The UKIP MEP using Brussels privilege to frustrate a UK court process and an Act of Parliament

23rd May 2016

In a High Court judgment handed down last week we have the splendid irony of a UKIP MEP using the privileges of the European Parliament so as to stay a case in the English courts where the court is applying an Act of Parliament.

The case is one about libel damages and the statutory provision is that which governs “offers to amend” under the Defamation Act 1996.

One would think that this is exactly the sort of Brussels interference with national legal sovereignty – the court process and the effect of primary legislation – that UKIP would be against.

But no.

 

POSTSCRIPT

This was tweeted by the MEP as she actively sought the European Parliament privilege which meant UK law would not apply to her.  Compare the date of the tweet with the dates in the postscript of the judgment.

 

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The PJS celebrity injunction case: what to look out for, and what to think about

19th May 2016

NOTE: This post now overtaken- the Supreme Court maintained the injunction.

Later this morning the Supreme Court will hand down its decision in the PJS v News Group Newspapers case (the Supreme Court page is here).

At one level – the most most basic one – this is all futile: everyone knows who the case is about.  That is everyone who cares about it; one suspect many people do not know just because many people do not care.

But the case is still significant and there are still things to look out for.

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First: it is important to remember that, in procedural terms, this case is about an interim injunction, and not a final injunction.  An interim injunction is there to “hold the ring” until the substantive claim can be dealt with.  The idea is that a court order will temporarily freeze things in time, almost like magic.

In this case the interim injunction is there to keep the private information private until a court can decide whether there has been a misuse of the private information; and if that private information is no longer private then the “genie” is “out of the bottle”.

But if that genie is out of that bottle then there can still be a final hearing.  There can still be an issue to be tried.  It is just that an interim injunction may serve no further useful purpose; the “discharge” (ie, lifting) of an interim injunction does not by itself mean that the case will fall away – though in practice, the claimant may just give up, as the interim injunction was the real objective.

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Second: there is the question of remedies.

The problem the Supreme Court faces is that the tort of misuse of private information is at risk of being a cause of action (ie, a legal claim) without a remedy.  In other words the tortfeasor (a lovely legal word for wrong-doer) can do what they want, and there is nothing the wronged party can do about it.

If an injunction is futile – either as an interim or final remedy – when there is a misuse of private information – then what should a court order?  It can hardly order that non-private information be somehow made private again.

The obvious alternative remedy is damages.  The point here though is that damages for misuse of private information are (relatively) low, and that there is case law which suggests that “exemplary” damages are not available for the tort of misuse of private information.

What the Supreme Court may be up to – and they have taken nearly a month to decide what is a case about an interim remedy –  is recasting the law on privacy and remedies, so that a claimant in an action for misuse of private information is not left without an effective remedy if that information can be kept private by an interim or final injunction.

If so: then what may seem a tactical victory for the press – “Hurrah, this daft injunction has been discharged” – may turn out to be a strategic mistake.

In the law of libel there are very few injunctions – the principle is “publish and be damned” – as any wrongdoing is dealt with by damages (and costs).  And there was (and is) “libel chill” as a consequence.  Injunctions are not always the problem, and if the Supreme Court make it easier for a claimant in privacy cases to claim substantive (and exemplary) damages in privacy cases when injunctions become futile, one could question whether this would be a triumph for the press.

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Third: costs and commercial reality.

Legal actions are expensive.  The costs for News Group Newspapers in this action will exceed any additional sales they will ever get out of this story.  At a time of diminishing budgets for newspapers, this is the sort of legal action which cannot be contested very often, if at all.

And when the primary grounds for discharging the injunction is that by reason of social media and foreign (ie US and Scottish) publications, the information is already effectively public, then contesting a privacy injunction is commercially nonsensical.  In a way, the news title is relying on its own lack of importance as a news source.

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I set out at the FT that such actions are to a large extent a “privacy dance” – a performance by the parties involved to demonstrate things to others.

But it is not all an exercise in superficiality: there are considerable problems in this case.

Can the courts provide a meaningful interim or final remedy to those complaining of the misuse of private information?

Can the press afford the damages and costs of contesting claims for the misuse of private information?

Everyone may know who the PJS case is about, but few if anyone know the answers to these questions.

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Lauri Love and the potential civil law “backdoor” for obtaining encryption keys

10th May 2016

This is an “explainer” post about a potentially significant court decision being handed down today on whether the UK State can use civil law as a legal “backdoor” for obtaining encryption keys.

The case:  Lauri Love v National Crime Agency

The venue: Westminster Magistrates’ Court, from 1000 hrs today

The claim: An application under section 1 of the Police (Property) Act 1897 for recovery of computer equipment seized by the National Crime Agency – note this is an example of a civil matter being dealt with by a Magistrates’ Court.

The procedural stage: The application is still pre-trial, and the overall application is set down for a trial hearing on 28 July 2016.

