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.

*

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.

*

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.

*

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.

*

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.

*

For email alerts for my posts at Jack of Kent, the FT and elsewhere, please submit your email address in the “Subscribe” box on this page.

header banner image

Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  

Please click on this link to Hammicks and have a browse.

 

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.

header banner image

Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  Please click on this link to Hammicks and have a browse.

Please subscribe for alerts for my new posts at Jack of Kent and the FT, and anywhere else.  Just submit your email address in the “Subscribe” box on this page.

Twitter and other social media platforms may not always be around – and so by subscribing you will get alerts for my posts…

 

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.

header banner image

Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  Please click on this link to Hammicks and have a browse.

Please subscribe for alerts for my new posts at Jack of Kent and the FT, and anywhere else.  Just submit your email address in the “Subscribe” box on this page.

Twitter and other social media platforms may not always be around – and so by subscribing you will get alerts for my posts…

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:

https://twitter.com/taxbod/status/724115206801108992

header banner image

Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  

If you value this this blog and its free content, please do two things.

First, click on this link to Hammicks and have a browse.

Second, please subscribe for alerts for my new posts at Jack of Kent and the FT, and anywhere else.  Just submit your email address in the “Subscribe” box on this page.  Twitter and other social media platforms may not always be around – and so by subscribing you will get alerts for my posts.

How Michael Gove won the cabinet row about the Saudi prison contract

31st January 2016

On the morning of Tuesday 13 October 2015 the UK Prime Minister David Cameron had a serious political problem – a problem which seemed to many political observers to have almost come from nowhere.

The problem was about a proposed commercial relationship between the UK’s Ministry of Justice, which is responsible for courts and prisons services in England and Wales, and the government of Saudi Arabia.

The contract – for providing training to the Saudi prison system – had not even been signed and was still at bidding stage. And the value of the deal at £5.9 million was not that significant in the context of UK-Saudi relations.

But somehow the matter was now a pressing political concern – indeed a possible minor political crisis – that could only be resolved by a quick decision of the prime minister.

That morning the Times had reported a cabinet split.

On one side was the Lord Chancellor and Justice Secretary Michael Gove, who wanted the MoJ to pull out of the proposal, which he inherited from his predecessor.

On the other side was the Foreign Secretary Phillip Hammond, who did not want the Saudi government to be upset by the bid being discontinued.

Neither Gove nor Hammond had been long in their respective posts; but their two offices of state are among the most ancient and distinguished.

It is rare for either a Foreign Secretary or Lord Chancellor to be party to any cabinet row, and it was unheard of for them to be rowing with each other.

What made this political row particularly awkward was the way the contract bid was being used by the Labour opposition.

Two weeks before, on 29 September 2015, the new Labour leader Jeremy Corbyn September 2015 had mentioned the commercial bid in his first speech as leader to party conference:

“Just because I’ve become the leader of this party, I’m not going to stop standing up on those issues or being that activist.

So for my first message to David Cameron, I say to him now a little message from our conference, I hope he’s listening – you never know:

Intervene now personally with the Saudi Arabian regime to stop the beheading and crucifixion of Ali Mohammed al-Nimr, who is threatened with the death penalty, for taking part in a demonstration at the age of 17.

And while you’re about it, terminate that bid made by our Ministry of Justice’s to provide services for Saudi Arabia – which would be required to carry out the sentence that would be put down on Mohammed Ali al-Nimr.”

It was the first time the contract bid had come to the attention to most politicians and pundits.

Until then it had not been a subject which anyone outside those with a close interest in MoJ affairs either knew or cared about.

There was speculation that information had been leaked to Corbyn by Gove or somebody at MoJ (the truth was more prosaic – Corbyn, with a long-standing record of criticising the Saudi regime, had been briefed by his front bench justice spokespeople about the issue following my post on 25 September 2015 at Jack of Kent).

The contract bid had been cited by Corbyn in aid of his point about the threatened execution of Mohammed Ali al-Nimr, and had it not been for that case, it may not have been mentioned at all.

The Saudi prison bid was now mainstream political news. Cameron was asked about it in that weekend’s interview with Andrew Marr and found it difficult to deflect. It seemed as if the new and controversial Labour leader had scored an unexpected hit at a time he was beset by internal party difficulties (as he is still is).

But the issue then seemed to fade.

A week passed, and the political commentators had many other things to talk about at a time of party conferences.

