, Regina (on the Application of) v The Combined Court at Stafford Admn 4-Jul-2006
The claimant was the child complainant in an allegation of sexual assault. The defendant requested her medical records, and she now complained that she had been unfairly pressured into releasing them.
Held: The confidentiality of a patient’s . .
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – Murray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – CC v AB QBD 4-Dec-2006
The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife. . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Haddock v MGN Ltd and others ChNI 17-Oct-2008
Application for injunction to prevent the defendant newspapers and television companies from publishing the plaintiff’s picture in the course of a forthcoming civil action. He was coming toward the end of a long term of imprisonment. Whilst on . .
At House of Lords – MGN Limited v United Kingdom ECHR 24-Oct-2008
The Mirror had published a picture of Naomi Campbell leaving a rehabilitation clinic. They appealed a decision in which having been found to have infringed her privacy by a covertly taken photograph, they had then been ordered to pay very . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – The Author of A Blog v Times Newspapers Ltd QBD 16-Jun-2009
The claimant, the author of an internet blog (‘Night Jack’), sought an order to restrain the defendant from publishing his identity.
Held: To succeed, the claimant would have to show that there would be a legally enforceable right to maintain . .
Cited – Child X (Residence and Contact- Rights of Media Attendance) (Rev 2) FD 14-Jul-2009
The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Kaschke v Gray and Another QBD 23-Jul-2010
The claimant sought damages in defamation saying that the defendants had published a web page which falsely associated her with a terrorist gang in the 1970s. The defendants now sought a strike out of her claim as an abuse saying that a similar . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – Secretary of State for The Home Department v AP (No. 2) SC 23-Jun-2010
The claimant had object to a Control order made against him and against a decision that he be deported. He had been protected by an anonymity order, but the Court now considered whether it should be continued.
Held: AP had already by the . .
Cited – RST v UVW QBD 11-Sep-2009
The applicant sought an interim and without notice injunction preventing the defendant from disclosing confidential information covered by an agreement between the parties.
Held: The order was made on a without notice application because there . .
Cited – Ntuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
Main HL Judgment – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – TSE and ELP v News Group Newspapers Ltd QBD 23-May-2011
The claimants had obtained an injunction preventing publication of details of their private lives and against being publicly named. The newspaper had not attempted to raise any public interest defence. Various publications had taken place to breach . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – KJO v XIM QBD 7-Jul-2011
The claimant had, some 20 years previously, been convicted and sentenced for forgery of a will. The defendants, relatives, had ever since written to those with whom he had dealings to tell them of the conviction and facts. The claimant, unable to . .
Cited – Ferdinand v MGN Limited QBD 29-Sep-2011
fedinand_mgnQBD2011
The claimant, a famous footballer, complained that an article by the defendant relating an affair he had had, had infringed his right to privacy. The defendant relied on its right to freedom of expression. The claimant had at an earlier stage, and . .
Cited – McClaren v News Group Newspapers Ltd QBD 5-Sep-2012
The claimant had obtained an interim injunction to restrain the defendant publishing what he said was private information about a sexual encounter. He also sought an injunction under the 1997 Act.
Held: The claim succeeded: ‘there have been . .
Cited – Martin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
Cited – Google Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Cited – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the . .
Cited – Weller and Others v Associated Newspapers Ltd CA 20-Nov-2015
The three children of a musician complained of the publication of photographs taken of them in a public place in California. . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – ZC v Royal Free London NHS Foundation Trust QBD 26-Jul-2019
Defamation/privacy claims against doctors failed
The claimant, seeking damages for alleged defamation, now asked for the case to be anonymised.
Held: The conditions for anonymisation were not met. The anonymity would be retained temporarily until any time for appeal had passed.
As to . .
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .

Lists of cited by and citing cases may be incomplete.

Information, Media, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.196618

Mezvinsky and Another v Associated Newspapers Ltd: ChD 25 May 2018

Choice of Division and Business Lists

Claim that the publication of pictures of the young children of the celebrity claimants had been published by the defendant on-line without consent and without pixelation, in breach of their human rights, of data protection, and right to privacy. The defendants now sought the transfer of the case to the Queens Bench Division.
Held: There is concurrent jurisdiction between the two divisions for issuing a privacy claim. The creation of the Media and Communications List was not under the CPR: it is a means by which work that is already within the Queen’s Bench Division is allocated for its proper performance. The creation of the M and CL has no direct extra-divisional effect.’ The application was refused. It had been made in part on mistaken assumptions, and: ‘There is no basis for concluding that the Queen’s Bench Division M and CL is the appropriate, or the more appropriate, venue for this claim. Both the Business List (ChD) and the Queen’s Bench M and CL are appropriate. There are no good reasons to transfer the claim and disturb the legitimate choice made by the claimants at the point the claim was issued.’

Marsh CM
[2018] EWHC 1261 (Ch)
Bailii
Senior Courts Act 1981, Civil Procedure Rules 30
England and Wales
Citing:
Cited – NATL Amusements (UK) Ltd and Others v White City (Shepherds Bush) Ltd Partnership and Another TCC 16-Oct-2009
Application for transfer of claim from QBD to TCC. Akenhead J considered an application to transfer a claim from the Chancery Division to the Technology and Construction Court. After reviewing the authorities, he said: ‘It is probably unnecessary to . .
Cited – Appleby Global Group Llc v British Broadcasting Corporation and Another ChD 26-Jan-2018
Claim by international firm of lawyers for breach of confidence against publishers who had received and published that information. The court now considered which division of the High Court should hear the claim.
Held: Rose J considered the . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Rocknroll v News Group Newspapers Ltd ChD 17-Jan-2013
The claimant sought an order to restrain the defendant from publishing embarrassing photographs taken at a private party. He had taken an assignment of the copyright from the photographer.
Held: The court considered whether the extent to which . .
Cited – Gulati and Others v MGN Limited ChD 21-May-2015
The claimants each claimed that their mobile phones had been hacked by or on behalf of the defendant newspaper group. The claims had now in substance been admitted, and the court set out to assess the damages (and aggravated damages) to be paid.
Cited – Appleby Global Group Llc v British Broadcasting Corporation and Another ChD 26-Jan-2018
Claim by international firm of lawyers for breach of confidence against publishers who had received and published that information. The court now considered which division of the High Court should hear the claim.
Held: Rose J considered the . .
Cited – CRE v Justis Publishing Ltd 20-Mar-2017
The defendant company published case law. The claimant’s case had been anonymised, but the defendant published a version of the judgment from which it was possible to identify him (or her). An order had been made to transfer the case to the County . .
Cited – Ali and Another v Channel 5 Broadcast Ltd ChD 22-Feb-2018
The claimants said that a filming of their eviction from property was an invasion of their privacy.
Held: The Claimants did have a reasonable expectation of privacy in respect of the information included in the Programme about which they . .

Lists of cited by and citing cases may be incomplete.

Media, Intellectual Property, Information, Torts – Other, Human Rights, Litigation Practice

Updated: 10 November 2021; Ref: scu.616902

Regina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General: CA 1974

In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in disclosing the names in defiance of the trial judge’s direction. An act of contempt required an intention to do an act calculated to interfere with the due course of justice. The act here was a flagrant affront to the court’s authority. It would result in a reduced confidence of witnesses that they could give evidence wihout fear, and the contempt was made out.
Lord Widgery CJ set out the reasons for giving anonymity to blackmail complainants: ‘all of us concerned in the law know that for more years than any of us can remember it has been a commonplace in blackmail charges for the complainant to be allowed to give his evidence without disclosing his name. That is not out of any feelings of tenderness towards the victim of the blackmail, a man or woman very often who deserves no such consideration at all. The reason why the courts in the past have so often used this device in this type of blackmail case where the complainant has something to hide, is because there is a keen public interest in getting blackmailers convicted and sentenced, and experience shows that grave difficulty may be suffered in getting complainants to come forward unless they are given this kind of protection . . the Crown at this stage had presented a prima facie case of contempt . . because to my mind it is quite evident that if witnesses in blackmail actions are not adequately protected, this could affect the readiness of others to come forward in other cases.’
Even so the public should be admitted to a trial: ‘The great virtue of having the public in our courts is that discipline which the presence of the public imposes upon the court itself. When the court is full of interested members of the public, as indeed one can say it is today, it is bound to have the effect that everybody is more careful about what they do, everyone tries just that little bit harder and there is a disciplinary effect on the court which would be totally lacking if there were no critical members of the public or press present.
When one has an order for trial in camera, all the public and all the press are evicted at one fell swoop and the entire supervision by the public is gone. Where one has a hearing which is open, where the names of the witnesses are withheld, virtually all the desirable features of having the public present are to be seen. The only thing which is kept from their knowledge is the name of the witness.’

Widgery LCJ, Milmo Ackner LJJ
[1975] 1 All ER 142 DG, [1974] 3 WLR 801, [1975] QB 637
England and Wales
Cited by:
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions PC 8-Jun-2004
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether . .
Cited – Regina v Murphy and Another CANI 1990
The two defendants were tried for the murder of two British Army corporals. The prosecution adduced the evidence of a number of television journalists who, in the course of their work, had filmed the scene of the killing. The judge gave leave that . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – AMM v HXW QBD 7-Oct-2010
amm_hxwQBD10
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – AM v United Kingdom ECHR 2-Dec-1992
The applicant complained that at his trial in 1988 for the murder of two British soldiers in Befast, the judge had allowed the cameramen upon whose film evidence he had been convicted to be hidden from the view of the defendants. The court . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Media

Leading Case

Updated: 10 November 2021; Ref: scu.182814

Citroen Commerce GmbH v Zentralvereinigung des Kraftfahrzeuggewerbes zur Aufrechterhaltung lauteren Wettbewerbs eV: ECJ 7 Jul 2016

ECJ (Judgment) Reference for a preliminary ruling – Directives 98/6/EC and 2005/29/EC – Consumer protection – Advertisement containing an indication of price – Concepts of ‘offer’ and ‘price inclusive of taxes’ – Obligation to include in the price of a motor vehicle the additional costs necessarily incurred in connection with the transfer of the vehicle)

L. Bay Larsen, P
ECLI:EU:C:2016:527, [2016] EUECJ C-476/14
Bailii

European, Consumer, Media

Updated: 10 November 2021; Ref: scu.566723

Mater v Turkey (LS): ECHR 16 Jul 2013

Article 8-1
Respect for private life
Newspaper editorial criticising applicant without insulting her or calling for the use of violence: no violation
Facts – The applicant wrote a book containing the testimonies of former soldiers who had fought against the PKK (Workers’ Party of Kurdistan). She was prosecuted in connection with its publication on a charge of insulting the armed forces of the State, before being acquitted in September 2000. In August 2001 a newspaper printed a series of editorial articles which contained virulent criticism of the applicant. In October 2001 she applied to the courts seeking compensation for the non-pecuniary damage she had allegedly sustained as a result of the publication of the articles. Following lengthy proceedings her claims were eventually dismissed by the domestic courts.
Law – Article 8: The applicant, a public figure, had attracted more attention following the publication of her book and the considerable publicity surrounding the criminal proceedings against her that resulted from it. The articles in question had concerned topical subjects of general interest. Owing to the style used, the impugned pieces of journalism had directly engaged the reader on the subject of the facts set out in them. The tone of the articles had been incisive and ironic, they had included numerous negative comments and the journalist had expressed clear scepticism as to the authenticity of the interviews in the applicant’s book. The articles had also challenged the applicant directly. They claimed that she had received funding for the writing of the book from an American foundation with supposed links to the CIA, and cast doubt on her ideological and financial motives for writing the book.
The language used could be considered provocative. However, while any individual who took part in a public debate of general concern must not overstep certain limits, particularly with regard to respect for the reputation and the rights of others, a degree of exaggeration, or even provocation, was permitted. Moreover, the allegations made by the journalist in question had not been without some factual basis, especially regarding the funding received by the applicant for the writing of the book. The various ways in which the journalist had speculated about and interpreted the applicant’s motives for writing the book had been recognisable as personal comments and expressions of opinion and easily identifiable as such by the reader. Explanations had been printed in the form of a summary of statements including those of the applicant and of the chairman of the foundation in question, accompanied by comments from the journalist.
It was true that the applicant had been the subject, over a period of around ten days, of articles amounting to virulent criticism against her. However, the articles in question had been editorials which, although very forthright in tone, had not contained personal insults against the applicant or calls for the use of violence against her. In that sense their content was not sufficient to establish that they would in themselves have been capable of endangering the applicant’s physical safety or that of her family and friends.
Lastly, the domestic courts had stressed both the importance of press freedom and its limits with regard to the personality rights of others. The case had been examined three times by the Court of Cassation and the latter, sitting as a full civil court, had eventually concluded, after weighing up the different interests at stake, that the articles in question had remained within the bounds of permissible criticism.
Conclusion: no violation (unanimously).