Today’s decision: Today the presiding judge District Judge Tempia will make a decision on whether Lauri Love be “directed” at this stage to provide an encryption key as part of the civil claim, and before the trial.

This is because the National Crime Agency, the “defendant” in this claim, is insisting that the key be handed over before the application be tried and a decision made to return the equipment.

Why this matters: The statutory regime for requests for encryption keys (and encrypted data) is under Part III of the Regulation of Investigatory Powers Act 2000 (RIPA).

The state agency – in this case the National Crime Agency – would serve a “section 49” notice, and if a valid section 49 notice is not complied with, then the recipient of the notice can face prosecution under section 53.

The recipient, however, has the protections of the safeguards of section 55 and the protections of the detailed (fifty-odd page) Code of Practice.

By requesting a direction as part of the civil application, the National Crime Agency is seeking to sidestep the RIPA scheme and effectively circumvent the section 55 safeguards and the protections of the Code of Practice.

The extradition context: Lauri Love is facing extradition to the United States.  The United States indictments are at Lauri Love’s website.  The extradition application is also being heard by Westminster Magistrates’ Court, but those are separate and distinct legal proceedings.

This civil claim is self-contained and is not directly relevant to the extradition.

The earlier section 49 notice: Lauri Love has also been already served with a section 49 notice, in February 2014, and did not provide the requested information.   The National Crime Agency did not continue with the RIPA process.

Comment:

Many of the coercive and intrusive powers given to the state under RIPA are balanced by safeguards and protections against abuse of those powers.

The powers and the checks on them should be seen as a package.

By seeking to use directions in a civil claim to achieve the same aim, where the safeguards and protections against abuse will not apply (and which would be decided on a lower standard of proof – section 53 has the criminal standard, whilst a direction in a civil case would (of course) have the civil standard) then the National Crime Agency are departing from what RIPA intended.

If the National Crime Agency want the encryption key then they should follow the RIPA statutory scheme and not try to get round it.

Instead, the National Crime Agency are asking the courts to construct an civil law “backdoor” for obtaining encryption keys (and encrypted data) outside the statutory scheme of RIPA.

Further reading:

The Intercept

The Register

BBC

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“Of course”

4th May 2016

Then:

Of course, Corbyn won’t win the Labour leadership.

Of course, Leicester won’t win the premiership.

Of course, Trump won’t win the Republican nomination.

Of course.

(But they did.)

And now:

Of course, Hillary will win against Trump.

Of course, UK voters will vote against Brexit.

Of course, Aston Villa will come straight back up.

Of course they will.

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Law and policy round-up: Hillsborough verdict, judicial policy, sovereignty of parliament, etc

4th May 2016

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Hillsborough verdicts

David Conn has set out at the Guardian a powerful critique of the legal process in the new Hillsborough inquest: The other villain of Hillsborough saga: legal system that left families in torment.  David Conn is an excellent journalist and it is fascinating to see what he made of the legal process as an outsider looking in.

The UK human rights blog has provided a useful round-up of links on the legal aspects of the verdicts.

My own contribution, on how the Human Rights Act and ECHR made the scope of the new Hillsborough inquest possible, is at the Financial Times.

Public law and private law

Sir Henry Brooke, the retired senior judge who has transformed into an outstanding legal blogger, has posted his talk on private law for public lawyers.

The judiciary and public policy

The Lord Chief Justice was questioned yesterday by MPs. The questions covered a range of justice policy topics – not just judicial pensions, though that was picked up by the press – and the answers are worth reading.

Sovereignty of parliament

Over at the Financial Times I have posted the first of what will be a series of pieces exploring laws and legislation. The first is on the fragility of “parliamentary sovereignty”.  Further posts in the series will be on bad legislation and the government’s apparent misuse of statutory instruments.

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Press regulation: what you need to know about “Section 40”

29th April 2016

The “section 40” is a provision in the Crime and Courts Act 2013.  It will be put into effect when John Whittingdale, the Secretary of State, decides.

Some have contended that the delay in implementing the provision is for no good reason. A few go further and suggest the delay can be attributed to the alleged hold the London press have over Whittingdale by reason of not publishing information about his private life.

As I set out over at the Financial Times website today, I believe the better explanation is that the legislation is a dreadful dogs dinner, and that no responsible Secretary of State would implement it – at lest in present circumstances.

Section 40 is controversial. Hacked Off and its allies demand that it be implemented without delay – see here and here.  Alternatively, the media campaigners at 89UP warn that it will have a profound chilling effect.

Section 40 has now become a totem in the debate about press freedom.

In my view, section 40’s problems come down to what it actually says.

Section 40(1) tells you what it covers – in effect it means claims for media torts (mainly libel or privacy) against “relevant publishers” (mainly news organisations).

Sections 40(2) and (3) then deal with who pays for the costs of such cases.  Both seek to alter the usual position that “costs follow the event” – ie the loser in a claim pays the winner’s costs.