It looked as if the Saudi prison issue would go as quickly as it came as matter of political importance; maybe Corbyn had had the benefit of some beginners’ luck, and that was all.

And then, two weeks after Corbyn’s speech, the Times splashed on the cabinet split.

The Times is, of course, an excellent news paper and it was a superb scoop by Rachel Sylvester.an outstanding political journalist. But it would also be fair to say that the Times had not shown any interest in the subject before its coverage on 13 October 2015. And then suddenly it was a front page lead, backed up with a comment piece inside.

The Times reported:

A cabinet row has broken out between two senior ministers over the fate of a controversial prisons deal with Saudi Arabia.

Michael Gove, the lord chancellor and justice secretary, was accused of naivety by Philip Hammond, the foreign secretary, over his demand that a £5.9 million deal with Saudi Arabia be scrapped. The dispute became so entrenched that it was raised at a meeting of the National Security Council, The Times has learnt.

In the comment piece it was contended:

“Saudi Arabia’s brutal prison regime is getting help from the British taxpayer. We should stand up to Riyadh and cancel it

There was just one line in Jeremy Corbyn’s conference speech that got under ministers’ skins — the Labour leader’s call to scrap a deal between the Ministry of Justice and the Saudi prison service. It is the source of a Whitehall row that illustrates the growing tension within government between morality and pragmatism in Britain’s relations with the rest of the world.

The bid for a £5.9 million contract to provide “training-needs analysis” for the Saudi penal system was approved by Chris Grayling, the former justice secretary, as part of a drive by the ministry to sell services abroad. It was submitted in April, by the department’s commercial arm, Just Solutions International (JSI). Michael Gove, who succeeded Mr Grayling in May, has scrapped JSI to focus resources on “domestic priorities”. Crucially, he also wanted to pull out of the Saudi deal, insisting that the government should not be helping a regime that uses beheading, crucifixion, stoning, amputations and lashings to keep its citizens in line. However, he was blocked by Downing Street, on the advice of the Foreign Office.”

That there was tension between the MoJ and the foreign office over the contract bid was not in fact news.

The estimable Alan White had expressly revealed this at Buzzfeed on 17 September 2015 – 12 days before the Corbyn speech:

BuzzFeed News understands that Gove wanted to terminate the entire contract but this was blocked by other government departments who feared that it would damage relations with the Saudis.

And this revelation in turn was simply making plain what was implicit in a ministerial statement of the day before. The MoJ wanted to ditch the deal but was being prevented by “wider government interests”.

Once the Times splashed the story, events began to accelerate.

The able Labour front bench justice spokesperson Andy Slaughter applied for and was granted an “urgent question” on the floor of the house of commons. The deadline for tabling such a question was 10am; the Speaker’s Office would then inform party whips and the department of the question by 11am. The prime minister’s office would have been told about the same time.

The next day would also be the prime minister’s questions, and it would be a topic which Corbyn would be sure to raise.

Suddenly it seemed that the cabinet split would be the subject of commons debates – and debates on the very issue which the new Labour leader had been seen to have scored a point.

Cameron had to take a decision quickly, and he did.

The MoJ were not involved in the decision that day – indeed, whilst Cameron was making his mind up, the department’s senior civil servant was being questioned by a parliamentary committee and his answers presupposed no decision was imminent.

The decision was then announced as the answer to a question at the 11am lobby briefing, which according to the Press Association was worded as follows:

The Prime Minister’s official spokeswoman told reporters: “This bid to provide additional training to Saudi Arabia has been reviewed, and the Government has decided it won’t be proceeding with the bid.”

She added that the decision was based on an examination of the “priorities” for the Ministry of Justice and a decision to “focus on some of the domestic priorities we want to do in terms of reforms here”.

“Having looked at it further again, we have established that we can withdraw at this stage, there will be no financial penalty and consequently that decision has been taken.”

According to the detailed account the next day by Francis Elliott, the political editor of the Times, the sequence of events was then as follows:
 

The coverage was raised at the routine morning meeting in No 10, at which Mr Cameron and his de facto deputy, George Osborne, consider the day ahead. Ordinarily the prime minister takes soundings from trusted aides and civil servants before giving a judgment. Yesterday, however, he closed down the discussion quickly, deciding that it was too sensitive an issue to be aired at the later meeting.

