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In this issue of zoom-in brief, actor Geoffrey Rush gives evidence in his Australian defamation case; MP Nick Brown’s libel claim against publisher Faber and Faber settles; and the Court of Appeal confirms Morrisons is liable for a data breach committed by a rogue employee.

(AUS) LIBEL - Geoffrey Rush gives evidence in ‘inappropriate behaviour’ defamation case

Editorial credit: Kathy Hutchins / Shutterstock.com
Editorial credit: Kathy Hutchins / Shutterstock.com

Geoffrey Rush

Oscar-winner Geoffrey Rush has given evidence in support of a defamation claim he is bringing in Australia over a newspaper allegation that he behaved inappropriately towards a female co-star.

Mr Rush is suing Sydney’s Daily Telegraph and the journalist who wrote the articles, Jonathon Moran. In his evidence, he said he felt distraught over the articles, which alleged inappropriate behaviour towards Eryn Jean Norvill, his co-star in a 2015 Sydney Theatre Company production of King Lear.

The allegations include that Mr Rush made groping gestures towards Ms Norvill, made comments and jokes involving sexual innuendo, touched her lower back backstage, and traced his hand down her torso and across the side of her breast on stage during a scene in which he was carrying her. Mr Rush denies the allegations.  His wife has also given evidence of the effect on him, telling the court that he has retreated from the world and does not want to act again.

The trial has involved close examination of text messages Mr Rush sent to Ms Norvill, with lawyers making reference to website Emojipedia to seek to explain the meaning of emoji used in the texts, in particular the emoji with its tongue sticking out which the Daily Telegraph claimed was panting, but Mr Rush dismissed as simply zany – ‘the looniest emoji I could find’.

Mr Rush is well-known for films including The King’s Speech, Shakespeare in Love, Pirates of the Caribbean and Shine, for which he won a best actor Oscar. His lawyer has described him as ‘a national living treasure’ and said the allegations were lies.  The Daily Telegraph intends to defend the allegations as true and Ms Norvill is expected to give evidence for the newspaper.

The trial is expected to last two-weeks, with a series of actors and others from the Australian film and theatre industry giving evidence.

LIBEL – MP’s libel case against publisher settles

A claim by the Labour Chief Whip, Nick Brown MP, against writer Tom Bower and publisher Faber and Faber over a reference to Mr Brown in a book about Tony Blair has been resolved with the issue of a joint press statement.

Mr Brown brought libel proceedings over an allegation relating to him in Mr Bower’s book about Mr Blair’s decade as Prime Minister, Broken Vows.

The book suggested that in 1998 the News of the World had accused Mr Brown of having paid rent boys for consensual rough sex, saying that he had been ‘accused by a national newspaper of paying £100 to rent boys in order to be kicked around a room, and admitted his sexuality.’

The litigation had previously been the subject of a hearing to determine what the words complained of meant and whether they were defamatory at common law, i.e. whether they lowered the claimant in the estimation of ‘right-thinking people generally’.

Faber ultimately accepted that it could be defamatory to say Mr Brown had paid for sex; visited or used prostitutes, enjoyed violent or rough sex and asked to be subjected to violent or rough sex – but only in the context of his being a Minister of the Crown.

Although the Judge declined to rule on the issue because of these concessions, he made clear that he did not necessarily accept that the allegation was defamatory of Mr Brown only because he was a Minister because ‘Equality before the law seems… to demand that the standard is the same for all citizens’.

The Judge observed that the resolution of the issue ‘would raise difficult questions as to contemporary social values’.

The parties publicised the settlement of their dispute by means of a joint statement which explained that Mr Bower included the reference only to explain how Mr Brown came publicly to admit he was gay, and that he defended his original report on public interest grounds,

The statement went on to say that Mr Brown said the book did not make clear that the News of the World did not in fact publish the “rent boy” allegations, which were untrue, and that the book did not record his denials.