54997/08 – Legal Summary, [2013] ECHR 887
Bailii
European Convention on Human Rights 8
Human Rights
Citing:
Full judgment – Mater v Turkey ECHR 16-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 10 November 2021; Ref: scu.516033

Al Rawi and Others v The Security Service and Others: QBD 18 Nov 2009

The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court as closed material, not to be seen by the claimants.
Held: The court could make such an order. The principles developed in criminal trials for the use of closed materials, and special advocates could be used in civil trials. The only limitations on their use was that the use should be exceptional, and only as a last resort to ensure fairness, and ‘the fact that a closed material procedure is used does not mean that the claimants will not see any of the material because the special advocate would be required to consider if any of the closed documents should not be withheld from open disclosure to the claimants in the light of the rights of the claimants under the ECHR and at common law and then to make submissions. If a closed material procedure was adopted in a private law claim, it would mean that the court would have to consider how the procedure would have to be modified to ensure that article 6 rights were respected.’

Silber J
[2009] EWHC 2959 (QB)
Times, Bailii
Crown Proceedings Act 1947
England and Wales
Citing:
Cited – Duncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
Cited – Secretary of State for the Home Department v AHK and Others (Practice Note) CA 2-Apr-2009
Sir Anthony Clarke MR gave guidance as to the circumstances in which a special advocate could be appointed, describing the roles of the special advocate representing a party who is not allowed to see closed material: ‘They are well understood and . .
Cited – Secretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – A and Others, Regina v; Regina v The Crown Court at the Central Criminal Court ex parte A Times Newspapers Ltd etc CACD 13-Jan-2006
The defendant was to be charged with offences associated with terrorism. He had sought stay of the trial as an abuse of process saying that he had been tortured by English US and Pakistani authorities. The judge made an order as to what parts of the . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Cocker v Tempest 19-Jan-1841
Where a Judge’s order for staying proceedings in an action brought against good faith, was made in Trinity Vacation, and a motion to set aside that order was not made until Michaelmas Term:- Held, that the mere lapse of time was not sufficient to . .
Cited – Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd HL 1981
Where both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other’s breach as giving him a right to terminate. The Court of Appeal has an inherent power to control its own procedure to . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – A and others v HM Treasury; G v HM Treasury CA 30-Oct-2008
The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to . .
Cited – Malik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Carnduff v Inspector Rock and Chief Constable West Midlands Police CA 11-May-2001
The claimant was a police informer. Over several years he had given and been paid for information. He claimed that on one occasion he had given information which had led to the arrest of a major criminal, but the police denied that any information . .
Cited – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
Cited – Lamothe and Others v Commissioner of Police Of the Metropolis CA 25-Oct-1999
The court was asked as to the propriety of the procedure adopted by the circuit judge, who when considering a claim for false imprisonment, assault and trespass had initially acceded to an application by the defendant which was made without notice . .

Cited by:
Appeal From – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
At First Instance – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Human Rights

Updated: 10 November 2021; Ref: scu.380263

Richard v The British Broadcasting Corporation (BBC) and Another: ChD 18 Jul 2018

Police suspect has outweighable Art 8 rights

Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the claimant. He now claimed damages for breach of his privacy rights.
Held: The claims succeeded. The court generally preferred as an explanation of how SYP had come to disclose the material they did disclose to the BBC, that given by the SYP. The question, whether the existence of a police investigation gave rise to a reasonable expectation of privacy, had not been clearly and authoritatively answered, but the starting point was that a suspect had a legitimate expectation of privacy. That might be displaced on particular occasions according to the facts. It was not displaced merely by the involvement of the media. A balance had to be found between the suspects article 8 rights and the article 10 rights of the media. In this case the defendant’s article 10 rights were not sufficient to take the balance into their favour.
Mann J said: ‘whether or not there is a reasonable expectation of privacy in a police investigation is a fact-sensitive question and is not capable of a universal answer one way or the other. ‘
Mann J continued: ‘It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached. It is, as a general rule, not necessary for anyone outside the investigating force to know, and the consequences of wider knowledge have been made apparent in many cases: see above. If the presumption of innocence were perfectly understood and given effect to, and if the general public were universally capable of adopting a completely open and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards (assuming no charge) then the position might be different. But neither of those things is true. The fact of an investigation, as a general rule, will of itself carry some stigma, no matter how often one says it should not.’

Mann J
[2018] EWHC 1837 (Ch), [2018] WLR(D) 457, [2018] 3 WLR 1715, [2018] EMLR 26, [2019] Ch 169, [2019] 2 All ER 105, [2018] HRLR 16
Bailii, WLRD
European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Cited – PNM v Times Newspapers Ltd and Others CA 1-Aug-2014
The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however . .
Cited – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the . .
Cited – ZXC v Bloomberg Lp QBD 23-Feb-2017
Investigation of claimant was properly disclosed
The claimant requested the removal of material naming him from the defendant’s website. Criminal investigations into a company with which he was associated were begun, but then concluded. In the interim, the article was published. The hearing had . .
Cited – Axel Springer Ag v Germany ECHR 7-Feb-2012
ECHR Grand Chamber – A German newspaper had published a story or stories about the arrest and conviction of a well-known TV actor, together with photographs, and various restraining-type orders had been issued by . .
Cited – Rocknroll v News Group Newspapers Ltd ChD 17-Jan-2013
The claimant sought an order to restrain the defendant from publishing embarrassing photographs taken at a private party. He had taken an assignment of the copyright from the photographer.
Held: The court considered whether the extent to which . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .

Cited by:
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .

Lists of cited by and citing cases may be incomplete.

Information, Media, Human Rights, Police

Updated: 10 November 2021; Ref: scu.619900

Ash and Another v McKennitt and others: CA 14 Dec 2006

The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an order restricting publication. The defendant appealed.
Held: The court had found the correct balance. In the absence of some demonstrated error, an appeal court should not interfere with the balance between Article 8 and article 10 rights found on the facts by a court who had heard the evidence.
The material was in principle private, and had protection despite the defendant’s claims to be publishing a shared experience. The fact that the judge had found some elements of the account to be untrue did not remove the protection. Articles 8 and 10 are now the very content of the domestic tort that the English court has to enforce. The court should ask two questions: whether the information is private in the sense that it is in principle protected by article 8 and, then, if so, whether in all the circumstances the interest of the owner of the information must yield to the right to freedom of expression conferred on the publisher by article 10.
Buxton LJ said: ‘where the complaint is the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If ‘no’ that is the end of the case.
If ‘yes’, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10? The latter inquiry is commonly referred to as the balancing exercise . .’

Buxton LJ, Latham and Longmore LJJ
[2006] EWCA Civ 1714, Times 20-Dec-2006, [2007] EMLR 113, [2006] EMLR 178, [2008] QB 73, [2007] 3 WLR 194
Bailii
European Convention on Human Rights 8 10
England and Wales
Citing:
Appeal from – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – Woodward v Hutchins CA 1977
An injunction was sought to restrain publication of confidential information about a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group’s press agent, the defendant’s role had been to see that the group received . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – A v B plc and Another (Flitcroft v MGN Ltd) CA 11-Mar-2002
A newspaper company appealed against an order preventing it naming a footballer who, they claimed, had been unfaithful to his wife.
Held: There remains a distinction between the right of privacy which attaches to sexual activities within and . .
Cited – Woodward v Hutchins CA 1977
An injunction was sought to restrain publication of confidential information about a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group’s press agent, the defendant’s role had been to see that the group received . .
Application for leave – Mckennitt and others v Ash and Another CA 25-May-2006
Application for permission to appeal. Granted. . .

Cited by:
Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – Murray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Wood v Commissioner of Police for the Metropolis Admn 22-May-2008
The claimant challenged the right of police officers to take his photograph as he attended an annual general meeting of Reed Elsevier Plc. He was a campaigner against the arms trade, but had always acted lawfully. The company noted the purchase of . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – The Author of A Blog v Times Newspapers Ltd QBD 16-Jun-2009
The claimant, the author of an internet blog (‘Night Jack’), sought an order to restrain the defendant from publishing his identity.
Held: To succeed, the claimant would have to show that there would be a legally enforceable right to maintain . .
Cited – RST v UVW QBD 11-Sep-2009
The applicant sought an interim and without notice injunction preventing the defendant from disclosing confidential information covered by an agreement between the parties.
Held: The order was made on a without notice application because there . .
Cited – AMM v HXW QBD 7-Oct-2010
amm_hxwQBD10
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – KJO v XIM QBD 7-Jul-2011
The claimant had, some 20 years previously, been convicted and sentenced for forgery of a will. The defendants, relatives, had ever since written to those with whom he had dealings to tell them of the conviction and facts. The claimant, unable to . .
Cited – Ferdinand v MGN Limited QBD 29-Sep-2011
fedinand_mgnQBD2011
The claimant, a famous footballer, complained that an article by the defendant relating an affair he had had, had infringed his right to privacy. The defendant relied on its right to freedom of expression. The claimant had at an earlier stage, and . .
Cited – McClaren v News Group Newspapers Ltd QBD 5-Sep-2012
The claimant had obtained an interim injunction to restrain the defendant publishing what he said was private information about a sexual encounter. He also sought an injunction under the 1997 Act.
Held: The claim succeeded: ‘there have been . .
Cited – O’Dwyer v ITV Plc QBD 30-Nov-2012
The defendant sought to have struck out the claim for defamation based on the defendant’s ‘Homes from Hell’ TV programme.
Held: The pleaded meanings failed, and an application to amend the particulars was refused. The action was struck out.
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Cited – Google Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
Cited – ZC v Royal Free London NHS Foundation Trust QBD 26-Jul-2019
Defamation/privacy claims against doctors failed
The claimant, seeking damages for alleged defamation, now asked for the case to be anonymised.
Held: The conditions for anonymisation were not met. The anonymity would be retained temporarily until any time for appeal had passed.
As to . .
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Human Rights, Media

Leading Case

Updated: 10 November 2021; Ref: scu.247348

TSE and ELP v News Group Newspapers Ltd: QBD 23 May 2011

The claimants had obtained an injunction preventing publication of details of their private lives and against being publicly named. The newspaper had not attempted to raise any public interest defence. Various publications had taken place to breach the injunctions, and the defendants now sought the discharge of the injunction.
Held: The order should not be discharged: ‘The court does not grant injunctions which would be futile. But the fact that these publications have occurred does not mean that the there should be no injunction in this case.’ The defendants approach had allowed them greater freedom than they might have had to publsh material related to the case: ‘The stance adopted by NGN in this case (neither resisting the injunction, nor consenting to it) had the consequence that The Sun’s article about the case under the heading ‘New ace gags Sun . . ‘ was accurate, whereas it would have been less easy to print such a headline if NGN had offered undertakings or otherwise avoided the need for the court to issue an injunction . . NGN does not explain why it adopts it. It is the court’s experience that in the past NGN has submitted to injunctions which it could not defend, or settled cases, as it did in JIH. If parties choose to exercise their right neither to oppose nor consent to injunctions, it has the further effect of taking up the time of the court that would be available to other litigants.’

Tugendhat J
[2011] EWHC 1308 (QB)
Bailii
European Convention on Human Rights 8
England and Wales
Citing:
Cited – Barrymore v News Group Newspapers Limited ChD 1997
The newspaper defendant sought to publish information about features of an intimate homosexual relationship. The plaintiff sought to prevent it.
Held: The injunction was granted.
Jacob J said: ‘The fact is that when people kiss and later . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Editions Plon (Societe) v France ECHR 18-May-2004
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 10 with regard to the interim injunction ; Violation of Art. 10 with regard to the permanent injunction ; Pecuniary damage – claim rejected ; . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Cited – CDE and Another v MGN Ltd and Another QBD 16-Dec-2010
In considering a request for injunction restraining publication of private matters, the court may consider also the effect of publication on a child of the claimant’s family. . .
Cited – Mosley v The United Kingdom ECHR 10-May-2011
The claimant complained of the reporting of a sexual encounter which he said was private.
Held: The reporting of ‘tawdry allegations about an individual’s private life’ does not attract the robust protection under Article 10 afforded to more . .
Cited – G and G v Wikimedia Foundation Inc QBD 2-Dec-2009
The claimants sought an order that the defendants, an internet company in Florida, should disclose the IP address of a registered user of the site with a view to identifying the user and pursuing an action against him or her.
Held: Tugendhat J . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 10 November 2021; Ref: scu.440090

Re Al M (Children): CA 28 Feb 2020

Publication of Children judgment – wide publicity

F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their publication. The President of the Family division had earlier found that F had arranged for the abduction of his daughters on earlier occasions, subsequently depriving them of their liberty. He had also continued a campaign of intimidation and humiliation against M even after she came to the UK.
Held: F’s appeal failed: ‘We do not consider that it would be right to impose a blanket prohibition preventing the accredited representatives of the media who attended the hearings before the President from reporting anything which was said or which occurred at the hearing: such an order would render pointless the practice of allowing such representatives to attend. It is therefore inevitable that there has to be some definition of the dividing line between what can and cannot be reported. We do not know whether there was any dispute at the time of the original formulation of paragraph 8 (b) of the President’s order. But it was not the subject of an appeal by any of the other parties, and in particular not by the Guardian, who might have been expected to object if he believed that there was a risk that the restrictions were too loosely expressed. We are not persuaded that they are. The phrase ‘directly related to’ the two judgments clearly means that publication, for example, of things said at the hearings relating to other aspects of the welfare of the children remains prohibited – for example, about their experiences, their health and education, or their views about publication, or the history of contact between them and their father. ‘

Lord Justice Underhill VP CA
[2020] EWCA Civ 283
Bailii
Administration of Justice Act 1960 12(1), European Convention on Human Rights
England and Wales
Citing:
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – Re J (A Child) (Reporting Restriction: Internet: Video) FD 5-Sep-2013
‘This case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – PNM v Times Newspapers Ltd and Others CA 1-Aug-2014
The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
Cited – Re W (Children) CA 25-Feb-2016
Appeal against order as to media arrangements for fact finding hearing.
McFarlane LJ said: ‘In the present case, Jackson J used the power available to him to move from the default position so as to allow a controlled degree of publicity. This . .
See Also – Re Al M (Factfinding) FD 11-Dec-2019
. .
See also – RE Al M (Assurances and Waiver) FD 17-Jan-2020
. .
Appeal from – Re Al M (Publication) FD 27-Jan-2020
. .