Instead Mr Cameron is understood to have phoned Mr Hammond, asking him to set out the case for keeping the contract between the commercial arm of the Ministry of Justice and the Saudi government.

Insiders say that he well knew what the reply would be: for months Mr Hammond, supported by Theresa May, the home secretary, has been making the case that it is better to engage with Saudi Arabia than walk away and that the contract was an important part of a wider effort to reform Saudi’s judicial and police institutiions.

He did not call Michael Gove, the justice secretary, who has been arguing for the commercial deal to be ditched, but asked officials to check whether any financial penalties would be incurred should Britain pull out, and was told there would be none.

Faced with having to make a decision between his warring cabinet colleagues, Mr Cameron was acutely aware that he was a little more than 24 hours from a clash with Jeremy Corbyn at prime minister’s questions today.

This description of Cameron’s sequence of priorities in his decision-making seems rather unfortunate though revealing: first the political imperative, then the commercial cost, and then finally whether it was the right thing.

But a decision was made, and a cabinet row (and a political embarrassment) averted.

It is perhaps too early to reckon the real effect of the decision. The Saudi ambassador resorted to the Telegraph to vent his displeasure (which in turn indicated a loss of influence – it is hard to imagine that a Saudi ambassador needing to do that ten years ago). In domestic politics, the dropping of the contract bid has already become a feature of the political narratives of both Corbyn and Gove, as well as being a further mark against the record Gove’s incompetent predecessor as Lord Chancellor and Justice Secretary, Chris Grayling.

Both Corbyn and Gove deserve the political credit for the MoJ’s Saudi’s prison bid being dropped in the way it was.

Both politicians exerted pressures at just the right time. Had it not been for Corbyn’s mention of the commercial proposal in his conference speech, and the likelihood that he would bring the matter up again, the bid would not have had the keen attention of Cameron that it received.

And had it not been for Gove forcing the issue in cabinet (with the Times somehow getting the story) then there would not have been the row for Cameron to resolve so urgently.

But the preconditions for this political row had been in place before the Corbyn speech. And these had been set months before by Gove; his escalation of the matter to cabinet level in the wake of the Corbyn conference speech was  just the final move in a sequence of decisions and deft manoeuvers which started months before.  So when the explosion came, it was clear that it would be at the expense of the Foreign Office.

The key decision by Gove was to close the commercial arm of the MoJ – known as “Just Solutions International” but also to continue with just one main project, the Saudi prisons bid.

Initially, part of the reason for the bid’s continuation was that it was supposed that there was a “penalty” for withdrawing, though this excuse fell away when I asked a series of questions about the penalty’s existence and enforceability.  But when that fig-leaf fell away it became clear that “wider” government considerations were obliging the MoJ to continue. This is what picked by Alan White at Buzzfeed a week before the Corbyn speech.

To anybody who then cared, it was clear that the MoJ wanted out of the bid and was distancing itself as much as possible.  It was open knowledge.

At this stage it was not certain that the bid would continue: no final award decision had been made.

The MoJ thereby might have gone through with performing the contract, whilst controversy about the Saudi human rights record was likely to keep reigniting.

What Gove seems to have been ensuring was not that the bid would be dropped – that was unexpected – but that the blame for the MoJ performing it would be deflected as much as possible to the Foreign and Home Offices. And had it not been for Corbyn, that would have been the most likely outcome.

But when Corbyn did make that speech, then it appears that this manoeuvring was put to a slightly different use, and this is how Gove stoked and won a cabinet confrontation.

_____________________________________

To get alerts for my new posts at Jack of Kent and the FT, and anywhere else, please submit your email address in the “Subscribe” box at the top of this page.

Whatever happened to the Leveson Inquiry website?

19th November 2015

I looked today for the Leveson Inquiry website, which contains all the evidence and the full report (2012).

And it was not there.

I was sure that there was one, wasn’t there?

Ho ho.

Anyway, someone established the site was indeed blank.

It had been blank since 2 November 2015.

What seems to have happened was that the redirect had disappeared to the National Archive copy.

https://twitter.com/PranavM_/status/667422031613415424

So it is still there, somewhere, if you care to look for it.

And the Leveson Report is now – officially – a matter for an archive, just three years after it dominated UK media debate.

 

 

_____________________________________

To get alerts for my new posts at Jack of Kent and the FT, and anywhere else, please submit your email address in the “Subscribe” box at the top of this page.