The statement said that, following the resolution of the litigation, Mr Brown accepted that the offending passage was published in good faith as part of a chronological political narrative and that the defendants did not seek to adopt the allegations, which they accepted were untrue.

For their part, the defendants said that they regretted any distress or embarrassment that the publication may have caused to Mr Brown, which was never intended.

The case illustrates two key aspects of libel litigation.

Firstly, it is inherently uncertain: senior barristers on opposing sides took one view on particular allegations (that they could be defamatory), but the Judge may have ultimately taken a different one (that they were not).

Second, judgments about what is defamatory reflect what the Judge called ‘contemporary social values’ and can therefore change over time.

This is a nuanced and constantly evolving backdrop against which to determine the issue, and an allegation that might well have lowered the claimant in right thinking people’s estimation at the time it was first made in 1998 might not have the same impact today.

DATA PROTECTION - Morrisons liable for data breach by rogue employee

Supermarket Morrisons faces paying a substantial sum in damages after the Court of Appeal confirmed it was liable for a data breach deliberately carried out by an employee.

Andrew Skeleton was entrusted with handing over the payroll data of almost 100,000 Morrisons employees to auditors. Skelton, however, had a grudge against the company after it took disciplinary action against him for using the Morrisons mailroom to send out a slimming drug – and a package split, spilled an unidentified white power and caused alarm.  To further his grudge, Skelton copied the payroll data, posted it online and sent it to newspapers. The police were alerted and he was convicted of fraud and offences under the Computer Misuse Act and the Data Protection Act and sentenced to 8 years in prison.

A group of 5,518 employees brought proceedings against Morrisons for breach of the Data Protection Act, breach of confidence and misuse of private information. The judge held that although Mr Skelton and not Morrisons was the ‘data controller’ of the data when he posted it online, Morrisons was still vicariously liable for his actions.

Vicarious liability is the legal mechanism whereby employers are found liable for wrongs committed by their employees.  It has been applied in a wide range of circumstances, including where the employees were doing things that they were obviously not supposed to, for example where the warden of a school boarding house sexually abused boys in his care.  It had not, until now, been applied to data protection claims.

Morrisons appealed to the Court of Appeal, arguing that data protection legislation only applies to data controllers, and that in relation to security measures a data controller only had to comply with the 7th data protection principle, which requires it to take appropriate technical and organisational measures to prevent unlawful access to personal data.  Morrisons also argued that compensation is only available where the data controller has failed to take reasonable care to comply with the law – which it said it had done.

This contrasts with the position in vicarious liability which in effect imposes strict liability, i.e. even if the employer has taken reasonable care they will still be liable for a careless, negligent or malicious employee’s actions.

Morrisons also sought to argue that data protection legislation had superseded the law on breach of confidence and misuse of private information such that there was no longer room for vicarious liability in those causes of action.

The Court rejected these arguments. The fact that there is a different standard of strict liability where an employer is vicariously liable for their employee’s actions, is the position across the board, not just in data protection.

There is nothing in the Data Protection Act to suggest Parliament intended to exclude people from bringing claims in misuse of private information/breach of confidence as well as under the Act, nor that it intended vicarious liability not to apply, and the judge was right to find that it should.

As Mr Skelton was entrusted with the payroll data as part of his job there was a sufficient connection with his employment for vicarious liability to apply. His motive of hurting the company was not relevant.  Concerns about the costs to business could not affect the decision and in any event could be mitigated by insurance.

Morrisons has said it intends to appeal to the Supreme Court.

Both this Court of Appeal decision and the judge’s initial decision have caused considerable concern in data protection circles given that the Information Commissioner had declined to take any action against Morrisons, and the Court itself found that the only breach of the 7th data protection principle did not cause the damage complained of. However, this is simply a demonstration of the difference between regulatory action, and the position before a court.

This case suggests that where there has been a data breach, even if carried out by a rogue employee, the company may well be liable, and those affected may be able to seek compensation.

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