Lists of cited by and citing cases may be incomplete.

Children, Media, Human Rights

Updated: 10 November 2021; Ref: scu.648603

Ting Lan Hong and KLM (A Child) v XYZ and Others: QBD 18 Nov 2011

The claimants, the daughter and former partner of a well known actor, sought an injunction under the 1997 Act against unknown persons to prevent them taking and publishing images taken in public places. The actor had taken a stand against media intrusion, and the claimant had received anonymous instructions to tell him to cease. This was followed by increased activities of photographers following and distressing her. A complaint to the Press Complaints Commission had proved largely ineffective.
Held: It was necessary and appropriate to grant the injunction.

Tugendhat J
[2011] EWHC 2995 (QB)
Bailii
Protection from Harassment Act 1997 1
England and Wales

Torts – Other, Media

Updated: 10 November 2021; Ref: scu.448392

Micro Fusion 2004-1 Llp v Revenue and Customs: SCIT 30 Jun 2008

Income Tax – Film Production partnership

SCIT Income tax – limited liability partnership – whether partnership engaged in trade of exploitation of films – yes – whether film constituted trading stock so as to deny relief under s 42 F(No 2)A 1992 or s 48 F(No 2)A 1997 – no – date of commencement of partnership’s business and basis period applicable – s 40B(3)(b)(ii) F(No 2)A 1992 – date film completed – s 43(3) F(No 2)A 1992 – whether arrangements for exploitation of film a deferred income agreement in respect of a film which is within s 60 FA 2005 – no – whether film consultancy fees incurred deductible – yes.

[2008] UKSPC SPC00695
Bailii
England and Wales

Income Tax, Media

Updated: 09 November 2021; Ref: scu.273105

British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others: CA 6 Jun 2008

The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also involved in proceedings before the Competition Appeal Tribunal and with Ofcom, and were concerned that disclosure should not extend to lawyers involved in the other proceedings. Held ‘there is no justification for preventing the three lawyers who Virgin have instructed to represent them both in the High Court Proceedings and the CAT Proceedings from seeing the sensitive documents that have been disclosed in the former proceedings. ‘ In any event, given the public interest nature of the other proceedings, full disclosure across all proceedings might in any event be appropriate.

[2008] EWCA Civ 612, Times 11-Jun-2008
Bailii
England and Wales
Citing:
Cited – Riddick v Thames Board Mills Ltd CA 1977
An action was brought by a disgruntled former employee. He had been summarily dismissed and had been escorted from the premises of his employers. In the first action he claimed damages for wrongful arrest and false imprisonment based on the latter . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Carter Holt Forests Ltd v Sunnex Logging Ltd 2001
(Court of Appeal of New Zealand) Lawyers had acted for a claimant in mediation proceedings with a defendant and had signed a comprehensive confidentiality agreement. The mediation resulted in a settlement. They were then instructed by another . .
Cited – Crest Homes Plc v Marks HL 1987
The plaintiffs brought two successive actions against the same defendants (Mr Marks and Wiseoak Homes Ltd) for breach of copyright. They obtained Anton Piller orders in both actions. The documents which the plaintiffs obtained from the defendants in . .
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Merck and Co v Interpharm 1992
(Federal Court of Canada) Giles ASP said: ‘Solicitor and client privilege is one of the basic principles which permit the operation of our justice system and public confidence in it. In order to support the public interest in the inviolability of . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice, Legal Professions

Updated: 09 November 2021; Ref: scu.268765

XW v XH: CA 2 Apr 2019

Anonymity in Family matters at CA isexceptional

In ancillary relief proceedings at first instance, the court had provided for anonymity of various parties. On appeal, W, with the consent of H now sought a further freestanding order to similar effect.
Held: The application was allowed. Though at the Court of Appeal the starting point was that they were public. Such an order might be made on exceptional grounds, balancing the parties article 8 with article 10 rights of others.

Underhill, King, Moylan LJJ
[2019] EWCA Civ 549, [2019] WLR(D) 196
Bailii, WLRD
Human Rights Act 1998, Civil Procedure Rules 39.2
England and Wales

Family, Human Rights, Media

Updated: 09 November 2021; Ref: scu.635793

Attorney-General v Guardian Newspapers Ltd: QBD 1988

A Mr Peter Wright had written a book about his service in MI5. The Crown sought to restrain publication of the book by newspapers and also, as against The Sunday Times, an account of profits.
Held: As to this latter Scott J, said: ‘I had supposed that the claim against ‘The Sunday Times’ for an account would be based on the proposition that in equity the Crown should be treated as the owner of the copyright. Prima facie, this approach would seem to have some merit. If Mr. Wright in writing the book was acting in breach of a continuing duty of confidence and fidelity that he owed to the Crown, there would, in my view, be a strong argument for regarding the product of the breach of duty as belonging in equity to the Crown. If that were so, and on the footing that ‘The Sunday Times’ could not claim to be a bona fide purchaser without notice of the Crown’s equity, it would follow that ‘The Sunday Times’ would be accountable to the Crown for any profit it made in serialising Spycatcher. It would also follow that the Crown would, in this jurisdiction at least, be entitled to prevent further publication of the book by anyone who could be shown to be on notice of the Crown’s equity. The Crown would be entitled to do so on straightforward proprietary grounds. The equitable owner of copyright in a book can choose to suppress the book and forego any profit therefrom if he chooses’.

Scott J
[1988] 2 WLR 805
England and Wales
Citing:
See Also – Attorney General v Guardian Newspapers Ltd (No.1) HL 13-Aug-1987
A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of . .

Cited by:
Appeal from – Attorney-General v Guardian Newspapers Ltd CA 2-Jan-1988
A former employee of the Secret Service had written a book (‘Spycatcher’). The AG sought several remedies including damages against a newspaper for serialising it. Dillon LJ said: ‘It has seemed to me throughout the hearing of this appeal that there . .
At First Instance – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Twentieth Century Fox Film Corp and Others v Harris and Others ChD 5-Feb-2013
The court was asked whether a copyright owner has a proprietary claim to money derived from infringement of the copyright.
Held: He did not. No such argument could be shown to have suceeded before. . .

Lists of cited by and citing cases may be incomplete.

Media, Contempt of Court, Damages, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.473039

British Telecommunications Plc v Telefonica O2 UK Ltd: SC 9 Jul 2014

The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Held: The appeal was allowed unanimously and the decision of the CAT re-establised. BT was free to set the tarriff as they had first done.
Where the terms of the contract permit variation, Ofcom should give effect to that variation unless it would be inconsistent with its regulatory objectives, including under the welfare test.
Lord Sumption said: ‘As a general rule, the scope of a contractual discretion will depend on the nature of the discretion and the construction of the language conferring it. But it is well established that in the absence of very clear language to the contrary, a contractual discretion must be exercised in good faith and not arbitrarily or capriciously [citing Abu Dhabi, Gan, and Paragon, above]. This will normally mean that it must be exercised consistently with its contractual purpose [citing Ludgate Insurance, above and Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459 (Lord Steyn), 461 (Lord Cooke of Thorndon)].’
. . And ‘ it is not consistent with either the contract or the scheme of the Directives for Ofcom to reject charges simply because they might have adverse consequences for consumers, in the absence of any reason to think that they would. It is not consistent with the contract because it prevents BT from exercising its discretion to alter its charges in circumstances where there is no reason to suppose, and Ofcom has not found, that the limits of that discretion have been exceeded. It is inconsistent with the scheme of the Directives because it involves applying an extreme form of the precautionary principle to a dynamic and competitive market, in a manner which is at odds with the Directives’ market-oriented and essentially permissive approach. Logically, given the inherent difficulty of forecasting the extent of any direct or indirect effects, and the practical impossibility of forecasting the mobile tariff package effect, it would rule out any increases in termination charges other than those justified by reference to underlying costs. ‘

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Hodge
UKSC 2012/0204, [2014] UKSC 42, [2014] Bus LR 765
SC, SC Summary, SC Video, Bailii, Bailii Summary
Directive 2002/21/EC, Directive 2002/19/EC, Communications Act 2003 190
England and Wales
Citing:
At CAT – Telefonica O2 Uk Ltd v Office of Communications and Another CAT 7-Oct-2010
OFCOM had disallowed a new termination tarriff imposed by BT on mobile network operators.
Held: The appeal succeeded. BT had the right to vary its charges subject to compiance with the appropriate European objectives and directives. Since the . .
Cited – Commission v Poland (Industrial Policy) ECJ 13-Nov-2008
ECJ Failure of a Member State to fulfil obligations Electronic communications Networks and services Directive 2002/19/EC (Access Directive) Article 4(1) and the first subparagraph of Article 5(1) Incorrect . .
Cited – Teliasonera Finland ECJ 12-Nov-2009
ECJ Judgment – Industrial policy – Telecommunications sector Electronic communications Directive 2002/19/EC Article 4(1) Networks and services Interconnexion agreements between telecommunications undertakings . .
Cited – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – Ludgate Insurance Company Limited v Citibank NA CA 26-Jan-1998
Brooke LJ said that the circumstances in which the court will interfere with the exercise by a party to a contract of a contractual discretion given to it by another party are extremely limited. The courts will not intervene where the discretion is . .
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – T-Mobile (UK) Ltd v British Telecommunications Plc CAT 20-May-2008
The dispute resolution functions of Ofcom are regulatory . .
Cited – Teliasonera Finland ECJ 12-Nov-2009
ECJ Judgment – Industrial policy – Telecommunications sector Electronic communications Directive 2002/19/EC Article 4(1) Networks and services Interconnexion agreements between telecommunications undertakings . .
Appeal from – Telefonica O2 UK Ltd and Others v British Telecommunications Plc and Another CA 25-Jul-2012
BT had introduced a new tarriff for termination charges in respect of calls made from mobile phones to 08 numbers.
Held: The Court overruled the CAT and restored the decision of Ofcom. The CAT had been wrong to attach weight to their view that . .

Cited by:
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .

Lists of cited by and citing cases may be incomplete.

Utilities, Media, Contract, Commercial, European

Updated: 09 November 2021; Ref: scu.533879

Kennedy v Charity Commission: CA 20 Mar 2012

The claimant sought disclosure of an investigation conducted by the respondent. The respondent replied that the material was exempt within section 32(2). The court had found that that exemption continued permanently even after the inquiry was complete, but now turned to the claimant’s assertion that this violated his article 10 rights, and that section 32(2) should be read down accordingly. The Commission now appealed against a decision in the claimant’s favour by the Information Tribunal.
Held: The case of Sugar (SC) was binding, and ‘Article 10(1) was simply never engaged by the refusal of the Charity Commission to supply the information and documentation requested by Mr Kennedy.’

