The changing face of media law

'The legal media world is unrecognisable from what it was nine years ago,' was the view of Michael Skrein, a partner at City-based law firm Richards Butler, in his introduction to the ninth annual Protecting the Media Conference, which he organises in association with IBC.

The conference gives a snap shot of the state of play in the legal media world and what defendants and claimants have to fear - or indeed have to smile about.

The number of libel trials has declined.

Libel barrister Hugh Tomlinson QC, of Matrix Chambers, told the conference that only 128 libel claim forms were issued in London last year, down significantly from the 241 of the previous year.

So far as he is aware, there have only been five libel jury trials in London in 2003.

Ghannouchi v Al Arab, 21 March 2003, was concluded in favour of the claimant, with a jury award of 61,000.

On 30 June, 5,000 was awarded to the claimant in Sophocleous v Enfield Town.

Unsuccessful claimants included those in Vassiliev v Frank Cass, 13 June 2003 and Bowen-Griffith v Homebase, 27 June 2003.

That was followed by Pedder v Associated Newspapers, 25 July 2003.

Why the down-turn? A mixture of various elements is likely to be the cause.

The Civil Procedure Rules 1998 (CPR), and the defamation pre-action protocol ensure that parties set out their cases at an early stage and this should weed out potentially unsuccessful claims early on.

The offer of amends procedure can be used by defendants to cut claims off before they get to trial, where it is clear that they cannot defend a claim (or perhaps where they wish to settle it for commercial reasons).

And perhaps there are just fewer libels likely to give rise to a successful claim because of more responsible journalism, with a reaction to the Lord Nicholls' recommendations in Reynolds v Times Newspapers Ltd and Others.

Then there are reduced damages, often dwarfed by the legal costs incurred.

The risk to a privately paying individual may be proving too high when compared with the likely downside, unless of course that claimant is on a conditional fee agreement (CFA), especially one backed by insurance.

While the case of The Gleaner Company Ltd and Dudley Stokes v Eric Anthony Abrahams (see [2003] Gazette, 4 September, 24), does not automatically send awards sky-rocketing, according to Mr Justice Tomlinson it is indicative of the fact that the senior judiciary in the UK - sitting as the Privy Council in this case - do not necessarily believe that the current ceiling of 200,000 is high enough for all situations.

Dream or nightmare?

Alastair Brett, legal manager at Times Newspapers, told the conference delegates that CFA-represented libel claimants risk upsetting the balance that the overriding objective in the CPR sought to achieve.

He views the procedure as a potential for claimants' lawyers bullying media organisations into settling claims against the threat of huge libel costs involved in a libel trial, doubled by the 100% success fee that they are regularly able to command.

He argues that to prevent the resultant chilling of free speech, the courts should actively use their case management powers.

For example, they should make strict orders as to pleadings to ensure that weak or bogus claims - brought not on the basis that they will succeed at trial, but on the basis that they will result in a healthy settlement - are weeded out.

Or they should insist that CFA libel claimants take out after-the-event insurance to provide media organisations with security in relation to their costs.

Not everyone agrees, with claimant lawyers arguing that if they want to risk their own money on a case then there is no reason why they should not do so.

The issues will be considered in the first case to address the question of CFAs in libel proceedings, Adam Musa King v Telegraph Group Ltd (see [2003] Litigation Funding, October, 8).

Privacy developments

Although cases in breach of confidence have been brought for decades, its re-positioning to include cases for invasion of privacy has caused much legal and media interest.

Its precise nature is still unclear, and indeed it is likely to prove to be a work in progress for some time.

But Antony White QC, of Matrix Chambers, shed some light on the current position.

If confidence is a shoe and privacy a foot, the view of the Court of Appeal, says Mr White, is that the shoe should expand to accommodate the foot, rather than the foot being shoehorned into the ill-fitting shoe.

In other words, the courts should be flexible in their approach to the law of privacy, using the existing common law right to confidence to accommodate a claimant's concerns where appropriate.

In Campbell v MGN Ltd [2003] QB 633, the Court of Appeal, echoing its approach in A v B Plc [2003] QB 195, stated: 'The courts are in the process of identifying, on a case-by-case basis, the principles by which the law of confidentiality must accommodate the article 8 and the article 10 rights [of the European Convention on Human Rights].'

The issue has been considered in a number of cases, including the high profile Douglas v Hello! Ltd [2003] EHWC 786.

It was noted by the Court of Appeal in Campbell, that Douglas v Hello! recognised 'a right of privacy or equitable remedy for breach of confidence...

even in the absence of any pre-existing confidential relationship'.

The nature of this right - together with the applicability of the Data Protection Act 1998 - should be given some further clarity when Campbell is heard by the House of Lords early next year.

This will be the first 'privacy' case to go before the Lords since the implementation of the Human Rights Act 1998.

Problems of contempt?

In an age of immediate reporting and where the public is likely to be interested in anything that might come before a court - especially perhaps a criminal court - the question of what is likely to prejudice a trial is much in the minds of both the government and the media.

Giving rise to the debate has been the Attorney-General's guidance notes issued to remind editors of their obligations under the contempt laws, and the reporting around the Premiership footballers allegedly involved in rape and sexual assault.

While media practitioners, both in-house and in private practice, will be aware of the need for restraint in certain circumstances, they look to the law - be it the common law principles or the Contempt of Court Act 1981 - to remind them of their obligations.

Fear is being expressed that the Attorney-General's guidelines are no more than a restatement of the existing law, or an unnecessary interference with the decision making processes of editors and in-house lawyers.

Patrick Moloney QC, of One Brick Court Chambers, updating the conference on contempt, put both sides of the case.

While he could see the authorities' desire 'at all costs' to avoid the abandonment of major trials, he equally recognised the media's 'competitive zeal' in relation to sensationalist stories; they sit uneasily with this conflicting excess of caution.

The Attorney-General has said that he will give general guidance in relation to court reporting.

This may either clarify the position for those operating in the media sector, or it may give them further cause to believe that the law of contempt is being imperceptibly changed without recourse to parliament.

But this is denied by the attorney's office, which says that 'the guidance makes clear the potential cumulative effect of a number of prejudicial articles, which could endanger any future trial.

It is intended to assist the media.'

By Amber Melville-Brown, David Price Solicitors and Advocates, London