Update: media

Two recent qualified privilege decisions illustrate the way courts are now applying the common law defence more narrowly. The first is Clift v Slough Borough Council and Kelleher [2009] EWHC 1550(QB), which serves as a warning to councils and public authorities not to assume that qualified privilege will get them off the hook in relation to the publication of defamatory statements, and that blanket electronic publication is a dangerous area for libel.

Libel and qualified privilege

In August 2005, Jane Clift witnessed some anti-social behaviour in a park in Slough, resulting in damage to flowerbeds and her being threatened when she intervened. She called the police and the parks department and they recommended she refer the matter to the council. She telephoned the grandly-named anti-social behaviour co-ordinator '“ Ms Rashid. The claimant was unhappy with the reception her complaint got and slammed the phone down. Mrs Clift then wrote to the head of public protection at the council, the second defendant, Mr Kelleher. Interviews were held and Mrs Clift's complaints were rejected. In view of the remarks made by Mrs Clift about Ms Rashid and the wish that she 'could drop down dead', and subsequently her statement that she could have physically attacked Ms Rashid if she had been anywhere near her, Mr Kelleher placed her name on a 'violent persons register'. This information was shared with other council departments and government agencies within the borough by electronic means. Mrs Clift alleged that this was a libel.

The council claimed justification and qualified privilege. The parties agreed that the judge alone should deal with the arguments about qualified privilege in order to avoid unnecessary and lengthy debate. Mr Justice Tugendhat concluded that there was a qualified privilege defence in relation to publication to employees of the council who were 'customer facing staff' in the trading standards, neighbourhood enforcement and community safety departments, but there was no such defence in relation to employees of the council who were customer facing staff in the licensing, food and safety and children and education services department nor to community wardens or trade union officials. To rely on the common law defence of qualified privilege, the council had to demonstrate that it had met its public law duties under the Human Rights Act and the Data Protection Act. The right engaged here was under article 8 '“ the right to respect for private and family life.

Publication had been by an email to 54 addressees and a further set of publications in the form of an attachment containing the 'violent persons register' (though it should have been called the 'potentially violent persons register').

The judge referred in particular to the cases of Wood v Chief Constable of West Midlands [2003] EWHC 2971 (QB) and Kearns v General Council of the Bar [2003] EWCA civ 331. He gave precedence to Wood over Kearns on the grounds that in Kearns the defendant was not a public authority and public laws did not apply. Adopting a narrower and more selective interpretation, therefore, as far as publication to fellow council employees was concerned, there was an existing relationship and qualified privilege was available. But, in this instance, the publication on the violent persons register and the email correspondence attaching it was protected only for those to whom a duty was owed and where there was a necessary reciprocity of interest. The actions of the council in blanket publication was not proportionate nor was it necessary. Thus the emails were published to an extremely wide class within the council, including contraception and stop smoking clinics as well as nurseries, playgroups and opticians.

The defence of justification was thrown out as the jury found that the publication was not true or substantially true, as was Mrs Clift's allegation of malice. The jury awarded £12,000. Mrs Clift has now moved to Birmingham and is doubtless reciting words from John Betjeman's famous poem: 'Come friendly bombs and fall on Slough! It isn't fit for humans now,' especially as she had to wait four years for justice to be done.

The second case, Melvyn Levi v Ken Bates [2009] EWHC 1495 (QB), concerned Ken Bates, the chairman of Leeds United, who is no stranger to libel actions but this time lost out to an action brought by businessman Melvyn Levi. The action arose out of events surrounding the acquisition of Leeds United by a consortium headed by Mr Bates.

Mr Levi complained of four publications, three of which were articles in programmes of Leeds United entitled 'Just to bring you up to speed', 'The enemy within' and 'Why Mr Levi, why?', and a letter addressed to club members. Mr Levi complained that the articles and letter were anti-Semitic, and suggested that he was a shyster and was trying to blackmail the club to buy him off. Mr Bates pleaded qualified privilege, justification and fair comment.

The qualified privilege defence was a common law privilege defence and Sir Charles Gray considered each publication separately. With regard to the letter of which complaint was made, Sir Charles found that there was a legitimate interest in the chairman of the football club keeping members informed about financial affairs and was privileged accordingly.

