In this issue of zoom-in brief, Koo Stark wins damages over MTV ‘porn’ story; The Supreme Court gives landmark judgment on serious harm; and Australian police raids on the media are denounced as intimidation.
Prince Andrew’s ex-girlfriend Koo Stark has won substantial damages from Viacom International, owner of MTV’s entertainment news website, after it published an article that wrongly referred to her as a “porn star”.
The American actor and photographer dated Prince Andrew for two years in the early 1980s.
The relationship came to an end in the wake of controversy over the fact that Stark had appeared in the erotic film Emily in 1976.
Stark was reported last year to have instructed lawyers in respect of her portrayal in forthcoming episodes of Netflix series The Crown, which is soon to cover the period during which she was in a relationship with the Prince.
A story published by MTV listing “dramatic moments” from the history of the Royal family featured a section under the headline: “When Prince Andrew dated a porn star.”
Alongside a photo of the Prince, it said: “This is why the Royal Family should have their own reality show [to be honest]. During a trip to the Caribbean, Andrew was seen with Koo Stark, an American lady who was no stranger to the porn scene. We can imagine Lizzy was not impressed.”
In a statement in open court, Stark’s lawyer said the article was defamatory because readers would understand it to mean Stark “is a porn actress who has made her living participating in films which are made by pornographers for distribution in the pornography market”.
He went on to say: “Ms Stark, who was at one time widely expected to marry HRH Prince Andrew, has never participated in any pornographic film, posed for pornographic photographs, or participated in any enterprise which could properly be described as pornographic.”
Viacom International has agreed not to repeat the claim.
Stark’s lawyer said out of Court that the false allegation repeated by MTV had “gained new currency” because of The Crown, adding: “Hopefully after the reading of this statement it will not be repeated.”
The Daily Star published an apology to Stark last year over an article that wrongly said she had “starred in a pornographic film”. The title said this was “not a true and accurate description” of her work.
Defunct lads’ magazine Zoo paid Stark substantial damages in 2007 over a similar allegation.
The repeated damages awards to Stark illustrate the danger of reproducing defamatory allegations found on the internet or in other media without independently verifying them and considering the legal risks.
The Supreme Court has given its long-awaited judgment in Lachaux v Independent Print Ltd, a case which has explored the nature of the “serious harm” test found in the Defamation Act 2013, deciding that claimants must demonstrate as a fact that the harm caused to them by publication was serious.
Mr Lachaux and his ex-wife Afsana had been engaged in a custody battle in the UAE where he lived, and had originally sued over allegations published in the UK media which were said to have been made against him by her, including of domestic abuse.
S 1(1) of the Defamation Act 2013 introduced a new test to this area of the law, providing that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
There was a trial of a preliminary issue as to whether or not Lachaux had suffered serious harm to his reputation for the purpose of the Defamation Act 2013.
Mr Justice Warby interpreted the new test as meaning that in each case it was necessary to prove as a matter of fact, on the balance of probabilities, that serious harm had been caused or is likely to be caused by the publication complained of.
On the basis of the scale of the publications, the fact that they had or were likely to come to the attention of people who knew the claimant in this country, and the seriousness of the statements themselves, he found that Lachaux’s reputation had suffered serious harm.
The newspaper defendants appealed to the Court of Appeal, which agreed with the outcome, but did not accept the judge’s analysis of the “serious harm” test, and focused more on inference, saying that the primary question was whether the allegation was seriously defamatory.
Independent Print Ltd then appealed to the Supreme Court, which agreed with both Mr Justice Warby and the Court of Appeal as to the outcome on the facts of the case.
However, the Supreme Court’s ruling on the law has now effectively moved the goal posts back to where they were positioned by Mr Justice Warby, by approving his approach to assessing harm, and thus the need for claimants, where it is disputed, to prove this by means of evidence.
In cases where serious allegations are published by the mass media, it is likely that there will be a very strong inference of harm available, but the ruling introduces the prospect of there now being frequent preliminary trials at which the Court is asked to rule on this issue.
The decision will be widely seen as a positive one for the media, since it emphasises that the law has decisively changed in favour of freedom of expression following the introduction of the new legislation.
The Australian media world has been rocked by Police action against both national broadcaster the ABC and a journalist at Sydney’s The Sunday Telegraph newspaper.
The ABC’s headquarters were raided by the Australian Federal Police (“AFP”), who had obtained a warrant naming individual journalists, on 5 June 2019, the day after the AFP raided the home of the journalist at the News Corp publication.
In an immediate statement the ABC MD, David Anderson, said that the raid was “highly unusual”.
“This is a serious development and raises legitimate concerns over freedom of the press and proper public scrutiny of national security and defence matters,” he said.
“The ABC stands by its journalists, will protect its sources and continue to report without fear or favour on national security and intelligence issues when there is a clear public interest.”
The AFP said it was investigating “allegations of publishing classified material, contrary to provisions of the Crimes Act”.
A subsequent statement by the ABC’s chair, Ita Buttrose, said that the raids were “designed to intimidate” and warned the government she would fight “any attempts to muzzle” the broadcaster.
The raid on the home of the political editor of The Sunday Telegraph related to a 2018 story on an alleged secret government proposal to spy on Australian citizens, which is currently unlawful.
The journalist was served a warrant to search her Canberra home, phone and computer 14 months after she published the story, and the AFP spent almost eight hours at her home.
The raid was widely condemned, and the opposition party has demanded a parliamentary inquiry into press freedom in response to both police actions.
While the Police and regulatory bodies such as the ICO have powers to carry out raids of this kind in this country, which could in theory be exercised against the media, they are rarely used.
ICO enforcement officers raided the London offices of data analytics company Cambridge Analytica in 2018, as part of an investigation into the use of personal data and analytics for political purposes.
And the Police have in the past sought Court orders under the Official Secrets Act 1989 as part of efforts to make journalists disclose their sources, for example as part of investigations into the News of the World phone hacking scandal.
In contrast to Australia, in this country journalists enjoy a range of protections in relation to their dealings with sources, both under acts of Parliament such as the Contempt of Court Act 1981 and the Police and Criminal Evidence Act 1984, and under the European Convention on Human Rights.
There would usually be a chance to argue over the disclosure of information before a Judge ahead of any raid taking place.
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