Section 40(2) tells you that the news publishers should not generally have to pay legal costs in respect of those claims as long as they are members of an “approved regulator” with an arbitration scheme.  This provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

This provision is a “carrot” – it is to provide an incentive for publishers to join an “approved regulator”.

The real problem is with section 40(3). This is the “stick”.

Section 40(3) tells you that the news publishers should generally have to pay legal costs – including those of the claimant – in respect of those media tort claims if they are not members of an “approved regulator” with an arbitration scheme.  In effect, as long a claim is arguable, the publisher will have to pay both side’s costs, even if the publisher wins at court.

As with section 40(2), this provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

And again, this provision is to provide an incentive for publishers to join an “approved regulator”.

One key issue with this is that (a) there is no approved regulator yet and (b) the one regulator which is likely to get approval – IMPRESS – has hardly any members.  Most publishers are members or IPSO – which does not want recognition – or (like the Financial Times, Guardian, and Private Eye) do not want to be members of any external scheme at all.

This means the vast majority of the UK news media will be under section 40(3) costs risks once IMPRESS becomes approved.

For me the worry is not that section 40(3) will have a certain impact but that it will be uncertain. It is a dire piece of drafting.

As I set out over at the Financial Times:

To take four examples:

– What is “a relevant publisher”? (The schedule to the Act on exceptions to this definition is not clear.)

– When would it “have been reasonable in the circumstances for the defendant to have been a member [of a scheme] at that time”?

– What does it mean that “the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator”?

– And, most importantly, when will it be “just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs”?

On the last point alone, one can imagine judges routinely disregarding the general rule and awarding costs as they do now, as that would be “just and equitable in all the circumstances”.

If section 40(3) takes effect, there would be immediate and expensive uncertainty. So hedged is it with qualifications and exceptions that litigation is inevitable. The Leveson report called for a system that was “fair, quick and inexpensive”. What this provides is anything but.

In other words – section 40(3) will create far more problems that it solves, with the real prospect of expensive and lengthy litigation as each loophole and technicality is explored.

If section 40 is be implemented at all – and when it was enacted, the failure of an approved regulator to have almost no members was not envisaged – then it should only be once an approved regulator with an arbitration scheme is up and running.

As I conclude at the Financial Times:

Looking at the detail, rather than just the totemic significance, reveals it as a worrying and unstable provision. The secretary of state is quite right to delay bringing section 40 into effect, at least until there is a recognised regulatory scheme with a functioning arbitration service. To bring it in earlier, would be so irresponsible that no responsible politician should do it.

One does not need to look for lurid explanations for the hold the media supposedly have over a cabinet minister to explain why section 40 should not be implemented lightly. It is not a dominatrix in a relationship but the devil in the detail which provides the explanation for why it should be delayed, if not repealed altogether. It is simply a bad provision.

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FT post on Theresa May, Hillsborough, human rights law and the politics of superficiality

27th April 2016

I have a new post at the Financial Times on how the superficial politics of Theresa May – especially her statements about human rights law – do not match with things such as the new Hillsborough Inquest.

In brief: the new Hillsborough Inquest could not have ranged as widely without Article 2 of the ECHR having effect in domestic law – the same ECHR which May wants the UK to leave.

A couple of excerpts are below:

MayHumanRights

MayHumanRights2

The post was received well on Twitter.

Lawyer and Rugby legend Brian Moore:

The UK’s leading legal commentator Joshua Rozenberg:

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Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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Law and policy round-up: media law, Brevik and human rights, legal aid and access to justice

25th April 2016

The media, defamation and lawyers

Excellent post at Law Society Gazette on the state of current media law litigation, especially the impact of the Defamation Act 2013.

Breivik reminds us human rights never stand alone

Nick Cohen takes on the “what about Brevik” counterpoint to the concept of absolute human rights.

Legal aid cuts have led to surge in DIY defence, says charity

Good article (though one with a dull title) on the recent Transform Justice report. Includes this eye-catching example:

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A word-switch, not a phrase-insertion: “back of the line” is an Obama rhetorical staple

23rd April 2016

The contention is being (seriously) made that President Obama’s use of “back of the queue” in a speech about Brexit shows that the phrase was inserted by his UK hosts.  This contention rests on “queue” not being a word Americans use. They use the word “line” instead.

Politicians, like all of us, tend to use rhetorical staples. And a quick search of Obama’s public statements over the last few years shows that “back of the line” is indeed one of his rhetorical staples. He seems to have used it nine times since 2013.

And not only has he used it in formal speeches, but in unscripted press conferences. It is a phrase he readily uses, and if you look at the examples, he uses it to make similar points to the one being advanced in his Brexit comments.

So all that needs to be explained is not the insertion of the phrase, but a switch of a word.

It is a word he is recorded as using anyway.  The word switch may well be his own, or from his advisors or script writers. Who knows.

But all that needs any special explanation is the word, and not the phrase.

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