With regard to the programmes, since publication of the programmes was to both members and non-members of the club, there could not be privilege as there was no corresponding duty and interest to those without any involvement with the club. As to whether the publications could be justified, notwithstanding allegations made by Mr Bates' counsel that Mr Levi had been dishonest throughout, the plea of justification failed. The judge also rejected the defence of fair comment principally because he found that the articles of which complaint were made in the magazines were riddled with material inaccuracies, notwithstanding the fact that the articles were liberally littered with statements which would qualify as comments. The facts as had been proved by Mr Bates fell well short of amounting to a sufficient sub-stratum to enable a defence satisfying the provisions of section 6 of the Defamation Act 1952. The defence of fair comment also failed.

Sir Charles concluded that the appropriate damages should be £50,000 in respect of the three match programmes where the defences failed.

Media access

Children and parties to ancillary relief proceedings have different rights. In Re X (A Child) (Residence & Contact) [2009] EWHC 1728 (Fam), the right of children to be protected from the media in residence and contact proceedings has been upheld.

The parents of a child were well-known public figures and they applied to exclude the media from residents and contact proceedings in respect of their daughter X. A child psychiatrist had been instructed to report on the emotional welfare of the child and was to give evidence at future hearings.

It was held that the media would be excluded from attending any part of the proceedings under the Family Proceedings Rules 1991 Rule 10.28(4)(a)(i) and Rule 10.28(4)(b). The girl's interest and welfare constituted a strong case of necessity for the media to be excluded in order to protect her ECHR article 8 rights as incorporated in the Human Rights Act. Before the introduction of the rules, the confidentiality and privacy of the proceedings would have been respected in any event. The focus had to be on the child's interest and not the parents', and here press interest would be high given the fact that the girl had famous parents. In carrying out the balancing acts between article 8 and article 10, the burden of satisfying the court of the grounds for exclusion under Rule 10.28(4) was on the applicant. With regard to the application for the injunction, it remained necessary for the girl's protection given the sensitivity of the issues and the requirement of keeping confidential the activities of the psychiatrist and confidence in the psychiatrist.

An injunction did no more than give effect to the Children's Act 1989 section 97(2). Sir Mark indicated that given the denial to the media of an opportunity to see material upon which to challenge the injunction, it was appropriate that any applicant wishing to exclude the media should raise the matter with the court before a substantive hearing for consideration of the need to notify the media in advance of the proposed application.

Re X should be contrasted with Spencer v Spencer [2009] EWHC 1529 (Fam), decided on 23 June 2009 by Mr Justice Munby, where it was held that a high-profile husband (the Earl of Spencer) and his wife's joint application under the Family Proceeding Rules 1991 Rule 10.28 to exclude the media from their ancillary relief proceedings was inappropriate. Both applicants had a public profile and the media were interested in their divorce and the ancillary relief proceedings. Mr Justice Munby said the starting point and assumption under the rules was that the media were entitled to be present throughout family proceedings held in private and that there had to be a balancing exercise of the conflicting interests protected by ECHR articles 8 and 10 Act and also article 6 '“ the need to maintain confidence of the public in the courts.

Although in this case there was no public interest in the outcome of the proceedings, in that there was no great point of principle involved, there was a public interest in the media being able to attend proceedings '“ acting as the watchdog of the public. That interest transcended the subject matter of the litigation. It is to be noted that the following day the parties reached an agreement so in fact the media never had the opportunity to attend any further hearing.

Bloggers' anonymity

In Author of a Blog v Times Newspapers Limited [2009] EWHC 1358 (QB), Mr Justice Eady, on 16 June 2009, refused to prevent The Times from exposing the identity of a blogger. The paper had worked out from publicly available sources in a case of jigsaw identity who the blogger was and intended to name him. The blogger applied for an interim injunction. Mr Justice Eady held that because the information posted by the blogger did not have the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, it meant that in this instance the blogging was effectively a public activity.

The blogger was a serving detective constable and what he put on his blog dealt with police work and his opinions on issues including his police activities and the administration of justice. He explained that he wanted to maintain his anonymity because if his name was revealed he would be at risk of disciplinary action; the relevant Police (Conduct) Regulations impose restrictions on the disclosure of information by police officers.

Mr Justice Eady adopted the appropriate two-stage approach in examining article 8 and asking whether a blogger had a reasonable expectation of privacy with regard to the information in question and whether there was a countervailing public interest as set out in article 10 in relation to freedom of expression. The test of privacy was an objective one and the blogger failed to demonstrate that there was any legally enforceable right to maintain anonymity. This could not more clearly indicate that if you blog your identity cannot be suppressed and you do so at your own risk.