Ward, Therton LJJ, Sir Robin Jacob
[2012] EWCA Civ 317
Bailii
Freedom of Information Act 2000, European Convention on Human Rights 10, Human Rights Act 1998 83
England and Wales
Citing:
Appeal from – Kennedy v Information Commissioner Admn 19-Jan-2010
The claimant journalist had made a freedom of information request to the Charity Commission as to its investigations of a charity under section 8 of the 1993 Act. The Commission claimed absolute exemption under section 32(2). He now appealed against . .
See Also – Kennedy v The Information Commissioner and Another CA 12-May-2011
The claimant, a journalist, sought further information from the Charity Commission after the release of three investigations into the ‘Mariam Appeal’ and questions about the source and use of its funds. The Commission replied that it was exempt . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Cited – Kenedi v Hungary ECHR 26-May-2009
(Second Chamber) The applicant historian specialised in the analysis and recording of the secret services of dictatorships, comparative studies of the political police forces of totalitarian regimes and the functioning of Soviet-type States. The . .
Cited – Kenedi v Hungary ECHR 26-May-2009
(Second Chamber) The applicant historian specialised in the analysis and recording of the secret services of dictatorships, comparative studies of the political police forces of totalitarian regimes and the functioning of Soviet-type States. The . .
Cited – Tarsasag A Szabadsagjogokert v Hungary ECHR 14-Apr-2009
The court upheld a complaint by the Hungarian Civil Liberties Union that, contrary to article 10, it had been refused access to details of a complaint in connection with drugs policy on the basis that details of the complaint could not be released, . .
Cited – Guerra and Others v Italy ECHR 19-Feb-1998
(Grand Chamber) The applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as ‘high risk’ in criteria set out by Presidential Decree.
Held: Failure by a government to release to an . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Binding – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .

Lists of cited by and citing cases may be incomplete.

Information, Human Rights, Media

Leading Case

Updated: 09 November 2021; Ref: scu.452201

Her Majesty’s Advocate v Mola: HCJ 7 Feb 2007

The court made a section 11 order to prevent the publication of the identity of a woman who was due to be the principal witness at the trial of a person charged with having recklessly infected her with HIV. There was evidence before the court that the woman’s mental health would be endangered if her identity became publicly known. There was also a risk that the woman would otherwise be unable to give evidence, in which event the prosecution could not proceed.

Lord Hodge
2007 SLT 462, 2007 SCCR 124, [2007] ScotHC HCJ – 02, [2007] HCJ 2, 2007 GWD 8-139
Bailii, ScotC
Contempt of Court Act 1981
Scotland
Cited by:
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media

Leading Case

Updated: 09 November 2021; Ref: scu.249520

Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v The Independent Reviewer of Advertising Standards Authority Adjudications: Admn 10 Nov 2014

The two supermarkets had price matching comparison schemes. Sainburys complained that the Independent Reviewer’s decsion that the ASA’s response to is complant as to the Tesco scheme was itself flawed. They had complained that the selections for comparison made by Tesco were of a lower quality. The independent reviewer had acknowledged the different elements of value in the Sainsburys products, but had used for the applicable standards, that marketing communications ‘must compare products meeting the same need or intended for the same purpose’ ignoring provenance and other ethical issues.
Held: The request fro review failed. Upon a proper reading of the ASA adjudication and in the light of the earlier drafts, it could not be said to be substantially flawed.
Accordingly the conclusion of the IR that it was not substantially flawed remains lawful. There can be no rule that products which differ in terms of ethical credentials or provenance cannot be compared: the question is one of fact and degree to be considered in relation to each particular product comparison.
The question whether the ‘determining factor’ test was a lawful one for Tesco to have applied, in deciding whether products were ‘sufficiently interchangeable’ is a hard edged question of law and not a matter to be determined on a ‘Wednesbury reasonable’ basis.

Wilkie J
[2014] EWHC 3680 (Admin)
Bailii
EU Directive 2006/114/EC 4
England and Wales
Citing:
Cited – Pippig Augenoptik GmbH and Co. KG v Hartlauer Handelsgesellschaft mbH ECJ 8-Apr-2003
ECJ Judgment – Approximation of laws – Directives 84/450/EEC and 97/55/EC – Misleading advertising – Conditions for comparative advertising to be lawful . .
Cited – De Landtsheer Emmanuel v Comite Interprofessionnel du Vin de Champagne ECJ 19-Apr-2007
ECJ Approximation of Laws – Directives 84/450/EEC and 97/55/EC – Comparative advertising Identifying a competitor or the goods or services offered by a competitor Goods or services satisfying the same needs or . .
Cited – Lidl SNC v Vierzon Distribution SA ECJ 18-Nov-2010
ECJ Directives 84/450/EEC and 97/55/EC – Conditions under which a comparative advertising is permitted – Price comparison based on selection of food products marketed by two competing retail store chains – Goods . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Regina (on the Application of P Richards and G Richards) v Pembrokeshire County Council CA 29-Jul-2004
Challenge to parking regulations.
Held: The appeal succeeded. In assessing the decision it was open to the court to consider and elucidate the reasoning behind the option of the parking scheme. Assuming that the 1975 Order was valid, the . .

Lists of cited by and citing cases may be incomplete.

Media

Updated: 09 November 2021; Ref: scu.538539

Regina v Croydon Crown Court ex parte Trinity Mirror Plc; In re Trinity Mirror plc: CACD 1 Feb 2008

An order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children, although they had been neither witnesses in the proceedings against the defendant nor victims of his offence.
Held: The Crown Court had no jurisdiction to make the order, but the court went on to make strong general observations about the importance of open justice. The ability of the media to report criminal trials embodied open justice; an important part of the administration of criminal justice was that the identity of those convicted and sentenced for criminal offences should not be concealed. The shame brought to innocent family members, and the perhaps considerable difficulties which they would face, were the consequences of the commission of the offence, and could not warrant anonymity for a defendant save in wholly exceptional circumstances.
Sir Igor Judge P QBD said: ‘This appeal succeeds on the jurisdiction argument. We must however add that we respectfully disagree with the judge’s further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under Article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill’s memorable epithet, is the defendant’s ‘birthright’. From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.
It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. Among the consequences, the parent will disappear from home when he or she is sentenced to imprisonment, and indeed, depending on the crime but as happened in this case, there is always a possibility of the breakdown of the relationship between their parents. However we accept the validity of the simple but telling proposition put by the court reporter to Judge McKinnon on 2 April 2007, that there is nothing in this case to distinguish the plight of the defendant’s children from that of a massive group of children of persons convicted of offences relating to child pornography. If the court were to uphold this ruling so as to protect the rights of the defendant’s children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.’

Sir Igor Judge P QBD, Sir Mark Potter P FD, Wilson LJ, Hallett LJ, David Clarke J
[2008] EWCA Crim 50, [2008] 3 WLR 51, [2008] QB 770, [2009] EMLR 3, [2008] Crim LR 554, [2008] 2 All ER 1159, [2008] 2 Cr App Rep 1
Bailii
Criminal Justice Act 1988 159, European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions PC 8-Jun-2004
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – ex parte HTV Cymru (Wales) Ltd 2002
The court granted an injunction to restrain the media from interviewing witnesses during the course of a criminal trial, and until all the evidence was complete. One witness would have to be recalled, and others might be recalled, and accordingly . .

Cited by:
Cited – Times Newspapers Ltd v Secretary of State for the Home Department and AY Admn 17-Oct-2008
The newspaper applied to challenge the protection of the identity of the defendant subject to a control order under the 2005 Act. It said that there was no basis for the making of the order without first considering the Human Rights need for open . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

Media, Criminal Practice, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.264117

Haddock v MGN Ltd and others: ChNI 17 Oct 2008

Application for injunction to prevent the defendant newspapers and television companies from publishing the plaintiff’s picture in the course of a forthcoming civil action. He was coming toward the end of a long term of imprisonment. Whilst on pre-release bail, there had been attempts to murder him because he had acted as a police informant.
Held: Limited arrangements would be made to allow the claimant’s identity to be hidden. It was not proper to conclude that people who had no criminal convictions should be seen as a threat to the claimant.

Deeny J
[2008] NICh 14
Bailii
Northern Ireland
Citing:
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .

Lists of cited by and citing cases may be incomplete.

Media

Updated: 09 November 2021; Ref: scu.277034

ITN News and Others v Regina: CACD 21 May 2013

Anonymity benefits maintained

The news services challenged an anonymity order made under section 46 of the 1999 Act in the course of crown court proceedings to protect an adult witness.
Held: The CACD has jurisdiction to hear such an appeal by virtue of section 159 of the 1988 Act. Applying such jurisdiction, the court confirmed the order, and rejected the appeal. The propriety of the order was not undermined by the fact that her name had been circulated on the internet. In the nature of the process, the identify of a witness is known, but the section extended beyond repetition of the name to include, for example photographs and films identifying her.

Igor Judge LCJ, Royce, Globe JJ
[2013] EWCA Crim 773, [2013] WLR(D) 187, [2014] Crim LR 375, [2014] 1 WLR 199, [2013] 2 Cr App R 22, [2013] EMLR 22
Bailii, WLRD
Youth Justice and Criminal Evidence Act 1999, Criminal Justice Act 1988
England and Wales
Cited by:
Cited – Pembrokeshire Herald, Re (Leave To Appeal) CACD 27-Jul-2021
A teacher had been tried and acquitted of sexual assaults on girls at his school. The court made an order restricting reporting to disallow identification of anyone involved. The paper now appealed from refusal after the trial to lift the . .
Cited – Pembrokeshire Herald, Re (Leave To Appeal) CACD 27-Jul-2021
A teacher had been tried and acquitted of sexual assaults on girls at his school. The court made an order restricting reporting to disallow identification of anyone involved. The paper now appealed from refusal after the trial to lift the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media

Leading Case

Updated: 09 November 2021; Ref: scu.509987

McClaren v News Group Newspapers Ltd: QBD 5 Sep 2012

The claimant had obtained an interim injunction to restrain the defendant publishing what he said was private information about a sexual encounter. He also sought an injunction under the 1997 Act.
Held: The claim succeeded: ‘there have been threats by the defendant to disclose private information concerning the claimants and harassment of them. As to the balancing exercise to be carried out as between the claimants’ Article 8 rights, the defendant’s Article 10 rights and the issue of the public domain as identified in Section 12, I find as follows: the information is private; no good grounds have been advanced which could justify disclosure pursuant to Article 10. The fact that the second claimant may have spoken to friends is insufficient to bring the information into the public domain as identified in Section 12. Accordingly, I find that the claimants have a strong claim in relation to the threatened misuse of private information, such rights as exist pursuant to Article 10 are weak and substantially outweighed by the privacy rights of the claimants.’ Given the second defendant’s continued denials of the threatened blackmail, a permanent injunction was appropriate, though only against the first defendant.

Lindblom J
[2012] EWHC 2466 (QB)
Bailii
European Convention on Human Rights 8 10, Human Rights Act 1998 12, Protection from Harassment Act 1997 3(1)
England and Wales
Citing:
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Ntuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
Cited – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – Ferdinand v MGN Limited QBD 29-Sep-2011
fedinand_mgnQBD2011
The claimant, a famous footballer, complained that an article by the defendant relating an affair he had had, had infringed his right to privacy. The defendant relied on its right to freedom of expression. The claimant had at an earlier stage, and . .
Cited – SKA and Another v CRH and Others QBD 31-Jul-2012
The claimant sought to restrain the publication of private information by the defendant against the alleged threat by the defendant to publish unless a substantial sum of money was paid. . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .

Lists of cited by and citing cases may be incomplete.

Media, Torts – Other, Human Rights

Updated: 09 November 2021; Ref: scu.463854

The Author of A Blog v Times Newspapers Ltd: QBD 16 Jun 2009

The claimant, the author of an internet blog (‘Night Jack’), sought an order to restrain the defendant from publishing his identity.
Held: To succeed, the claimant would have to show that there would be a legally enforceable right to maintain anonymity, in the absence of a genuine breach of confidence, by suppressing the fruits of detective work. He had failed to do this.
Eady J said: ‘the court nowadays adopts a two stage approach, when addressing claims based upon the publication of allegedly private information in contravention of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. One must ask, first, whether the claimant had a reasonable expectation of privacy in relation to the particular information in question and, if so, then move to the second stage of enquiring whether there is some countervailing public interest such as to justify overriding that prima facie right.’ The action of blogging is essentially a public one. One reason for the claimant seeking this protection was also to prevent police disciplinary proceedings. That argument was at best unattractive. The defendant’s own human rights were engaged. The claimant’s identity did not have the necessary ‘quality of confidence’. It was unlikely that the claimant would succeed at trial, and the injunction was not sustained.

Eady J
[2009] EWHC 1358 (QB), [2009] EMLR 22
Bailii
Human Rights Act 1998 812
England and Wales
Citing:
Cited – Printers and Finishers Limited v Holloway 1965
The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not . .
Cited – Napier and Another v Pressdram Ltd CA 19-May-2009
The claimant solicitors appealed against the refusal to grant them an injunction to prevent the publication of the outcome of a complaint against them to the Law society, and of the Ombudsman’s report. They said that the material remained . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Mahmood v Galloway and Another QBD 5-Apr-2006
The claimant was an investigative journalist used to working under cover. He sought to restrain the defendants from publicising his image on the internet on their web-site. The defendants sought to have lifted the without notice injunction granted . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Coco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Intellectual Property

Updated: 09 November 2021; Ref: scu.346927

VGT Verein Gegen Tierfabriken v Switzerland: ECHR 28 Jun 2001

The applicant association dedicated itself to the protection of animals, from animal experiments and industrial animal production. In reaction to television commercials broadcast by the meat industry it prepared a TV advertisement contrasting the behaviour of pigs in their natural environment with their treatment in the course of industrial production. The theme of the advert was ‘eat less meat, for the sake of your health, the animals, and the environment’ and the content of the advert was not in any way objectionable. The Commercial Television Company, responsible for handling commercial advertising on behalf of the Swiss Radio and Television Company, declined to broadcast the advert because of its clear political character.
Held: The association’s complaint was not without merit. The respondent argued that no one had a right to television time and that article 10 was not engaged, but the court held that it was. Prima facie, anyone was entitled to whatever television time for commercials he could afford to buy. A refusal to allow anyone a commercial on the grounds of the content of his broadcast was a discrimination requiring justification. There was no sufficient justification for discriminating against political advertising ‘in the particular circumstances of the applicant association’s case.’

24699/94, (2002) 34 EHRR 159, [2001] ECHR 412, (2002) 34 EHRR 4
Bailii
European Convention on Human Rights 10
Human Rights
Cited by:
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Distinguished – Murphy v Ireland ECHR 10-Jul-2003
A pastor attached to an evangelical protestant centre based in Dublin wished to broadcast an advertisement during the week before Easter 1995, but the broadcast was stopped by the Independent Radio and Television Commission because section 10(3) of . .
Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – Core Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 09 November 2021; Ref: scu.164845

Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport: HL 12 Mar 2008

The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of political expression.
Held: Though the regulation was an interference in the claimant’s right of free expression, it was prescribed by law. The issue was as to whether it was necessary in a democratic society. The restraint was necessary and proportionate and lawful. The appeal was dismissed.
Baroness Hale said: ‘The Human Rights Act 1998 gives effect to the Convention rights in our domestic law. To that extent they are domestic rights for which domestic remedies are prescribed. But the rights are those defined in the Convention, the correct interpretation of which lies ultimately with Strasbourg.’
Lord Bingham said that the importance of freedom of expression is particularly in the communication of opinions and argument about the policies which all levels of government should pursue, and ‘[L]egislation cannot be framed so as to address particular cases. It must lay down general rules . . A general rule means that a line, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.’

Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell, Lord Neuberger of Abbotsbury
[2008] UKHL 15, [2008] 2 WLR 781, [2008] UKHRR 477, [2008] EMLR 8, 24 BHRC 217, [2008] 1 AC 1312, [2008] HRLR 25, [2008] 3 All ER 193
Bailii, HL
Communications Act 2003 319 321, Human Rights Act 1998
England and Wales
Citing:
Cited – VGT Verein Gegen Tierfabriken v Switzerland ECHR 28-Jun-2001
The applicant association dedicated itself to the protection of animals, from animal experiments and industrial animal production. In reaction to television commercials broadcast by the meat industry it prepared a TV advertisement contrasting the . .
Appeal from – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture Media and Sport Admn 4-Dec-2006
The court was asked ‘whether a domestic statutory prohibition of political advertising on television and radio violated the human right of would-be political advertisers to freedom of expression through those media. ‘
Held: A declaration of . .
Cited – Murphy v Ireland ECHR 10-Jul-2003
A pastor attached to an evangelical protestant centre based in Dublin wished to broadcast an advertisement during the week before Easter 1995, but the broadcast was stopped by the Independent Radio and Television Commission because section 10(3) of . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Bowman v The United Kingdom ECHR 19-Feb-1998
UK Electoral law went too far to restrict freedom of speech when limiting the amounts spent by third parties discussing candidates. The legislative provision in question was held to operate, for all practical purposes, as a total barrier to Mrs . .
Cited – Jersild v Denmark ECHR 20-Oct-1994
A journalist was wrongly convicted himself of spreading racial hatred by quoting racists in his material.
Held: Freedom of expression is one of the essential foundations of a democratic society. The safeguards to be afforded to the press are . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – Stambuk v Germany ECHR 17-Oct-2002
Hudoc Judgment (Merits and just satisfaction) . .
Cited – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .

Cited by:
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Gaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
Cited – T, Regina (on The Application of) v Greater Manchester Police and Another Admn 9-Feb-2012
The claimant challenged the terms of an enhanced Criminal Records Certificate issued by the defendant. He had been warned in 2002 for suspicion of theft of two cycles. The record had been stepped down in 2009, but then re-instated. He wished to . .
At HL – Animal Defenders International v United Kingdom ECHR 27-Jan-2011
Statement of facts . .
At HL – Animal Defenders International v The United Kingdom ECHR 22-Apr-2013
ECHR (Grand Chamber) Article 10-1
Freedom of expression
Refusal of permission for non-governmental organisation to place television advert owing to statutory prohibition of political advertising: no . .
Cited – T, Regina (on The Application of) v Chief Constable of Greater Manchester and Others CA 29-Jan-2013
Three claimants appealed against refusal of declarations that the response of the police to requests for Criminal Records Bureau enhanced checks, were a disproportionate interference in their right to private and family life, and in particular that . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 09 November 2021; Ref: scu.266163

A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service: SC 9 Dec 2009

B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it was vitiated by bias, and in breach of his right to freedom of exptession. The respondent argued that under the 2000 Act, he could only seek a remedy before the Investigatory Powers Tribunal. The claimant said that the Human Rights act required any claim under it to be brought in the High Court.
Held: Any challenge must be brought exclusively before the tribunal. Parliament had not intended to allow such questions to be raised other than in the tribunal. A court hearing such issues would necessarily receive matters relating to the security of the service, and the tribunal had counterbalancing powers intended to achieve fairness. In this case A had by now already received sufficient information about the objections to allow him to comply with his obligations when writing such a book.
A powerful pointer against the proposition that Parliament had intended to leave it to a complainant to choose whether to bring proceedings in court or before the IPT was: ‘the self-evident need to safeguard the secrecy and security of sensitive intelligence material, not least with regard to the intelligence services. It is to this end, and to protect the ‘neither confirm nor deny’ policy . . .that the Rules are as restrictive as they are regarding the closed nature of the IPT’s hearings and the limited disclosure of information to the complainant (both before and after the IPT’s determination)’.

Lord Phillips, President, Lord Hope, Deputy President, Lord Brown, Lord Mance, Lord Clarke
Times 11-Dec-2009, [2009] UKSC 12, UKSC 2009/0020, [2010] 2 WLR 1, [2010] UKHRR 568, [2010] 2 AC 1, [2010] HRLR 11, [2010] 1 All ER 1149
Bailii, SC, SC Summ, Bailii Summary
Regulation of Investigatory Powers Act 2000 65(2)(a), Official Secrets Act 1989, European Convention on Human Rights 10, Human Rights Act 1998 7(1)(a), Investigatory Powers Tribunal Rules 2000 (SI 2000/2665)
England and Wales
Citing:
At First Instance – A v B; Regina (A) v Director of Establishments of the Security Service Admn 4-Jul-2008
The claimant a retired senior officer in the intelligence services wished to publish a book of his memoirs. He was refused permission for his duty of confidentiality, and said that this infringed his human rights. The Director denied his right to . .
Appeal from – A v B CA 18-Feb-2009
The claimant a former senior member of the Security Services sought to challenge a decision refusing permission to pulish his memoirs in full. The respondent argues that the Investigatory Powers Tribunal had exclusive jurisdiction. The respondent . .
Cited – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – IN THE MATTER OF APPLICATIONS Nos. IPT/01/62 and IPT/01/77 IPT 23-Jan-2003
Rule 9(6) was ultra vires section 69 of RIPA as being incompatible with article 6 of the Convention but that ‘in all other respects the Rules are valid and binding on the Tribunal and are compatible with articles 6, 8 and 10 of the Convention’. . .
Cited – Hanlon v The Law Society HL 1981
The House considered the impact of the statutory charge under the 1974 Act in matrimonial proceedings.
Held: The costs in respect of which the statutory charge bit were the costs of the whole divorce proceedings and not just the financial . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Farley v Child Support Agency and Another; Farley v Secretary of State for Work and Pensions (No. 2) HL 28-Jun-2006
Magistrates were wrong to think they had a discretion to look at the validity of a liability assessment under child support legislation. The Act gave the payer alternative avenues of appeal, and therefore the Act should be read as it stated and the . .
Cited – The Sunday Times v The United Kingdom (No 2) ECHR 26-Nov-1991
Any prior restraint on freedom of expression calls for the most careful scrutiny. ‘Freedom of expression constitutes one of the essential foundations of a democratic society subject to paragraph (2) of Article 10. It is applicable not only to . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – IN THE MATTER OF APPLICATIONS Nos. IPT/01/62 and IPT/01/77 IPT 23-Jan-2003
Rule 9(6) was ultra vires section 69 of RIPA as being incompatible with article 6 of the Convention but that ‘in all other respects the Rules are valid and binding on the Tribunal and are compatible with articles 6, 8 and 10 of the Convention’. . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Esbester v United Kingdom ECHR 2-Apr-1993
(Commission) The claimant had been refused employment within the Central Office of Information. He had been accepted subject to clearance, but that failed. He objected that he had been given no opportunity to object to the material oin which his . .
Cited – Dimond v Lovell CA 29-Apr-1999
Mrs Dimond had a car accident as a result of Mr Lovell’s negligence and sought to recover from him the cost of the hire of a replacement vehicle while her car was being repaired. Under clause 5 of the hire agreement the hire company had the conduct . .
Cited – Depositors’ Protection Board v Dalia HL 20-May-1994
The House was asked as to the meaning of the word ‘depositor’. Regulations were prayed in aid which were made four years after the date of the enactment.
Held: The protection given by the Depositor Protection Scheme does not extend to . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .

Cited by:
Cited – AJA and Others v Commissioner of Police for The Metropolis and Others CA 5-Nov-2013
The Court was asked whether the Investigatory Powers Tribunal had the power to investigate whether police officers acrting as undercover agents, and having sexual relations with those they were themselves investigating had infringed the human rights . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 09 November 2021; Ref: scu.383785

Ashworth Security Hospital v MGN Limited: HL 27 Jun 2002

Order for Journalist to Disclose Sources

The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have originated in the hospital.
Held: An order requiring disclosure of the source of information does not depend on the commission of a tort, or other wrong by the person against whom the order is sought. It is necessary and sufficient that that person should be shown to have participated in the wrongdoing on which the application is based. There need not be an intention to begin proceedings against the source for the exemption under section 10 to apply. Protection of journalistic sources is one of the basic conditions for press freedom, and should not be set aside without an overriding requirement in the public interest. The approach is the same for section 10 of the Act and article 10 of the Convention.

Lord Slynn of Hadley, Lord Browne-Wilkinson Lord Woolf Lord Nolan Lord Hobhouse of Wood-Borough
Times 01-Jul-2002, Gazette 01-Aug-2002, [2002] UKHL 29, [2002] 1 WLR 2033, 12 BHRC 443, [2003] FSR 17, [2002] CPLR 712, [2002] UKHRR 1263, [2002] EMLR 36, (2002) 67 BMLR 175, [2002] HRLR 41, [2002] 4 All ER 193
House of Lords, Bailii
Contempt of Court Act 1981 10, European Convention on Human Rights 10
England and Wales
Citing:
Applied – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Appeal from – Ashworth Security Hospital v MGN Ltd CA 18-Dec-2000
The court can order the identity of a wrongdoer to be revealed where the person against whom the order was sought had become involved in his tortious acts. This might apply even where the acts were unlawful, but fell short of being tortious. There . .
Cited – Regina (Brady) v Ashworth Hospital Authority 2000
Force feeding of the applicant, a convicted murderer and detained mental patient, was lawful since it was reasonably administered as part of the medical treatment given for the mental disorder from which Ian Brady was suffering. By virtue of section . .
Cited – John and Others v Express Newspapers and Others CA 26-Apr-2000
Where a party sought from a newspaper disclosure of the source of a journalists story, and an order for contempt in default he was under a duty first to attempt to find that source through other means. A failure even to try can be persuasive to the . .
Cited – Camelot Group plc v Centaur Communications Limited CA 23-Oct-1997
An order for a journalist to disclose the name of an employee disclosing his employer’s information, may be made where there was a need to identify a disloyal employee. Here drafts of accounts had been released to embarrass the company. The . .
Cited – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
Cited – Goodwin v The United Kingdom ECHR 27-Mar-1996
An order for a journalist to reveal his source was a breach of his right of free expression: ‘The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .
Cited – British Steel Corporation v Granada Television Ltd CA 7-May-1980
Lord Denning MR said that the Norwich Pharmacal case opened ‘a new chapter in our law’ and ‘Mr Irvine suggested this was limited to cases where the injured person desired to sue the wrongdoer. I see no reason why it should be so limited. The same . .
Cited – Marks v Beyfus 1890
The plaintiff claimed damages for malicious prosecution. He called the Director of Public Prosecutions as a witness, who refused to identify the name of the person who had given him the information on which he had acted against the plaintiff.
Cited – Bergens Tidende And Others v Norway ECHR 2-May-2000
A newspaper complained that its rights under Article 10 of the Convention had been infringed by a libel action which a cosmetic surgeon had successfully brought against it in respect of defamatory articles it had published saying he was incompetent. . .
Cited – P v T Ltd ChD 7-May-1997
A order for the disclosure of documents can be proper if it is the only method of founding proceedings against a third party, even though there might be no sufficient proof without the documents. An order was made because it was necessary in the . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
Cited – Rice v Connolly 1966
No Legal Duty to Assist a Constable
At common law there is no legal duty to provide the police with information or otherwise to assist them with their inquiries. Lord Parker set out three questions to be answered when asking whether there had been an obstruction of an officer in the . .

Cited by:
Cited – Ackroyd v Mersey Care NHS Trust CA 16-May-2003
The journalist was required to provide the source of his material. In an earlier hearing the newspaper had been ordered to disclose the name of its source, the journalist. The claimant obtained summary judgement, which the journalist now appealed. . .
Cited – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – TB, Regina (on the Application of) v The Combined Court at Stafford Admn 4-Jul-2006
The claimant was the child complainant in an allegation of sexual assault. The defendant requested her medical records, and she now complained that she had been unfairly pressured into releasing them.
Held: The confidentiality of a patient’s . .
See Also – Mersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
Cited – Grobbelaar v News Group Newspapers Ltd and Another HL 24-Oct-2002
The claimant appealed against a decision of the Court of Appeal quashing the judgement in his favour for damages for defamation.
Held: The Court of Appeal was not able to quash a jury verdict as perverse, and the appeal succeeded. An appellate . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Financial Times Ltd and Others v The United Kingdom ECHR 15-Dec-2009
The claimants said that an order that they deliver up documents leaked to them regarding a possible takeover violated their right to freedom of expression. They complained that such disclosure might lead to the identification of journalistic . .
Cited – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.

Media, Contempt of Court, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.174120

Simm’s Application for Judicial Review; O’Brien’s Application for Judicial Review and Main’s Application for Judicial Review: CA 4 Dec 1997

In two cases, long term prisoners who asserted their innocence were in touch with journalists. Challenges were made against conditions imposed on their access that materials obtained during the visits should not be disclosed by the journalists. A third prisoner challenged the inspection of correspondence with his solicitor. The prison governors’ now appealed against rulings in the favor of the prisoners as to th validity of the Prison Service Standing Orders.

Kennedy, Judge, Chadwick LJJ
[1997] EWCA Civ 2913, [1998] 2 All ER 491
Bailii
Prison Rules 1964 33(1)
England and Wales
Citing:
Cited – Regina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .

Lists of cited by and citing cases may be incomplete.

Prisons, Media

Leading Case

Updated: 09 November 2021; Ref: scu.143312

Uppal v Endemol UK Ltd and Others: QBD 9 Apr 2014

The claimant alleged defamation by other contestants at the time when she was participating in the defendants’ TV show, Big Brother. The defendants had broadcast the material. The defendant now sought a ruling that the words complained of were not defamatory.
Held: The defamation action was dismissed summarily.
Dingemans J said: ‘the words were not capable of meaning that Ms Uppal had below average intelligence or was socially or intellectually inferior. The words did not reflect on Ms Uppal’s social or intellectual status. The use of the words, and in particular the use of the words ‘piece of shit’ to describe Ms Uppal, was vile abuse.’ Vile abuse as such was not actionable in defamation, although there remained a clear difference between ridicule, and exposure to ridicule by others.

Dingemans J
[2014] EWHC 1063 (QB)
Bailii
England and Wales
Citing:
Cited – Sim v Stretch HL 1936
Test For Defamatory Meaning
The plaintiff complained that the defendant had written in a telegram to accuse him of enticing away a servant. The House considered the process of deciding whether words were defamatory.
Held: The telegram was incapable of bearing a . .
Cited – Skuse v Granada Television CA 30-Mar-1993
The claimant complained that the defendant had said in a television programme that he had failed to act properly when presenting his expert forensic evidence in court in the trial of the Birmingham Six.
Held: The court should give to the . .
Cited – Berkoff v Burchill and and Times Newspapers Limited CA 31-Jul-1996
The plaintiff actor said that an article by the defendant labelling him ugly was defamatory. The defendant denied that the words were defamatory.
Held: It is for the jury to decide in what context the words complained of were used and whether . .
Cited – Lukowlak v Unidad Editorial SA (No 1) QBD 23-Jul-2001
When a court considered a defamation contained in a multi-jurisdictional publication, and the question of whether there might be any duty to publish, it should recognise and respect the global nature of modern publications, with more widely . .
Cited – Jeynes v News Magazines Ltd and Another CA 31-Jan-2008
Whether Statement defamatory at common law
The claimant appealed against a striking out of her claim for defamation on finding that the words did not have the defamatory meaning complained of, namely that she was transgendered or transsexual.
Held: The appeal failed.
Sir Anthony . .
Cited – Modi and Another v Clarke CA 29-Jul-2011
The claimants, organisers of the Indian Premier cricket League, met with organisations in England seeking to establish a similar league in the Northern Hemisphere. A copy of a note came to the defendant, chairman of the England and Wales Cricket . .

Lists of cited by and citing cases may be incomplete.

Defamation, Media

Updated: 09 November 2021; Ref: scu.523634

Times Newspapers Ltd v Secretary of State for the Home Department and AY: Admn 17 Oct 2008

The newspaper applied to challenge the protection of the identity of the defendant subject to a control order under the 2005 Act. It said that there was no basis for the making of the order without first considering the Human Rights need for open justice.
Held: The general purpose of the control order related to the need to manage it and for the protection of the person subject to the order and his family. Whilst an anonymity order should not be made automatically, that was a very long way from saying that an order should not be made at the permission stage. The court should give some short reasons for the order. ‘In Control Order cases, although the Article 8 rights of the individual and his family can be engaged as a consequence of publicity being given to the SSHD’s suspicion about his involvement in terrorism, that private right may readily co-exist with the public interest in the effective operation of the Control Order. It is a continuing measure to control those who may pose a serious risk but who cannot be prosecuted or removed. Its effectiveness is an essential part, potentially the crucial part, of the balance which is to be struck pursuant to the particular statutory powers in the PTA. It would be a mistake to suppose that the SSHD seeks anonymity for the Controlled Person essentially out of concern for his wellbeing.’
Ouseley J said: ‘Such public identification may lead to harassment of and the risk of violence to the individual and his family by groups or individuals. The individual may continue to live where he was living already, and may remain in his job which could be put at risk. A media thirst for detailed and accurate news, in the public interest, may generate persistent investigative reporting alongside highly intrusive watching and besetting. There may be a risk of disorder in any given local community. The knowledge that he is subject to a Control Order may conversely make him attractive to extremists in the area where he lives. It may make the provision of a range of services, including housing, to the individual or his family rather more difficult. If the individual believes that he faces these sorts of problems, he has a greater incentive to disappear, to live elsewhere in the UK or abroad. All of this can make monitoring and enforcement of the obligations more difficult, and increase significantly the call on the finite resources which the police or Security Service have to devote to monitoring the obligations. This all occurs in circumstances where the Secretary of State has been satisfied that serious criminal prosecution is not presently realistically possible, though not permanently excluded. There may therefore be an impact on other proceedings not yet underway.’

Ouseley J
[2008] EWHC 2455 (Admin)
Bailii
Prevention of Terrorism Act 2005
England and Wales
Citing:
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Charkaoui v Minister of Citizenship and Immigration 23-Feb-2007
(Supreme Court of Canada) The court considered the procedure for immigration appeals involving the use of evidence not to be given to the applicant.
Held: The statutory procedures for reviewing certificates of inadmissibility to Canada and . .
Cited – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Cited – Regina v Croydon Crown Court ex parte Trinity Mirror Plc; In re Trinity Mirror plc CACD 1-Feb-2008
An order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children, although they had been neither witnesses in the proceedings against . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – McCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Cited – Belfast Telegraph Newspapers Ltd, In the Matter of CANI 3-Apr-2001
. .

Cited by:
Cited – Secretary of State for The Home Department v AP (No. 2) SC 23-Jun-2010
The claimant had object to a Control order made against him and against a decision that he be deported. He had been protected by an anonymity order, but the Court now considered whether it should be continued.
Held: AP had already by the . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media, Human Rights

Updated: 09 November 2021; Ref: scu.277018

Tamiz v Google Inc Google UK Ltd: QBD 2 Mar 2012

The claimant sought damages in defamation against the defendant company offering internet search facilities. The words complained of had been published in a blog, and in comments published on the blog.
Held: Jurisdiction should be declined. Any claim would fail. An ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law. A telephone company or other passive medium of communication, such as an ISP, is not analogous to someone in the position of a distributor, who might at common law be treated as having published so as to need a defence.
Eady J said: ‘Where the law is uncertain, in the face of rapidly developing technology, it is important that judges should strive to achieve consistency in their decisions and that proper regard should be paid, in doing so, to the values enshrined in the European Convention on Human Rights and Fundamental Freedoms. In particular, one should guard against imposing legal liability in restraint of Article 10 where it is not necessary or proportionate so to do.’
and ‘It seems to me to be a significant factor in the evidence before me that Google Inc is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant’s objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one.’

Eady J
[2012] EWHC 449 (QB), [2012] EMLR 24
Bailii
Defamation Act 1996 81, European Convention on Human Rights 10, Electronic Commerce (EC Directive) Regulations 2002 19
England and Wales
Citing:
Cited – Godfrey v Demon Internet Limited (2) QBD 23-Apr-1999
Evidence of Reputation Admissible but Limited
The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the . .
Cited – Davison v Habeeb and Others QBD 25-Nov-2011
Parkes QC J recognised that ‘there is in my judgment an arguable case that [Google Inc] is the publisher of the material complained of, and that at least following notification it is liable for publication of that material’. . .
Cited – Clift v Clarke QBD 18-Feb-2011
The claimant sought disclosure of identities of posters to the defendant’s web-site.
Held: ‘In my view, the postings are clearly one or two-liners, in effect posted anonymously by random members of the public who do not purport, either by . .
Cited – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
bunt_tilleyQBD2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Metropolitan International Schools Ltd (T/A Skillstrain And/Or Train2Game) v Designtechnica Corporation (T/A Digital Trends) and Others QBD 1-Oct-2010
The court set at andpound;50,000 the damages after a finding of defamation of the claimant training company for materials published by the defendant thorugh their web-site. An internet search engine was not liable in defamation because the mental . .
Cited – Al Amoudi v Brisard and Another QBD 12-May-2006
In the context of allegations of Internet publication there is no presumption that the words published were actually read, and no presumption that a reader who has read one article on a blog will have read all the other articles. The burden is on . .
Cited – Smith v ADVFN Plc and others QBD 25-Jul-2008
The claimant had brought multiple actions in defamation against anonymous posters on an online forum. The claimant sought to lift the stay which had been imposed because of the number of actions. The claimant had not yet paid outstanding costs . .
Cited – Metropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
Cited – L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited ECJ 12-Jul-2011
ECJ Grand Chamber – Trade marks – Internet – Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States – . .
Cited – Kaschke v Gray and Another QBD 29-Mar-2010
kaschke_grayQBD10
The defendant appealed against the refusal of the Master to strike out the claim in defamation in respect of a post by a third party on his unmoderated blog. The claimant said that the article accused her of an historic association with a terrorist . .

Cited by:
Appeal from – Tamiz v Google Inc CA 14-Feb-2013
The respondent hosted a blogs platform. One of its user’s blogs was said by the appellant to have been defamatory. On discovery the material had been removed quickly. The claimant now appealed against his claim being struck out. He argued as to: (1) . .

Lists of cited by and citing cases may be incomplete.

Defamation, Human Rights, Media

Updated: 02 November 2021; Ref: scu.451795

Attorney General v Guardian Newspapers Ltd (No.1): HL 13 Aug 1987

A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of Spycatcher.
Lord Templeman said: ‘The question is . . whether the interference with freedom of expression constituted by the Millett injunctions was, on 30 July 1987 when they were continued by this House, necessary in a democratic society in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary having regard to the facts and circumstances prevailing on the 30 July 1987 and in the light of the events which had happened’.
Lord Oliver of Aylmerton said: ‘the liberty of the press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved.’

Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton
[1987] UKHL 13, [1987] 1 WLR 1248, [1987] 3 All ER 316
Bailii
European Convention on Human Rights 10
England and Wales
Citing:
Cited – Seager v Copydex Ltd CA 1967
Mr Seager had invented a patented carpet grip which he manufactured and marketed under the trade mark Klent. There were protracted negotiations between Mr Seager and Copydex over a proposal for Copydex to market the Klent. One of the issues in the . .

Cited by:
See Also – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – Re J (A Child) (Reporting Restriction: Internet: Video) FD 5-Sep-2013
‘This case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, . .
See Also – Attorney-General v Guardian Newspapers Ltd QBD 1988
A Mr Peter Wright had written a book about his service in MI5. The Crown sought to restrain publication of the book by newspapers and also, as against The Sunday Times, an account of profits.
Held: As to this latter Scott J, said: ‘I had . .
See Also – Attorney-General v Guardian Newspapers Ltd CA 2-Jan-1988
A former employee of the Secret Service had written a book (‘Spycatcher’). The AG sought several remedies including damages against a newspaper for serialising it. Dillon LJ said: ‘It has seemed to me throughout the hearing of this appeal that there . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.248709

Tiscali UK Ltd v British Telecommunications Plc: QBD 16 Dec 2008

The claimant internet provider claimed damages against the defendant who it said had written to its clients making false assertions about the claimant. An earlier defamation claim had been struck out, but the claimant now alleged interference with its business by unlawful means.
Held: While the allegations were novel the amendments were allowed.

Eady J
[2008] EWHC 3129 (QB)
Bailii
Consumer Protection from Unfair Trading Regulations 2008 (2008/1277, Misleading and Comparative Advertising Directive (2006/114/EC), Control of Misleading Advertisement Regulations 1988
England and Wales
Citing:
Cited – Boehringer Ingelheim Ltd and others v Vetplus Ltd CA 20-Jun-2007
The claimants appealed refusal of an order restricting comparative advertising materials for the defendant’s competing veterinary medicine. The claimant said that the rule against prior restraint applicable to defamation and other tort proceedings . .
Cited – Cable and Wireless plc v British Telecommunications plc ChD 1998
The court set out the applicable legal principles in trade mark infringement. The court considered the elements necessary to establish a defence under s10(6): The primary objective of section 10(6) of the 1996 Act is to permit comparative . .

Lists of cited by and citing cases may be incomplete.

Media, Defamation, Torts – Other

Updated: 02 November 2021; Ref: scu.278800

Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions: PC 8 Jun 2004

PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether someone’s section 4 (a) ‘right not to be deprived [of their liberty] except by due process of law’ has been violated, it is the legal system as a whole which must be looked at, not merely one part of it. The fundamental human right, as Lord Diplock said [in Maharaj v Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385], is to ‘a legal system … that is fair’. Where, as in Mr Maharaj’s case, there was no avenue of redress (save only an appeal by special leave direct to the Privy Council) from a manifestly unfair committal to prison, … one can understand why the legal system should be characterised as unfair. Where, however, as in the present case, Mr Ali was able to secure his release on bail within 4 days of his committal – indeed, within only one day of his appeal to the Court of Appeal – their Lordships would hold the legal system as a whole to be a fair one.’

Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2005] 1 AC 190, [2004] 3 WLR 611, [2004] UKPC 26, [2005] 1 All ER 499
PC, Bailii, PC
Constitution of Trinidad and Tobago 14
Commonwealth
Citing:
Cited – Nankissoon Boodram v Attorney-General of Trinidad and Tobago PC 19-Feb-1996
The court considered the effect of prejudicial reporting on a trial: ‘In a case such as this, the publications either will or will not prove to have been so harmful that when the time for the trial arrives the techniques available to the trial judge . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Regina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General CA 1974
In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in . .
Cited – Rex v Clement CEC 1821
After the trial for high treason of those involved in the Cato Street Conspiracy in 1820, Clement, the editor of a newspaper was punished for contempt. There had been a series of trials, but the judge said they had to be treated as one set of . .
Cited – Regina v Poulson and Pottinger CACD 1974
The trial judge said that he did not see how the press could report the evidence in the case without running the risk of being in contempt of other criminal proceedings which had already begun against Poulson and other defendants in respect of . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Regina v Border Television Ltd, Ex parte Attorney-General QBD 18-Jan-1978
The defendant media company was found guilty of contempt for reporting that the defendant had pleaded guilty at the outset of her trial to a number of other charges against her. No warning had been given. . .

Cited by:
Cited – Naidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Cited – Regina v Croydon Crown Court ex parte Trinity Mirror Plc; In re Trinity Mirror plc CACD 1-Feb-2008
An order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children, although they had been neither witnesses in the proceedings against . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Media, Contempt of Court

Leading Case

Updated: 02 November 2021; Ref: scu.198072

Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis: ChD 18 Mar 2011

The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had documents which he said would support his claim. The second defendant sought to argue public interest immunity.
Held: The documents should be disclosed with specific and limited restrictions to protect some individuals. The court did not accept that the papers could not now be obtained from the actual defendant and a proper saving of costs could be made by the order. The information had not been provided to the police with any expectation of confidentiality, and it would be unfair to seek to try the case without this information.

Vos J
[2011] EWHC 734 (Ch)
Bailii
Civil Procedure Rules 31
England and Wales
Citing:
Cited – Flood v Times Newspapers Ltd and others QBD 5-Mar-2009
The claimant police officer complained of an alleged defamation in an article published by the defendant. The defendant wished to obtain information from the IPCC to show that they were investigating the matter as a credible issue. The court . .
Cited – Three Rivers District Council and Others, HM Treasury, v HM Treasury, The Governor and Company of the Bank of England (No 4) CA 7-Aug-2002
The claimants had suffered having lost deposits with the Bank of Credit and Commerce International. They claimed their losses from the respondents as regulators of the bank, for negligence and misfeasance in public office. The action was based upon . .
Cited – Frankson and Others v Secretary of State for the Home Department; Johns v Same CA 8-May-2003
The claimants sought damages for injuries alleged to have been received at the hands of prison officers whilst in prison. They now sought disclosure by the police of statements made to the police during the course of their investigation.
Held: . .
Cited – Clifford v NGN Ltd and Mulcaire ChD 3-Feb-2010
There are three steps in every case where a party seeks disclosure from a third party: ‘(1) First it has to be shown that the documentation is likely to support the case of the applicant or adversely affect the case of the respondent. The word . .
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
Cited – Powell v Chief Constable of North Wales Constabulary CA 16-Dec-1999
Roch LJ said: ‘When an issue of public interest immunity is raised, the court’s first duty is to weigh the public interest in preserving the immunity against the public interest that all relevant information which might assist a court to ascertain . .
Cited – Marks v Beyfus 1890
The plaintiff claimed damages for malicious prosecution. He called the Director of Public Prosecutions as a witness, who refused to identify the name of the person who had given him the information on which he had acted against the plaintiff.
Cited – Wallace Smith Trust v Deloitte Haskins and Sells CA 1997
If the party seeking discovery showed that the documents might be necessary for a fair disposal of the action, an order should normally only be refused after the court had examined the documents and considered them in the light of the material . .
Cited – Arias and Others v Commissioner for the Metropolitan Police and Another CA 1-Aug-1984
A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence . .

Lists of cited by and citing cases may be incomplete.

Police, Media

Updated: 02 November 2021; Ref: scu.443585

Lykiardopulo v Lykiardopulo: CA 19 Nov 2010

The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had been found to have manufactured documents intended to hide H’s interest in a family business, to the extent of andpound;46 million or more. The judgment contained details of the respected shipping business. The defendants said that the interest of third parties would be adversely affected, injuring their human rights.
Held: The wife’s appeal succeeded, and the order for anonymisation should be withdrawn subject to necessary redactions. The court noted the changes as to Children Act proceedings, but: ‘this debate has not focused on ancillary relief proceedings. Public interest has never been in the administration of justice in this special field. It is easier to identify public curiosity concerning the lives and fortunes of either the famous or the rich.’ The threat of public judgment should be used as aid to enforcement. The issues should be kept separate.
Thorpe LJ stated: ‘However ancillary relief proceedings are marked by features absent in other civil proceedings:
i) The proceedings are quasi-inquisitorial. The judge must be satisfied that he has, or at least that he has sought, all the information he needs to discharge the duty imposed on him to find the fairest solution.
ii) The parties owe the court a duty, a duty of full, frank and clear disclosure. The duty is absolute.
iii) Sadly the duty is as much breached as observed. The payer’s sense of the obligation is distorted by the emotions aroused by the payee. Breaches take many forms.
iv) Breach by omission is commonplace. A bank account or some other asset is not declared. That tactic gives rise to the counter, filching and copying the contents of desk, briefcase or computer (now proscribed by the decision of this court in Tchenguiz v Imerman [2010] 2 FLR 814, the effects of which have yet to be worked out).
Breaches by commission are more serious. An omission once detected can be excused as an oversight. A breach by commission is plain perjury and thus risks serious consequences. The present case is a good example. The conspiracy within the family to protect the family business resulted in the presentation to the court of forged and back-dated documents.

Thorpe, Stanley Burnton, Tomlimson LJJ
[2010] EWCA Civ 1315, [2011] Fam Law 237, [2011] 1 FCR 61, [2011] 1 FLR 142
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – FZ v SZ and Others (ancillary relief: conduct: valuations) FD 5-Jul-2010
The court heard an application for ancillary relief and variation of a post nuptial settlement. Each party made allegations of misconduct against the other, and the litigation had been bitter and protracted. W had obtained copies of H’s private . .
Cited – WF v NF and Others FD 2007
. .
Cited – K v K (Financial Capital Relief; and Management of Difficult Cases) FD 17-May-2005
W applied for full ancillary relief arising upon the breakdown of her marriage. She copied a number of the husband’s documents, rummaged through dustbins and took documents from her husband’s pockets. When she was no longer living in the former . .

Cited by:
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .

Lists of cited by and citing cases may be incomplete.

Family, Human Rights, Media

Updated: 02 November 2021; Ref: scu.426467

Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another: HL 26 Jun 2003

Limit to Declaratory Refilef as to Future Acts

The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the criminality of future conduct is available but only in exceptional cases. The issue the respondents brought before the courts was not a live, practical question. It is not the function of the courts to keep the statute book up to date and the 1998 Act is not to be an instrument by which the courts can chivvy Parliament into spring-cleaning the statute book. No one who advocates the peaceful abolition of the monarchy and its replacement by a republican form of government is at any risk of prosecution. The section would now be ‘read down’ as required by section 3 the 1998 Act so that such advocacy could not constitute a criminal offence, and no Attorney-General or Director of Public Prosecutions could authorize a prosecution without becoming a laughing stock. A private prosecution would be subject to a nolle prosequi. The making of a declaration of incompatibility, like any declaration, is a matter for the discretion of the court. This was not an exceptional case so as to justify a declaration. Appeal allowed.

Lord Steyn, Lord Hutton, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe
[2003] UKHL 38, Times 27-Jun-2003, [2004] 1 AC 357
House of Lords, Bailii
Treason Felony Act 1848 3, Human Rights Act 1998
England and Wales
Citing:
Cited – Regina v Mitchel 1848
The judge instructed the jury that advocacy of republicanism was necessarily an offence: ‘There are no two things more inconsistent with each other – no two ideas more opposed to each other – no two expressions more contradictory of each other than . .
Cited – Munnich v Godstone Rural District Council 1966
When considering requests for a declaration, questions of pure law may more readily be made, than those dependent upon the particular facts of the case. . .
Cited – Norris v Ireland ECHR 26-Oct-1988
A homosexual man complained that the criminalisation of homosexual conduct in Ireland violated his article 8 right to respect for his private life, although he accepted that the risk of being prosecuted was remote.
Held: The court accepted . .
Cited – Attorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
Cited – Re S (Children: Care Plan); In re W and B (Children: Care plan) In re W (Child: Care plan) HL 14-Mar-2002
The Court of Appeal had imposed conditions upon the care plan to be implemented by the local authorities, identifying certain ‘starred’ essential milestones. The local authorities appealed.
Held: This was not a legitimate extension of the . .
Cited – Imperial Tobacco Ltd v Attorney-General HL 1980
The applicant sought a declaration as to the lawfulness of a lottery scheme whilst criminal proceedings were pending against it for the same scheme.
Held: It was not necessary to decide whether a declaration as to the criminality or otherwise . .
Cited – Regina v Director of Public Prosecutions ex parte Camelot Group Plc Admn 11-Feb-1997
There is jurisdiction for a civil court to make a declaration as to the criminality of future conduct. . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Hadmor Productions Ltd v Hamilton HL 1982
The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – Macnaughton v Macnaughton’s Trustees IHCS 1953
It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of . .
Cited – Regina v Gallagher 1883
Acts of treason did not extend to acts in Ireland. . .
Appeal from – Rusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .

Cited by:
Cited – I-CD Publishing Ltd v The Secretary of State, The Information Commissioner (Interested Party) Admn 21-Jul-2003
The claimant sought judicial review challenging the restrictions on the sale of electoral registers to registered credit reference agencies. Following Robertson (1) the new regulations created two registers, and the claimant sought to be able to . .
Appealed to – Rusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .
Cited – Blackland Park Exploration Ltd v Environment Agency CA 15-Dec-2003
The landowner disposed of liquid waste into oil bearing strata via a deep borehole. At that depth, it would not mix with what was being extracted elsewhere.
Held: The judge had been correct to refuse a declaration as to the lawfulness. . .
Cited – British American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
Cited – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Secretary of State for the Home Department v Nasseri HL 6-May-2009
The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – Transport for London v Uber London Ltd Admn 16-Oct-2015
TFL sought a declaration as to the legality of the Uber taxi system. Otherwise unlicensed drivers took fares with fees calculated by means of a smartphone app. The Licensed Taxi drivers said that the app operated as a meter and therefore required . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Media, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.183877

Detective Inspector Todd Clements v Ed Moloney: CANI 2 Sep 1999

The appellant was northern editor of the Sunday Tribune. He had been ordered to produce notes of an interview with regard to the death of a Belfast Solicitor.
Held: The original order was made ex parte, and there was no obligation on the applicant to show any error in the order. The applicant resisted disclosure of the notes upon which the articles had been based. Protection of journalistic sources is a basic condition for press freedom. That requirement was reflected in the protection afforded by the Act. The investigation was likely to be assisted by disclosure of the journalist’s notes. Journalists should not give unqualified undertakings which could risk breach of a court order, and with certain additional protections, the order was confirmed.

Judge Hart QC
NICS
Prevention of Terrorism (Temporary Provisions) Act 1989
Citing:
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Applied – Director of Public Prosecutions v Channel 4 Television Company Limited and Another 1993
. .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media, Human Rights, Northern Ireland

Leading Case

Updated: 02 November 2021; Ref: scu.162930

Fressoz and Roire v France: ECHR 21 Jan 1999

Le Canard Enchaine published the salary of M Calvet, the chairman of Peugeot, (which was publicly available information) and also, by way of confirmation, photographs of the relevant part of his tax assessment, which was confidential and could not lawfully be published.
Held: Article 10 protects the right of journalists to divulge information on issues of general interest provided they are acting in good faith and on ‘an accurate factual basis’ and supply reliable and precise information in accordance with the ethics of journalism. But a journalist is not required to guarantee the accuracy of his facts. Article 10 leaves it for journalists to decide whether or not it is necessary to reproduce material to ensure credibility: ‘It protects journalists’ rights to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism.’

29183/95, [1999] ECHR 1, (1999) 31 EHRR 28, [1997] ECHR 194
Worldlii, Bailii, Bailii
European Convention on Human Rights 10
Human Rights
Cited by:
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
Cited – Mersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Times Newspapers Ltd (Nos. 1 And 2) v The United Kingdom ECHR 10-Mar-2009
The applicant alleged that the rule under United Kingdom law whereby each time material is downloaded from the Internet a new cause of action in libel proceedings accrued (‘the Internet publication rule’) constituted an unjustifiable and . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – Financial Times Ltd and Others v The United Kingdom ECHR 15-Dec-2009
The claimants said that an order that they deliver up documents leaked to them regarding a possible takeover violated their right to freedom of expression. They complained that such disclosure might lead to the identification of journalistic . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Media

Leading Case

Updated: 02 November 2021; Ref: scu.165681

Axel Springer Ag v Germany: ECHR 7 Feb 2012

ECHR Grand Chamber – A German newspaper had published a story or stories about the arrest and conviction of a well-known TV actor, together with photographs, and various restraining-type orders had been issued by the German courts in relation to this. The propriety of these orders came before the ECHR.
Held: the German courts had gone too far: ‘In order for art 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to the personal enjoyment of the right to respect for private life. The Court has held, moreover, that art 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence.’
The Court went on to consider the balancing exercise which had to be conducted between the two articles and set out various criteria relevant to that exercise: ‘The Court notes that the articles in question concerned the arrest and conviction of the actor X, that is, public judicial facts that may be considered to present a degree of general interest. The public do, in principle, have an interest in being informed – and in being able to inform themselves – about criminal proceedings, whilst strictly observing the presumption of innocence. That interest will vary in degree, however, as it may evolve during the course of the proceedings – from the time of the arrest – according to a number of different factors, such as the degree to which the person concerned is known, the circumstances of the case and any further developments arising during the proceedings.’

39954/08, [2012] ECHR 227, 32 BHRC 493, [2012] EMLR 15, (2012) 55 EHRR 6
Bailii
European Convention on Human Rights 8 10
Human Rights
Cited by:
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
Cited – Richard v British Broadcasting Corporation (BBC) and Another ChD 26-May-2017
Disclosure of Journalists’s Source ordered
The claimant had been investigated in connection with allegations (not proceeded with) of historic sexual abuse. The first defendant received information in advance of a search of the claimant’s house, and filmed and broadcast this from a . .
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Media

Leading Case

Updated: 02 November 2021; Ref: scu.450756

Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order: HL 17 Jun 2009

An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order could properly be made, and said that in any event it should be discharged.
Held: The basis of the order was unconvincing. It should be discharged. The original trial had not been anonymous, and nor should the forthcoming trial. In making the order the House had been bound to find the appropriate balance between the defendants rights and the applicant’s freedom of expression. It could not be said that a discharge of the order would imply any view of the defendant’s guilt. There was no doubt that the balance fell in favour of the BBC’s right to free expression.
Lord Hope said: ‘The freedom of the press to exercise its own judgment in the presentation of journalistic material has been emphasised by the Strasbourg court. In Jersild v Denmark (1994) 19 EHRR 1 , the court said, at para 31, that it was not for it, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. It recalled that article 10 protects not only the substance of the ideas and the information expressed but also the form in which they are conveyed. In essence article 10 leaves it for journalists to decide what details it is necessary to reproduce to ensure credibility: see Fressoz and Roire v France (1999) 31 EHRR 28 , para 54. So the BBC are entitled to say that the question whether D’s identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge.’

Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 34, [2009] EMLR 23, [2009] 3 WLR 142, Times 18-Jun-2009, [2010] 1 AC 145, [2009] HRLR 28
Bailii, HL
Criminal Appeal Act 1968 35, Criminal Appeal (Reference of Points of Law) Rules 1973, Criminal Justice Act 1972 36, European Convention on Human Rights 8, Criminal Justice Act 2003
England and Wales
Citing:
Cited – Handel v The City of London Brewery 1901
. .
Cited – Regina v Arundel Justices, Ex parte Westminster Press Ltd 1985
The basic rule is that anything said in open court may be reported. Withholding the name from the public during the proceedings will provide the basis for the making of an order under section 11 of the Contempt of Court Act 1981. . .
Cited – Regina v Croydon Crown Court ex parte Trinity Mirror Plc; In re Trinity Mirror plc CACD 1-Feb-2008
An order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children, although they had been neither witnesses in the proceedings against . .
Cited – Jameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Burghartz v Switzerland ECHR 22-Feb-1994
It was sex discrimination to prevent a husband using his and his wife’s surnames, but not to prevent the wife doing the same. The use of name is a means of personal identity and of linking it to a family.
Jersild v Denmark ECHR 20-Oct-1994
A journalist was wrongly convicted himself of spreading racial hatred by quoting racists in his material.
Held: Freedom of expression is one of the essential foundations of a democratic society. The safeguards to be afforded to the press are . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Minelli v Switzerland ECHR 25-Mar-1983
It was capable of being an infringement of a defendant’s right to a fair trial, to refuse to order payment of his costs after an acquittal in such a manner as to cast doubt on his innocence. ‘In the Court’s judgment, the presumption of innocence . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Fressoz and Roire v France ECHR 21-Jan-1999
Le Canard Enchaine published the salary of M Calvet, the chairman of Peugeot, (which was publicly available information) and also, by way of confirmation, photographs of the relevant part of his tax assessment, which was confidential and could not . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Regina v Broadcasting Standards Commission, Ex Parte British Broadcasting Corporation CA 6-Apr-2000
The Act protects the privacy of a corporate body. A television company which secretly filmed in a company’s store could be held to have infringed the privacy of the company by the Broadcasting Standards Commission. The Act went further than the . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Montgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
Cited – Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions PC 8-Jun-2004
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether . .
Cited – Regina v Forbes (Anthony Leroy) (Attorney General’s Reference No 3 of 1999) HL 19-Dec-2000
The provisions of the Code of Practice regarding identification parades are mandatory and additional unwritten conditions are not to be inserted. Where there was an identification and the suspect challenged that identification, and consented to the . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Douglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .
See Also – Attorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .

Cited by:
Cited – Flood v Times Newspapers Ltd QBD 2-Oct-2009
The defendant had published a story in its newspaper. At that time it attracted Reynolds qualified privilege. After the circumstances changed, the paper offered an updating item. That offer was rejected as inadequate.
Held: The qualified . .
Cited – L, Regina (On the Application of) v Commissioner of Police of the Metropolis SC 29-Oct-2009
Rebalancing of Enhanced Disclosure Requirements
The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
Cited – Flood v Times Newspapers Ltd CA 13-Jul-2010
The claimant police officer complained of an article he said was defamatory in saying he was being investigated for allegations of accepting bribes. The article remained on the internet even after he was cleared. Each party appealed interim orders. . .
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Cited – ZXC v Bloomberg Lp QBD 23-Feb-2017
Investigation of claimant was properly disclosed
The claimant requested the removal of material naming him from the defendant’s website. Criminal investigations into a company with which he was associated were begun, but then concluded. In the interim, the article was published. The hearing had . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Cited – Regina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Criminal Practice

Updated: 02 November 2021; Ref: scu.347026

Infopaq International v Danske Dagblades Forening: ECJ 17 Jul 2009

ECJ Copyright Information society – Directive 2001/29/EC Articles 2 and 5 – Literary and artistic works – Concept of ‘reproduction’ Reproduction ‘in part’ Reproduction of short extracts of literary works – Newspaper articles – Temporary and transient reproductions – Technological process consisting in scanning of articles followed by conversion into text file, electronic processing of the reproduction, storage of part of that reproduction and printing out.
The Court said: ‘Article 2(a) of Directive 2001/29 [the Information Society Directive] provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author’s right to authorise or prohibit reproduction is intended to cover ‘work’.
It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations.
Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation.
In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto.
In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation.’

K Lenaerts P
C-5/08, [2009] EUECJ C-5/08, [2012] Bus LR 102, [2009] ECR I-6569, [2010] FSR 20, [2009] ECDR 16
Bailii, Bailii
Directive 2001/29/EC 2, Directive 2006/116 6
European
Citing:
Opinion – Infopaq International v Danske Dagblades Forening ECJ 12-Feb-2009
ECJ (Opinion) Directive 2001/29 – Articles 2 and 5 – Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Exceptions and limitations – Temporary acts . .

Cited by:
Cited – Football Dataco Ltd and Others v Brittens Pools Ltd (In Action 3222) and Others ChD 23-Apr-2010
The court considered what rights existed in the annual football fixture lists created by the claimants. The claimants said that the list was created only with a considerable effort applying certain rules. The defendants denied that any copyright . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others CA 27-Jul-2011
The defendant companies provided media monitoring services, automatically searching web-sites for terms of interest. The claimant newspapers operated a licensing system through the first claimant permitting the re-use of the content on its members . .
Judgment – Infopaq International A/S v Danske Dagblades Forening ECJ 17-Jan-2012
ECJ Copyright – Information society – Directive 2001/29/EC – Article 5(1) and (5) – Literary and artistic works – Reproduction of short extracts of literary works – Newspaper articles – Temporary and transient . .
Cited – Temple Island Collections Ltd v New English Teas Ltd and Another PCC 12-Jan-2012
The claimant asserted infringement of their copyright in a photograph. It showed the Houses of Parliament in black and white with a London bus in red. The original action had been settled and the proposed image withdrawn as a copy. The defendants . .
Cited – SAS Institute Inc v World Programming Ltd CA 21-Nov-2013
The court was asked as to the extent to which the developer of a computer program may lawfully replicate the functions of an existing computer program; and the materials that he may lawfully use for that purpose. SAS had produced a computer software . .
Cited – Kogan v Martin and Others CA 9-Oct-2019
Dispute over the authorship of the screenplay of a film.
Held: ‘the judgment cannot stand. The judge has adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material . .
Cited – Martin and Another v Kogan and Others IPEC 22-Nov-2017
The parties disputed whether joint authorship of the screenplay for a film, ‘Florence Foster Jenkins’. The claimant now sought a declaration of sole authorship of film screenplay, and the defendant cross-claimed for a declaration of joint . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Media

Leading Case

Updated: 02 November 2021; Ref: scu.286161